State v. Bjorklund

Citation604 N.W.2d 169,258 Neb. 432
Decision Date07 January 2000
Docket Number No. S-94-856, No. S-94-994.
PartiesSTATE of Nebraska, appellee, v. Roger Dale BJORKLUND, appellant.
CourtSupreme Court of Nebraska

Dennis R. Keefe, Lancaster County Public Defender, Scott P. Helvie, and Richard L. Goos, and Alan G. Stoler, Steven E. Tennies, and Jerry M. Hug, Lincoln, for appellant.

Roger D. Bjorklund, pro se.

Don Stenberg, Attorney General, and J. Kirk Brown, and Gary E. Lacey, Lancaster County Attorney, and John A. Colborn, Lincoln, for appellee.




Roger Dale Bjorklund, in two consolidated actions, appeals his convictions of and sentencing for murder in the first degree and use of a weapon to commit a felony. We affirm.


On September 22, 1992, 18-year-old Candice Harms, a freshman at the University of Nebraska-Lincoln, disappeared after leaving her boyfriend's house at approximately 11:40 p.m. The next day, Harms' abandoned vehicle was found north of Lincoln. The police found nothing at the scene of the vehicle to indicate what had happened to Harms, and although police launched a search for Harms, they could not locate her.

In December 1992, Scott A. Barney and Bjorklund were arrested for possession of a stolen vehicle. While in custody, Barney told police that he and Bjorklund had kidnapped, raped, and murdered Harms. Barney then took law enforcement officials to the locations where Barney and Bjorklund had left Harms' vehicle, where they had assaulted her, and where they had murdered Harms and buried her body.

While in jail on the pending stolen vehicle charge, Bjorklund requested to speak with Det. Gregory H. Sorensen. When Sorensen arrived at the jail, Bjorklund confirmed that he still wanted to talk to Sorensen. Sorensen read Bjorklund his Miranda rights, and Bjorklund responded affirmatively to each question on the standard Miranda form.

In the statement he gave Sorensen, Bjorklund stated that he and Barney had planned a bank robbery; however, they were certain that they were going to be caught and so they decided, prior to the robbery, to fulfill their fantasy of abducting and raping a woman. Bjorklund stated that on September 22, 1992, after he and Barney had driven around for quite some time looking for a suitable victim, they saw Harms turn onto Vine Street at the 27th Street intersection in Lincoln. They followed Harms to her parents' home on 61st and Vine Streets where Bjorklund then approached Harms as she exited her vehicle in her parents' driveway and forced her back into her car. Bjorklund and Harms in Harms' car then followed Barney in Barney's car to a 27th Street and Bluff Road location where they abandoned Harms' car, bound her hands, wrapped her head with duct tape, and then placed her in Barney's car.

Bjorklund said that they then took Harms to 84th and Havelock Streets in Lincoln. At this location, Barney left Bjorklund and Harms to go fill his car with gas. While Barney was gone, Bjorklund sexually assaulted Harms. When Barney returned, Bjorklund observed Barney also sexually assault Harms.

Following the assault, Bjorklund stated that Harms was placed back into Barney's car and taken to 134th Street and Yankee Hill Road in Lincoln. There, Bjorklund removed Harms from the car, placed her in a choke hold to control her, and began walking with her out into the field. At this point, Bjorklund stated that he stumbled and fell on top of Harms and that Barney shot Harms twice in the head with a .380-caliber semi-automatic pistol immediately thereafter.

According to Bjorklund's statement, Bjorklund and Barney then left Harms lying in the field and drove away, returning when they realized that they had left behind their blanket. When Bjorklund located the blanket near Harms, he heard Harms still spasming or gasping for air. Bjorklund then fired five rounds from his .38-caliber revolver at Harms and left the scene.

Bjorklund stated that he and Barney then took the blanket and Harms' clothing and personal belongings back to the site of the assault and burned those items there. They threw the weapons and extra ammunition into Pawnee Lake and 2 days later went back and buried Harms' body in a shallow grave a short distance from where they shot her.

An autopsy determined that the cause of Harms' death was manual strangulation and multiple gunshot wounds to the head. The coroner's physician also determined that the various incisions on Harms' body, including the removal of the nipple of her left breast, were consistent with sexual sadism and torture.

