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Michael
Wayne RYAN
Classification: Murderer
Characteristics:
White supremacist - Cult leader - Ritualistic torture - Sexual
abuse
Number of victims: 2
Date of murders: March/April
29, 1984
Date of arrest:
August 18, 1984
Date of birth:
August 3, 1948
Victims profile:
Luke Stice, 5 /
James Thimm
Method of murder: Beating - Torture
Location: Richardson County, Nebraska, USA
Status:
Michael W. Ryan (born 3 August 1948) was an
American white supremacist, and murderer.
Ryan was the leader of a small, anti-government and
group that occupied a compound near Rulo, Nebraska, in the early
1980s. Ryan and his group of followers had loose ties to Posse
Comitatus, and links to the Christian Identity movement. Ryan's
teachings included the supremacy of the white race, the inherent evil
of Jews (antisemitism) and a distrust of all established earthly
authority, including governments.
Ryan and his followers carried out months of
burglary, under cover of night. Reselling the items obtained by theft,
they supported the activities of the group and built up weapons and
supplies they believed would be needed for the imminent battle of
Armageddon, which they assumed would occur in the form of a race war.
Ryan was arrested in 1982 after reports, and a
criminal investigation indicated that he had abused and killed 5 year
old Luke Stice, and later killed fellow member James Thimm, after he
had tortured him for several days.
Ryan employed the use of "the arm test" in
establishing whether or not the victims in the case were to be
tortured. As Ryan was implicated to be the leader of the movement, he
was noted to employ the measure to determine what to do with
individuals inside the cult.
Ryan was tried, convicted and sentenced to death on
12 September 1985. Ryan claims to have been in direct contact with God
and vowed to spend his days in prison rewriting the Bible, but since
has recanted on both. Ryan is currently in the Nebraska Department of
Correctional Services on death row, awaiting execution.
Wikipedia.org
Michael Ryan-Rulo, NE Cult Kill
Outside Rulo, Nebraska, in August 1985, two bodies
were unearthed on an 80-acre farm associated with the white
supremacist Christian identity movement. One was five-year-old Luke
Stice and the other James Thimm, 26. There was evidence that both had
been tortured before they were killed, writes Daniel Levitas in "The
Terrorist Next Door." In fact, they'd been subjected to extreme
brutality by a man who wanted to assert his authority.
High school dropout and trucker Michael
Wayne Ryan was arrested for these crimes and the police
learned that he had acted as a prophet, proclaiming the end times. He
had a following among people seeking a "paramilitary salvation," so
violence was not unknown to his brand of religion.
Among his cult members was Luke's father, Rick
Stice, who managed the farm. Rick was attracted to Ryan's ideas
because he and his wife were struggling financially, and Sondra soon
died from cancer. Stice opened his farm to Ryan's group, but soon
became the focus of Ryan's jealousy. Ryan demoted Stice to "slave"
status.
Around 21 people inhabited the various buildings, a
large percentage of them children. They stockpiled weapons and
vitamins, urged on by Ryan, who called them the "true Israelites" and
assured them that the final Armageddon would take place there in
Nebraska. James Thimm had been an avid follower, so he'd come to the
farm with a friend, thirty-year-old David Andreas. Ryan grew angry
with Thimm as well and relegated him to a lesser status. He had to do
what his superiors told him.
To torment Stice, Ryan became abusive toward Luke.
He penned "666" in red on the boy's forehead and insisted he was a
child of Satan. Stice fell into line, whipping and beating Luke as
Ryan commanded. But after a while, Stice briefly left the farm. When
he returned, he was chained to the porch. Ryan also ordered him to
sexually abuse Luke, and Stice complied. He was then ordered to
sodomize Thimm and accept the same treatment, which he did.
Still, Ryan was not satisfied. One day he hit Luke
hard, breaking his neck and killing him. He forced Stice to dig a
grave, and in the midst of this task, Stice once more fled, leaving
two of his children behind.
Thimm did not get away, but instead came in for a
terrible course of abuse. He was shot in the face and then tortured
for several days before he finally died. Levitas writes that he was
chained in a hog shed and forced to have sex with a goat, even though
he suffered from a serious facial wound. Then several of the men, at
Ryan's command, took a shovel handle and repeatedly raped him anally
before Ryan whipped and kicked him, breaking his arm. The next day, as
he still breathed, his legs were broken and skin was stripped from his
body. Ryan them crushed Thimm's chest by stomping on it, which finally
killed the man. Ryan ordered one of the others to shoot Thimm in the
head for good measure before laying him out in an unmarked grave.
On June 25, 1985, police descended on the farm,
finding illegal weapons and ammunition as well as stolen goods. The
cult members were arrested. It took several months, but Stice became
an FBI informant, helping to get the goods on Ryan. The bodies were
exhumed and Ryan was arrested. When Stice testified in court, he was
asked why he had participated in abusing his son. He said, "I thought
that was what was to be done."
Ryan was convicted of second-degree murder for
Luke's death and first-degree for Thimm. He received the death penalty.
Nebraskarules.tripod.com
Supreme Court of Nebraska
July 21, 1995
STATE OF NEBRASKA, APPELLEE,
v.
MICHAEL W. RYAN, APPELLANT.
Appeal from the District Court for Richardson
County: Dewayne Wolf, Judge, Retired.
Hastings, C.j., White, Caporale, Fahrnbruch,
Lanphier, Wright, and Connolly, JJ.
SYLLABUS BY THE COURT
1. Postconviction: Proof: Appeal and Error. A
criminal defendant seeking postconviction relief has the burden of
establishing a basis for such relief, and the findings of the district
court will not be disturbed unless clearly erroneous.
2. Postconviction: Evidence: Witnesses. In an
evidentiary hearing at a bench trial provided by Neb. Rev. Stat. §
29-3001 et seq. (Reissue 1989 & Cum. Supp. 1994) for postconviction
relief, the postconviction trial Judge, as the trier of fact, resolves
conflicts in evidence and questions of fact, including witness
credibility and weight to be given a witness' testimony.
3. Postconviction: Effectiveness of Counsel: Proof.
When a defendant in a postconviction motion alleges a violation of his
constitutional right to effective assistance of counsel as a basis for
relief, the standard for determining the propriety of the claim is
whether the attorney, in representing the accused, performed at least
as well as a lawyer with ordinary training and skill in the in the
area. Further, the defendant must make a showing of how the defendant
was prejudiced in the defense of his case as a result of his
attorney's actions or inactions.
4. Constitutional Law: Effectiveness of Counsel:
Proof. To sustain a claim of ineffective assistance of counsel as a
violation of the Sixth Amendment to the U.S. Constitution and thereby
obtain reversal of a defendant's conviction, the defendant must show
that (1) counsel's performance was deficient and (2) such deficient
performance prejudiced the defense, that is, demonstrate a reasonable
probability that but for counsel's deficient performance, the result
of the proceeding would have been different.
5. Rules of the Supreme Court: Appeal and Error.
Nebraska Supreme Court rules provide that the brief of an appellant
shall contain, among other things, a separate, concise statement of
each error a party contends was made by the trial court, together with
the issues pertaining to the assignments of error. Each assignment of
error shall be separately numbered and paragraphed, bearing in mind
that consideration of the case will be limited to errors assigned and
discussed.
6. Expert Witnesses: Effectiveness of Counsel:
Proof. Expert evidence is generally not admissible as proof that the
assistance of counsel in a criminal case was ineffective.
7. Appeal and Error. An issue not presented to or
passed upon by the trial court is not an appropriate issue for
consideration upon appeal.
8. Constitutional Law: Death Penalty. The death
penalty by electrocution as punishment for crime is not a cruel and
unusual punishment within the meaning of the state and federal
Constitutions.
9. Effectiveness of Counsel: Presumptions. In
determining whether a trial counsel's performance was deficient, there
is a strong presumption that such counsel acted reasonably.
10. Effectiveness of Counsel: Appeal and Error.
When reviewing a claim of ineffective assistance of counsel, an
appellate court will not second-guess reasonable strategic decisions
by counsel.
11. Postconviction: Appeal and Error. From a
procedural standpoint, a motion for postconviction relief cannot be
used to secure review of issues which were or could have been
litigated on direct appeal, no matter how those issues may be phrased
or rephrased.
12. Aiding and Abetting. The common-law distinction
between a principal and an aider and abettor has been abolished in
Nebraska.
13. Aiding and Abetting. A person who aids, abets,
procures, or causes another to commit any offense may be prosecuted
and punished as if he were the principal offender.
14. Aiding and Abetting: Convictions. An aider and
abettor can be convicted of any crime, even a greater offense than the
principal, provided the conviction is supported by the evidence of the
facts and the defendant's state of mind.
15. Jury Instructions: Intent. A special diminished
capacity instruction need not be given where the jury had otherwise
been properly instructed that intent was an element of the crime
charged.
16. Pleas: Effectiveness of Counsel: Proof. In
order to satisfy the prejudice requirement in the context of a plea, a
defendant must show that there is a reasonable probability that but
for counsel's errors, the defendant would not have pled and would have
insisted upon going to trial.
17. Sentences: Evidence. In the proceeding for
determination of sentence, evidence may be presented as to any matter
that the court deems relevant to sentence.
18. Sentences: Evidence. The sentencing phase is
separate and apart from the trial phase and the traditional rules of
evidence may be relaxed following conviction so that the sentencing
authority can receive all information pertinent to the imposition of
sentence.
19. Sentences: Evidence. A sentencing court has
broad discretion as to the source and type of evidence and information
which may be used in determining the kind and extent of the punishment
to be imposed.
20. Constitutional Law: Death Penalty. A death
sentence is a unique penalty which implicates the 8th and 14th
Amendments to the U.S. Constitution.
21. Sentences: Death Penalty: Aggravating and
Mitigating Circumstances. Whenever a State seeks to impose the death
penalty, the discretion of the sentencing body must be suitably
directed and limited so as to minimize the risk of wholly arbitrary
and capricious action. The sentencing authority's discretion must be
guided and channeled by requiring examination of specific factors that
argue in favor of or against imposition of the death penalty, thus
eliminating total arbitrariness and capriciousness in its imposition.
22. Homicide: Aggravating and Mitigating
Circumstances. Torture may be found where the victim is subjected to
serious physical, sexual, or psychological abuse before death.
23. Statutes: Sentences: Courts. A state supreme
court may salvage a facially vague statute by construing it to provide
the sentencing body with objective criteria for applying the statute.
24. Constitutional Law: Aggravating and Mitigating
Circumstances. The first prong of aggravating circumstance (1)(d) of
Neb. Rev. Stat. § 29-2523 (Reissue 1989), narrowed by this court's
decisions defining the phrase "especially heinous, atrocious, cruel"
to mean unnecessarily torturous to the victim, satisfies
constitutional requirements.
PER CURIAM.
Michael W. Ryan, who was convicted of first degree
murder and sentenced to death for the torture slaying of James Thimm,
appeals an order of the trial court denying him postconviction relief.
We affirm the order of the district court denying
postconviction relief to Ryan.
I. STANDARD OF REVIEW
A criminal defendant seeking postconviction relief
has the burden of establishing a basis for such relief, and the
findings of the district court will not be disturbed unless clearly
erroneous. State v. Williams,
247 Neb. 931,
531 N.W.2d 222 (1995); State v.
Barrientos,
245 Neb. 226,
512 N.W.2d 144 (1994).
In an evidentiary hearing at a bench trial provided
by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1989 & Cum. Supp. 1994)
for postconviction relief, the postconviction trial Judge, as the
trier of fact, resolves conflicts in evidence and questions of fact,
including witness credibility and weight to be given a witness'
testimony. State v. Nielsen,
243 Neb. 202,
498 N.W.2d 527 (1993); State v. Carter,
241 Neb. 645,
489 N.W.2d 846 (1992).
When a defendant in a postconviction motion alleges
a violation of his constitutional right to effective assistance of
counsel as a basis for relief, the standard for determining the
propriety of the claim is whether the attorney, in representing the
accused, performed at least as well as a lawyer with ordinary training
and skill in the in the area. Further, the defendant must make a
showing of how the defendant was prejudiced in the defense of his case
as a result of his attorney's actions or inactions. State v. Williams,
supra; State v. Nielsen, supra.
To sustain a claim of ineffective assistance of
counsel as a violation of the Sixth Amendment to the U.S. Constitution
and thereby obtain reversal of a defendant's conviction, the defendant
must show that (1) counsel's performance was deficient and (2) such
deficient performance prejudiced the defense, that is, demonstrate a
reasonable probability that but for counsel's deficient performance,
the result of the proceeding would have been different. State v.
Clausen,
247 Neb. 309,
527 N.W.2d 609 (1995).
II. FACTS
The sordid facts of this case are fully set forth
in this court's opinion rendered as a result of Ryan's direct appeal.
See State v. Ryan,
233 Neb. 74,
444 N.W.2d 610 (1989), cert. denied
498 U.S. 881,
111 S. Ct. 216, 112 L. Ed. 2d 176 (1990)
(Ryan I). We have included only those facts necessary to an
understanding of the issues in this appeal.
The facts, as reflected by the record, are as
follows:
During the summer and fall of 1984, Ryan and
several other men and women, along with 10 of their children, moved to
a farm owned by Ora Richard (Rick) Stice located near Rulo, Nebraska.
The group was united by their common interest in the teachings of a
certain Rev. James Wickstrom. Group members studied the Bible and
referred to God as "Yahweh."
The group also believed that Ryan and other members
of the group possessed the spirits of archangels and that the infant
of a female group member who became pregnant while at the farm was
divinely conceived. Members of the group considered Ryan to be the
leader and obeyed his orders without question. Ryan sometimes referred
to himself as "king." Ryan claimed to hear "Yahweh" speak directly to
him and allegedly saw visions in the sky. He further claimed to know
what other group members were thinking and to be able to predict
things which later came true.
Although Ryan was legally married to Ruth Ryan, he
also "married" four female group members, three of whom were
themselves married to other men, claiming that this was done at the
direction of "Yahweh."
Every detail of every activity at the farm was
determined by consulting "Yahweh" through a method called the "arm
test." To perform the arm test, one group member would hold his or her
right arm out, and a second group member would place one hand on the
shoulder and one hand on the wrist of the first group member, exerting
downward pressure on the arm. The second group member would then
question "Yahweh." If "Yahweh's" answer was yes, the arm stayed up; if
the answer was no, the arm would yield to the pressure and fall. Group
members were permitted to use the arm test only with Ryan's permission.
