State v. Jenkins , 303 Neb. 676 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/27/2019 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. JENKINS
Cite as 303 Neb. 676
State of Nebraska, appellee, v.
Nikko A. Jenkins, appellant.
___ N.W.2d ___
Filed July 19, 2019. Nos. S-17-577, S-17-657.
1. Courts: Trial: Mental Competency: Appeal and Error. The question
of competency to stand trial is one of fact to be determined by the court,
and the means employed in resolving the question are discretionary with
the court. The trial court’s determination of competency will not be dis-
turbed unless there is insufficient evidence to support the finding.
2. Pleas: Appeal and Error. A trial court is given discretion as to whether
to accept a guilty or no contest plea, and an appellate court will overturn
that decision only where there is an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
4. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
5. Trial: Mental Competency. The competency standard includes both (1)
whether the defendant has a rational as well as factual understanding of
the proceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with a reason-
able degree of rational understanding.
6. Pleas. To support a finding that a plea of guilty or no contest has been
entered freely, intelligently, voluntarily, and understandingly, a court
must inform a defendant concerning (1) the nature of the charge, (2) the
right to assistance of counsel, (3) the right to confront witnesses against
the defendant, (4) the right to a jury trial, and (5) the privilege against
self-incrimination.
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STATE v. JENKINS
Cite as 303 Neb. 676
7. ____. To support a plea of guilty or no contest, the record must establish
that (1) there is a factual basis for the plea and (2) the defendant knew
the range of penalties for the crime with which he or she is charged.
8. ____. A sufficient factual basis is a requirement for finding that a plea
was entered into understandingly and voluntarily.
9. ____. A plea of no contest means that the defendant is not contesting
the charge.
10. Courts: Trial: Mental Competency. The question of competency to
represent oneself at trial is one of fact to be determined by the court,
and the means employed in resolving the question are discretionary with
the court. The trial court’s determination of competency will not be dis-
turbed unless there is insufficient evidence to support the finding.
11. Right to Counsel: Waiver: Appeal and Error. In determining whether
a defendant’s waiver of counsel was voluntary, knowing, and intelligent,
an appellate court applies a “clearly erroneous” standard of review.
12. Constitutional Law: Right to Counsel: Waiver. A criminal defendant
has a constitutional right to waive the assistance of counsel and conduct
his or her own defense under the Sixth Amendment and Neb. Const.
art. I, § 11.
13. Trial: Right to Counsel: Waiver. The standard for determining whether
a defendant is competent to waive counsel is the same as the standard
for determining whether a defendant is competent to stand trial.
14. Right to Counsel: Waiver. The competence that is required of a defend­
ant seeking to waive his or her right to counsel is the competence to
waive the right, not the competence to represent himself or herself.
15. Constitutional Law: Right to Counsel: Waiver. In order to waive the
constitutional right to counsel, the waiver must be made knowingly,
voluntarily, and intelligently.
16. Right to Counsel: Waiver: Appeal and Error. When a criminal
defend­ant has waived the right to counsel, an appellate court reviews
the record to determine whether under the totality of the circumstances,
the defendant was sufficiently aware of his or her right to counsel
and the possible consequences of his or her decision to forgo the aid
of counsel.
17. Criminal Law: Right to Counsel: Waiver. A knowing and intelligent
waiver of the right to counsel can be inferred from conduct, and con-
sideration may be given to a defendant’s familiarity with the criminal
justice system.
18. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
19. Constitutional Law: Statutes: Sentences. An ex post facto law is a
law which purports to apply to events that occurred before the law’s
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STATE v. JENKINS
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enactment and which disadvantages a defendant by creating or enhanc-
ing penalties that did not exist when the offense was committed.
20. ____: ____: ____. There are four types of ex post facto laws: those
which (1) punish as a crime an act previously committed which was
innocent when done; (2) aggravate a crime, or make it greater than it
was, when committed; (3) change the punishment and inflict a greater
punishment than was imposed when the crime was committed; and (4)
alter the legal rules of evidence such that less or different evidence is
needed in order to convict the offender.
