Quiet killer Benefiel executed

By Coleen Mair - LaPorte Herald Argus

April 21, 2005

MICHIGAN CITY — Bill Benefiel Jr. was a man of few words. Often he would sit quietly in his cell, keeping to himself, according to Indiana State Prison Spokesman Barry Nothstine. Nothing changed early this morning as Benefiel offered no final words before he was put to death by lethal injection at the Indiana State Prison in Michigan City shortly after midnight. Instead, he had told prison officials, “Let’s get this over with, let’s do it,” said Indiana Department of Correction Media and Public Relations Director Java Ahmed.

Benefiel, who requested no autopsy be done on his body, was pronounced dead at 12:35 a.m., the second man to be executed at the prison since March 10, when Donald Ray Wallace Jr. was put to death for the 1980 murders of an Evansville family of four.

Benefiel had one visitor on his final day, his attorney Marie Donnelly, and only one witness to the execution, whom prison officials would not identify, citing confidentiality laws. He did not ask for a spiritual advisor, prison officials said. Benefiel’s two sons, who visited their father at the prison Sunday, were not there for the execution. His body will be cremated.

In the hours leading up to his death, Benefiel watched television in his cell, Nothstine said. He ate his last meal Tuesday, which included a large pizza, an Italian beef sandwich, four pints of ice cream, a Dutch apple pie and a 12-pack of cola.

Benefiel, 48, was convicted in February 1987 of kidnapping and killing Delores Wells, 19, of Terre Haute, who had a 2-year-old son. Prosecutors alleged during his murder trial that Benefiel held Wells captive in a vacant house for 12 days, sexually abusing her before killing her. Court records state Benefiel super-glued the teen’s eyes and nostrils shut and stuffed toilet paper in her mouth and taped it shut before taking her into the woods, where she died and he buried her.

Two weeks later, her body was found in a shallow grave. Another teen, Alicia Elmore, who was also held captive in the house for four months handcuffed to a bed, survived the ordeal and testified against him. Investigators found the 17-year-old in a ceiling crawl space during a search of the house four days after Wells was killed.

More than 18 years have passed since the murder. Wells’ mother, Margaret Hagan, said she never thought the day of execution would come. The family drove from Terre Haute for the execution, waiting in a room on the prison grounds for word of Benefiel’s death, a prison chaplain at their side.

There, the family shared stories about Wells, discussing how easy Benefiel’s death would be compared to hers, Hagan said. Elmore’s mother was also with them. “It’s finally over. I’m relieved. Now there can start to be closure. I can go back home and go on, keeping the good memories and getting rid of the bad,” Hagan said. Her son, two daughters and a stepdaughter surrounded her at the Holiday Inn in Michigan City where she met with the media. “I will always hate him. His dying will not change that, but I will no longer dwell on him, wondering if he was ever going to get out. I used to dream about what I’d like to do to him.”

Wells’ stepsister, Jackie Hollinger, carried a photograph of her father into the prison with her Wednesday, a day after visiting his grave in Terre Haute. “My father died three years ago, and when he found out he was ill he said he would never outlive Benefiel and he didn’t,” she said with tears in her eyes. “But I know he’s here with us in spirit.” For the family, hearing the protestors outside the prison was difficult, Hagan said. “Until they’ve walked in our shoes and have lost a family member, they need to stay at home and mind their own business.”

Benefiel was the 85th inmate to be executed in Indiana and the 13th since the death penalty was reinstated in 1977.

Protesters: All killing is wrong

MICHIGAN CITY — As a retired correctional officer at the Indiana State Prison, Martin Hayes opposed the death penalty but that didn’t keep him from doing his job. Working with Indiana’s death-row inmates, he saw firsthand the men waiting to die. “I pray for each and every one of them,” he said Wednesday night while standing outside the Indiana State Prison in Michigan City, where convicted murderer Bill Benefiel Jr. was put to death shortly after midnight this morning.

Hayes knew Benefiel, who worked as a porter inside the prison walls. “I never had any problems with him. He always carried out his duties.” For Hayes, of Michigan City, the night of an execution is always sad. “I have a problem with what the state is doing. I believe it is God’s responsibility.”

In the hours before Benefiel was executed, a handful of protesters holding candles and signs marched outside the gates of the prison, walking to the rhythm of beating drums and ringing bells. The protesters, bundled up in winter coats, hats and scarves, held candles silhouetted against yellow plastic cups. The fragrant smell of incense lingered in the cool air.

“The love of God prevails over even the most heinous of crimes,” said Rev. Tom Mishler of St. Mary of the Lake Church in Gary. As he spoke to the crowd, a photograph of Benefiel was on the table in front of him. Various signs —“Execution is no solution,” “Thou Shalt Not Kill,” and “Murder is Always a Crime” — leaned against the yellow guardrail behind him.

“God wills us to be people of love,” he said, describing Pope John Paul II’s legacy of a culture moving away from death and toward life. “Sometimes our prayers and voices seem to fall on deaf ears. But we’re here to proclaim a message of hope that one day charity and hope will prevail and the death penalty will be abolished.”

According to Mishler, who was speaking on behalf of the Duneland Coalition to Abolish Capital Punishment, Benefiel, who was diagnosed with a schizotypal personality disorder, was betrayed by the state when he was never given the treatment he needed to overcome his disease. He eventually killed Delores Wells, 19, of Terre Haute, who was tortured and raped for 12 days before she was murdered.