The group also had strong survivalist and
paramilitary characteristics. Large amounts of food, ammunition, and
weapons, including fully automatic weapons, were stockpiled on the
farm. Each of the men in the group was assigned a military rank and
was able to work up to the rank of general. Those men included Ryan's
son, Dennis Ryan, who was 15 years old at the time these incidents
occurred, but who was treated as a man. The other men on the farm, in
addition to Michael and Dennis Ryan, included Rick Stice, James Thimm,
Timothy Haverkamp, David Andreas, and James Haverkamp.
Early in 1985, Thimm, Stice, and Stice's 5-year-old
son, Luke, fell out of favor with "Yahweh" for various reasons and
were demoted by Michael Ryan to slave status. After their demotion,
the three were moved to a separate house on the farm where they were
subjected to physical, psychological, and sexual abuse.
In March, while Ryan was temporarily absent, Rick
Stice escaped from the farm and returned 7 or 8 days later. After that
time, the treatment of Stice and Thimm worsened. At night, the two men
were sometimes chained and were forced to sleep on a porch. If Stice
and Thimm went outside during the daytime, they were guarded by the
other men to prevent them from running away.
Late in March, after Rick Stice had returned, Ryan
shoved 5-year-old Luke Stice, causing him to strike his head and lose
consciousness. No medical help was sought for the child, and he died
later that evening. Luke Stice was buried on the farm property. Early
in April, Rick Stice again escaped from the farm, and he did not
return.
Ryan's abuse of Thimm culminated in one final,
torturous episode near the end of April. On April 28, Ryan accused
Thimm of blaspheming "Yahweh" and of trying to poison the group by
putting household cleaner on a wild turkey that was being stored in
the refrigerator. Ryan launched into a brutal "discipline" of Thimm
dictated by "Yahweh" through the arm test. Michael and Dennis Ryan,
Andreas, and Timothy and James Haverkamp all participated in these
events.
Thimm was taken to a hog confinement building,
where, over a period of 2 days, the men took turns sexually assaulting
Thimm by penetrating his anus with a shovel handle until his bowel
ruptured, whipping Thimm on his back and abdomen, and shooting off the
fingertips of Thimm's left hand. (The trial court stated that Thimm
was "sodomized" in reference to the men penetrating Thimm's anus with
the shovel handle. See Neb. Rev. Stat. § 28-318(6) (Reissue 1989),
defining sexual penetration as including "any intrusion . . . of . . .
any object manipulated by the actor into the . . . anal opening[] of
the victim's body." See, also, People v. Merriweather,
447 Mich. 799,
527 N.W.2d 460 (1994), in which the
Michigan Supreme Court referred to the insertion of an object into a
victim's anus as sodomy.) Thimm was forced to disrobe for this abuse
and was chained or tied with baling wire during much of this time.
Michael Ryan also broke Thimm's arm, permitted Dennis Ryan to break
Thimm's left leg, and directed Timothy Haverkamp in breaking Thimm's
right leg. Michael Ryan then demonstrated to Timothy Haverkamp and
Dennis Ryan how to skin a human being by using a razor blade and a
pair of pliers to skin part of Thimm's leg.
Ultimately, Michael Ryan stomped on Thimm's chest,
breaking several of his ribs, and Thimm died on April 29, 1985.
Thimm's body was placed inside a sleeping bag and buried in an
unmarked grave on the farm.
On June 25, 1985, Andreas and James Haverkamp were
arrested for stealing a sprayer rig. While in jail, those two men
decided to notify the authorities of events which had taken place on
the Rulo farm. On August 17 and 18, the farm was searched by a team of
law enforcement officers, and the bodies of 5-year-old Luke Stice and
Thimm were exhumed.
Michael Ryan was subsequently charged with two
counts of first degree murder for the killings of Luke Stice and Thimm.
Dennis Ryan was charged with first degree murder for the killing of
Thimm. Timothy Haverkamp pled guilty to second degree murder before
Michael Ryan's trial and testified for the State in that trial.
Andreas and James Haverkamp pled guilty to lesser charges before
Ryan's trial and also testified for the State.
Ryan was convicted of Thimm's first degree murder
at a jury trial and was subsequently sentenced to death. His
conviction and sentence were affirmed by this court. See Ryan I. After
Ryan was found guilty, but before he was sentenced, he pled no contest
to a reduced charge of second degree murder for the killing of Luke
Stice and was sentenced to life imprisonment on that charge.
We note that Ryan was represented at trial by
Richard Goos, an experienced criminal defense attorney from the
Lancaster County Public Defender's office, and Louis Ligouri, an
attorney in private practice, both of whom were appointed by the trial
court. Goos was first employed by the Lancaster County Public
Defender's office in 1971. He testified at Ryan's postconviction
hearing that he had represented approximately nine first degree murder
defendants, including two on whom the State sought to impose the death
penalty, before he was appointed to represent Ryan.
Two of the nine first degree murder defendants were
convicted as charged and sentenced to death. Of the remaining seven
first degree murder defendants, Goos testified, three were convicted
of second degree murder, three were convicted of manslaughter, and one
was acquitted. Goos also testified that prior to the time he
represented Ryan, he had handled three or four cases in which an
insanity defense was asserted.
After trial and before sentencing, the court
terminated Ligouri's services and soon thereafter appointed Bruce
Dalluge to assist Goos in preparation for Ryan's sentencing hearing.
Dalluge represented Ryan on his direct appeal.
On December 17, 1991, Ryan filed a second amended
motion for postconviction relief, requesting that his conviction and
sentence be set aside as being obtained in violation of his federal
and state constitutional rights. Throughout the postconviction
proceedings, Ryan was represented by court-appointed counsel, Robert
Creager. In the postconviction proceedings, Ryan alleged, in 16 claims
containing numerous subparts, that his conviction and sentence were
infirm for the following reasons: (1) constitutional errors appearing
on the trial record, (2) constitutional errors on the record on direct
appeal, (3) ineffective assistance of trial counsel, and (4)
prosecutorial misconduct. Ryan also filed a pretrial statement of
issues, listing 36 "issues," in the district court. At some point, the
issue of cumulative error was also raised as issue 37.
The district court granted an evidentiary hearing
on 25 of the 36 issues listed; retained 7 issues for the purpose of
argument, limiting evidence to the record made at trial and sentencing;
and struck 4 of the issues. An evidentiary hearing was held, following
which the district court entered an order denying Ryan postconviction
relief.
Ryan timely appealed to this court, making 14
assignments of error on appeal. He also raises in this court the 37
issues which were before the district court.
III. ASSIGNMENTS OF ERROR
Ryan contends that the postconviction trial court
erred in (1) prohibiting the use of expert testimony to establish
claims of ineffective assistance of counsel; (2) striking several of
Ryan's claims; (3) failing to find that Ryan had been denied effective
assistance of counsel at his trial with respect to advisement of all
available defenses, the assertion of the insanity defense, the
assertion of the insanity defense over Ryan's objection, the failure
to object to a joint trial with Dennis Ryan, and Michael Ryan's
decision to testify at trial; (4) failing to find that Ryan had been
denied effective assistance of counsel at sentencing because counsel
failed to respond to false testimony and permitted Ryan to testify at
trial; (5) failing to find that Ryan had been denied effective
assistance of counsel in connection with the preparation and
presentation of issues at sentencing, including development of all
statutory and nonstatutory mitigating circumstances, meeting statutory
aggravating circumstances, making all available constitutional
challenges to the death penalty, and formulating a reasonable trial
strategy with respect to sentencing issues; (6) failing to find that
aggravating circumstance (1)(d) of Neb. Rev. Stat. § 29-2523 (Reissue
1989) was unconstitutional on its face and as applied to Ryan; (7)
failing to find that aggravating circumstance (1)(a) of § 29-2523 was
unconstitutional on its face and as applied to Ryan; (8) failing to
find that Ryan's constitutional rights were violated at sentencing by
the lack of standards for the impaneling of a three-Judge panel, the
trial Judge's refusal to recuse himself, and the trial Judge's refusal
to convene a three-Judge panel; (9) failing to find that the evidence
was insufficient to support the application of statutory aggravating
circumstances (1)(d) and (1)(a); (10) failing to find that Ryan was
denied his right to a statutory proportionality review on appeal; (11)
failing to find that deposition misconduct by the prosecution deprived
Ryan of his rights to due process of law; (12) failing to find that
Ryan had been deprived of his right to counsel by the firing of one of
his trial attorneys; (13) failing to find that the cumulative effect
of all the errors in this case deprived Ryan of a fair trial; and (14)
failing to grant Ryan postconviction relief.
The 37 issues raised by Ryan in his brief, many of
which he concedes are not supported by the record or have been
adequately dealt with on direct appeal and are only being raised for
the purpose of federal appellate review, are as follows: (1)
unconstitutionality of aggravating circumstance (1)(d) as applied to
Ryan, (2) unconstitutionality of aggravating circumstance (1)(a) as
applied to Ryan, (3) unconstitutional reliance of aggravating
circumstance (1)(a) on "vicarious" findings, (4) proportionality
review, (5) lack of standards for impaneling a three-Judge panel, (6)
unconstitutionality of death by electrocution, (7) trial Judge's
refusal to recuse himself from sentencing, (8) insufficient evidence
to support aggravating circumstance (1)(d), (9) insufficient evidence
to support aggravating circumstance (1)(a), (10) failure to advise on
all possible defenses, (11) failure to advise on insanity defense,
(12) unreasonable assertion of the insanity defense, (13) failure to
object to joint trial, (14) failure to advise on testifying at trial
and sentencing, (15) deposition misconduct, (16) failure to call
witnesses, (17) failure to cross-examine one of the female cult
members, (18) failure to reply to false trial testimony of defense
psychiatric expert regarding an army induction incident, (19)
discharge of Ligouri, (20) failure to conduct a voir dire examination
of Judge regarding a three-Judge sentencing panel, (21) failure to
consult with Ryan in preparation for sentencing, (22) failure to
develop all statutory and nonstatutory mitigating circumstances, (23)
failure to meet the burden of proof on mitigating circumstances, (24)
entry of a no contest plea in the Luke Stice case, (25) failure to
object to sentencing evidence, (26) prosecutorial misconduct, (27)
reasonable doubt instruction, (28) failure to object to the reasonable
doubt instruction, (29) state of the appellate record, (30) judicial
misconduct during trial, (31) judicial misconduct at sentencing, (32)
judicial interference with right to counsel, (33) failure to object to
a jury instruction, (34) violation of sequestration order by experts,
(35) jury misconduct (juror falling asleep), (36) jury misconduct (juror
reading newspaper), and (37) cumulative effect of errors.
IV. ANALYSIS
Before proceeding further, we observe that analysis
of this case is made needlessly confusing for both the court and
opposing counsel by Ryan's nonconformist approach to the organization
of the errors of the district court on appeal to this court. Supreme
Court rules provide that the brief of an appellant shall contain,
among other things,
separate, concise statement of each error a party
contends was made by the trial court, together with the issues
pertaining to the assignments of error. Each assignment of error shall
be separately numbered and paragraphed, bearing in mind that
consideration of the case will be limited to errors assigned and
discussed.
(Emphasis supplied.) Neb. Ct. R. of Prac. 9D(1)d (rev.
1992).
Nonetheless, Ryan has presented the court with a
voluminous brief which lists not only 14 assignments of error but also
an additional 37 issues on appeal. We note that Ryan has brought all
37 issues which were before the district court before this court for
further consideration. Some of these issues are subsumed in Ryan's 14
assignments of error, some appear to stand alone, and yet others have
been abandoned for various reasons.
Because of the seriousness of the offense of which
Ryan has been convicted, we have given Ryan the benefit of the doubt
in order to fully address all issues except those which have been
clearly abandoned. In addition, we exercise our option to review the
record for plain error. See Neb. Rev. Stat. § 25-1919 (Cum. Supp.
1994). However, Ryan and his counsel should not mistake the court's
tolerance as approval of their creative approach to brief writing in
clear violation of the court's rules.
We now address the assignments of error raised by
Ryan.
1. Expert Testimony
In his first assignment of error, Ryan claims that
the postconviction court erred in prohibiting the use of expert
testimony to establish his claim of ineffective assistance of trial
counsel. He concedes that this court has held that expert evidence is
generally not admissible as proof that the assistance of counsel in a
criminal case was ineffective. See, e.g, State v. Thomas,
236 Neb. 553,
462 N.W.2d 862 (1990); State v. Joubert,
235 Neb. 230,
455 N.W.2d 117 (1990), cert. denied
499 U.S. 931,
111 S. Ct. 1338, 113 L. Ed. 2d 269
(1991); State v. Gagliano,
231 Neb. 911,
438 N.W.2d 783 (1989); State v. Ohler,
219 Neb. 840,
366 N.W.2d 771 (1985).
However, we need not reach this issue, because the
record fails to show that Ryan attempted at any time to offer expert
testimony to establish his claim of ineffective assistance of trial
counsel. An issue not presented to or passed upon by the trial court
is not an appropriate issue for consideration upon appeal. State v.
Tanner,
233 Neb. 893,
448 N.W.2d 586 (1989); State v. Brockman,
231 Neb. 982,
439 N.W.2d 84 (1989); State v. Narcisse,
231 Neb. 805,
438 N.W.2d 743 (1989). This assignment of
error is without merit.
2. Striking Claims
Ryan next assigns as error the postconviction
court's striking of several of Ryan's claims prior to his hearing. The
record reflects that the postconviction court struck issue 6, which
claimed that death by electrocution is cruel and unusual punishment in
violation of the Eighth Amendment to the U.S. Constitution and Neb.
Const. art. I, § 9; issues 27 and 28, challenging the reasonable doubt
jury instruction; and issue 29, relating to the state of the appellate
record in Ryan's direct appeal.
Ryan has since conceded both in his reply brief and
at oral argument that issues 27 and 28 cannot form the basis for
relief because the U.S. Supreme Court has recently upheld Nebraska's
reasonable doubt instruction. See Victor v. Nebraska, U.S. ,
114 S. Ct. 1239, 127 L. Ed. 2d 583
(1994). Ryan likewise has conceded that issue 29, relating to the
complex and confusing nature of the appellate record, lacks legal
merit. However, Ryan continues to maintain that the postconviction
court erred in striking issue 6 on the constitutionality of
electrocution as punishment for crime.
We have held that "the death penalty by
electrocution as punishment for crime is not a cruel and unusual
punishment within the meaning of the state and federal Constitutions."