21. ____: ____: ____. The Ex Post Facto Clause bars only application of a
law that changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.
22. Criminal Law: Statutes: Legislature: Sentences. Generally, when the
Legislature amends a criminal statute by mitigating the punishment after
the commission of a prohibited act but before final judgment, the pun-
ishment is that provided by the amendatory act unless the Legislature
specifically provided otherwise.
23. Constitutional Law: Initiative and Referendum. The constitutional
provisions with respect to the right of referendum reserved to the people
should be construed to make effective the powers reserved.
24. Statutes: Initiative and Referendum. Upon the filing of a referendum
petition appearing to have a sufficient number of signatures, operation
of the legislative act is suspended so long as the verification and certi-
fication process ultimately determines that the petition had the required
number of valid signatures.
25. Constitutional Law: Sentences: Death Penalty: Mental Competency.
The Eighth Amendment forbids executing a prisoner whose mental ill-
ness makes him or her unable to reach a rational understanding of the
reason for his or her execution.
26. Constitutional Law: Sentences: Death Penalty. U.S. Supreme Court
precedent forecloses any argument that the death penalty violates the
Constitution under all circumstances.
27. Sentences: Death Penalty: Appeal and Error. In a capital sentenc-
ing proceeding, the Nebraska Supreme Court conducts an independent
review of the record to determine if the evidence is sufficient to support
imposition of the death penalty.
28. Rules of Evidence: Sentences: Death Penalty. In a capital sentencing
proceeding, the Nebraska Evidence Rules shall apply to evidence relat-
ing to aggravating circumstances.
29. Pleas: Sentences. A no contest plea constitutes an admission of all the
elements of the offenses, but not an admission to any aggravating cir-
cumstance for sentencing purposes.
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STATE v. JENKINS
Cite as 303 Neb. 676
30. Sentences: Aggravating and Mitigating Circumstances: Appeal and
Error. A sentencing panel’s determination of the existence or nonexis-
tence of a mitigating circumstance is subject to de novo review by the
Nebraska Supreme Court.
31. Sentences: Death Penalty: Aggravating and Mitigating Circum­
stances: Appeal and Error. In reviewing a sentence of death, the
Nebraska Supreme Court conducts a de novo review of the record to
determine whether the aggravating and mitigating circumstances support
the imposition of the death penalty.
32. Sentences: Death Penalty: Aggravating and Mitigating Circum­
stances. In a capital sentencing proceeding, a sentencer may consider as
a mitigating factor any aspect of a defendant’s character or record and
any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.
33. Sentences: Aggravating and Mitigating Circumstances: Proof. In a
capital sentencing proceeding, the risk of nonproduction and nonpersua-
sion as to mitigating circumstances is on the defendant.
Appeals from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Nikko A. Jenkins, pro se.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Brian William Stull and Amy Fettig, of American Civil
Liberties Union Foundation, and Amy A. Miller, of American
Civil Liberties Union of Nebraska Foundation, for amici curiae
National Alliance on Mental Illness et al.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Bishop and Welch, Judges.
Cassel, J.
I. INTRODUCTION
In consolidated appeals, one of which involved the death
penalty, Nikko A. Jenkins challenges his competency to
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Cite as 303 Neb. 676
represent himself, enter no contest pleas, proceed to sentenc-
ing, and receive the death penalty. He also makes several chal-
lenges to the death penalty. Finding no abuse of discretion by
the district court and no constitutional infirmity regarding the
death penalty, we affirm.
II. BACKGROUND
We begin by setting forth a brief background. Additional
facts will be discussed, as necessary, in the analysis section.
In August 2013, Jenkins shot and killed four individuals
in three separate incidents in Omaha, Nebraska. In October,
the State filed two criminal cases against him. In case No.
