James Thimm was chained in a hog confinement shed on a farm near Rulo, in Richardson County, Nebraska, in late April 1985, after being accused of poisoning a turkey, and he died there after days of torture that the men of Michael W. Ryan’s group inflicted on Ryan’s orders. Ryan told them that Yahweh wanted Thimm dead by that afternoon, and he had one of them disk over a field to bury him. A month earlier Luke Stice, five years old, the son of another member, had died during the night after Ryan repeatedly shoved him so that his head struck a cabinet. Thimm’s body was dug up on the farm and examined by a pathologist in August 1985.
Ryan had come to the farm out of the Posse Comitatus and the teachings of an Identity preacher, and by 1985 he ran the small community that lived there as a prophet who received God’s answers through a kind of arm-pressure test he performed on his followers. He was charged with both deaths in September 1985. The Thimm case went to trial; he was convicted of first-degree murder and sentenced to death on October 16, 1986, and he pleaded no contest to second-degree murder in Luke’s death and was sentenced to life. His son Dennis was tried with him for Thimm’s murder, and Timothy Haverkamp, James Haverkamp and John David Andreas pleaded guilty to lesser charges and testified for the State.
The five opinions of the Supreme Court of Nebraska collected here are the direct appeal of 1989, which affirms the conviction and death sentence and describes the life of the group in detail; a companion ruling the same day on the fees owed to one of his appointed lawyers; post-conviction appeals decided in 1995 and 1999; and a short 1997 order on the State’s motion to set an execution date. The 1999 opinion considers his claims that the sentencing judge had improperly met with members of Thimm’s family and that he had not been competent to stand trial, and rejects both.
The 1989 opinion’s account of life on the farm is drawn from the trial testimony, much of it from members of the group who had pleaded guilty and testified for the State, and it is written in the light most favorable to the verdict. The death of Luke Stice was resolved by a no contest plea, so no court ever tried the facts of it, and the opinions describe it only in passing. His competency claim in 1999 was rejected as procedurally barred and unsupported, not tried on the merits.
The five opinions are public records of the Supreme Court of Nebraska. James Thimm and Luke Stice keep their names, as do Ryan, his son Dennis, and the three men who pleaded guilty and testified, and the lawyers, judges and doctors. We have given initials to the other members of the group and their relatives, among them Luke’s father, Ryan’s wife, the Haverkamp mother and sisters and the Thiele sisters, and to Thimm’s foster cousin and the family members who met with the sentencing judge, and to a family whose car the group planned to take on the road.
The Caselaw Access Project text is printed complete. The 1989 opinion quotes the trial testimony at length, including the defendant’s own statements, and reproduces part of the sentencing order, with its lettered findings, as the court set them out. We closed words split across lines only where the whole word appears elsewhere in the text and left the reporter’s spelling alone.
State of Nebraska, appellee, v. Michael W. Ryan, appellant.
444 N.W.2d 610
Filed August 11, 1989.
No. 86-946.
Bruce Dalluge, of Morrissey, Morrissey & Dalluge, for appellant.
Robert M. Spire, Attorney General, A. Eugene Crump, and Melvin K. Kammerlohr for appellee.
Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.
[OPINION BY Grant, J. type=majority]
Grant, J.
The defendant, Michael W. Ryan, was charged with first degree murder in the death of James Thimm. Thimm died April 29, 1985, after being tortured by defendant and four others for 3 days.
On September 25, 1985, an information was filed in the Richardson County District Court charging defendant with two counts of murder. Count I charged him with the first degree murder of James Thimm, and count II charged him with the first degree murder of Luke Stice. Count II of the information was separated in the trial and is not a part of this appeal, except as defendant’s later plea of nolo contendere to second degree murder in that crime is addressed below in connection with defendant’s sentencing.
On October 8, 1985, defendant appeared before the Richardson County District Court and entered a plea of not guilty to both counts at an arraignment hearing at which defendant was fully advised of his constitutional rights, including his right to remain silent and not testify or otherwise incriminate himself. On November 27, 1985, defendant filed a “Notice of Insanity Defense.” On defendant’s motion, the case was moved to Omaha, Douglas County, for trial. On February 24, 1986, the trial of count I of the information, the first degree murder of Thimm, commenced with jury selection. On March 6, 1986, a panel of 12 jurors and 2 alternate jurors was sworn. The trial began on March 10, 1986, and closing arguments were made on April 7, 1986.
On April 10, 1986, the jury returned its verdict finding defendant guilty of the first degree murder of James Thimm. Defendant moved for a three-judge sentencing panel pursuant to Neb. Rev. Stat. § 29-2520 (Reissue 1985). On May 6, 1986, this motion was denied. On April 18, 1986, a motion for a new trial was filed, and after a hearing was held on April 25, 1986, defendant’s motion for a new trial was denied.
A sentencing hearing was held on September 15 and 16, 1986, before the trial judge. On October 16, 1986, defendant was sentenced to death. This court is charged with the review of the Richardson County District Court’s judgment, pursuant to Neb. Rev. Stat. § 29-2525 (Reissue 1985). In his brief, defendant has assigned 60 errors, which are grouped into 30 arguments. Each is discussed hereinafter. We affirm the judgment and the sentence.
During the trial, evidence was adduced that established the chronological order of events leading up to the torture death of Thimm. Evidence in the record as to the group’s lifestyle and the events culminating in Thimm’s murder are set out chronologically, and the defendant’s arguments are considered separately below.
The record shows the following. Defendant was described as the leader of a group, characterized at trial as both a religious cult and a band of criminals, living on a farm outside of Rulo, in Richardson County, Nebraska. The cult largely developed out of the teachings of Rev. James Wickstrom, the self-proclaimed leader of a group which called itself the “Posse Comitatus.” See Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973). Defendant met Wickstrom at a Bible lecture in Hiawatha, Kansas.
Wickstrom’s teachings centered around Anglo-Saxon supremacy, the unconstitutionality of income taxes, and the coming Battle of Armageddon. Although Ryan did not agree with all of Wickstrom’s teachings, particularly with regard to tax matters, Wickstrom’s ideology was the catalyst that formed the Rulo cult’s belief system. As a result of his involvement with the Posse Comitatus, defendant met James Haverkamp, John David Andreas, R.S., and James Thimm during 1982 and 1983. In June of 1983, Ryan and some of the other members of the group met with Wickstrom at a large meeting of the Posse Comitatus in Wisconsin.
During the Hiawatha meeting, Wickstrom showed Ryan what was known as the arm test. That test was described as follows. Defendant would face a group member, who would extend his right arm out at approximately a 90-degree angle from his or her body. Defendant would then place his left hand on the member’s right shoulder and place his right hand on the member’s right wrist. After asking Yahweh (the name used by defendant and his group for God) a question, defendant would apply pressure to the person’s right arm. If the arm dropped, the answer to the question being asked of Yahweh was “no”; if the person’s arm stayed up, the answer was “yes.” As time went on, others in the group used this arm test, and after awhile every aspect of the lives of the Rulo group was controlled by the use of the arm test.
Sometime in 1983, defendant began telephoning the individuals who later constituted the Rulo group with “orders from headquarters.” Defendant would tell the person he called that he (defendant) had “talked to Yahweh and [the men were] supposed to go out and do some stealing____” If any of the men refused to go on these stealing raids, defendant would remind them that their families would not be safe if they angered Yahweh.
The men, in keeping with the group’s plans to build a “base camp,” converted the spoils of these thefts into weapons, ammunition, and clothing and began to stockpile those items in preparation for the Battle of Armageddon. These stealing raids were conducted in the states of Kansas, Missouri, and Nebraska. The thefts involved the stealing of cattle, hogs, and various large items of farm machinery and construction equipment. Many of those items, including all the stolen livestock, were sold, and the proceeds financed the stockpiling mentioned above. At the time of defendant’s arrest, officers recovered stolen property with a value in excess of $120,000 at the Rulo farm.
By the summer of 1983, it was determined, through the arm test, that defendant had the spirit of the Archangel Michael. Defendant also told the group that he could communicate directly with Yahweh through his mind.
The group began to meet each Saturday to study the Bible. These meetings were conducted by defendant and were usually attended by James Haverkamp; his sisters C.G. and L.H.; his mother, M.H.; defendant’s wife, R.R.; and defendant’s three children. James Haverkamp’s younger brother and father would also attend, as did Thimm, Andreas, R.S., Stice’s children, and Stice’s girlfriend.
During these meetings, defendant would read and interpret various verses of the Bible. He told the group that “the Jews added” any passages that disagreed with his teachings. During these meetings, verses of the Bible were rewritten to conform to the group’s beliefs. At the conclusion of these meetings, the group would smoke marijuana.
At one of these meetings, held in Kansas, where defendant and his family then lived, defendant took C.G. aside and told her that Yahweh wanted her to leave her husband. Defendant used the arm test to determine that in Yahweh’s eyes G. was not married to her husband, who was “on Satan’s side.” Defendant also told her that if she did not stay with defendant and R.R., her husband and children would be killed in an automobile accident.
G. eventually left her husband, and for a time she and her children lived with Michael and R.R. In May of 1984, a cult service was held, with R.S. officiating, where defendant and G. were married in Yahweh’s eyes.
In June of 1984, defendant told his wife, R.R., and G. that Yahweh wanted them to get better acquainted by going to the R.S. farm outside of Rulo. During the summer of 1984, defendant, R.R., the three Ryan children (including Dennis), R.S. and his three children, C.G. and her five children, James Haverkamp, L.H., and James Thimm moved to the Rulo farm. In August 1984, John David Andreas and, in October, Timothy Haverkamp, a cousin of the Haverkamps, moved to the farm. This group of 7 adult men (including Dennis Ryan), 3 adult women (R.R., G., and 15-year-old L.H.), and 10 young children constituted the basic Rulo group. M.H. was a regular visitor.
In the meantime, in June of 1984, defendant officiated at the cult wedding of R.S. and L.H., and, in August of 1984, defendant took his second cult wife by marrying C.G.’s mother, M.H.
The Rulo farmstead included two trailer houses. R.S. was determined to be the high priest of the group, and he and L.H. shared a bed in the south trailer. During this period, the remainder of the group lived in the north trailer. The men slept in a large room known as the barracks, and the women and children slept in various other rooms of the north trailer.
By August of 1984, daily life on the farm was established. The women would consult Yahweh through the arm test in order to determine meal plans, including how long to boil water, and Ryan would use the arm test to find out if any members of the group needed to fast or do penance that day.
Defendant acted as the leader of the group. He would assign tasks for the day and then spend most of his time watching television. During the evenings, defendant would direct the men on stealing raids. Apparently, defendant himself did not participate in the raids.
The group believed that the Battle of Armageddon would take place in the Rulo area, since the Battle of Armageddon was also known as the “Battle of the Wheat Fields.” Defendant had observed that there were several wheat fields in the area, and concluded from this that the final battle would be waged near Rulo.
Defendant gave each of the men a military title, and within a few months all of the men were generals, some having attained five star general status, with the exception of R.S., the owner of the farm, who was a six star general and the high priest.
By the fall of 1984, the group had acquired over 75,000 rounds of ammunition and dozens of weapons, including several that were fully automatic. The group also stockpiled seed, charcoal, and enough food to fill a room 20 feet wide by 35 feet long.
During the later part of 1984, Stice lost the Rulo farm due to financial difficulties. The farm was purchased by James Haverkamp and L.T., partially with money stolen from James Haverkamp’s father. During this same period, defendant determined that Yahweh was angry with R.S.; that Stice had raped Stice’s cult wife, L.H.; and that Stice was having “bad thoughts.” It would appear that one of Stice’s more serious transgressions was losing the farm. Defendant demoted Stice and moved L.H. to the north trailer, where she shared a bed with R.R. and C.G.
In December of 1984, defendant took L.H. as his third cult wife, and on June 25,1985, Ryan took his fourth cult wife by marrying D.T., the sister of C.G. and L.H. By this time, defendant was considered married to C.G., L.H., and Debra and to their mother, M.H., and R.R., whom he married in a conventional ceremony in about November of 1967. M.H. did not live on the farm, but would come to the farm twice a month, apparently to perform her conjugal activities.
In December of 1984, defendant announced that L.H. was the queen of Israel. On New Year’s Eve, defendant told the group that he and L.H. had spoken to Yahweh, and Yahweh had said that there were going to be changes on the farm. After the group smoked marijuana, defendant informed them that unless the jealousy stopped the law would come and that the children would be taken away. Defendant told the group that each individual had to make a decision on whether to remain or leave the farm; that Yahweh had indicated that anyone who elected to leave would “burn in hell”; and that if an individual elected to stay, he or she would have to stay with the group forever. Defendant said that if anyone decided to stay and then left, he would “hunt [them] down and kill [them].”
During a Saturday Bible meeting, James Thimm stated that he was not sure there was a Yahweh and expressed doubts in the arm test. R.S.’s 5-year-old son, Luke Stice, also apparently had expressed doubts about Yahweh. After these incidents, in January or February of 1985, Thimm, R.S., and Luke Stice were moved to the south trailer. Both Thimm and R.S. were demoted to “slaves,” and Luke was called “dog,” “mongrel,” “gook,” or “dogshit.” During January and February, apparently as part of the changes Ryan had foretold, R.S. and Thimm were made responsible for most of the guard duty, washing of dishes, and care of the chickens and goats.
Evidence showed that about this time, defendant began to abuse Thimm, R.S., and Luke Stice. Defendant threatened to amputate R.S.’s penis and threatened to skin and then burn Luke Stice alive, and both Thimm and R.S. were forced to do calisthenics. In March, defendant instructed Thimm to have anal sex with R.S., and told Thimm “to make him hurt.” Defendant also forced R.S. to perform oral sex on his son Luke and forced Luke to perform oral sex on his father while the other men watched. Ryan told the others that Yahweh wanted these acts performed in order to humiliate Thimm and Rick and Luke Stice as punishment for their having “bad thoughts.”
Luke Stice died around March 25, 1985, after defendant repeatedly shoved him, causing Luke’s head to strike a cabinet. Luke was knocked unconscious the third time defendant shoved him and died sometime during the night. Luke was buried the following morning in an unmarked grave that defendant forced R.S. and Thimm to dig.
After Luke’s death, defendant forced R.S. to copulate with a goat on three different occasions.
During March, defendant and L.H. went to Kansas City for a honeymoon. Defendant left his son Dennis and Timothy Haverkamp in charge at Rulo. While defendant was gone, R.S. escaped. After defendant returned, James Thimm was kept chained to the south trailer porch.
After leaving the farm, Stice began to worry about “eternal damnation” and returned to the farm after 7 days. Upon his return, defendant had both R.S. and Thimm kept chained to the porch of the south trailer.
On April 4, 1985, R.S. escaped a second time after Timothy Haverkamp had taken Stice into town on defendant’s orders, so that Stice could cash his Social Security check. Stice did not return to the farm and did not contact authorities until June 26, 1985.
After Stice’s escape in April, the treatment Thimm received from defendant continued to deteriorate. Thimm was forced to sleep chained to the porch, was fed small birds the men shot, and was also forced to copulate with a goat. On April 27, 1985, after being accused of poisoning a turkey, Thimm was beaten by the men and taken to the hog confinement building, where he was kept chained for the night. At this time, the adult men present on the Rulo farm were: defendant; Dennis Ryan; Timothy Haverkamp; James Haverkamp; John David Andreas; and the victim, James Thimm. R.R., C.G., and L.H. were the adult women there, and there were nine young children.
On April 28, 1985, defendant sent Andreas out to Thimm with a bowl of granola cereal. Defendant informed the men during breakfast that “Yahweh would be pleased if [Thimm] lasted four or five days.” At about mid-morning, defendant and the rest of the adult men went to the hog confinement building. Defendant instructed Thimm to disrobe and to bend over a farrowing crate.
Defendant then told Thimm that he was going to be sexually assaulted with a shovel handle. Defendant then inserted a shovel handle into a grease cartridge and told the men that Thimm had not done a good enough job with the goat and that Yahweh wanted Thimm “probed.” Defendant then inserted the shovel handle about 5 or 6 inches into Thimm’s rectum and “probed” Thimm for about 30 seconds. When Thimm would not stop fidgeting, defendant tied Thimm’s arms to the farrowing crate with baling wire.
Defendant then informed the men that Yahweh had said that he wanted the handle inserted between 8 and 10 inches and had given defendant the order in which each man was to probe Thimm. A tape measure was then used, and the shovel handle was marked. While defendant had the handle inserted in Thimm’s rectum, he told Thimm, “I ought to shove this thing up to your heart.” (One of the examining pathologists testified that, in fact, the shovel handle was inserted some 2 feet into Thimm.) Each of the remaining four men then took their turns probing Thimm’s rectum with the shovel handle. After Thimm screamed a couple of times, defendant kicked Thimm in the head and had furnace tape put over Thimm’s mouth so that the men would not have to hear Thimm’s cries.
After the probing, defendant instructed Thimm to sign his car title over to Timothy Haverkamp. Thimm did so, and apparently defendant told Timothy Haverkamp that Thimm’s car was his birthday present.
Each man, beginning with defendant, probed Thimm again. During this second round of probing Thimm’s rectal wall was ruptured. Defendant decided that the handle was being inserted too far and that they needed an object that was bigger around. Defendant then greased the fat end of a pick handle and inserted it into Thimm’s rectum about 3 inches. After this second round of probing, the men left to do some chores and left Thimm chained in the hog confinement shed.
That afternoon defendant told the men that Thimm had not been punished enough. The men returned to the hog confinement building, and Thimm was removed from the farrowing crate and bound to an overhead auger. Each of the five men then gave Thimm 15 lashes with a leather whip. Defendant began the whipping, and with each lash one of the cult members’ names was called out. During this whipping Thimm said, “I’m sorry, Yahweh, please forgive me what I’ve done. Please stop this.” Whereupon defendant said, “Well, you don’t need to worry about that, because Yahweh’s given up on you. You don’t have any hope any more.”
After this whipping Thimm was untied, given his sleeping bag, and chained up for the night.
During breakfast of the following morning (April 29, 1985), defendant told the men that Thimm had still not been punished enough. The men returned to the hog confinement building, and Thimm was again tied to an overhead auger. Beginning with defendant, each man gave Thimm 15 lashes with the leather whip.
After Thimm had received 75 lashes, defendant said that Thimm had still not received enough punishment. Thimm was forced to lie with his freshly whipped back on the floor. Thimm was then bound to a pipe, and each of the five men lashed Thimm’s chest and stomach 15 times.
Defendant then had Thimm’s left hand placed and bound palm up on a block of wood. Thimm began to moan, and defendant told him things would only get worse if he did not shut up. Defendant then shot one of Thimm’s fingertips off with a pistol. Michael Ryan then instructed each man to shoot off one of Thimm’s remaining left hand fingers and his thumb.
After the men had shot off Thimm’s fingers, they returned to the north trailer for lunch. At lunch defendant told the men that Yahweh wanted Thimm dead by that afternoon. The men returned to the hog shed; defendant told Andreas to disk over the field to prepare an area to bury Thimm and told Andreas that he should go say goodbye to his friend James Thimm. When Andreas said goodbye, Thimm was still alive and able to say that he was “sorry.”
Defendant then kicked and broke Thimm’s arm and told Thimm that he was going to skin a part of him. Defendant put on a pair of yellow kitchen gloves and used a razor blade to make incisions in Thimm’s leg, and then used a pliers to pull off strips of Thimm’s skin. Thimm was still alive at the time. Defendant then told Dennis Ryan that he could break one of Thimm’s legs. Dennis took a rough-cut 2 by 4 board about 7 feet long and proceeded to strike Thimm’s leg in the knee area until Thimm’s leg broke. Defendant told Dennis Ryan and Timothy Haverkamp that there was an easier way to break a leg. Defendant then placed a block of wood under Thimm’s leg and told Timothy Haverkamp to hit Thimm’s leg with the 2 by 4. Timothy Haverkamp hit the leg once and it broke.
Defendant then bent down and asked Thimm if he thought Yahweh meant business. Thimm was alive at this time. Defendant then said, “I’ll cave his chest in.... That’s sure to kill him.” Defendant then proceeded to stomp on Thimm’s chest with his cowboy boots.
Defendant then had James Haverkamp get Thimm’s sleeping bag. Timothy Haverkamp testified that Thimm was dead before James Haverkamp returned with the sleeping bag. Defendant placed Thimm’s body and clothing into the sleeping bag. Three or four hours later, defendant told the men that Yahweh wanted the grave to be “six foot long by three foot wide and six foot deep.” The men dug the grave. Thimm’s body was placed in the unmarked grave, and defendant told Timothy Haverkamp to shoot Thimm’s body in the head so it would look like an execution. After Thimm’s body had been shot in the head, it was covered with dirt.
An autopsy of the body was conducted for the State by George Gamel, M.D., on August 19, 1985, and by William Eckert, M.D., on behalf of the defendant, on September 3, 1985. Both autopsies revealed the following injuries: The anus was markedly dilated; the left hand’s fingertips had gunshot-type injuries; the left arm was broken; both legs were fractured at the thigh level; the head had a gunshot wound, which shot had shattered the left side of the skull; there were multiple rib fractures on both the left and right sides of the chest and back; a blunt object had been inserted far up into the body cavity through the anus, causing damage to the liver; the colon was torn; linear bruises were on the body; and skin had been stripped from one of the legs. The victim’s wrists and ankles were still bound with baling wire. The only disagreement between Drs. Gamel and Eckert was whether the victim’s penis and scrotum had been cut away or had decomposed. Both pathologists reported that the cause of death was multiple traumatic injuries. Dr. Gamel testified the tear in the colon, the “whipping-like injuries,” the gunshot wound to the head, the shock from the broken legs, and the crushed chest were all capable of causing the victim’s death independently.
On June 25, 1985, James Haverkamp and Andreas were apprehended while attempting to return to the Rulo farm with a sprayer rig stolen in Kansas. While incarcerated, these men gave law enforcement officials information that was used to secure a search warrant. A team of law enforcement officers composed of FBI agents, Bureau of Alcohol, Tobacco, and Firearms agents, Nebraska State Patrol officers and investigators, and Richardson County sheriff’s personnel, assisted by James Haverkamp and Andreas, searched the Rulo farm on August 17 and 18, 1985. On August 18, 1985, James Thimm’s nude, partially decomposed body was found, and on September 25, 1985, the defendant was charged with Thimm’s murder.
The foregoing facts were testified to by each of the five men involved in the murder. James Haverkamp, Timothy Haverkamp, John David Andreas, Dennis Ryan, and defendant himself each testified, in detail, as to the specific instances of probing, whipping, shooting, kicking, and beating. There is surprising agreement in the detailed facts related by each man.