State v. Alvarez,
182 Neb. 358, 366,
154 N.W.2d 746, 751 (1967), cert. denied
393 U.S. 823,
89 S. Ct. 81, 21 L. Ed. 2d 94 (1968).
More recently, the U.S. District Court for the District of Nebraska
has held that death by electrocution does not amount to impermissible
cruel and unusual punishment. Harper v. Grammer,
654 F. Supp. 515 (1987). There is no
legal merit to issue 6.
There being no legal merit to any of the four
claims stricken by the postconviction court, Ryan has suffered no
prejudice by the court's actions. This assignment of error affords no
basis for postconviction relief.
3. Ineffectiveness of Counsel
In assignment of error 3, Ryan asserts that the
postconviction court erred in failing to find that Ryan had
ineffective assistance of counsel. Specifically, counsel's alleged
ineffectiveness, raised in issues 10 to 14, includes the assertions
that counsel (1) failed to advise Ryan on all possible defenses, (2)
failed to advise him on the insanity defense, (3) unreasonably
asserted the insanity defense, (4) failed to object to a joint trial
with Ryan's son, Dennis, and (5) failed to advise Ryan on testifying
at trial and at the sentencing hearing. We address each of these five
issues seriatim.
(a) Failure to Advise on All Possible Defenses
In issue 10, Ryan asserts that his defense counsel
failed to adequately advise him of all possible defenses to the crimes
with which he was charged and failed to provide him with a
professional assessment of the consequences of the various defense
options.
At the postconviction hearing, Ryan testified that
in meetings with his trial attorneys, Goos and Ligouri, the only
options ever discussed with him were the possibility of a plea bargain
and an insanity defense. Ryan argues that the defense of factual
innocence, or guilt of the lesser-included offenses of second degree
murder or manslaughter were available to him, as well as the option of
putting on no defense.
Goos testified at the postconviction hearing that
he and Ligouri considered resting at the end of the State's case, but
that he rejected that possibility because he considered insanity to be
not only a valid defense, but the only viable defense available to
Ryan. In his opinion, other defenses were not available to Ryan. For
example, Goos stated, there was no evidence to support self-defense as
a potential defense. The record reflects that Goos did, however, argue
to the jury in his closing statement that the element of malice was
lacking in Ryan's actions and that Ryan should not be found guilty of
first degree murder.
Ligouri testified at the postconviction hearing
that he and Goos had specifically discussed with Ryan, on more than
one occasion, the possibility of a second degree murder or
manslaughter conviction, but that the predominant defense discussed
was the insanity defense. Ligouri further testified that the
possibility of resting after the State's case was discussed between
himself and Goos, as well as with Ryan. Ligouri believed that he and
Goos had given Ryan a thorough explanation of the possible defenses
that could have been asserted in his case.
Our review of the evidence shows that a defense of
factual innocence would not have been successful in this case. Even
without Ryan's own testimony about the acts leading to Thimm's death,
there were four eyewitnesses to most of these acts, and at least two
eyewitnesses to the rest. These eyewitnesses each testified to Ryan's
sodomizing, whipping, and shooting of Thimm. The pathologists for both
Ryan and the State testified that either of these first two acts could
have been fatal to Thimm. There was also testimony from Ryan and other
witnesses that "Yahweh" desired that Thimm die before 6 p.m. on the
day of his death.
The conflict in testimony as to whether Goos and
Ligouri discussed possible defenses with Ryan was resolved adversely
to Ryan by the postconviction trial Judge, who, as trier of fact,
resolves such conflicts in the evidence. That Judge's finding is not
clearly erroneous. Moreover, implicit in the jury's verdict finding
Ryan guilty of first degree murder is its rejection of factual
innocence, as well as the lesser-included offenses of second degree
murder and manslaughter, upon which the jury was instructed. Therefore,
even assuming that his trial counsel failed to adequately discuss
possible defenses with him, Ryan suffered no prejudice thereby. In
passing, we note that the postconviction Judge was a Judge other than
the one who presided over Ryan's jury trial and sentencing.
(b) Failure to Advise on Insanity Defense
Ryan also claims, in issue 11, that trial counsel
failed to advise him on the implications of the insanity defense.
According to Ryan, the only thing he was told about the insanity
defense was that it was the only way to "keep out of the electric
chair."
Both Goos and Ligouri testified at the
postconviction hearing that they discussed the insanity defense
repeatedly and at length with Ryan. Ligouri testified that Ryan was
fully apprised of the consequences of asserting an insanity defense,
including that Ryan would be required to submit to examination by a
State psychiatrist, that information would be available to the State
through the psychiatrist that would be otherwise unavailable to the
State, that to some extent Ryan would be waiving his privilege against
self-incrimination, and that evidence of some uncharged misconduct
would become admissible at trial.
Again, the postconviction trial Judge, as the fact
finder, resolved this conflict in evidence against Ryan, and it was
not clearly erroneous for him to do so.
(c) Assertion of Insanity Defense
Ryan contends in issue 12 that his trial counsel
unreasonably asserted an insanity defense over his objection, in
violation of the Sixth Amendment to the U.S. Constitution and article
I, § 11, of the Nebraska Constitution.
Although Ryan testified at his postconviction
hearing that he was adamantly opposed to the insanity defense and
objected repeatedly to its assertion, he admitted that he cooperated
with a psychiatrist who examined him on his own behalf, as well as one
who examined him for the State. Ryan further conceded that at a
pretrial thing" at Falls City, he told his attorneys to "do whatever
you think you've got to do, but . . . I'm not going to go any further
with your insanity crap."
During direct examination of Ryan at trial, the
following exchange took place between Ryan and Goos:
Q: Do you think that you are crazy?
A: Me?
Q: Yes.
A: No, I don't.
Q: Do you think you were crazy back when James
Thimm was killed?
A: No. I was doing what I felt we was told to do
whether it was what I wanted or not.
Q: You know that Mr. Ligouri and I filed a notice
of insanity defense in this case?
A: Yeah, and you know I argued with you about it.
Q: Well, were we successful finally in getting you
to agree that we put the question to the jury even though you objected
to our doing so?
A: I finally told you, "If that's what you wanted
to do, do it, " but it was at my objection, and that's what you done.
(Emphasis supplied.)
Goos testified that he had no memory of Ryan
repeatedly stating to trial counsel that he did not wish to raise the
insanity defense. Rather, Goos testified that Ryan was "very
cooperative" with the insanity defense and made no objection to it
even after the trial was over.
Ligouri testified that while Ryan was not in favor
of the insanity defense, he did consent to its use in his behalf.
Ligouri stated that he found Ryan to be a cooperative client who
entrusted the decision on the use of the insanity defense to his
defense attorneys.
Both attorneys testified that Ryan cooperated with
the psychiatrists utilized in connection with the case. The
postconviction trial Judge, in refusing Ryan relief on this issue,
stated that Ryan "objected to being called crazy, but authorized his
counsel to use the defense."
A case directly on point with the present case is
Gacy v. Welborn,
994 F.2d 305 (7th Cir. 1993). In that
case, the defendant was convicted of the serial killing of 33 young
men whom he lured to his home for homosexual liaisons. Gacy restrained
his victims, strangled them to death, and then disposed of most of the
bodies in the crawl space of his home.
Gacy relied on an insanity defense, but was
convicted of 33 counts of murder and was sentenced to death for 12 of
the killings. During the course of the trial, Gacy announced to the
court that he was "'against the insanity defense from the beginning.'"
994 F.2d at 317.
In his petition for a writ of habeas corpus, Gacy
claimed that his defense counsel had raised the insanity defense over
his objections, thus depriving him of the ability to control decisions
vital to his defense. The U.S. Court of Appeals for the Seventh
Circuit rejected this argument, stating:
As for the contention that counsel barged ahead
with an unwanted insanity defense . . . the evidence gets in the way.
Gacy cooperated with extended interviews and tests by six experts for
the defense and another six for the state, not the behavior you would
expect of a person who wanted to stand on a plain denial of guilt.
994 F.2d at 317.
We note that two psychiatrists and a clinical
psychologist testified on Ryan's behalf at trial. Dr. William S. Logan,
a psychiatrist, had conducted two interviews with Ryan, the first
lasting approximately 8 hours and the second lasting approximately 1
1/2 hours. Dr. Logan testified that there were only one or two times
when Ryan refused to answer his questions. He stated that he
personally did not do any psychological testing of Ryan.
The other psychiatrist who testified on Ryan's
behalf, Dr. Maurice K. Temerlin, had interviewed Ryan for
approximately 3 1/2 hours. Although Dr. Temerlin testified that Ryan
was initially tense and angry, Dr. Temerlin never indicated that Ryan
had failed to cooperate with the interview. In fact, both Dr. Logan
and Dr. Temerlin were able to obtain enough information from Ryan to
evaluate him and to form a medical opinion as to his psychiatric
condition.
Dr. Robert Schulman, a clinical psychologist who
testified in Ryan's behalf, testified that he had conducted a 4-hour
interview with Ryan in order to perform a battery of intellectual and
personality tests. According to Dr. Schulman, he used at least eight
separate evaluation techniques, including a Rorschach test, on Ryan.
He was also able to arrive at a diagnostic Conclusion on the basis of
his testing.
Dr. Emmett M. Kenney, a psychiatrist, evaluated
Ryan for the State. Dr. Kenney examined Ryan for 1 hour 20 minutes and
also relied on the report of a Dr. Strider, a psychologist who had
evaluated Ryan upon Dr. Kenney's recommendation. Dr. Kenney testified
that Ryan refused to talk to him about some things, including the
events surrounding Thimm's death. Dr. Kenney also testified that
according to Dr. Strider's report, one psychological test of Ryan was
aborted because Ryan refused to follow the instructions, and another,
the Rorschach or inkblot test, was invalid because Ryan did not
provide a sufficient number of responses for the test to be
interpreted.
Ryan testified at his postconviction hearing that
he did, in fact, agree to talk to Dr. Logan, although he claimed that
he was uncooperative in Dr. Logan's testing of him. According to Ryan,
he "took part of them and got up and walked out. . . . They was
looking at ink blots and things like this, and they had one that had .
. . hundreds of questions, and I done part of them and that was the
end of it. I just left."
Attorney Ligouri testified that in his opinion,
Ryan was cooperative with both Dr. Logan and Dr. Kenney. He did not
recall either Dr. Logan or Dr. Kenney asking Ryan to perform any tests.
Attorney Goos also testified that Ryan cooperated with the many
doctors who examined him.
Ryan's testimony that he did not fully cooperate
with Dr. Logan is inconsistent with the trial testimony of Dr. Logan,
as well as with the postconviction hearing testimony of his trial
attorneys. The testimony of Ligouri and Goos, as well as the trial
testimony of the psychiatrists and the psychologist who examined Ryan,
leads to the inescapable Conclusion that Ryan did cooperate with the
experts who were assisting him in his insanity defense and that it was
only the State's experts that Ryan refused to cooperate with to some
degree. We agree with the Gacy court that this is not the behavior one
would expect from a defendant who is completely opposed to the
assertion of an insanity defense.
Moreover, Ryan's jury trial testimony reflects that
although he did not think he was crazy and he objected to the insanity
defense, he had agreed to let his trial attorneys proceed with the
insanity defense if they wanted to. As the court noted in Gacy v.
Welborn, 994 F.2d 305, 317 (7th Cir. 1993), "A statement such as 'I
was against the insanity defense from the beginning' is some distance
from 'I directed [trial counsel] to drop that defense, and he refused.'
Being 'against' a defense at the outset is consistent with yielding to
the judgment of those who know better." We find that Ryan acquiesced
in the assertion of the insanity defense.
We hold that the insanity defense for Ryan was an
objectively reasonable trial strategy. Goos and Ligouri were faced
with the almost impossible task of defending a man who had repeatedly
committed various acts of most horrible torture upon another human
being; who did these acts in the name of an angry deity; who heard his
deity speak audibly to him; who believed that every aspect of his life,
as well as the lives of others in the group, was directed by that
deity through an arm test; who believed he possessed the spirit of an
archangel; who believed he could predict the future and read the minds
of others in the group; who saw visions in the sky; who believed that
a female group member's infant had been divinely conceived; and who
stated that he was directed by his deity to marry four women, even
though he was already legally married to another woman.
It is an understatement to say that trial counsel
was presented with an almost insurmountable set of facts. Goos
testified that he could perceive no disadvantages to using the
insanity defense that would outweigh its use, because "the man was
obviously either insane or he was unbelievably cruel and subhuman."
Additionally, it is apparent from the record that the defense of
factual innocence would have been unsuccessful, as were counsel's
arguments in favor of a lesser-included offense.
In determining whether a trial counsel's
performance was deficient, there is a strong presumption that such
counsel acted reasonably. Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
See, also, State v. Lindsay,
246 Neb. 101,
517 N.W.2d 102 (1994); State v. Nielsen,
243 Neb. 202, 498 N.W.2d 527 (1993). When reviewing a claim of
ineffective assistance of counsel, an appellate court will not second-guess
reasonable strategic decisions by counsel. State v. Johnson,
243 Neb. 758,
502 N.W.2d 477 (1993); State v. Nielsen,
supra; State v. Lyman,
241 Neb. 911,
492 N.W.2d 16 (1992).
Given the facts of this case, we decline to second-guess
the decision of Ryan's trial counsel to assert an insanity defense.
Based upon the evidence in this case, we agree with the postconviction
trial Judge that the assertion of the insanity defense on Ryan's
behalf was a reasonable strategic choice by counsel. Therefore, Ryan
is not entitled to postconviction relief on this issue.
(d) Failure to Object to Joint Trial
Ryan contends in issue 13 that his trial counsel
failed to adequately advise him of the consequences of a joint trial
with his son, who had also been charged with first degree murder in
the death of Thimm. Ryan claims that the consolidation was prejudicial
to his defense, because his son's trial counsel blamed everything on
Ryan.
In Ryan's direct appeal, he claimed that he was
prejudiced by the trial court's failure to sustain his motion to sever
his case from his son's case. See Ryan I. At that time, we held that
Ryan had failed to show that he was prejudiced by the joinder of his
trial with the trial of his son. Id.
Although Ryan now frames this issue as one of
ineffective assistance of counsel, we nevertheless continue to adhere
to our holding in Ryan I. Because we have already determined that Ryan
was not prejudiced by having a joint trial, he cannot have suffered
any prejudice from trial counsel's allegedly deficient advice on this
issue, and we need not address whether such performance was in fact
deficient. See Strickland v. Washington, supra. Moreover, in this
state, from a procedural standpoint, a motion for postconviction
relief cannot be used to secure review of issues which were or could
have been litigated on direct appeal, no matter how those issues may
be phrased or rephrased. State v. Nielsen, supra; State v. Stewart,
242 Neb. 712,
496 N.W.2d 524 (1993), cert. denied U.S.
,
114 S. Ct. 97, 126 L. Ed. 2d 64. Ryan is
not entitled to postconviction relief on issue 13.