CR 13-2768, the State charged Jenkins with four counts
each of murder in the first degree, use of a deadly weapon
(firearm) to commit a felony, and possession of a deadly
weapon by a prohibited person. The information contained
a “Notice of Aggravators” for each count of murder. In case
No. CR 13-2769, the State charged Jenkins with two counts
of possession of a deadly weapon by a prohibited person. The
cases were eventually consolidated. Because Jenkins remained
mute at the arraignment, the court entered pleas of not guilty
to all counts.
Jenkins’ competency was an issue throughout the proceed-
ings. The court held a number of hearings and received
extensive evidence. In February 2014, the court found Jenkins
competent to stand trial. Although psychiatrists disagreed
regarding whether Jenkins was competent to stand trial and
whether he was mentally ill, the court acknowledged the psy-
chiatrists’ testimony that a person can be mentally ill and still
be competent to stand trial.
In March 2014, the court held a hearing during which it
found that Jenkins voluntarily, knowingly, and intelligently
waived his right to counsel. It granted Jenkins’ motion to
represent himself and appointed the public defender’s office
to provide an attorney to advise Jenkins. After a hearing 11
days later, the court accepted Jenkins’ waiver of his right to a
jury trial.
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STATE v. JENKINS
Cite as 303 Neb. 676
In April 2014, Jenkins ultimately entered a plea of no con-
test to every count. He did not agree with the factual basis pro-
vided by the State and stated that “even though [his] physical
person may have been in the act of these things [he] was not in
that moment because of [his] psychosis condition of psychotic
mania.” The court accepted Jenkins’ pleas of no contest and
found him guilty of the charges. Jenkins waived his right to
have a jury determine whether the aggravating circumstances
alleged by the State were true, stating that he would rather
have a three-judge panel make that determination. The court
accepted the waiver after ascertaining that it was made freely,
voluntarily, and knowingly.
Approximately 1 week later, the court appointed the pub-
lic defender’s office to represent Jenkins in the death penalty
phase. Because counsel believed Jenkins was not competent to
proceed with the sentencing phase, the court held a hearing on
the matter. In July 2014—approximately 4 months after finding
Jenkins to be competent—the court entered an order finding
that Jenkins was not competent to proceed with the sentenc-
ing phase. The court expressed concern that the two psychia-
trists who believed Jenkins was competent to proceed did not
believe that he had a major mental illness. The court worried
that if the psychiatrists were wrong as to whether Jenkins had a
major mental illness, “it places doubt as to their other opinion
that [Jenkins] is competent.”
After lengthy evaluation and rehabilitation efforts, the court
held a status hearing in February 2015 regarding Jenkins’
competency. It received a report authored by two clinical
psychologists and a psychiatrist, who opined that Jenkins was
competent to proceed with sentencing. In March, the court
found that Jenkins was competent to proceed with the death
penalty phase.
The court set the sentencing hearing before a three-judge
panel to commence on July 7, 2015. However, the court post-
poned the hearing after the Nebraska Legislature passed a law
repealing the death penalty. Through a referendum process,
enough votes were gathered to stay the repeal of the death
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STATE v. JENKINS
Cite as 303 Neb. 676
penalty until the issue was placed on the ballot for the general
election in November 2016.
Meanwhile, a psychiatrist opined in December 2015 that
Jenkins was not competent. The court allowed further evalua-
tion of Jenkins and received evidence during a June 2016 com-
petency hearing. In September, the court found that Jenkins
was competent to proceed with the sentencing phase. It subse-
quently rejected Jenkins’ challenges to the death penalty.
In November 2016, the death penalty sentencing phase
began. The three-judge panel unanimously found beyond a rea-
sonable doubt the existence of six aggravating circumstances.
It then proceeded with a hearing on mitigating circumstances.
The panel received comprehensive evidence regarding, among
other things, Jenkins’ mental health and his time in solitary
confinement.