Defendant’s testimony is reflected in 291 pages of the record herein. He sets out his participation in the horrifying acts committed on Thimm and does not deny that the testimony of the other four criminals is generally true. In his testimony, defendant made the following points as to the testimony of the others, setting out his disagreements with the testimony of the other four. Defendant testified that James Haverkamp was the instigator of most of the thefts, that defendant did not force Andreas to go to the Rulo farm, that the victim and Andreas were not best friends, that defendant did not always lead the Bible studies, that C.G. testified against defendant only because she was threatened by the FBI, that defendant did not want to steal, that defendant was tired of the people on the farm and wanted to leave, that L.H. had more power than defendant, that R.S. was responsible for the abuse of his son Luke, that it was not defendant’s idea for Stice and Thimm to have homosexual relations, and that defendant tried to stop the homosexual activities.
The denials, of course, were as to essentially peripheral activities at the farm. As to the murder incident itself, defendant did not deny and, indeed, specifically testified to the torture itself and to Thimm’s death. Defendant did testify, in contradiction to the testimony of others, as to some specific instances. Defendant testified that Yahweh, not defendant, had Thimm chained in the hog shed; that Thimm agreed to his torture; that defendant did not kick Thimm in the head; that Yahweh would not allow the group to drive Thimm off the farm; that Timothy Haverkamp “tore” Thimm open while probing him; that defendant did not stomp on Thimm’s chest with his boots; that Andreas and James Haverkamp stomped on Thimm’s chest, and Thimm was not breathing after this; that defendant told the group to leave Thimm alone; and that James Haverkamp had the idea of shooting Thimm’s fingers off.
Defendant further testified that everyone came to the Rulo farm of their own free will and that he, the defendant, did not intend to kill Thimm.
The defendant argues his 60 assignments of error in 30 separate arguments. While we are primarily concerned with the defendant’s assignments of error, that is, defendant’s allegations as to the specific actions of the trial court which prejudiced him, we will consider the assignments as defendant sets them out in the arguments in his brief in order to ensure that all points raised on this appeal are considered. After considering all of defendant’s assignments, we affirm.
Our review of the record has been complicated due to the way the record has been presented to us. Although complete, the record does not appear to follow any logical order. The pages are not numbered sequentially, several volumes have the same number, and many pages have the same page number. This procedure is a violation of this court’s rules. In view of the fact that this is a capital case, however, we have reviewed the record before us. We determine that the entire record ordered by defendant in his praecipe is before this court, and we have not been advised by either party to the contrary.
One cause of this state of disorder appears to stem from the fact that the sentencing judge purported to take judicial notice of the trial record. This procedure is discussed below in defendant’s argument XVII. During the defendant’s sentencing hearing the evidentiary part of the trial, on the guilt-innocence phase, was marked as exhibit 1. Exhibit 1 consists of 18 volumes with olive-colored covers numbered VIII through XXV, containing trial testimony from pages 1052 through 4542; 2 volumes with tan covers numbered XXX and XXXI, containing trial exhibits 1 through 128 (except exhibit 33); and 1 volume with a green cover numbered XXXII, containing trial exhibits 129 through 143 (except exhibit 142).
That portion of the entire record was marked as an exhibit at the sentencing phase. Necessarily, that part of the record was also fully considered in our review of the guilt-innocence phase of the trial.
Trial exhibits 144, 145, and 146 (not a part of sentencing exhibit 1) are contained in a brown folder numbered XXIX.
The remainder of the record before us consists of the following. The defendant’s arraignment is found in the first 13 pages of a 37-page volume with a blue cover numbered I, and a portion of the motion hearings are in the same volume at pages 14 through 37. Progression hearings are found in two volumes with blue covers numbered II and III, containing pages 18 through 399. Motion hearings are found in a volume with a blue cover numbered VI, containing pages 735 through 985, with an additional part in volume I mentioned above. The pretrial conference is found in a volume with a light-blue cover numbered VII, containing pages 986 through 1043. The jury voir dire is found in four volumes with blue covers numbered II, III, IV, and V, pages 38 through 991, and one volume with an olive cover numbered VIII, with pages 1044 through 1051 containing further voir dire. Opening statements are found in pages 992 through 1052 of blue volume V. Other exhibits, marked in connection with motion in limine hearings, are found in a volume with a blue cover numbered XXVIII, containing exhibits 1 through 143, 147 through 156, and two additional exhibits both marked as exhibit 1 (these exhibits are different from trial exhibits, although they have the same numbers).
The instruction conferences are found in a blue volume numbered V, between pages 1053 and 1112; a volume with a light-blue cover numbered XXVI, containing pages 4543 through 4563; and pages 1301 through 1312 in a volume with a blue cover numbered VI. Closing arguments are found in the same blue volume VI on pages 1113 through 1301. The hearing on the defendant’s motion for a new trial is found in blue volume VI at pages 1313 through 1347. The sentencing hearing is found in a blue volume VII at pages 1348 through 1586. The hearing on the defendant’s motion for a new trial on the sentencing phase is also found in the same volume VII at pages 1586 through 1589. Sentencing exhibit 1 is the trial itself, and sentencing exhibits 2 through 26 are found in two separate brown boxes.
This listing of the various items in the record in this court shows that the portions of the record requested by the defendant in his praecipe are before us.
I. “ The Defendant cannot be deprived of his constitutional rights to counsel (Assignment #1).”
Defendant first assigns as error the actions of the trial court in “terminating and dismissing his court-appointed counsel Mr. [Louie] Ligouri” and the actions of the court “directed towards Mr. Ligouri which preceded said termination... and which impaired his effectiveness...”
The second part of assignment of error No. 1, as affecting the effectiveness of counsel, is included within assignment No. 2 discussed below. As to the first part of the assignment, the termination of attorney Louie Ligouri, the defendant contends that he was deprived of his constitutional right to counsel when Ligouri was terminated by the district court on April 25, 1986, after the trial was concluded. Throughout the trial and the preliminary proceedings, defendant was represented by two attorneys, Richard Goos and Ligouri, both of whom had been appointed on October 8, 1985. The record shows that Ligouri had been in practice in Richardson County for 6 years, had tried four criminal jury trials, and had no first degree murder trial experience. Goos was a member of the Lancaster County Public Defender’s office and had been in practice for over 24 years, with the 15 years prior to the defendant’s trial dedicated exclusively to criminal law. Before this trial, Goos had tried eight or nine first degree murder cases. The record shows that the court treated Goos as lead counsel for the defense.
The defendant was represented by both Ligouri and Goos until, as mentioned above, Ligouri’s services were terminated 15 days after the jury had returned its verdict. At the hearing on the termination of Ligouri’s services, the court told Goos that if he needed additional help, he should notify the court. The record does not disclose any such request. Goos then continued to represent defendant through the sentencing hearing. On some date not shown in the record, Bruce Dalluge was appointed as cocounsel for defendant. The record does show that both Goos and Dalluge appeared before the court with defendant, as his attorneys, on July 28, 1986, so it is apparent that Dalluge was appointed before that date. Goos withdrew as defendant’s attorney sometime after the sentencing hearing, and Dalluge continued to represent defendant on this appeal. Defendant was represented by Goos and Dalluge during his sentencing hearing. It is not apparent from the record why the trial court substituted Dalluge for Ligouri, but the result was that defendant had two attorneys throughout sentencing, as well as two attorneys throughout the trial.
It is settled law that an accused is entitled to be represented by counsel at all critical stages of criminal proceedings against him, including sentencing. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); State v. Jost, 219 Neb. 162, 361 N.W.2d 526 (1985). The exercise of sixth amendment rights to counsel is subject to the necessities of judicial discretion. State v. McPhail, 228 Neb. 117, 421 N.W.2d 443 (1988); State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988). While it often happens in this state that two attorneys are appointed to represent a criminal defendant in a capital case, neither the U.S. nor the Nebraska Constitution dictates such a requirement. Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982). The defendant’s constitutional right to counsel did not include the right to have the two attorneys representing him throughout the trial also represent him during his sentencing and on the appeal.
In view of the seriousness of the charges and the bizarre nature of the underlying facts, the trial court, acting properly within its discretion, felt that it was appropriate to appoint two attorneys to represent defendant throughout the trial and its preliminaries. In exercising its discretion, the district court then determined that Ligouri’s services would then be terminated. For reasons not apparent on the record before us, the trial court later appointed Dalluge as the attorney to continue working with Goos. In view of the terrible, horrifying facts brought out by all the evidence, including defendant’s testimony, as to defendant’s participation in this crime, it is not possible for this court to hold that the trial court abused its discretion in terminating Ligouri. The reasons for the termination and the subsequent appointment of a different lawyer are not apparent from the record before us, but we are not concerned with the wisdom of the action, but only its legal effect.
To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient and (2) such deficient performance prejudiced the defense. State v. Ditter, 232 Neb. 600, 441 N.W.2d 622 (1989). The defendant has made no such showing, and complains only that he had a better rapport with Ligouri. Such a consideration is irrelevant. An indigent defendant’s right to counsel does not include a right to be represented by counsel of his choice and to be represented by an attorney he likes or with whom he has rapport. State v. McCoy, 228 Neb. 178, 421 N.W.2d 780 (1988); State v. Hoffman, 224 Neb. 830, 401 N.W.2d 683 (1987); State v. Clark, 216 Neb. 49, 342 N.W.2d 366 (1983). Defendant has received effective representation. His concern about the fact he was deprived of the service of an attorney with whom he had rapport does not control the legal issue before us on this point. Defendant’s assignment of error with regard to the particular counsel to whom he was entitled is without merit.
II. “ The Court should not interfere with counsel’s obligation to zealously represent his client (Assignment #2).”
As his second assignment, defendant sets out that he was denied “a fair trial and Due Process of Law, Effective Assistance of Counsel, and his right to an Impartial Jury” by the actions of the trial court in “impairment of cross examination____”
The defendant also asserts that the trial court interfered with his counsel’s obligation to zealously represent him. Defendant states:
Throughout the trial the Court curtailed Defendant’s counsel from putting on a proper defense. On numerous occasions, Defendant’s counsel was denied the right to cross-examine witnesses, was interrupted by the Court without any objection from counsel, and witnesses were allowed to continually answer questions in a [sic] unresponsive manner.
Brief for appellant at 34.
In support of these contentions the defendant cites this court to 10 areas of the record. All 10 of the citations are from the cross-examination of R.S. by Ligouri. Defendant, in his second assignment, specifically refers to the court’s alleged errors in its conduct during the testimony of Stice. Stice was called by the codefendant Dennis Ryan, and during his direct examination, Stice testified as to his status as “high priest” of the group. During cross-examination of Stice by Dennis Ryan’s attorney, that attorney spent 45 minutes attempting to impeach Stice on this issue with testimony Stice had given during a deposition. During the cross-examination of Stice by Ligouri, acting as defendant’s attorney, Ligouri asked Stice 20 different times, in several different ways, whether he was a “high priest,” and Stice consistently answered that he was to be the high priest after the Battle of Armageddon.
At this point the trial court requested a side bar. The reporter noted that the record was made in “low tones,” and the judge, in apparent frustration, stated, “Who gives a damn whether he was a high priest or not, for God’s sake?... [Codefendant’s counsel] went at him for 45 minutes on the high priest deal. Are you going on for another 45 minutes?” Whereupon the following exchange took place:
MR. LIGOURI: I want to cross examine him on this. If he is lying about one thing, he’s lying about everything.
THE COURT: Mr. Ligouri, keep your tone down, okay?
That’s enough on the high priest business.
MR. LIGOURI: I just want to introduce these depositions.
THE COURT: Okay, introduce them.
Assuming testimony concerning whether Stice was the high priest or said he was the high priest was relevant, Neb. Rev. Stat. § 27-403 (Reissue 1985) states that “evidence may be excluded if its probative value is substantially outweighed... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The trial court did not abuse its discretion by terminating the cross-examination of Stice on this issue. At some point, the trial court is entitled to try to bring some order out of chaos. This action of the trial court was no more than that. In Treppish v. State, 126 Neb. 21, 33, 252 N.W. 388, 393 (1934), the defendant was charged with first degree murder and claimed on appeal that the trial court “interfered in the examination of defendant’s witnesses, continually urging the defendant’s attorneys in their examination of witnesses to hurry, and continually interrupting the defendant’s attorneys in their examination of witnesses... .” In Treppish, we stated:
It is the duty of a trial court to expedite the trial as much as is possible without infringing the rights of the parties to a complete and orderly examination of all the facts and circumstances connected with the case. In his endeavor to expedite the trial in this case, the trial judge used some expressions that perhaps would have been better omitted. However, we are satisfied reversible error cannot be predicated thereon.
Id. at 33-34, 252 N.W. at 393.
The trial court did not abuse its discretion by terminating the continued cross-examination of Stice on whether he was the high priest. Examination of the record shows this assignment of error is without merit and borders on the frivolous.
In his brief, defendant cites the Stice cross-examination as an “example” of the court’s interference with his right of cross-examination. Counsel cites us to no other alleged “interference” by the court. We have examined the entire record, and our examination discloses some acrimony between the court and counsel (primarily expressed in hearings outside the presence of the jury), but no prejudicial interference with counsel. Defendant’s second assignment of error has no merit.
III. “After the joinder of two informations which each charge a different Defendant the Court has a duty to sever the cases if it appears either of the Defendants will be prejudiced (Assignments#3, #4, and45).”
In his assignment No. 3, defendant contends, in substance, that he was prejudiced by the trial court’s failure “to sustain defendant’s MOTION FOR SEVERANCE of his case from that of the Codefendant’s during the progress of the trial.” His argument makes it clear that defendant’s contention is directed to severance of his trial from the trial of his son Dennis Ryan.
Defendant, Michael Ryan, and his son Dennis Ryan could have both been charged with the same act, the murder of James Thimm. Neb. Rev. Stat. § 29-2002(2) (Reissue 1985). Since the charges could have been so joined, it was not error, per se, to try Michael. Ryan and Dennis Ryan in a consolidated trial. § 29-2002(3). See State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
The record shows that on December 23, 1985, on the motion of the State, the court ordered case No. 2390, count I, State of Nebraska v. Michael W. Ryan; case No. 2384, State of Nebraska v. Dennis Ryan; and case No. 2389, State of Nebraska v. Timothy Haverkamp, consolidated for trial. Defendant objected to the joinder of his case with Timothy Haverkamp’s case and moved that case be severed. As to severance of Dennis Ryan’s case, the record does not show that defendant initially moved for severance, nor was severance granted. Defendant admits that while he objected to joinder of his case with Timothy Haverkamp’s case, he “did not make any objection at the time to the joinder of his case with his son, Dennis Ryan.” Brief for appellant at 36. The record shows that at the conclusion of the State’s evidence, defendant’s counsel moved that the court
sever ... the case of Michael Ryan from the case of his son, Dennis Ryan, on the grounds that it I think became apparent to us, certainly yesterday, that it’s going to be very difficult for Michael Ryan to have a fair trial when he is to be tried with his son and when the defense for his son is bringing in inflammatory and irrelevant matters to defend their client.
Defendant’s oral motion for severance was then denied.
Defendant’s position on severance was amplified during the instruction conference at the end of the trial, when the following discussion was held on the record outside the presence of the jury:
THE COURT: Well, you didn’t complain initially about joining the trials, and I could never understand that.
MR. GOOS: I’m sorry, Judge, what?
THE COURT: Did you — You didn’t complain initially about consolidating the trials.
MR. GOOS: Well, we had, tactically, something to gain from that. For example, no death qualification. Apart from legal things, it afforded the defendant a chance to see and be with his son throughout the trial, something that, you know, if he’s convicted, he may have trouble seeing that boy for a long, long time, and — And so that he personally wanted a joint trial; and there is another reason which I — I — Well, a reason or two why we were not objecting to the joinder so much.
As stated above, at the close of the State’s case, the defendant moved for severance of his case from Dennis Ryan’s. A similar problem was present in State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968), where defendant Cook moved for severance of his case from that involving a codefendant, after both the State and Cook had completed their evidence in the case. This court overruled defendant’s motion, stating:
To permit a defendant to proceed to trial without making a motion for severance and to take his chances on a favorable result in the absence of extraordinary circumstances or surprise would permit a defendant to defeat the orderly processes of justice and defeat the expeditious and constitutional purpose embodied in our severance statute, section 29-2002, R.R.S. 1943.... Under our present statute, section 29-2002, R.R.S. 1943, amended in 1957, jointly charged defendants are not entitled to a separate trial as a matter of right but are entitled to a separate trial if it appears that the defendant or the State would be prejudiced by the joining of the offenses or the defendants in a joint trial. The proper rule is stated in State v. Brown, 174 Neb. 387, 118 N.W.2d 328, wherein the court said: “The right to a separate trial now depends upon a showing that prejudice will result from a joint trial. A motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such a motion will not be disturbed in the absence of a showing of an abuse of discretion. Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101, 45 A.L.R.2d 1308 ....”
State v. Cook, supra at 688, 157 N.W.2d at 154.
Similarly, in the case before us, there is no reason to let a defendant make a tactical choice in the conduct of his trial and then, when dissatisfied with the results of his choice, make a different choice. It is left to the discretion of a trial court whether the trial of two codefendants should be severed. State v. Clark, 228 Neb. 599, 423 N.W.2d 471 (1988); State v. Lee, supra. Pursuant to § 29-2002, two or more defendants may be tried together. There is no constitutional right to a separate trial, and a separate trial will only be granted upon a showing of prejudice. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972). A ruling of the trial court regarding severance will not be disturbed without a showing of prejudice. State v. Nance, 197 Neb. 95, 246 N.W.2d 868 (1976). Defendant was not prejudiced by the joinder of his trial with the trial of Dennis Ryan.
With regard to his assignment No. 4, defendant contends that the trial court erred in refusing “to orally instruct or admonish the jury that evidence pertaining solely to Dennis Ryan, Codefendant, should be considered only as evidence against or for Dennis Ryan and not this defendant...There are two procedural ways that such problems may be handled in a trial involving codefendants. It is not necessary that the judge, during such a trial, give an oral admonition to the jury as to how each item of evidence presented in the case shall be considered by the jury. Whether a judge chooses to do so as the trial progresses is within his discretion. So long as the jury is properly instructed as to how it is to consider such evidence, a defendant’s due process rights are not violated. In this case, the judge did instruct the jury, at the conclusion of the case, as to how the jury should consider the evidence as it concerned each defendant.
Defendant points to Neb. Rev. Stat. § 27-105 (Reissue 1985), which states: “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”
While the giving of a limiting instruction is mandatory when requested, it is within the trial court’s discretion whether to give a limiting instruction contemporaneously with the testimony or in the general instructions to the jury. Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied 409 U.S. 857, 93 S. Ct. 139, 34 L. Ed. 2d 102, and 409 U.S. 887, 93 S. Ct. 114, 34 L. Ed. 2d 144.
Defendant’s contention that it is a violation of his constitutional rights when the court does not contemporaneously rule on the application of each piece of evidence to one or another of codefendants is without merit.
In his fifth assignment, defendant seems to admit that the trial court had the right to instruct the jury at the end of the case, but contends that the court, in so doing, confused the jury.
NJI 14.54 provides:
Though the defendants are tried together, it is your duty to consider separately the guilt or innocence of each defendant. Each defendant is entitled to have his guilt or innocence determined from his own conduct and from the evidence which applies to him, as if he were being tried alone. Evidence relating to one defendant alone may not be considered against the other defendants.... You will not permit any defendant to be prejudiced by reason of the fact that the defendants are jointly charged with a criminal offense.
NJI 14.54A provides:
In this case... defendants are being tried together. During the trial you were told that certain evidence was admitted against one (or more) of the defendants and not against the other(s). You must consider such evidence only in the case of the defendant(s) against whom it was admitted.
During the discussion concerning these instructions the following record was made:
THE COURT: You wanted 14.54A rather than 14.54.
MR. GOOS: Well, no, I wanted 14.54, but I want it in the language of that — of that instruction, and I wanted that language out of 14.54, that says “During the trial you were told that certain evidence was admitted,.. .” etcetera. And since that was the case, I think it ought to be in the instruction. I see 14.54A as an entirely different separate instruction than — and I would — I’m simply asking the Court instruct — give 14.54 in its entirety, and in addition, give 14.54A.
THE COURT: Okay. Then, Instruction Number 6, we combined 14.54 and 14.55A(sic).
MR. REHMEIER: Oh, I see.
THE COURT: I don’t think they were ever intended to both be given. Does the State have any objections?
MR. REHMEIER: No, Your Honor.
THE COURT: Defendant Michael Ryan?
MR. GOOS: No objection. What was that number again, Judge?
THE COURT: Six.
MR. GOOS: Number 6? No objection.
Instruction No. 6 reads as follows:
Though the defendants are tried together, it is your duty to consider separately the guilt or innocence of each defendant. Each defendant is entitled to have his guilt or innocence determined from his own conduct and from the evidence which applies to him, as if he were being tried alone. Evidence relating to one defendant alone may not be considered against the other defendant. During the trial you were told that certain evidence was admitted against one of the defendants and not against the other. You must consider such evidence only in the case of the defendant against whom it was admitted. You will not permit any defendant to be prejudiced by reason of the fact that the defendants are jointly charged with a criminal offense.
There was no error or abuse of discretion on the part of the trial judge. The giving of instruction No. 6 adequately charged the jury and must be presumed to have protected the defendant from prejudice. See, United States v. Buschman, 527 F.2d 1082 (7th Cir. 1976); United States v. Weil, 561 F.2d 1109 (4th Cir. 1977); United States v. Papia, 560 F.2d 827 (7th Cir. 1977); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied 423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976).
The defendant’s counsel agreed to an instruction that acknowledged that the jury had received a limiting instruction. The briefs do not direct us to a part of the record showing that such a limiting instruction was given during the testimony concerning the codefendant.
In reading both NJI 14.54 and NJI 14.54A, we note that NJI 14.54 appears to be the instruction a trial court would give where the jury had not been given a limiting instruction during the trial and that NJI 14.54A, which contains the language “During the trial you were told that certain evidence was admitted against one (or more) of the defendants and not against the other(s),” is intended where the court has instructed the jury during the trial. Defendant, in his fifth assignment, contends that this language confused the jury. We do not determine that it did, but in any event, defendant’s counsel agreed to the instruction as given. Defendant’s fifth assignment is without merit.
IV. “The trial court denied the Defendant a fair trial by allowing into evidence irrelevant uncharged crimes, wrongs or acts (Assignment #6).”