(e) Failure to Advise on Testifying
In the last issue raised in assignment of error 3,
which Ryan discusses as issue 14, Ryan complains that his trial
counsel failed to advise him about testifying at trial and at
sentencing. In a similar vein, Ryan alleges as part of assignment of
error 4 that he was denied effective assistance of trial counsel
because counsel permitted him to testify at trial. We elect to
consolidate all issues related to Ryan's testifying at trial and
sentencing for the purpose of Discussion.
Ryan testified at his postconviction hearing that
his trial counsel did not discuss with him the advisability of
testifying in his own behalf at either his trial or his sentencing
hearing, nor did they inform him of his Fifth Amendment right to
remain silent and not take the witness stand. However, Ryan admitted
on cross-examination that he never told either of his trial attorneys
that he did not wish to testify at trial.
Ligouri testified at the postconviction hearing
that he had discussed the issue of testifying at trial with Ryan. He
recalled informing Ryan "very early on" that he had the right not to
testify. Ligouri described Ryan as a "pretty cooperative client" who
was willing to go along with what his attorneys deemed to be in his
best interests. Ligouri testified that Ryan expressed no reservations
about testifying and that Ryan wanted to testify. Similarly, Goos
testified at the postconviction hearing that he and Ligouri talked to
Ryan at length about his proposed testimony and that Ryan never
indicated that he did not wish to testify.
Ligouri stated that he and Goos discussed Ryan's
testimony with him on more than one occasion and that he went over an
outline of the questions that would be asked. Ligouri also testified
that Ryan was informed that if he did testify, he would be subject to
cross-examination, and Ligouri discussed with Ryan what questions
might be covered on cross-examination.
Ligouri testified that the purpose of having Ryan
testify at trial was to support the insanity defense and to support
Ryan's claim that he had not struck the fatal blow to Thimm. Goos
testified that Ryan also wished to take the witness stand in order to
refute the testimony of certain witnesses he claimed were lying. Goos
further testified that Ryan's testimony supported the defense's
argument that Ryan had not acted maliciously, but, rather, had acted
in response to the dictates of his god, "Yahweh."
Ryan now complains about only two topics on which
his defense counsel elicited trial testimony. At his postconviction
hearing, Ryan testified that he objected to trial counsel's
questioning him about his belief that the telephone conversations of
private parties could be selectively monitored by the government
through satellite communications, and he especially objected to
counsel's implication following such testimony that Ryan was "nuts,
like that couldn't happen." Ryan also objected to questioning about
his relationship with his mother while he was growing up. Ryan
testified that he felt counsel had not adequately prepared him to
testify on these two topics.
However, Ryan was apparently very willing to
testify to the events surrounding the killing of Thimm, as indicated
by the following exchange between Ryan and his counsel during his
postconviction hearing:
Q . . . Those are examples of things that you
testified to that you weren't prepared for?
A. Yeah. I thought that they was going to ask me
what happened out there at the farm with the incident and that's what
we would be talking about, and, like I say, he got off on this phone
thing, and then wanting to talk about whether my mom and I got along
or not, and I didn't have anything to say.
(Emphasis supplied.)
From this testimony and the rest of the record
before us, we can only conclude that Ryan had no objection to
testifying in his own behalf at the time of trial and that he has no
present objection to having done so. Whether Ryan got along with his
mother during his childhood is so collateral to the charge against him
as to be insignificant, and his testimony that his telephone calls
were being monitored by satellite clearly demonstrated his paranoia
and was relevant to his insanity defense.
Ryan has not been prejudiced by the above
complained-of testimony, nor was he prejudiced by any of his other
testimony. As we have previously stated, the evidence against Ryan,
testified to by eyewitnesses to the torture and killing of Thimm, was
overwhelming. In his postconviction relief trial, Ryan failed to
present any evidence from which either the postconviction court or
this court could infer that had he exercised his Fifth Amendment right
to remain silent either at trial or at his sentencing hearing, there
was a reasonable probability that the result of Ryan's trial or
sentencing would have been different.
Because Ryan has suffered no prejudice by his
decision to testify at trial or at his sentencing hearing, we cannot
say that trial counsel were ineffective in advising him and in
permitting him to testify at either proceeding. Ryan is not entitled
to postconviction relief on this issue.
4. False Testimony
In assignment of error 4, discussed by Ryan as
issue 18, Ryan complains that he was denied effective assistance of
counsel at sentencing because counsel failed to respond to allegedly
false testimony. He further alleges in this assignment of error that
his counsel was ineffective in permitting him to testify at trial. We
have addressed this second issue under assignment of error 3, above.
Issue 18 concerns the testimony of Dr. Logan, the
psychiatrist who testified for Ryan in support of his insanity defense.
At trial, Dr. Logan testified that Ryan had told him of an "altercation"
which occurred when Ryan was being inducted into military service. At
Ryan's sentencing hearing, Dr. Logan again testified that Ryan
apparently fought with military police and was discharged from the
military 3 days later.
Following Dr. Logan's testimony at the sentencing
hearing, Ryan testified that Dr. Logan had not been telling the truth
about the induction incident. Ryan claimed that he was sent home for a
medical reason on the third day of induction physicals. At his
postconviction hearing, Ryan testified that he had not gotten into an
altercation with military police at the induction center and that he
had not told Dr. Logan that he was involved in such an incident.
Ryan asserts that his trial counsel was ineffective
for failing to impeach Dr. Logan's testimony. He concedes that
counsel's failure to respond to this issue would not have affected the
outcome of the trial. However, Ryan claims that it may have affected
the outcome of his sentencing, because the court used the incident to
support aggravating circumstance (1)(a) in sentencing him to death.
We need not reach the issue of whether trial
counsel was ineffective for failing to impeach Dr. Logan's allegedly
false testimony. As we discuss in part IV(9) of this opinion in
connection with assignment of error 9, Ryan has conceded that the
issue of whether the evidence was sufficient to support aggravating
circumstance (1)(a) was fairly presented to this court on direct
appeal and that he is merely preserving the issue for federal review.
A motion for postconviction relief cannot be used
to secure review of issues which were or could have been litigated on
direct appeal, no matter how those issues may be phrased or rephrased.
State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993); State v.
Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993), cert. denied U.S. , 114
S. Ct. 97, 126 L. Ed. 2d 64. Because Dr. Logan's testimony about the
induction center incident was part of the evidence used in support of
aggravating circumstance (1)(a), which evidence this court found to be
sufficient in Ryan's direct appeal, Ryan cannot procedurally claim at
this time that he was prejudiced by his trial counsel's failure to
impeach that testimony. This assignment of error is without merit.
5. Sentencing Issues
In assignment of error 5, Ryan complains that the
postconviction court erred in failing to find that he had been denied
effective assistance of counsel in connection with the preparation and
presentation of issues at sentencing, including the development of all
statutory and nonstatutory mitigating circumstances, meeting statutory
aggravating circumstances, making all available constitutional
challenges to the death penalty, and formulating a reasonable trial
strategy with respect to sentencing.
In addition to the four issues identified in the
assignment of error itself, Ryan identifies several additional issues
which he attempts to discuss simultaneously.
(a) Preparation and Presentation of Issues at
Sentencing
Ryan alleges as issue 21 that trial counsel was
ineffective for failing to properly prepare for sentencing, failing to
obtain from the prosecution evidence which the prosecution intended to
use at sentencing, and failing to discuss strategy with Ryan. This
allegation is completely unsupported by the evidence, beyond Ryan's
bald assertion that he had no contact with counsel in preparation for
sentencing.
Goos, who was Ryan's principal attorney at the
sentencing stage, testified to the contrary. Goos stated that he had
kept Ryan fully apprised of what was happening in the case from the
very beginning, including during preparation for the sentencing
hearing. Goos specifically recalled discussing sentencing issues with
Ryan, including mitigating and aggravating circumstances.
According to Goos, his preparation for sentencing
included obtaining records pertaining to attacks on the death penalty;
performing a great deal of research; meeting with Ryan at the
penitentiary; preparing motions and pleadings; meeting with and
telephoning other attorneys, as well as possible witnesses for the
sentencing hearing; and many conferences with his law clerk.
Goos' testimony is supported by documents submitted
into evidence at the postconviction hearing, including letters from
Goos to Ryan and Goos' time log on the case, which indicates that Goos
spent over 138 hours preparing for Ryan's sentencing hearing.
Based upon this evidence, the postconviction
court's finding that Ryan " not point to a specific failure of counsel
that would have changed the evidence considered by the court at
sentencing or would make the imposition of the death penalty less
likely" is not clearly erroneous.
Ryan has failed to demonstrate a reasonable
probability that but for counsel's deficient performance, the outcome
of his sentencing would have been different. As discussed elsewhere in
this opinion, the evidence in this case is more than sufficient to
support, beyond a reasonable doubt, Ryan's conviction and sentence.
Therefore, we need not reach the question of whether counsel's
performance was deficient. See Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ryan is not entitled to
postconviction relief on this issue.
(b) Failure to Develop all Mitigating
Circumstances
In issue 22, Ryan asserts that counsel unreasonably
failed to argue the applicability of mitigating circumstances (2)(b)
and (2)(f) of § 29-2523.
Mitigating circumstance (2)(b) applies when "the
offender acted under unusual pressures or influences or under the
domination of another person." In connection with this, Ryan argues
that he was strongly under the religious influence of the Reverend
James Wickstrom at the time he killed Thimm. Wickstrom was a religious
leader connected with the Posse Comitatus and a group known as the
Identity Movement. Prior to the time Ryan and his followers retreated
to the Rulo farm, Ryan had spent a period of time attending
Wickstrom's lectures, as well as listening to audiotapes and watching
videotapes prepared by Wickstrom.
However, the evidence shows that Ryan's beliefs and
acts went far beyond those espoused by Wickstrom. For example, Dr.
Logan testified at trial that the arm test was generally accepted
among Identity Movement groups to test for impurities in food based on
Old Testament dietary laws, but that its use to ask routine questions
of "Yahweh" about every aspect of daily existence was a deviation from
Identity Movement beliefs. Dr. Logan further testified that other
Identity Movement members did not believe, as did Ryan, that they
possessed the spirits of archangels and had other supernatural powers.
Members of the Rulo group who testified at trial,
including Ryan, consistently denied listening to the Wickstrom tapes
with any frequency, even though such tapes were available. Most
importantly, all members of the group perceived Ryan to be their
leader, with the group members acting at his direction.
The evidence would not have supported mitigating
circumstance (2)(b), and therefore, counsel's performance could not be
found deficient for failing to argue its applicability.
Mitigating circumstance (2)(f) of § 29-2523 applies
when "the victim was a participant in the defendant's conduct or
consented to the act." Ryan argues that Thimm consented to his abuse
in its early phases and that Thimm had opportunities to escape but did
not do so.
At the postconviction hearing, when questioned
about Ryan's contention that Thimm could have left the farm but chose
to stay even after his first day of torture, Goos responded, "I never
saw that as a very strong argument . . . . The man was tied down." We
agree with Goos.
Our review of the trial record reflects that Thimm
was kept chained in the hog confinement building when he was not being
tortured and that during most of the times when Thimm was being
tortured, his hands or feet, or both, were bound with baling wire. In
fact, the wire was still present around Thimm's hands and feet at the
time his body was exhumed.
Moreover, there is evidence in the record to
suggest that Thimm was in a weakened condition at the time his torture
commenced. Thimm had been shot through the face by Dennis Ryan several
weeks prior to his death, and there was testimony that Thimm's diet
following his demotion to slave status was less than desirable,
consisting of small birds that had been shot by the other men.
Based on the record in this case, it is
inconceivable how Thimm could have escaped under the circumstances or
how Thimm's behavior could in any rational way be interpreted as
acquiescence to the torture he was forced to endure. It is abundantly
clear that there was no chance that Ryan could have convinced any
conscientious sentencing court of the existence of mitigating
circumstance (2)(f), and counsel was not deficient for failing to
argue its applicability.
Although Ryan assigns as error counsel's failure to
develop nonstatutory mitigating circumstances, he does not discuss
this in his brief, except to suggest that even if Wickstrom's
influence of Ryan did not support mitigating circumstance (2)(b), this
could have been considered as a nonstatutory mitigating circumstance.
Ryan does not explain how this issue would have been any more
successful as a nonstatutory mitigating circumstance than it would
have been as a statutory mitigating circumstance. He merely asserts
that the issue is "ripe for further development." Brief for appellant
at 100. The burden is upon Ryan, as a criminal defendant seeking
postconviction relief, to establish a basis for such relief. See,
State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v.
Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). This he has failed to
do.
Ryan is not entitled to postconviction relief on
issue 22.
(c) Failure to Make all Constitutional
Challenges to Death Penalty
Ryan claims that the record supports the following
direct constitutional challenges to the death penalty: (1) The jury
verdict was based, at least in part, on an aiding and abetting theory;
(2) the court refused to permit the jury to consider a diminished
capacity defense; and (3) trial counsel failed to understand the
burden of proof as to mitigating circumstances.
We turn first to Ryan's claim that his death
sentence should have been challenged on constitutional grounds because
the jury verdict was based in part upon an aiding and abetting theory.
We have found no evidence in the record to support such a claim. The
jury was instructed in the alternative, that is, that the State was
required to prove that Ryan killed Thimm, "either alone or while
aiding and abetting another."
The record reflects that five verdict forms were
given to the jury: guilty of first degree murder, guilty of second
degree murder, guilty of manslaughter, not responsible by reason of
insanity, and not guilty. The jury returned the verdict form finding
Ryan "guilty of first degree murder." There is no indication whether
the jury based its verdict upon a finding that Ryan acted alone or
upon a finding that Ryan was aiding and abetting another in the
killing of Thimm.
Assuming that the jury in fact rejected an aiding
and abetting theory, Ryan could not have been prejudiced by any
failure of trial counsel to make a constitutional challenge to the
death penalty on that basis.
Ryan also argues that he could not have aided and
abetted another in the killing of Thimm because only he, of the five
participants in the killing, was convicted of first degree murder.