Dawn Ulicni, who read about Benefiel’s history of physical and sexual abuse as a child, agrees. She drove up from Portage to support the protest. “This man was taught (that) abuse and mistreatment is OK,” she said. “The system let him down. Everything that he did and that is happening seriously makes me ill.” Ulicni, who is studying sociology at Purdue North Central, used to be for the death penalty, she said. “I was all about, ‘Do unto others what you would have done unto you,’ but I just came to realize there are other ways to handle something like this. Two wrongs do not make a right,” she said, warming her fingers over the flame of her candle. “The family’s pain will never go away; it’s always going to hurt.”

Statistics show that capital punishment is not an effective deterrent to murder, added her classmate, Katy Callan of Michigan City. “It all really comes down to vengeance, and people wanting to feel like justice was done,” she said. Society was safe once Benefiel was put into prison, said Scott Napier, asking, “What are we gaining from doing this except to satisfy someone’s blood lust?”

In 50 years, John Souder Roser has never missed an execution. On Tuesday, he led the circle of protesters marching outside the prison grounds, banging on a drum hanging from around his neck and gripping a sign that read, “Shame, Never Kill in our Name.” The tradition started with his grandfather. The family lived on the prison grounds in the 1930s when his father was a social worker at the penitentiary. “It is wrong to kill anybody for any reason, and that’s just the way I was raised,” he said.

Benefiel v. State, 578 N.E.2d 338 (Ind. 1991)

Defendant was convicted in the Superior Court, Vigo County, Michael H. Eldred, J., of confinement, rape, deviate conduct, and murder, and he was sentenced to death. Defendant appealed. The Supreme Court, Givan, J., held that: (1) exclusionary rule did not apply to testimony of victim who had been missing and held against her will for several months and who was found pursuant to search warrants based on affidavits containing secondhand hearsay; (2) prior attacks on women six and eight years earlier were sufficiently similar and not too remote to be admissible; (3) defendant was not mentally ill; and (4) irresistible impulse is not excuse independent of insanity. Affirmed. DeBruler, J., concurred with separate opinion.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Count I, Criminal Confinement, a Class B felony; Count II, Rape, a Class B felony; Count III, Criminal Deviate Conduct, a Class B felony; and Count IV, Murder, a felony. Following a guilty verdict on all counts, the jury recommended the death penalty, and appellant was so sentenced.

The State's case was established largely on the testimony of Alicia Elmore, a surviving victim. On October 10, 1986 at approximately 7:30 p.m., seventeen-year-old Alicia Elmore walked to a gas station two blocks from her home in Terre Haute, Indiana to purchase soft drinks for her mother and brother who were ill. As she returned home, a man wearing a mask and carrying a gun accosted her and asked her for money.

When she said she had no money, he grabbed her and forced her to walk down an alley. The assailant then pushed her into a garage where he instructed her not to make any noise or he would shoot her. The assailant pushed her to the floor and started taking off her clothes. Upon removing her clothing, he tied her up with some of her clothes and wire from a lamp.

He stuffed some clothing in her mouth and put her jeans over her head so she could not see. In order to prevent her from moving, he placed two heavy bags on her back. He then left and returned a few moments later, placed her in his van and drove around for a few minutes. He carried her into a house and laid her on a mattress on the floor. Throughout this period, the assailant warned her not to scream and told her that if she did, he would kill her.

Once inside the house, he asked her what her name was and where she lived. He untied her and took photographs of her. During this period, he kept her head covered. He then raped her. During intercourse, he kept a gun against her head and warned her not to scream. He placed a chain around her neck and fastened it to the bed. He also handcuffed her to the side railing of the bed and tied her feet together with a rope.

He left for approximately fifteen minutes and upon his return, he informed her that he had gone back to the garage to pick up her clothing and the soft drinks she had dropped. He again forced her to have intercourse in the same manner as he had before. When he tied her up, he put duct tape over her eyes and placed a large wad of toilet paper in her mouth and taped her mouth shut.

The next day he forced her to perform oral sex. Following this, he handcuffed her arms to the railing and handcuffed her ankles together. Later, she determined that it was daylight and attempted to escape by scooting the bed frame toward the doorway. She chewed the tape off of her mouth and began screaming. When she began screaming, the assailant came into the room and threw a blanket over her head. After telling her that she was not supposed to scream, he slapped her, took out a knife and cut her on her back, cut off one of her fingernails, and cut off a portion of her hair. He then warned her not to try to escape again or he would kill her.

In addition, he placed the gun to the side of her head and "clicked" it. When he was cutting off her hair, he informed her that he was placing it in a scrapbook with samples of hair from other women he had raped. He then put glue in her eyes so they would be stuck shut. He also placed more tape over her eyes and more toilet paper in her mouth. Later that day, he again forced her to have sexual intercourse.

On October 12, he had intercourse with her twice in the same manner as he had before. He fed her a sandwich which was the first time she had eaten since she had been abducted. During her captivity, Alicia was able to tell the changing of the days by listening to the radio, and up to October 13, she had not slept. Sexual intercourse occurred daily during her captivity with her life always being threatened.

During four months of captivity, Alicia counted being raped a minimum of 64 times. She stopped counting because she was getting confused in trying to keep count of how many days she had been held and the number of times she had been raped. On October 30, the assailant informed her that they were going to have a Halloween party. That night he took a knife and cut the side of her neck and a place on her chest.

In addition, he stuck the gun in her vagina and forced her to have anal intercourse. During the first two months of captivity, Alicia's eyes were glued together and taped. A few times during her early captivity, the assailant would want to see her eyes so he would put his mask on and "pry" open her eyes for only a few moments. She was not allowed to go to the bathroom when she needed to during the first few months and was fed only a baked potato and a glass of water during this time.

