State v. Ryan

• Decision Date: 10 September 1999
• Docket Number: No. S-97-1035.,S-97-1035.
• Citation: 257 Neb. 635,601 N.W.2d 473
• Parties: STATE of Nebraska, appellee, v. Michael W. RYAN, appellant.
• Court: Nebraska Supreme Court

601 N.W.2d 473

257 Neb. 635

STATE of Nebraska, appellee, v. Michael W. RYAN, appellant.

No. S-97-1035.

Supreme Court of Nebraska.

September 10, 1999.

Steven E. Achelpohl and Michael A. Nelsen, of Hillman, Forman, Nelsen, Childers, Lingo & McCormack, Omaha, for appellant.

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

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

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 to 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 I, 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, Daneda Heppner, 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. Heppner 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.

Heppner'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 Heppner, Judge Finn, Karen Schmidt (the Schmidts' daughter), and Garnetta Butrick (Stice's grandmother).

Heppner 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, Heppner sent the letter to her family, along with some related newspaper clippings. Heppner'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 Finn, Heppner, Karen Schmidt, and Butrick. 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 Finn 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. Karen Schmidt said that Thimm had not been raised to believe in the kinds of things practiced by the cult. Butrick 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...