In his sixth assignment of error, the defendant contends that the trial court denied him a fair trial by admitting into evidence uncharged crimes, wrongs, or acts. Neb. Rev. Stat. § 27-404(2) (Reissue 1985) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Defendant points out that we have held that the admission of irrelevant uncharged misconduct evidence is reversible error. State v. Moore, 221 Neb. 706, 380 N.W.2d 288 (1986); State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983); State v. Stewart, 209 Neb. 719, 310 N.W.2d 706(1981). Each of the cases referred to by defendant, however, concerns a defendant tried for crimes the defendant committed alone, and concerns other activities of that defendant. There was no issue in those cases as to the relationship between the named defendant and others, all of whom were engaged in committing the same crime, such as in this case. In this case, in order to present a true picture to the jury of the relative culpability of the five participants in the death of James Thimm, it was appropriate for the State to present evidence showing the relationship of defendant to the other participants. All the evidence presented by the State in the way of defendant’s actions which consisted of uncharged crimes tended to show defendant’s dominance over the group. Such dominance was shown by defendant’s ordering others to engage in such sordid acts as homosexual and bestial conduct — and in the fact that others followed such orders. See People v. Manson, 61 Cal. App. 3d 102, 132 Cal. Rptr. 265 (1976).
The State was relying on the testimony of persons engaged in the same actions charged against defendant. Necessarily, the testimony of such criminals was indispensable to the State’s case. Testimony before the jury showed that those witnesses were permitted to plead to crimes lesser than murder in the first degree, and the jury was entitled to know of the relative involvement of all involved in this terrible crime. As set out in State v. Riley, 199 Mont. 413, 426, 649 P.2d 1273, 1280 (1982):
We hold that the jury is entitled to view the death of James Gill in the context of prior events and that the beatings inflicted by the other people in the community were not isolated events, but part of a continuous series of beatings inflicted by appellant and others over a period of months. To properly understand the events that took place before James Gill’s death, the jury was entitled to consider all of these factors of child abuse prior to the boy’s death.
It was also proper for the State to show defendant’s dominance of the Rulo group in order to present evidence to the jury with regard to the testimony of the accomplice witnesses. As stated in U.S. v. Scarfo, 850 F.2d 1015, 1020 (3d Cir. 1988),
The other crimes history was relevant to the government’s case. If accepted by the jury, the testimony was also damaging to defendant. That impact, however, does not require exclusion here where the evidence was essential in the government’s effort to establish the credibility of its disreputable, yet indispensable, witnesses.
Evidence of relevant uncharged misconduct may be admissible, and the admission of evidence of uncharged crimes lies largely within the discretion of the trial court. State v. Baker, 218 Neb. 207, 352 N.W.2d 894 (1984); State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981). In State v. Hitt, 207 Neb. 746, 749, 301 N.W.2d 96, 99 (1981), we held:
[E]vidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence... may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.
See, also, State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979); State v. Nielsen, 203 Neb. 847, 280 N.W.2d 904 (1979).
In the present case, five individuals took part in the acts resulting in the death of James Thimm. The State was entitled to produce evidence which would show that the defendant was the leader of those who took part in Thimm’s murder.
Evidence that the defendant’s control over the group included the ability to order sexual assaults, bestiality, and the abuse of a child was probative in that it showed the defendant’s absolute power over the group. This evidence was probative of the defendant’s overall motive, intent, and plan in his Rulo operation, and demonstrated the circumstances that led to the torture death of Thimm. The responsibility for maintaining the delicate balance between the probative and prejudicial effect of evidence lies largely within the discretion of the trial court. State v. Williams, supra.
There is a further reason the evidence of uncharged crimes was admissible. Defendant had entered a plea of “not responsible by reason of insanity.” Both for the benefit of the State and the defendant, the jury was entitled to know the circumstances leading up to the murder of Thimm. Without the background of those circumstances, the actual torture death of Thimm would be incomprehensible to a jury hearing just that evidence. The overall relationship among defendant, his accomplices in the murder, and the victim is essential to the understanding of the case by the jury.
The U.S. Supreme Court has set out the requirements for the admissibility of evidence under Fed. R. Evid. 404(b), the equivalent of Neb. Evid. R. 404(2). The Supreme Court stated there were four guidelines for admissibility under that rule: (1) The evidence must have a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must outweigh its potential for unfair prejudice; and (4) the court must instruct the jury to consider the evidence only for the purpose for which it was admitted. Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988).
In this case each of those criteria has been met. The trial court did not abuse its discretion in admitting the evidence of other crimes committed by, or participated in by, defendant.
V. “The jury should be instructed as to the consequences of an insanity verdict to avoid speculation and conjecture (Assignment #7).”
Defendant tendered an instruction (defendant’s requested instruction No. 2) which purported to set out, in detail, the procedures which would be followed “in the event of a verdict of acquittal on grounds of insanity ...” The instruction was refused, and defendant assigns that action of the court as error.
The law in this state on the question presented by defendant has been settled since 1979. In State v. Reeves, 216 Neb. 206, 218-19, 344 N.W.2d 433, 443 (1984), we held:
The defendant assigns as error the trial court’s refusal to instruct the jury with regard to the consequences of an acquittal by reason of insanity. In State v. Reitenbaugh, 204 Neb. 583, 284 N.W.2d 19 (1979), and State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979), we held that it was not error for the trial court to refuse to instruct a jury in a criminal case of the consequences of a verdict of not guilty by reason of insanity. Our reason for so holding was that, “ ‘in the absence of some specific statutory provision, a defendant’s disposition is not a matter for the jury’s concern.’ ” Reitenbaugh, supra at 585, 284 N.W.2d at 20.
Defendant’s contention in this regard is without merit.
VI. “Diminished capacity instruction should be given to jury if any sufficient evidence of the defense exists (Assignment #8).”
In his eighth assignment of error, defendant contends that the trial court erred in refusing to give defendant’s requested instruction on the question of defendant’s “diminished capacity” to form the intent necessary to commit murder in the first degree.
Such an instruction is not required under our law. In State v. Vosler, 216 Neb. 461, 467, 345 N.W.2d 806, 810 (1984), this court stated: “This court said therein [in the case of Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958)] 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.” The trial court did not err in refusing to give defendant’s requested instruction as to “diminished capacity.”
In the case before us, the court fully instructed the jury on the issues of intent and insanity. Aside from the general instruction on intent, the trial court instructed, in part, as follows:
You may consider any evidence received concerning the defendant’s mental condition as it bears on the presence or absence of the intent necessary to prove the crime charged. It is for you to determine from all of the facts and circumstances in evidence whether or not each defendant had the criminal intent or purpose [necessary to find the defendant guilty of first degree murder or murder in the second degree.]
Defendant’s eighth assignment is without merit.
VII. “ When the Defendant raises the issue of sanity the state should have the burden of proving beyond a reasonable doubt that the Defendant was sane at the time of the offense (Assignments #9 and #10)”
Prior to the trial the defendant filed notice of his intention to rely on insanity as a defense pursuant to Neb. Rev. Stat. § 29-2203 (Reissue 1985). This statute provides in pertinent part:
Any person prosecuted for an offense may plead that he ... is not responsible by reason of insanity at the time of the offense and in such case the burden shall be upon the defendant to prove the defense of not responsible by reason of insanity by a preponderance of the evidence____
Upon the filing of the notice the court, on motion of the state, may order the defendant to be examined at a time and place designated in the order, by one or more qualified experts, appointed by the court, to inquire into the sanity or insanity of the defendant at the time of the commission of the alleged offense.
The defendant contends that § 29-2203 is unconstitutional in that the statute “violates the Due Process Clause, Equal Protection Clause, and Cruel and Unusual Punishment Clause of the Fourteenth and Eighth Amendments to the United States Constitution and Article I, Sections Three, One and Nine of the Nebraska Constitution...” Brief for appellant at 46. The gist of assignments Nos. 9 and 10 is that § 29-2203 unlawfully shifts the burden to the defendant to prove by a preponderance of evidence that he was not responsible by reason of insanity.
The defendant sought to limit his culpability on the grounds that he was not responsible by reason of insanity. The jury was instructed that the State had the burden of proving that the defendant was guilty beyond a reasonable doubt of the crime charged against him. Section 29-2203 sets out an affirmative defense to the crime of murder and did not require the defendant to disprove any of the elements of the offense with which he was charged.
Defendant cites Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895), which held that the United States, in federal court actions, had the burden of proving that a criminal defendant was sane at the time of the offense. Defendant does not direct our attention to the fact that in 1952, the U.S. Supreme Court refused to apply the Davis rule, which the Court determined to be “only the rule to be followed in federal courts,” to proceedings in the State of Oregon. Leland v. Oregon, 343 U.S. 790, 797, 72 S. Ct. 1002, 96 L. Ed. 2d 1302 (1952). In the Leland case, the defendant pled not guilty to a charge of first degree murder and gave notice of his intention to rely on insanity as a defense under an Oregon statute which required a criminal defendant to prove his insanity beyond a reasonable doubt. The U.S. Supreme Court upheld the Oregon statute, noting that so long as the presumption of innocence was maintained and the State was required to prove all the elements of the crime charged beyond a reasonable doubt, a defendant could be required to plead and prove the defense of insanity, where defendant presents the defense as an absolute bar to the crime charged. The Nebraska statute is more favorable to a defendant, since the burden of proof under the Nebraska statute is by a preponderance of the evidence rather than beyond a reasonable doubt.
In Patterson v. New York, 432 U.S. 197, 205, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Supreme Court reaffirmed the viability of Leland, when it stated:
Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U.S. 877 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence.
See, also, Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987), where the Supreme Court of the United States affirmed a decision of the Ohio Supreme Court holding it was not unconstitutional to place the burden of proving self-defense, in a murder charge, on the defendant. In State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989), this court held that § 29-2203 was constitutional. We continue to so hold in this case.
Insofar as defendant contends that § 29-2203 is unconstitutional in view of the provisions of Neb. Const, art. I, §§ 1, 3, and 9, we also determine that § 29-2203 is constitutional.
In Leland v. Oregon, supra, and Patterson v. New York, supra, the U.S. Supreme Court confirmed that the Oregon and New York statutes, similar to § 29-2203, were constitutional. As stated above, § 29-2203 affords greater protection to a defendant than did Oregon’s statute, in that the Nebraska statute places a lesser burden of proof on a defendant. We hold § 29-2203 as constitutional under the Nebraska Constitution.
In the defendant’s 10th assignment of error, he contends that § 29-2203 is unconstitutional in that the “shifting of the burden of proof back and forth between the State and the Defendant is so confusing to the jury as to violate the Defendant’s Due Process Rights.” The defendant fails to cite this court to any authority for this proposition. The contention concerning possible confusion of the jury in determining the distinction between the State’s burden of proving premeditation and the other elements of a murder charge and a defendant’s burden of proving insanity was also present in the Leland case. On that issue, the Court stated:
We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State’s burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so.
Leland v. Oregon, 343 U.S. 790, 800, 72 S. Ct. 1002, 96 L. Ed. 2d 1302 (1952). We have reviewed the record and find that the instructions herein fully conform to the standards set out in Leland.
Potential jurors were informed during voir dire, and the court’s instructions provided, that the State was required to prove beyond a reasonable doubt all the elements of the crime charged. The jury was also instructed that defendant was required to prove by a preponderance of evidence that he was not responsible by reason of insanity.
These two burdens were specifically defined by the court in the general instructions to the jury, and the jury was instructed that the burden of proving all the elements of the crime never shifts from the State. The jury was also instructed as to the presumption of defendant’s innocence.
Section 29-2203 is not unconstitutional under the U.S. or Nebraska Constitution, and the instructions in this case did not violate defendant’s due process rights. Assignments Nos. 9 and 10 are without merit.
VIII. “Thirdparties should not be allowed to circumvent [a] sequestration order (Assignment #11).”
During the trial, the court ordered that the witnesses be sequestered pursuant to Neb. Rev. Stat. § 27-615 (Reissue 1985). The defendant contends that he was denied due process and his constitutional right to confront the witnesses against him because the State had a psychiatrist present in the courtroom during the trial and that this psychiatrist, Dr. Wingert, advised the prosecution and consulted with Dr. Kenney, a psychiatrist who testified on behalf of the State. The defendant contends that this was a violation of the sequestration order and violated his constitutional rights as set out above. We do not agree.
After the jury had been excused for lunch on Thursday, April 3, 1986, Dennis Ryan’s attorney moved the court for an order to prevent the State’s psychiatrist who was testifying at the trial from speaking to the State’s psychiatrist who had been present in the courtroom during the trial. The court responded:
THE COURT: I don’t think there was any order of sequestration that said that people couldn’t talk to each other outside of the courtroom. There just wasn’t such an order entered. If you want to show me one, Mr. Rehm, I will be happy to look at it.
MR. REHM [Dennis Ryan’s cocounsel]: Well, I think that it’s so — If you have a sequestration order, the idea is that you don’t want your witnesses, subsequent witnesses, to get —
THE COURT: Mr. Rehm, you’ve showed depositions to all of your witnesses. What are you talking about?
MR. REHM: I didn’t have a psychiatrist sitting in here that talked to the other psychiatrist to tell him what the other doctor said in professional terms. We didn’t do that. We haven’t had that.
THE COURT: Mr. Rehm, you asked for a daily copy, which you were granted, so you could take the testimony from the courtroom and deliver it to your witnesses so they could read it. Now what are you talking about?
MR. REHMEIER [the assistant prosecutor]: Dr. Wingert has been present and Dr. Wingert has conferred with Mr. Merz [the prosecutor] and myself and with Dr. Kenney [the State’s psychiatrist]. That was the reason to have him in here. The first day that Dr. Wingert was in here, Mr. Rehm knew it and asked me, “Are you going to call that guy as a rebuttal witness? ”
I said, “No. He is in here to assist us on the terminology and what is going on in the courtroom.” He knew from the very first day that Dr. Wingert ever walked into this courtroom his purpose.
Now he waits and raises this.
Number two, there is no violation of the sequestration rule. We’re not going to be calling Dr. Wingert as a witness. There’s no difference in me talking to my witness or if I have somebody else sitting here listening on my behalf to help me understand what in the heck is going on so that I can intelligently talk to our psychiatrist.
There are several problems in the discussion of this point. Initially, we are not directed by defendant to any part of the record setting out the terms of the sequestration order, nor does our examination disclose a specific order. We will assume that a general court order as to sequestration of witnesses was made by the court based on § 27-615. The record shows that a motion for mistrial was made and overruled, but defendant does not cite that action of the court as error, but instead alleges that violation of the statute violates his constitutional rights.
The sequestration statute, § 27-615 provides:
At the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make the order on his own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
As far as the record discloses, there has been no evidence that any witness has heard “the testimony of other witnesses.” Further, we note that the record appears to indicate that Dr. Wingert may well have been a natural person designated as a representative of a party not a natural party, the State of Nebraska. Counsel for the State told the court that the presence of Dr. Wingert was essential to the presentation of its case. See § 27-615(2) and (3).
Further, it would appear that defendant waived the presence of Dr. Wingert during portions of the trial. Dennis Ryan’s counsel was informed by the prosecutor on the first day Dr. Wingert appeared that Dr. Wingert was not to be called as a witness and that he was present to assist the prosecutors “on the terminology and what is going on in the courtroom.” No objection was raised until Dr. Kenney was halfway into his testimony. The objection was too late.
Defendant has not been deprived of any constitutional rights because of the presence of Dr. Wingert at the trial. See State v. Jackson, 231 Neb. 207, 435 N.W.2d 893 (1989). There is no merit in defendant’s assignment of error No. 11.
IX. “To avoid the undue influence of jurors they should be sequestered during trial and deliberations in a capital case (Assignment it 12).”
The defendant requested that the jury be sequestered throughout the trial and deliberations. The trial court denied the request, but did order the jury sequestered during its deliberations, as required by Neb. Rev. Stat. § 29-2022 (Reissue 1985).
The determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980). Defendant asks that we overrule Myers to the extent that it holds that it is within the trial court’s discretion to determine whether the jury should be sequestered during the trial of a capital case.
The defendant does not allege jury misconduct or that he was prejudiced by the trial court’s decision not to sequester the jury during the trial. Section 29-2022 provides, in part:
If the jury are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on the subject of the trial, nor to listen to any conversation on the subject; and it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.
In keeping with the legislative mandate that requires this court to review all cases where the death penalty has been imposed, we have reviewed the record and conclude that the trial court did not abuse its discretion and that the defendant was not prejudiced as a result of the trial court’s refusal to sequester the jury during the trial. The rule in Myers stands. Defendant’s assignment No. 12 is without merit.
X. “ The state must prove that the Defendant intended to kill the victim (Assignment #13).”
Defendant’s assignment No. 13 sets out that the “ ‘Aider and Abettor’ jury instruction created an impermissible presumption which denied the Defendant his rights under the Due Process Clause and Cruel and Unusual Punishment Clause.” Defendant’s argument heading and his assignment of error lead to the conclusion that defendant is assigning as error the court’s giving of instructions Nos. 11 and 13.
The jury was given two instructions on aiding and abetting. Instruction No. 13 reflected NJI 14.12, and provided:
To be guilty of the crime charged, it is not necessary that the State prove that defendant Michael W. Ryan himself committed the unlawful act or acts in question.
Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.
If you find from the evidence beyond a reasonable doubt that the unlawful act or acts in question were committed by another person who was:
1. Engaged by defendant Michael W. Ryan to commit the unlawful act or acts, or
2. Engaged with defendant Michael W. Ryan in a common, concerted unlawful act or acts, or
3. Incited or encouraged by defendant Michael W. Ryan to commit the unlawful act or acts,
then defendant Michael W. Ryan is as guilty as if he himself committed the unlawful act or acts, and it is your duty to find defendant Michael W. Ryan guilty.
Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act or deed. No particular acts are necessary; nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor. Mere encouragement or assistance is sufficient.
On the other hand, evidence of mere presence, acquiescence, or silence is not enough to sustain the State’s burden of proving a defendant guilty.
This instruction accurately describes the statutory requirements of Neb. Rev. Stat. § 28-206 (Reissue 1985), which provides: “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.”
The jury also received instruction No. 11, which provided in part:
Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held as a principal unless it is established that the aider knew that the perpetrator of the act had the required intent, or that the aider himself or herself had the required intent. If the intent of the aider is different from that of the perpetrator, the aider’s guilt is measured by the intent that actuated him or her.
In addition, the court instructed the jury as to the intent necessary to be found before the defendant could be convicted of the various degrees of homicide.
The defendant contends that the language of instruction No. 11 “had the effect of letting the jury find the Defendant guilty of First Degree Murder without specifically finding that the Defendant intended to kill.” Brief for appellant at 51. Defendant is not correct in this assertion. Instruction No. 11 told the jury that an aider and abettor could not be held as a principal unless he knew the perpetrator had the required intent. The jury was also instructed that an “aider’s guilt is measured by the intent that actuated him... .” The jury was properly instructed on the law of aiding and abetting, and there was more than sufficient evidence before the jury to support a determination of defendant’s guilt of first degree murder. Defendant’s assignment No. 13 is without merit.
XI. “Fundamental fairness demanded the testimony of co-defendants be excluded (Assignment #14)”
In this assignment of error, defendant does not complain of any specific action of the trial court, but states, “By ¿lowing co-defendants to testify who admittedly had continually lied and guessed under oath, the Court decreased the reliability of the trial so as to violate the Defendant’s Due Process rights and subjected him to Cruel and Unusual Punishment.”
The conduct of the court complained of in this assignment apparently was the trial court’s failure to exclude the testimony of “John Andreas, James Haverkamp, Timothy Haverkamp, and Ora R.S.” Brief for appellant at 52. The testimony of Stice will not be considered in this regard, since he was not a codefendant, nor was he an accomplice in the actual murder of James Thimm.
With regard to the testimony of the others named, while they were all accomplices in the murder of Thimm, none of those named were actually codefendants during the trial of defendant and Dennis Ryan. The case filed against Timothy Haverkamp was consolidated at one time with defendant’s case, but Timothy Haverkamp pled guilty to second degree murder before defendant’s trial and appeared in the trial as a witness for the State. Andreas and James Haverkamp pled guilty to other charges before defendant’s trial. The testimony of these witnesses will be discussed as the testimony of accomplices.
This court has long held that an accomplice is competent to testify and that the value of such testimony is for the jury. State v. Sneff, 22 Neb. 481, 35 N.W. 219 (1887). We have held that a criminal conviction may be based upon the uncorroborated statements of an accomplice. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986); State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986).
The jury was given the following instruction:
The State has adduced testimony from claimed accomplices. Their testimony should be closely scrutinized for any possible motives for falsification, and if you find that any of them has testified falsely in regard to any material matter, you should be hesitant to convict upon his testimony without corroboration, and in no case should you convict a defendant unless you are satisfied of his guilt from all the evidence beyond a reasonable doubt.
The defendant contends that James Haverkamp “admitted to one lie after another, to guessing instead of telling the truth and to fabricating testimony to protect himself and others.” Brief for appellant at 57. Where the jury has been properly instructed that testimony of an accomplice should be scrutinized closely for possible motives of falsification, the uncorroborated testimony of an accomplice who has given false testimony concerning a material matter may be sufficient to sustain a conviction. State v. Smith, 219 Neb. 176, 361 N.W.2d 532 (1985). In the cause before us, the evidence in the record, including defendant’s own testimony, shows that the evidence of defendant’s guilt was overwhelming.
The trial court properly instructed the jury, and the evidence was sufficient to support the jury’s finding. The testimony of Andreas, James Haverkamp, and Timothy Haverkamp was properly before the jury, and it was for the jury to decide what weight to attach to their testimony. Defendant’s assignment of error No. 14 is without merit.
XII. “There was insufficient evidence for the jury to find beyond a reasonable doubt that the Defendant intended to kill the victim (Assignment #15).”
Defendant’s 15th assignment alleges: “There was insufficient evidence to prove the Defendant guilty of the killing of James Thimm. The jury also erred by not finding the Defendant met his burden on the question of his insanity.” With regard to the contention that there was insufficient evidence presented at the trial to warrant his conviction for first degree murder, we have said above that the evidence was overwhelming. The defendant testified at the trial. During this testimony the defendant admitted that he was the leader of the group and admitted that he gave orders to torture Thimm. The events of the torture and death were presented in nauseating detail. The defendant also admitted to having used the arm test through L.H. in order to determine when Thimm was to die. The record also shows that Ryan had Thimm sign the title of his vehicle over to Timothy Haverkamp. All the evidence clearly indicated that the defendant intended to take Thimm’s life. Defendant’s contention in this regard is frivolous.
The defendant also asks this court to find as a matter of law that he was insane under the provisions of § 29-2203 and lacked the requisite mental state to be able to form the intent necessary to be convicted of first degree murder. The statute explicitly leaves this determination to the jury.