In May 2017, the three-judge panel entered a 30-page sen-
tencing order. The panel found no statutory mitigators existed.
The panel found two nonstatutory mitigators to be considered
in the weighing process: Jenkins’ bad childhood and his mental
health—that he had “a personality disorder of narcissistic, anti-
social, and borderline.”
The panel unanimously determined that the mitigating cir-
cumstances did not approach or exceed the weight given to the
aggravating circumstances. With regard to proportionality in
comparison with other cases around the state, the panel stated
that Jenkins’ “commission of these four murders over a ten day
period is one of the worst killing sprees in the history of this
state.” Thus, the panel found that sentences of death were not
excessive or disproportionate to the penalty imposed in simi-
lar cases.
The panel imposed a sentence of death for each of the four
counts of murder in the first degree. It imposed consecutive
sentences of 45 to 50 years’ imprisonment on all other counts.
Because the sentences involved capital punishment, this auto-
matic appeal followed.1
1
See Neb. Rev. Stat. § 29-2525 (Cum. Supp. 2018).
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STATE v. JENKINS
Cite as 303 Neb. 676
III. ASSIGNMENTS OF ERROR
Jenkins claims that the district court erred in accepting his
pleas of no contest for two primary reasons: (1) He was not
competent to enter them and (2) they lacked a factual basis or
affirmative evidence of a valid waiver of trial rights.
He assigns that the court erred in finding him to be com-
petent to proceed pro se and that his convictions and his
sentences are constitutionally infirm, because they were the
product of the trial court’s erroneous determination that he was
competent to proceed to trial and sentencing.
Jenkins makes several challenges concerning the death pen-
alty. He assigns that the court erred in denying his motion to
preclude the death penalty as a violation of the ex post facto pro-
hibitions and in denying his motion to find Nebraska’s statutory
death penalty sentencing procedure is unconstitutional. Jenkins
claims that the death penalty is cruel and unusual punishment
when imposed upon seriously mentally ill offenders and indi-
viduals with intellectual disability. He further assigns that the
death penalty in all cases violates the Eighth Amendment to the
U.S. Constitution and Neb. Const. art. I, § 9.
Jenkins also alleges that the sentencing panel committed
error. He assigns that the panel erred by sentencing him to
death based on facts alleged during the plea proceeding. He
also assigns that the panel erred by failing to give meaningful
consideration to his mental illness, his unfulfilled requests for
commitment before the crime, and the debilitating impact of
solitary confinement.
Additionally, Jenkins filed a pro se brief. He argued that his
counsel was ineffective by failing to bring Jenkins’ attempted
suicide to the attention of the court when it was contemplating
Jenkins’ competency. However, Jenkins failed to assign any
error. An alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error
to be considered by an appellate court.2 Although we decline
2
State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
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STATE v. JENKINS
Cite as 303 Neb. 676
to resolve this alleged error, we note that during a hearing on
competency, Jenkins’ counsel asked one of the State’s experts
about Jenkins’ suicide attempts and one of Jenkins’ experts also
discussed those attempts.
IV. ANALYSIS
1. Acceptance of Pleas
Jenkins contends that the court abused its discretion in
accepting his no contest pleas for a variety of reasons. He claims
that he was not competent to enter pleas. In the same vein,
he alleges that there was no affirmative evidence of a knowing,
voluntary, and intelligent waiver of trial rights. Jenkins also
argues that no factual basis existed for the pleas.
(a) Standard of Review
[1] The question of competency to stand trial is one of fact
to be determined by the court, and the means employed in
resolving the question are discretionary with the court. The
trial court’s determination of competency will not be disturbed
unless there is insufficient evidence to support the finding.3
[2,3] A trial court is given discretion as to whether to accept
a guilty or no contest plea, and an appellate court will overturn
that decision only where there is an abuse of discretion.4 A
judicial abuse of discretion exists when the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition.5
(b) Additional Background
(i) Competency
During a November 2013 hearing, the court received
Dr. Bruce D. Gutnik’s November 8 psychiatric diagnostic
competence evaluation. Gutnik opined that Jenkins suffered
3
State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011).
