Jeffrey D. Lundgren v. Betty Mitchell, Warden

Lundgren was born in Missouri and raised in the Reorganized Church of Jesus Christ of Latter Day Saints ("RLDS"). While attending college, Lundgren met and married his wife, Alice. Unsuccessful in school, Lundgren joined the Navy and served in the Vietnam War in the early 1970s. After his honorable discharge in 1974, he unsuccessfully held a series of hospital maintenance and other jobs in Missouri.

Lundgren's religious beliefs form the foundation of this case. Although the RLDS, headquartered in Independence, Missouri, differs from the Utah-based Mormon Church, both religions trace their origins to the prophet Joseph Smith, Jr., who published the Book of Mormon in 1830. During the 1830s, Smith moved to Kirtland, Ohio, and built the Kirtland Temple, now managed by the RLDS.

In summer 1984, Lundgren and his family moved from Missouri to Kirtland so that Lundgren could serve as senior temple guide, a job that had no pay but did include family lodging. Lundgren initially attracted favorable attention in his Sunday school classes and as a guide. William Russell, a religion professor at an RLDS college, testified that Lundgren knew scripture exceptionally well, especially the Book of Mormon, and followed the chiastic method of scripture interpretation, which involves searching text for recurring patterns. However, Lundgren did not understand the Bible's historical context and tended to concentrate on this esoteric method. Lundgren generally fit within the traditions of the RLDS faith in that he described visions, direct spiritual experiences, and God speaking directly to prophets.

Over the next three years, Lundgren served as a temple guide and taught classes on the Bible and the Book of Mormon. Despite the church's direction to turn over all money received from temple visitors to the church, Lundgren solicited and kept contributions received from visitors. Temple contributions dropped dramatically, and the temple bookstore also suffered fund shortages. The church eventually removed Lundgren as a religion teacher and, in October 1987, fired him as a temple guide and evicted him from his quarters next to the temple.

From 1985 on, Lundgren attracted a substantial following in his classes because of his knowledge of religious texts. Eventually, Kevin Currie and Sharon Bluntschly moved in with the Lundgrens,Page 760as did Richard Brand, Daniel Kraft, and Gregory Winship. Debbie Olivarez joined the group in April 1988. Those living with the Lundgrens called him "Dad" and contributed their paychecks and other money for common group expenses. Two couples, Ron and Susan Luff and Dennis and Tonya Patrick, also contributed money, but did not live with the Lundgrens. In the spring of 1987, the Avery family moved from Missouri to follow Lundgren's teachings. The Avery family included Dennis, age 49; Cheryl, age 46; and their daughters, Trina, age 15; Rebecca, age 13; and Karen, age 7.

After Lundgren's eviction, he and his family and followers moved to a rented farmhouse. There, Lundgren continued his classes, stressing the importance of the Kirtland Temple. According to Lundgren, his followers had to recapture the temple, an earthquake would elevate it, and Christ would return and establish Zion. Lundgren also spoke of his conversations with God and his visions. He discussed the Book of Revelations and the Book of Mormon, and referred to "pruning the vineyard" and the need to kill ten followers before Zion could be created. Eventually, the men in the group undertook paramilitary training to prepare for a temple assault. Lundgren picked May 3, 1988 (his birthday) as the day to recapture the temple, but later decided it was not yet time. The Averys, on the fringe of the group, were invited to only a few of Lundgren's prayer meetings.

By October 1988, the RLDS church had excommunicated Lundgren. In early 1989, Lundgren was stressing the need for his followers to go on a wilderness trip before Zion would be possible. By that time, both Kevin Currie and another follower, Shar Olson, had left the group, but Kathryn and Larry Keith Johnson had joined.

In April 1989, at Lundgren's direction, the group began preparing for the wilderness trip. Those who worked left their jobs and some bought provisions. Lundgren encouraged all of the followers to use up any of their available credit cards. All of the group members, including the Averys, gathered their worldly possessions. Around April 12, two or three of the followers secretly began digging a six-by-seven-foot pit in the dirt floor of Lundgren's barn. Lundgren told Cheryl Avery to write and tell her family that they were going to Wyoming. Then, Lundgren invited the Averys to dinner.