This argument is apparently premised on the erroneous notion that an
aider and abettor cannot be convicted of a greater offense than a
principal. Such is not the law in this state. In State v. Secret,
246 Neb. 1002, 1009-10,
524 N.W.2d 551, 557 (1994), we held:
The common-law distinction between a principal and
an aider and abettor has been abolished in Nebraska. State v. Thomas,
210 Neb. 298,
314 N.W.2d 15 (1981); State v. Rice,
188 Neb. 728,
199 N.W.2d 480 (1972). "A person who aids,
abets, procures, or causes another to commit any offense may be
prosecuted and punished as if he were the principal offender." Neb.
Rev. Stat. § 28-206 (Reissue 1989) . . . .
(Emphasis supplied.)
Therefore, the jury properly could have convicted
Ryan of first degree murder on an aiding and abetting theory, if it
did in fact choose to do so, even though none of the other
participants in the killing were found guilty of first degree murder.
Trial counsel could not have successfully challenged Ryan's death
sentence on this basis.
Ryan also argues that under the Eighth Amendment,
an aider and abettor to a killing cannot be sentenced to death unless
there is a finding that the defendant killed or intended that death
would result. He cites Enmund v. Florida,
458 U.S. 782,
102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982), and Tison v. Arizona,
481 U.S. 137,
107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987),
in support of this proposition. Ryan's reliance upon Enmund and Tison
is misplaced. The Enmund case may not be read that broadly, and such
is not the holding of Tison.
In Enmund, the defendant was the driver of a
getaway car who sat some 200 yards away on the roadside while two
other individuals robbed and killed an elderly couple in their
farmhouse. There was evidence that the couple was killed after the
husband called out for help and the wife appeared with a gun and shot
one of the robbers. Enmund was convicted of first degree murder and
robbery and sentenced to death. His sentence was affirmed by the
Florida Supreme Court, even though that court concluded that "the only
evidence of the degree of [Enmund's] participation is the jury's
likely inference that he was the person in the car by the side of the
road near the scene of the crimes." Enmund v. State,
399 So. 2d 1362, 1370 (Fla. 1981).
The U.S. Supreme Court concluded that the
imposition of the death penalty, in those circumstances, was
inconsistent with the 8th and 14th Amendments and reversed the
judgment of the Florida Supreme Court upholding Enmund's death
sentence. The Court based its holding on the fact that Enmund neither
killed nor intended to kill and that for the purposes of the death
penalty, his culpability was limited to his participation in the
robbery.
Five years later, in Tison, the Supreme Court again
addressed the issue of whether the death penalty may be imposed upon a
defendant who has aided and abetted a killing. The facts of that case
are significantly different from the facts in Enmund. In Tison, two
defendant brothers and other family members planned and executed the
escape of their father and another inmate from prison. After
experiencing a breakdown of their vehicle, the group decided to flag
down a passing motorist and steal a vehicle.
When John and Donnelda Lyons, accompanied by their
2-year-old child and 15-year-old niece, stopped to render aid, the
Tison group took the Lyons vehicle at gunpoint, drove the Lyons family
into the desert, and brutally shot all four family members to death
with shotguns. Two of the Tison brothers were apprehended after a
shootout at a police roadblock. The two brothers were convicted of
capital murder, armed robbery, kidnapping, and car theft in connection
with the Lyons killings, and the Arizona Supreme Court affirmed those
convictions, even though the two brothers had not actually fired the
shots killing the Lyons family members.
The Supreme Court, in analyzing Tison, revisited
its analysis of Enmund:
Enmund explicitly dealt with two distinct subsets
of all felony murders in assessing whether Enmund's sentence was
disproportional under the Eighth Amendment. At one pole was Enmund
himself: the minor actor in an armed robbery, not on the scene, who
neither intended to kill nor was found to have had any culpable mental
state. Only a small minority of States even authorized the death
penalty in such circumstances and even within those jurisdictions the
death penalty was almost never exacted for such a crime. The Court
held that capital punishment was disproportional in these cases.
Enmund also clearly dealt with the other polar case: the felony
murderer who actually killed, attempted to kill, or intended to kill.
The Court clearly held that the equally small minority of
jurisdictions that limited the death penalty to these circumstances
could continue to exact it in accordance with local law when the
circumstances warranted.
(Emphasis supplied.) 481 U.S. at 149-50.
The Court recognized that the Tison brothers' cases
did not fall into either of these neat categories. However, the Court
further noted that neither do most state laws fall at the poles of the
spectrum, but, rather, into two intermediate categories:
Four States authorize the death penalty in felony-murder
cases upon a showing of culpable mental state such as recklessness or
extreme indifference to human life. Two jurisdictions require that the
defendant's participation be substantial and the statutes of at least
six more, including Arizona, take minor participation in the felony
expressly into account in mitigation of the murder. [Nebraska is one
of these six states. See § 29-2523(2) (e).] These requirements
significantly overlap both in this case and in general, for the
greater the defendant's participation in the felony murder, the more
likely that he acted with reckless indifference to human life.
(Emphasis supplied.) 481 U.S. at 152-53.
The Court focused upon the importance of mental
state in its analysis, holding that
the reckless disregard for human life implicit in
knowingly engaging in criminal activities known to carry a grave risk
of death represents a highly culpable mental state, a mental state
that may be taken into account in making a capital sentencing judgment
when that conduct causes its natural, though also not inevitable,
lethal result.
(Emphasis supplied.) 481 U.S. at 157-58.
Ultimately, the Court held that major participation
in the felony committed, combined with reckless indifference to human
life, is sufficient to satisfy the Enmund culpability requirement." (Emphasis
supplied.) 481 U.S. at 158.
Thus, while Enmund held the death penalty to be
unconstitutional in the case of a minor actor who had no culpable
mental state with regard to killing, Tison allows the death penalty to
be imposed on a major participant in a killing who acts with reckless
indifference to the life of the victim.
Ryan was not a "minor actor" in the killing of
Thimm. As noted above, it is a mitigating circumstance under Nebraska
law that "the offender was an accomplice in the crime committed by
another person and his participation was relatively minor." § 29-2523
(2) (e). In sentencing Ryan to death, the sentencing court explicitly
rejected this mitigating circumstance, stating:
The trial record clearly identifies and shows that
the defendant was the leader on the "Rulo farm" and more specifically,
was the leader and instigator of the atrocities committed on James
Thimm. Michael W. Ryan was the first person to probe, whip, shoot a
finger, break a limb, and skin James Thimm.
Ryan's death sentence does not offend Enmund.
There is also ample support for Ryan's death
sentence under the Tison standard. Regardless of whether Ryan struck
the final, fatal blows to Thimm, the evidence of his involvement in
the killing is overwhelming. Ryan participated fully in the abuse of
Thimm. It was Ryan who consulted "Yahweh" as to the various tortures
to be inflicted upon Thimm. It was Ryan who communicated "Yahweh's"
desires as to Thimm's fate to the four other participants and directed
them to carry out "Yahweh's" wishes. By any definition, Ryan was a
major participant in the killing of Thimm.
Moreover, Ryan's actions in connection with the
torture and killing of Thimm exhibited a reckless indifference to
human life. By his own admission, he was aware that the torture being
inflicted upon Thimm carried a grave risk of death. In fact, Ryan
testified that "Yahweh" had indicated to him that Thimm should die.
Ryan felt at some point that it was inevitable that Thimm would die.
Even though he knew that Thimm was severely injured after his bowel
had been ruptured, Ryan did not seek any type of medical attention for
Thimm in order to save his life. Greater indifference to human life
cannot be imagined.
As Justice Sandra Day O'Connor explained in Tison,
some nonintentional murderers may be among the most
dangerous and inhumane of all[, for example,] the person who tortures
another not caring whether the victim lives or dies. . . . This
reckless indifference to the value of human life may be every bit as
shocking to the moral sense as an "intent to kill."
(Emphasis supplied.) 481 U.S. at 157.
Ryan's death sentence meets the constitutional
requirements of Tison. Ryan could not have prevailed on any
constitutional challenge to his death sentence based upon his claim
that his verdict was based in part upon an aiding and abetting theory.
Therefore, Ryan suffered no prejudice from his counsel's failure to
make such a challenge.
As to Ryan's contention that counsel should have
made a constitutional challenge to the death penalty based on the
court's refusal to permit the jury to consider a diminished capacity
defense, we held in Ryan I that such an instruction is not required
under our law and that the trial court had not erred in refusing to
give the jury Ryan's requested instruction on diminished capacity.
Specifically, we stated that "'a special diminished capacity
instruction need not be given where the jury had otherwise been
properly instructed that intent was an element of the crime charged.'"
233 Neb. at 105, 444 N.W.2d at 632. Therefore, Ryan has suffered no
prejudice because any challenge to the death penalty on this basis
would have been unavailing. This issue will not be revisited further,
even though it is now framed in the language of ineffective assistance
of counsel.
Ryan also claims that trial counsel was ineffective
for failing to understand the burden of proof as to mitigating
circumstances. Ryan states in his brief that "Goos testified [at the
postconviction hearing] that . . . he may have believed at the time,
that the burden of proof was on the State to disprove the existence of
the mitigating factors he presented." Brief for appellant at 99. Ryan
also maintains that there is "no Discussion in the sentencing brief
concerning which party had the ultimate burden of persuasion with
respect to statutory mitigating circumstances." Id.
The record is to the contrary. On October 16, 1986,
prior to sentencing, Goos submitted a document to the sentencing court
entitled "Argument and Brief in Support of Life Imprisonment." In a
subsection entitled "Statutory and Nonstatutory Mitigating
Circumstances," Goos wrote the following:
There is another marked difference between the
aggravating and mitigating factors, and that arises from the fact that
the aggravating must be proven beyond a reasonable doubt whereas the
mitigating need only be proven by a preponderance of the evidence. And
using that standard of proof, defendant believes that he is entitled
to (1) (b), (c) and (g) of the statutory mitigating circumstances. . .
.
(Emphasis supplied.)
Clearly, Goos was aware that it was the defendant's
burden to prove the existence of the statutory mitigating
circumstances, and to prove their existence by a preponderance of the
evidence. To suggest otherwise borders on frivolity.
(d) Formulating Trial Strategy with Respect to
Sentencing Issues
After careful consideration, we are unable to
determine any issues raised by Ryan in this subsection of assignment
of error 5 which have not been addressed in detail elsewhere in this
opinion.
(e) Luke Stice Plea Bargain
As part of assignment of error 5, Ryan also
discusses issue 24, in which he contends that his "trial counsel
unreasonably pled the Defendant no contest to second degree murder in
connection with the Luke Stice case, prior to his being sentencing in
the present case, so as to establish the existence of an aggravating
circumstance . . . ." Brief for appellant at 87.
The record reflects that, on July 28, 1986, while
awaiting sentencing for the killing of Thimm, Ryan pled no contest to
an amended information charging him with murder in the second degree
in the killing of 5-year-old Luke Stice. Ryan had been scheduled for
trial on a charge of first degree murder in the death of Stice,
commencing on August 4.
On August 28, 1986, Ryan was given a life sentence
for the killing of Stice. Ryan's sentencing hearing for the first
degree murder of Thimm was held on September 15 and 16, having been
continued at Ryan's request until after his trial for the killing of
Stice.
On October 16, 1986, Ryan was sentenced to death
for the killing of Thimm. The sentencing court found the existence of
aggravating circumstance (1)(a) of § 29-2523, that "the offender was
previously convicted of another murder or a crime involving the use or
threat of violence to the person, or has a substantial history of
serious assaultive or terrorizing criminal activity," supported the
death penalty.
The sentencing court cited Ryan's numerous abuses
of Luke Stice, as well as other incidents of assaultive behavior by
Ryan, as facts supporting beyond a reasonable doubt the existence of
aggravating circumstance (1)(a). However, the court specifically
stated in its sentencing order that Ryan "did not have, prior to the
death of James Thimm, a prior conviction of another murder or a crime
involving the use or threat of violence to the person."
Ryan has wrongly concluded that it was his plea of
no contest that established the existence of aggravating circumstance
(1)(a). It was Ryan's acts toward 5-year-old Stice prior to the boy's
death, and not Ryan's conviction of second degree murder for his
killing of Stice, which the court considered in aggravation of Ryan's
sentence. Those acts were part of the trial record and could have been
used in support of aggravating circumstance (1)(a) even if Ryan had
not pled no contest at the time he did.
Moreover, in order to satisfy the prejudice
requirement in the context of a plea, a defendant must show that there
is a reasonable probability that but for counsel's errors, the
defendant would not have pled and would have insisted upon going to
trial. State v. Escamilla,
245 Neb. 13,
511 N.W.2d 58 (1994). When a defendant
pleads guilty on advice of counsel, the defendant's attorney has the
duty to advise the defendant of the available options and possible
consequences. Id.
Ryan testified at this postconviction hearing that
attorney Goos came to the penitentiary after Ryan's trial for Thimm's
murder. Ryan stated that Goos
started wanting to talk about the Luke Stice case,
and he didn't want to try it. He wanted to come up with a plea bargain
of some sort. He had too much to do. We couldn't win it, and I would
have a harder time fighting two death penalty cases because he said .
. . we know you're going to get the death sentence, and he said on one,
he said, "If we don't have to fight the other," he said, "it will be a
lot easier."
When asked what his reaction to this was, Ryan
replied:
I didn't like it. I told him, I said, "I didn't do
it." didn't want to fight it. He said, "Well, that's right, he said,
"Okay, I believe you." He said, "There's been too much testimony for
me not to understand what happened," but, he says, "We can't win. You
already seen that."
Ryan further testified that Goos did not discuss
with him the effect that a plea in the Stice case might have on his
sentencing in the Thimm case or that a no contest plea to second
degree murder might be used to establish the existence of a statutory
aggravating circumstance in the Thimm case.
Goos testified at the postconviction hearing that
Ryan wanted to plead no contest to a reduced charge of second degree
murder for the Stice killing. Goos stated that Ryan did not want to go
to trial on that charge, even though he told Ryan that he "thought we
could win that case or at least get a manslaughter," and that he in no
way encouraged Ryan to plead no contest. Goos further testified that
he always lets his clients decide whether they want to have a trial or
to enter a plea and that Ryan wanted to enter the plea or it would not
have been done. Goos testified that Ryan was told that the plea could
be used as an aggravator, that he understood this, and that he wanted
to enter the plea anyway.
Goos' testimony at the postconviction hearing is
consistent with his notes made at the time he was representing Ryan,
which were entered into evidence at the postconviction hearing. In a
note dated June 24, 1986, Goos wrote the following: "CF w/Mike at Pen.