4
See State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).
5
Id.
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from “Schizophrenia, Continuous, Severe.” Gutnik noted
that Jenkins had hallucinations and delusions and “blunted
affect.” Gutnik could not rule out “Schizoaffective or Other
Specified Personality Disorder.” Gutnik opined that Jenkins
was not competent to stand trial, but that Jenkins’ compe-
tence could be restored with appropriate treatment, including
antipsychotic medications. The court ordered that Jenkins be
evaluated for competence to stand trial by staff at the Lincoln
Regional Center.
In February 2014, the court held a competency hearing.
Psychiatrist Y. Scott Moore opined that Jenkins was competent
for trial. He based that determination on Jenkins’ ability to
understand three prongs: (1) awareness of the charges against
him, (2) understanding of legal procedures and the functions of
the people in the courtroom, and (3) ability to make a rational
defense. Moore believed that Jenkins’ primary diagnosis was
antisocial personality disorder, that there was a “very slim”
likelihood of Jenkins’ having any other psychotic illness, and
that Jenkins was mostly malingering.
Other evidence pointed to the contrary. Dr. Eugene C.
Oliveto performed a mental health evaluation on Jenkins 2
days prior to the hearing and arrived at an “Axis I” diagnosis
of schizophrenia and posttraumatic stress disorder. In 2009,
Dr. Natalie Baker had opined that Jenkins had psychosis not
otherwise specified and bipolar disorder—an opinion which
Gutnik noted during the 2014 competency hearing. According
to Gutnik, hallucinations and delusions are the two primary
signs of psychosis and a review of Jenkins’ records showed
a history of hallucinations dating back to age 8. Thus, Gutnik
testified that if Jenkins was malingering, he had been doing so
since he was 8.
On February 20, 2014, the court found Jenkins competent to
stand trial.
(ii) Plea Hearing
In April 2014, the court held a hearing on Jenkins’ pro
se motion to plead guilty to all felony counts. Several times
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during the hearing, Jenkins changed how he wished to plead.
He ultimately entered no contest pleas to all charges.
Initially, Jenkins entered a guilty plea to each charge in
case No. CR 13-2768 and a not guilty plea to both charges
in case No. CR 13-2769. The court then advised Jenkins of
the litany of constitutional rights he was giving up by enter-
ing guilty pleas. Jenkins interjected to ask whether the not
guilty pleas would hinder anything, because he did not want
“to be sitting in, you know, Douglas County, you know, eight
months, 23-hour-a-day confinement, when I ain’t did nothing.”
The court advised that a trial would be held on those charges.
Jenkins stated that he understood the constitutional rights he
would be waiving. He followed that by stating he had already
filed a habeas corpus action in federal court.
The court recited the elements for all of the charges and
advised Jenkins as to the penalties. Upon Jenkins’ request, the
court allowed him to plead no contest to the weapons charges
in both cases. Before the court accepted those pleas, Jenkins
stated that he wished to submit crime scene photographs for
the record.
When the court asked if the pleas of guilty and no contest
were Jenkins’ free and voluntary acts, Jenkins answered that
they were voluntary but not free. He believed that judicial
officers had been unethical and had violated his rights and that
he saw “no other choice but to take these matters to another
jurisdiction.” The court then asked, “Are you freely, knowingly
and voluntarily entering these pleas of guilty and no contest?”
Jenkins answered, “Yes.” Jenkins also stated that he under-
stood he was giving up constitutional rights and waiving any
motions pending now or in the future.