On April 17, 1989, Dennis, Cheryl and their three daughters ate dinner at Lundgren's farmhouse. After dinner, Lundgren went out to the barn with his son, Damon, and four followers, Brand, Kraft, Winship, and Ron Luff. The Averys stayed in the house with the women and children. At Lundgren's direction, Luff individually led each Avery family member out to the barn, where each was bound and gagged by the men. After the men placed each Avery family member into the pit, Lundgren shot each person two or three times with a .45 caliber semiautomatic weapon. The men then filled the pit with dirt and stones. Afterwards, Lundgren and the others went back to the farmhouse and held a prayer meeting.

The next day, April 18, police officers and FBI agents visited the Lundgren farm to investigate reports about the planned temple assault. Everyone interviewed said that they were at the farm voluntarily and denied knowing anything about plans to assault the temple. The FBI left without arrestingPage 761anyone, and the group drove away on their wilderness trip.

Lundgren selected mountain campsites near Davis, West Virginia, and the group lived in tents there through October 1989. Some of the followers took jobs, and the men continued their military exercises. While in West Virginia, Lundgren chose Tonya Patrick as his second wife. That arrangement did not work out, so Lundgren then picked Kathryn Johnson as his second wife. That choice upset Larry Johnson, Kathryn's husband, and contributed to group dissension. By October 1989, Lundgren, his family, and about ten of his followers moved to Missouri. However, more dissension occurred and, by the end of December 1989, Larry Johnson had contacted federal law enforcement authorities about the murders.

On January 3, 1990, Kirtland police began digging out the pit in the barn and found Dennis Avery's body. Police uncovered the other Avery family members' bodies the next day. Lundgren had shot Dennis twice in the back and Cheryl three times in the torso. He shot Trina once in the head and twice in the body, Rebecca in the back and thigh, and Karen in the head and chest. The coroner found silver duct tape wrapped around the victims' heads, hands, and feet. The origin of two damaged bullets found at the scene was unknown. Police discovered that a .45 caliber semiautomatic weapon, belonging to Lundgren, had fired all of the other bullets they recovered. Lundgren bought the weapon in 1987 and sold it in West Virginia in October 1989. On January 7, 1990, federal authorities arrested Lundgren in California.

2. Evidence Presented at the Sentencing Phase, as Recited bythe Ohio Supreme Court

As a youth, Lundgren was mostly a loner, but was active in sports and church activities. His father, a strict disciplinarian, enjoyed teasing and punishing him. Dr. Nancy Schmidtgoessling, a psychologist who testified for the defense, determined that Lundgren suffered from a mixed personality disorder with features of narcissism, paranoia, and antisocial traits. However, Lundgren's IQ of 124 was above average, and he was not schizophrenic or manic depressive. While growing up, Lundgren had little emotional support, and, as an adult, he developed intense feelings of grandiosity and a strong desire to control his environment. He could not maintain employment and "stole from almost" every one of his employers. Although Lundgren became obsessed with religion, at the time of the offenses, Lundgren did not have a mental disease or defect.

In an unsworn statement lasting almost five hours, Lundgren explained his lifelong search for spiritual truth and his visions. He quoted at length from the Old Testament and the Book of Mormon. Lundgren denied ever planning to take over the Kirtland Temple, but admitted killing the Averys. Lundgren asserted that he abhorred the sin he saw in the Avery family and explained that God commanded him to kill the Averys. He stated, "I cannot say that God was wrong. I cannot say that I am sorry I did what God commanded me to do in the physical act." Lundgren further explained, "I am a prophet of God. I am even more than a prophet. I am not a false prophet; therefore, I am not worthy of the [death] penalty." A rebuttal witness confirmed that Lundgren had planned an armed attack on the temple.Page 762Other evidence established that the RLDS had fired Lundgren as a temple guide because of theft allegations.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(a) The full nature and extent of the state's incentives given to accomplice Bluntchley to secure her testimony and her understanding of those benefits to cooperate.

(b) The full nature and extent of the state's incentives given to accomplice Olivarez to secure her testimony and her understanding of those benefits to cooperate.

(c) The full nature and extent of the state's incentives given to accomplice Brand to secure her testimony and her understanding of those benefits to cooperate.