In February 1993, an amended information was filed charging Bjorklund in count I with murder in the first degree under Neb.Rev.Stat. ? 28-303 (Reissue 1995) and in count II with use of a weapon to commit a felony under Neb.Rev.Stat. ? 28-1205(1) (Reissue 1989). Count I alleged that Bjorklund, on or about September 22, 1992, killed Harms purposely and with deliberate and premeditated malice; or killed her in the perpetration of a first degree sexual assault or a kidnapping. Count II alleged that, on that same date, Bjorklund used a deadly weapon to commit a felony. At his arraignment, Bjorklund stood mute, and the trial court entered pleas of not guilty on his behalf.

Thereafter, numerous motions and other matters were heard by the trial court, including a lengthy suppression hearing involving the December 1992 statement and various other self-incriminating statements made by Bjorklund to Sorensen and other law enforcement personnel.

In October 1993, after a motion for change of venue, a jury was selected in Sidney, Cheyenne County, Nebraska. Twelve jurors and four alternates were sworn and impaneled on October 21. Trial began in Lincoln on October 25, and on November 17, the jury returned a unanimous verdict, finding Bjorklund guilty on both counts.

Prior to sentencing, on November 23, 1993, Bjorklund filed his first motion for new trial, which was overruled on December 13. Bjorklund subsequently filed a second motion for new trial on March 21, 1994, pertaining to information disclosed by the trial judge, Donald E. Endacott, to counsel after the trial. The information concerned an ex parte contact between Judge Endacott and the jury in Sidney. Judge Endacott overruled the second motion for new trial on March 23. The State filed a motion to reopen the hearing on Bjorklund's second motion for new trial, which was granted. Bjorklund also filed a "Motion for Disqualification/Motion to Recuse," and Judge Endacott assigned the issue of the ex parte contact presented in the second motion for new trial to Judge Paul D. Merritt.

The hearing was held before Judge Merritt in Sidney in May 1994. Judge Merritt found that while in Sidney and following the selection of the 12 jurors, Judge Endacott, in the presence of Bjorklund and all counsel, informed the jurors that he would be joining them in the jury room to make a few brief comments. In the jury room, Judge Endacott took care of several housekeeping matters and then asked those jurors who wished to join hands and bow their heads to do so. Judge Endacott then said, "God be with us" or words to that effect; his voice cracked; and he left the jury room. When the four alternates were chosen, the same thing occurred, except that Judge Endacott apparently also hugged some or all four of the alternate jurors.

Judge Merritt found that Bjorklund had not waived his right to complain about this action by Judge Endacott and had timely filed his second motion for new trial. Judge Merritt then found that Judge Endacott's actions were inappropriate and that "`misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.'" Although Judge Endacott refused to testify, Judge Merritt found that his testimony was unnecessary because the relevant question was whether Bjorklund's right to a fair and impartial trial was prejudiced by Judge Endacott's actions, and Judge Endacott's reasons for acting as he did had no bearing on that question. Judge Merritt found that the State established beyond a reasonable doubt that the ex parte contact by Judge Endacott was made prior to opening statements, the presentation of any evidence, and the commencement of deliberations and was therefore harmless. Judge Merritt stated:

The prayers were very short in nature and were not interpreted by the jurors as being comments by Judge Endacott on the evidence to be presented in the case or on how the case should be decided. From the time the twelve jurors were selected and sworn up to the time the case was submitted to the jurors for their deliberation, Judge Endacott continued to remind the jurors of their duty to keep open minds and base their verdict only on the evidence presented.

Sentencing was ultimately reset for September 20, 1994. On September 9, Bjorklund appealed the denial of his motion for new trial (case No. S-94-856) and filed a motion to stay sentencing until that appeal was decided. Judge Endacott denied this motion to stay. After discussing individually the statutory aggravating and mitigating factors and stating in his order that he had considered all nonstatutory mitigating evidence, Judge Endacott sentenced Bjorklund to death. In May 1996, we deferred ruling on case No. S-94-856 and consolidated that case with case No. S-94-994, Bjorklund's timely filed direct appeal.

In the brief in the direct appeal, case No. S-94-994, under "Cumulative Error," Bjorklund has raised the ex parte judicial contact, and therefore, the assignments of error issues of case No. S-94-856 are incorporated in the appeal docketed as case No. S-94-994.


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