Says he wants to P.N.C. - thinks he can challenge it later - I said
NO!! - denies again any guilt. I said I didn't want to be a party to
it; that we had a chance to win, or at least get manslaughter." On
cross-examination, Goos translated the abbreviations in the memo. He
testified that the first sentence meant "conference with Mike at Pen."
"P.N.C." meant "plead no contest." Goos also explained that he "didn't
want to plead no contest thinking later he could get [the conviction]
removed."
Goos' notes from July 28, 1986, the day Ryan
entered his plea of no contest, were also entered into evidence. In
those notes, Goos wrote that "'facts underlying this plea' may be used
in aggravation." Goos testified that the Judge discussed this at the
time Ryan made the plea and that he thought the quoted language was
probably from what the Judge had said. We note that in accepting
Ryan's plea and finding him guilty of murder in the second degree, the
court found such plea to be entered "voluntarily, knowingly, and
intelligently, with full understanding of the possible consequences. "
(Emphasis supplied.)
The postconviction court found that Ryan "questions
the timing of the plea of no contest to the Luke Stice second degree
murder, though the record shows Ryan, at the time, made that choice."
The postconviction court resolved this conflict in the evidence
against Ryan, and the record supports such a finding. Therefore, the
postconviction court was not clearly wrong in so finding. The record
also reflects that Ryan was advised that the facts underlying his plea
could be used in aggravation of his sentence for the killing of Thimm.
Ryan has not shown any reasonable probability that
but for the advice of Goos, he would have insisted upon going to trial.
In fact, the opposite is true. Ryan appears to have insisted upon
pleading no contest in spite of the advice of counsel. Ryan is not
entitled to postconviction relief on this issue.
(f) Failure to Object to Evidence of Aggravating
Circumstances
In issue 25, Ryan alleges that his trial counsel
unreasonably failed to object to evidence offered by the State to
support aggravating circumstances (1)(a) and (1)(d), and failed to
prepare to confront or rebut such evidence. The gist of Ryan's
argument in his brief appears to be that his attorney was ineffective
for failing to raise the issue of whether evidence of other crimes,
admitted for a limited purpose at trial, could properly be considered
by the sentencing court.
According to Neb. Rev. Stat. § 29-2522 (Reissue
1989), when a court imposes the death penalty, it is required to make
its determination in writing, and such determination "shall be
supported by written findings of fact based upon the records of the
trial and the sentencing proceeding, and referring to the aggravating
and mitigating circumstances involved in its determination." (Emphasis
supplied.)
Neb. Rev. Stat. § 29-2521 (Reissue 1989) states
that "in the proceeding for determination of sentence, evidence may be
presented as to any matter that the court deems relevant to sentence.
. . . Any such evidence which the court deems to have probative value
may be received." (Emphasis supplied.)
Thus, the sentencing court, in imposing the death
penalty, has not only the statutory authority to consider the trial
record, but is statutorily required to make written findings of fact
based upon that record.
Moreover, we have held that "the sentencing phase .
. . is separate and apart from the trial phase and the traditional
rules of evidence may be relaxed following conviction so that the
sentencing authority can receive all information pertinent to the
imposition of sentence." State v. Anderson and Hochstein,
207 Neb. 51, 72,
296 N.W.2d 440, 453 (1980), cert. denied
450 U.S. 1025,
101 S. Ct. 1731, 68 L. Ed. 2d 219 (1981).
A sentencing court has broad discretion as to the
source and type of evidence and information which may be used in
determining the kind and extent of the punishment to be imposed. See,
e.g., State v. Hoffman,
246 Neb. 265,
517 N.W.2d 618 (1994); State v. Dean,
237 Neb. 65,
464 N.W.2d 782 (1991); State v. Clear,
236 Neb. 648,
463 N.W.2d 581 (1990).
Even though the evidence of prior crimes and bad
acts on the part of Ryan had been admitted for a limited purpose at
the time of trial, the sentencing court was entitled, in its
discretion, to consider and use such evidence in determining Ryan's
sentence. That being the case, Ryan has suffered no prejudice from any
failure of counsel to object to the use of such evidence in sentencing.
Ryan is not entitled to postconviction relief on this issue.
6. Constitutionality of Aggravating
Circumstances
Next, Ryan complains that the aggravating
circumstances used to support his death penalty are unconstitutional
both facially and as applied to him. These issues were raised as
assignments of error 6 and 7, and encompass issues 1, 2, and 3.
Section 29-2523 (1) enumerates eight aggravating
circumstances which may be considered by the sentencing court in
determining whether to impose a death sentence upon a defendant:
(a) The offender was previously convicted of
another murder or a 'crime involving the use or threat of violence to
the person, or has a substantial history of serious assaultive or
terrorizing criminal activity;
(b) The murder was committed in an apparent effort
to conceal the commission of a crime, or to conceal the identity of
the perpetrator of a crime;
(c) The murder was committed for hire, or for
pecuniary gain, or the defendant hired another to commit the murder
for the defendant;
(d) The murder was especially heinous, atrocious,
cruel, or manifested exceptional depravity by ordinary standards of
morality and intelligence;
(e) At the time the murder was committed, the
offender also committed another murder;
(f) The offender knowingly created a great risk of
death to at least several persons;
(g) The victim was a law enforcement officer or a
public servant having custody of the offender or another; or
(h) The crime was committed to disrupt or hinder
the lawful exercise of any governmental function or the enforcement of
the laws.
(Emphasis supplied.)
The trial court, in sentencing Ryan to death, found
beyond a reasonable doubt that aggravating circumstances (1)(a) and
(1)(d) existed in Ryan's killing of Thimm. Ryan challenges the
constitutionality of both of these aggravating circumstances.
(a) Aggravating Circumstance (1)(a)
We first examine the constitutionality of
aggravating circumstance (1)(a). In assignment of error 7, Ryan claims
that (1)(a) is unconstitutional both facially and as applied to him.
In issue 2, Ryan claims that (1)(a) is unconstitutionally vague and
overbroad as applied to him because this court, on direct appeal,
imputed to Ryan the serious assaultive or terrorizing acts committed
by others. Ryan also claims, in issue 3, that his appellate counsel
was ineffective for failing to raise on direct appeal the issue of
whether such "vicarious" acts may constitutionally be used to support
(1)(a).
Ryan concedes that the constitutionality of
aggravating circumstance (1)(a) was properly presented on direct
appeal and that the ineffective assistance of counsel claim in issue 3
is therefore moot. However, he argues that this court's analysis of
the issue was constitutionally deficient because the terms "substantial
history" and "criminal activity" were not adequately narrowed or
defined. We disagree.
In State v. Holtan,
197 Neb. 544,
250 N.W.2d 876 (1977), cert. denied
434 U.S. 912,
98 S. Ct. 313, 54 L. Ed. 2d 198, the
defendant argued that the terms "serious assaultive or terrorizing
criminal activity" were vague and indefinite. We rejected that
argument, stating:
The words "serious," "assaultive," and "terrorizing"
are words in common usage with meanings well-fixed and generally
clearly understood. The term "substantial history" is likewise
reasonably clear. "History" refers to the individual's past acts
preceding the incident for which he is on trial and "substantial," as
here used, refers to an actual, material, and important history of
acts of terror of a criminal nature.
(Emphasis supplied.) 197 Neb. at 546, 250 N.W.2d at
879.
Ryan's assertions to the contrary notwithstanding,
this court long ago defined the term "substantial history." The term
"criminal activity" is one in common usage, with a well-fixed and
generally clearly understood meaning.
The U.S. Court of Appeals for the Eighth Circuit,
in holding that aggravating circumstance (1)(a) is not
unconstitutionally vague, stated that "the Nebraska Supreme Court has
provided sufficient guidance to sentencing bodies, concerning this
particular aggravating circumstance, to prevent the arbitrary and
capricious infliction of the death penalty . . . ." Moore v. Clarke,
904 F.2d 1226, 1234 (8th Cir. 1990),
reh'g denied
951 F.2d 895 (8th Cir. 1991), cert.
denied
504 U.S. 930,
112 S. Ct. 1995, 118 L. Ed. 2d 591
(1992).
Ryan's argument that the terms in aggravating
circumstance (1)(a) have not been adequately narrowed and defined is
lacking in legal merit, and Ryan has failed in his burden to establish
a basis for postconviction relief on this issue. We decline to further
address the issue, Ryan having conceded that his ineffective
assistance of counsel claim was properly presented to this court on
direct appeal.
(b) Aggravating Circumstance (1)(d)
We now turn to the constitutionality of aggravating
circumstance (1)(d), challenged by Ryan as assignment of error 6 and
issue 1. The State, in its brief, correctly notes that the question of
the constitutionality of this aggravating circumstance was raised and
disposed of in Ryan's direct appeal and argues that Ryan may not raise
the issue again in a postconviction proceeding.
A death sentence is a "unique penalty" which
implicates the 8th and 14th Amendments to the U.S. Constitution.
Furman v. Georgia,
408 U.S. 238, 310,
92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart,
J., Concurring). Whenever a State seeks to impose the death penalty,
the discretion of the sentencing body "must be suitably directed and
limited so as to minimize the risk of wholly arbitrary and capricious
action." Gregg v. Georgia,
428 U.S. 153, 189,
96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
The sentencing authority's discretion must be "guided
and channeled by requiring examination of specific factors that argue
in favor of or against imposition of the death penalty, thus
eliminating total arbitrariness and capriciousness in its imposition."
Proffitt v. Florida,
428 U.S. 242, 258,
96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
See, also, Godfrey v. Georgia,
446 U.S. 420, 428,
100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)
(holding that "if a State wishes to authorize capital punishment it
has a constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty" and must "channel" the sentencer's discretion by "'clear
and objective standards'" that provide "'specific and detailed
guidance'" and "'make rationally reviewable the process for imposing a
sentence of death'").
The imposition of a death sentence is clearly a
grave act, and the burden on this State to show that such a sentence
has been constitutionally applied to a particular defendant is a heavy
one. Ryan may not be sentenced to death in reliance upon an
aggravating circumstance that has not been suitably directed, limited,
and defined in a constitutional fashion by this court. We therefore
elect to review aggravating circumstance (1)(d) for its
constitutionality both facially and as applied to Ryan.
(i) State Law Definition of (1)(d)
Aggravating circumstance (1)(d) of § 29-2523 exists
when "the murder was especially heinous, atrocious, cruel, or
manifested exceptional depravity by ordinary standards of morality and
intelligence." (Emphasis supplied.) We have repeatedly stated that
this aggravating circumstance
describes two separate disjunctive circumstances
which may operate together or independently of one another. [Citations
omitted.] The first circumstance is that the murder was especially
heinous, atrocious, or cruel. We have said this circumstance includes
a "'pitiless crime which is unnecessarily torturous to the victim' and
. . . cases where torture, sadism, or the imposition of extreme
suffering exists."
State v. Reeves,
239 Neb. 419, 431,
476 N.W.2d 829, 838 (1991), cert. denied
U.S. ,
113 S. Ct. 114, 121 L. Ed. 2d 71 (1992).
See, also, State v. Joubert,
224 Neb. 411,
399 N.W.2d 237 (1986), cert. denied
484 U.S. 905,
108 S. Ct. 247, 98 L. Ed. 2d 205 (1987);
State v. Palmer,
224 Neb. 282,
399 N.W.2d 706 (1986), cert. denied
484 U.S. 872,
108 S. Ct. 206, 98 L. Ed. 2d 157 (1987);
State v. Moore,
210 Neb. 457,
316 N.W.2d 33 (1982), cert. denied
456 U.S. 984,
102 S. Ct. 2260, 72 L. Ed. 2d 864; State
v. Simants,
197 Neb. 549,
250 N.W.2d 881 (1977), cert. denied
434 U.S. 878,
98 S. Ct. 231, 54 L. Ed. 2d 158; State v.
Stewart,
197 Neb. 497,
250 N.W.2d 849 (1977). This first
circumstance is typically referred to as the "first prong" of (1)(d).
This court has narrowed the class of especially
heinous, atrocious, or cruel murders to include those involving
torture, sadism, or sexual abuse. See, State v. Palmer, supra; State
v. Reeves,
216 Neb. 206,
344 N.W.2d 433 (1984), cert. denied
469 U.S. 1028,
105 S. Ct. 447, 83 L. Ed. 2d 372; State
v. Peery,
199 Neb. 656,
261 N.W.2d 95 (1977), cert. denied
439 U.S. 882,
99 S. Ct. 220, 58 L. Ed. 2d 194 (1978);
State v. Rust,
197 Neb. 528,
250 N.W.2d 867 (1977), cert. denied 434
U.S. 912, 98 S. Ct. 313, 54 L. Ed. 2d 198. Torture may be found where
the victim is subjected to serious physical, sexual, or psychological
abuse before death. State v. Palmer, supra.
We have also held the first prong of (1)(d) to be
applicable when the murder was preceded by acts performed for the
satisfaction of inflicting either mental or physical pain or when such
pain exists for any prolonged period of time. See, State v. Victor,
235 Neb. 770,
457 N.W.2d 431 (1990), cert. denied
498 U.S. 1127,
111 S. Ct. 1091, 112 L. Ed. 2d 1195
(1991); State v. Hunt,
220 Neb. 707,
371 N.W.2d 708 (1985). In other words,
this prong must be looked upon through the eyes of the victim. State
v. Joubert, supra.
The second circumstance, or prong, is that the
murder manifested exceptional depravity.
"Exceptional depravity" in a murder exists when it
is shown, beyond a reasonable doubt, that the following circumstances,
either separately or collectively, exist in reference to a first
degree murder: (1) apparent relishing of the murder by the killer; (2)
infliction of gratuitous violence on the victim; (3) needless
mutilation of the victim; (4) senselessness of the crime; or (5)
helplessness of the victim. . . . Where one or more of those five
factors are present, there may be a finding of "exceptional depravity"
concerning a first degree murder.
State v. Palmer, 224 Neb. at 320, 399 N.W.2d at
731-32.
The second prong of (1)(d), that the murder
manifested exceptional depravity by ordinary standards of morality and
intelligence, pertains to the state of mind of the actor. State v.
Otey,
236 Neb. 915,
464 N.W.2d 352 (1991), cert. denied
501 U.S. 1201,
111 S. Ct. 2279, 115 L. Ed. 2d 965; State
v. Moore, supra. We have held that this prong refers to a murder so
coldly calculated as to indicate a state of mind totally and
senselessly bereft of regard for human life. State v. Moore, supra;
State v. Peery, supra; State v. Rust, supra.