One time during this period, the assailant made her hold the bullets to the gun and told her that one of the bullets had her name on it. Alicia thought that an escape would be impossible because the assailant told her about his dogs, which she could hear from inside the house. She was not allowed to bathe on her own.

A few times throughout this period the assailant gave her a bath. Most of the time she was chained to the bed and was naked. During her captivity, appellant would ask her whether she wanted to die slowly or quickly. Upon responding that she would want to die quickly, he would respond by telling her that her death would be long and painful.

On December 9, 1986, there was a need for Alicia to go to the hospital in Vincennes, Indiana because she was bleeding vaginally. On this occasion, she was able to see her assailant for the first time. He not only took off his mask but also untaped her eyes and unchained her. In order to prevent her from screaming on the way out to the van, he showed her the gun.

She noticed the color of the van and the various items in the van including police scanners. On the way to the hospital, he made her drive despite the fact that she barely could see. Upon arriving at the hospital, he again warned her not to say anything or else he would kill everyone. He also informed her that she was to tell hospital personnel that her name was Mary Benefiel and that she was eighteen years old.

Alicia was examined by a doctor and a nurse. Throughout the examination, the assailant was only a few feet away. At one point, the doctor asked her what was wrong with her eyes, but before she could respond, the assailant stated it was because she had been crying so much. At no time did she inform anyone at the hospital because she was afraid he would kill them.

Following the examination, the doctor informed Alicia that she was pregnant and not to have sexual intercourse for three weeks. Thereafter, they left the hospital and drove back to the house in Terre Haute. On this occasion, she recognized for the first time that the color of the house was yellow. The address turned out to be 323 South 13 1/2 Street. Upon arriving, he did not retape her eyes and did not wear his mask.

On December 10, appellant had sexual intercourse with Alicia despite the doctor's recommendation. A few weeks later, she was moved to another house. To accomplish this, appellant tied her up and carried her out to the van, drove around for a few minutes and then carried her into the other house. This address turned out to be 322 South 13 1/2 Street, across the street from the first address. The color of the house at 322 was brown.

As soon as they entered the house, he chained her to the bed. Soon after they were in the house at 322, he again forced her to have sexual intercourse as well as oral intercourse. While Alicia was in the house at 322, she heard police scanners which were used by appellant. With these scanners, he was able to find out which houses he could burglarize following some event at those houses. That is, appellant knew the codes used by the police.

On January 26, 1987, Alicia thought that someone else was in the house because she heard noises in the basement. Later, appellant informed Alicia that he in fact did have someone else in the house. On the evening of January 27, 1987, Alicia saw the other individual, Delores Wells, whom she knew. Appellant told Alicia how he captured Delores and what he did with her once he had her.

When Alicia first saw Delores, she was on a water bed in another bedroom. Delores was naked, had handcuffs on her hands, tape over her eyes, paper towels in her mouth, and tape over her mouth. During the time Delores was in the house at 322, Alicia never spoke with her because appellant warned her not to. On February 4, 1987, appellant told Alicia to come into Delores' room. When she got to the room, she saw Delores laying on the mattress with her hands handcuffed behind her back and her ankles handcuffed together.

At that point, he started beating her all over her body with his fists, then he took an electrical cord and started hitting her with it. Later, Alicia saw the injuries to Delores, which included welts on her arms and legs, and her face was black and blue as well as being swollen. On another occasion, appellant cut off all of her hair and cut her finger. Appellant also asked Delores if she wanted to die quickly or slowly to which she responded quickly. Appellant stated that she would die slowly.

On February 7, 1987, appellant left the house for approximately two hours, and when he returned, he had mud from his waist down and had blisters on his palms. He told Alicia that he had been digging a grave which was big enough for two people. At that point, she thought he was going to kill Delores and her. Later, on February 7, he had Alicia go into Delores' room and made her watch as he put super glue in her nose and pinched it together. He then put toilet paper in her mouth and taped it shut. At this point, Delores started squirming around. Alicia then left the room.

A short time later appellant chained Alicia to the bed and left. At that point, she did not hear anything in the house. Approximately two hours later, appellant returned and stated that he had killed Delores. He told Alicia that he tied her arms and legs to two separate trees, then took duct tape and wrapped it completely around her head until she died. To make sure she was dead, he took her neck and "popped" it. He then stated that he buried her. He explained to Alicia that he had to kill her because she knew too much.

On the morning of February 11, 1987, appellant stated to Alicia that the police were coming. At that point, he started drilling holes in the floor and instructed her to gather everything with her name on it. When he was unable to put her under the floor, he pushed her into a crawl space of the suspended ceiling and warned her not to make a sound. The police knocked on the door and informed appellant that they had a search warrant.

Appellant told the police that he did not know who they were looking for, and a few moments later, he informed them that Alicia was up in the ceiling. The police then removed her from the ceiling, and because appellant was there, she informed the police that she was there on her own.

However, when she went to the hospital, she informed the police as to what had happened. On the same day that Alicia was discovered, a search of appellant's van revealed various items including a mask, a post-hole digger, a rake, a shovel, a pocket knife, .22 caliber rifle shells, and rope.

