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Jeffrey Don LUNDGREN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Religious cult leader - Self-professed prophet
Number of victims: 5
Date of murders: April 17, 1989
Date of arrest: January 7, 1990
Date of birth: May 3, 1950
Victims profile: Dennis and Cheryl Avery and their three daughters
Method of murder: Shooting (.45 caliber semiautomatic weapon)
Location: Lake County, Ohio, USA
Status: Executed by lethal injection in Ohio on October 24, 2006
 
 

 
 
clemency report
 
 

 
 

Summary:

Lundgren and about two dozen followers had broken away from the Reorganized Church of Jesus Christ of Latter Day Saints, now called the Community of Christ, a small church that splintered from the mainstream Mormon church.

His group believed doomsday was near. Lundgren killed the Avery family both because of a message he felt he got from God and because he saw the family as disloyal for not pooling their finances into a common church fund.

After inviting Dennis and Cheryl Avery and their three daughters over for dinner, each was led individually out to the barn, where each was bound and gagged by a group of men.

After they had placed each Avery family member into the pit, Lundgren shot each person two or three times with a .45 caliber semiautomatic weapon. The men then filled the pit with dirt and stones.

Afterwards, Lundgren and the others went back to the farmhouse and held a prayer meeting.

ACCOMPLICES:

Alice Lundgren - Aggravated Murder (5 counts), Kidnapping (5 counts) - 150 years to Life.
Damon Lundgren - Aggravated Murder (4 counts), Kidnapping (4 counts) - 120 years to Life.
Ronald Luff - Aggravated Murder (5 counts), Kidnapping (5 counts) - 170 years to Life.
Daniel Kraft - Aggravated Murder (5 counts), Kidnapping (3 counts) - 50 years to Life.
Gregory Winship - Murder (5 counts), 15 years to Life.
Richard Brand - Murder (5 counts) - 15 years to Life.
Sharon Bluntschly - Conspiracy to Aggravated Murder - 7-25 years.
Deborah Olivarez - Conspiracy to Aggravated Murder - 7-25 years.
Susan Luff - Conspiracy to Aggravated Murder and was sentenced to 7-25 years.
Kathryn R. Johnson - Obstructing Justice - 1 year.
Dennis Patrick - Obstructing Justice - 18 months, sentence suspended and placed on 1 year probation.
Tonya Patrick - Obstructing Justice - 18 months, sentence suspended and placed on 1 year probation.

Citations:

State v. Lundgren, Not Reported in N.E.2d, 1993 WL 346444 (Ohio App. 1993). (Direct Appeal)
State v. Lundgren, Not Reported in N.E.2d, 1999 WL 964592(Ohio App. 1998). (PCR)
Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006). (Habeas)

Final/Special Meal:

Turkey, potatoes and gravy, a salad and pumpkin pie.

Final Words:

"For my last words I'd like to profess my love for God, my family, my children and my beloved wife. ... I am because you are," Lundgren said just before he was executed.

ClarkProsecutor.org


Ohio Department of Rehabilitation and Correction

NAME: Jeffrey D. Lundgren
INMATE #: A456727
RACE: Caucasian
DOB: 05/03/50
CRIME: Aggravated Murder (5 Counts)
SENTENCE: Death
COUNTY: Lake County

OCTOBER 18, 2006 - NEWS RELEASE Execution of Inmate Jeffrey Lundgren

(Columbus) – The Ohio Department of Rehabilitation and Correction officials have confirmed that inmate Jeffrey Lundgren will be executed on Tuesday, October 24, 2006 at 10:00 AM. The execution will take place at the Southern Ohio Correctional Facility located in Lucasville, Ohio. The Ohio Revised Code mandates lethal injection as the manner of execution.

Lundgren was convicted and sentenced to death for the April 17, 1989 Aggravated Murders of the Avery family in Kirkland, Ohio: Dennis Avery, age 49; Cheryl Avery, age 46; Trina Denise Avery, age 15; Rebecca Lynn Avery, age 13; and Karen Diane Avery, age 7.


Lundgren got what he deserved

After cult killer's execution, no one claims body

By Maggi Martin - Cleveland Plain Dealer

October 25, 2006

Lucasville, Ohio -- Jeffrey Lundgren, the self-professed prophet who killed five people in what he said was a sacrifice demanded by a higher power, died by lethal injection Tuesday in a death demanded by the state. Lundgren walked the 17 steps to the death chamber without the well- worn Bible that he used to control his cult, which formed after he broke from the Reorganized Church of Jesus Christ of Latter Day Saints.

As a dozen people watched from the other side of a glass wall, Lundgren issued a 15-second statement that mentioned fellow cult member Kathryn Johnson, his second wife. "I want to profess my love for God, my family, my children and my beloved Kathryn," he said while staring at the ceiling. "I am because you are." Moments after the lethal combination of three drugs was injected into his beefy arms, Lundgren heaved a big sigh, his eyes fluttered, and then he was still. Minutes later, at 10:26 a.m., he was pronounced dead.

He died more gently than his victims. Dennis and Cheryl Avery and their daughters, Trina, 15, Becky, 13, and Karen, 7, were led one by one past a buzzing chain saw to a muddy pit, where they were bound with duct tape, shot and dumped into a common grave. Lundgren claimed that the 1989 slayings were commanded by God.

Among those witnessing the execution was U.S. Rep. Steven LaTourette, who served as Lake County's prosecutor at the time of the slayings. LaTourette said the killings were a cowardly act committed to silence those who began to doubt Lundgren's status as a deity. "Even after 16 years, I still can't get the vision out of my head of 7-year-old Karen Avery," LaTourette said. "As we removed the parents from the pit, we all said we didn't want there to be children." Other witnesses included Cheryl Avery's younger brother, Donald Bailey of Missouri. In an act of defiance, he walked up close to the death chamber's glass window to ensure that Lundgren knew he was there.

"He got what he deserved," said Bailey, who said the family has suffered depression and nightmares from the horror. In a written statement, Bailey said he was convinced that Lundgren would kill again if he were released from prison. "There is only one sure way to make sure this never happens again: To be sure his life is forfeited for the terrible deeds he has done. The memories of his victims and the welfare of society and demands of justice all dictate this final act of cleansing," Bailey wrote. "My only regret is that he has but one life to give."

After the execution, prison officials said Lundgren had been so certain that he would win a delay that he napped much of the morning. His lawyers were not present when the U.S. Supreme Court declined to accept his last appeal a little more than an hour before the scheduled 10 a.m. execution. Gov. Bob Taft denied Lundgren's request for clemency. Lundgren had hoped to stay his execution while courts considered a lawsuit arguing that the state's method of execution, lethal injection, is cruel. A U.S. District Court judge stayed the execution last week so that Lundgren could join the lawsuit, but a three-judge panel from the 6th U.S. Circuit Court of Appeals reversed that decision Monday night.

The once haughty prophet who surrounded himself with loyal followers died with no family members or friends among the witnesses. With no one claiming his body, Lundgren will be buried in a simple ceremony in a prison grave in Chillicothe. Other convicts will serve as pallbearers.

The Avery family was buried years ago in the rolling hills of Missouri. A Missouri church community raised thousands of dollars to pay for the burial and to launch a children's charity so that the memory of Trina, Rebecca and Karen Avery would not end in a muddy pit in Kirtland.


Cult leader who killed family of 5 followers is executed

Columbus Dispatch

October 25, 2006

LUCASVILLE - Ohio executed one of its most notorious criminals yesterday, a religious cult leader who killed a family of five followers who were taken one at a time to a barn, bound and shot.

Jeffrey Lundgren, who died by injection at the Southern Ohio Correctional Facility, did not think the family was enthusiastic enough about following his teachings. "I profess my love for God, my family, for my children, for Kathy (his wife). I am because you are," Lundgren, 56, said in his final statement. He married Kathryn Johnson after the killings.

He was convicted of murdering the Avery family: Dennis, 49; Cheryl, 41; and their daughters, Trina, 15, Rebecca, 13, and Karen, 7. No one on Ohio’s Death Row has killed more. The evidence against him showed that Lundgren was upset by what he thought was the Avery family’s lack of faith and arranged a dinner hosted by cult members in 1989 in Kirtland. Afterward, he and his followers led the Averys one by one — Dennis first, Karen last — to their deaths in a pit in a barn. Lundgren shot each victim two or three times.

Donald Bailey, the brother of Cheryl Avery, watched yesterday’s execution and rose when Lundgren was brought into the death chamber. But Lundgren did not look through the window to the witness area. "I wanted him to know I was there," Bailey said after the execution, also attended by Kent Clisby, another brother.


Jeffrey Lundgren executed

Reuters News

CHICAGO (Reuters) - The state of Ohio on Tuesday executed a cult leader who killed a family of five, a crime he said God had commanded him to carry out. Jeffrey Lundgren, 56, was pronounced dead at 10:26 a.m. EDT (1426 GMT) following an injection of lethal chemicals at the Southern Ohio Correctional Center in Lucasville, the Ohio Department of Corrections said. "For my last words I'd like to profess my love for God, my family, my children and my beloved wife. ... I am because you are," Lundgren said just before he was executed.

Lundgren was convicted of the 1989 killings of Dennis and Cheryl Avery and their daughters, Trina, 15, Rebecca, 13, and Karen, 7. Police said he and some of his followers first lured each family member into a barn, taped their mouths and tied their hands and feet, and then forced all five into a pit where he shot them, execution style.

Lundgren and about two dozen followers had broken away from the Reorganized Church of Jesus Christ of Latter Day Saints, now called the Community of Christ, a small church that splintered from the mainstream Mormon church. His group believed doomsday was near. Prosecutors said Lundgren killed the Avery family both because of a message he felt he got from God and because he saw the family as disloyal for not pooling their finances into a common church fund.

Lundgren was given a meal of his choice on Monday night -- turkey, potatoes and gravy, a salad and pumpkin pie.

He was the 1,050th person executed in the United States since 1976 when the country restored capital punishment. It was the fifth in Ohio this year and the 24th in the state since it resumed executions in 1999.


Brother of cult victim sees justice

By John McCarthy - Akron Beacon Journal

Associated Press, Oct. 25, 2006

LUCASVILLE, Ohio - The brother of one of the victims of a cult leader who murdered five family members didn't care that their killer died in a drug-induced sleep. "Dead is dead. It doesn't matter how you get there," Donald Bailey said after Tuesday's execution of Jeffrey Lundgren, who led the family of five followers who were taken one at a time to a barn, bound and shot to death.

Lundgren, who died by injection at the Southern Ohio Correctional Facility, did not think the family was enthusiastic enough about following his teachings. He was convicted of murdering the Avery family: Dennis, 49; Cheryl, 41; and their daughters, Trina, 15, Rebecca, 13, and 7-year-old Karen. No one on Ohio's death row has killed more.

Bailey and his brother, Kent Clisby, are Cheryl Avery's brothers. They were among six witnesses who attended the execution on behalf of the victims. No one showed up to mourn Lundgren, whose body was taken for burial at the Ohio Department of Rehabilitation and Corrections' cemetery in Chillicothe. "I profess my love for God, my family, for my children, for Kathy (his wife). I am because you are," Lundgren, 56, said in his final statement. He married Kathryn Johnson after the killings.

The evidence against him showed that Lundgren was upset by what he thought was the Avery family's lack of faith and arranged a dinner hosted by cult members in 1989 in the northeast Ohio city of Kirtland. Afterward, he and his followers led the Averys - Dennis first, Karen last - to their deaths in a pit in the barn. Lundgren shot each victim two or three times. A chain saw was used to muffle the gunfire while remaining Avery family members cleaned up after dinner.

Bailey rose when Lundgren was brought into the death chamber. But Lundgren did not look through the window to the witness area. "I wanted him to know I was there," Bailey said.

Lundgren told a jury in 1990 that he was a prophet of God and therefore not worthy of the death penalty. "It's not a figment of my imagination that I can in fact talk to God, that I can hear his voice," he told the jurors. "I am a prophet of God. I am even more than a prophet."

Lundgren formed the cult with about 20 members after he was dismissed in 1987 as a lay minister of the Reorganized Church of Jesus Christ of Latter Day Saints, an offshoot of the main Mormon church. Lundgren said God commanded him, through interpretation of Scriptures, to kill the Averys, who moved from Missouri in 1987 to follow his teachings.

Some cult members moved into a rented farmhouse with Lundgren, calling him dad, sharing their paychecks and attending his classes. The upshot of his teaching: Jesus would return to earth only when the Kirtland Temple he had been dismissed from was recaptured. He told the jury the spiritually unclean had to be dealt with and referred to the killings as "pruning the vineyard."

Lundgren was careful to make sure no one would be looking for the Averys. Before the murders, he directed Cheryl Avery to write to her family and inform them that they were moving to Wyoming and would provide contact information when they got settled. The case was cracked eight months later when a dissident cult member, upset that his wife had been selected to become Lundgren's second wife, tipped off authorities. The bodies were found in January 1990. Thirteen cult members were charged in the case, including Lundgren's ex-wife, Alice, now 55, and their son, Damon, now 35, both serving life prison terms.

Late Monday, the 6th U.S. Circuit Court of Appeals in Cincinnati issued an order allowing the execution to go forward, overturning a lower court ruling that would have delayed the sentence to allow Lundgren to join a lawsuit challenging Ohio's use of lethal injection as cruel and unusual punishment. Lundgren argued his execution had more of a chance of being painful because he was diabetic and overweight at 275 pounds. The U.S. Supreme Court refused a last-minute request to stop his execution, and Gov. Bob Taft denied clemency.

U.S. Rep. Steven LaTourette, who prosecuted the case and witnessed the execution, said he didn't take any pleasure in seeing Lundgren die. He said he can't get the scene of the murder out of his mind and that he had hoped there would be no children as the bodies were being unburied. "Those of us who were in the barn remembered it was the parents first, then the children," he said.

Three other Ohio death row inmates have killed five people each. In 1975, James Ruppert gunned down 11 family members and is serving a life sentence. Ohio had no death penalty when he was convicted of two of the murders and was found innocent by reason of insanity of the rest.


Ohio executes cult leader who killed 5

Toledo Blade

Associated Press, October 25, 2006

LUCASVILLE, Ohio - Ohio executed one of its most notorious criminals yesterday, a religious cult leader who killed a family of five followers who were taken one at a time to a barn, bound, and shot. Jeffrey Lundgren, who died by injection at the Southern Ohio Correctional Facility, did not think the family was enthusiastic enough about following his teachings. "I profess my love for God, my family, for my children, for Kathy [his wife]. I am because you are," Lundgren, 56, said in his final statement. He married Kathryn Johnson after the killings.