(e) Information that certain government witnesses were not truthful.

(f) That cooperating witness Olivarez and the Petitioner believed that "if Zion were to occur" no one would question the death of the Averys.

(g) That Petitioner's reasons for killing the Avery's were based upon his interpretation of scripture.

(h) That Petitioner attempted to conform his conduct to his interpretation of scripture.

(i) That cooperating witness Brand had given a prior inconsistent statement with respect to the manner of the death of Dennis Avery.

2. Petitioner Was Not Unconstitutionally Denied an Opportunityto Present Relevant Mitigating Evidence

a. Evidentiary rulings (a), (b), and (c) did not preventPetitioner from presenting relevant mitigating evidence

(a) The full nature and extent of the state's incentives given to accomplice Bluntchley to secure her testimony and her understanding of those benefits to cooperate.

(b) The full nature and extent of the state's incentives given to accomplice Olivarez to secure her testimony and her understanding of those benefits to cooperate.

(c) The full nature and extent of the state's incentives given to accomplice Brand to secure her testimony and her understanding of those benefits to cooperate.

Lundgren argues the trial court unfairly restricted the cross-examination of his accomplices concerning the full benefits of their plea arrangements. In fact, the trial court allowed cross-examination of Bluntschly, Olivarez, and Brand regarding their plea agreements, including questions about the offenses originally charged, the offenses to which each witness pled guilty, the conditions of the plea arrangements, and the maximum sentences to be recommended under the plea bargains. The trial court, however, did not allow counsel to mischaracterize the plea agreements or cross-examine the accomplices on speculative issues such as their possible probation or parole.

"The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge."O'Brien v. Angley(1980),63 Ohio St.2d 159,163, 17 O.O.3d 98, 100,407 N.E.2d 490,493; Evid. R. 611(A). Here, we determine that no abuse of discretion occurred, since Lundgren had a full opportunity to demonstrate the bias or prejudice of each of these accomplices. Moreover, we find that any possible error would be harmless beyond a reasonable doubt in view of the overwhelming evidence demonstrating Lundgren's guilt.

Petitioner fails to explain how the incentives given to accomplices may be construed as relevant mitigating evidence much less how exclusion of this evidence contributed to the imposition of the sentence of death. . . . [T]he transcript unequivocally shows the jury heard evidence regarding the "incentives" given to the witnesses. . . . The Trial Court specifically limited defense counsel's questions concerning whether Bluntschly and Olivarez, could receive a term of probation or a lesser sentence pursuant to a plea agreementPage 768. . . [T]he reason for this limitation was because the Trial Court believed a sentence of probation was too speculative.

b. Evidentiary ruling (d) did not prevent Petitioner frompresenting relevant mitigating evidence

2. Clearly Established Federal Law on ConstitutionallyDefective Counsel

Counsel's constitutional duty to investigate a defendant's background in preparation for the sentencing phase of a capital trial is "well-established."Coleman v. Mitchell,268 F.3d 417,449(6th Cir. 2001);see also Austin v. Bell,126 F.3d 843,848(6th Cir. 1997). The "prospect of being put to death unless counsel obtains and presents something in mitigation" magnifies counsel's responsibility to investigate.Mapes v. Coyle,171 F.3d 408,426(6th Cir. 1999). And notwithstanding the deferenceStricklandrequires, neither this court nor the Supreme Court has hesitated to deem deficient counsel's failure to fulfill this obligation.See, e.g., Wiggins v. Smith,539 U.S. 510,523-28,123 S.Ct. 2527,156 L.Ed.2d 471. . . (2003) (concluding thatPage 771counsel's failure to expand their investigation of the defendant's personal background, which included physical and sexual abuse, beyond the presentence investigation and Department of Social Services reports constituted constitutionally deficient performance);Williams v. Taylor,529 U.S. 362,395,120 S.Ct. 1495,146 L.Ed.2d 389. . . (2000) (finding counsel's failure "to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood" deficient);Carter v. Bell,218 F.3d 581,596-97(6th Cir. 2000) (concluding that defense counsel's failure to investigate the defendant's family, social, or psychological background "constituted representation at a level below an objective standard of reasonableness"). Accordingly, "our principal concern in deciding whether [counsel] exercised reasonable professional judgment is . . . whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Harries's] background was itself reasonable."Wiggins,539 U.S. at 522-23,123 S.Ct. 2527(internal quotations and citations omitted). "In assessing counsel's investigation, we must conduct an objective review of their performance, measured for `reasonableness under prevailing professional norms.'"Id.at 523,123 S.Ct. 2527(quotingStrickland,466 U.S. at 688,104 S.Ct. 2052). . . . More recent ABA Guidelines, which the United States Supreme Court has recognized as reflecting prevailing professional norms, emphasize that "investigations into mitigating evidence `should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'"Wiggins,539 U.S. at 524,123 S.Ct. 2527(quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1(C), p. 93 (1989) and adding emphasis).

