Appeal from the District Court for Richardson County: Robert T. Finn, Judge.
Krivosha, C.j., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.
1. Juvenile Courts: Jurisdiction: Waiver. In deciding whether to grant a requested waiver of jurisdiction and transfer of the proceedings to the juvenile court, the trial court must carefully consider the juvenile's request in the light of the statute.
2. Juvenile Courts: Jurisdiction: Waiver.. Neb. Rev. Stat. §§ 43-276 (Reissue 1984) and 29-1816 (Reissue 1985) involve a balancing test, namely, public protection and societal security weighed against practical and not problematical rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court.
3. Sentences. The probability of success and the duration of rehabilitative treatment must be considered in determining the manner and location of detention.
4. Photographs: Juries. Gruesomeness by itself is not a sufficient reason to keep photographs from the jury, if the probative value of the photographs outweighs the possible prejudice to one accused of a crime.
5. Evidence: Witnesses: Trial. The admissibility of evidence, preliminary questions concerning the qualification of a person to be a witness, and the existence of a privilege are issues to be determined by the court.
6. Evidence: Appeal and Error. The admission or exclusion of evidence is a matter within the sound discretion of the trial court and will be upheld absent an abuse of discretion.
7. Evidence: Words and Phrases. Relevant evidence is evidence having any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without such evidence.
8. Jury Instructions: Appeal and Error. The failure to object to an instruction after it has been submitted to counsel for review will preclude raising an objection on appeal.
9. Jury Instructions: Appeal and Error.. All of the instructions must be read as a whole, and if the instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error.
10. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion.
The opinion of the court was delivered by: Boslaugh
The defendant, Dennis Ryan, was charged with first degree murder in the torture death of James Thimm. Thimm died on or about April 30, 1985, as the result of being physically abused for several days before his death.
The defendant's father, Michael Ryan, who will be referred to as Ryan, was the leader of a group or cult that was living on a farm near Rulo in Richardson County, Nebraska. The defendant and Thimm were members of the group, but Thimm had fallen out of favor and had been demoted to the status of a "slave." Ryan decided that Thimm should be tortured and then killed, and directed the men living at the farm, including the defendant, in the abuse of Thimm.
The information against the defendant was filed on September 18, 1985. At his arraignment on October 8, 1985, he pleaded not guilty. A motion to waive jurisdiction to the juvenile court was filed on November 27, 1985, together with a notice of intent to rely upon the defenses of insanity or diminished capacity.
The motion to waive jurisdiction to the juvenile court was overruled on December 18, 1985. On the same day the defendant's case was consolidated with the cases of the defendant's father and Timothy Haverkamp and a change of venue granted to Douglas County, Nebraska.
Jury selection commenced February 24, 1986; trial began March 10 and was concluded on April 10. The jury returned a verdict of guilty of second degree murder, and the defendant was sentenced to life imprisonment.
On appeal the defendant has set forth seven assignments of error on six issues. The defendant contends the trial court erred in failing to grant his motion to waive jurisdiction to the juvenile court, in receiving into evidence various photographs, in excluding certain testimony, in sustaining his codefendant's objections to the introduction of two depositions, in refusing to give certain requested jury instructions, and by imposing an excessive sentence.
The defendant first contends the trial court erred in refusing to grant his motion to waive jurisdiction to the juvenile court. It is his position the evidence presented at the transfer hearing does not support the court's findings and order denying the transfer. The State contends the district court properly denied the defendant's motion because the statutorily required balancing test by which public protection is weighed against the practical and probable rehabilitation of the defendant mandated retention by the district court.
The defendant was born August 31, 1969. On the date of the offense he was 15 years and 8 months old. His parents removed him from school after he had completed the eighth grade at Holton, Kansas.
At the hearing on the motion to waive jurisdiction to the juvenile court, the State introduced evidence concerning the torture of James Thimm and the defendant's participation in it.
The men who lived at the farm near Rulo, in addition to Ryan, James Thimm, and the defendant, included John David Andreas, James Haverkamp, Timothy Haverkamp, and Richard Stice. There were also a number of women and children. The women included Ruth Ryan, the wife of Michael Ryan and the mother of the defendant, Cheryl Gibson, Lisa Haverkamp, and Maxine Haverkamp. The children included Luke Stice, the 5-year-old son of Rick Stice, who also was tortured and killed at the direction of Ryan.