The record demonstrates that there was ample evidence before the jury to support a finding that the defendant was legally sane at the time of James Thimm’s murder. The defendant was examined by Maurice K. Temerlin, Ph.D., a clinical psychologist, who testified on defendant’s behalf. Dr. Temerlin testified that in his opinion the defendant was a paranoid schizophrenic. Dr. Temerlin supported his opinion with the following statement:
My opinion is that [the defendant] was so lost in Wickstrom’s teachings and had been so — his mind so distorted by Wickstrom’s teachings and by his own individual psychology and the crazy environment in which he lived, that he did not know what he was doing, or did not understand the consequences of it. I think he thought that he was doing what Yahweh wanted him to do, to punish sinners. And to him, given the disorganized, nonrational state that I think his mind was in, he was doing a virtuous deed.
The defendant was also examined by James K. Cole, Ph.D., a clinical psychologist. Dr. Cole testified that there was no evidence that the defendant was suffering from schizophrenia at the time of Thimm’s murder. Dr. Cole also testified that there was no evidence that the defendant was suffering from any type of psychosis.
Emmett Kenney, M.D., a psychiatrist, also examined the defendant and testified on behalf of the State. Dr. Kenney testified that there was no evidence that the defendant was suffering from an organic brain syndrome or psychosis and that the defendant was capable of understanding the nature and quality of his acts during the time Thimm was being tortured. Kenney also testified that he did not believe that the defendant suffered from paranoid schizophrenia, that the defendant had a sufficient mental capacity to turn the matter over in his mind, and that the defendant intended the obvious and probable consequences of his actions. Kenney testified that defendant “had sufficient capacity to understand the rightness or the wrongness of his acts” and that “he did know that the acts were wrong and were deserving of punishment.” Kenney also testified that the Rulo group was “an eccentric family or ... an adult criminal gang.”
It was on this evidence that the jury concluded that the defendant was sane. The credibility and weight to be given testimony is a matter for the evaluation and determination of the jury. State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986). The defense of insanity when interposed by an accused is a question of fact for the jury. Philbrick v. State, 105 Neb. 120, 179 N.W. 398 (1920). The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. State v. Russell, 194 Neb. 64, 230 N.W.2d 196 (1975); State v. Klatt, 187 Neb. 274, 188 N.W.2d 821 (1971); State v. Newson, 183 Neb. 750, 164 N.W.2d 211 (1969).
In determining whether the evidence before a jury was sufficient to support the jury’s finding, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury, for these are within the jury’s province for disposition, and a jury’s verdict must be sustained if evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. State v. LynCook, 227 Neb. 719, 419 N.W.2d 686 (1988); State v. Lane, 227 Neb. 687, 419 N.W.2d 666(1988).
The issue of defendant’s sanity was fairly presented and decided by the jury, and we will not disturb that decision on appeal. Defendant’s assignment of error in this regard is without merit.
XIII. “ Judicial misconduct and failure of the Court to disqualify itself at sentencing denied Defendant a fair and impartial sentencing tribunal (Assignments #16 and #17).”
Rather than an assignment of error, in his assignment No. 16 defendant has stated what he considers a fact determinative of his statement that he has been denied due process, apparently during the guilt-innocence part of the trial. In his assignment No. 17, defendant straightforwardly sets out that the trial judge erred “in failing to disqualify [himself] at the penalty phase” of the trial and in support of that contention sets out events occurring during the trial. We shall treat assignment No. 16 as if defendant is contending that the trial judge erred in failing to disqualify himself from presiding at the trial. As presented in defendant’s brief, the two points are argued together, and we will so consider them.
This court, long ago, set out the standards as to conduct during a trial to which a trial judge must conform in order to provide a defendant a fair trial. In Hansen v. State, 141 Neb. 278, 286-87, 3 N.W.2d 441, 446 (1942), we said:
“It is the duty of the court to abstain carefully from any expression of opinion or comment on the facts or evidence, not only in its charge to the jury... but also on the examination of witnesses and otherwise during the course of the trial. The trial judge should not deny the existence of any fact bearing on the innocence of accused, or make any remark or inquiry in the presence of the jury concerning matters of fact at issue which indicates his opinion as to such facts.” ...
“... It is well known to those who are familiar with jury trials that jurors are usually alert to discover the attitude of the court respecting the merits of the case, and particularly in criminal actions. For this reason, among others, the court should avoid even the appearance of partiality as between the parties____”
See, also, Moore v. State, 147 Neb. 390, 23 N.W.2d 552 (1946); State v. Bideaux, 219 Neb. 718, 365 N.W.2d 830 (1985); State v. Larmond, 244 N.W.2d 233 (Iowa 1976).
The cases we have cited are concerned primarily with statements made by the trial judge, but it is axiomatic that conduct can speak as loudly as words. The trial judge in this case, by his conduct, has expressed himself to some degree. We must consider whether that conduct has prejudiced defendant’s right to a fair trial.
The facts set out by defendant on these issues are the following.
During the sentencing hearing held on September 15, 1986, the defendant’s attorney asked the trial judge
to say something about the meeting in chambers when we were here for sentencing on the second degree murder charge. [The defendant pled nolo contendere on July 28, 1986, to the second degree murder of Luke Stice and was sentenced to life imprisonment for this murder on September 11, 1986.] The meeting in chambers, apparently, between the court and to some extent, Mr. Merz [the prosecuting attorney], with — with persons interested in the Luke Stice matter.
THE COURT: Okay. Well, for the record and for your information, Mr. Goos and Mr. Ryan, the Court has, after each — at the conclusion of each case, asked the family members of the victims if they would like to visit with the Court, and if so, answer certain questions about legal proceedings that might have gone on during the course of the trial. And a number of the family members did want to visit with the Court and, basically, the subject of that visit was to answer — All right, Mr. Merz, first of all, wasn’t there except for — I asked him to explain one thing to them. And, basically, it was just to answer questions about the proceedings that went on pertaining to that case. There was absolutely no discussion about any other cases other than that case____
... The Court didn’t have any inquiries it wanted to make of the family. The only thing the Court wanted to do was make itself available to the family to answer any questions about any procedural matters; legally — legal procedural matters that might have been confusing to them, ’cause we’re quite frequently getting criticized that —that no one ever shows any consideration of the victims by at least being willing to answer questions. And I asked Mr. Merz to come in and answer a question that they had, and to be right honest with you, I — Do you recall what that was? It had to do with the plea bargain, I believe.
MR. MERZ: Well, Your Honor, the substance of the question was, frankly, what was the legal effect of the no contest or the nolo contendere plea.
THE COURT: Yeah, that’s right. So, that question was raised to, you know, what is the legal consequences of a — or, significance or meaning of a no contest plea____
(Emphasis supplied.)
In State v. Barker, 227 Neb. 842, 847, 420 N.W.2d 695, 699 (1988), we held: “[A] judge, who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding, must recuse himself or herself from the proceedings when a litigant requests such recusal.” See, also, State v. Jenson, 232 Neb. 403, 440 N.W.2d 686 (1989).
Initially, we must determine whether the trial judge violated this rule. It is true that the trial judge stated he had invited an ex parte communication with “the family members of the victims.” The law does not condone such a practice. The record does not show, however, that the trial judge met with the James Thimm family, and the judge affirmatively stated, “There was absolutely no discussion about any other cases than that [Luke Stice] case.” There is nothing in the record indicating anything to the contrary.
The trial judge did meet with the Luke Stice family before defendant was sentenced on his plea of nolo contendere to the second degree murder of Luke Stice, and so stated in the case before us. In that connection, the trial court acted as a witness within the holding set out in State v. Barker, supra. The propriety of the court’s actions in the Stice murder case is not before this court in this case. Any communication the judge had with the Stice family cannot be said to have concerned the pending or impending proceeding before the trial court and this court in this case, the murder of James Thimm, in connection with either the sentencing of defendant or the conduct of the trial.
Additionally, the sentencing court did not consider the Luke Stice murder as an aggravating circumstance under Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 1985). This subsection provides: “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.”
We held in State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986), and State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), that this circumstance exists where the defendant had killed someone prior to the murder for which he was sentenced to death.
The rule set forth in Barker, supra, does not apply to the case at bar, given the fact that the ex parte meeting did not concern a pending case, and the murder of Luke Stice was not considered under circumstance (l)(a) by the judge in sentencing the defendant.
In his 17th assignment of error the defendant contends that he was prejudiced before the jury when the trial judge turned his back to the defendant “during at least half of [the defendant’s] testimony.” Brief for appellant at 59. During a hearing on a motion for a new trial the trial judge stated to defendant’s attorney:
Let me get your advice for the next trial, would you rather that when testimony’s coming in about a shovel handle going up somebody’s rectum and it just, you know, kind of smarts a little bit, would you rather I do that facing the jury, or would you rather I do that with my back to the jury?
The trial judge apparently has admitted the conduct alleged by defendant on this point. 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.
If it be considered that defendant is attacking the judge’s conduct as affecting the guilt-innocence portion of the trial, there are separate reasons why that conduct does not require reversal of this cause on that issue.
With regard to the Luke Stice matter, 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.
With regard to the judge’s actions during defendant’s testimony, we cannot find in the record, nor are we directed to any portion of the record, where defendant objected to the judge’s actions. The incident was not mentioned until defendant filed a motion for new trial after the verdict. It is not possible for this court to now judge the effect of the judge’s turning his back on defendant while he was testifying, but defendant may not let that occur and then, after the verdict, complain of the conduct. We are not faced with the situation in State v. Larmond, 244 N.W.2d 233 (Iowa 1976), where the Iowa court was faced with the further problem that defendant’s counsel was inexperienced. Defendant’s counsel in this case was experienced and, as the record shows, was not at all reticent in representing defendant.
Insofar as defendant contends the trial judge’s activities affected the sentencing procedure, that issue will be discussed later in this opinion.
Defendant’s 16th and 17th assignments of error are without merit.
XIV. “It is error for the sentencing judge not to convene a three-judge panel when requested by the Defendant (Assignments #18, #19,).”
The defendant contends that § 29-2520 is unconstitutional, since it grants the trial judge discretion in determining whether a three-judge sentencing panel will preside over the sentencing of a defendant charged with a capital crime. We have held that the sentencing procedure provided by § 29-2520 does not violate either the Nebraska or federal Constitution. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977).
As we noted in State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977), the State of Florida has a statute similar to § 29-2520. This statute, Fla. Stat. Ann. § 921.141 (West 1985), provides:
Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment.... The proceeding shall be conducted by the trial judge before the trial jury ....
... After hearing all of the evidence, the jury shall deliberate and render an advisory sentence to the court
... Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death____
This statute was challenged on constitutional grounds in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 960, 49 L. Ed. 2d 913 (1976). We quoted from Proffitt in State v. Simants, supra at 558, 250 N.W.2d at 887:
“[I]t would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.”
The Nebraska statute, § 29-2520, provides for the sentencing determination to be made by:
(1) The judge who presided at the trial or who accepted the plea of guilty; (2) a panel of three judges including the judge who presided or accepted the plea, the two additional judges having been designated by the Chief Justice of the Supreme Court after receiving a request therefor from the presiding judge; or (3) a panel of three district judges named by the Chief Justice of the Supreme Court when such Chief Justice has determined that the presiding judge is disabled or disqualified after receiving a suggestion of such disability or disqualification from the clerk of the court in which the finding of guilty was entered.
This statute does grant the trial judge discretion in that he or she may opt to conduct the sentencing with or without the assistance of two additional judges. However, this discretion cannot be said to be constitutionally infirm where the U.S. Supreme Court has held that a single judge presiding at a defendant’s trial may conduct and decide the sentencing phase of a capital case. Hildwin v. Florida,_U.S._, 109 S. Ct. 2055, 104 L. Ed. 2d 728 (1989); Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984).
The U.S. Supreme Court has refused to select a single best method for a state to conduct capital sentencing. Spaziano, supra. See, also, Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 871 (1984); Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
There are currently 37 states with death penalty statutes. Twenty-nine of these states have statutes that allow a death sentence only after a jury recommends such a sentence. Three of these states allow a judge to override the jury’s recommendation. Ala. Code § 13A-5-46 (1982); Fla. Stat. Ann. § 921.141 (West 1985 & Supp. 1989); Ind. Code § 35-50-2-9 (Supp. 1988). Nevada requires a three-judge panel to impose sentence only if the jury cannot agree. Nev. Rev. Stat. §§ 175.554 and 175.556 (1987). Of the remaining four states, of which Nebraska is one, the sentencing determination in a capital case is made by a judge without a jury. Ariz. Rev. Stat. Ann. § 13-703 (Supp. 1988); Idaho Code § 19-2515 (1987); Mont. Code. Ann. § 46-18-301 (1987); Neb. Rev. Stat. § 29-2520 (Reissue 1985). After reviewing these statutes and the cases interpreting them, we are convinced that the Nebraska Legislature has provided a sentencing method that is fair and sensitive to a capital defendant and satisfies the requirements of the U.S. and Nebraska Constitutions. The Nebraska statute ensures the death penalty will not be imposed arbitrarily or discriminatorily.
Defendant argues that where a defendant has requested a three-judge sentencing panel, such a panel should be mandatory. We disagree. The statute clearly places the discretion with the trial judge, and this grant of discretion is neither unreasonable nor constitutionally infirm.
Pursuant to Neb. Rev. Stat. § 29-2521.03 (Reissue 1985), this court is charged with a review to determine the propriety of the death sentence in a case in which it has been imposed by comparing the sentence with previous cases involving the same or similar circumstances. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). We have compared this case with previous cases in which the death penalty has been imposed under § 29-2520. We do not find any evidence in the record indicating the defendant was prejudiced by the trial judge’s refusal to request the designation of a three-judge sentencing panel.
The determination of whether to request the designation of a three-judge sentencing panel under § 29-2520 is left to the discretion of the district court, and absent a showing of an abuse of that discretion, this court, on appeal, will affirm that decision. Defendant’s 18th, 19th, and 20th assignments of error are without merit.
XV. “Defendant’s sentence was unconstitutionally imposed because he was denied a jury trial on the facts that comprise the ingredients of his offense (Assignment #21).”
The defendant argues that Neb. Rev. Stat. § 29-2522 (Reissue 1985) is unconstitutional in that it denies a criminal defendant the right to have a jury determine the factual issues comprising the condemned criminal act. This contention has been determined adversely to defendant’s position.
The U.S. Supreme Court held in Hildwin v. Florida, supra at 109 S. Ct. at 2057:
[T]he requirement that the [capital sentencing] findings be made by a judge rather than the jury did not violate the Sixth Amendment because “there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” [Quoting McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).] Like the visible possession of a firearm in McMillan, the existence of an aggravating factor here is not an element of the offense but instead is “a sentencing factor that comes into play only after the defendant has been found guilty.” Id., at 86, 106 S.Ct., at 2417. Accordingly, the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.
See, also, State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). Assignment No. 21 is without merit.
XVI. “ Without an affirmative showing on the record that Miranda type warnings have been given to the Defendant prior to an examination by the state’s psychiatrist the psychiatrist should be precluded from testifying at the penalty hearing (Assignments #22 and #23).”
In his assignment No. 22, defendant states that “[b]y the introduction of the State’s psychiatrist’s testimony at the sentencing stage without the State giving the Defendant Miranda type warnings prior to the psychiatrist’s interview of the Defendant, the Defendant’s constitutional protection against self-incrimination were [sic] violated.”
On this point, defendant sets out no specific action of the trial court which he challenges in this regard. Apparently, defendant is assigning as error the failure of the trial court to sustain his objection to the use of the trial testimony of the State’s psychiatrist, Dr. Kenney, at the sentencing.
Assignment No. 23 is another general statement that defendant was denied due process and effective counsel because he did not receive “advanced notice of the intended use of the psychiatric exam by the State” — apparently at the penalty phase of the trial. Again, there is no assignment of error in any specific action of the trial court, but we assume the error complained of is the court’s consideration of Dr. Kenney’s trial testimony during the penalty phase, when defendant had not been given Miranda warnings prior to a psychiatric examination which had been ordered after the defendant gave notice of his intention to rely on an insanity defense.
Defendant cites this court to Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), wherein the court ordered a psychiatric examination of defendant. Smith was examined by a court-appointed psychiatrist pursuant to a court order, which the trial judge had entered sua sponte, to determine the issue of Smith’s competency to stand trial. After the trial, Smith was found guilty of murder by a jury. At a separate sentencing hearing after Smith had been found guilty by the jury, this same psychiatrist, who was not listed as a witness, testified on behalf of the State, over Smith’s objections, on the question of defendant’s future dangerousness. The Supreme Court summed up the case when it stated: “The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent.” 451 U.S. at 465. On these facts, the U.S. Supreme Court held: “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” 451 U.S. at 468.
This ruling is not applicable to cases where a defendant has put his sanity into issue. In this case, defendant put at issue his sanity, as a defense to the charge of first degree murder. He apparently contends that the question of defendant’s insanity must be decided twice — at the trial of the guilt or innocence of defendant and at the penalty hearing — and that evidence at the trial should not be considered at the penalty phase.
At the jury trial on the issue of defendant’s innocence or guilt, a psychiatrist testified on defendant’s behalf.
At the penalty phase of the trial, the same psychiatrist testified that at the time of the murder of James Thimm, defendant was acting under “unusual influences.” In answer to the question “do you feel that he was under the influence of any extreme mental or emotional disturbance,” this witness answered: “[I]f that phrase includes what we would term being actively psychotic or being delusional with regards to the events that were going on at the time, the answer would be yes.” This witness also testified, in answer to the question, “What about his capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law? ” as follows:
A Well, certainly he, personally, did not view what happened to James Thimm as wrong, but as something commanded by God and as something he was obligated to obey. In terms of his ability to control his behavior, to the extent that his behavior is — is guided by a persons thought process, and his, regarding that issue, was — was clearly delusional. His behavior was not under the influence of any kind of cognitive control.
These answers were obviously a part of defendant’s evidence to show that mitigating circumstances (b), (c), and (g) of § 29-2523(2) were proved by defendant by the evidence before the court on the penalty phase. These answers were based on the examination the witness had made of the defendant in connection with the insanity defense filed on behalf of the defendant. After the psychiatrist had testified at the penalty phase, the defendant testified on his own behalf.
At the conclusion of the defendant’s testimony, Emmett Kenney, M.D., a psychiatrist, testified in rebuttal for the State. During the guilt-innocence phase Dr. Kenney testified that he had examined the defendant at his office in Omaha under the following circumstances:
I introduced myself, explained my particular role, explained that it was not a standard psychiatric interview in that it was not confidential, explained that the other way in which it was not customary was that there was a tape-recorder present on the desk. I asked him to speak loudly... and explained that the tape-recording was there at the request of his attorney.
It is obvious from this uncontroverted testimony that the defendant was advised that anything he told Dr. Kenney would not be kept confidential and that defendant’s counsel was fully aware of the psychiatric interview in that the examination was being recorded for the defendant’s attorney. The rule set forth in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), does not apply under these circumstances.
In Buchanan v. Kentucky, 483 U.S. 402, 404, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987), one of the questions determined by the Supreme Court was
whether the admission of findings from a psychiatric examination of petitioner proffered solely to rebut other psychological evidence presented by petitioner violated his Fifth and Sixth Amendment rights where his counsel had requested the examination and where petitioner attempted to establish at trial a mental-status defense.
In the case before us, defendant and his counsel had, in effect, requested or authorized a psychiatric examination by a State’s expert when the defense of insanity was raised under § 29-2203. Further, defendant was attempting to establish at trial, and at the sentencing hearing, a “mental-status defense.”
The Supreme Court has held that, in such circumstances,
[s]uch consultation, to be effective, must be based on counsel’s being informed about the scope and nature of the proceeding. There is no question that petitioner’s counsel had this information. To be sure, the effectiveness of the consultation also would depend on counsel’s awareness of the possible uses to which petitioner’s statements in the proceeding could be put. Given our decision in Smith, however, counsel was certainly on notice that if, as appears to be the case, he intended to put on a “mental status” defense for petitioner, he would have to anticipate the use of psychological evidence by the prosecution in rebuttal.
483 U.S. at 424-25.
In this case, defendant’s challenge to the testimony of Dr. Kenney at the sentencing hearing is without merit. Defendant’s contention that Dr. Kenney’s trial testimony should not have been considered at the penalty phase is discussed in the following argument. Defendant’s assignments of error Nos. 22 and 23 are without merit.
XVII. “Introduction of entire trial record by the state at the sentencing phase was error (Assignments #24, #25, #26, #27, #28, and #29.”
Defendant has summarized his assignments of error Nos. 24 through 29 in the heading to his argument XVII. We shall assume that in those assignments of error, defendant is assigning an error which may be summarized as alleging that the trial court erred in receiving the evidence at the trial in the sentencing portion of the trial because, by such action, defendant was denied his right to confront the witnesses against him.
We first note that a motion by the prosecutor that the court take judicial notice “of the trial record in these proceedings” and the court’s oral finding that he would take such judicial notice are inappropriate. An entire trial record cannot be said to fall within the definition of a judicially noted fact as set out in Neb. Rev. Stat. § 27-201(2) (Reissue 1985). Nonetheless, for reasons set out below the trial court was entitled to consider the evidence adduced at trial during the sentencing phase.
In its sentencing order, the court did make factual findings based on evidence received during the guilt-innocence phase of the trial. It is clear that the court did not err in the respects claimed by defendant and, indeed, that the assignments in this regard are frivolous. First of all, Neb. Rev. Stat. § 29-2521 (Reissue 1985) provides in part:
In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances set forth in section 29-2523. Any such evidence which the court deems to have probative value may be received.
Also,§ 29-2522(3) provides in part:
In each case in which the court imposes the death sentence, the determination of the court shall be in writing and 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.
This section clearly allows the sentencing body to consider evidence adduced at trial to support findings of aggravating and mitigating circumstances.
Further, in 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. 219 (1981), we said:
We are unable to find any requirement in the law that a sentencing court may consider only information adduced at trial when exercising discretion in imposing sentence. Likewise, we find no constitutional requirement to permit one convicted the right to confront all who might give information to be used by the sentencing court. Such a requirement goes far beyond any constitutional mandate.
As can be seen, this court implicitly held that a trial court can, at a minimum, consider evidence adduced at the trial at the sentencing phase of a capital case. See, also, State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984). Defendant’s assignments Nos. 25 through 29 are without merit.
XVIII. “Deposition of a Codefendant should not be introduced at sentencing hearing even if Codefendant refuses to testify (Assignments #30, #31, and#32).”
Defendant assigns as error the sentencing judge’s action in permitting into evidence the deposition of Timothy Haver kamp at the defendant’s sentencing hearing after Timothy Haverkamp refused to testify at the hearing. Among other allegations, defendant contends he was denied his right of confrontation. This contention is frivolous.
The trial court did not commit reversible error in allowing the deposition of Timothy Haverkamp in evidence at the sentencing phase of the trial. The testimony Timothy Haverkamp gave at trial was substantially the same as, if not identical to, the testimony contained in his deposition.