On February 22, 1987, a group of volunteers searched for Delores in various areas in Terre Haute. One volunteer, Tom Farris, discovered a freshly disturbed area where Delores Wells' body was found. An autopsy on Delores Wells revealed internal and external injuries to the anus and injuries to the vagina indicating a violent rape. The pathologist stated that Delores Wells was raped before her death, that the injuries to the anus and vagina were fresh, and that she died as the result of asphyxia.

Evidence found in the trash at one of appellant's homes included a piece of duct tape which had hairs on it similar to the head, eyebrow, and eyelash hairs of Delores Wells. In addition, other hair particles found in the trash were similar to head hairs from Delores Wells and hairs sufficiently similar to the head, facial, and pubic hairs of appellant. Appellant contends the trial court erred in refusing to quash search warrants. He claims the warrants were issued as a result of intentional or reckless misstatements of facts made by the affiant. As a result, certain evidence that was obtained was inadmissible as "fruits" of the illegal searches.

Sergeant Joe Newport presented Judge Michael Eldred four affidavits of probable cause on February 10, 1987, to search four buildings located on South 13 1/2 Street in the city of Terre Haute, Indiana.

The affidavits were identical and stated in substance that the affiants had learned through reports from the Terre Haute Police Department that a person identified as Alicia Elmore was reported missing on October 11, 1986, that on January 16, 1987, the affiant was informed by a confidential informant, who was known to be reliable and credible in the past, that the Elmore girl was in the company of Bill Benefiel, that Benefiel had access to four different houses in the 300 block of South 13 1/2 Street in Terre Haute, and that he had been seen driving a blue van to the rear of the homes to pick up or drop off Elmore.

Additional information was received that Benefiel had two girls who the informant believed were being held against their will. The search warrant, among other things, *344 authorized the police to search for and seize the person of Alicia Elmore.

It is appellant's contention that the affidavits contained false information in that he did not believe the informant spoke from personal knowledge or that Alicia Elmore was being held against her will. Upon cross-examination at the hearing on the motion to quash, Sergeant Newport conceded that much of the information had come to his informant through Benefiel's wife and that the informant did not have personal knowledge as to much of the information furnished. In support of his position, appellant cites Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 for the proposition that all evidence which is "fruit of the poisonous tree" resulting from an illegal search should be excluded at trial. In the case at bar, counsel for appellant objected to all evidence seized pursuant to the warrants, including testimony by Alicia Elmore, the victim, and contends all this evidence must be suppressed since the evidence is "fruit of the poisonous tree."

We agree with appellant that the affidavits presented to the trial judge contained secondhand hearsay information; therefore, they were insufficient as far as a search for property was concerned. However, an analysis of the problem does not stop here. Instead, we must review the policy reasons behind the exclusionary rule and determine whether the reasons for invoking such a rule should apply under the facts of the instant case to exclude any of the evidence, including Alicia's testimony.

* * *

Appellant contends the trial court erred in failing to find him incompetent before or during trial. We will not reweigh the evidence and will not overturn a factual determination made by the trial court unless it is not supported by the facts and their inferences. See Wallace v. State (1985), Ind., 486 N.E.2d 445,. It is the province of the trial court to determine if the person to stand trial is competent to stand trial. Id.

Appellant contends there is nothing to suggest that he was competent to assist counsel. However, the record shows this not to be the case. At a hearing conducted on his competency on May 23, 1988, Dr. Crane and Dr. Murphy found appellant to be competent to stand trial. In fact, one of the doctors stated that appellant had the ability to cooperate with his attorneys but chose not to do so. The trial court based its decision on its observation of appellant's demeanor during trial in which it noted no change in his behavior.

Testimony presented at the hearing showed that Dr. Stewart, appellant's expert, one of his attorneys, and appellant himself all testified. However, the trial court was not bound by the testimony of the expert nor the others. Id. During the trial, appellant took the stand but following a recess he refused to continue to testify. This denied the State any chance to cross-examine him. The court noted not only this but also that appellant had noted a conversation between the court and the prosecutor which he brought to his counsel's attention. Based on this and other observations of appellant, the trial court determined that he was competent to stand trial. The trial court's determination is supported by the record.

Appellant contends the trial court erred in failing to declare the death penalty unconstitutional as applied to the instant case. He claims he was incapable of giving assistance to his counsel with regard to the death penalty issue. He also contends the prosecutor's discretion to seek the death penalty renders the statute unconstitutional. With regard to the second part of appellant's claim, this Court in Bieghler v. State (1985), Ind., 481 N.E.2d 78, cert. denied *348 (1986), 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349, rejected attacks on the prosecutor's discretion to seek the death penalty. With regard to the claim involving appellant's competence, as stated above, there was no abuse of discretion. We find no error.

Appellant argues that the trial court should have directed a verdict of not guilty by reason of insanity. This Court in Nagy v. State (1979), 270 Ind. 384, 389, 386 N.E.2d 654, 657 stated: "When reviewing the sufficiency of the evidence on the issue of sanity, we treat the issue like other questions of fact. This Court does not judge the credibility of witnesses nor reweigh evidence, but rather looks to the evidence most favorable to the State along with any reasonable inferences therefrom. If there is substantial evidence of probative value to support the jury's conclusion that the defendant was sane at the time of the commission of the crime, that conclusion will not be overturned."

In the case at bar, both court-appointed doctors testified that appellant was not insane at the time of the acts. In addition, Alicia Elmore testified as to appellant's demeanor and conduct during her captivity from which the jury could have found him sane. We find the record adequately supports such a finding, and the trial court's denial of a directed verdict was proper.