He was convicted of murdering the Avery family: Dennis, 49; Cheryl, 46, and their daughters, Trina, 15, Rebecca, 13, and 7-year-old Karen. No one on Ohio's death row has killed more.

The evidence against him showed that Lundgren was upset by what he thought was the Avery family's lack of faith and arranged a dinner hosted by cult members in 1989 in the northeast Ohio city of Kirtland. Afterward, he and his followers led the Averys one by one - Dennis first, Karen last - to their deaths in a pit in a barn. Lundgren shot each victim at least twice. A chain saw was used to muffle the gunfire while remaining Avery family members cleaned up after dinner.

Donald Bailey, the brother of Cheryl Avery, watched the execution and rose when Lundgren was brought into the chamber. Lundgren did not look through the window to the witness area. "I wanted him to know I was there," Mr. Bailey said after the execution, also attended by Kent Clisby, another brother.

Lundgren formed the cult with about 20 members after he was dismissed in 1987 as a lay minister of the Reorganized Church of Jesus Christ of Latter Day Saints, an offshoot of the main Mormon church.


Ohio Executes Cult Leader for 5 Killings

By John McCarthy - Dayton Daily News

Associated Press - October 24, 2006

LUCASVILLE, Ohio — A religious cult leader was executed Tuesday for murdering a family of five followers who were taken one at a time to a barn, bound and shot to death. The youngest was a girl just 7 years old. Jeffrey Lundgren, 56, did not think the family was enthusiastic enough about his teachings and referred to the killings during his trial as "pruning the vineyard." "I profess my love for God, my family, for my children, for Kathy (his wife). I am because you are," Lundgren said in his final statement before he died by injection at the Southern Ohio Correctional Facility.

Lundgren was convicted in the slayings of the Avery family — Dennis, 49, Cheryl, 41, Trina, 15, Rebecca, 13, and 7-year-old Karen. In 1989, Lundgren arranged a dinner hosted by cult members. Afterward, he and his followers led the family members one by one — the father first, young Karen last — to their deaths while the others unknowingly cleaned up after dinner. Lundgren shot each victim two or three times while a running chain saw muffled the sound of the gunfire.

Lundgren argued at his trial that he was prophet of God and therefore not deserving of the death penalty. "It's not a figment of my imagination that I can in fact talk to God, that I can hear his voice," he had told the jurors. "I am a prophet of God. I am even more than a prophet."

Lundgren formed the cult with about 20 members in the northeast Ohio town of Kirtland after he was dismissed in 1987 as a lay minister of the Reorganized Church of Jesus Christ of Latter Day Saints, an offshoot of the Mormon church. He said God commanded him, through interpretation of Scriptures, to kill the Avery family, who had moved from Missouri in 1987 to follow his teachings.

Before the slayings, Lundgren ensured that no one would look for the Averys by directing Cheryl Avery to write to relatives and inform them that the family was moving to Wyoming and would provide contact information when they got settled. The case was cracked eight months later when a dissident cult member, upset that his wife had been selected to become Lundgren's second wife, tipped off authorities. Thirteen cult members were charged in the case, including Alice Lundgren, 55, Jeffrey Lundgren's wife at the time of the killings, and their son, Damon, now 35. Both are serving life prison terms.


Cult leader who killed five is executed

By John McCarthy - Cincinnati Enquirer

The Associated Press 10/25/06

LUCASVILLE - Ohio executed one of its most notorious criminals Tuesday, a religious cult leader who killed a family of five followers who were taken one at a time to a barn, bound and shot. Jeffrey Lundgren, who died by injection at the Southern Ohio Correctional Facility, did not think the family was enthusiastic enough about following his teachings. "I profess my love for God, my family, for my children, for Kathy (his wife). I am because you are," Lundgren, 56, said in his final statement. He married Kathryn Johnson after the killings.

He was convicted of murdering the Avery family: Dennis, 49; Cheryl, 46; and their daughters, Trina, 15, Rebecca, 13, and 7-year-old Karen. No one on Ohio's death row has killed more. The evidence showed that Lundgren was upset by what he thought was the Avery family's lack of faith and arranged a dinner hosted by cult members in 1989 in the northeast city of Kirtland. Afterward, he and his followers led the Averys one by one - Dennis first, Karen last - to their deaths in a pit in a barn. Lundgren shot each victim two or three times. A chain saw was used to muffle the gunfire while remaining Avery family members cleaned up after dinner.

Donald Bailey, the brother of Cheryl Avery, watched the execution. Lundgren did not look through the window to the witness area. "I wanted him to know I was there," Bailey said after the execution, also attended by Kent Clisby, another brother. No one witnessed the execution for Lundgren.

Lundgren told a jury in 1990 that he was a prophet of God and therefore not worthy of the death penalty. "It's not a figment of my imagination that I can in fact talk to God, that I can hear his voice," he told the jurors. Lundgren said God commanded him to kill the Averys, who moved from Missouri in 1987 to follow his teachings.

Thirteen cult members were charged in the case, including Lundgren's ex-wife, Alice, now 55, and their son, Damon, now 35, both serving life prison terms.


Ohio Adult Parole Authority

(Clemency)

STATE OF OHIO ADULT PAROLE AUTHORITY
COLUMBUS, OHIO
Date of Meeting: September 26, 2006
Minutes of the SPECIAL MEETING of the Adult Parole Authority held at 1030 Alum Creek Drive, Columbus, Ohio 43205 on the above date.

Jeffrey D. Lundgren A235-069
Death Penalty Clemency Report

SUBJECT: Death Sentence Clemency
CRIME, CONVICTION: Aggravated Murder with Specifications (5 counts), Kidnapping (5 counts)
DATE, PLACE OF CRIME: April 17, 1989 -Kirkland, Ohio
COUNTY: Lake
CASE NUMBER: 90CR015
VICTIMS (S): Dennis Avery, Age 49, Cheryl Avery, Age 46, Trina Denise Avery, Age 15, Rebecca Lynn Avery, Age 13, Karen Diane Avery, Age 7
INDICTMENT: January 5, 1990: Counts 1-5: Aggravated Murder with 2 Specifications; Specification #1 - Purposeful killing of 2 or more persons, Specification #2 – While in the commission of the crime of Kidnapping; Counts 6-10: Kidnapping.
VERDICT: August 29, 1990: Found Guilty by Jury as charged in the indictment.
SENTENCE: September 26, 1990: Counts 1-5: Death; Counts 6-10: 10-25 years on each count, to be served consecutive to each other.
ADMITTED TO INSTITUTION: October 26, 1990
TIME SERVED: 199 months
CURRENT AGE: 56 years old
DATE OF BIRTH: May 3, 1950
PRESIDING JUDGE: Honorable Martin Parks
PROSECUTING ATTORNEY: Steven C. LaTourette Karen Lutz Kowall.

ACCOMPLICES:

Alice Lundgren was convicted of Aggravated Murder (5 counts) and Kidnapping (5 counts) and sentenced to 150 years to Life. Damon Lundgren was convicted of Aggravated Murder (4 counts) and Kidnapping (4 counts) and was sentenced to 120 years to Life. Ronald Luff was convicted of Aggravated Murder (5 counts) and Kidnapping (5 counts) and was sentenced to 170 years to Life. Daniel Kraft was convicted of Aggravated Murder (5 counts) and Kidnapping (3 counts) and was sentenced to 50 years to Life. Gregory Winship was convicted of Murder (5 counts) and was sentenced to 15 years to Life. Richard Brand was convicted of Murder (5 counts) and was sentenced to 15 years to Life. Sharon Bluntschly was convicted of Conspiracy to Aggravated Murder and was sentenced to 7-25 years. Deborah Olivarez was convicted of Conspiracy to Aggravated Murder and was sentenced to 7-25 years. Susan Luff was convicted of Conspiracy to Aggravated Murder and was sentenced to 7-25 years. Kathryn R. Johnson was convicted of Obstructing Justice and sentenced to one year. Dennis Patrick was convicted of Obstructing Justice and sentenced to 18 months, sentence suspended and placed on 1 year probation. Tonya Patrick was convicted of Obstructing Justice and sentenced to 18 months, sentence suspended and placed on one-year probation.

FOREWORD:

Clemency in the case of Jeffrey D. Lundgren #A235-069 was initiated by the Honorable Bob Taft, Governor of the State of Ohio, and the Ohio Parole Board, pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code and Parole Board Policy #105-PBD-01. An application requesting clemency was submitted on Mr. Lundgren’s behalf by attorney Henry Hilow. On September 20, 2006, Parole Board Member Kathleen Kovach interviewed Mr. Lundgren at the Ohio State Penitentiary in the presence of his counsel, Henry Hilow.

The Clemency Hearing was held on September 26, 2006. Mr. Hilow appeared on Mr. Lundgren’s behalf, and gave oral arguments in support of the application for clemency. Arguments in opposition to clemency were presented by Lake County Assistant Prosecutor Karen Kowall, Principal Assistant Attorney General Charles Wille, and Renee Webster who is the niece of the victims Dennis and Cheryl Avery.

The Parole Board considered all of the testimony provided by the applicant, the information disseminated by presenters at the hearing, prior investigative findings as well as judicial decisions. With these, the Board deliberated upon the propriety of clemency in this case. With eight members participating, the Board came to unanimous agreement and voted to provide an unfavorable recommendation for clemency to the Honorable Bob Taft, Governor of the State of Ohio.

DETAILS OF THE INSTANT OFFENSE:

The following account of the instant offense was obtained from the Ohio Supreme Court opinion decided August 30, 1995:

Lundgren's Background: Lundgren was born in Missouri and raised in the Reorganized Church of Jesus Christ of Latter Day Saints (RLDS). While attending college, Lundgren met and married his wife, Alice. Unsuccessful in school, Lundgren joined the Navy and served in the Vietnam War in the early 1970s. After his honorable discharge in 1974, he unsuccessfully held a series of hospital maintenance and other jobs in Missouri. Lundgren's Religious Beliefs: Although the RLDS, headquartered in Independence, Missouri, differs from the Utah-based Mormon Church, both religions trace their origins to the prophet Joseph Smith, Jr., who published the Book of Mormon in 1830. During the 1830s, Smith moved to Kirtland, Ohio, and built the Kirtland Temple, now managed by the RLDS.

In summer 1984, Lundgren and his family moved from Missouri to Kirtland so that Lundgren could serve as senior temple guide, a job that had no pay but did include family lodging. Lundgren initially attracted favorable attention in his Sunday school classes and as a guide. William Russell, a religion professor at an RLDS college, testified that Lundgren knew scripture exceptionally well, especially the Book of Mormon, and followed the chiastic method of scripture interpretation, which involves searching text for recurring patterns. However, Lundgren did not understand the Bible's historical context and tended to concentrate on this esoteric method. Lundgren generally fit within the traditions of the RLDS faith in that he described visions, direct spiritual experiences, and God speaking directly to prophets.

Over the next three years, Lundgren served as a temple guide and taught classes on the Bible and the Book of Mormon. Despite the church's direction to turn over all money received from temple visitors to the church, Lundgren solicited and kept contributions received from visitors. Temple contributions dropped dramatically, and the temple bookstore also suffered fund shortages. The church eventually removed Lundgren as a religion teacher and, in October 1987, fired him as a temple guide and evicted him from his quarters next to the temple.

The Cult: From 1985 on, Lundgren attracted a substantial following in his classes because of his knowledge of religious texts. Eventually, Kevin Currie and Sharon Bluntschly moved in with the Lundgrens, as did Richard Brand, Daniel Kraft, and Gregory Winship. Debbie Olivarez joined the group in April 1988. Those living with the Lundgrens called him “Dad” and contributed their paychecks and other money for common group expenses. Two couples, Ron and Susan Luff and Dennis and Tonya Patrick, also contributed money, but did not live with the Lundgrens. In the spring of 1987, the Avery family moved from Missouri to follow Lundgren's teachings. The Avery family included Dennis, age 49; Cheryl, age 46; and their daughters, Trina, age 15; Rebecca, age 13; and Karen, age 7.

After Lundgren's eviction, he and his family and followers moved to a rented farmhouse. There, Lundgren continued his classes, stressing the importance of the Kirtland Temple. According to Lundgren, his followers had to recapture the temple, an earthquake would elevate it, and Christ would return and establish Zion. Lundgren also spoke of his conversations with God and his visions. He discussed the Book of Revelations and the Book of Mormon, and referred to “pruning the vineyard” and the need to kill ten followers before Zion could be created. Eventually, the men in the group undertook paramilitary training to prepare for a temple assault. Lundgren picked May 3, 1988 (his birthday) as the day to recapture the temple, but later decided it was not yet time. The Averys, on the fringe of the group, were invited to only a few of Lundgren's prayer meetings.

By October 1988, the RLDS church had excommunicated Lundgren. In early 1989, Lundgren was stressing the need for his followers to go on a wilderness trip before Zion would be possible. By that time, both Kevin Currie and another follower, Shar Olson, had left the group, but Kathryn and Larry Keith Johnson had joined.

The Murders: In April 1989, at Lundgren's direction, the group began preparing for the wilderness trip. Those who worked left their jobs and some bought provisions. Lundgren encouraged all of the followers to use up any of their available credit cards. All of the group members, including the Averys, gathered their worldly possessions. Around April 12, two or three of the followers secretly began digging a six-by-seven-foot pit in the dirt floor of Lundgren's barn. Lundgren told Cheryl Avery to write and tell her family that they were going to Wyoming. Then, Lundgren invited the Averys to dinner.

On April 17, 1989, Dennis, Cheryl and their three daughters ate dinner at Lundgren's farmhouse. After dinner, Lundgren went out to the barn with his son, Damon, and four followers, Brand, Kraft, Winship, and Ron Luff. The Averys stayed in the house with the women and children. At Lundgren's direction, Luff individually led each Avery family member out to the barn, where each was bound and gagged by the men. After the men placed each Avery family member into the pit, Lundgren shot each person two or three times with a .45 caliber semiautomatic weapon. The men then filled the pit with dirt and stones. Afterwards, Lundgren and the others went back to the farmhouse and held a prayer meeting.

The Months Prior to Lundgren's Arrest: The next day, April 18, police officers and FBI agents visited the Lundgren farm to investigate reports about the planned temple assault.

Everyone interviewed said that they were at the farm voluntarily and denied knowing anything about plans to assault the temple. The FBI left without arresting anyone, and the group drove away on their wilderness trip.