Andreas testified he had resided in Beatrice, Nebraska, for 19 years, and had moved to the Rulo farm in August 1984 because Ryan had told him that God wanted Andreas to move there. Andreas had known James Thimm for 7 or 8 years prior to his move to the Rulo farm. Thimm, who was approximately 25 or 26 at that time, was already living on the farm when Andreas moved there. Andreas testified he met Ryan in the latter part of 1982, a few days after a meeting near Hiawatha, Kansas, where a group of people were discussing different ways to defend themselves in the event of a breakdown of law and order and a Soviet attack. A few weeks later they met again at Ryan's home in Whiting, Kansas, and discussed the problems of the country and the activities occurring which were contrary to the words of the Bible.
Andreas continued to work at his job through 1983 and part of 1984, and the three men continued to get together. At some point, either in December of 1982 or January of 1983, Ryan said he could speak to God, and God would answer yes or no. Ryan and his brother-in-law had said they could talk to God and "they'd use one of their arm -- right arm and they'd ask a question, and if the arm was strong, it was a yes, and if it was -- the arm was weak, then it was a no." Andreas testified that "If the person that is holding the arm up would resist and the other person would press on the arm and try to force it down, and if it would stay up, or you could tell the difference in the strength, then it would be a yes." Andreas believed Ryan could talk to God during the period of early 1983 through August 1984, and had possibly seen Ryan use the defendant's arm to talk to God during that time. During the summer of 1983 Ryan told Andreas he could ask God whether or not people were "in deep trouble with God, and he even went as far as to say that you were in a condition where you would burn in hell if you didn't change . . . ." Ryan referred to God as "Yahweh." During that period Andreas participated in various thefts because Ryan said God wanted them to do so. Andreas stated he had equated their situation with being at war and taking from your enemies. The defendant did not participate in these thefts, but helped unload stolen property and was present when the thefts were discussed.
When Ryan told Andreas he should move to the farm and live with the group, Andreas stopped working in Beatrice. When Andreas moved to the farm, Cheryl Gibson and her children, Ryan and his family, James Thimm, Rick Stice and his three children, and James Haverkamp and his sister Lisa were already there. Andreas testified that once on the farm he and the other men, including the defendant, each had rifles.
A sort of military rank was imposed wherein the defendant began as a corporal and eventually was promoted to the rank of general. Andreas testified that at some point Ryan began to talk to God through his mind and that God told Ryan what everyone's rank should be.
Andreas testified he stayed on the farm from August 1984 until June 25, 1985, when he was arrested. He stated the defendant was promoted because, according to Ryan, the defendant "had more faith in God than any of the rest of us did and that he did everything he was told without question or didn't have any bad thoughts in his mind." The defendant seemed proud of his promotions and was very enthusiastic. Andreas initially was given the rank of private but eventually was promoted to general. Ryan called himself the king. The defendant was called a prince and Tim Haverkamp a high priest. Andreas testified that a watch was kept on the road to see if anyone was coming from approximately 6 a.m. to about 10 p.m. every day. The watch was to look for law enforcement people, and, although the guard was armed, they were instructed to radio Ryan rather than use the weapons. Andreas testified the defendant did some guard duty and was treated like the other men. Although all of the men, other than Ryan, were eventually promoted to general, the defendant had authority over the other men, including James Haverkamp, Andreas, James Thimm, Tim Haverkamp, and Rick Stice. The defendant had authority to tell the others to do certain activities and relayed messages to them from Ryan.
Andreas testified in detail about Thimm's death. Thimm had been given the status of slave after the first of the year in 1984 and was living in a separate trailer because Ryan said he was in big trouble with God and was going to burn in hell. Ryan had told them Thimm had been demoted to slave because he had denied God and had bad thoughts. Additionally, there had been a message from God that Thimm had poisoned a wild turkey which had been shot and was to be used for the feast to celebrate the birth of Lisa Haverkamp's child. That incident was the final occurrence which resulted in Thimm's demotion. About 1 month prior to his death he was chained up at night and forced to sleep on the porch of the south trailer house. Thimm was chained at night by the defendant, or one of the others, or himself. Thimm did not resist this treatment in any manner. The chain was padlocked to his ankle, or around his waist or stomach, and attached to a post. Andreas testified Thimm was chained at night because "Mike said that God had told him that he might run off, or just that God had said that that's what was supposed to be done to James Thimm because he was having bad thoughts." During the day Thimm did activities around the farm.