* * *

Finally, the record reveals that Judge Eldred properly considered both aggravating and mitigating circumstances and properly imposed the death penalty in accordance with the Indiana Code. The trial court is affirmed.

Benefiel v. State, 716 N.E.2d 906 (Ind. 1999)

Following final appellate affirmance of his convictions of criminal confinement, rape, criminal deviate conduct, and murder, and of his sentence of death, 578 N.E.2d 338, petitioner sought post-conviction relief. The Vigo Superior Court, Frank M. Nardi , Special Judge, denied petition, and petitioner appealed. On direct appeal, the Supreme Court, Shepard , C.J., held that: (1) restatement of claims of error with assertions that failure to raise issues on direct appeal had amounted to ineffective assistance of counsel was insufficient to avoid waiver; (2) petitioner received effective assistance of trial counsel; (3) prosecutor's reference to defense expert as "hired gun" did not improperly denigrate defense; (4) trial court's statements to jury were proper characterizations of jury's role in capital murder prosecution; and (5) trial court was not required to hold second full competency hearing to determine petitioner's competence to waive his right to be present in courtroom. Affirmed.

SHEPARD, Chief Justice.

A jury found Bill Benefiel guilty of criminal confinement, rape, criminal deviate conduct, and murder. The trial court sentenced Benefiel to death. We affirmed the convictions and sentence on direct appeal. Benefiel v. State, 578 N.E.2d 338 (Ind.1991), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L.Ed.2d 591 (1992). Benefiel filed a petition for post conviction relief, which was denied. He now appeals that denial.

Facts

The facts of this case are available in our opinion on direct appeal. Benefiel, 578 N.E.2d at 339-43. We summarize the facts as follows:

On October 10, 1986, at about 7:30 p.m., seventeen year-old Alicia Elmore walked two blocks away from her home to run an errand for her mother and brother. As she returned, a man wearing a mask and carrying a gun grabbed her, pushed her into a garage, stripped her, covered her head, and bound her with her own clothes and electrical wire.

He put her in his van, and took her to a house, where he took photographs of her and then raped her. He chained her neck and handcuffed her wrists to the bed; he tied her ankles together with rope. He gagged her and put glue in her eyes. He raped her multiple times. When she tried to escape, he cut her back and cut off a fingernail and part of her hair; he said they were for his scrapbook with samples from his other victims.

Later, he cut her neck and chest, put his gun in her vagina, and forced her to have anal intercourse. He held Alicia captive for four months, raping her daily at gunpoint. She lost count after sixty-four rapes. For the first few months, Benefiel kept her eyelids glued together and pried them open only when he wanted to see her eyes. At those times, he wore a mask so she could not see his face. Alicia could only go to the bathroom or bathe when Benefiel allowed her. He fed her a baked potato and a glass of water once a day.

Two months later, when Alicia was bleeding vaginally, Benefiel took off his mask and pried her eyes open. He took her to a distant hospital where they would not be recognized. He did not give her a chance to tell the doctors that she was a captive. When they returned, he moved her to another house, where he again chained her to the bed. Her eyes could now open, and she could see her attacker.

A month and a half later, Alicia heard someone else in the house. She then saw Delores Wells, naked, gagged, with her wrists and ankles handcuffed. Delores' eyes were taped shut. Benefiel beat Delores in front of Alicia with his fists and an electrical cord. Alicia saw the injuries to Delores: welts on her arms and legs and black bruises on her face. On another occasion, Benefiel cut off all of Delores' hair and cut into her finger.

A few days later, Benefiel left the house and returned dirty, with blisters on his hands. He told Alicia that he had been digging a grave big enough for two people. He used it only for Delores, however. He forced Alicia to watch as he put super glue up Delores' nose and pinched it shut. He taped her mouth closed so she could not breathe. He took Delores from the house, and returned two hours later, informing Alicia that he had killed Delores. He said he tied Delores' arms and legs to separate trees, and wrapped duct tape around her head. When he thought she was dead, he "popped" her neck, just to be sure. Then he buried her.

After another few days had passed, the police came to Benefiel's house to search for Alicia. Benefiel hid her in a crawl space in the ceiling, where the police eventually found her. A search of the woods surrounding Terre Haute also revealed Delores' grave site and her body. The police found in Benefiel's houses and van: a mask, a post-hole digger, a rake, a shovel, a knife, .22 caliber rifle shells, rope, and Delores' eyelash, eyebrow, and head hairs stuck to some duct tape.

* * *

Benefiel argues that his trial counsel were ineffective for their limited presentation of Benefiel's mental illness and background of abuse and neglect. (Petitioner-Appellant's Br. at 51-52.) Specifically, he argues that counsel improperly focused almost exclusively on a weak insanity defense during the guilt phase of the trial and failed to introduce enough evidence of mental illness and abuse to serve as mitigation at the penalty phase. This bears resemblance to a claim we rejected in Matheney v. State, 688 N.E.2d 883, 898 (Ind.1997), cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999). Matheney argued on post-conviction that his trial lawyers chose badly in arguing insanity as a defense. We concluded that this claim failed on the deficient performance prong of the Strickland test:

While present counsel bemoan trial counsel['s] decision to pursue the insanity defense, they provide no evidence of what alternative strategy trial counsel should have employed in its stead. Indeed, there is much to indicate that employing this defense was the best alternative available. There was no available defense that would have cast doubt on the fact that he intentionally killed [Delores Wells], and by employing the insanity defense, [Benefiel's] attorneys were able to introduce evidence that they otherwise would not have been able to submit. We conclude counsel did not perform at a level below professional norms. Id. (citation omitted).