Lundgren selected mountain campsites near Davis, West Virginia, and the group lived in tents there through October 1989. Some of the followers took jobs, and the men continued their military exercises. While in West Virginia, Lundgren chose Tonya Patrick as his second wife. That arrangement did not work out, so Lundgren then picked Kathryn Johnson as his second wife. That choice upset Larry Johnson, Kathryn's husband, and contributed to group dissension. By October 1989, Lundgren, his family, and about ten of his followers moved to Missouri. However, more dissension occurred and, by the end of December 1989, Larry Johnson had contacted federal law enforceme nt authorities about the murders.

On January 3, 1990, Kirtland police began digging out the pit in the barn and found Dennis Avery's body. Police uncovered the other Avery family members' bodies the next day. Lundgren had shot Dennis twice in the back and Cheryl three times in the torso. He shot Trina once in the head and twice in the body, Rebecca in the back and thigh, and Karen in the head and chest. The coroner found silver duct tape wrapped around the victims' heads, hands, and feet. The origin of two damaged bullets found at the scene was unknown. Police discovered that a .45 caliber semiautomatic weapon, belonging to Lundgren, had fired all of the other bullets they recovered. Lundgren bought the weapon in 1987 and sold it in West Virginia in October 1989. On January 7, 1990, federal authorities arrested Lundgren in California.

APPLICANT’S STATEMENT:

On September 20, 2006, inmate Jeffrey Lundgren met with Kathleen Kovach, Parole Board Member, for his clemency interview at the Ohio State Penitentiary. Also present were Mr. Lundgren’s counsel Henry Hilow and Parole Board Parole Officer Panzy Eldridge. The interview was witnessed via teleconference at the Department of Rehabilitation and Correction’s Central Office in Columbus by Principal Assistant Attorney General Chuck Wille and Senior Deputy Attorney General Heather Gosselin. Also present were Lake County Assistant Prosecutor Karen Kowall and Executive Assistant to the Ohio Parole Board Chair Judy Coakley.

The interview lasted approximately one hour and forty minutes. Mr. Lundgren shared that he grew up in the Reorganized Church of Jesus Christ of Latter Day Saints. Additionally, he had a very strict upbringing and was taught that love equals judgment. Mr. Lundgren began to study the scriptures and Joseph Smith’s teachings in greater depth following his honorable discharge from the United States Navy. He shared that he “…sought to grow in his knowledge and preserve his people.”

During the first hour of the interview, Mr. Lundgren read a prepared statement. In this statement he described his various role models in the Book of Mormons and read various passages from the scriptures in the Book of Mormons. Mr. Lundgren believed this was necessary to share with the Board in order to lay a foundation as to what led up to his crimes involving the killing of the Avery family.

Mr. Lundgren shared that he thought that the “end of time was near” and that he had to build a city where he and his followers would dwell together, have a place of refuge, and escape the enemy. Thus, Mr. Lundgren went to Kirtland, Ohio to “receive the law of God.” He further shared that he had a role to play in the redemption process and that he and his followers were servants. Mr. Lundgren also pointed out that in the 1830’s, the church failed to “build the city.” Thus, that was what he was going to do.

Further, Mr. Lundgren shared that he felt there would be great consequences for not obeying the Lord. Mr. Lundgren compared himself to Moses and stated that the Lord communicated to him “…to go and get the sacred records.” This is what led him to the Kirtland Temple. He stated that he went to the Kirtland Temple to “…receive a vision and establish a pattern to test the spirits.” Mr. Lundgren studied the pattern and design of the temple and compared it to the scriptures. He shared that he was commanded by God to do this crime. Additionally, he stated that in order to get to Zion, a “cleansing” had to be done in order to preserve his own family.

Mr. Lundgren did share that he has now found “Redeeming Love” and that he would like for the Parole Board to “redeem him and grant him clemency”. Mr. Lundgren shared that his support system consists of his wife and daughter who come to Ohio from Missouri to visit with him every 12-14 months. Mr. Lundgren shared that he married his wife, Kathryn Johnson, in 1992 or 1993 while he was in prison. Together, they have a 16-year old daughter. He does not communicate with any of his other children.

Board Member Kathleen Kovach did inquire of Mr. Lundgren as to why he did not offer any defense at the time of trial. He shared that he learned one hour prior to trial that his counsel would not be presenting a defense. Mr. Lundgren further commented that he was instructed by his attorneys to look straight ahead and to display no emotion. Mr. Lundgren shared that he met the Avery family in Missouri when he began attending their church, and that the Avery family eventually moved to Ohio to follow Mr. Lundgren’s teachings. Mr. Lundgren was asked how he felt about killing/slaughtering five people, three of whom were young children. His initial response was, “burdened.” He went on to describe himself as a “wretched man who should not have judged the Avery family.” He further stated that he should have tried to save the Averys. Mr. Lundgren also admitted that he “misinterpreted” the scriptures.

Finally, Mr. Lundgren was asked if he has communicated at all with any of his codefendants. He responded that he recently received a letter from Gregory Winship forgiving him. Mr. Lundgren further responded that Mr. Winship had asked a series of questions to which he wished Mr. Lundgren to respond. The content of those questions was not shared.

PRIOR RECORD:

JUVENILE: Mr. Lundgren has no known juvenile arrest record.
ADULT: Mr. Lundgren has the following known adult arrest record:

DISMISSED, NOLLED AND/OR UNKNOWN CONVICTIONS:

Mr. Lundgren reported at the time of his admission to the Department of Rehabilitation and Correction in 1990, that he was convicted of Insufficient Funds in 1979 in Camden County, Missouri for which he spent one day in jail.

INSTITUTIONAL ADJUSTMENT:

Mr. Lundgren was admitted to the Department of Rehabilitation and Correction on October 26, 1990. His overall adjustment to incarceration since that time appears satisfactory. His current work assignment is that of a porter. Mr. Lundgren has also been a Recreation Worker. He completed a volunteer tutor workshop, and proceeded to serve as a tutor for over five (5) years while incarcerated at the Mansfield Correctional Institution. During his interview Mr. Lundgren shared tha t he has assisted other inmates in preparing for their GED and has also worked on various community service projects. His Inmate Work Evaluation Reports indicated an above-average rating.

PROPONENTS TO CLEMENCY:

Mr. Henry Hilow provided the following oral arguments supporting Mr. Lundgren’s request for clemency:

· Mr. Lundgren lacks any criminal history.

· This tragedy would not have taken place without the assistance of all of the codefendants. All co-defendants should be held “as accountable” as Mr. Lundgren in that everyone shared the “same philosophy. ”

· Mr. Lundgren is an honor inmate and spends his time educating/tutoring other inmates.

· At the time of his trial, the instrument used to diagnose mental illness (DSM I) did not include Delusional Disorder with Grandiose Themes as it does today. Mr. Hilow argued that he believes, based on Mr. Lundgren’s beliefs at the time of the offense that Mr. Lundgren likely suffered from this disorder. If this diagnosis would have been available at the time of trial, Mr. Lundgren’s counsel would have more likely pursued an insanity defense. In addition, the failure of trial counsel to introduce the insanity defense at the time of trial resulted in Mr. Lundgren not receiving a fair trial. Mr. Hilow referred to Judge Merrit’s dissenting opinion stating, “In many similar deific decree cases in which a delusional person like Lundgren professed to be following God’s command to kill, defense lawyers have almost uniformly entered an insanity plea-and the jury has accepted the defense in some of the cases.” Judge Merrit found, “Lundgren’s counsel was manifestly ineffective and that the writ of habeas corpus should have been issued in this case requiring a new trial in which Lundgren would have been allowed to present the insanity defense before the jury.”

· Mr. Hilow also referred to a case out of Utah in 2001 involving State v. Lafferty in which a Mormon fundamentalist killed his sister- in-law and her infant child pursuant to God’s “removal revelation.” Attorney Hilow pointed out that the insanity defense was used in this case.

· No option of life without the possibility of parole existed at the time of Mr. Lundgren’s trial for the jury to consider. The jury may have recommended a different sentence had this option been available.

· Mr. Hilow shared that Mr. Lundgren has had a shift in his beliefs today, acknowledges that he misinterpreted the scriptures, and is remorseful for the crimes he committed.

OPPONENTS TO CLEMENCY:

Karen Kowall, Assistant Prosecuting Attorney for Lake County, and Chuck Wille, Principal Assistant Attorney General, represented the State of Ohio at the hearing before the Parole Board on September 26, 2006. Prior to the day of the hearing, these individuals submitted a response to the application opposing clemency, including exhibits, judicial decisions, and a complete transcript of both the trial phase and the penalty phase of Mr. Lundgren’s trial. Arguments in opposition included:

· Lake County Assistant Prosecuting Attorney Karen Kowall began with the fact that she, too, had the opportunity to view Mr. Lundgren’s interview with Board Member Kathleen Kovach. She pointed out that Mr. Lundgren, to this day, did not say he wishes he would not have killed the Avery family. Rather, he did state that he should have let them plead for their lives. Additionally, Ms. Kowall pointed out that she believed that no remorse for this crime was shown during his interview.

· Ms. Kowall further pointed out that this case was about the manipulation of people, the exploitation of their weaknesses, fears, and religious beliefs, and not about religion.

· She shared that Mr. Lundgren did not want the Avery family to come to Ohio and that he even wrote them a letter stating this.

· When the Avery family arrived, they were forced to give up their car and money. Ms. Kowall further pointed out that when Mr. Lundgren found out that Mr. Avery had a credit card, Mr. Lundgren maxed it out. In fact, Mr. Lundgren used this card to purchase the very gun that he used to kill the Avery family.

· Mr. Lundgren talked about killing the Avery family for two years.

· The reason Mr. Lundgren wanted to kill the Avery family was because he thought they were “disobedient, lazy, wimpy, and strange.” The Averys were not invited to live with the Lundgren family and were not invited to all of his scripture classes.

· Mr. Lundgren took money from all of his followers as well as some of their wives. He also had a gun with him when he asked some of the co-defendants if they were “with him” when referring to the slaying of the Avery family.

· Assistant Prosecutor Karen Kowall further pointed out that there were no grounds to raise the insanity defense in this case in that two experts hired by the defense to address this issue found that Mr. Lundgren was not insane. Principal Assistant Attorney General, Chuck Wille pointed out that both of these experts knew all of the facts surrounding the case and interviewed Mr. Lundgren at length.

· Mr. Lundgren has been on death row longer than any of the Avery children were alive.

· Ms. Kowall argued that if the Board considers current sentencing options as mitigation as Mr. Hilow suggested, then the Board must also give equal consideration to the fact that Mr. Lundgren’s crimes, if committed today would result in additional aggravating factors for the death penalty to be imposed, specifically the killing of a child under 13 years of age.

· God did not command Mr. Lundgren to kill the Avery family. Rather, Mr. Lundgren did not like them, they were easy targets, and he continues to display no remorse for his crimes.

· Lastly, Assistant Prosecutor Kowall pointed out that this case has been reviewed for 16 years by 43 judges, 42 of whom found that no error occurred, no violations of Mr. Lundgren’s rights existed, and that the aggravating factors outweighed all mitigating factors in this matter. She cited United States District Court Judge Donald Nugent’s 272 page opinion stating that it was time to put this matter to rest. Principal Assistant Attorney General Chuck Wille shared the following facts with the Board on behalf of the State of Ohio:

· It was Mr. Lundgren and not God who was deciding who should live or die.

· This offense was well planned. A cancelled check made payable to Mr. Lundgren totaling $21,492.32 from Sharon Bluntschly was presented as evidence at trial along with un-rebutted testimony that Mr. Lundgren was given $10,000 by Dennis Avery.

· Mr. Lundgren shared that the scriptures told him HOW to do the killings, and to fill the pit with stones. Principal Assistant Attorney General Chuck Wille wondered aloud if these same scriptures instructed Lundgren to have some of his followers pour lime on the bodies of the Ave ry family to speed up the process of decomposition or led him to ask his followers to research how to change one’s identity. Mr. Wille suggested that these events illustrate the extreme cover up Mr. Lundgren had planned.

· Mr. Lundgren is morally and legally more culpable than the others involved in this case.

· The jury concluded that a cold and calculated killer deserved to die and no manifest injustice exists in this case to change their decision by recommending clemency.

VICTIM STATEMENTS:

The Board heard testimony from Dennis and Cheryl Avery’s niece, Renee Webster, who read statements from Cheryl Avery’s two brothers, and her cousin. The following summarizes those statements:

· Cheryl Avery’s cousin, Yvonne Spencer, recalled living in Seattle, Washington when the Averys’ bodies were found. She and her family were shocked when they heard the TV news reports and then saw the bodies of their loved ones being removed from the barn in Kirtland, Ohio.

· Cheryl Avery’s brother, Donald Bailey, indicated that his one great fear is if Mr. Lundgren’s sentence is commuted to life in prison, someday, someone will forget what he has done, and Mr. Lundgren might be turned loose on society.

· Lance Bailey, Cheryl Avery’s other brother, wrote that when Cheryl died, a part of him died as well. Cheryl’s brother compared his reaction to having both of his legs cut off, learning to walk again, and then never being able to walk the same way as he did before.

COMMUNITY ATTITUDE:

The Board received written correspondence from Lake County Presiding Judge Paul H. Mitrovich. His recommendation was that clemency should not be granted for Jeffrey Lundgren and that the sentence of death should be carried out. He further wrote, “S uch a person does not have the right to ask for clemency when he gave no others consideration.”

CONCLUSION:

The Ohio Parole Board deliberated extensively on the documentary and testimonial evidence provided. The Board finds that the aforementioned mitigating factors do not outweigh the many aggravating factors present in the murder of the Avery family. Mr. Lundgren systematically and premeditatedly killed five people, three of whom were innocent children. Mr. Lundgren’s motive for killing this particular family involved financial gain, an increase in power over the lives of others, as well as the exploitation and manipulation of the fears and beliefs of others. Further, there is no manifest injustice in the jury’s verdict, nor in the sentence imposed. The Board accepts the findings and conclusions of the multiple state and federal jurists who have extensively reviewed Mr. Lundgren’s conviction and sentence. The Board does not find that the evidence presented is sufficient to warrant a favorable recommendation for Executive Clemency.

RECOMMENDATION:

The Ohio Parole Board with eight (8) members participating, by a vote of eight (8) to zero (0) recommends to the Honorable Bob Taft, Governor of the State of Ohio, that Executive Clemency be denied in the case of Jeffrey D. Lundgren.


ProDeathPenalty.com

In August 1990, a Lake County jury found cult leader Jeffrey Lundgren guilty of the kidnapping and murder of five of his followers, all members of the Avery family. Lundgren was born in Missouri and raised in the Reorganized Church of Jesus Christ of Latter Day Saints ("RLDS"). While attending college, Lundgren met and married his wife, Alice. Unsuccessful in school, Lundgren joined the Navy and served in the Vietnam War in the early 1970s. After his honorable discharge in 1974, he unsuccessfully held a series of hospital maintenance and other jobs in Missouri. Lundgren's religious beliefs form the foundation of this case.