Andreas testified that in about the middle of March Thimm was shot through his left cheek by the defendant. Thimm was then fed cayenne pepper to control the bleeding and was bandaged by Ryan.
Andreas testified that Rick Stice was also demoted to slave after the first of the year in 1984. Andreas stated that the defendant and Tim Haverkamp lived in the south trailer, to which the porch in which Thimm lived was attached.
Two days before his death Thimm was moved to the hog confinement building and was instructed by Ryan to take a goat with him and have sex with it. Thimm was given a jar for water, a hotplate, and a sleeping bag. The next day someone took a turtle to him for food. The day before Thimm died Ryan inserted a greased shovel handle into Thimm's rectum several times, then the defendant, Tim Haverkamp, James Haverkamp, and Andreas also did so. Thimm offered no resistance. Later that same day the same men whipped Thimm. At this time Thimm was spread-eagled against an auger. Each man was directed to inflict 15 lashes. Two whips were used, a bullwhip and a livestock whip. As a result of the whipping, Thimm's skin was reddened. The men then left Thimm in the confinement building, restrained.
The next day Thimm was whipped again, because the redness from the first day was gone. The same men were involved and again inflicted 15 lashes apiece. Ryan then directed each man to take one shot at one finger on one of Thimm's hands. Andreas and Haverkamp then prepared to disk the field, and Ryan told Andreas to come into the building and say goodbye to "your good friend." At that time Thimm was alive and coherent, but unclothed. The defendant, Ryan, and Tim Haverkamp were in the confinement building. A short time later Andreas looked into the building and saw that Thimm's thighs were broken, and, he testified, it was the last time that he saw Thimm alive. Ryan later told Andreas that Thimm was dead and they would bury him that evening.
Later that evening Andreas saw Thimm's body on the sleeping bag, saw that his legs were broken, and saw that he had been skinned on one leg. The body was also more bruised than it had been the last time Andreas had seen it. Andreas testified the defendant "thought it was kind of -- it was kind of neat that he had helped kill somebody." Tim Haverkamp, the defendant, and Andreas dug the grave in the field that had been disked. Thimm was placed in the grave, and Ryan directed Haverkamp to shoot Thimm's head. Prior to that time Andreas had seen no signs of life in Thimm.
Andreas testified the defendant had later bragged about the killing and did not show remorse or sorrow.
On cross-examination Andreas testified that during the time he resided at the Rulo farm he believed that Ryan could talk to Yahweh. Andreas also testified Ryan did not threaten him with bodily harm when he directed Andreas and the others to torture Thimm, but told them God would be pleased if they did so. He testified he believed that that was what God wanted and he did not want to displease God. He testified that when he participated in the murder of James Thimm he thought that he was doing the right thing.
The defendant's counsel and Andreas illustrated how Ryan used the arm test to determine Yahweh's will. The attorney raised his arm at about a 45-degree angle toward the witness; Andreas stated a question would then be asked and he would try to pull down on the arm. If the arm fell down the answer would be no. If the arm was strong the answer would be yes. Andreas stated he thought he could talk to God in that manner until about 30 days after his arrest. He also testified he had thought Ryan could read minds, so he worried about having "wrong thoughts." He testified that during his residence at the Rulo farm he was not in touch with reality, stating, "There was very little reality that was out there. It was a fantasy world." He testified Ryan had told them that anything he said was the same as if it was written in the Bible. He stated he was fearful at that time that if he displeased Yahweh he would be condemned to burn in hell. Andreas testified Ryan had told them he could "deteriorate someone else's brain," and that he saw the results of what Ryan had done with Luke Stice and James Thimm. He stated he believed Thimm's brain had been deeply affected. Andreas stated Thimm complained very little of his torture, and throughout the ordeal begged Yahweh for forgiveness.
Andreas testified he was told the defendant had accidentally shot Thimm in the cheek; Yahweh had somehow pulled the trigger and caused the gun to fire.
Andreas testified that he was more concerned with Thimm's afterlife, that he would burn in hell, than with his suffering in his physical life. He testified that while he lived on the Rulo farm, the defendant was obnoxious, acted like a mouthy boss' son, and was a messenger and alter ego for his father. He stated he never saw the defendant disobey an order from his father and that he "blindly" followed what Ryan said. Andreas testified the farm had belonged to Rick Stice, who was initially a high priest until he was demoted to slave.
