State v. Ryan

• Decision Date: 21 July 1995
• Docket Number: No. S-94-207,S-94-207
• Citation: 248 Neb. 405,534 N.W.2d 766
• Parties: STATE of Nebraska, Appellee, v. Michael W. RYAN, Appellant.
• Court: Nebraska Supreme Court

Page 766

534 N.W.2d 766

248 Neb. 405

STATE of Nebraska, Appellee, v. Michael W. RYAN, Appellant.

No. S-94-207.

Supreme Court of Nebraska.

July 21, 1995.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.

2. Postconviction: Evidence: Witnesses. In an evidentiary hearing at a bench trial provided by Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Cum.Supp.1994) for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony.

3. Postconviction: Effectiveness of Counsel: Proof. When a defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the 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.

4. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

5. Rules of the Supreme Court: Appeal and Error. Nebraska Supreme Court rules provide that the brief of an appellant shall contain, among other things, a separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed.

6. Expert Witnesses: Effectiveness of Counsel: Proof. Expert evidence is generally not admissible as proof that the assistance of counsel in a criminal case was ineffective.

7. Appeal and Error. An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration upon appeal.

8. Constitutional Law: Death Penalty. The death penalty by electrocution as punishment for crime is not a cruel and unusual punishment within the meaning of the state and federal Constitutions.

9. Effectiveness of Counsel: Presumptions. In determining whether a trial counsel's performance was deficient, there is a strong presumption that such counsel acted reasonably.

10. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.

11. Postconviction: Appeal and Error. From a procedural standpoint, a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.

12. Aiding and Abetting. The common-law distinction between a principal and an aider and abettor has been abolished in Nebraska.

13. Aiding and Abetting. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.

14. Criminal Law: Aiding and Abetting: Convictions. An aider and abettor can be convicted of any crime, even a greater offense than the principal, provided the conviction is supported by the evidence of the facts and the defendant's state of mind.

15. Criminal Law: Jury Instructions: Intent. A special diminished capacity instruction need not be given where the jury had otherwise been properly instructed that intent was an element of the crime charged.

16. Pleas: Effectiveness of Counsel: Proof. In order to satisfy the prejudice requirement in the context of a plea, a defendant must show that there is a reasonable probability that but for counsel's errors, the defendant would not have pled and would have insisted upon going to trial.

17. Sentences: Evidence. In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence.

18. Sentences: Evidence. The sentencing phase is separate and apart from the trial phase and the traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of sentence.

19. Sentences: Evidence. A sentencing court has broad discretion as to the source and type of evidence and information which may be used in determining the kind and extent of the punishment to be imposed.

20. Constitutional Law: Death Penalty. A death sentence is a unique penalty which implicates the 8th and 14th Amendments to the U.S. Constitution.

21. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. Whenever a State seeks to impose the death penalty, the discretion of the sentencing body must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. The sentencing authority's discretion must be guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.

22. Homicide: Aggravating and Mitigating Circumstances. Torture may be found where the victim is subjected to serious physical, sexual, or psychological abuse before death.

23. Statutes: Sentences: Courts. A state supreme court may salvage a facially vague statute by construing it to provide the sentencing body with objective criteria for applying the statute.

24. Constitutional Law: Aggravating and Mitigating Circumstances. The first prong of aggravating circumstance (1)(d) of Neb.Rev.Stat. § 29-2523 (Reissue 1989), narrowed by this court's decisions defining the phrase "especially heinous, atrocious, cruel" to mean unnecessarily torturous to the victim, satisfies constitutional requirements.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.

Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

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).

II. FACTS

The sordid facts of this case are fully set forth in this court's opinion rendered as a result of Ryan's direct appeal. See State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989), cert. denied 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990) (Ryan I ). We have included only those facts necessary to an understanding of the issues in this appeal.

The facts, as reflected by the record, are as follows:

During the summer and fall of 1984, Ryan and several other men and women, along with 10 of their children, moved to a farm owned by Ora Richard (Rick) Stice located near Rulo, Nebraska. The group was united by their common interest in the teachings of a certain Rev. James Wickstrom. Group members studied the Bible and referred to God as "Yahweh."

The group also believed that Ryan and other members of the group possessed the spirits of archangels and that the infant of a female group member who became pregnant while at the farm was divinely conceived. Members of the group considered Ryan to be the leader and obeyed his orders without...