Although the RLDS, headquartered in Independence, Missouri, differs from the Utah-based Mormon Church, both religions trace their origins back to the prophet Joseph Smith, Jr., who published the Book of Mormon in 1830. During the 1830s, Smith moved to Kirtland, Ohio, and built the Kirtland Temple, now managed by the RLDS.

In summer 1984, Lundgren and his family moved from Missouri to Kirtland so that Lundgren could serve as senior temple guide, a job that had no pay but did include family lodging. Lundgren initially attracted favorable attention in his Sunday school classes and as a guide.

A religion professor at an RLDS college testified that Lundgren knew scripture exceptionally well, especially the Book of Mormon, and followed the chiastic method of scripture interpretation, which involves searching text for recurring patterns. However, Lundgren did not understand the Bible's historical context and tended to concentrate on this esoteric method. Lundgren generally fit within the traditions of the RLDS faith in that he described visions, direct spiritual experiences, and God speaking directly to prophets.

Over the next three years, Lundgren served as a temple guide and taught classes on the Bible and the Book of Mormon. Despite the church's direction to turn over all money received from temple visitors to the church, Lundgren solicited and kept contributions received from visitors. Temple contributions dropped dramatically, and the temple bookstore also suffered fund shortages.

The church eventually removed Lundgren as a religion teacher and, in October 1987, fired him as a temple guide and evicted him from his quarters next to the temple. From 1985 on, Lundgren attracted a substantial following in his classes because of his knowledge of religious texts. Eventually, half a dozen followers moved in with the Lundgrens. Those living with the Lundgrens called him "Dad" and contributed their paychecks and other money for common group expenses. Two couples also contributed money, but did not live with the Lundgrens.

In the spring of 1987, the Avery family moved from Missouri to follow Lundgren's teachings. The Avery family included Dennis, age 49; Cheryl, age 46; and their daughters, Trina, age 15; Rebecca, age 13; and Karen, age 7. After Lundgren's eviction, he and his family and followers moved to a rented farmhouse. There, Lundgren continued his classes, stressing the importance of the Kirtland Temple.

According to Lundgren, his followers had to recapture the temple, an earthquake would elevate it, and Christ would return and establish Zion. Lundgren also spoke of his conversations with God and his visions. He discussed the Book of Revelations and the Book of Mormon, and referred to "pruning the vineyard" and the need to kill ten followers before Zion could be created.

Eventually, the men in the group undertook paramilitary training to prepare for a temple assault. Lundgren picked May 3, 1988 (his birthday) as the day to recapture the temple, but later decided it was not yet time. The Averys, on the fringe of the group, were invited to only a few of Lundgren's prayer meetings. By October 1988, the RLDS church had excommunicated Lundgren. In early 1989, Lundgren was stressing the need for his followers to go on a wilderness trip before Zion would be possible. By that time, two early followers had left the group, but Kathryn and Larry Keith Johnson had joined.

In April 1989, at Lundgren's direction, the group began preparing for the wilderness trip. Those who worked left their jobs and some bought provisions. Lundgren encouraged all of the followers to use up any of their available credit cards. All of the group members, including the Averys, gathered their worldly possessions. Around April 12, two or three of the followers secretly began digging a six-by-seven-foot pit in the dirt floor of Lundgren's barn. Lundgren told Cheryl Avery to write and tell her family that they were going to Wyoming. Then, Lundgren invited the Averys to dinner.

On April 17, 1989, Dennis, Cheryl and their three daughters ate dinner at Lundgren's farmhouse. After dinner, Lundgren went out to the barn with his son, Damon, and four followers, Richard Brand, Daniel Kraft, Gregory Winship, and Ron Luff. The Averys stayed in the house with the women and children. At Lundgren's direction, Luff individually led each Avery family member out to the barn, where each was bound and gagged by the men. After the men placed each Avery family member into the pit, Lundgren shot each person two or three times with a .45 caliber semiautomatic weapon. The men then filled the pit with dirt and stones. Afterwards, Lundgren and the others went back to the farmhouse and held a prayer meeting.

The next day, April 18, police officers and FBI agents visited the Lundgren farm to investigate reports about the planned temple assault. Everyone interviewed said that they were at the farm voluntarily and denied knowing anything about plans to assault the temple. The FBI left without arresting anyone, and the group drove away on their wilderness trip. Lundgren selected mountain campsites near Davis, West Virginia, and the group lived in tents there through October 1989.

Some of the followers took jobs, and the men continued their military exercises. While in West Virginia, Lundgren chose Tonya Patrick as his second wife. That arrangement did not work out, so Lundgren then picked Kathryn Johnson as his second wife. That choice upset Larry Johnson, Kathryn's husband, and contributed to group dissension.

By October 1989, Lundgren, his family, and about ten of his followers moved to Missouri. However, more dissension occurred and, by the end of December 1989, Larry Johnson had contacted federal law enforcement authorities about the murders. On January 3, 1990, Kirtland police began digging out the pit in the barn and found Dennis Avery's body. Police uncovered the other Avery family members' bodies the next day. Lundgren had shot Dennis twice in the back and Cheryl three times in the torso. He shot Trina once in the head and twice in the body, Rebecca in the back and thigh, and Karen in the head and chest. The coroner found silver duct tape wrapped around the victims' heads, hands, and feet. The origin of two damaged bullets found at the scene was unknown.

Police discovered that a .45 caliber semiautomatic weapon, belonging to Lundgren, had fired all of the other bullets they recovered. Lundgren bought the weapon in 1987 and sold it in West Virginia in October 1989. On January 7, 1990, federal authorities arrested Lundgren in California. During his opening statement, Lundgren conceded that he had shot the Avery family.

At the close of the trial, the jury found Lundgren guilty of five counts of aggravated murder with each count containing two death penalty specifications. One of the specifications alleged multiple murders and the other alleged a felony-murder kidnapping specification. The jury additionally convicted Lundgren as charged with five kidnapping offenses.

After further deliberation, the jury recommended the death penalty for each aggravated murder count. The trial court sentenced Lundgren to death on each aggravated murder count and to consecutive terms of imprisonment for each kidnapping offense.


His final hours: A moment-by-moment account of Jeffrey D. Lundgren's last day

By Sandra M. Klepach - The News-Herald

10/29/2006

With 2 hours and 28 minutes left in his life, Jeffrey Lundgren broke down and cried.

The 6-foot-1, 275-pound man who spent 17 years on death row for the murder of a family of five, including three children, cried while sitting on his bed, talking to his wife, in his holding cell at the Southern Ohio Correctional Facility in Lucasville.

At 8:13:25 a.m. Monday, a medical staff member gave Lundgren doses of three medications to control his high blood pressure and blood sugar levels - treatments for the obesity and diabetes that he once hoped might buy him more time.

Ten minutes and 33 seconds later, and still on the phone with his wife, Lundgren began to cry again.

The last conversation they had ended 1 hour and 11 minutes before he was pronounced dead.

An official time log kept by execution team members, who were commissioned to keep Lundgren comfortable, does not detail what the convicted killer said to his wife or why he was crying.

Instead, it documents his last 24 hours, from the moment he walked in the door at 9:42:40 a.m. Monday to the moment he was pronounced dead at 10:26 a.m. Tuesday.

Lundgren, 56, was convicted of shooting Dennis Avery, 49; his wife, Cheryl, 41; and daughters Trina, 15, Rebecca, 13, and Karen, 7, in 1989 while they stood in a pit dug inside his Kirtland barn.

Lundgren had formed a cult after he was fired as a lay minister of the Reorganized Church of Jesus Christ of Latter-day Saints. Several people had lived with him in a rented farmhouse, calling him "Dad" and turning over their paychecks to him.

The Averys had moved from Missouri in 1987 to follow Lundgren's teachings.
Arrival to the death house

At 9:44:47 a.m. Monday, Lundgren arrived at the death house and received a review of his personal effects.

When asked by a team member what should be done with his personal Bible, pair of gym shorts, socks, underwear and address book after his death, Lundgren said they were to be destroyed.

At 9:53:40 a.m., Lundgren was strip-searched and given state-issued clothing - dark blue pants and a white V-neck pullover shirt - and told he had unlimited collect phone calls.

At 10:06:16 a.m., he requested his special meal be turkey (white meat), mashed potatoes with gravy, yeast rolls, salad with tomatoes and radishes with Wishbone French Dressing, Pepsi and pumpkin pie with whipped cream for dessert.

At 10:10:22 a.m., the execution team leader asked Lundgren if he needed anything.

At 10:10:42 a.m., Lundgren requested a paper cup for some water.

Five minutes and 16 seconds later, he opened his Bible and began to read.

When asked at 10:18:02 a.m. if he needed anything else to eat or drink, Lundgren said he was "OK."

The first few hours

None of Lundgren's family visited him during his final 24 hours in Lucasville.

Lundgren spent a total of about 41/2 hours watching TV, most of it laying in his bed, sometimes covered by a blanket, and none after learning his stay of execution had been lifted. He also spent time reading his Bible.

Lundgren testified in court that passages in the Bible told him to kill the Avery family.

Nearly 17 years later, he told a parole officer he had realized he misinterpreted some things in the Bible.

Lundgren asked for his cell light to be turned off at 10:54:08 a.m. Monday, telling a team member he had not slept the night before.

At 11:09 a.m., medical staff members assessed both his arms for proper vein injection sites and came back with a "good" report.

Lundgren appeared to be sleeping between 11:31:04 and 11:49:13 a.m.

He woke up, used the bathroom and washed his hands at noon.

At 12:13:15 p.m., Warden Edwin Voorhies shook Lundgren's hand from outside the cell and asked him how he was doing.

Lundgren said that he was OK.

The two were together for 10 minutes and 41 seconds until 12:23:56 p.m., when Voorhies left and Lundgren received two cups of Pepsi with ice.

Lundgren then flipped through TV channels for a few minutes before returning to his Bible.

A good-bye to a son

At 12:40:01 p.m., Lundgren got a call from his wife, Kathryn, who already served time for her part in the crime. That call ended at 12:48:30 p.m.

The inmate ate two bologna sandwiches with mayonnaise and pickles for lunch.

At 1:12:06 p.m., he read a paper. From 1:18:15 to 1:35:54 p.m., he read his Bible.

Despite phone problems, Lundgren spoke with his attorney, Henry Hillow, at 1:48:49 p.m.

He covered himself with a blanket and put a wash cloth over his eyes at 1:52:44 p.m.

Then, at 2:00:42 p.m., he placed a call to his son, also convicted in the Avery murder case.

Damon P. Lundgren is first eligible for parole in February 2098.

The two spoke from 2:00:42 to 2:14:41 p.m.

Lundgren went back to sleep from 2:25:59 to 2:43:44 p.m., watched TV and read his Bible until his special meal was served at 4:04:16 p.m.

The Rev. Gary Sims arrived at 4:34:45 p.m., and Lundgren asked to save his pumpkin pie for later.

He spoke to Sims until 4:59:59 p.m., then continued watching TV.

A phone conversation with his wife began at 6:33:48 p.m., lasting 18 minutes and 11 seconds.

Lundgren then laid back down on his bed, drinking pop and receiving his medication, until falling asleep from 9:35:51 to 10:00:38 p.m.

Final reprieve denied

Despite the time he'd spent on death row at the Ohio State Penitentiary in Youngstown, Lundgren may have believed he had more time left.

He had been allowed to join a lawsuit by five other death row inmates the week previous, prompting U.S. District Court Judge Gregory Frost to put a temporary stop on the execution.

The lawsuit questioned the Constitutionality of Ohio's use of lethal injection.

Late Monday, a three-judge panel overturned Frost's order.

At 10:49:36 p.m., as Lundgren appeared to be sleeping, he received a call from the warden to let him know the stay had been lifted and the execution would continue.

At 10:50:47 p.m., he placed a call to his wife. She didn't answer.

At 10:52:06 p.m., he placed a call to her cell phone and got through.

At 11:04:26 p.m., his attorney called. They spoke briefly.

At 11:05:30 p.m., he called his wife again. The two then spoke until 2:35:56 a.m., when Lundgren ended the call, saying Kathryn had wanted to call a family member.

When Lundgren received a call from his attorney at 3:02:52 a.m., he asked why the decision had been overturned.

Between 3:23:19 and 4:55:38 a.m., he appeared to be sleeping.

Then he called his wife again.

He took an 11-minute shower at 5:47 a.m.

Lundgren's last meal

Breakfast arrived at 6:06:20 a.m. - a cup of coffee, two cups of juice and two cups of milk, Rice Krispies, three pancakes and three servings of syrup. Lundgren declined the coffee and the syrup.

After eating, Lundgren brushed his teeth at 6:13:26 a.m., then spoke to his wife on the phone from 6:15:30 to 8:35:46 a.m.

It was during this time that he cried twice.

At 8:35:46 a.m., he took a call from his attorney. He resumed conversation with his wife at 8:41:47 a.m.

At 8:51:25 a.m., a call from his attorney let him know the governor had denied him clemency and the Supreme Court had denied his stay of execution.

Lundgren called his wife one last time at 8:52:24 a.m. The two disconnected at 9:15:38 a.m.

The final hour

Ohio's lethal injection procedure was explained to Lundgren by the team leader at 9:19:55 a.m.

Lundgren then sat on his bed.

At 9:24:32 a.m., the Rev. Sims arrived, holding hands and praying with Lundgren from 9:29:41 to 9:34:11 a.m. as officials were preparing the drugs.

At 9:42:22 a.m., the Rev. Sims left. Lundgren began praying by himself at 9:44:47 a.m.
Between 9:47:27 and 9:51:35 a.m., the inmate paced back and forth in his cell.

Then, at 10:00:00 a.m., the warden approached Lundgren's holding cell to read him his death warrant.

He laid on his bed to be prepared with heparin locks at 10:01:39 a.m., viewed on a monitor by the execution witnesses.

At 10:15:02:02 a.m., he rose with the help of team members.

He began the 17 steps from his holding cell to the execution chamber eight seconds later.

A final statement at 10:17:22 a.m. professed his love for God, his family, his children and his wife.

At 10:17:33 a.m., the warden gave a secret signal to begin the injection process.

Syringes of Thiopental Sodium were injected into Lundgren's body at 10:17:42 and 10:18:25 a.m., followed by a full flush at 10:19:08 a.m.