The admission of this deposition was merely cumulative, since the trial court record was already before the sentencing court as disclosed above. At the trial, Timothy Haverkamp was cross-examined extensively by the defendant’s attorney. Timothy Haverkamp’s testimony on direct examination at the trial encompasses 87 pages of the record, and there are 99 additional pages of cross-examination.
Defendant was not prejudiced by the trial court’s admission of Timothy Haverkamp’s deposition during the sentencing phase.
XIX. “Defendant is entitled to receive advanced notice of aggravating facts on which the state will rely at sentencing (Assignment #33).”
Prior to the sentencing phase the defendant filed a motion requesting that the State provide the defendant with the evidence it intended to utilize during the sentencing hearing. This motion was sustained by the court. The defendant argues that since the record does not affirmatively show that this information was provided to the defendant, he was denied his constitutional right to be “informed of the nature and cause of the accusation against him... .” Brief for appellant at 75-76. We disagree. Without some affirmative showing in the record that a grant of a motion for discovery was violated, this court will presume compliance. No such violation was ever directed to the attention of the trial court. We need not discuss the matter further. Defendant’s assignment of error No. 33 is without merit.
XX. “The Court must find the facts upon which an aggravating circumstance relies beyond a reasonable doubt (Assignments #34 and #35).”
In these two assignments defendant again makes general statements without specifying what action of the trial court constituted error. We, of course, agree that the facts upon which the applicability of an aggravating factor depends must be proved beyond a reasonable doubt. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
As we understand the thrust of defendant’s assignment of error No. 34, defendant contends that in considering the applicability of § 29-2523(1)(d), the court made a finding in subsection (i) of paragraph 4 of its sentencing that “[t]here 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” and that this finding, by its own terms, has found this fact by less than the standard of “beyond a reasonable doubt.”
We fully agree with defendant’s statement that this finding, if it was a finding, was not supported by sufficient evidence and should not have been made. The trial court itself did note, however, that there was only “some evidence,” and apparently did not consider this factor in its ultimate determination.
We cannot agree with defendant’s conclusion, however, that “[i]f the Court on this one identifiable instance found facts by the wrong standards, it must be assumed that the Court was using the wrong standard on all or a part of the other findings of fact throughout the Order.” Brief for appellant at 76. Such a leap in logic is not required as a matter of law by this court. The particular statement of fact referred to above is not supported by the evidence; the trial court so stated; and we have so stated. The reference to possible penis amputation was made by the State’s pathologist in his testimony concerning the autopsy, but that same pathologist, in other testimony, argues that the disfiguration is probably the result of decomposition.
That does not control the outcome of this particular assignment of error. The ultimate finding made in connection with this particular challenged finding was that “[t]he court concludes and finds beyond a reasonable doubt this aggravating circumstance [the murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence. § 29-2523(1)(d)] exists in this case.”
In support of that finding, the court lists 10 other specific acts which the court found had been proved beyond a reasonable doubt. Among those specific findings were:
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;
e) Michael W. Ryan skinned James Thimm while he was alive----
Our examination of the record shows that all of the other specific facts related by the trial court were established by evidence beyond a reasonable doubt. Defendant does not specifically challenge any of the other findings on this issue. The findings of the trial court in this regard do not constitute prejudicial error to defendant.
In his 35th assignment of error defendant contends that “[b]y the Court inventing its own aggravating circumstances,” defendant has been deprived of various constitutional rights. Defendant’s brief seems to contend that ordering other people, subject to defendant’s full control as in this case, to do evil acts is somehow different from defendant’s performing the evil acts himself. That cannot be.
Defendant’s assignments Nos. 34 and 35 are without merit.
XXI. “Double counting of the facts supporting aggravating circumstances is impermissible (Assignment #36).”
Defendant also contends that the sentencing court counted certain factors twice in determining aggravating circumstances found in § 29-2523(1)(a) and (d). We held in State v. Rust, supra at 538, 250 N.W.2d at 874:
We think it is not reasonable to construe the definitions [of the aggravating circumstances in § 29-2523] in such a manner as to make them overlap and make the same identical facts constitute two aggravating circumstances.
We believe the Legislature intended by each definition to convey a different concept, at least to the extent that some added different and important element.. .is included in each separate definition even though some fact or facts in a particular case may pertain to more than one of the definitions____
This standard was complied with by the sentencing court. In his brief, the defendant contends the following facts were used to support a finding of both aggravating factors (1)(a) and (1)(d). In support of (1)(a) the court noted that the “defendant assaulted both R.S. and James Thimm leading up to, and prior to the time of, the events involving the death of James Thimm.” In support of (1)(d) the sentencing court noted that the defendant “caused James Thimm to suffer further humiliation by directing him to perform homosexual acts with another member of the group.” There is evidence in the record to support both of these statements. The record shows that the defendant struck and beat both Stice and Thimm. There was also evidence that the defendant forced James Thimm to engage in homosexual activity. These incidents were distinct and involved different testimony. The ruling in State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977), prevents a sentencing court from using the same evidence to support different aggravating factors. It does not prevent a sentencing court from considering evidence of distinct incidents to support different aggravating factors. Defendant’s assignment No. 36 is without merit.
XXII. “Circumstance 1(a) is vague and overbroad and thus unconstitutional (Assignments #37and #38)”
Section 29-2523(1)(a) provides as follows: “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.”
We have narrowed our interpretation of this statute as this court has been required to review its application. In State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977), we held that aggravating circumstance (1)(a) did not exist where the defendant has no prior criminal record. We stated in Stewart that “(1)(a) should be applied only to criminal activity conducted prior to the events out of which the charge of murder arose.” Id. at 520, 250 N.W.2d at 863.
In State v. Rust, supra, we determined that aggravating circumstances (l)(a) applied where the defendant had a prior conviction for assault with intent to inflict great bodily harm, and we stated: “We interpret ‘substantial history of serious assaultive or terrorizing criminal activity’ to refer to events and incidents prior to and not part of the events out of which the current charge arises. The use of the term ‘history’ clearly implies earlier events.” (Emphasis in original.) Id. at 535, 250 N.W.2d at 872-73.
In State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), we found the existence of circumstance (1)(a) where the defendant had convictions for armed robbery and first-degree assault and three convictions for bank robbery. We stated in Holtan:
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. It does not refer to the particular incident involving the homicide for which he is subject to sentence.
Id. at 546, 250 N.W.2d at 879.
In State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977), we upheld a finding of aggravating circumstance (1)(a) where the defendant had the following record: (1) felony escape involving forcible detainer and robbery of a jailer, (2) armed robbery of a service station, (3) burglary of a home, (4) auto theft, (5) three armed robberies in the State of Ohio, (6) armed robbery and rape of a 7V2-month pregnant woman in her home, and (7) assault of a librarian in an attempted escape.
In State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), defendant was charged with two murders of cabdrivers occurring 4 days apart. We upheld the sentencing panel’s finding of (1)(a) with regard to the second murder and held that a substantial history of serious assaultive or criminal activity included the first premeditated murder. We also stated that the aggravating circumstances in § 29-2523 were to be given a narrow construction and application.
In State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982), we refused to apply (1)(a) where the facts supporting the circumstance had been shown through the defendant’s immunized testimony concerning an Iowa murder.
In State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986), on appeal to this court for postconviction relief, we affirmed our finding of circumstance (1)(a). See State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
In State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986), we held that any serious assaultive or terrorizing criminal activity committed by the accused prior to the time of the offense charged may properly be considered in order to determine the applicability of aggravating circumstance (1)(a).
In State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987), the defendant had been convicted of two charges of assault and of an attempted second degree assault prior to his first degree murder conviction. We narrowed our interpretation of (1)(a) further in Bird Head:
The State elected not to adduce any evidence concerning the factual circumstances surrounding the assaults in question. We agree with the sentencing panel’s conclusion that there are two aspects to aggravating circumstance (1)(a), one of which may be proved by establishing prior convictions for “another murder or crime involving the use or threat of violence to the person” and the other of which may be proved by showing that the offender “has a substantial history of serious assaultive or terrorizing criminal activity,” irrespective of whether the offender was convicted for the conduct creating the history.
Id. at 836, 408 N.W.2d at 319.
We must first determine whether the sentencing court correctly applied our interpretation of aggravating circumstance (1)(a).
As noted before, the sentencing judge did not consider the Luke Stice murder in applying this circumstance. The sentencing judge did, however, consider certain other factors which he considered demonstrative of the defendant’s history of “assaultive or terrorizing criminal activity.”
In the sentencing judge’s written order he stated:
The evidence submitted to the sentencing court establishes that the defendant 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.
However, the facts surrounding the death of Luke Stice actually predated the death of James Thimm by approximately one month. Although, the first clause of this aggravating circumstance is not applicable, the Court feels that the second clause of the aggravating circumstance is applicable. The Court finds from the evidence that the following facts, which facts are not all inclusive, support the finding beyond a reasonable doubt that Michael W. Ryan had a substantial history of serious assaultive or terrorizing criminal activity:
a) Michael W. Ryan either spanked and beat Luke Stice, or directed others to do this;
b) Michael W. Ryan either administered cold showers to Luke and held him under cold water or directed that this be done to Luke;
c) Michael W. Ryan directed others to sexually abuse Luke Stice;
d) Michael W. Ryan used Luke Stice as an ashtray;
e) Michael W. Ryan rolled Luke around in the snow without any clothes on or directed others to do this to Luke;
f) Michael W. Ryan spit in the mouth of Luke Stice;
g) Michael W. Ryan shot chickens in the presence of Luke Stice to create in him a fear of guns or directed that this be done to Luke;
h) Michael W. Ryan terrorized Luke Stice by placing a gun in his mouth and also by shooting him in the arm;
i) Michael W. Ryan either shoved Luke against the wall on three different occasions or directed others to shove Luke against the wall, which acts ultimately resulted in the death of Luke Stice;
j) Michael W. Ryan either held Luke off the ground with a belt around his neck or directed others to do this to Luke;
k) Michael W. Ryan either shot cigarettes himself from Luke’s mouth or directed others to do this; and
l) Michael W. Ryan told Luke that he would be castrated, and that he would be placed on a brush pile and burned alive by him.
The evidence further shows that the defendant assaulted both R.S. and James Thimm leading up to, and prior to the time of, the events involving the death of James Thimm. These acts would further support the finding that the defendant had a substantial history of serious assaultive or terrorizing criminal acts prior to the death of James Thimm.
Other facts taken from the evidence which would support finding that the defendant had a substantial history of serious assaultive or terrorizing criminal activity are the following:
a) Shortly before Michael W. Ryan left high school, he assaulted a teacher;
b) According to Michael W. Ryan’s own testimony, he assaulted a principal at his high school;
c) According to Michael W. Ryan’s accounting to Dr. Logan, he was discharged from the military as a result of fighting with six [military police officers].
We note first of all that the defendant’s murder of Luke Stice could have been considered by the court in light of our decisions in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), and State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). However, it might have been error for the court to have considered this murder as an aggravating circumstance after having met with members of the Stice family prior to the defendant’s sentencing on the James Thimm murder. In this case, the trial court did not consider defendant’s plea of nolo contendere and sentence in connection with the murder of Luke Stice as a prior conviction of second degree murder. The court, however, did consider the admitted murder of Luke Stice as evidence of a previous “substantial history of serious assaultive or terrorizing criminal activity.”
We feel that the evidentiary facts cited by the sentencing judge rise to the level of “serious assaultive or terrorizing criminal activity,” considering that that conduct eventually resulted in the death of Luke Stice. There is sufficient evidence, some of it from defendant, that these events took place, and they are supported beyond a reasonable doubt by the record. We are satisfied that aggravating circumstance (1)(a) was established beyond a reasonable doubt in that the defendant’s conduct in causing Luke Stice to be sexually abused, shooting Luke Stice in the arm, hanging Luke Stice by the neck with a belt, shoving Luke Stice against a wall, and shooting cigarettes out of Luke Stice’s mouth together all show a “substantial history of serious assaultive or terrorizing criminal activity.” Aggravating circumstance (1)(a) was also shown by the defendant’s chainings and beatings of both R.S. and James Thimm. The record clearly supports a finding of circumstance (1)(a).
We must now determine whether this court’s narrow interpretation and application of § 29-2523(1)(a) is unconstitutionally vague or overbroad under Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Under the rationale of Furman, statutory aggravating circumstances must be clearly defined and applied by a court so as to prevent a sentencing body from exercising discretion that may lead to arbitrary or inconsistent results. The standard laid down in Furman is met by our interpretation and application of (1)(a).
Defendant’s assignments Nos. 37 and 38 are without merit.
XXIII. “Circumstance 1(d) is vague and overbroad and thus unconstitutional (Assignments #39 and #40)”
Section 29-2523(l)(d) is an aggravating circumstance and provides as follows: “The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.”
In State v. Rust, 197 Neb. 528, 538, 250 N.W.2d 867, 874 (1977), we adopted the following statement made by the sentencing panel:
“We recognize that all first degree murder crimes are capable of being accurately characterized by one or more of the descriptive adjectives employed [in § 29-2523(l)(d)], but by the use of the words ‘especially’ and ‘exceptional’ the legislature has required a much greater degree of these characteristics than is usually present in a murder. This category of aggravating circumstances would include murders involving torture, sadism, sexual abuse, or the imposition of extreme suffering____”
Defendant argues that § 29-2523(1)(d) is unconstitutionally vague and overbroad. We have held in State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984), that § 29-2523(1)(d) is not unconstitutionally vague. We note that the defendant tortured and sexually abused James Thimm and thus imposed extreme suffering on him. Section 29-2523(1)(d) was properly applied by the sentencing judge.
In State v. Moore, 210 Neb. 457, 470, 316 N.W.2d 33, 41 (1982), we held:
Aggravating circumstance (1)(d) of § 29-2523 literally, and as interpreted by this court, describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another. The first circumstance is that the murder was especially heinous, atrocious, or cruel. We have said that this circumstance is directed to the “pitiless crime which is unnecessarily torturous to the victim” and to cases where torture, sadism, or the imposition of extreme suffering exists____The second circumstance pertains to the state of mind of the actor. In State v. Stewart, [197 Neb. 497, 250 N.W.2d 849 (1977)], we said the second instance indicates a situation “where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence” (syllabus of the court), and in State v. Holton, 197 Neb. 544, 250 N.W.2d 876 (1977), it indicates a state of mind “totally and senselessly bereft of any regard for human life” (syllabus of the court).
In State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986), we held that
“exceptional depravity” [as used in § 29-2523(1)(d)] exists when the act is totally and senselessly bereft of any regard for human life as shown by the presence of the following circumstances, either separately or collectively: (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. Consequently, where one or more of those five factors are present, there may be a finding of “exceptional depravity.”
(Syllabus of the court.)
In State v. Hunt, 220 Neb. 707, 725, 371 N.W.2d 708, 721 (1985), we stated:
[FJorcing items into the victim’s throat and the strangulation itself were cruel, but not “especially so,” for any forcible killing entails some violence toward the victim. There is no evidence the acts were performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time.
In order for aggravating circumstance (l)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence.
Thus it can be seen that this court has adopted a limiting construction on aggravating circumstance (1)(d), as shown in cases extending from 1977 to 1986. We have held that “especially heinous, atrocious, or cruel” is limited to cases where “torture, sadism, or the imposition of extreme suffering exists,” State v. Moore, supra at 470, 316 N.W.2d at 41, or where the murder was preceded by acts “performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time,” State v. Hunt, supra at 725, 371 N.W.2d at 721.
Similarly we have sharply limited the circumstance of “exceptional depravity” sufficient to constitute an aggravating circumstance to circumstances showing relishing of the murder by the killer, infliction of gratuitous violence on the victim, needless mutilation of the victim, senselessness of the crime, or helplessness of the victim. State v. Joubert, supra.
In this case, the sentencing court relied on both parts of § 29-2523(1)(d). The court found facts that showed torture, sadism, and the inflicting of extreme suffering and the fact that the pain existed for a prolonged period of time. The court also found facts showing that defendant relished the murder, that defendant inflicted gratuitous violence on the victim, that defendant needlessly mutilated the victim, and that the victim was helpless.
The findings of the trial court fit squarely with the statutory definition of § 29-2523(1)(d), as that subsection has been limited by this court’s decisions.
The U.S. Supreme Court affirmed the U.S. Court of Appeals for the 10th Circuit in Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), holding that “heinous,” “atrocious,” and “cruel,” as used in the Oklahoma murder sentencing statute, were “unconstitutionally vague” under the eighth amendment to the U.S. Constitution.
The court noted, in making that ruling, that the Oklahoma courts had not adopted a limiting construction that cured the infirmity in the Oklahoma statute. See, also, Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir. 1989) (The “heinous, atrocious or cruel” aggravating factor in Alabama’s death penalty statute had been narrowed to those homicides that are unnecessarily torturous to the victim for purposes of determining whether imposition of the death penalty was unconstitutionally “wanton” or “freakish”).
We hold that Nebraska has adopted such a limiting construction as to render the Nebraska statute sound and in full compliance with the U. S. Constitution.
We note also that the trial court, in its order of sentence, set out a list of the Nebraska Supreme Court cases it relied on in entering its order and that some of our cases referred to above are on that list.
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the U.S. Supreme Court held that the death penalty may only be imposed under sentencing procedures that do not create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. In Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the Court held: “[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”
We agree with the court below that the evidence supported a finding of the existence of the “exceptional depravity” circumstance of (1)(d) in that the defendant apparently relished the murder, inflicted gratuitous violence on the victim, and needlessly mutilated the victim. The defendant had the victim tied and chained, and then repeatedly sodomized the victim with a shovel handle thrust some 2 feet into his body, rupturing his colon and damaging his liver. He also whipped, beat, shot, and skinned him, and then assisted in breaking the victim’s legs. The defendant also directed others to inflict extreme suffering on the victim. This evidence alone is sufficient to find the existence of circumstance (1)(d). Section 29-2523(1)(d), as applied, meets the standards set forth by the U.S. Supreme Court and this court.
The balancing of aggravating and mitigating circumstances is not merely a matter of number counting but, rather, requires a careful weighing and examination of the various factors. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). Additionally, this court’s automatic review of capital cases does not require it to set' aside a death penalty where certain aggravating factors found to exist below are determined here to be unsupported by the evidence. See Neb. Rev. Stat. § 29-2528 (Reissue 1985). A finding of a single aggravating circumstance on appeal may be sufficient to support a death sentence.
The sentencing court correctly found that sufficient evidence existed to support a finding that both prongs of circumstance (1)(d) existed beyond a reasonable doubt.
Defendant’s assignments Nos. 39 and 40 are without merit.
XXIV. “ The state should have the burden at sentencing to prove mitigating circumstances do not exist (Assignment #41)”
Aside from the fact that the defendant would have the State prove a negative — always a difficult chore — defendant misses the point when he states, “The United States Supreme Court has continually stated that it is impermissible to shift the burden of proof on elements of the crime to the Defendant.” Brief for appellant at 88.
We agree with that statement, but suffice it to say that the presence or absence of mitigating factors is not, in any way, an element of the crime of murder. (See the discussion under argument VII above, concerning the burden of proof on the insanity issue.)
Defendant’s assignment No. 41 is frivolous.
XXV. “Refusal of trial court to specifically deal with nonstatutory mitigating circumstances (Assignments #42, #43, #44, #45, and#46).”
The gist of these assignments of error is that the court erred in “failing to deal specifically with the mitigating factors numbered 5 through 16 of defendant’s ‘Requested Mitigating Factors’____”
We held in State v. Joubert, supra, that a defendant may offer any evidence on the issue of mitigation. Prior to the sentencing hearing in this case, defendant requested that the court consider the following “mitigating factors”:
5. For 34 years of his life [the defendant] was a law abiding citizen, committed no anti-social acts, and no crimes.
6. It was only after exposure to Jim Wickstrom [sic] teachings that [the defendant’s] life changed and anti-social acts were committed.
7. [The defendant] was a very good father and loved by children.
8. [The defendant] had a normal childhood (with exception of beatings by his mother), was well-behaved, attended church, fished and hunted with his father.
9. The disparity of treatment of co-defendants, who did everything defendant did in the matter of the death of James Thimm, compels a life term of imprisonment.
10. Defendant offered to plead guilty to the offenses of second degree murder and kidnapping with harm to the victim (life imprisonment with no minimum term), so that he could have received two life sentences on such pleas; and in addition he offered to plead no contest to a charge of manslaughter insofar as the death of Luke Stice was concerned, all of which could have led to terms of imprisonment of life consecutiive [sic] to life consecutive to 20 years imprisonment. But such offers of pleas to the county attorney were rejected.
11. Defendant is already serving sentence of life imprisonment and no legitimate interest of the State will be served by imposing the sentence of death.
12. Letter from the Director of Nebraskans Against the Death Penalty.
13. Letter from juror Short.
14. The court extended mercy to codefendant Tim Haverkamp when it allowed the State to amend its charges to second degree murder, thus making him a witness — although not a truthful one — against defendant, and the Court can extend and should extend mercy to this defendant.
15. Defendant cooperated with the authorities by assisting in the identification of the stolen property on the Rulo farm — most of it stolen by Co-defendants.
16. Dave Andreas does not want defendant to be executed.
The sentencing court considered these factors, as may be seen in the following excerpt from the court’s sentencing order:
In addition to the statutory circumstances set forth in Section 29-2523 ... the terms of Section 29-2521 provide, in part, as follows: “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____”
The court is also aware of the decision of the United States Supreme Court in the case of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973 (1978), and the direction of [the Nebraska] Supreme Court to apply the rule of that case permitting the introduction of any mitigating evidence offered by the defendant which the Court deems to have probative value, even though such evidence may not specifically come within the scope of the statutory mitigating circumstances. Keeping that direction and guidance in mind, the Court has considered additional mitigating factors [requested by the defendant].
The trial court clearly considered the mitigating circumstances presented by defendant.
The defendant argues that “Nebraska statutes, Section [sic] 29-2521, 29-2522, and 29-2523 are unconstitutional and void,” brief for appellant at 90, since they do not require the sentencing court to make specific findings concerning a defendant’s proposed nonstatutory mitigating circumstances. The defendant has not shown that he was prejudiced by the sentencing court’s refusal to make specific findings concerning the defendant’s proposed mitigating circumstances. The trial court considered the defendant’s request. Some of defendant’s proposed mitigating circumstances (e.g., Nos. 7 and 8) were not supported by the record. Others (e.g., Nos. 10, 11, and 12) are immaterial. Still others were the same as statutory circumstances.
The sentencing court fairly considered the defendant’s proposed mitigating circumstances prior to rendering its decision. The Nebraska capital sentencing procedure fully complies in this regard with the requirements set forth by the U.S. Supreme Court. See, Sumner v. Shuman, 483 U.S. 66, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
Defendant’s assignments Nos. 42, 43, 44, 45, and 46 are without merit.