(ii) Federal Law Analysis of (1)(d)
The U.S. Supreme Court has held the words "heinous
"atrocious," and "cruel" to be unconstitutionally vague in an Oklahoma
sentencing statute which is very comparable to Nebraska's §
29-2523(1)(d). See Maynard v. Cartwright,
486 U.S. 356,
108 S. Ct. 1853, 100 L. Ed. 2d 372
(1988). See, also, Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct.
1759, 64 L. Ed. 2d 398 (1980) (holding Georgia's "'outrageously or
wantonly vile, horrible or inhuman'" aggravating circumstance to be
unconstitutional because the Georgia court failed to limit the statute
in such a way as to provide a principled distinction between death
penalty and non-death-penalty cases).
In both Maynard and Godfrey, the defendant was
sentenced to death by a jury which had been instructed in only the
bare language of the sentencing statute or in language which was
similarly vague.
Likewise, the U.S. Court of Appeals for the Eighth
Circuit has found the text of Nebraska's aggravating circumstance
(1)(d), standing alone, to be constitutionally insufficient. Moore v.
Clarke, 904 F.2d 1226 (8th Cir. 1990), reh'g denied 951 F.2d 895 (8th
Cir. 1991), cert. denied 504 U.S. 930, 112 S. Ct. 1995, 118 L. Ed. 2d
591 (1992). However, "a state supreme court may salvage a facially-vague
statute by construing it to provide the sentencing body with objective
criteria for applying the statute." Moore v. Clark, 904 F.2d at 1229.
The Eighth Circuit, in several recent cases, has looked beyond the
text of § 29-2523(1)(d) to determine whether (1)(d) has been limited
and defined by this court in such a way as to provide sentencing
bodies in Nebraska with objective criteria for the application of that
aggravating circumstance.
The Eighth Circuit has held that the first prong of
aggravating circumstance (1)(d) of § 29-2523, narrowed by this court's
decisions defining the phrase "especially heinous, atrocious, cruel"
to mean unnecessarily torturous to the victim, satisfies the
constitutional requirements of Gregg v. Georgia, 428 U.S. 153, 96 S.
Ct. 2909, 49 L. Ed. 2d 859 (1976); Godfrey v. Georgia, supra; and
Maynard v. Cartwright, supra. See Harper v. Grammer,
895 F.2d 473 (8th Cir. 1990).
However, even as limited and defined by this court,
the "exceptional depravity" language of the second prong of
aggravating circumstance (1)(d), has failed to pass constitutional
muster in the federal courts. In Moore v. Clarke, supra, the Eighth
Circuit found that a sentencing body could "glean only subjective and
unilluminating fragments from existing case law." 904 F.2d at 1232.
That court held that the language of the second prong, even as defined
and limited by case law, remained unconstitutionally vague and
provided "insufficient guidance to a sentencing body called upon to
determine whether a particular murder 'manifested exceptional
depravity.'" 904 F.2d at 1233. See, also, Holtan v. Black, No. CV
84-L-393, 1986 WL 12479 (D. Neb. Nov. 5, 1986), vacated on other
grounds
838 F.2d 984 (8th Cir. 1988).
Importantly, though, the Eighth Circuit held in
Harper that the invalidity of the second prong of (1)(d) does not
vitiate the efficacy of the first prong. Harper's sentencing court had
relied upon facts supporting both the first and second prongs of
aggravating circumstance (1)(d). Because aggravating circumstance
(1)(d) was constitutional at least in part and had been validly
established by the first prong, the court held that it was unnecessary
to resentence Harper.
In Williams v. Clarke,
40 F.3d 1529 (8th Cir. 1994), the Eighth
Circuit again upheld a defendant's death sentence even though the
sentencing panel had relied partially upon the unconstitutional second
prong of (1)(d). The court found that the defendant's sexual assault
of his murder victim was sufficient to support the constitutional
first prong. Quoting Harper, the court noted that "'"the two prongs
are not separate factors; each of the prongs simply purports to be
justification for the application of the aggravating factor. "'" (Emphasis
supplied.) 40 F.3d at 1535.
We therefore hold that aggravating circumstance
(1)(d) is facially constitutional to the extent that the first prong
has been narrowed and defined by this court. We now determine whether
aggravating circumstance (1)(d) has been constitutionally applied to
Ryan.
(iii) Application of (1)(d) to Ryan
Ryan does not dispute the constitutionality of the
first prong of aggravating circumstance (1)(d), nor does he assert
that the sentencing Judge relied solely upon the unconstitutional
second prong of (1)(d). Rather, he complains that the sentencing Judge
made only a single series of findings of fact supporting the
application of (1)(d), instead of stating which findings of fact
supported which prong. He asserts that the record "makes it clear that
the trial court and the appellate court relied heavily on the 'exceptional
depravity' component of (1)(d)" in sentencing him to death. Brief for
appellant at 22.
Ryan contends that it is "pure speculation to
conclude that the original sentencing Judge would have reached the
same Conclusion about the weight given to circumstance (1)(d), if only
the first prong applied." Brief for appellant at 25.
In finding that aggravating circumstance (1)(d)
applied to Ryan's killing of Thimm, the sentencing court stated in
part:
Some of the facts supported by the evidence which
would allow this Court to find beyond a reasonable doubt that the
murder of James Thimm was especially heinous, atrocious, cruel, or
manifested exceptional depravity by ordinary standards of morality and
intelligence are as follows:
a) The death of James Thimm occurred over several
days while James Thimm was tied and chained in a hog confinement shed;
b) Michael W. Ryan on numerous occasions sodomized
James Thimm with a shovel handle and directed others to do the same;
c) Michael W. Ryan upon several occasions whipped
and beat James Thimm and directed others to do the same;
d) Michael W. Ryan shot the fingertips of James
Thimm with a .22 caliber pistol and directed others to do the same;
e) Michael W. Ryan skinned James Thimm while he was
alive;
f) Michael W. Ryan broke James Thimm's arm and
directed others to assist in that effort;
g) Michael W. Ryan broke James Thimm's legs and
directed others to assist with this;
h) Michael W. Ryan, by force, crushed James Thimm's
ribcage[,] which was the final act that caused his death;
i) There is also some evidence that Michael W. Ryan
either removed or amputated James Thimm's penis and testicles or
directed that this be done by others;
j) Michael W. Ryan wired or chained James Thimm to
a farrowing crate while all of these cruel acts were taking place or
directed that others do this to James Thimm;
k) Michael W. Ryan caused James Thimm to suffer
further humiliation by directing him to perform homosexual acts with
another member of the group.
THE COURT CONCLUDES AND FINDS BEYOND A REASONABLE
DOUBT THIS AGGRAVATING CIRCUMSTANCE EXISTS IN THIS CASE.
(Emphasis supplied.)
While it is true that the sentencing Judge, in his
order, did not apply the facts to each prong of (1)(d) separately, the
language of the order indicates that the sentencing Judge found facts
to support the application of either the first or second prong of
(1)(d) beyond a reasonable doubt. This is not fatal to the use of
(1)(d) as an aggravating circumstance.
It is evident that to the extent that the
sentencing court may have based its factual findings upon the
unconstitutional second prong of (1)(d), Ryan's death sentence may be
tainted by constitutional error, although not necessarily reversible
error. See Satterwhite v. Texas,
486 U.S. 249, 256,
108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988)
(holding that "not all constitutional violations amount to reversible
error."). Accord Williams v. Clarke, 40 F.3d 1529 (8th Cir. 1994). "There
may be some constitutional errors which in the setting of a particular
case are so unimportant and insignificant that they may, consistent
with the Federal Constitution, be deemed harmless, not requiring the
automatic reversal of the conviction." Chapman v. California,
386 U.S. 18, 22,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Moreover, "before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless beyond
a reasonable doubt." 386 U.S. at 24.
In Clemons v. Mississippi,
494 U.S. 738,
110 S. Ct. 1441, 108 L. Ed. 2d 725
(1990), the U.S. Supreme Court held that upon a determination that an
invalid aggravating circumstance had been considered by a sentencing
body, it was constitutionally permissible for a state supreme court to
either reweigh the aggravating and mitigating circumstances or to
perform a harmless error analysis.
However, the U.S. Court of Appeals for the Eighth
Circuit has held that appellate reweighing violates a defendant's
right to due process under Nebraska's death penalty sentencing
statutes. See Rust v. Hopkins,
984 F.2d 1486 (8th Cir. 1993), cert.
denied U.S. ,
113 S. Ct. 2950, 124 L. Ed. 2d 697. See,
also, Reeves v. Hopkins, No. CV90-L-311, 1994 WL 704553 (D. Neb. Dec.
16, 1994). That leaves this court with the options of performing a
harmless error analysis or remanding the cause to the district court
for a new sentencing hearing. See State v. Reeves, 239 Neb. 419, 476
N.W.2d 829 (1991), cert. denied U.S. , 113 S. Ct. 114, 121 L. Ed. 2d
71 (1992). We elect to perform a harmless error analysis.
(iv) Harmless Error Analysis
Harmless error analysis of constitutional error is
governed by Chapman v. California, supra. The Eighth Circuit, applying
the Chapman analysis in Williams v. Clarke, supra, stated:
The issue under Chapman is whether the sentencer
actually rested its decision to impose the death penalty on the valid
evidence and the constitutional aggravating factors, independently of
the vague factor considered; in other words, whether what was actually
and properly considered in the decision-making process was "so
overwhelming" that the decision would have been the same even absent
the invalid factor.
40 F.3d at 1541.
While it may be said that many of the sentencing
court's findings might implicate the second prong of aggravating
circumstance (1)(d), those same facts help to overwhelmingly support
the constitutional first prong of (1)(d). Upon a review of the facts
of this case, it is clear beyond a reasonable doubt that the
sentencing court's decision would have been the same absent any
reliance upon the "exceptional depravity" language of the second prong
of (1)(d).
The facts listed by the sentencing court in support
of aggravating circumstance (1)(d) are most horrid examples of both
torture and sexual abuse. It is not necessary to consider each of
these facts; we need look no further than those admitted by Ryan
himself and confirmed by the testimony of his partners in this ghastly
crime.
Ryan admitted that he sodomized Thimm with a shovel
handle. He further admitted directing Dennis Ryan, Andreas, and the
two Haverkamps to sodomize Thimm also, in a sequence dictated by "Yahweh."
All four of these men testified at trial and confirmed Ryan's account
of how Thimm was sodomized. All five participants testified that at
some point, Thimm's rectum was ruptured. Pathologists for both the
State and for Ryan testified that there was also a traumatic injury to
Thimm's liver, indicating that a blunt foreign object had been thrust
some 1 1/2 to 2 feet into Thimm's body cavity.
This incomprehensibly gruesome activity
overwhelmingly supports a finding beyond a reasonable doubt that
Thimm's murder involved sexual abuse. This fact further overwhelmingly
supports a finding beyond a reasonable doubt that Ryan tortured Thimm,
torture being defined by this court as "'serious physical, sexual, or
psychological abuse before death.'" State v. Palmer, 224 Neb. 282,
315, 399 N.W.2d 706, 729 (1986), cert. denied 484 U.S. 872, 108 S. Ct.
206, 98 L. Ed. 2d 157 (1987).
Ryan also admitted that he whipped Thimm on at
least three occasions and directed the other four men to whip Thimm on
these same three occasions, because "Yahweh" indicated to Ryan that
Thimm had not been punished enough for his supposed transgressions.
Dennis Ryan, Andreas, and the two Haverkamps also testified that Thimm
was repeatedly whipped by Michael Ryan and by themselves upon Ryan's
instructions. The pathologist for the State testified at trial that
during his autopsy of Thimm's body he discovered linear bruises all
over Thimm's back, as well as hemorrhaging into the soft tissues under
the skin on Thimm's back. The fact that Ryan, by his own admission,
repeatedly whipped Thimm also overwhelmingly supports, beyond a
reasonable doubt, the Conclusion that Thimm was brutally tortured
prior to his death.
Ryan admitted that he shot off one of the
fingertips of Thimm's left hand with a .22-caliber pistol and directed
the four other men that "Yahweh" would permit each of them to shoot
off one of Thimm's fingertips. Moreover, Ryan admits that Thimm was
held captive in a hog confinement shed for a period of at least 2 days
while these acts were taking place and that Thimm was chained or bound
with baling wire much of the time, either by Ryan or at his direction.
Again, these facts are sufficient to support beyond a reasonable doubt
that Ryan tortured Thimm prior to his death. It is uncontroverted in
the record that Thimm was alive and conscious during all of the above
episodes of sexual abuse and torture.
Ryan admitted that he broke Thimm's arm, but
testified that he was not positive whether Thimm was alive or dead at
that time. Timothy Haverkamp, who was present at the time Ryan broke
Thimm's arm, testified that Thimm was alive at the time. Although he
was not present at the time Ryan actually broke Thimm's arm, James
Haverkamp testified that he observed Thimm breathing after his arm was
broken.
Ryan admitted that he skinned part of Thimm's lower
right leg with a razor blade and a pair of pliers, but contends that
Thimm was dead at that time. However, Timothy Haverkamp testified that
Thimm was alive at the time Ryan skinned Thimm's leg, that Ryan told
Thimm that he was going to skin him and then held up a piece of the
skin to show to Thimm, and that Thimm was moving his eyes and could
still talk "partway." James Haverkamp testified that he observed Thimm
after his leg was skinned and that he was breathing at that time.
The evidence, beyond a reasonable doubt, shows that
Thimm was still alive and conscious when his leg was skinned. Moreover,
all the evidence indicates that Ryan skinned Thimm's leg after
breaking Thimm's arm. It thus can be inferred that Thimm was still
alive when his arm was broken. Breaking the bones of, and skinning, a
living human being are facts that overwhelmingly constitute torture
beyond a reasonable doubt.
The above evidence provides overwhelming factual
support for the sentencing court's finding that Ryan's murder of Thimm
was "especially heinous, atrocious, cruel." There can be no more
horrible way to die than to be chained in an animal shed for several
days; to be repeatedly sodomized, whipped, shot, and skinned; to have
one's bones broken; and to have all of this done in the name of one's
god. If these acts are not especially heinous, atrocious, and cruel,
no acts are. If these facts do not support the existence of
aggravating circumstance (1)(d), no facts ever will.