The piece of this argument aimed at the lawyers' performance during the penalty phase fails on the prejudice prong. He claims that his trial counsel should have offered the testimony of court-appointed experts who could attest to Benefiel's "severe personality disorder" and his genetic predisposition to "schizotypal personality disorder," (Petitioner-Appellant's Br. at 59), the testimony of the mental health professionals who prepared records concerning Benefiel's mental state when he was a teenager, (id. at 63), and the records of his adoption by Helen Benefiel, (id.).

The court-appointed experts did testify during the guilt phase that Benefiel suffered from schizotypal personality disorder, (T.R. at 3006-07, 3014-16), and from a mental disease or defect, (T.R. at 3057, 3084-85, 3097-98). Because the guilt phase evidence was incorporated into the penalty phase, (T.R. at 3350-51; see also T.R. at 3424), this evidence was available for the jury to consider when it determined its recommended punishment.

The evidence that post-conviction counsel says could and should have been submitted during the penalty phase carried much the same thrust. While hearing the same testimony again at the penalty phase might have reinforced the idea that the mental disease discussed during the guilt phase could have mitigating weight, we cannot say that the failure to reintroduce the testimony created a reasonable probability that the jury would have recommended against death. See Matheney, 688 N.E.2d at 899.

The jury did hear evidence of the mental disease or defect mitigator. Benefiel's counsel argued the mitigator forcefully in his penalty phase closing. (See, e.g., T.R. at 3409, 3411.) Furthermore, the evidence presented by the State was overwhelming; the aggravator weighed very heavily in favor of the death penalty. Benefiel suffered no prejudice.

As to the testimony of the mental health professionals, the records they prepared were introduced into evidence at the guilt phase, (T.R. at 2566-74), and thus the information contained therein was also available to the jury when it recommended death. Moreover, Benefiel's trial counsel asked one of the court-appointed experts to describe the contents of the reports. (T.R. at 3063-64.)

While the live testimony of the health professionals may have interested the jurors more than the expert's description of the reports or the written reports themselves, again "we cannot say that the failure to elicit such testimony ... creates 'a reasonable probability that the result of the proceeding would have been different.' " Matheney, 688 N.E.2d at 899.

Finally, with respect to Benefiel's claim that counsel should have sought his adoption records, Benefiel's biological mother testified under subpoena at the penalty phase about the adoption. (T.R. at 3366-87.) Her testimony was exceptionally probative of Benefiel's abandonment and abuse. Again, Benefiel's contention that counsel's failure to dig up adoption reports written in 1963 fails the Strickland prejudice prong, at least.

* * *

Benefiel has not met the burden of proof imposed upon him when appealing the denial of post-conviction relief. We affirm the judgment of the post-conviction court.

Benefiel v. Davis, 357 F.3d 655 (7th Cir. 2004). (Habeas)

Background: Following affirmance of his murder conviction and death sentence, 578 N.E.2d 338, and affirmance of denial of state postconviction relief, 716 N.E.2d 906, petitioner sought writ of habeas corpus. The United States District Court for the Southern District of Indiana, Richard L. Young, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Terence T. Evans, Circuit Judge, held that:

(1) state court determination that petitioner was competent to continue trial did not involve unreasonable determination of facts;
(2) state court determination that counsel was not ineffective in failing to object to mitigating evidence instruction was not unreasonable;
(3) state court determination that trial and appellate counsel were not ineffective in failing to object to judge's application of mitigating standard was not unreasonable; and
(4) counsel was not ineffective in failing to object to admission of testimony from prior rape victims. Affirmed.

TERENCE T. EVANS, Circuit Judge.

In 1988, Bill J. Benefiel was sentenced to death for murdering Delores Wells in Terre Haute, Indiana, in 1987. His conviction for the murder, as well as for criminal confinement, rape, and criminal deviant conduct, and his death sentence have been upheld by the Indiana Supreme Court both on direct appeal, Benefiel v. Indiana, 578 N.E.2d 338 (Ind.1991), and on appeal from the denial of a postconviction motion, Benefiel v. Indiana, 716 N.E.2d 906 (Ind.1999). He is now before us appealing the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We start with the facts, which curl the stomach and numb the mind.

The story of this gruesome crime begins with another victim, Alicia Elmore. On October 10, 1986, at approximately 7:30 in the evening, Elmore, who was then 17 years old, walked to a gas station two blocks from her home in Terre Haute, Indiana, to purchase soft drinks for her mother and brother. Her family did not hear from her again for 4 months.

During those months, Benefiel, who had abducted Elmore off the street, tortured and raped her repeatedly, 64 times before she stopped counting. At various times he stuffed clothing or toilet paper in her mouth and put duct tape over her eyes and mouth. For the first 2 months her eyes were glued shut. He fastened her to a bed, naked, with a chain around her neck.

At times he handcuffed her to the side railing of the bed and tied her feet together with a rope. When she screamed he slapped her and cut her with a knife. He cut off one of her fingernails. He cut off some of her hair and told her he was putting it in a scrapbook with hair samples from other women he had raped. For the first months she was fed only baked potatoes and water and was not allowed to use the bathroom without his permission. At one point he stuck a gun in her vagina and forced her to have anal intercourse.

She was convinced escape was impossible because of his dogs, which she could hear from inside the house. In addition, of course, she was terrorized. Benefiel asked her whether she wanted to die quickly or slowly. When she said quickly, he said her death would be long and painful. She had no reason to doubt it.