Andreas testified that when Stice was demoted to slave Stice was directed to have sex with a goat. Andreas held the goat while Stice did so.
Ryan was absent from the farm one weekend during the time Thimm was treated as a slave, but Andreas did not free Thimm and take him to Beatrice because Andreas was afraid Ryan would hunt Andreas down and kill him because he had displeased God. Andreas had disked the field to prepare for the burial of Thimm's body. Andreas felt that he had been brainwashed by Ryan, and that is why he had not left the farm for help even though he had access to weapons and transportation. He did not realize that he had been brainwashed until 40 days after he had been separated from the Rulo farm.
It was stipulated that Andreas had entered into a plea bargain with Richardson County and the U.S. attorney, and several counties in Kansas and Missouri, wherein he agreed to plead to three felony counts, with a total maximum penalty of 30 years, in exchange for telling the truth about the occurrences on the Rulo farm.
Andreas testified the younger children on the farm received some schooling at the farm, but the defendant did not participate in it.
Terry Becker, an investigator with the State Patrol, also testified. Becker participated in several searches of the farm near Rulo, Nebraska. The first search was conducted on June 25, 1985, to find stolen property allegedly located on the premises. The officers cut the lock on the gate and approached the residence. Inside the home Becker observed numerous people, including the defendant's mother. He observed a number of guns and a birthing chair, which Ryan said had been used to deliver Lisa Haverkamp's baby. Becker testified, "There was continuously a gun within reach anywhere in that trailer. There were guns -- like fully automatic weapons above each bed in the living quarters. There was a weapon above each doorway. There were handguns on the tables. It was a heavily armed residence." All of the guns were loaded. During this time the defendant was yelling obscenities at the officer from the south trailer, where he was in the custody of other officers.
As a result of the search the officers seized 13 fully automatic AR-15 rifles and approximately $120,000 of merchandise. The property was later determined to have been stolen from counties in Missouri, Nebraska, and Kansas. At the beginning of the search the defendant did not have a weapon on his person but was near a bed which had fully loaded automatic weapons on it.
A second search was conducted on the morning of August 17, 1985, because Rick Stice, a former resident of the farm, reported his son had been killed, and there was concern over the whereabouts of James Thimm. Stice had informed the officer that Thimm had previously been shot through the cheek by the defendant. That same day Ryan and Tim Haverkamp were arrested by the sheriff. On that day only one woman remained on the farm; the others had moved to Norton, Kansas, to the Lynn Thiele residence. More weapons and explosives were seized, as well as survivalist literature. In addition, the bodies of Luke Stice and James Thimm were discovered. The bodies were found after James Haverkamp told other officers that James Thimm had been killed and was buried in an unmarked grave with Luke Stice. The value of the property seized after this search was approximately $5,000, and included handguns, rifles, hand grenades, charcoal, and other chemicals for use in the manufacture of black powder. During this time the defendant was at the Lynn Thiele residence.
Becker testified that when he went there, with a search warrant, and attempted to obtain the weapon which had been used to shoot into Thimm's body at the gravesite, the defendant was in custody in Kansas by virtue of an arrest warrant issued by Richardson County, Nebraska. The officer interviewed the defendant regarding the bodies found at the Rulo farm. The defendant indicated he knew nothing about any bodies at Rulo. The defendant stated his father had given him the gun which was then retrieved from the Lynn Thiele residence.
Becker testified the defendant had no juvenile record in any jurisdiction.
The defendant presented testimony by two other men charged in the murder of James Thimm, a psychologist, a woman who works with cult members, and several attorneys.
James Haverkamp, one of the other men charged, testified that he moved to the Rulo farm in June or July 1984 because he then believed Ryan could speak with God and had instructed Haverkamp to move there. He had believed Ryan could talk to God for approximately a year prior to his move. Ryan sometimes spoke to God through Haverkamp's right arm. Haverkamp believed he was an Israelite, a descendant of Abraham, and that his belief was founded in different Bibles and Bible dictionaries. He began to believe he was an Israelite in the spring of 1983 and believed everyone who lived on the Rulo farm was an Israelite, including Luke Stice, until he was told in the spring of 1985 that the Stice boy was not. At that time Haverkamp was told that young Stice was a mongrel, and the boy was punished. The numbers 666 were written on the boy in red ink, and he was not allowed to wear clothes other than underpants for the last 2 months of his life.