At 10:20:13 and 10:21:14 a.m., syringes of Pancuronium Bromide were injected, followed by another full flush at 10:22:10 a.m

The final syringe, of Potassium Chloride, was injected at 10:23:24 a.m., concluding the injection process at 10:25:17 a.m.

At 10:27:21 a.m., the warden announced Lundgren's time of death was 10:26 a.m.

And the witness curtain was closed at 10:27:36 a.m.


Jeffrey Lundgren, OH, October 24

Do Not Execute Jeffrey Lundgren

Democracyinaction.org

The state of Ohio plans to execute Jeffrey Lundgren on Oct. 24, 2006, for the murder of the Avery family. On April 10, 1989, Lundgren, a self-proclaimed prophet, led his cult in planning and executing murders of the Avery family in order to bring about a prophecy he interpreted from the Old Testament. The Avery family had belonged to Lundgren’s cult, and he lured them into a barn where he systematically executed each member of the family and buried them behind the barn.

Although there is no question that Lundgren participated in these murders, his trial does not reflect a sound judicial system. On two separate occasions, the judge gave the trial jury incorrect directions on how come to an agreement on sentencing. Also, the judge nullified all mitigating evidence. This was a jury trial, where the judge should have allowed all evidence and mitigating factors to be presented to the jury for that jury to decide whether the aggravating circumstances overwhelm the mitigating factors. Finally, his defense failed to present an insanity plea during the guilt phase of Lundgren’s trial.

Neighbors from Lundgren’s childhood home recall that he was abused as a child, and his actions demonstrate those of someone who is not mentally sound. Lundgren is awaiting the courts to approve an independent psychiatric evaluation. Do not allow the state of Ohio to execute Jeffrey Lundgren.

Please write to Gov. Bob Taft on behalf of Jeffrey Lundgren.


State v. Lundgren, Not Reported in N.E.2d, 1993 WL 346444 (Ohio App. 1993). (Direct Appeal)

FORD.

On January 5, 1990, appellant, Jeffrey D. Lundgren, was charged in a ten-count indictment with five counts of aggravated murder, in violation of R.C. 2903.01, and with five counts of kidnapping in violation of R.C. 2905.01. Each of the aggravated murder counts contained a specification that the offense was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons, and a specification that the offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and either appellant was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. Appellant entered a plea of not guilty at his arraignment.

A jury trial commenced on August 23, 1990, and on August 29, 1990, the jury returned a verdict of guilty on all counts. The mitigation phase of the trial began on September 17, 1990, and concluded on September 20, 1990, when the jury returned a recommendation that the sentence of death be imposed.

On September 21, 1990, the trial court adopted this recommendation and sentenced appellant to death on counts one, two, three, four, and five, and an indefinite term of incarceration of ten to twenty-five years on counts six through ten, with each count to be served consecutively. Appellant timely filed a notice of appeal to this court on October 25, 1990.

On January 16, 1991, appellant filed a motion for a new trial pursuant to Crim.R. 33(A)(6), newly discovered evidence,FN1 which was denied on February 4, 1991. Appellant appealed from that decision on February 27, 1991. Both appeals were consolidated by this court on April 1, 1991.

Appellant lived on Chillicothe Road in Kirtland, Ohio, in a house which was located next to the Kirtland Temple, a religious site for the Reorganized Church of Latter Day Saints (RCLDS). He resided there initially with his four children, and his wife, Alice, and subsequently, Mr. Kevin Currie and Mr. Richard Brand moved in with them. Additionally, Ms. Sharon Bluntschly spent a great deal of her time at the Lundgren residence. Both Ms. Bluntschly and Mr. Brand had an arrangement with appellant in which they turned over their entire paychecks to him. Appellant had convinced them and other followers that he was a prophet of God and could interpret scriptures by using the so-called “chiastic” method. The “chiastic” method is a literal device used to interpret Hebrew poetry in which the reader searches for sentences containing two clauses that repeat themselves in reverse order. ( e.g., “that you look for a lion and he came as a lamb; now we look for a lamb, but he will come as a lion”.)

The Avery family, which consisted of Dennis Avery, his wife Cheryl, and his three daughters, Trina, age 15, Becky, age 13, and Karen, age 7, moved to Kirtland in the summer of 1987. Appellant did not want the Averys to be a part of his group because in his view they were not invited, and were “lazy, wimpy, and socially unacceptable.” However, once the Averys arrived, appellant convinced Dennis Avery to turn over all their money and property to him, which he then used to buy clothes and food for him and his wife.

At the time, appellant was a member of the RCLDS and was employed at the temple as a guide. Appellant regularly taught Sunday School classes at the temple, and also conducted classes in his home, which began showing higher attendance than his Sunday School classes. During those classes conducted at his home, appellant prophesied that God would reappear on earth, and that he would lead his followers to see God. Among the many things appellant taught his followers, the most significant was that they would have to kill ten people in order to fulfill his prophecies.

Apparently, appellant had originally intended to kill the Averys, the Patrick family, Mr. Brand, and Ms. Bluntschly. Appellant based his belief on a passage in the Book of Mormon which stated that ten people would depart from “the way,” and would include men, women, and children; specifically, daughters. Appellant also believed that the Old Testament teachings mandated death and destruction as a means of rendering judgment upon people who refused to repent. It was appellant's opinion that the Averys had failed to repent, and that he was the instrument of this judgment against them.

Appellant and his group moved to a farmhouse on Chardon Road in November 1987, after appellant was fired from his position as a tour guide at the Kirtland Temple. In the latter part of 1988 appellant began telling his group that the Averys would have to be killed soon, after which time the group would travel to the wilderness where they would see God in fulfillment of his prophecy. Appellant assigned tasks to each member of the group in preparation for the killings, e.g., forging birth certificates, acquiring weapons, food, and tents.

Soon thereafter, appellant and his wife visited the Averys with the intent of staking out their belongings and deciding which ones to take before killing them. On April 17, 1989, the Averys were invited to the Lundgren farm on the pretext of having dinner and preparing to go to the wilderness. Appellant made arrangements for the Averys to check in at the local Red Roof Inn, and had their belongings moved to the Lundgren farmhouse. Appellant later instructed Richard Brand to pick up the Averys and bring them to the farmhouse. Upon the Averys' arrival at the farm, appellant directed Mrs. Avery to write a letter to her mother explaining that the family would be moving to Wyoming.

After dinner, all of the men, with the exception of Dennis Avery, had two meetings to discuss appellant's specific plan to kill the Averys. This group included appellant's son, Damon Lundgren, Danny Kraft, Greg Winship, Richard Brand, and Ronald Luff. The first meeting took place in Damon's bedroom, and appellant inquired of each of the men, “Are you with me, or not?” The second meeting took place in the barn located in the rear of appellant's premises. During that meeting, appellant delegated responsibilities to each of the men. Two would apply duct tape to the Averys' mouths, hands, and feet; another would run a chain saw; and two others would carry the bodies to a pit which had been dug as a grave for the Averys.

After these meetings, the men proceeded to the barn. Under the guise of needing help, Ronald Luff told Mr. Avery that he was to go to the barn to help gather materials to take to the wilderness. Subsequently, Mr. Avery was attacked with a stun gun, wrestled to the ground, bound with silver duct tape with his eyes left uncovered, carried over a pile of garbage, and shot twice in the back by appellant.

Appellant preached that he left Mr. Avery's eyes uncovered so that he could see his executioner. Mr. Avery died from these shots. Mr. Luff was then sent to the house to retrieve Mrs. Avery, who was also led to the barn, attacked with a stun gun, wrestled to the ground, bound with duct tape, carried over the pile of garbage, dropped into the pit, and shot once in the back by appellant. Mrs. Avery also died from this shot. Under the guise of playing a game, Mr. Luff returned to the house and retrieved the eldest Avery daughter, Trina, who was then bound, dropped into the pit, and shot and killed by appellant.

Using the ruse of offering to show horses, Mr. Luff returned to the house to retrieve the two remaining Avery daughters, Becky and Karen. He carried them to the pit, bound their hands and feet with duct tape, and dropped them into the pit. Appellant shot and killed both of them. Becky Avery was shot once from behind, and once from the front. Karen Avery was shot once. When the entire family had been murdered, lime was spread over their bodies to enhance their decomposition. The pit was then piled with rocks and dirt and was covered with garbage and old appliances. Appellant then proceeded to remove all of the Averys' belongings from the Red Roof Inn.

In his unsworn statement, appellant related that this method of burial was necessary pursuant to passages in the Old Testament books of Isaiah and Deuteronomy which stated that he “shall put people to death” by binding their hands and feet, stoning them, and casting them into “utter darkness”. Appellant believed that “darkness” meant “death” in Hebrew.

The next day, paradoxically, after a visit from the FBI which came to question the group about a conspiracy to overthrow the temple, the members panicked, gathered their belongings, and headed for Davis, West Virginia, where they camped in a rural wooded area for five and one-half months. The group disbanded in October 1989, after local authorities there became suspicious of their connection to the Kirtland investigation, at which time some of the members headed to Missouri.

Appellant then moved to National City, California, where he and the remainder of his followers were arrested on January 7, 1990. After the arrests, the Bureau of Alcohol, Tobacco and Firearms (BATF) searched the motel rooms in which appellant had been staying, and found the group's collection of weaponry along with a roll of silver duct tape. Two guns sought by the Kirtland Police Department were later discovered in West Virginia. The murder weapon, a .45 automatic combat elite semi-automatic, was recovered from Mr. Charles Judy, who had purchased the gun from Paxton's Sports Shop in Elkins, West Virginia. The second gun, a .45 caliber gold cup, was obtained from Dr. Steven Lester who had purchased the weapon from Mountaineer Sports Center, also in Elkins, West Virginia.

ASSIGNMENTS OF ERROR:

“1. The trial court erred to the prejudice of appellant Lundgren by allowing improper and inflammatory testimony from state's witness Richard Brand. “2. The trial court erred by allowing the state to introduce the decayed clothing of the victims and by allowing irrelevant gruesome testimony on the victims' stomach contents. “3. The trial court erred by allowing the state to introduce evidence against Mr. Lundgren dealing with an unrelated conspiracy charge that had been dropped and numerous weapons in Mr. Lundgren's possession which were not used in the crimes for which he was on trial. “4. The trial court erred to the prejudice of appellant Lundgren by giving erroneous instructions at the guilt and penalty phases of appellant's capital trial. “5. The trial court erred by allowing the state to present penalty phase rebuttal evidence on Mr. Lundgren's criminal history. “6. Prosecutorial misconduct at the penalty phase of appellant Lundgren's capital trial deprived him of a fair and reliable sentencing determination in violation of the Eighth and Fourteenth Amendments. “7. The trial court erred in denying appellant Lundgren's motion for change of venue and motion for new trial. “8. The trial court erred by limiting defense voir dire on mitigating factors. “9. The trial court's conduct in voir dire denied appellant Lundgren his rights to trial by an impartial jury and due process of law guaranteed by the Sixth and Fourteenth Amendments. “10. The trial court erred to the prejudice of appellant Lundgren by failing to ensure that Mr. Lundgren was tried by a jury composed of fair jurors. “11. The trial court erred to the prejudice of appellant Lundgren by allowing prosecutorial misconduct to occur at the guilt phase of his capital trial. “12. The trial court erred to the prejudice of appellant Lundgren by allowing improper considerations to enter into its sentencing determination. “13. The trial court erred to the prejudice of appellant Lundgren by allowing prosecutorial misconduct to occur during voir dire. “14. The trial court erred to the prejudice of appellant Lundgren by failing to dismiss his defective capital indictment. “15. The trial court erred by restricting cross-examination of three accomplices who made deals with the state in exchange for their testimony. “16. The trial court erred to the prejudice of appellant Lundgren by admitting into evidence at the guilt phase personal belongings of the victims and a family photograph of the victims. “17. The trial court erred to the prejudice of appellant Lundgren by failing to dismiss the kidnapping specification attached to each count of aggravated murder. “18. There is reversible error when a juror allows his personal religious views to influence the capital sentencing decision. “19. The trial court erred to the prejudice of appellant Lundgren by admitting into evidence inflammatory and gruesome photographs, videotape and testimony. “20. The trial court erred to the prejudice of appellant Lundgren by failing to require unanimity as to the independent elements of the crime. “21. The trial court erred in denying appellant Lundgren's motion for a jury view of the Kirtland Temple. “22. The trial court erred to the prejudice of appellant Lundgren by failing to ensure that he received the effective assistance of counsel at his capital trial. “23. The trial court erred to the prejudice of appellant Lundgren in allowing the prosecutor to perempt jurors with reservations about the death penalty. “24. The trial court erred to the prejudice of appellant Lundgren by committing jurors to a death verdict in individual voir dire. “25. The trial court erred to the prejudice of appellant by instructing the jury at both guilt and penalty phases on the statutory definition of reasonable doubt in R.C. 2901.05. “26. The trial court erred to the prejudice of appellant Lundgren in failing to dismiss his capital indictment based on the proportionality process in Ohio. “27. The trial court erred to the prejudice of appellant Lundgren by failing to set aside the special venires drawn in appellant's case. “28. The trial court erred to the prejudice of appellant in failing to dismiss his capital indictment based on the mandatory nature of Ohio's capital statutory scheme. “29. The trial court erred to the prejudice of appellant Lundgren in failing to dismiss his capital indictment because the capital statutory scheme in Ohio is unconstitutional.

* * *

ASSIGNMENT OF ERROR NO. 5

Appellant argues that the trial court erred by allowing the state to present rebuttal evidence on appellant's criminal history during the penalty phase. Specifically, he contends that the trial court improperly allowed the testimony of appellant's past employers regarding his thefts while he was in their employ. During the penalty phase, appellant presented a psychologist, Dr. Nancy Schmidtgoessling, who testified in his behalf. During direct examination she stated that appellant had been on probation because he wrote bad checks. Also, she stated that appellant's employment was discontinued from several jobs due to conflicts and disagreements with other people.

In response, and during the penalty portion, appellee called three former employers in order to establish that appellant was let go because he stole from them. In State v. DePew (1988), 38 Ohio St.3d 275, the court determined that a prosecutor may rebut the unsworn statements of the defendant and the testimony of other witnesses. Id. at 286. Therefore, since the psychologist misstated, in part, the reasons for appellant's discharge, appellee could present evidence to the contrary. This conclusion is not altered by the fact that on cross-examination appellee was able to elicit from the psychologist that appellant stole from his previous employers. Next, appellant alleges that the court erred by allowing Shar Sprague to testify, during the penalty phase, regarding his plans to take over the Kirtland Temple. Because appellant said in his unsworn statement that he did not plot to take over the temple, Shar Sprague's testimony was admissible pursuant to DePew. This assignment is meritless.