XXVI. “Equally culpable Co-defendants should be sentenced as uniformly as possible to prevent the appearance of impropriety (Assignments #47and#48).”
Defendant argues that his sentence was excessive in that “equally culpable co-defendants” were given much less severe sentences. We first note that the only codefendant was Dennis Ryan, who was also convicted.
While it is true that others were involved in James Thimm’s murder, the record shows that the defendant was the leader of the group and that the victim was tortured and killed on the defendant’s orders. The actions of defendant and the others were not “equally culpable.” See, also, State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980) (where only two of the three coperpetrators were charged with first degree murder).
Defendant also argues that the “only reason which could account for this extreme disparity in sentence is that Michael W. Ryan had a lengthy and expensive trial and the Co-defendants plead [sic] guilty... .” Brief for appellant at 92. Defendant’s assertion is unwarranted, unsupported by law or logic, and without merit. The record shows that James Thimm would not have suffered death absent the defendant’s leadership.
Defendant’s assignments Nos. 47 and 48 are without merit.
XXVII. “Defendant’s sentence was excessive (Assignments #49, #50, #51, and#52).”
The defendant argues that his sentence was excessive. It is hard for this court to conceive of a more senseless and brutal murder. We have reviewed all criminal homicide cases pursuant to Neb. Rev. Stat. §§ 29-2521.01 et seq. (Reissue 1985) and find that the defendant’s death sentence is justified when compared to all other homicide cases. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
XXVIII. “The trial court erred in denying Defendant’s showing to Court in addition to Defendant’s motion to exclude death penalty, motion to exclude the death penalty, and specific objections to imposition of death penalty (Assignments #53, #54, #55, #56, #57, and#58).”
In defendant’s 60 assignments of error, the defendant has assigned the above-numbered six general statements, contending the trial court erred in its failure to review the motions made by the defendant in the court below, including defendant’s motion to exclude the death penalty, defendant’s additional motion to exclude the death penalty, and defendant’s specific objections to imposition of the death penalty. The sum and substance of these general statements is contained in various other assignments of error and have been discussed above. We have reviewed these motions and the arguments made in support thereof, and conclude that the trial court’s decisions denying these motions were not an abuse of discretion. These assignments are without merit.
XXIX. “Cumulative effect of errors at guilt-innocence and life-death portions of trial deprived Defendant of a fair trial (Assignment #59) T
In the defendant’s 59th assignment of error the defendant contends that the combined effect of the errors assigned rendered the proceedings against him fundamentally unfair. He makes no real argument, nor does he cite any cases, to support such assertion. It is without merit.
Of more controlling effect is the doctrine of harmless error.
We held in State v. Watkins, 227 Neb. 677, 686, 419 N.W.2d 660, 666 (1988): “Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.” This comports to the rule found in Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), wherein the U.S. Supreme Court stated:
All of these [harmless error] rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that 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.
The Court in Chapman further held that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.
In Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), the U.S. Supreme Court stated:
In Chapman v. California, 386 U.S. 18 (1967), this Court rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman, “we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”
In view of all of the evidence before the jury, we conclude 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. State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984).
XXX. “ The Nebraska Supreme Court should not limit brief size in a capital case (Assignment #60).”
Defendant has a fundamental problem with the meaning of the word “brief.” The defendant filed a motion requesting leave to file a 191-page brief with this court. This motion was denied, and the defendant was allowed to file a 100-page brief with 60 assignments of error. The defendant’s case has been argued zealously in all stages of the proceedings. We also note that the Attorney General only addressed 15 of the 60 assignments made by the defendant. The defendant cannot predicate error on this court’s denial of his motion requesting leave to file a 191-page brief.
As stated before, this court is charged with the automatic review of all cases in which the death penalty has been imposed. § 29-2525. This court has separately reviewed each of defendant’s assignments of error. The decision of the Richardson County District Court is affirmed.
Affirmed.
State of Nebraska, appellee, v. Michael W. Ryan, appellee, Louie M. Ligouri, appellant.
444 N.W.2d 656
Filed August 11, 1989.
No. 86-879.
Charles D. Hahn for appellant, and Louie M. Ligouri, pro se.
Douglas E. Merz, Richardson County Attorney, for appellee State.
Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.
[OPINION BY Grant, J. type=majority]
Grant, J.
Michael W. Ryan, defendant in State v. Ryan, ante p. 74, 444 N.W.2d 610 (1989), was represented in the trial court by Louie M. Ligouri (applicant), an attorney in the private practice of law in Auburn, Nemaha County, Nebraska, and Richard Goos of Lincoln, Lancaster County, Nebraska. Both were court-appointed to represent defendant at the trial level in the case in which defendant was charged, in two counts, with the first degree murders of Luke Stice and James Thimm. The two charges were separated for trial, and only the Thimm case was tried. After that trial, defendant pled guilty to a charge of second degree murder in connection with the death of Luke Stice. Applicant was first appointed by the county court for Richardson County on August 23, 1985, and by the district court on October 8, 1985. He represented defendant in the county court proceedings and, after defendant was bound over to the district court, in the district court.
Richard Goos was an assistant public defender in Lancaster County and was appointed by the district court for Richardson County to represent defendant as cocounsel with applicant. The payment for the representation by Goos was provided for by a contract between Richardson and Lancaster Counties. The contract itself is not before this court, but evidence shows that Goos was to continue to be paid by Lancaster County as an assistant public defender, at his regular salary with attendant fringe benefits, and that Richardson County would reimburse Lancaster County at the rate of $30 per hour for each hour Goos devoted to representing defendant Ryan. Testimony at the fee hearing on Ligouri’s applications for fees indicated that Ligouri was also to represent Ryan, as cocounsel, both because it was difficult for one attorney to represent a defendant in a possible capital case and because Goos could not devote sufficient time, on his own, to represent Ryan without assistance.
Applicant represented Ryan from applicant’s initial appointment on August 23, 1985, until the court discharged applicant on April 25, 1986. On June 27, 1986, applicant filed his amended fee application, seeking payment of fees. This application showed that applicant had spent 605 hours of time defending Ryan from December 1, 1985, to the date of his discharge. An earlier fee application, filed December 9, 1985, sought payment for 94 hours for services by applicant in November 1985. Applicant thus sought payment for 699 hours of service. After a fee hearing on September 4, 1986, the trial court ordered applicant be paid the total sum of $8,776 for services from August 23, 1985, to his termination. The court further found that applicant had been paid $3,208.25 for his services in county court and district court from August 23 to November 1, 1985; that this sum should be deducted from the total award of fees; and that, therefore, applicant should be paid the additional sum of $5,567.75. The trial court made no specific finding as to hours served by applicant nor as to the rate to be charged.
Applicant timely appealed to this court, assigning as error that the action of the trial court was contrary to law and erroneous in that it did not make a proper allowance for expenses and fees for applicant in his appointed representation of Ryan. Applicant also sought interest on any amount due him. For the reasons set out below, we reverse the order of the trial court and fix the appropriate fees in this court, but do not make an award for interest.
The brief of Richardson County in this court does not challenge the rate requested by applicant, nor the number of hours submitted for payment. The only points raised are the technical points as to the appropriate form of claim and of payment, discussed and determined adversely to the county in In re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92 (1987). Since that case disposed of the underlying issues, those issues will not be discussed again in this opinion.
The record before us shows the following. Applicant was first appointed by the county judge for Richardson County and was first paid $2,000 by the county court for his representation of Ryan for the period of time from August 23 to September 23, 1985, at an apparently agreed rate of $50 per hour for legal services and traveltime, plus .21 per mile for miles traveled. Applicant was also paid for the time from September 23 to October 31, 1985, at the same rates by the trial court. Applicant made later applications for fees, but no further payments were authorized by the trial court.
In a telephone conversation between the trial judge and applicant on December 5 or 6, 1985, the trial judge informed applicant that future payments would be at the rate of $30 per hour and only for hours authorized by the court. Applicant was not satisfied with the hourly rate, nor with the court’s involvement with applicant’s representation of defendant, and therefore he prepared an order for the court to sign terminating his appointment. Goos then filed a motion that the trial court keep applicant on the case with appropriate remuneration, because Goos felt he alone could not devote sufficient time to the case to represent defendant properly. The record before us does not show that the motion was ever acted on. Because of applicant’s continued representation of defendant, it is clear that the trial court did not sign applicant’s proposed order.
The controlling statute on the fee questions is Neb. Rev. Stat. § 29-1804.12 (Reissue 1985), which provides:
Appointed counsel for an indigent felony defendant other than the public defender shall apply to the district court which appointed him or her for all expenses reasonably necessary to permit him or her to effectively and competently represent his or her client and for fees for services performed pursuant to such appointment except if the defendant was not bound over for trial in the district court, the application shall be made in the appointing court. The court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall allow payment to counsel in the full amount determined by the court.
At the hearing on applicant’s fees, the transcript of the fee hearing in the Rehm and Faesser case was received in evidence without objection. The trial court noted in that hearing that it thought $50 per hour was an appropriate rate. In the applicant’s case, the trial court reduced the hours sharply by examining everything done by applicant in the way of taking depositions, investigating, or consulting with his client, and by not allowing for any time spent by applicant which the trial court determined not to be “necessary.” There was no specific finding as to what was “necessary.”
The record before us shows that, in the fee hearing, the trial court cross-examined witnesses produced by applicant and made factual statements contradicting evidence adduced by applicant. The trial court’s participation in the hearing made it inappropriate for the trial court to make dispositive rulings on applicant’s fee applications. Because our analysis of the facts before us discloses, without any doubt, that substantial hours claimed to be devoted to Ryan’s representation were spent in applicant’s representation of Ryan, we set applicant’s fee, in this court, to avoid a further remand.
First of all, the record shows that applicant was present in court for 7 days during the voir dire of prospective jurors. Additionally, 18 days were spent in the actual trial of the cases of defendants Michael Ryan and Dennis Ryan. Of these days, 9 were used by the State in presenting its cases and 9 were used in presenting defendants’ cases. In addition, 3 full days were spent in instruction conferences and in final argument after the evidentiary portion of the trial was concluded.
The defense was somewhat convoluted in that, after others involved in the crimes testified for the State, defendant’s only real chance of acquittal was a successful defense of insanity. The matter of the sentence of defendant had to be a real concern throughout the trial. Defendant was tried jointly with his son, and in representing the son, the son’s attorneys tried to put as much blame on defendant herein as possible, in order to enhance the son’s chances. Since Michael Ryan and his son were tried in a joint trial some confusing positions had to be adopted by the trial attorneys.
At any rate, we calculate each day actually in court as a 6-hour trial day. On each trial day, applicant set out an additional 2 or 3 hours devoted to preparation for the trial. We are satisfied that applicant devoted a total of 8 hours each trial day to representing defendant herein. The total of such time is 8 hours times 28 days, or a total of 224 hours.
Additionally, it is totally appropriate that applicant’s amended fee application is recognized as correct in setting out that on each weekend (Saturday and Sunday) during the trial for 5 weeks, applicant spent approximately 6 hours in preparing for trial and in appropriately consulting with defendant and with applicant’s cocounsel. This amounts to an additional 30 hours.
In addition, six progression hearings were held after November 1, 1985, by order of the court. Applicant was present at four of those hearings. From our examination of the record, it can be determined that four additional days of court time were required for the progression hearings and other interim motion hearings. The record indicates that such hearings averaged 2 hours per day, or an additional time of 8 hours.
An additional item of controversy is traveltime. The murders of James Thimm and Luke Stice occurred near Rulo, Richardson County, Nebraska, located in the extreme southeast corner of Nebraska. We can only assume that the trial court was unable to provide defendant Ryan with adequate defense counsel in Richardson County. The problem is self-evident, because additional attorneys had to be provided for other defendants (Timothy Haver kamp, James Haver kamp, Dennis Ryan, and John David Andreas). The pool of attorneys who would, or could, represent such defendants was not large. It is futile to appoint an attorney some distance away to represent a defendant and not to provide compensation for that attorney to reach his client.
As a result, applicant, from Auburn, Nemaha County, Nebraska (35 miles from Falls City, the Richardson County seat), and another Auburn attorney were appointed, as were three attorneys from Lancaster County, one from Pawnee County, and two from Richardson County, to represent various of the five persons involved in the torture and murder of James' Thimm. The four attorneys representing Timothy Haverkamp, James Haverkamp, and Andreas were involved a lesser time because their clients agreed to, and did, testify for the State in exchange for lighter sentences. We note, in passing, that such other attorneys were paid at the rate of $50 per hour for at least some of the limited time they served. The upshot was a great deal of traveltime involved for applicant — particularly after the actual trial was moved to Douglas County, some 65 miles from Auburn, and defendant Ryan was incarcerated in Sarpy County. Applicant sought only $332 for travel miles (at an apparently agreed upon rate of .21 per mile). In addition, under the circumstances of this case, defendant should be reimbursed for his time spent in traveling. That time is set out in the fee applications as 49 hours (in addition to 11 hours noted by applicant but not billed).
It can thus be seen that in court-connected time alone, applicant has spent 311 hours in the defense of Michael Ryan. With the trial court’s statement that $50 per hour was a reasonable rate, and considering the fact that six witnesses testified that $50 per hour was a minimum rate and that some of these witnesses testified that a reasonable rate would be $65 to $120 per hour, we determine that under the facts of this case, $50 per hour is a reasonable rate. Applicant is entitled to the sum of $15,550 for such court-connected hours alone, without any consideration of research and investigative time spent on the case. The trial court’s finding that applicant is entitled to a total of $8,776 for time devoted to the appointed defense of Michael Ryan from August 23, 1985, to April 25, 1986, is not supported in any way by the undisputed evidence in the record. The order of the trial court as to the fees to be awarded applicant is an abuse of discretion and is hereby set aside and reversed.
In addition to the hours set out above, applicant’s fee applications set out that approximately 337 additional hours were spent between November 1, 1985, and April 25, 1986, in investigating the factual background; taking statements and depositions; interviewing his client; researching the law, particularly the insanity issues; conferring with witnesses, including a psychiatrist called by the defense; reviewing evidence, including tapes; preparing for the testimony of the State’s psychiatric witness; and appropriately consulting with cocounsel and conferring with all counsels in the case; and in general preparation for depositions and for the trial. A witness list of 58 witnesses was submitted at one time as witnesses to be called. Twenty-four witnesses were actually called by the State at trial. Thirty-one witnesses were called by defendant Dennis Ryan and 11 by defendant Michael Ryan. The record shows mention of other witnesses at other times. Many of these witnesses had to be interviewed and many were deposed. There are in the record of this phase of the trial 14 depositions taken by applicant, either alone or with his cocounsel. The deposition of the father of Luke Stice was 469 pages long. The record before us shows many other depositions were taken. We have reviewed carefully the applicant’s fee applications and are not able to conclude that any of his time spent was not necessary. It is the determination of this court that applicant, between November 1, 1985, and February 24, 1986, spent an additional 337 hours in preparing for trial of the Ryan cases.
The trial court’s answer to much of applicant’s time spent in depositions was that the various police reports were available to defendant’s counsel and depositions were unnecessary in most cases. Such an assumption is without foundation in fact or logic.
The ABA Standards For Criminal Justice standard 4-4.1 (2d ed. 1986) provides:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.
A defense lawyer’s obligation to investigate seldom can be satisfied by a mere search of police records. It is obvious that statements in such reports may or may not be true, and such statements have to be the subject of closer scrutiny than a mere reading.
Following the trial, applicant spent additional time on posttrial motions and conferences. The amended fee application indicates 12 hours were spent on such activity from April 8 to the time of applicant’s termination on April 25, 1986.
Some 349 hours over 133 days (the time between November 1, 1985, and the beginning of the trial on February 24, 1986, and after trial from April 8 to April 25) in legal work relating to the case against defendant cannot be considered excessive. If action had not been taken, the effectiveness of appointed counsel in representing Ryan would be questioned in this court, and in any other court in which Ryan’s conviction is reviewed. The greatest number of cases of ineffective counsel rests on allegations by defendants of insufficient investigation and failure to communicate with defendant. As stated in Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Obviously if the representation of defendant was ineffective, the case would have to be retried at additional expense.
We determine that applicant properly spent an additional 349 hours in out-of-court investigation, consultation, and preparation for trial, and in posttrial activities, and that counsel should be paid at the rate of $50 per hour for such time spent. Applicant is entitled to $17,450 for such additional services beyond time actually spent in court.
This means applicant is entitled to a total additional fee of $33,000, plus $332.00 in travel expenses and $207 in telephone expenses.
For this court to approve the amount awarded to applicant by the trial court would be to send a message that the sixth amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution have no real meaning. This case was a disaster to many, aside from the two victims of Michael Ryan. Among those affected are the taxpayers of Richardson County and of the State. The fact remains, however, that the attorneys appointed to represent the defendants in this bestial event are not guilty of any crime. They are honorable professional people and have been appointed by a court to perform a duty required by the Constitution. It is not appropriate to subject attorneys, appointed or otherwise, to the treatment seen in the fee hearing in this case. In such hearings, it is not appropriate to require appointed attorneys to submit income tax records to the court, as was done in this case, nor to submit such things as the attorney’s notes made in preparation for final argument, as requested in the Rehm andFaesser case.
In horrifying cases such as this case, it is vital that we, as a State and a nation, maintain our decree of civilization and reliance on our Constitution. We must not sink to the level of nations that execute transgressors the morning after alleged offenses occur. Defense attorneys perform an absolutely essential function under our Constitutions and must be treated as honorable persons performing a necessary legal duty.
We note that applicant seeks interest on the amounts due him. He cites Neb. Rev. Stat. § 45-104 (Reissue 1988). The sum due Ligouri was not liquidated, but had to be evaluated and calculated. Interest is not due under such circumstances. The judgment of the trial court on the issue of fees granted for Louie M. Ligouri is reversed, and the cause is remanded with directions to enter an order in conformity with this opinion. It is to be understood that the fee herein awarded is for services rendered by Ligouri to defendant in both the Thimm and Stice matters and that the fees awarded herein are in addition to amounts paid to applicant before November 1, 1985.
Reversed and remanded with directions.
State of Nebraska, appellee, v. Michael W. Ryan, appellant.
534 N.W.2d 766
Filed July 21, 1995.
No. S-94-207.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., for appellant.
Don Stenberg, Attorney General, and J. Kirk Brown for appellee.
Hastings, C.J., White, Caporale, Fahrnbruch, Lanphier, Wright, and Connolly, JJ.
[OPINION BY Per Curiam. type=majority]
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 criminal law 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).
H. 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 R.S. 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 R.R., 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 R.S., 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, R.S. 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 R.S. 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, R.S. 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.
IE. 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 (l)(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 (l)(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 (l)(d) and (l)(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 (l)(d) as applied to Ryan, (2) unconstitutionality of aggravating circumstance (l)(a) as applied to Ryan, (3) unconstitutional reliance of aggravating circumstance (l)(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 (l)(d), (9) insufficient evidence to support aggravating circumstance (l)(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 Iburden 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,
[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.
(Emphasis supplied.) Neb. Ct. R. of Prac. 9D(l)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 “[t]he 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 [him] 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 entmsted 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 [insanity] 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 l'h 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 372 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 T was against the insanity defense from the beginning’ is some distance from T 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 All (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.... [T]hose 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 (l)(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 (l)(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 (l)(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 “[did] 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 “[t]he 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 “[t]he 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)....
... 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.
(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 J.L. and D.L., accompanied by their 2-year-old child and 15-year-old niece, stopped to render aid, the Tison group took the L. vehicle at gunpoint, drove the L. 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 L. killings, and the Arizona Supreme Court affirmed those convictions, even though the two brothers had not actually fired the shots killing the L. 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 “[t]he 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 revising 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 circumstance[s].” 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 [sic] 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 5-year-old Luke Stice.
On October 16, 1986, Ryan was sentenced to death for the killing of Thimm. The sentencing court found the existence of aggravating circumstance (l)(a) of § 29-2523, that “[t]he 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 (l)(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 (l)(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 (l)(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.” [Goos] 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 á 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 [Ryan] 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 (l)(a) and (l)(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 “[i]nthe 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 fimction or the enforcement of the laws.
(Emphasis supplied.)
The trial court, in sentencing Ryan to death, found beyond a reasonable doubt that aggravating circumstances (l)(a) and (l)(d) existed in Ryan’s killing of Thimm. Ryan challenges the constitutionality of both of these aggravating circumstances.
(a) Aggravating Circumstance (l)(a)
We first examine the constitutionality of aggravating circumstance (l)(a). In assignment of error 7, Ryan claims that (l)(a) is unconstitutional both facially and as applied to him. In issue 2, Ryan claims that (l)(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 (l)(a).
Ryan concedes that the constitutionality of aggravating circumstance (l)(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 (l)(a) is not unconstitutionally vague, stated that “[t]he 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 (l)(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 (l)(d)
We now turn to the constitutionality of aggravating circumstance (l)(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.” Profitt 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 (l)(d) for its constitutionality both facially and as applied to Ryan.
ft) State Law Definition of (1) (d)
Aggravating circumstance (l)(d) of § 29-2523 exists when “[t]he 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 506 U.S. 837, 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 (l)(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 (l)(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.
“[E]xceptional 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.... [Wjhere 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 (l)(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 (L)(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(l)(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 (l)(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(l)(d) to determine whether (l)(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 (l)(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 (l)(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 [Nebraska] 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 (l)(d). Because aggravating circumstance (l)(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 (l)(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 “ ‘ “ \f\he 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 (l)(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 (l)(d) has been constitutionally applied to Ryan.
(iii) Application of (l)(d) to Ryan
Ryan does not dispute the constitutionality of the first prong of aggravating circumstance (l)(d), nor does he assert that the sentencing judge relied solely upon the unconstitutional second prong of (l)(d). Rather, he complains that the sentencing judge made only a single series of findings of fact supporting the application of (l)(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 (l)(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 (l)(d), if only the first prong applied.” Brief for appellant at 25.
In finding that aggravating circumstance (l)(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 (l)(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 (l)(d) beyond a reasonable doubt. This is not fatal to the use of (l)(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 (l)(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). “[T]here 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 508 U.S. 967, 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 506 U.S. 837, 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:
[T]he 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 (l)(d), those same facts help to overwhelmingly support the constitutional first prong of (l)(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 (l)(d).
The facts listed by the sentencing court in support of aggravating circumstance (l)(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 l'A 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, [and] 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 (l)(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 (l)(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 (l)(d)); Harper v. Grammer, 895 F.2d 473 (8th Cir. 1990) (holding that the first prong of (l)(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 (l)(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 (l)(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 /. 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 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 (l)(a) and (l)(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 “[w]hether trial [sic] 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
[w]hether trial counsel unreasonably failed to make an adequate record of the fact that during defense discovery depositions of Ora R.S. 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 /, 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 been prejudicial to Ryan. “[A]ny 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 /, 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.