Any one of these acts is an objective factor
sufficient to satisfy beyond a reasonable doubt the existence of
aggravating circumstance (1)(d) as the first prong had been defined
and limited by this court at the time Ryan was sentenced to death. See,
e.g., State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984), cert.
denied 469 U.S. 1028, 105 S. Ct. 447, 83 L. Ed. 2d 372; State v. Moore,
210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S.
Ct. 2260, 72 L. Ed. 2d 864; State v. Peery, 199 Neb. 656, 261 N.W.2d
95 (1977), cert. denied 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 2d 194
(1978); State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), cert.
denied 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158; State v. Rust,
197 Neb. 528, 250 N.W.2d 867 (1977), cert. denied 434 U.S. 912, 98 S.
Ct. 313, 54 L. Ed. 2d 198; State v. Stewart, 197 Neb. 497, 250 N.W.2d
849 (1977). See, also, Williams v. Clarke, 40 F.3d 1529 (8th Cir.
1994) (holding a finding of sexual abuse to be an objective factor
which constitutionally and appropriately narrows the definition of the
first prong of (1)(d)); Harper v. Grammer, 895 F.2d 473 (8th Cir.
1990) (holding that the first prong of (1)(d) was constitutionally
applied to defendant in case where facts indicated that the murder was
unnecessarily torturous to the victims).
Ryan's argument that the sentencing court's order
is heavily based on a finding of "exceptional depravity" is wholly
without merit. The facts of this case clearly establish that Ryan's
murder of Thimm was aggravated by repeated acts of torture and sexual
abuse. Therefore, even absent any consideration of the second prong,
aggravating circumstance (1)(d) is nonetheless amply established
beyond a reasonable doubt by facts in support of the constitutional
first prong which are so overwhelming that any consideration of the
second prong could only constitute harmless error.
We find, beyond a reasonable doubt, that Ryan would
have been sentenced to death whether or not the sentencing court
considered the second prong of aggravating circumstance (1)(d). This
assignment of error is without merit.
7. Sentencing Panel and Recusal of Judge
In his eighth assignment of error, Ryan contends
that appellate counsel unreasonably failed to raise on direct appeal
that his constitutional rights in regard to sentencing were violated
by (1) a lack of standards for when a three-Judge panel is used for
sentencing, (2) the trial Judge's refusal to recuse himself, and (3)
the trial Judge's refusal to convene a three-Judge panel.
We turn first to the two issues raised regarding
the use of a three-Judge panel for sentencing, discussed by Ryan as
issues 5 and 20. These two issues were fully addressed by this court
in Ryan's direct appeal. See Ryan I. In that case, we rejected Ryan's
argument that a three-Judge panel should be mandatory when requested
by a defendant, because Neb. Rev. Stat. § 29-2520 (Reissue 1989)
specifically grants to the trial Judge the discretion to request a
panel for purposes of sentencing a defendant convicted of first degree
murder. We further held that § 29-2520 violates neither the Nebraska
Constitution nor the U.S. Constitution. Moreover, we found that there
was no evidence in the record indicating that Ryan had suffered any
prejudice by the trial Judge's refusal to request a three-Judge panel
for sentencing.
A motion for postconviction relief cannot be used
to secure to review of issues which were or could have been litigated
on direct appeal. State v. Jones,
246 Neb. 673,
522 N.W.2d 414 (1994); State v. Lindsay,
246 Neb. 101, 517 N.W.2d 102 (1994); State v. Bowen,
244 Neb. 204,
505 N.W.2d 682 (1993).
Because issues 5 and 20 have already been litigated
on direct appeal, Ryan is not entitled to further review of these
issues.
Ryan has conceded in his brief that his claim that
his constitutional rights were violated at sentencing because the
trial Judge refused to recuse himself, discussed as issue 7, was
fairly presented by counsel on direct appeal. Because all three issues
raised by Ryan in assignment of error 8 have been litigated and
decided adversely to Ryan on direct appeal, this assignment of error
affords Ryan no basis for postconviction relief.
8. Sufficiency of Evidence for Aggravating
Circumstances
In his ninth assignment of error, Ryan claims that
his counsel was ineffective in failing to raise on direct appeal
whether there was sufficient evidence of aggravating circumstances
(1)(a) and (1)(d) in support of his death sentence. This was brought
before the postconviction court as issues 8 and 9.
Ryan now concedes that these issues were fairly
presented to this court on direct appeal and that each claim "lacks
factual merit." Brief for appellant at 36. Ryan indicates that he is
merely preserving the issues for federal review. Because Ryan concedes
that assignment of error 9 has no merit, and because we generally do
not review issues which have been previously litigated on direct
appeal, we decline to further consider this assignment of error.
9. Proportionality Review
Ryan complains, in assignment of error 10 and issue
4, that the district court erred in failing to find that he was denied
his right to a statutory proportionality review on direct appeal. This
is not the precise issue that was before the postconviction court.
Rather, the record shows that the issue presented was "whether trial
counsel unreasonably failed to argue on direct appeal that the
Nebraska Supreme Court's declaration that the statutorily mandated 'proportionality'
review of sentences imposed in 'criminal homicide' cases is
unconstitutional," thus rendering the remaining provisions of the
death penalty unenforceable.
Following Ryan's postconviction hearing, counsel
for Ryan stated to the court that appellate counsel had, indeed,
raised the issue of proportionality review in constitutional terms.
Ryan concedes in his brief that the issue had been raised and fairly
presented on direct appeal and that the only purpose for raising the
issue at this time was to preserve it for federal review.
Because Ryan concedes that this issue was raised on
direct appeal, at which time it was fully litigated, Ryan cannot
secure further review of the issue by way of a motion for
postconviction relief. See, State v. Jones, supra; State v. Lindsay,
supra; State v. Bowen, supra. This assignment of error is without
merit.
10. Deposition Misconduct
Once more, Ryan's assignment of error differs from
the issue which he raised in his postconviction hearing. In assignment
of error 11, Ryan states that the trial court erred in failing to find
that deposition misconduct by the prosecution deprived him of his
right to due process of law. However, at the postconviction hearing
and in his brief before this court, this issue was addressed as issue
15, and defined as
whether trial counsel unreasonably failed to make
an adequate record of the fact that during defense discovery
depositions of Ora Richard Stice and John David Andreas, the Sheriff
played a tape recording of Stice's testimony for the benefit of
Andreas before Andreas gave his deposition, in order to "align" their
testimony; and/or unreasonably failed to object to such conduct and
bring the issue to the attention of the trial court, either to
disqualify the witnesses, or to seek dismissal of the charges for
reasons of prosecutorial misconduct, or for the purposes of producing
evidence to "impeach" the testimony of such witnesses at trial, in
violation of the Defendant's rights under the Sixth Amendment of the
United States Constitution, and Art. I sec. 11 of the Nebraska
Constitution.
Specifically, Ryan complains that the State tape-recorded
the deposition of Stice and played the tape for Andreas before Andreas
gave his deposition so that Andreas could give testimony consistent
with what had been testified to by Stice. Ryan further claims that
Andreas' deposition was taped and played for James Haverkamp prior to
Haverkamp's deposition.
The record shows that Ryan's counsel filed a motion
to preclude the testimony of Haverkamp and Andreas based on the
alleged deposition misconduct. Dennis Ryan's counsel joined in the
motion and requested an evidentiary hearing on the issue. Michael
Ryan's counsel stated that he was not requesting an evidentiary
hearing on that motion, although he was seeking an evidentiary hearing
on a related motion regarding the sentencing of Andreas and Haverkamp.
The trial court denied the request for an evidentiary hearing on the
motion to preclude the testimony of Haverkamp and Andreas and deferred
ruling until Dennis Ryan's counsel filed appropriate affidavits in
support of the motion.
There is no evidence in the record before us that
any supporting affidavits were ever filed by either counsel or that
the court ever made a final ruling on the motion. Both Haverkamp and
Andreas testified at trial. Neither Michael Ryan's nor Dennis Ryan's
defense attorneys objected or filed a motion to preclude the testimony
of either Haverkamp or Andreas during trial.
We note that Michael Ryan was represented by
different counsel on direct appeal than he was at the guilt phase of
his trial. Therefore, there was no reason Ryan could not have raised,
on direct appeal, the issue of whether trial counsel were ineffective
in their actions related to the alleged deposition misconduct. A
motion for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have been litigated
on direct appeal. State v. Keithley,
247 Neb. 638,
529 N.W.2d 541 (1995); State v. Jones,
246 Neb. 673, 522 N.W.2d 414 (1994); State v. Lindsay, 246 Neb. 101,
517 N.W.2d 102 (1994); State v. Bowen, 244 Neb. 204, 505 N.W.2d 682
(1993). This assignment of error is without merit.
11. Firing Trial Attorney
In assignment of error 12, discussed as issue 19,
Ryan contends that the postconviction court erred in failing to find
that Ryan was deprived of his right to counsel when the trial court
fired one of his defense attorneys. The trial court terminated the
services of court-appointed defense attorney Ligouri after Ryan's
trial, but before his sentencing hearing.
Ryan raised an identical ineffective assistance of
counsel claim on his direct appeal. See Ryan I. We held then that Ryan
had received effective representation and that he had failed to show
any prejudice by the firing of Ligouri.
This issue, having been fully litigated and decided
adversely to Ryan on direct appeal, affords Ryan no basis for
postconviction relief. See, State v. Jones, supra; State v. Lindsay,
supra; State v. Bowen, supra.
12. Judicial Misconduct
In issue 30, Ryan claims that trial counsel
unreasonably failed to object to judicial misconduct at trial. In
issue 31, Ryan claims that trial counsel unreasonably failed to raise
judicial misconduct as grounds for recusal of the trial Judge from the
sentencing process and as grounds for impaneling a three-Judge panel
for sentencing. Ryan has discussed these two issues together in his
brief, and we will likewise consider them together for purposes of our
analysis.
Ryan asserts, in issue 30, that the trial Judge "exhibited
contempt for Ryan by turning his back on Ryan during Ryan's testimony
before the jury." Brief for appellant at 107. Ryan argues that the
performance of both trial counsel and appellate counsel was deficient
as to this issue.
Issue 31 relates to an ex parte communication which
the sentencing Judge had with the Stice family after Ryan had pled no
contest to second degree murder in the killing of 5-year-old Luke
Stice. The communication took place after Ryan's conviction for the
murder of Thimm, but before his sentencing hearing on that conviction,
and before his sentencing for the killing of Stice. Again, Ryan
asserts that both trial counsel and appellate counsel were ineffective.
As Ryan concedes in his brief, these issues
relating to judicial misconduct were raised and disposed of on direct
appeal. This court considered whether the trial Judge's conduct had
prejudiced Ryan's right to a fair trial and concluded that it had not.
As to the Judge's actions in turning his back during Ryan's trial
testimony, we stated:
The fact that the trial Judge turned away from the
defendant in an attempt to hide his expressions from the jury while
the defendant described, in detail, the atrocities of his crime was
inappropriate, but does not constitute prejudicial error in this case.
There are cases when such conduct by a Judge might constitute
prejudicial error in a criminal trial, but in this case, where the
evidence of defendant's guilt is so overwhelming, we hold that the
trial Judge's actions did not constitute reversible error. It would
have been better had the Judge observed all witnesses while they
testified about the sickening events, as the jury was required to do,
but the Judge's conduct does not constitute prejudicial error in this
case.
(Emphasis supplied.) Ryan I, 233 Neb. at 122, 444
N.W.2d at 641.
Likewise, we held that any ex parte communication
by the Judge with the Stice family could not have prejudicial to Ryan.
"Any communications with the Stice family occurred after the case had
been submitted to the jury and the jury had determined defendant
guilty of first degree murder. The activities in this regard could not
have affected the jury verdict in any way." (Emphasis supplied.) Id.
Moreover, as noted in Ryan I, and as we now again
note, Ryan's conviction for the second degree murder of 5-year-old
Luke Stice was not used by the sentencing court as an aggravating
factor. Therefore, the Judge's ex parte communication with the Stice
family could not have prejudiced Ryan at either the trial phase or the
sentencing phase of the proceedings.
Although we do not condone the cited actions of the
trial Judge, our holding in Ryan I that Ryan was not prejudiced by the
Judge's actions is dispositive of Ryan's claim that trial counsel and
appellate counsel were ineffective in failing to raise the issue of
judicial misconduct. In the absence of a showing of prejudice, Ryan is
not entitled to postconviction relief on either issue 30 or issue 31.
These issues were decided on direct appeal, and Ryan is not entitled
to have them relitigated in a postconviction proceeding.
13. Cumulative Error
In assignment of error 13, also discussed as issue
37, Ryan contends that cumulative error at trial and sentencing
deprived him of his due process right to a fair trial. Ryan raised
this issue on direct appeal, at which time we held that
the combined effect of the errors defendant alleged
occurred at trial was harmless beyond a reasonable doubt and that the
defendant was not prejudiced by these alleged errors. This Conclusion
is supported by the overwhelming evidence against the defendant,
including the defendant's own testimony as to his part in the murder
of James Thimm. The cumulative effect of these alleged errors did not
have a material effect on the jury in reaching its verdict. A
defendant is not constitutionally entitled to receive a perfect trial,
only a fair and constitutional trial.
(Emphasis supplied.) Ryan I, 233 Neb. at 150, 444
N.W.2d at 656.
Because we generally do not review issues which
have been previously litigated on direct appeal, we decline to further
consider this assignment of error.
14. Other Issues Conceded by Ryan
Ryan also has raised other issues which he now
concedes are not factually supported by the evidence or were disposed
of on direct appeal and which he declines to discuss in his brief.
These issues include the failure of counsel to call certain witnesses
(issue 16); failure of counsel to cross-examine one of the female
group members (issue 17); misconduct by the prosecutor and a State
Patrol investigator (issue 26); judicial interference with the right
to counsel (issue 32); failure of counsel to object to a jury
instruction (issue 33); violation of a sequestration order by the
State's expert witnesses (issue 34); and juror misconduct by falling
asleep at trial and by reading a newspaper (issues 35 and 36).
We have examined the above issues for plain error,
and finding none, we will not address them further.
15. Failure to Grant Postconviction Relief
In assignment of error 14, Ryan alleges that the
postconviction court erred in failing to grant him postconviction
relief. After carefully considering all of Ryan's previous assignments
of error and issues presented for consideration by the court and
finding all of these to be without merit, we hold that the district
court correctly denied Ryan's petition for postconviction relief.
V. CONCLUSION
There being no merit to any of Ryan's assignments
of error or to any of the issues raised by him, the judgment of the
district court denying postconviction relief to Ryan is affirmed.