ASSIGNMENT OF ERROR NO. 6

Appellant contends that prosecutorial misconduct deprived appellant of a fair sentencing determination. Within this assignment, appellant argues that prosecutorial misstatements of law; misrepresentation of the weighing process; elicitation of inflammatory testimony; improper nullification of mitigating evidence; unwarranted comment on the defendant's unsworn statement; and, appeals for a death sentence on religious grounds, operated, individually and cumulatively, to deny the capital defendant a fair and reliable sentencing determination.

First, appellant argues that appellee sent Mr. Currie a letter which said “if he (Currie) continues to cooperate or talk with Defense, he may not remain an unindicted co-conspirator.” Although appellee admits that a letter was sent to Mr. Currie informing him that his status as an unindicted co-conspirator was subject to review, he did not concede that the letter possessed the exact diction or threatening message as alleged. Because the letter is not part of the record, appellant is unable to demonstrate the claimed error; however, if the letter carried the tone as alleged, it would appear that appellee's letter violated ethical standards and was improper. “A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.” ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-3.1(c).

Next, appellant asserts that there was prosecutorial misconduct by misstating the law; by eliciting irrelevant and inflammatory testimony regarding appellant's potential for future violence; by questioning a witness about the beliefs of the RLDS Church regarding adultery and stealing; and, raising the point that appellant's statement was unsworn. Appellant failed to object to any of the alleged prosecutorial misconduct except appellee's account that appellant's statement was unsworn. Accordingly, any error to which there was no objection is waived. Long, supra; Mills, supra, at 373.

Additionally, appellee was permitted to say that appellant's statement was unsworn so long as the comment was limited to reminding the jury that the defendant's statement was not made under oath in contrast to the other witnesses. DePew, supra, paragraph two of the syllabus. The relevant portions of appellee's closing argument are as follows: “The other problem with his statement yesterday, ladies and gentlemen, is, you heard the Judge [ sic ] remarks about it, you have heard Ms. Kowall mention it, that statement yesterday was given not under oath. Now, is it because the Defendant is not familiar with an oath? “ * * * “Ladies and gentlemen, during the course of testimony, during the post-phases of the trial, the indication to you that the Defendant made Kevin Currie swear an oath and if he violated that oath, he was to die. He had the naked dancing women swear an oath as they returned to their husbands with their soiled undergarments and he had their humiliated husbands swear an oath of allegiance to him dressed in full military gear after the conclusion of that dancing ceremony. “Ladies and gentlemen, the statement given by the Defendant yesterday, the prophet of God, you heard an oath administered by Judge Parks to each and every witness who came into this courtroom that is they swore and/or affirmed that the testimony that I am going to give to you, the jury, is the truth as you shall answer to God.

“The Defendant, ladies and gentlemen, did not take such an oath. You are permitted, ladies and gentlemen, to consider that fact as you consider his testimony.” Clearly, appellee did far more than remind the jury that appellant's testimony was unsworn. Thus, appellee's comments were not limited as required by DePew. However, we find such transgression to be nonprejudicial in light of the overwhelming aggravating circumstances in this case relative to the mitigating factors, which will be more fully discussed in our statutorily mandated weighing exercise. The assignment is meritless.

* * *

ASSIGNMENT OF ERROR NO. 25

During both the guilt and penalty phase instructions to the jurors at appellant's trial, the trial court read the standard statutory definition of reasonable doubt. However, under this assignment, appellant claims that the definition of reasonable doubt in R.C. 2901.05 reflects a “clear and convincing” standard which allows jurors to return a conviction and death sentence based on a degree of proof below that is required by the Due Process Clause of the Fourteenth Amendment. R.C. 2901.05(D) reads as follows in pertinent part: “ ‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. * * * ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”

Specifically, appellant argues that the “willing to * * * act” language provided the jury with no guidance because it is too lenient. We disagree with appellant's assertion. Based on appellant's failure to object to this instruction at trial, we again review for plain error. After the Criminal Code of 1974 was implemented in Ohio, the criminal defense bar contended that the common law definition of the “beyond a reasonable doubt” standard of the burden of proof in criminal cases had been gelded by the effective lobbying of the Prosecutor's Association in the legislature so that it represented no more than the civil “clear and convincing” standard. However, in the case of State v. Nabozny (1978), 54 Ohio St.2d 195, paragraph two of the syllabus, the Ohio Supreme Court addressed this issue and ruled that: “The definition of ‘reasonable doubt’ set forth in R.C. 2901.05 correctly conveys the concept of reasonable doubt and, therefore, is not an unconstitutional dilution of the state's requirement to prove guilt beyond a reasonable doubt.” This holding in Nabozny has been reaffirmed by numerous Ohio courts, including the recent case of State v. Van Gundy (1992), 64 Ohio St.3d 230, 232-233. See, also, State v. Cooey (1989), 46 Ohio St.3d 20,37; State v. Maurer (1984), 15 Ohio St.3d 239, 271; State v. Jenkins (1984), 15 Ohio St.3d 164, 211; and Columbus v. Bee (1979), 67 Ohio App.2d 65, 80. Additionally, the United States Court of Appeals for the Sixth Circuit has also held that the statutory definition, read as a whole, passes constitutional muster. Thomas v. Arn (C.A.6, 1983), 704 F.2d 865, 869. Accordingly, we find no merit to appellant's twenty-fifth assignment of error. The trial court properly instructed the jury regarding reasonable doubt.

ASSIGNMENT OF ERROR NO. 26

Appellant argues that the statutorily mandated proportionality process in Ohio does not comport with the requirements of both the Ohio and United States Constitutions, and is thus fatally flawed. Specifically, he contends that the trial courts in Ohio have consistently ignored the dictates of R.C. 2929.05(A), thereby creating a proportionality system tilted toward death. Appellant urges that reviewing courts should be required to compare cases in which the death penalty was imposed with those in which life imprisonment was imposed. We do not agree. R.C. 2929.05(A) states in relevant part: “ * * * In determining whether the sentence of death is appropriate, the court of appeals and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.” (Emphasis added.) We note that Ohio included proportionality in its capital case statutory language as an additional factor to pass later constitutional challenges. However, the United States Supreme Court later held in Pulley v. Harris (1984), 465 U.S. 37, 50, that lack of a specific statutory provision for proportionality review does not render a death penalty scheme unconstitutional. Nevertheless, it is still part of Ohio's statutory scheme. In a long line of cases, the Supreme Court of Ohio has consistently upheld the constitutionality of the Ohio death penalty statute. Lorraine, supra, at 426; State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph one of the syllabus; State v. Wickline (1990), 50 Ohio St.3d 114, 124, citing State v. Buell (1986), 22 Ohio St.3d 124; Maurer, supra, paragraph one of the syllabus; and, State v. Zuern (1987), 32 Ohio St.3d 56, 63.

The law in Ohio is also clear that: “The proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed.” State v. Steffen (1987), 31 Ohio St.3d 111, paragraph one of the syllabus. (Emphasis added.) See, also, Lorrain e at 426. Hence, it is the rule in Ohio that, when conducting proportionality review, the appellate court is limited to comparing the appropriateness of the death penalty in the case at bar with other death penalty cases decided by that particular court in its district. Further, appellant presents us with no compelling reason why we should now find the statute to be unconstitutional. Therefore, we overrule appellant's twenty-sixth assignment of error. We conclude that the statutorily mandated proportionality process in Ohio guarantees a convicted capital defendant a fair and impartial review of his death sentence.

ASSIGNMENT OF ERROR NO. 27

Under this assignment, appellant asserts that the special venires drawn in his case were constitutionally inadequate to insure that he received a fair trial. Specifically, he claims that those persons in age groups 25-44, 45-54, and 65-74 were overrepresented, thus eradicating the fair cross-section requirement of the Ohio and United States Constitutions. We disagree. First, Crim.R. 24(E), Challenge to array, clearly states that a challenge to the array must be made prior to the examination of the jurors. Appellant did not timely object to the venire, or to the jury that was seated, on the basis that certain age groups were overrepresented. Therefore, this assignment was waived absent plain error.

It is well-established in Ohio that the system of jury selection which restricts veniremen to registered voters “ * * * represents a reasonable classification * * * from whom the defendant would be as likely to receive a fair and impartial verdict as he would from a jury composed of both registered and non-registered electors.” State v. Johnson (1972), 31 Ohio St.2d 106, 114. The Johnson court further stated that: “The right to trial by an impartial jury means that prospective jurors must be selected by officials without the systematic and intentional exclusion of any cognizable group. However, it is not necessary that every jury contain representatives of all economic, social, religious, racial, political and geographical groups of the community.” Id. (Emphasis added.) It is thus clear that “a defendant is not necessarily entitled to a 100 percent absolutely perfect cross-selection of citizens for the jury panel” in a given jurisdiction. Id. at 113.

Absent any authority suggesting that age groups are cognizable groups for purposes of fair cross-section analysis, it is our position that appellant failed to identify any systematic and intentional exclusion in the method employed by appellee. Random overrepresentation of certain age groups does not violate the fair cross-section requirements of the Ohio or United States Constitutions and cannot be used as a basis to set aside a lawfully constituted jury. Further, in the instant case, all age groups were represented. Once again, even if we were to conclude that such overrepresentation violated appellant's constitutional rights, it would not rise to the level of plain error due to the overwhelming nature of the evidence. Under these circumstances, overrepresentation of one age group simply has no bearing on an individual juror's propensity to determine guilt or innocence. This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 28 AND 29

Under appellant's twenty-eighth and twenty-ninth assignments of error, he claims that the mandatory nature of Ohio's capital statutory scheme is unconstitutional. Appellant also makes a general challenge to the Ohio capital statutory scheme. As stated previously, these challenges to Ohio's death penalty statute have been repeatedly rejected. See Lorraine, supra, at 426; Maurer, supra, paragraph one of the syllabus; and Jenkins, supra, paragraph one of the syllabus. Absent any compelling reason which would affect the consistent position of the Ohio Supreme Court, this claim should be disregarded. Accordingly, we overrule appellant's twenty-eighth and twenty-ninth assignments of error.

SUPPLEMENTAL ASSIGNMENT OF ERROR

On October 5, 1992, appellant moved this court for leave to submit a supplemental assignment of error. Appellee filed a response in opposition to this motion. We granted appellant's motion on October 9, 1992. Appellant claims in this assignment that the trial court erred by allowing appellee to exercise a religiously discriminatory peremptory challenge to excuse potential juror John Way. Mr. Way stated during the individual voir dire that he was presently a member of the Pentecostal Church and attended it regularly. However, later during the general voir dire, Mr. Way revealed that he and his wife had been members of a Mormon Church in Mayfield, Ohio, from 1977 to 1979. At that time, appellee exercised a peremptory challenge. The prosecutor stated no reason for exercising his peremptory challenge, and appellant offered no objection to the use of it at the time. Hence, appellant has waived this assignment absent plain error. Appellant contends that this use of a peremptory challenge is violative of his rights under both the United States and Ohio Constitutions. As stated in our discussion under the twenty-third assignment of error, a court may not normally inquire into the prosecutor's use of peremptory challenges except when the prosecutor attempts to exclude an identifiable group. Swain, supra, at 205.

Appellant relies heavily on Batson v. Kentucky (1986), 476 U.S. 79, and Powers v. Ohio (1991), 111 S.Ct. 1364. Taken together, Batson and Powers stand for the proposition that a defendant's right to equal protection is violated when the prosecution excludes black jurors on the basis of race, regardless of whether the defendant is black or white. However, appellant has failed to cite any authority supporting the claim that it is improper to use a peremptory challenge to excuse a juror on the basis of religion. Also, it is fundamental in our legal system that blacks are a constitutionally cognizable minority for purposes of equal protection, subject to the highest level of constitutional protection. We are mindful that religious beliefs have traditionally been accorded the highest level of constitutional protection for purposes of the First Amendment. See Unemployment Div., Dept. of Human Res. v. Smith (1990), 110 S. Ct. 1595; Church of Lukumi Babalu Aye v. City of Hialeah (1993), 113 S.Ct. 2217, 2226. However, for purposes of equal protection, religious groups are not a “suspect class” subject to a strict scrutiny analysis. Thus, we cannot literally analogize the exclusion of blacks from a jury to the exclusion of religious groups for these purposes. Based on the foregoing, we conclude that the trial court did not err in permitting appellee to exclude juror Way. Accordingly, appellant's supplemental assignment is not well taken.

R.C. 2905 requires an appellate court to conduct a separate and independent review of this case. “First, the court of appeals shall determine if the evidence supports the finding of the aggravated circumstances of which the offender was found guilty. Second, the court must independently weigh all the evidence disclosed in the record to determine whether the aggravating circumstances outweigh the mitigating factors. And third, the court must consider whether the sentence was excessive or disproportionate to the penalty imposed in similar cases.” State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported at 42. Each of the five aggravated murder counts contained two specifications or aggravating circumstances. The specifications read as follows:

SPECIFICATION

“The Grand Jurors further find and specify the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.

SPECIFICATION

“The Grand Jurors further find and specify the offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” The uncontroverted evidence clearly establishes that appellant's course of conduct involved the purposeful killing of two or more persons. Furthermore, as we stated in appellant's seventeenth assignment of error, the evidence demonstrates that appellant murdered the victims while committing kidnapping. Thus, the evidence supports the jury's finding of the existence of aggravating circumstances. Turning to the weighing exercise, we conclude, as did the jury and the trial court, that the aggravating circumstances outweigh the mitigating factors. In reaching our decision, we are permitted to “ * * * refer to the nature and circumstances of the offense to show why the aggravating circumstances outweigh the mitigating factors.” Lorraine, supra, at 422; see, also, State v. Lott (1990), 51 Ohio St.3d 160, 171; State v. Stumpf (1987), 32 Ohio St.3d 95, paragraph one of the syllabus. However, we recognize that “ * * * the nature and circumstances of an offense are not a statutory aggravating circumstance and cannot be considered as such.” Lott, supra, at 171; see, also, Lorraine, supra, at 422. In this case, the evidence establishes that appellant preached about killing the Averys. He lured them to the farmhouse on the night of their murders by inviting them to dinner and telling them that they would be going with the group to the wilderness. Immediately after dinner, appellant met with some of his followers to finalize his murderous scheme. Appellant dictated the followers' roles which included leading each victim, one by one, to the barn; duct taping their hands, feet and mouth; and, carrying their live bodies to a predug common grave. Once placed in the pit, appellant shot each of the Averys.