Affirmed.
State of Nebraska, appellee, v. Michael Ryan, appellant.
560 N.W.2d 122
Order filed January 15, 1997.
No. S-86-946.
This matter came on for hearing this 15th day of January, 1997, upon the supplemented motion of the plaintiff-appellee, State of Nebraska, to establish an execution date, and the resistance thereto and motion for sanctions of the defendant-appellant, Michael Ryan.
With respect to the State’s motion for the establishment of an execution date, it appears that there is presently pending in the district court for Richardson County, at docket 7 page 41, case No. 2390, Ryan’s motion to vacate his conviction and sentence, filed pursuant to the provisions of Nebraska’s postconviction statutes, Neb. Rev. Stat. § 29-3001 through 29-3004 (Reissue 1995), which motion raises issues grounded in provisions of the Constitution of the United States. Notwithstanding the State’s assertions, and irrespective of the number of successive filings permitted under the scheme of postconviction review created by the Nebraska Legislature in §§ 29-3001 through 29-3004, this court cannot ignore its obligation to uphold the Constitution of the United States, and therefore cannot establish an execution date in the face of unresolved federal constitutional questions. See Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996).
With respect to Ryan’s motion for sanctions, notwithstanding that the foregoing conclusion concerning the State’s motion for the establishment of an execution date was predictable, we have prior to this date specifically held only that it was inappropriate for the State to move for the setting of an execution date while a federal stay was pending. State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED THAT:
(1) The State’s motion for the establishment of an execution date be, and the same hereby is, overruled, without prejudice to its refiling at an appropriate future time; and
(2) Ryan’s motion for sanctions be, and the same hereby is, overruled.
DATED AT LINCOLN, NEBRASKA, the day, month, and year first above written.
BY THE COURT
/s/ C Thomas White. Chief Justice
State of Nebraska, appellee, v. Michael W. Ryan, appellant.
601 N.W.2d 473
Filed September 10, 1999.
No. S-97-1035.
Steven E. Achelpohl and Michael A. Nelsen, of Hillman, Forman, Nelsen, Childers, Lingo & McCormack, for appellant.
Don Stenberg, Attorney General, and J. Kirk Brown for appellee.
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Mujler-Lerman, JJ.
[OPINION BY Hendry, C J. type=majority]
Hendry, C J.
I. INTRODUCTION
Michael W. Ryan (Ryan) appeals the denial of his second motion for postconviction relief, wherein the district court found that Ryan was not entitled to any relief regarding his conviction and sentence of death for the murder of James Thimm. Ryan’s postconviction claims involve two primary issues: (1) an alleged ex parte communication between his sentencing judge and Thimm family members prior to the judge imposing sentence and (2) newly asserted allegations that Ryan was incompetent to stand trial for Thimm’s murder. For the reasons set forth in this opinion, we affirm the judgment of the district court and deny Ryan’s motion for postconviction relief.
II. BACKGROUND
In 1986, Ryan was convicted of murder in the deaths of Thimm and Luke Stice. Ryan’s second motion for postconviction relief concerns his trial and sentence of death for the first degree murder of Thimm, as did his direct appeal and first motion for postconviction relief. The details surrounding this case are fully set forth in our opinion rendered in Ryan’s direct appeal, 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), and the appeal of his first motion for postconviction relief, State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995) (Ryan II). For purposes of Ryan’s present appeal, the pertinent facts are as follows:
In April 1986, after a trial by jury, Ryan was found guilty of first degree murder in the death of Thimm. The sentencing hearing for this crime did not begin until September 15, 1986. The Honorable Robert T. Finn presided over Ryan’s trial and sentencing for Thimm’s murder, as well as Ryan’s plea and sentencing for Stice’s murder. Judge Finn also presided over the proceedings for the other members of a cult formed by Ryan for their part in the murders, including the trial and sentencing of Ryan’s son, Dennis Ryan.
On July 28,1986, Ryan pled no contest to a charge of second degree murder for the death of Stice and was found guilty. On August 28, Ryan’s sentencing hearing for Stice’s murder was held. On August 28, after Ryan’s sentencing hearing for Stice’s murder ended, Judge Finn met with members of the Stice family. During this meeting, Stice family members questioned Judge Finn and the attorney prosecuting the Stice case about the implications of Ryan’s plea of no contest to the second degree murder of Stice.
On September 10, 1986, Richard Goos, one of the trial attorneys for Ryan, filed a motion asking Judge Finn to disqualify himself from Ryan’s upcoming sentencing hearing regarding Thimm’s murder. This motion was based on the fact that Goos had learned of the August meeting with the Stice family and believed that this ex parte conversation required the judge to recuse himself from sentencing Ryan for Thimm’s murder.
On September 15, 1986, prior to the sentencing hearing for Thimm’s murder, Judge Finn took up Goos’ motion to disqualify himself. Goos was concerned about the possibility that the Thimm case had been discussed at the August meeting, and Goos questioned Judge Finn about the content of the discussion between Judge Finn and the Stice family. Judge Finn stated that the meeting “was just to answer questions about the proceedings that went on pertaining to that [Stice] case. There was absolutely no discussion about any other cases other than that [Stice] case.” Judge Finn also stated that he generally asked family members at the conclusion of each case if they would like to visit with the court to ask questions about the legal proceedings and that usually families did want to do so. Thereafter, Judge Finn overruled the motion to disqualify himself and proceeded with the sentencing hearing. The sentencing hearing took 2 days, concluding on September 16. On October 16, Judge Finn sentenced Ryan to death for the murder of Thimm.
Ryan then took a direct appeal from his conviction and sentence for Thimm’s murder. Among his 60 assignments of error, Ryan asserted that the trial court erred in refusing to disqualify itself from presiding over the September sentencing hearing and that Ryan was denied an impartial judge at trial and during the sentencing hearing, in violation of due process. In part, these assignments were based on the assertion that Judge Finn met ex parte with members of the Stice family in August prior to sentencing Ryan to death, that members of the Thimm family were also present at the Stice meeting, and that the conversation at the Stice meeting had a prejudicial impact on Ryan. In Ryan 7, we found no merit to any of the assigned errors. In particular, we noted that there was no evidence that Judge Finn met with members of the Thimm family. We also noted that the August 1986 Stice meeting could not have affected Ryan’s sentence for Thimm’s murder because Judge Finn expressly excluded the Stice murder as a factor in the sentencing process. In his direct appeal, Ryan did not raise any issues regarding his competency to stand trial for Thimm’s murder.
In 1991, Ryan filed his first motion for postconviction relief. In preparing for the evidentiary hearing on this motion, Ryan’s appointed attorney, Robert Creager, investigated the issue of possible ex parte meetings between Judge Finn and members of the Thimm family. Creager visited with Judge Finn on the telephone to determine if any such meetings took place. Judge Finn told Creager that he had not had any ex parte meetings with the Thimm family and signed an affidavit on April 27,1993, to that effect. In his affidavit, Judge Finn stated that “no members of the Thimm family were present at the [Stice] meeting; nor did your Affiant have any contacts with members of the Thimm family during the course of the proceedings involving Michael Ryan prior to and including the time of his sentencing.”
The district court denied Ryan any relief based on his first motion for postconviction relief. Ryan appealed this decision in Ryan II. In his appeal, Ryan assigned 14 errors and 37 additional issues. Ryan again asserted that his due process rights were violated by Judge Finn’s refusal to disqualify himself from the September sentencing hearing. In addition, Ryan asserted that he had been deprived of his right to effective assistance of counsel in that his trial counsel had failed to properly raise the issue of judicial misconduct regarding Judge Finn’s ex parte communication with the Stice family. We affirmed the district court’s decision, noting that Ryan was not prejudiced by the ex parte meeting with the Stice family. We also noted that the due process issues regarding the ex parte meeting with the Stice family had been dealt with on direct appeal and that Ryan was not entitled to relitigate the same issues in a postconviction proceeding. In his first motion for postconviction relief, Ryan did not raise any issues regarding his competency to stand trial for Thimm’s murder.
In November 1995, Ryan filed a pro se writ of habeas corpus and stay of execution in federal court. The court appointed counsel to represent Ryan during the habeas proceedings. In the spring of 1996, appointed counsel made a request to amend the habeas complaint to include allegations of an ex parte contact between Judge Finn and Thimm family members. During a deposition taken by Ryan’s appointed counsel, D.H., Thimm’s foster cousin, testified that she and another member of the Thimm family met with Judge Finn in May 1986, after Dennis Ryan was sentenced for his part in Thimm’s murder. H. is a niece of Carl and Hilda Schmidt, Thimm’s foster parents, and considered herself to be Thimm’s cousin even though they were not related by blood.
H.’s information was corroborated by a letter she wrote on May 12, 1986. The letter, in part, discussed a meeting which had occurred on May 9, 1986, between H., Judge Finn, K.S. (the Schmidts’ daughter), and G.B. (Stice’s grandmother).
H. attended the trials for Ryan and other members of Ryan’s cult regarding Thimm’s murder. She wrote this letter to her family to inform them of the proceedings regarding Dennis Ryan, Ryan’s son. In May 1986, H. sent the letter to her family, along with some related newspaper clippings. H.’s father later returned the newspaper clippings and the letter to her.
The letter described in a fairly detailed fashion the meeting on May 9,1986, between Judge Film, H., K.S., and B.. In particular, the letter noted that after Judge Finn pronounced Dennis Ryan’s sentence, Judge Finn’s bailiff came over to them and invited them to meet with the judge if they had any questions about the proceedings. The bailiff also asked Dennis Ryan’s mother if she would like to meet with the judge, but she declined.
The letter detailed the following information about their conversation: Judge Film discussed the costs of the various trials and his feelings that the defense attorney fees were excessive. They discussed their religious beliefs and wondered how Ryan could exert such power over the other cult members. K.S. said that Thimm had not been raised to believe in the kinds of things practiced by the cult. B. asked why they did not charge some cult members for their actions and why more was not done to protect her grandson, Stice, from harm. Judge Finn opined that none of the defendants seemed truly sorry for their actions. Judge Finn also explained that a life sentence usually meant that a defendant served about 14 to 15 years before becoming eligible for parole. They discussed the idea that someone should write a book about the case, and Judge Finn offered to make the public record available to K.S. if she decided to write about it.
The federal court dismissed Ryan’s habeas complaint without prejudice, finding that any claim regarding a meeting between Finn and members of the Thimm family must first be properly exhausted under state remedies. The federal court noted that the Nebraska Supreme Court had not had the opportunity to apply due process principles to the claim of an ex parte meeting with members of the Thimm family, since the court had addressed only the meeting with the Stice family in Ryan I and Ryan II.
Accordingly, in 1997, Ryan filed a second motion for postconviction relief in the district court for Richardson County. The Honorable Gerald E. Moran was appointed to hear the motion. On May 12 through 16, 1997, Judge Moran held an evidentiary hearing at which H., K.S., Judge Finn, Goos, and Creager, among others, testified. Judge Finn testified that he had no recollection of the May 9, 1986, meeting with H., K.S., and B.. However, Judge Finn agreed that based on the H. letter such a meeting did occur. Judge Finn also testified that he had no recollection of the May 9 meeting when he overruled the motion to disqualify himself on September 15, 1986.
H. testified that she remembered meeting with Judge Finn on May 9, 1986, at the bailiff’s invitation. She also testified that while her letter contained some inaccuracies and dramatic license, it was essentially accurate. K.S. also testified that the May 9 meeting had taken place.
Goos testified that he had no knowledge during the trial or afterward of a meeting between Judge Finn and members of the Thimm family. His motion to disqualify Judge Finn was based on the ex parte meeting with the Stice family in August. Goos also testified that he believed Ryan had been competent to stand trial for Thimm’s murder based on his interaction with Ryan and Ryan’s ability to meaningfully participate in his defense throughout the trial. In particular, Goos noted that “what delusions [Ryan] had about Yahweh... never seemed to interfere with our conversations or his understanding of the case or what was at stake.”
Creager testified that he also had no indication of any meetings between Judge Finn and Thimm family members based on his conversation with Judge Finn and the previously discussed affidavit. Creager further testified that he considered the issue of Ryan’s competency to stand trial in preparing for the first motion for postconviction relief. However, he believed that the competency issue was a weak claim and inconsistent with other issues he needed to address.
At the conclusion of the evidentiary hearing, the district court denied Ryan relief on all of his claims. In particular, Judge Moran found that an improper ex parte meeting did occur on May 9, 1986, between Judge Finn and Thimm family members. However, Judge Moran found that any claims related to the May 9 meeting were procedurally barred because Ryan and his counsel knew or reasonably should have known about the May 9 meeting during the direct appeal and the first postconviction proceedings. Judge Moran went on to determine that even if the ex parte meeting between Judge Finn and Thimm family members was not procedurally barred, there was no violation of State v. Barker, 227 Neb. 842, 420 N.W.2d 695 (1988), and that Ryan suffered no prejudice as a result of the meeting.
Further, Judge Moran found that Ryan was not prejudiced by Judge Finn’s refusal to recuse himself. Specifically, Judge Moran found that the content of the May 9, 1986, meeting revealed no bias on the part of Judge Finn regarding Ryan’s sentence and that Judge Finn was given no new or additional information regarding Thimm’s murder. Because there was no actual prejudice to Ryan, Judge Moran concluded that Ryan’s constitutional rights were not violated.
Additionally, Judge Moran found that claims related to Ryan’s competency to stand trial were procedurally barred because Ryan could have raised this issue previously and failed to do so in either Ryan I or Ryan II. Judge Moran further determined that even if such claims were not barred, claims related to competency did not entitle Ryan to relief because Ryan was clearly competent during his trial for Thimm’s murder. Finally, Judge Moran found that all claims related to the ineffective assistance of counsel also failed because such claims were procedurally barred or, alternatively, because Ryan was not prejudiced by trial counsels’ actions.
III. ASSIGNMENTS OF ERROR
Ryan assigns 34 legal and factual errors in the district court’s order. We rephrase and summarize these errors below.
First, Ryan contends, regarding the ex parte communication between Judge Finn and members of the Thimm family, that the district court erred in (1) its legal conclusion that the May 9, 1986, meeting between Judge Finn and members of the Thimm family did not violate State v. Barker, supra, or Ryan’s due process rights regarding sentencing; (2) its legal conclusion that any claim arising out of the May 9 meeting was procedurally barred and that the May 9 meeting did not require that Ryan be resentenced; (3) its factual finding that Ryan and his lawyers knew about the May 9 meeting during trial and during subsequent appeals; (4) not finding that Judge Finn attempted to conceal the May 9 meeting; (5) finding that trial evidence was not discussed at the May 9 meeting and that the Thimm family did not discuss their feelings about the possible sentences to be imposed on Ryan; (6) finding that statements made by Judge Film at the May 9 meeting did not reflect prejudice and bias on Judge Finn’s part; and (7) finding that the presumption of prejudice raised by the May 9 meeting was rebutted beyond a reasonable doubt by the State.
Regarding the cumulative effect of the ex parte conversation, Ryan contends that the trial court also erred in (8) its conclusion that the cumulative effect of Judge Finn’s misconduct, in particular, turning his back on Ryan, did not violate Ryan’s due process rights; (9) finding that the letter regarding the May 9,1986, meeting was not new evidence; (10) concluding that it was not plain error for Judge Finn to turn his back on Ryan while Ryan was testifying; and (11) finding that Ryan was not prejudiced by the May 9 meeting.
Ryan also contends that the trial court erred in (12) concluding that a claim for ineffective assistance of counsel regarding the ex parte meeting was procedurally barred; (13) finding that the grounds for this claim, i.e., the letter regarding the May 9, 1986, meeting, were known or discoverable prior to 1996; (14) finding that Ryan was not prejudiced by trial counsel’s failure to properly investigate the facts regarding the alleged ex parte meetings; and (15) failing to consider whether trial counsel’s failure to investigate the ex parte conversations more fully rendered trial counsel’s performance constitutionally deficient.
Regarding the issue of competency, Ryan contends that the trial court erred in (16) its legal conclusion that trial counsel’s failure to request a competency hearing did not violate Ryan’s right to effective assistance of counsel; (17) concluding that the issue regarding failure to request a competency hearing claim was procedurally defaulted by Ryan’s failure to address this in his direct appeal or first postconviction appeal; (18) concluding that it was not plain error for trial counsel not to have requested a competency hearing; (19) finding that Ryan’s psychiatrist did not timely disclose his opinion that Ryan was incompetent to stand trial, or timely disclose serious reservations about his competency to stand trial; (20) finding that trial counsel did not observe anything which would cause them to suspect Ryan’s incompetence, report this to the judge, and request a competency hearing; (21) its legal conclusion that the failure of the trial judge to order a competency hearing sua sponte did not violate Ryan’s due process rights; (22) its conclusion that the claim that the judge should have ordered a competency hearing was procedurally defaulted; (23) its conclusion that failure of the judge to order sua sponte a competency hearing was not plain error; (24) its conclusion that the facts as presented to Judge Finn did not establish sufficient doubt as to Ryan’s competency, requiring him to order a competency hearing; (25) its conclusion that the trial of Ryan did not violate substantive due process because Ryan was not incompetent at the time of trial; (26) its conclusion that it was not plain error to allow Ryan to stand trial while incompetent; (27) its conclusion that the substantive due process claim regarding competency was procedurally defaulted; and (28) its factual finding that Ryan was in fact competent at the time of trial.
IV. STANDARD OF REVIEW
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Tucker, ante p. 496, 598 N.W.2d 742; State v. Smith, 256 Neb. 705, 592 N.W.2d 143 (1999); State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the state or federal Constitution. State v. Smith, supra; State v. Silvers, supra.
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. State v. Louthan, ante p. 174, 595 N.W.2d 917 (1999); State v. Spotts, ante p. 44, 595 N.W.2d 259 (1999).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. See, State v. Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999); State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999).
V. ANALYSIS
1. May 9,1986, Meeting
Ryan claims the district court erred in finding that any claims with regard to the May 9,1986, meeting are procedurally barred. 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. Moore, supra; State v. Dandridge, 255 Neb. 364, 585 N.W.2d 433 (1998). Additionally, an appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994).
These procedural rules are necessary because postconviction proceedings are not a tool whereby a defendant can continue to bring successive motions for relief. See, State v. Fletcher, 253 Neb. 1029, 573 N.W.2d 752 (1998); State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997); State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991) (purpose of affording postconviction relief is not to permit defendant endless appeals on matters already decided). The postconviction process exists to correct prejudicial constitutional error in criminal proceedings. See Neb. Rev. Stat. § 29-3001 (Reissue 1995). The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. See State v. Otey, 236 Neb. 915,464 N.W.2d 352 (1991). A criminal defendant cannot wait to see if some appellate claims will succeed and, when they do not, dust off other claims and subsequently attempt to litigate them. See, State v. Fletcher, supra; State v. Thieszen, supra; State v. Whitmore, supra.
A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed. State v. Otey, supra. We have recognized two circumstances which provide a new ground for relief constituting an exception to the procedural bar in postconviction proceedings. First, if a defendant brings a motion for postconviction relief based on ineffective assistance of trial or direct appeal counsel which could not have been raised earlier, this is a basis for relief that did not exist at the time of the prior proceeding. State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993). Second, if a defendant brings a successive motion for postconviction relief based on newly discovered evidence that was not available at the time the prior motion was filed, this is a basis for relief that did not exist at the time of the prior proceeding because it was not available to the defendant. See, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Lindsay, supra. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. See, State v. Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999); State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999).
(a) Ex Parte Communication
Ryan asserts that the H. letter is newly discovered evidence establishing that Judge Finn met ex parte with the Thimm family and that, therefore, his claims regarding this meeting are not procedurally barred. Generally, newly discovered evidence is evidence material to the defense that could not with reasonable diligence have been discovered and produced in the prior proceedings. See State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990).
As a threshold matter, we must first determine whether the meeting described in H.’s letter was ex parte. An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party. State v. Loiter, 255 Neb. 456, 586 N.W.2d 591 (1998). In this case, Judge Moran found that as described in H.’s letter, Judge Finn had met with members of the Thimm family on May 9, 1986, while Ryan’s sentencing for Thimm’s murder was a proceeding pending before the court. No notice of the May 9 meeting was given to Ryan or Ryan’s counsel. Further, the H. letter and H.’s testimony regarding the meeting describe some discussion of Thimm and the religious beliefs of the cult members who participated in his murder. There was also discussion about Ryan’s control over the other members of the cult. The only persons present at the meeting were K.S., H., B., and Judge Finn. Neither Ryan nor his counsel were present. We therefore determine that because the May 9 meeting described in H.’s letter concerned some issues tangentially related to Thimm’s murder (which was the focus of Ryan’s upcoming sentencing hearing), and did not include Ryan or his counsel, it was ex parte. See State v. Lotter, supra.
(b) Ex Parte Meeting Procedural Bar
The State contends, and Judge Moran so found, that any issue relating to the May 9, 1986, ex parte contact was procedurally barred. We cannot agree. On his direct appeal, Ryan alleged that Judge Finn had an improper ex parte communication with the Thimm family. We concluded there was no evidence in that record supporting such an allegation. Although during Ryan’s sentencing hearing Judge Finn had acknowledged that he generally invited family members to meet with him after the proceedings to ask any questions, we determined that there was simply nothing in the record indicating that Judge Finn had ever met with the Thimm family. Thus, we did not address the impact of an ex parte meeting with the Thimm family.
As we noted in Ryan I, the record indicated that Judge Finn had met with the Stice family but “[t]he record [did] not show, however, that the trial judge met with the James Thimm family... .” 233 Neb. at 121, 444 N.W.2d at 640. We further noted that “[Jjudge [Finn] affirmatively stated, ‘There was absolutely no discussion about any other cases than that [Luke Stice] case.’ There is nothing in the record indicating anything to the contrary.” Id. Since this court was unable to find anything in the record on direct appeal indicating that an ex parte meeting occurred with the Thimm family, we certainly would not expect the same record to procedurally bar Ryan from asserting that claim now, in light of new evidence indicating that such a meeting did occur.
Likewise, during Ryan’s first postconviction proceeding, his postconviction counsel investigated the possibility that Judge Film had in fact met ex parte with the Thimm family. Creager interviewed Judge Finn and asked if he had met with tíre Thimm family at any time prior to Ryan’s sentencing. Judge Finn denied any such meeting and signed an affidavit to that effect. Creager thereafter ended the investigation. Based on Finn’s affidavit, this court concludes that the basis Ryan relies upon for relief in this second postconviction proceeding was not available at the time his first postconviction motion was filed.