Haverkamp testified he did not object to the boy's treatment because he was afraid of being punished and of burning in hell for questioning what God wanted.
Haverkamp testified that Ryan had directed him to probe James Thimm with the shovel handle because that was what Yahweh wanted. He had been told Yahweh wanted Thimm to feel pain because he had denied Yahweh. He believed he was doing God's will when he did so, and did not know how to justify how badly Thimm was hurt. Haverkamp participated in whipping Thimm and shot one of his fingers. Haverkamp further testified he had participated in kicking Thimm. Haverkamp testified the defendant participated in the torture with the other men. The defendant was above him in rank, and Haverkamp had no say with regard to the defendant's activities. In the fall of 1984 he was told by Ryan that the defendant was considered a man in the eyes of God.
Haverkamp no longer believed he could talk to God through his arm and had stopped believing that about 40 days after he was separated from the Rulo farm by his arrest. His freedom to leave the farm was restricted, but he had not objected to such restrictions because he believed it was what God wanted. Haverkamp testified the defendant helped with the school on the farm on one or two occasions, and spent more time with the children than the other men.
Haverkamp believed he had been brainwashed, meaning he did things there he would not normally have done. For example, even though Haverkamp had previously been a hog farmer, as a member of the Rulo group he was forbidden to eat pork because it was "unclean."
Haverkamp was initially attracted to the Rulo group because of Yahweh and the fear of Armageddon. The men stole batteries, tractors with backhoes, guns, ammunition, and food to prepare for the battle they believed to be imminent. Toward the end of his stay at Rulo things were quite different than when they began.
Haverkamp testified he believed Ryan controlled his free will. When Thimm died he did not worry that he had committed a crime and did not get rid of the evidence. The shovel, for example, was still in the confinement building 4 months later.
Haverkamp testified that Ryan, Rick Stice, and the defendant had reported experiencing visions while at the farm. Haverkamp had not had visions nor heard voices, but Ryan, Stice, and the defendant had reported such experiences. Haverkamp testified he was told Ryan was married to his sisters, Cheryl Gibson and Lisa Haverkamp, and his mother, Maxine Haverkamp, in the eyes of Yahweh. Ryan was also legally married to Ruth Ryan, as far as Haverkamp knew. Haverkamp believed these marriages were what Yahweh wanted. He did not leave the farm for fear of burning in hell because Ryan had told him that was what Yahweh would do to him. Ryan had announced on December 31, 1984, at a gathering at the farm that if anyone wanted to leave they should do so then because after the first of the year they would not be able to. They had to decide whether to follow Yahweh or go against him. There was an implication that if someone left they would have trouble in the hereafter.
Haverkamp testified he had never seen the defendant go against his father's wishes or question the existence of Yahweh. The defendant actively participated in the Bible Discussions held on Saturdays.
Dr. James Cole, a professor of psychology at the University of Nebraska, testified regarding his psychological evaluation of the defendant. Cole had supervised a battery of psychological tests, including intelligence tests, given the defendant, as well as a psychological interview. Dr. Cole reviewed the results of those tests and a report from the State Patrol consisting of statements of Andreas and Haverkamp, and then interviewed the defendant a second time just prior to the hearing.
It was Dr. Cole's opinion that the defendant was functioning at an average or above average intellectual level, but that he appeared to be fairly immature, "particularly emotionally and in terms of general awareness of the world around him." The defendant's responses to the Rorschach test, in particular, tended to illustrate that his level of maturity was more in line with young people's than adults'. Dr. Cole also testified a portion of the defendant's responses showed "pretty good reality contact."
Dr. Cole testified the defendant was "very open and cooperative" during the October interview and had talked a lot about movies, particularly "Red Dawn" and "The Terminator."
Dr. Cole stated his definition of immaturity could be illustrated by the following "synonyms": " kind of naivete, lack of sophistication, a lack of independence of judgment, acceptance of other people's in very absolute and total -- other people's views as absolute and total. A lack of questioning of things." Dr. Cole believed the defendant was less independent than a typical 16-year-old. He further testified the defendant unquestionably accepted the "values, the beliefs, the religion, of his father. . . . He believes in what his father believes in; he believes in the religion very strongly and uncritically." Dr. Cole viewed such uncritical ...