Mitigating factors are outlined in R.C. 2929.04(B) as follows: “(1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; (5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

Prongs one, two, three, four, and six are inapplicable to our case as the record is devoid of evidence which would provide mitigation matter which might favor the appellant under those subsections. The victims did not induce or facilitate their deaths. Appellant was not under duress, coercion, or strong provocation at the time that he committed the murders. Although there was testimony that appellant suffers from a personality disorder, such disorder does not rise to the crest of a mental disease or defect which caused him to lack capacity to appreciate the criminality of the murders or to conform his conduct to lawfulness. Appellant was not a youthful offender. Last, he planned the murders and was the principal offender. The fifth prong is pertinent here since the mitigating submissions indicate that appellant does not have a significant history of prior criminal convictions. In so concluding, we realize that there was testimony that appellant stole from virtually each of his employers; however, such acts did not result in convictions. Furthermore, while there was testimony that appellant had been placed on probation for writing bad checks, this conviction alone does not constitute a significant criminal conviction history.

The majority of appellant's mitigating evidence concentrated on his family life which would fall under subsection (7) of R.C. 2929.04(B). Specifically, he had a strict upbringing and seldom lived up to his parents' expectations. Dr. Schmidtgoessling said that appellant has feelings of inadequacy which result in a personality disorder. The predominant features cause appellant to be narcissistic, paranoid, and, antisocial. Such disorder also causes appellant to have feelings of grandiosity which is an unrealistic notion as to his own abilities. While this evidence may create some empathy for the appellant, it does not provide a substantial degree of mitigating weight. Therefore, it is our conclusion that the aggravating circumstances clearly outweigh appellant's mitigating factors. As such, we leave the jury's and trial court's decisions undisturbed in this regard. Last, we examine whether appellant's sentence was excessive or disproportionate when compared with other aggravated murder cases in this district. This court has affirmed the imposition of death in four cases, State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported; State v. Wiles (June 3, 1988), Portage App. No. 1675, unreported; State v. Hill (Nov. 27, 1989), Trumbull App. Nos. 3720/3745, unreported; and, State v. Lorraine (Aug. 10, 1990), Trumbull App. No. 3838, unreported.

“In Glenn, supra, the defendant had plotted the escape of his half brother from the Mahoning County Jail. While his half brother was being transported to a doctor's office by a sheriff's deputy, defendant struck the police car with his own car. When the deputy exited the patrol car, the defendant shot and killed him. During the mitigation phase of the trial, it was established that the defendant was only twenty years old, that he had a low intelligence level and had special educational needs, and that he came from a poor background and environment. Nevertheless, this court, by a two to one vote, held that the death penalty was appropriate. In Wiles, supra, the defendant was burglarizing the home of his former employers. He waited until he thought the house was unoccupied and then entered through an unlocked door. Once inside, the defendant was surprised by the fifteen year old son of his former employers. The defendant stabbed the smaller, weaker boy with a butcher knife at least eleven times and escaped with $260 cash.

The mitigating factors that the court considered included the fact that the defendant was twenty-two years old at the time of the murder, and that the defendant eventually turned himself over to the police. However, he denied any involvement in the murder and had turned himself in only after fleeing to Georgia and running out of food and money. Upon review, this court affirmed the trial court's decision holding that the death penalty was neither excessive nor disproportionate. In Hill, supra, the defendant tackled a twelve year old boy who was riding his bicycle through a wooded area behind a grocery store. The defendant, and an accomplice, beat the boy violently, sexually assaulted him, impaled him with a long wooden instrument, strangled him with his own underwear, and burned his face and body by pouring lighter fluid on him and igniting it. The boy was left for dead but managed to live for two more days. The court considered a number of mitigating factors. The defendant was eighteen years old at the time of the incident and had diminished mental capacity. He was mildly to moderately retarded, although he understood the difference between right and wrong. It was also established that the defendant was essentially illiterate. This court held that the death sentence was appropriate.” Lorraine, at 61-63.

In Lorraine, the defendant stabbed to death Raymond and Doris Montgomery, ages seventy-seven and eighty. He lured Mr. Montgomery upstairs and stabbed him five times. Then, the defendant went downstairs and stabbed Mrs. Montgomery nine times. The court considered mitigating factors including the defendant's youth, low intelligence, poor family environment, and antisocial personality disorder. This court found the death penalty appropriate. By comparison with the foregoing cases, the sentence in this case is not disproportionate or excessive. Appellant had little in the way of mitigating factors and the aggravating circumstances significantly outweighed the mitigating factors which were present.

The judgment of the trial court is affirmed. A certified copy of this document shall constitute the separate opinion as to findings of the court in this case within the meaning of R.C. 2929.05(A) and the Clerk of this Court shall immediately make and file such certified copy with the Clerk of the Supreme Court of Ohio. Pursuant to R.C. 2953.07, this court having affirmed the trial court and the date for execution having passed, this court sets the date of December 1, 1993, for the execution of the death sentence.

CHRISTLEY, J., concurring.

I wholeheartedly concur in judgment with the majority. However, with respect to appellant's ninth assignment of error, I would adopt a slightly different stance. In response to open-ended questions during voir dire, jurors Rossman and Byers indicated they would have a hard time according appellant the presumption of innocence. Technically, since they did ultimately indicate in response to closed-end questions that they would unequivocally do so, they met the test set out in Rogers, supra. However, I feel that the better practice would have been for the trial court to excuse them upon appellant's challenge for cause so as to hopefully find others who would not need to be shamed or persuaded into according appellant the presumption of innocence.


Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006). (Habeas)

Background: Following affirmance of his state court convictions of aggravated murders and kidnapping, 73 Ohio St.3d 474, 653 N.E.2d 304, and denial of state postconviction relief, petitioner sought writ of habeas corpus. On remand from vacation of original decision, the United States District Court for the Northern District of Ohio, Donald C. Nugent, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Clay, Circuit Judge, held that:
(1) exercise of state court's right to overlook procedural default to prevent manifest injustice did not constitute adjudication on merits that excused procedural default for habeas review;
(2) restrictions placed on cross-examination of accomplices regarding their plea agreements did not violate petitioner's right to present mitigating evidence;
(3) refusal to allow jury view did not violate right to present mitigating evidence;
(4) state postconviction court's election to review defaulted claim on merits permitted habeas review of otherwise procedurally barred claim;
(5) counsel's strategic decision not to present insanity defense in capital murder prosecution was not deficient performance;
(6) counsel's failure to object to certain evidence did not prejudice defendant, as required to show ineffective assistance;
(7) state court's decision that failure to object to other evidence was not prejudicial was not unreasonable application of federal ineffective assistance law; and
(8) state court did not unreasonably apply federal law in determining that prosecutorial misconduct in commenting on defendant's silence was harmless based on its independent reweighing of aggravating and mitigating factors without improper inference arising from comments. Affirmed.

CLAY, Circuit Judge.

Petitioner, Jeffrey D. Lundgren, an Ohio death row prisoner, appeals the November 14, 2001 order and judgment of the United States District Court for the Northern District of Ohio, denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Ohio state court of five counts of aggravated murder with two death penalty specifications and five counts of kidnapping. The trial court followed the jury's recommendation and sentenced Petitioner to death. This Court certified for appeal Petitioner's claims relating to 1) the trial court's failure to allow the introduction of relevant mitigating evidence, 2) prosecutorial misconduct, and 3) ineffective assistance of counsel at the guilt and penalty phases. For the reasons which follow, we AFFIRM the district court's denial of habeas corpus relief and DENY the petition.

I. BACKGROUND

A. Substantive Facts

Petitioner does not challenge the state courts' findings of fact. Therefore, because of the deference due by this Court to state court factual determinations on habeas, we defer to the statement of facts as recited by the Supreme Court of Ohio upon direct review of Petitioner's conviction and sentence:

1. Facts as Recited by the Ohio Supreme Court - Lundgren's Background

Lundgren was born in Missouri and raised in the Reorganized Church of Jesus Christ of Latter Day Saints (“RLDS”). While attending college, Lundgren met and married his wife, Alice. Unsuccessful in school, Lundgren joined the Navy and served in the Vietnam War in the early 1970s. After his honorable discharge in 1974, he unsuccessfully held a series of hospital maintenance and other jobs in Missouri. Lundgren's religious beliefs form the foundation of this case. Although the RLDS, headquartered in Independence, Missouri, differs from the Utah-based Mormon Church, both religions trace their origins to the prophet Joseph Smith, Jr., who published the Book of Mormon in 1830. During the 1830s, Smith moved to Kirtland, Ohio, and built the Kirtland Temple, now managed by the RLDS.

In summer 1984, Lundgren and his family moved from Missouri to Kirtland so that Lundgren could serve as senior temple guide, a job that had no pay but did include family lodging. Lundgren initially attracted favorable attention in his Sunday school classes and as a guide. William Russell, a religion professor at an RLDS college, testified that Lundgren knew scripture exceptionally well, especially the Book of Mormon, and followed the chiastic method of scripture interpretation, which involves searching text for recurring patterns. However, Lundgren did not understand the Bible's historical context and tended to concentrate on this esoteric method. Lundgren generally fit within the traditions of the RLDS faith in that he described visions, direct spiritual experiences, and God speaking directly to prophets.

Over the next three years, Lundgren served as a temple guide and taught classes on the Bible and the Book of Mormon. Despite the church's direction to turn over all money received from temple visitors to the church, Lundgren solicited and kept contributions received from visitors. Temple contributions dropped dramatically, and the temple bookstore also suffered fund shortages. The church eventually removed Lundgren as a religion teacher and, in October 1987, fired him as a temple guide and evicted him from his quarters next to the temple.

The Cult

From 1985 on, Lundgren attracted a substantial following in his classes because of his knowledge of religious texts. Eventually, Kevin Currie and Sharon Bluntschly moved in with the Lundgrens, as did Richard Brand, Daniel Kraft, and Gregory Winship. Debbie Olivarez joined the group in April 1988. Those living with the Lundgrens called him “Dad” and contributed their paychecks and other money for common group expenses. Two couples, Ron and Susan Luff and Dennis and Tonya Patrick, also contributed money, but did not live with the Lundgrens. In the spring of 1987, the Avery family moved from Missouri to follow Lundgren's teachings. The Avery family included Dennis, age 49; Cheryl, age 46; and their daughters, Trina, age 15; Rebecca, age 13; and Karen, age 7.

After Lundgren's eviction, he and his family and followers moved to a rented farmhouse. There, Lundgren continued his classes, stressing the importance of the Kirtland Temple. According to Lundgren, his followers had to recapture the temple, an earthquake would elevate it, and Christ would return and establish Zion. Lundgren also spoke of his conversations with God and his visions. He discussed the Book of Revelations and the Book of Mormon, and referred to “pruning the vineyard” and the need to kill ten followers before Zion could be created. Eventually, the men in the group undertook paramilitary training to prepare for a temple assault. Lundgren picked May 3, 1988 (his birthday) as the day to recapture the temple, but later decided it was not yet time. The Averys, on the fringe of the group, were invited to only a few of Lundgren's prayer meetings.

By October 1988, the RLDS church had excommunicated Lundgren. In early 1989, Lundgren was stressing the need for his followers to go on a wilderness trip before Zion would be possible. By that time, both Kevin Currie and another follower, Shar Olson, had left the group, but Kathryn and Larry Keith Johnson had joined.

The Murders

In April 1989, at Lundgren's direction, the group began preparing for the wilderness trip. Those who worked left their jobs and some bought provisions. Lundgren encouraged all of the followers to use up any of their available credit cards. All of the group members, including the Averys, gathered their worldly possessions. Around April 12, two or three of the followers secretly began digging a six-by-seven-foot pit in the dirt floor of Lundgren's barn. Lundgren told Cheryl Avery to write and tell her family that they were going to Wyoming. Then, Lundgren invited the Averys to dinner.

On April 17, 1989, Dennis, Cheryl and their three daughters ate dinner at Lundgren's farmhouse. After dinner, Lundgren went out to the barn with his son, Damon, and four followers, Brand, Kraft, Winship, and Ron Luff. The Averys stayed in the house with the women and children. At Lundgren's direction, Luff individually led each Avery family member out to the barn, where each was bound and gagged by the men. After the men placed each Avery family member into the pit, Lundgren shot each person two or three times with a .45 caliber semiautomatic weapon. The men then filled the pit with dirt and stones. Afterwards, Lundgren and the others went back to the farmhouse and held a prayer meeting.

The Months Prior to Lundgren's Arrest

The next day, April 18, police officers and FBI agents visited the Lundgren farm to investigate reports about the planned temple assault. Everyone interviewed said that they were at the farm voluntarily and denied knowing anything about plans to assault the temple. The FBI left without arresting anyone, and the group drove away on their wilderness trip. Lundgren selected mountain campsites near Davis, West Virginia, and the group lived in tents there through October 1989. Some of the followers took jobs, and the men continued their military exercises. While in West Virginia, Lundgren chose Tonya Patrick as his second wife. That arrangement did not work out, so Lundgren then picked Kathryn Johnson as his second wife. That choice upset Larry Johnson, Kathryn's husband, and contributed to group dissension.

By October 1989, Lundgren, his family, and about ten of his followers moved to Missouri. However, more dissension occurred and, by the end of December 1989, Larry Johnson had contacted federal law enforcement authorities about the murders. On January 3, 1990, Kirtland police began digging out the pit in the barn and found Dennis Avery's body. Police uncovered the other Avery family members' bodies the next day. Lundgren had shot Dennis twice in the back and Cheryl three times in the torso. He shot Trina once in the head and twice in the body, Rebecca in the back and thigh, and Karen in the head and chest. The coroner found silver duct tape wrapped around the victims' heads, hands, and feet. The origin of two damaged bullets found at the scene was unknown. Police discovered that a .45 caliber semiautomatic weapon, belonging to Lundgren, had fired all of the other bullets they recovered. Lundgren bought the weapon in 1987 and sold it in West Virginia in October 1989. On January 7, 1990, federal authorities arrested Lundgren in California. State v. Lundgren, 73 Ohio St.3d 474, 653 N.E.2d 304, 304-06 (1995).

2. Evidence Presented at the Sentencing Phase, as Recited by the Ohio Supreme Court

As a youth, Lundgren was mostly a loner, but was active in sports and church activities. His father, a strict disciplinarian, enjoyed teasing and punishing him. Dr. Nancy Schmidtgoessling, a psychologist who testified for the defense, determined that Lundgren suffered from a mixed personality disorder with features of narcissism, paranoia, and antisocial traits. However, Lundgren's IQ of 124 was above average, and he was not schizophrenic or manic depressive. While growing up, Lundgren had little emotional support, and, as an adult, he developed intense feelings of grandiosity and a strong desire to control his environment. He could not maintain employment and “stole from almost” every one of his employers. Although Lundgren became obsessed with religion, at the time of the offenses, Lundgren did not have a mental disease or defect.