3. Defense Counsel Was Not Deficient in Failing to Assert aNot Guilty by Reason of Insanity Defense

4. Defense Counsel Was Not Ineffective in Failing to Object toParticular Pieces of Evidence

(a) Evidence of the character of the victims, even though their character was not at issue.

(b) Evidence as to what the prosecutor told the police to do as it related to the search and recovery of the victims' bodies, which had the effect of bolstering the witness' testimony and establishing the appearance of conducting a search in conformity with the law.

(c) A witness' mentioning of "Jonestown." (J.A. at 9579.)

(d) Expert opinions that were not stated in terms of probability.

(e) Demonstrative use and admission of numerous firearms and other materials unconnected to the death of the Averys.

(f) Use of the victims' decayed clothing with attached body "parts," resulting in the prejudicial introduction of offensive odors, and testimony as to the Averys' stomach contents. (J.A. at 10106-27.)

(g) Testimony concerning "other acts evidence" not related to or similar to the offenses at bar.

(h) Prosecutorial recitation of facts not in evidence during closing argument.

(i) Prosecutorial argument that the defense "sanitized" and "whitewashed" the case. (J.A. at 10351.)

a. Counsel's failure to object is not usually deficientperformance

b. Petitioner fails to show how any alleged errors by counselprejudiced Petitioner

c. The Supreme Court of Ohio's decision was not anunreasonable application of federal law

Lundgren's counsel vigorously and professionally defended his client in an unpopular cause. As a part of that strenuous defense, counsel could make tactical choices. Lundgren's trial strategy was to concede that he shot the Averys, but argue he did not deserve the death penalty, given his sincere religious motives. Under the facts, the decision not to object to issues raised in propositions of law five, six, seven, eight, nine, eleven, thirteen, fourteen, twenty-one, twenty-two, and twenty-three did not fall below an objective standard of reasonableness.

(b) improperly vouching for the credibility of government witnesses,

(c) continually questioning witnesses regarding Petitioner's character,

(d) arguing that the defense "sanitized" and "whitewashed" the case, and that it had prevented the jury from looking at the true facts in the case (J.A. at 10351),

(e) arguing that defense counsel "knew that they were had" (J.A. at 10352),

(f) arguing that the jury should consider the "terror the victims experienced" (J.A. at 10354),

(g) arguing facts not in evidence by stating that Petitioner looked into the eyes of Karen Avery before he shot her,

(h) exhorting the jury to return a guilty verdict so Petitioner could "suffer the consequences" (J.A. at 10360),

(i) commenting adversely on the unsworn nature of Petitioner statement during the penalty phase,

(j) appealing to the juror's sense of community to take vengeance on Petitioner, and

like all closing arguments of counsel, are seldom carefully constructedin totobefore the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.

the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury and the strength of the competent proof to establish the guilt of the accused.

3. Petitioner's Allegation Under Subclaim (k) Has No Basis inFact

4. The Prosecutor's Comments Under Subclaim (i) Were Improper,But Did Not Prejudice Petitioner

to permit the prosecutor to extensively comment on the fact that the defendant's statement is unsworn affects Fifth Amendment rights and negates the defendant's statutory prerogative. However, to totally restrict the prosecutor from making any comment would likewise be unfair, especially where the defendant, in his unsworn statement, has offered something less than "the truth, the whole truth and nothing but the truth." Therefore . . . where the defendant chooses to make an unsworn statement in the penalty stage of a capital trial, the prosecution may comment that the defendant's statement has not been made under oath or affirmation, but such comment must be limited to reminding the jury that the defendant's statement was not made under oath, in contrast to the testimony of all other witnesses.