About 10 weeks into her captivity, Elmore saw, for the first time, the house in which she was imprisoned. A few weeks later she was moved to another house across the street from the first one. In the second house, Benefiel again chained her to the bed and had sexual intercourse and oral sex with her. In this house she could hear the police scanner, which Benefiel *658 used to determine which houses he could burglarize.

About a month later, in January 1987, Elmore heard noises which indicated to her that someone else was in the house. It turned out to be Delores Wells. Elmore first saw Wells lying naked and handcuffed on a bed. She had tape over her eyes and paper towels stuffed in her mouth, which was then taped over. On February 4, while Elmore watched, Benefiel began beating Wells, first with his fist and then with an electrical cord. Another time, he cut Wells's hair and cut off her finger. He also told her she would die slowly.

On February 7 Benefiel left the house, and when he returned he was muddy from the waist down. He told Elmore that he had been digging a grave which was big enough for two people--she assumed for Wells and her. That day, Benefiel also made Elmore watch as he put super glue in Wells's nose and pinched it together. He then put toilet paper in her mouth and taped it shut. Wells began squirming, trying to breathe.

A little later Benefiel chained Elmore to her bed and left the house. When he returned about 2 hours later he told Elmore that he had killed Wells by tying her arms and legs to two separate trees. He then wrapped duct tape around her head until she died. To make sure she was dead he "popped" her neck. Then he buried her.

On February 11 Benefiel told Elmore that the police were coming. He pushed her into a crawl space above the ceiling and warned her not to make a sound. The police arrived with a search warrant. Benefiel first told them he did not know the person they were looking for, but a few minutes later he told them where Elmore was. When she was found she told the police, in Benefiel's presence, that she was in the house voluntarily, surely an unlikely story. Later, at a hospital, she told the police what had happened to her. During the search of the house the police also discovered a mask, a post-hole digger, a rake, a shovel, a pocket knife, .22-caliber rifle shells, and rope.

On February 22 volunteers searching for Wells found her body under a freshly disturbed plot of ground. An autopsy revealed internal and external injuries to the anus and injuries to the vagina indicating a violent rape. The cause of her death was asphyxia. In the trash at Benefiel's home the police found duct tape which had hairs on it similar to the head, eyebrow, and eyelash hairs of Wells.

A jury trial on the many charges we mentioned earlier resulted in a bevy of convictions. The jury recommended the death penalty and the trial judge imposed it. As we said, Benefiel's conviction was upheld by the Indiana Supreme Court. He then filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asking the federal district court to set aside his conviction and death sentence. The petition was denied.

In this appeal from that denial, he contends that the stress of the trial caused him to became incompetent to aid in his own defense. He also claims that he was deprived of the effective assistance of counsel because his attorney at trial and on direct appeal did not argue that the judge's instructions to the jury in the penalty hearing included an unconstitutionally narrow definition of mitigation and that, in announcing the sentence, the judge used the same overly narrow definition. Benefiel also says he was denied the effective assistance of trial counsel because his attorneys failed to move to suppress testimony of two women who said that Benefiel raped them years earlier, testimony which the trial court relied on as aggravating factors in support of the decision to impose the death penalty.

Because Benefiel's petition for a writ of habeas corpus was filed after April 24, 1996, the provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 govern our analysis. With respect to a claim that was adjudicated on the merits in state court, we may not grant a writ unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2).

In the latter determination, a factual issue "made by a State court shall be presumed to be correct" and the "applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1)We turn first to the issue of Benefiel's competency to aid in his own defense. It is well-settled that a defendant may not be tried unless he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and ... a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)

In Benefiel's case, two competency hearings had been held prior to trial. Each time, Benefiel was found to be competent. The issue arose for the third time during Benefiel's testimony near the end of the guilt phase of the trial. As his testimony began he was asked about his unfortunate childhood, including sexual abuse at the hands of one of his adoptive mother's boyfriends. Benefiel showed reluctance to answer the questions. He said to his attorney, "I thought you wasn't even going to ask me that." The lawyer said he did not promise not to ask and said, "We need to hear about it ...." Benefiel answered, "Yeah, but they will put it in the paper." He also testified about refusing to go to school because he thought everyone was laughing at him. There are other similar instances of Benefiel's apparent reluctance to testify or his avoidance of situations he doesn't like.

Then the questioning reached the matter of Alicia Elmore. Benefiel said, "That's a hard one to talk about." His testimony began with his version of the story. He said he was helping her out, letting her stay with him to avoid her unpleasant home situation. He testified briefly about taking her to a hospital in Vincennes. (She in fact did go to a hospital because she was bleeding vaginally. She used the name Mary Benefiel and did not cry out for help because she said she was afraid Benefiel would kill someone.)

Then the judge called a recess, after which Benefiel refused to resume the stand. This caused a bit of consternation for all involved. The prosecutor said in this situation he was "a little limited" as to cross-examination. The judge replied, "That's putting it mildly." There was a natural concern that, as the judge said, "he gets up and testifies to what he wants and then refuses to answer any questions on it."

After considerable discussion of the situation and also of what explanation to give the jury for Benefiel's absence from the courtroom, it was agreed that another hearing as to Benefiel's competency would be held. At this mid-trial hearing, Dr. Stephen Stewart, a clinical psychologist, testified essentially that Benefiel was not malingering and that he was not competent to continue with the trial. Dr. Stewart's view was that the trial was an extremely stressful and traumatic experience for Benefiel, and his usual coping skills of dissociating from what was going on around him proved to be inadequate during his testimony.