If we were to determine that the H. letter was available to Ryan during his prior postconviction proceeding, we would essentially be requiring Creager to continue the investigation beyond Judge Finn’s affidavit. This we are not prepared to do. Once Creager obtained the signed affidavit from Judge Finn swearing that no such meeting had occurred, Creager was entitled to rely upon that information and end his investigation.
Accordingly, we find that the H. letter falls into the second circumstance we have recognized as a new ground for relief. The letter is newly discovered evidence which was not available in the prior proceedings. See State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995). The H. letter was not available to Ryan during either his direct appeal or his first postconviction motion, and there was no other evidence of an ex parte meeting between Judge Finn and the Thimm family. We therefore determine that the meeting between Finn and the Thimm family was not procedurally barred and was appropriately raised in this, Ryan’s second postconviction proceeding.
Having determined that issues arising from the ex parte meeting between Judge Finn and the Thimm family are not procedurally barred, we now turn to Ryan’s claims.
(c) State v. Barker Analysis
As noted earlier, Judge Moran determined that even if the ex parte meeting between Judge Finn and the Thimm family was not procedurally barred, there was no violation of State v. Barker, 227 Neb. 842, 420 N.W.2d 695 (1988), and that, in any event, Ryan suffered no prejudice as a result of the meeting.
Ryan, however, contends that State v. Barker, supra, was violated and that an automatic remand was required once the ex parte meeting was factually determined to have occurred. Further, Ryan contends that the ex parte meeting violated his constitutional due process rights and that he was prejudiced as a result.
In State v. Barker, supra, Barker was charged with second degree murder but was convicted of the lesser-included offense of manslaughter. On direct appeal, Barker’s sole assignment of error was that the sentencing judge failed to recuse himself, as requested by Barker, after the judge had met ex parte with the victim’s family prior to sentencing. In response to Barker’s motion for recusal, the sentencing judge recounted what had transpired during the ex parte meeting, found that the court was in no way prejudiced by the meeting, and refused to recuse himself. In remanding Barker’s case for a new sentencing hearing to be conducted by a different judge, we fashioned a recusal rule based upon the evidentiary concerns regarding judicial testimony.
We expressly did not reach the constitutional dimensions of Barker’s claim regarding ex parte communications because it was unnecessary to the disposition of Barker’s direct appeal. We did not analyze the parameters of Barker’s due process rights, although we noted that “ ‘the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.’ ” State v. Barker, 227 Neb. at 844, 420 N.W.2d at 697 (quoting Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)). Rather, we focused on the ethical and evidentiary concerns that arise when a judge is asked to recuse himself because of an ex parte communication. We therefore announced a recusal rule based on the rationale of Neb. Evid. R. 605, that “ ‘[t]he judge presiding at the trial may not testify in that trial as a witness.’ ” State v. Barker, 227 Neb. at 848, 420 N.W.2d at 699. The Barker recusal rule states that “a judge, who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding, must recuse himself or herself from the proceedings when a litigant requests such recusal.” Id. at 847, 420 N.W.2d at 699.
The evidentiary dilemma which State v. Barker, supra, addresses simply does not exist in this postconviction proceeding. In the case before us, Ryan has supplemented his record with Judge Finn’s testimony taken in a proceeding over which Judge Finn was not presiding and at which he was, therefore, not incompetent to testify pursuant to Neb. Evid. R. 605. Thus, there is no need to fashion a remedy for an alleged Barker violation when we have the presiding judge’s properly obtained testimony before us. The evidentiary concerns that prompted the Barker rule do not exist with regard to Ryan’s claims in this proceeding.
Further, postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. The defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the state or federal Constitution. State v. Smith, 256 Neb. 705, 592 N.W.2d 143 (1999); State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). The recusal rule fashioned in State v. Barker, 227 Neb. 842,420 N.W.2d 695 (1988), is premised on evidentiary principles and judicial ethics. Although these underlying concerns promote due process and efficiency in the legal process, they are separate and distinct from constitutional rights. The Barker rule is not a constitutional right in and of itself.
We have never implied or treated State v. Barker, supra, as conferring constitutional protection. In State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), Lotter brought a direct appeal asserting error, in part, because of an ex parte meeting between the prosecutor and the presiding judge. We concluded that Lotter, by failing to make a motion for the judge to recuse himself at the time of the proceedings, had waived the Barker rule. If the Barker rule were a constitutional right, Lotter’s failure to motion for recusal would not have been sufficient by itself to waive his right to the judge’s recusal. Waiver would be sufficient only if Lotter had been “personally apprised of the ex parte communication at issue.” State v. Lotter, 255 Neb. 889, 891, 587 N.W.2d 673, 674 (1999) (supplemental opinion).
In our supplemental opinion to State v. Lotter, we noted:
“The requirement in Barker that a judge who has participated in an ex parte communication must recuse himself or herself upon request was based upon Nebraska law, and not upon federal constitutional grounds. Thus, Barker and its progeny do not dispose of Lotter’s claim that the ex parte communication in this case presented a threat to the impartiality of the trial court and violated his rights under the Due Process Clause of the 14th Amendment to the U.S. Constitution.”
(Emphasis supplied.) 255 Neb. at 890, 587 N.W.2d at 674.
Simply put, State v. Barker, supra, is not premised on federal or Nebraska constitutional law and in no way expands due process protection in Nebraska. To hold otherwise would be inconsistent with our holding in State v. Lotter. Finding Barker itself inapplicable to Ryan’s postconviction claims, we turn to the underlying constitutional issue of whether Ryan’s due process rights were violated by the May 9, 1986, ex parte meeting.
(d) Due Process
Ryan contends that his due process rights were violated because he was sentenced for Thimm’s murder by Judge Finn after Judge Firm had engaged in an improper ex parte contact with Thimm family members. Ryan asserts that this ex parte meeting biased Judge Finn and denied Ryan his right to an impartial judge and that, therefore, Judge Moran’s findings to the contrary are clearly erroneous.
The right to an impartial judge is guaranteed under the Due Process Clause of the 14th Amendment to the U.S. Constitution, Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), and under the due process clause of Neb. Const, art. I, § 3. See State v. Lotter, supra (supplemental opinion). This right extends to both the trial and the sentencing hearing. Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977). The parameters of this right are coextensive under the federal and Nebraska Constitutions. See State v. Lotter, supra (supplemental opinion).
In our supplemental opinion to State v. Lotter, we analyzed a defendant’s due process right to an impartial judge. We considered the claim that Lotter’s due process right to an impartial judge was violated because the presiding judge conducted an ex parte meeting with the prosecutor during the proceedings. We concluded that Lotter’s due process rights were not violated, using the approach enunciated by the Eighth Circuit in Dyas v. Lockhart, 705 F.2d 993 (8th Cir. 1983) (Dyas I), cert. denied 464 U.S. 982, 104 S. Ct. 424, 78 L. Ed. 2d 359. See, also, Dyas v. Lockhart, 111 F.2d 1144 (8th Cir. 1985) (Dyas II) (appeal after remand), Dyas v. Lockhart, 878 F.2d 1105 (8th Cir. 1989) (Dyas III) (second appeal after remand).
In Dyas I, the defendant was convicted of capital felony murder and sentenced to life imprisonment without the possibility of parole by the State of Arkansas. The impartiality of the presiding judge was questioned in federal habeas proceedings in part because the judge was the uncle of the prosecuting attorney, and respectively the brother and father of two deputy prosecuting attorneys who participated in the case.
The Dyas I court first looked to the U.S. Supreme Court’s standard as set out in Ward v. Village of Monroeville, supra. In Ward, the Supreme Court reiterated its previously announced standard that subjecting a defendant to a trial before a judge having a direct personal pecuniary interest in convicting the defendant caused a denial of due process in violation of the 14th Amendment. See, also, Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977). Ward dealt with a situation where the judge also served as mayor. The Court found that the judge had a direct pecuniary interest in convicting the defendant because a conviction would result in a fine, which would enhance the municipality’s revenue.
The Court did not require the defendant in Ward to prove actual bias. Rather, the test was whether the defendant could show that the judge was put in a situation which might lead him “ ‘not to hold the balance nice, clear and true between the State and the accused ....’” 409 U.S. at 60. When the defendant can meet this standard, it is considered structural error, which requires “automatic reversal.” Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999). Structural error analysis is required when the error complained of deprives the defendant of basic protections without which the criminal trial process cannot reliably serve its function as a vehicle for determination of guilt or innocence, or when the error affects the entire framework of the proceedings. Id. All other types of errors which occur within the trial and sentencing process itself are subject to harmless error review. Id.
(i) Structural Error
In Dyas I, the Eighth Circuit declined to apply the structural error standard. The court found that the facts of die case did not show that the judge was “unable to hold the proper balance between the state and the accused.” Dyas I, 705 F.2d at 997, citing Turney v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927). Instead, the Dyas court required that the defendant show actual bias on the part of the judge to be entitled to any relief. The court then remanded the cause for an evidentiary hearing where Dyas could attempt to show actual bias.
Similarly, in the supplemental opinion to State v. Lotter, we first considered the structural error standard by addressing the claim that the ex parte contact with the prosecutor showed that the judge “ ‘had such a strong personal or financial interest in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.’ ” 255 Neb. 889, 892, 587 N.W.2d 673, 675 (1999), quoting Dyas /. We concluded that the facts in Lotter’s case did not meet the structural error standard.
Ryan contends, as did Lotter, that his due process right to an impartial judge was violated because of an ex parte contact. We note that because this ex parte meeting occurred after Ryan’s trial for Thimm’s murder was concluded, it could not have affected the judge’s impartiality during the jury trial.
As in the supplemental opinion to State v. Lotter, we conclude that Judge Finn’s ex parte meeting with the Thimm family was “not sufficient, under the Due Process Clause, to suggest that the trial judge ‘had such a strong personal or financial interest in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.’ ” 255 Neb. at 892, 587 N.W.2d at 675. This ex parte meeting did not place Judge Finn in an inherently conflicting role, as set out in Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), because the record does not show that Judge Finn had a direct personal pecuniary interest in the outcome of the case. Admittedly, some of Judge Finn’s comments do evidence a kind of pecuniary interest in discussing the cost of the trials and defense attorney fees. However, this is not the type of direct pecuniary interest found in Ward, where a judge could enhance his or her own salary by a finding of guilt.
Also, it is constitutionally permissible for a judge to consider as part of the sentencing process the impact of the crime on a victim’s family. Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (overruling Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)). While such consideration should take place at the sentencing hearing, the fact that such information is not inherently prejudicial to the defendant weighs against adopting the structural error standard concerning ex parte contacts with victims’ families. See id.
Accordingly, we decline to apply the structural error standard to Ryan’s claims. The fact that Judge Finn met ex parte with Thimm family members prior to sentencing Ryan for Thimm’s murder does not require automatic reversal. Judge Finn was not placed in a situation where he was unable to properly hold the balance between the State and the accused during Ryan’s sentencing hearing. See Ward v. Village of Monroeville, supra.
(ii) Actual Prejudice
Since we conclude that the structural error standard is not applicable to Ryan’s claim, we must next decide whether the district court erred in finding that the Thimm ex parte meeting resulted in no actual prejudice to Ryan. As we held in our supplemental opinion to State v. Lotter, a defendant must show that “an instance of actual bias on the part of the trial court” occurred in order to indicate a constitutional violation of the right to an impartial judge. 255 Neb. at 892, 587 N.W.2d at 675, citing Dyas III, supra. Applying the Lotter actual bias test, we determine the finding of Judge Moran that the May 9, 1986, meeting did not bias Judge Finn is not clearly erroneous.
While Judge Finn’s behavior in conducting the May 9, 1986, meeting was ethically improper, Judge Moran found that Judge Finn’s “idle musing” did not indicate a bias such that Judge Finn would impose Ryan’s sentence out of prejudice rather than on the law and facts of the case. Based on all the evidence presented, Judge Moran found that there was no discussion of Ryan’s upcoming sentencing for Thimm’s murder at the May 9 meeting.
Judge Moran also found that while Thimm was mentioned in the conversation, this was clearly not the focus of the conversation. The conversation “centered around Dennis Ryan and other co-defendants who turned state’s evidence.” Judge Moran also found that the May 9,1986, meeting did not provide Judge Finn with any information that had not already been presented to Judge Finn at Ryan’s trial. Finally, Judge Moran determined that Judge Finn’s sentencing order was based upon documented evidence and the record before the trial court at the time of sentencing. These findings are not clearly erroneous. See State v. Tucker, supra.
Further, Judge Moran found no evidence that Judge Finn deliberately concealed the ex parte meeting with the Thimm family. Rather, Judge Finn’s testimony before Judge Moran was that by the time the motion to disqualify was filed, Judge Finn had forgotten the May 9, 1986, meeting. We note that the May 9 meeting took place after Dennis Ryan’s sentencing, not after a proceeding involving Ryan and that further, it occurred 4 months before Goos filed his motion to disqualify.
The record shows that the concern during the September 15, 1986, hearing on the motion to disqualify was the August meeting with the Stice family, after Ryan’s sentencing hearing for Stice’s murder. Goos testified before Judge Moran that he specifically asked Judge Finn if the Thimm murder was discussed at the Stice meeting and was assured that the Stice meeting was about only the Stice murder. There is nothing in this record, or the record from either Ryan I or Ryan II, to indicate otherwise about the Stice meeting.
Judge Finn’s admission in 1986, while considering the motion to disqualify, that he generally met with victims’ families, supports the conclusion that Judge Finn did not deliberately conceal the May 9, 1986, meeting. Judge Finn would not have forthrightly told counsel about generally meeting with victims’ families if his intent were to conceal the May 9 meeting. The district court was not clearly erroneous in failing to find that Judge Finn deliberately concealed the May 9 meeting.
Judge Finn’s actions do not show actual bias, but, rather, a lack of judicial professionalism. Judge Finn met privately with Thimm family members at the conclusion of Dennis Ryan’s sentencing for Thimm’s murder, while separate proceedings involving Ryan’s sentencing for Thimm’s murder were still pending. The May 9, 1986, meeting was improper because Ryan’s sentencing for Thimm’s murder was stiU pending before Judge Finn when the meeting took place, but the content of the May 9 meeting does not show actual bias on the part of Judge Finn. See State v. Lotter, 255 Neb. 889, 587 N.W.2d 673 (1999) (supplemental opinion).
We determine that the district court’s finding that the May 9, 1986, meeting resulted in no actual prejudice to Ryan is not clearly erroneous. See State v. Tucker, ante p. 496, 598 N.W.2d 742 (1999). While Judge Finn erred in participating in the May 9 meeting, such error was harmless because there is no indication from the record that an instance of actual bias on the part of Judge Finn occurred. See, Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (noting that structural error standard is limited to very narrow class of cases); Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (death penalty case where court applied harmless error analysis to defendant’s coerced confession); State v. Lotter, supra (supplemental opinion) (applying harmless error standard). Thus, Ryan’s due process right to an impartial judge was not violated under the state or federal Constitution at his sentencing hearing for Thimm’s murder. See, Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972); State v. Lotter, supra (supplemental opinion).
(e) Cumulative Judicial Misconduct
Ryan also contends that the cumulative effect of the May 9, 1986, meeting shows that Judge Finn did not meet the constitutional standard of impartiality. Ryan cannot raise the issues that counsel litigated on direct appeal concerning the impact of Judge Finn’s turning his back during Ryan’s testimony simply by rephrasing this as being cumulative judicial misconduct. See State v. Ditter, 255 Neb. 696, 587 N.W.2d 73 (1998). In Ryan I, we found that Ryan was not prejudiced by the fact that Judge Finn turned his back during Ryan’s testimony. Further, Ryan was not prejudiced by the ex parte contact with Thimm family members. Even considering these two incidents together, they do not indicate an instance of actual bias on the part of Judge Finn at Ryan’s sentencing hearing. See State v. Lotter, supra (supplemental opinion). Thus, considered cumulatively, the May 9 meeting did not violate Ryan’s right to an impartial judge.
(f) Ineffective Assistance of Counsel
Ryan further contends that his constitutional right to effective assistance of counsel was denied in that trial counsel failed to discover the May 9, 1986, meeting. Ryan did raise ineffectiveness of counsel in both his direct appeal and his first motion for postconviction relief regarding the ex parte meeting in August with the Stice family. However, the basis he now relies on for relief, namely, the May 9 meeting with the Thimm family, was not available to him in these prior proceedings. We find that Ryan’s claim of ineffective counsel as it relates to the May 9 meeting is therefore not procedurally barred. See State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995). Because this claim is not procedurally barred, we turn to the issue of whether Ryan was denied effective assistance of counsel.
In order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const, art. I, § 11, the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), requires that a defendant must show that (1) counsel’s performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. State v. Tucker, ante p. 496, 598 N.W.2d 742 (1999); State v. Hunt, 254 Neb. 865, 580 N.W.2d 110 (1998). The two prongs of this test may be addressed in either order. If it is more appropriate to dispose of an ineffectiveness claim due to a lack of sufficient prejudice, that course should be followed. State v. Tucker, supra; State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998). The prejudice component of the test focuses on whether counsel’s performance rendered the results of the proceeding unreliable or fundamentally unfair by depriving a defendant of a substantive or procedural right. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995). A defendant has the burden to show how an attorney’s actions or inactions prejudiced the defendant. State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998); State v. Williams, supra.
Ryan has assigned two errors regarding ineffective assistance of counsel. First, Ryan asserts that the trial court erred in con-eluding that a claim for ineffectiveness of counsel was procedurally barred. In his brief, Ryan argues that if the court were to find that all claims related to the ex parte meeting with the Thimm family were procedurally barred, this procedural bar would be the direct result of trial counsel’s ineffectiveness. Because we have determined that there is no procedural bar against claims related to the May 9,1986, meeting, Ryan has not been prejudiced in this manner.
Second, Ryan contends that the court erred in finding that trial counsel’s failure to properly investigate the facts regarding possible ex parte meetings did not prejudice Ryan. We determine that Ryan has failed to show prejudice on this issue also. Ryan has not shown that the result of his sentencing hearing was rendered unreliable or fundamentally unfair by the failure of trial counsel to discover the May 9, 1986, meeting. As previously discussed, the May 9 meeting with Judge Finn and Thimm family members was not structural error; that is, Ryan was not constitutionally entitled to an automatic resentencing based on the fact that the May 9 meeting occurred. See Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
In retrospect, if the information concerning the May 9, 1986, meeting with the Thimm family had been available on direct appeal, the language of Ryan I implies that Ryan would have received a new sentencing hearing based on State v. Barker, 227 Neb. 842, 420 N.W.2d 695 (1988). However, the loss of the Barker rule did not render Ryan’s sentencing hearing before Judge Finn fundamentally unfair or unreliable in its result. As Judge Moran determined, and we concur, Judge Finn was not biased by the May 9 meeting. Thus, whether or not trial counsel’s performance was deficient, Ryan has failed to show any prejudice that resulted because trial counsel did not discover the May 9 meeting. An impartial judge sentenced Ryan to death, a judge who properly followed the laws of this state regarding the death penalty. The sentencing hearing was not fundamentally unfair to Ryan, nor was it rendered unreliable by the May 9 meeting which occurred 4 months prior to the hearing.
Judge Moran’s finding that Ryan suffered no prejudice as a result of trial counsels’ actions is amply supported by the record and, thus, is not clearly erroneous. What the record does show, as set out in Ryan I, are the circumstances of Thimm’s agonizing torture and death. Suffice it to say that Ryan and other cult members horribly tortured Thimm for 3 days and that Ryan finally stomped on Thimm’s chest until he died. In their brief and at oral argument, Ryan’s counsel conceded that the point of a new sentencing hearing was not that the result of the hearing would be different, but that the alleged bias of Judge Finn would be removed from the process. However, Judge Moran found that the ex parte communication did not result in actual bias on the part of Judge Finn, a finding which we determine not to be clearly erroneous. Thus, the “prejudice” element of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is not met regardless whether counsels’ performance in not discovering the communication was deficient. Ryan has not been prejudiced by trial counsels’ action or inaction regarding the May 9, 1986, meeting. Thus, this claim is without merit.
Accordingly, we find that all of Ryan’s claims related to the May 9, 1986, ex parte meeting do not entitle Ryan to any relief regarding his trial or sentencing.
2. Competency
Finally, we turn to the issue of Ryan’s competency to stand trial for Thimm’s murder. Unlike the claims related to the ex parte meeting with the Thimm family, these claims are not based on any newly discovered evidence. Because Ryan has failed to raise this issue in either Ryan I or Ryan II, the claims related to Ryan’s competency to stand trial are procedurally barred unless Ryan can meet the aforementioned exception to the procedural bar rule. State v. Fincher, 191 Neb. 446, 216 N.W.2d 172 (1974). See, also, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993). That is, Ryan must affirmatively show that the basis he now relies upon for relief was unavailable when prior motions were filed. See, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994).
The facts concerning Ryan’s mental state at the time of trial were available at the time of his first motion for postconviction relief and at the time of his direct appeal. The reports on Ryan’s mental condition, prepared before Ryan’s trial for Thimm’s murder, were fully available to Ryan and his counsel at all times. There has been no newly discovered evidence on this issue. The testimony of the medical experts at the evidentiary hearing before Judge Moran was based solely on a review of the original reports prepared in 1986. Further, the issue of competency was considered and discarded by counsel in Ryan’s first postconviction proceeding as a weak claim for relief.
Because Ryan’s competency to stand trial was not raised in either Ryan I or Ryan II and because Ryan alleges no new basis for relief on the issue of his competency, we find that all claims related to Ryan’s competency to stand trial are procedurally barred. Allowing Ryan to first raise the issue of competency after more than 10 years of appellate litigation during which Ryan chose not to raise the issue would make a mockery of the finality of the judicial process. See State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).
We note that Ryan also raises the claim of ineffectiveness of trial counsel regarding his competency to stand trial. This is procedurally barred along with the other competency claims. See State v. Stewart, supra. Ineffectiveness of counsel regarding the issue of competency could have been addressed by postconviction counsel in Ryan II and was deliberately not raised.
VI. CONCLUSION
The district court erred in finding that Ryan and his lawyers knew or reasonably should have known about the May 9, 1986, meeting during direct appeal and the first postconviction proceedings. The district court also erred in its conclusion that any claims arising out of the May 9 meeting were procedurally barred. However, the district court correctly determined that the meeting between Judge Finn and members of the Thimm family did not violate Ryan’s constitutional right to due process or effective assistance of counsel in that Ryan suffered no actual prejudice from the May 9 meeting. The district court also correctly determined that all claims related to the issue of Ryan’s competency at the time of trial are procedurally barred.
Having considered all of Ryan’s assignments of error, we conclude that Ryan is entitled to no relief. Ryan has failed to show that his constitutional rights were violated. Accordingly, the judgment of the district court is affirmed.
Affirmed.