The other problem with [Petitioner's] statement yesterday, ladies and gentlemen, is, you heard the Judge remarks about it, you have heard [the other prosecuting attorney] mention it, that statement yesterday was not given underPage 780oath. Now, is it because the Defendant is not familiar with an oath?

Ladies and gentlemen, during the course of testimony, during the post-phases of the trial, the indication to you that the Defendant made Kevin Currie swear an oath and if he violated that oath, he was to die. He had the naked dancing women swear an oath as they returned to their husbands with their soiled undergarments and he had their humiliated husbands swear an oath of allegiance to him dressed in full military gear after the conclusion of that dancing ceremony. Ladies and gentlemen, the statement given by the Defendant yesterday, the prophet of God, you heard an oath administered by Judge Parks to each and every witness who came into this courtroom[;] that is they swore and/or affirmed that the testimony that I am going to give to you, the jury, is the truth as you shall answer to God.

The Defendant, ladies and gentlemen, did not take such an oath. You are permitted, ladies and gentlemen, to consider that fact as you consider his testimony.

b. The improper statements under subclaim (i) do not amount toreversible error

[T]he gentleman for the defendant, he told you five different times about the oath you took, and about the oath we all take, and the oath I take, and the oath you take — everybody takes the oath except the defendant; he isn't man enough to get up here and take the oath. Everybody in this case took the oath. Everybody in this case raised his right hand to this man, and he says I solemnly swear to tell the truth, the whole truth and nothing but the truth so help me God. Everybody except DePew.

The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except thatthey shall review andindependently weigh all of the facts and otherevidencedisclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors inPage 782the case, and whether the sentence of death is appropriate.

After independent assessment pursuant to our duties under R.C. 2929.05, we determine that the evidence supports the aggravating circumstances of which Lundgren was found guilty beyond a reasonable doubt. Now, we must also weigh the facts and evidence in the record and consider Lundgren and his offenses to determine whether the aggravating circumstances of which Lundgren was convicted outweigh the mitigating factors in this case beyond a reasonable doubt.

First, we find that the nature and circumstances of these offenses do not offer the slightest mitigating value. In contrast, we determine that features of Lundgren's history, character, and background are entitled to some mitigating weight. Lundgren's difficulties in early childhood adversely shaped his personality, and his personality disorder, as attested to by Dr. Schmidtgoessling, adversely affected his ability to cope throughout life. He has four children and served honorably with the Navy during the Vietnam War. Additionally, we accord some mitigating weight to Lundgren's life-long struggles to find meaning and redemption through religion, the Bible, and the Book of Mormon. Unquestionably, he holds his religious beliefs deeply and strongly, and those beliefs helped shape his life. Overall, however, we find that the mitigating features of Lundgren's background, history, and character are entitled to only modest weight.

As for the statutory mitigating factors specified in R.C. 2929.04(B), we find that Lundgren's lack of significant criminal convictions must be given some mitigating weight under R.C. 2929.04(B)(5). However, the other factors listed in R.C. 2929.04(B)(1) through (4), (6), and (7) do not appear to be applicable in this case. None of the victims "induced or facilitated" the offenses and Lundgren did not act under "duress, coercion, or strong provocation." Also, as Dr. Schmidtgoessling testified, Lundgren's personality disorder does not qualify as a "mental disease or defect.". . . . Finally, Lundgren, who was thirty-eight at the time of the offenses, was the principal offender. Except for Lundgren's personality disorder and the other matters already considered as to his history, character, and background, no "other factors" appear relevant. Therefore, weighing the aggravating circumstances against the foregoing mitigating factors, we conclude that the aggravating circumstances as to each murder for which Lundgren was convicted outweigh the mitigating factors presented by this case beyond a reasonable doubt.

We also conclude that the death penalty imposed for each aggravated murder is appropriate and proportionate when compared with similar capital cases. This court has upheld the death penalty in cases involving "course of conduct" murders. . . . This court has also upheld the death penalty in cases involving murders occurring during the commission of a kidnapping.