On cross-examination, Dr. Stewart was asked whether he found it significant that when Elmore and two other rape victims pointed at Benefiel as their assailant, he smiled. He did; he thought it might be expected of the perpetrator of the crimes but not of the person who was testifying.

One of the defense attorneys also testified regarding his interaction with Benefiel after what he described as his "mental breakdown." Finally, Benefiel himself testified, basically repeating that he could not go back into the courtroom. The judge, who had been observing Benefiel for several days at this point, most likely would draw one of two conclusions.

The first would be that Benefiel, who, we remember, had previously twice been found competent to stand trial, had suffered some sort of breakdown during his testimony which rendered him unfit to proceed. The second would be that Benefiel was trying to have the best of both worlds. He could testify about his pathetic upbringing and show the jury, by his reluctance to talk about it, how painful it was, but at the same time avoid going into detail about Elmore or Wells. And perhaps most importantly, he could avoid cross-examination.

The trial judge knew manipulation when he saw it. He said he believed Benefiel could make a decision to go into the courtroom and testify or not. In other words, he did not think Benefiel was unable to enter the courtroom but was choosing not to. The judge continued:

The fact that he chooses not to be in there at this particular stage makes sense logically from some standpoints. For one thing, he was yet to face cross-examination in his testimony, and two, he had really not gotten to the parts of the story which could work to his disadvantage, this is how [he] portrayed his background which would create some sympathy, and we took the break right about the time we got to the Alicia Elmore section and did not get into Delores Wells. There seems to me to be some logical connection there which would justify perhaps as the Prosecutor has suggested, there is some manipulative action going on here. Tr. at 2552-53.

The Indiana Supreme Court found the trial judge's decision to be supported by the record. Benefiel urges us to find that the state court's finding that he was competent was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The argument is based in large part on a contention that the only evidence which was before the judge supported Benefiel's claim. Were we to accept that argument, we would be taking from the judge the ability to assess the credibility and persuasiveness of the evidence. This trial judge was not convinced by the evidence presented. Relying on his own observation, as well as the testimony of psychological experts from the earlier hearings, he was convinced that nothing had changed and that Benefiel remained competent to stand trial. We cannot say that the decision of the Indiana Supreme Court upholding that determination was unreasonable in any way.

Benefiel also alleges that he was denied the effective assistance of counsel at both his trial and on appeal to the Indiana Supreme Court. Both claims involve the trial judge's understanding of mitigation as revealed in his sentencing decision and in the jury instructions. To understand why there are two claims which seem to go to the same perceived problem, one must remember that in Indiana at the time, in the *661 penalty phase of the proceeding, the jury issued a recommendation as to whether the death penalty should be imposed. Its recommendation, however, was advisory, not binding. It was the judge who bore the final burden of imposing a death sentence. Indiana Code § 35-50-2-9(e)(2)

Benefiel claims that his trial attorneys were incompetent for not objecting to the jury instructions and that his attorneys were incompetent at both the trial and on appeal for not arguing that the sentencing judge applied an unconstitutionally narrow definition of mitigation in evaluating whether to impose the death sentence.

* * *

In addition to the evidence in mitigation that the jury heard, the judge also heard from Elmore, Wells's parents, and Wells's husband. All four testified that they did not want Benefiel to be sentenced to death. They wanted him to remain alive in prison and to have to confront daily what he had done. Death, in the words of Elmore, was the "easy way out."

After hearing from the victims, the judge first went through the statutory mitigating factors, finding that none of them applied. He then considered Benefiel's mistreatment while he was young and referred to Benefiel's background. But ultimately he concluded that there was "no excuse or justification to explain or mitigate against these incomprehensible acts ...." He said, not without justification, that to "weigh the aggravating factor against any possible mitigating factors in this case is like as the old axiom goes, comparing a mountain to a molehill." While there are phrases during the sentencing hearing that can be interpreted to limit the scope of mitigation, it is clear that the sentencing judge was aware that the evidence of childhood trauma and other psychological factors were, in fact, what mitigation was all about. It was simply that in his view those factors did not tip the scales when they were weighed against the aggravating factors. We cannot find that the failure to raise this issue violated the Strickland standard.

In evaluating this evidence, the Indiana Supreme Court concluded that under Indiana law it was admissible to show a "common scheme or plan." The court also found that the attacks were not too remote in time to be admissible. Given that the testimony was found to be admissible, counsel cannot be faulted for failing to register a futile objection. Benefiel was not prejudiced by the failure to object. For all these reasons, the judgment of the district court denying Benefiel's petition for a writ of habeas corpus is AFFIRMED.

Benefiel v. Davis, ___ F.3d ___ (7th Cir. 2005). (Stay)

Background: After state prisoner's conviction on charge of capital murder had been affirmed on appeal, 578 N.E.2d 338, the District Court and the Court of Appeals denied his habeas corpus petition, 357 F.3d 655. The United States District Court for the Southern District of Indiana, Richard L. Young, J., denied prisoner's motion to reopen original proceedings. Prisoner appealed. Prisoner brought motion for Court of Appeals to recall its mandate and reopen its original decision, and issue stay of execution.

Holdings: The Court of Appeals, Easterbrook, Circuit Judge, held that:

(1) decision released after judgment became final did not justify reopening that judgment under rule governing relief from final judgment;
(2) recall of mandate from Court of Appeals was not warranted; and
(3) writ of habeas corpus was not suspended by preventing state prisoner from continually seeking collateral review. Affirmed.