State v. Ryan

• Decision Date: 24 July 1987
• Docket Number: No. 86-477,86-477
• Citation: 409 N.W.2d 579,226 Neb. 59
• Parties: STATE of Nebraska, Appellee, v. Dennis RYAN, Appellant.
• Court: Nebraska Supreme Court

Page 579

409 N.W.2d 579

226 Neb. 59

STATE of Nebraska, Appellee, v. Dennis RYAN, Appellant.

No. 86-477.

Supreme Court of Nebraska.

July 24, 1987.

Syllabus by the Court

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.

Rodney J. Rehm of Rehm & Bartling, Lincoln, and, on brief, Victor Faesser, Pawnee City, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

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 Hayerkamp, 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...