In an unsworn statement lasting almost five hours, Lundgren explained his lifelong search for spiritual truth and his visions. He quoted at length from the Old Testament and the Book of Mormon. Lundgren denied ever planning to take over the Kirtland Temple, but admitted killing the Averys. Lundgren asserted that he abhorred the sin he saw in the Avery family and explained that God commanded him to kill the Averys. He stated, “I cannot say that God was wrong. I cannot say that I am sorry I did what God commanded me to do in the physical act.” Lundgren further explained, “I am a prophet of God. I am even more than a prophet. I am not a false prophet; therefore, I am not worthy of the [death] penalty.” A rebuttal witness confirmed that Lundgren had planned an armed attack on the temple. Other evidence established that the RLDS had fired Lundgren as a temple guide because of theft allegations. Id. at 321.

B. Procedural History

In 1990, an Ohio jury convicted Petitioner of five counts of aggravated murder and five counts of kidnapping. The murder counts included affirmative jury findings for two death penalty specifications. After a subsequent penalty trial, the trial court adopted the jury's recommendation of a death sentence on September 21, 1990. The Ohio Court of Appeals and the Supreme Court of Ohio affirmed Petitioner's conviction and sentence upon direct appeal. See State v. Lundgren, Nos. 90-L15-140, 91-L-036, 1993 WL 346444, 1993 Ohio App. LEXIS 4394 (Ohio Ct.App. Sept. 14, 1993), aff'd, 73 Ohio St.3d 474, 653 N.E.2d 304 (1995). Petitioner failed to secure post-conviction relief from state court. See State v. Lundgren, No. 97-L-110, 1998 WL 964592, 1998 Ohio App. LEXIS 6164 (Ohio Ct.App. Dec. 18, 1998), juris. den'd, 85 Ohio St.3d 1465, 709 N.E.2d 171 (1999). Petitioner filed a petition for a writ of habeas corpus in federal district court in May 1999. The district court denied the petition without any evidentiary hearing and issued a blanket denial of Petitioner's claims for relief in November 2001. Petitioner appealed to this Court in December 2001. In February 2003, a panel of this Court vacated the decision of the district court and remanded the case for individual treatment of Petitioner's claims. Upon remand, the district court addressed each claim individually, denied all claims, and again denied a certificate of appealability as to all claims. This Court reversed the decision of the district court in part and granted a certificate of appealability on the above-named claims in June 2004.

* * *

3. Defense Counsel Was Not Deficient in Failing to Assert a Not Guilty by Reason of Insanity Defense

Petitioner alleges that his trial counsel's failure to assert a not guilty by reason of insanity defense was constitutionally defective performance. Petitioner states in his brief to this Court that his trial counsel “failed to obtain an appropriate expert to offer testimony about [Petitioner's] state of mind at the time at which these offenses occurred.” (Pet'r Br. 46.) Petitioner then puts forth legal argument that criminal defendants are entitled to mental health experts and cites case law in support of this contention. (Pet'r Br. 47-49, citing Ake v. Oklahoma, 470 U.S. 68, 71, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (“The State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination ····”).) Petitioner argues that Petitioner's trial counsel failed to “ask for and secure an expert [as] contemplated by Ake.” (Pet'r Br. 48.)

Petitioner is correct in that a counsel's failure to explore the possibility of a not guilty by reason of insanity defense through reasonable investigation, including the use of a qualified mental health expert, can rise to the level of constitutionally defective counsel. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”); see also Powell v. Collins, 332 F.3d 376 (6th Cir.2003) (holding that capital defendant is entitled to mental health expert during guilt and penalty phases); Sims v. Livesay, 970 F.2d 1575, 1580 (6th Cir.1992). Here, however, the only conclusion supported by the record before this Court is that defense counsel did secure appropriate mental health experts and did make an adequate investigation into Petitioner's mental state and background well before the criminal trial.

Petitioner's trial counsel requested and received funding for two clinical psychologists, Dr. Newton Jackson and Dr. Nancy Schmidtgoessling. Petitioner has a constitutional right to only one mental health expert. See Ake, 470 U.S. at 71, 105 S.Ct. 1087. Records submitted to the court indicate that these psychologists each evaluated Petitioner well before Petitioner's August 1990 guilt-phase trial. These same records show that the psychologists met with Petitioner's defense counsel in advance of trial and after each had evaluated Petitioner. Moreover, both mental health experts interviewed people from Petitioner's background, including immediate family members.

Counsel's diligence in obtaining not just the constitutionally mandated single mental health expert, but two mental health experts, shows that counsel engaged in a reasonable investigation into Petitioner's mental state at the time of the crimes. Counsel's decision not to pursue an insanity defense must be understood as a strategic one, absent any compelling evidence to the contrary. Given that defense counsel did call Dr. Schmidtgoessling during the penalty phase to testify to Petitioner's mental condition, but that Dr. Schmidtgoessling admitted, on cross-examination, that she should could not reach a conclusion that Petitioner was not sane at the time of his crimes, Petitioner has no substantive grounds on which to claim that trial counsel's strategic choice was unreasonable.FN5 FN5.

To the extent that Petitioner's argument can be framed as counsel's failure to procure a mental health expert whose conclusions were favorable to Petitioner, Petitioner's claim must also fail. Petitioner does not have a constitutional right to an expert whose conclusions favor Petitioner. See Ake, 470 U.S. at 83, 105 S.Ct. 1087. Moreover, to the extent that two psychologists being paid through defense counsel could not conclude that Petitioner was insane, counsel's decision to discontinue pursuit of that line of defense was a reasonable one.

To the extent that Petitioner's argument can be framed as one impugning the competency of the psychologists retained to assist trial counsel, Petitioner's argument has little merit. The Constitution does not require that an indigent criminal defendant be able to retain the expert of his choosing, only that a competent expert be made available. See Ake, 470 U.S. at 83, 105 S.Ct. 1087. A licensed practitioner is generally held to be competent, unless counsel has good reason to believe to the contrary. Cf. Skaggs v. Parker, 235 F.3d 261, 268 (6th Cir.2000) (finding defense counsel's reliance on expert during penalty phase unreasonable in light of expert's highly unusual and eccentric behavior during guilt phase).

Here, Petitioner presents no evidence that Dr. Jackson and Dr. Schmidtgoessling were incompetent. Instead, Petitioner submits an affidavit of Ph.D. psychologist Jeffrey Smalldon who opines that Petitioner “should have been seen as eligible ··· for a defense of not guilty by reason of insanity.” (J.A. at 121.) The question before this Court, however, is not whether all mental health experts would agree on whether the defense was viable, but whether counsel's decision not to pursue the defense was a reasonable strategic choice. “[R]easonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, --- U.S. ----, ----, 125 S.Ct. 2456, 2463, 162 L.Ed.2d 360 (2005).FN6

FN6. Although the dissent argues that Petitioner's counsel's failure to present the defense of insanity at trial amounted to ineffective assistance of counsel, there is actually nothing in the record to support reliance on an insanity defense. In support of its argument, the dissent cites the diagnosis of Dr. Jeffrey L. Smalldon; however, Dr. Smalldon's testimony never actually provides a definitive diagnosis that Petitioner was insane at the time of the crimes. Rather, Dr. Smalldon indicated that he regards Petitioner as delusional and psychotic “such that [Petitioner] should have been seen as eligible at the time of his 1990 trial for a defense of not guilty by reason of insanity.” (J.A. at 121).

Ironically, Dr. Smalldon offers this legal conclusion after criticizing Dr. Schmidtgoessling's conclusion that “I don't believe he was insane” as a “legal, as opposed to psychological opinion, something she was not qualified to give.” (J.A. at 121).

The dissent has canvassed the legal literature and concluded that Petitioner's counsel's failure to present a defense of insanity at the time of Petitioner's trial constituted ineffective assistance of counsel because that defense, in the opinion of the dissent, was the only one available to Petitioner that might have permitted him to escape the death penalty. Although it is true, as the dissent points out, that there are reported cases in which a “deific decree” was presented as the basis for an insanity defense, the defense has been successful only four times (or seven times, as the dissent counts the cases) and has never been successful in Ohio.

Consequently, there can be no contention that the defense has been utilized frequently enough, or successfully enough, that the failure to assert the defense constitutes ineffective assistance of counsel without reference to such factors as whether the Petitioner regarded himself as insane and whether he was willing to have such a defense presented on his behalf (according to Dr. Smalldon, Petitioner was lucid and did not regard himself as insane, see, e.g., J.A. at 94), and without considering such circumstances as matters of strategy or even the straightforward belief by Petitioner and/or his counsel that Petitioner was not insane no matter how delusional or religiously-motivated Petitioner may have been in committing the murders.

The dissent's own discussion reveals that a defense of “deific decree” has never been successful under the circumstances of Petitioner's case, i.e., where there was no mental health expert able to testify to the defendant's insanity, despite counsel's diligent investigation into the defense as required under Ake.

The success of the dissent's argument would appear to rest on the contention that Petitioner's counsel had a duty to explore the insanity defense beyond the reasonable reliance on the findings of the two mental health experts already hired, neither one of whom could say that Petitioner was insane under Ohio law. Yet counsel had no reason to doubt his experts' capabilities or conclusions.

The dissent's conclusion that counsel's investigation was unreasonable contradicts the Supreme Court's holding that, even in capital cases, a defendant is entitled to only one qualified mental health expert at the expense of the state, even if the conclusions of that expert fail to favor the defense. See Ake, 470 U.S. at 71, 83, 105 S.Ct. 1087.

Given counsel's information at the time of trial, there is no evidence to support the conclusion that counsel's decision was unreasonable. As to the penalty phase of Petitioner's trial, Petitioner's claim for ineffective assistance with respect to the use of mental health experts must similarly fail. Contrary to Petitioner's contention, defense counsel did submit mitigating psychological evidence to the extent possible.

Defense counsel placed Dr. Schmidtgoessling on the stand. Dr. Schmidtgoessling testified to Petitioner's difficult family background, the unusual forms of discipline Petitioner had been subjected to as a child, and the emotional abuse Petitioner had been subjected to by his parents. Dr. Schmidtgoessling testified that Petitioner's religious beliefs affected his perception of reality, and that she diagnosed Petitioner with mixed personality disorder with the dominant features being narcissism, paranoia, and anti-social tendencies.

Dr. Schmidtgoessling further testified that, in her opinion as a psychologist, Petitioner “really believed ··· that it was right to kill these folks because he believed that God commanded him to do so.” (J.A. at 10836.) It may be inferred, however, from Dr. Schmidtgoessling's conclusion that Petitioner was not “insane,” that in her view Petitioner's delusional thinking did not rise to the legal definition of insanity under Ohio law. Given the absence of a factual basis for Petitioner's claim, the state court's conclusion that defense counsel was not ineffective for its failure to present an insanity defense cannot be said to be contrary to or an unreasonable application of federal law.

* * *

5. Summary

Petitioner has procedurally defaulted his claims of ineffective assistance of counsel as premised on victim character evidence, the mention of Jonestown, the use of “certainty” language, the warrantless barn search, the wiretap, and prosecutorial misconduct. Without argument as to cause for his failure to bring these issues up on direct appeal, Petitioner cannot overcome this procedural default. Petitioner's non-defaulted claims show no grounds for habeas relief premised on ineffective assistance of counsel. Petitioner's trial counsel had ample reason for not bringing an insanity defense and had performed a reasonable investigation into Petitioner's mental state and background. Moreover, the state court's determination that Petitioner failed to prove prejudice from the introduction of the victims' clothing, the firearms evidence, and Petitioner's Temple assault plans was not contrary to nor an unreasonable application of federal law.

E. Prosecutorial Misconduct - 1. Petitioner Has Procedurally Defaulted Certain Subclaims

Petitioner has failed to preserve the bulk of his prosecutorial misconduct claims for review. Petitioner argues that the prosecutor denied him a fundamentally fair trial by doing the following: (a) continually asking leading questions, (b) improperly vouching for the credibility of government witnesses, (c) continually questioning witnesses regarding Petitioner's character, (d) arguing that the defense “sanitized” and “whitewashed” the case, and that it had prevented the jury from looking at the true facts in the case (J.A. at 10351), (e) arguing that defense counsel “knew that they were had” (J.A. at 10352), (f) arguing that the jury should consider the “terror the victims experienced” (J.A. at 10354), (g) arguing facts not in evidence by stating that Petitioner looked into the eyes of Karen Avery before he shot her, (h) exhorting the jury to return a guilty verdict so Petitioner could “suffer the consequences” (J.A. at 10360), (i) commenting adversely on the unsworn nature of Petitioner statement during the penalty phase, (j) appealing to the juror's sense of community to take vengeance on Petitioner, and (k) coercing a potential defense witness.

* * *

5. Summary

Petitioner alleged eleven instances of prosecutorial misconduct. Petitioner has defaulted nine of these eleven subclaims-(a), (b), (c), (d), (e), (f), (g), (h), and (j)-and has failed to show cause for his default. Of his remaining subclaims (i) and (k), only (i) has any basis in fact. With respect to subclaim (i), the Ohio Supreme Court's determination that the prosecutor's comments on Petitioner's unsworn statement constituted harmless error was not an unreasonable application of federal law, in light of the significant evidence going toward both guilt and the weight of aggravating circumstances.

CONCLUSION

For the foregoing reasons, we DENY the petition for a writ of habeas corpus.

*****

MERRITT, Circuit Judge, dissenting.

Lundgren testified that he killed a family of five cult members as a religious sacrifice. He did so, he said, because he received a command from God that this sacrifice was necessary to prepare for “Zion” and the “Second Coming.” I disagree with our Court's decision and reasoning in section II.D.3. above rejecting Lundgren's ineffective assistance of counsel claim based on trial counsel's inexplicable failure to raise the defense of insanity. Other than insanity Lundgren had no defense. In many similar “deific decree” cases in which a “delusional” person like Lundgren professed to be following God's command to kill, defense lawyers have almost uniformly entered an insanity plea-and the jury has accepted the defense in some of the cases. As we shall see, even the prosecutors in the case could not understand why Lundgren's lawyers did not enter such a defense. I will also apply Ohio's definition of insanity in light of a mental illness theory counsel overlooked in bypassing his only available defense. I will then show why, in light of these considerations, the conduct of Lundgren's counsel was manifestly ineffective. The writ of habeas corpus should have issued in this case to require a new trial in which Lundgren would be allowed to present the insanity defense before the jury.

 



Jeffrey Don Lundgren

 

 

 
 
 
 
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