The court asked for a factual basis for all charges, and the
prosecutor supplied a lengthy recitation. The prosecutor stated
that on August 11, 2013, police were called to a location in
Omaha, Nebraska, and found the bodies of Jorge Cajiga-Ruiz
and Juan Uribe-Pena deceased in a pickup truck with their
pockets “kind of turned inside out in their pants.” The inves-
tigation revealed that the victims were lured by Jenkins’ sister
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and cousin under the premise of performing acts of prostitu-
tion. Jenkins interjected, “I know you were gonna lie like this.”
The prosecutor stated that Jenkins shot the victims in the head
with a shotgun loaded with a “deer slug.” The victims were
robbed with their billfolds taken. An autopsy showed that
Cajiga-Ruiz died of a single gunshot wound to the head, which
first passed through his right hand, and that Uribe-Pena died of
a single gunshot wound to the head or face.
The prosecutor stated that on August 19, 2013, the police
were called to “18th and Clark Streets” and observed Curtis
Bradford with “obvious gunshot wounds to the head.” Police
found a deer slug, consistent with the deer slug used at the
earlier homicides. The autopsy showed that Bradford had two
gunshot wounds to the head and that the entrance was the back
of the head. The prosecutor continued:
In the course of the investigation by the Omaha Police
Department, there were witnesses. A witness who was in
a vehicle with . . . Jenkins[] and his sister . . . who had —
was upset with . . . Bradford, apparently.
MR. JENKINS: He’s lying. Liar.
[Prosecutor]: They set up that they were going to do
— perform some sort of another act of either a robbery
or a burglary, some kind of a jacking. They picked up . . .
Bradford. He had gloves on, was dressed in a dark outfit.
They let him hold a .9 millimeter Hi-Point Carbine rifle
as they went to this location. Once they got to a loca-
tion where he was murdered, at 1804 North 18th Street,
[Jenkins’ sister] shot him once in the head. And then . . .
Jenkins said, this is how you do it, and — and proceeded
to use a shotgun with a deer slug —
MR. JENKINS: Liar.
[Prosecutor]: — and shot . . . Bradford in the head also.
MR. JENKINS: Fucking liar.
The prosecutor stated that on August 21, 2013, as Andrea
Kruger was driving home from work at approximately 1:30
or 2 a.m., she was stopped at “168th and Fort Street” by a
vehicle occupied by Jenkins, his uncle, his sister, and his
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cousin. Jenkins got out of his vehicle and pulled Kruger from
her vehicle, because he wanted her sport utility vehicle to “rob
or jack other people.” After Jenkins shot Kruger several times,
he and his uncle took her vehicle. An autopsy showed that
Kruger’s cause of death was gunshot wounds to the head, neck,
and back.
According to the prosecutor, police obtained a search war-
rant for a bag that Jenkins carried into an apartment. The
bag contained a “Remington Model Express Magnum Pump
12-gauge shotgun with a cut barrel and butt stock and a
Hi-Point Carbine Model 995 rifle.” Spent shell casings recov-
ered from the Kruger murder scene were determined to have
been fired by the Hi-Point carbine that was found in the
bag. That same carbine had Bradford’s DNA on it. Ballistics
evidence showed that the spent rifle slug from the Bradford
crime scene was fired from the shotgun recovered from the
bag. During an interview with Omaha police officers, Jenkins
said he fired the weapons and killed the four victims. Police
also obtained video from businesses located at 168th and Fort
Streets which showed Jenkins and his uncle in the area around
the time of Kruger’s murder. Further corroboration came from
Jenkins’ cousin, who was present at the first and last murders,
and from one of Jenkins’ sisters concerning Bradford’s murder.
For purposes of the factual basis, the court received a certified
copy of a felony conviction for Jenkins.
Jenkins disputed the accuracy of the factual basis. He
explained that while his “physical person may have been in
the act of these things [he] was not in that moment because
of [his] psychosis condition of psychotic mania . . . and manic
episode that [he] was within.” Jenkins stated that he heard the
voice of “Apophis” prior to the crimes. The court inquired
whether Jenkins understood that entry of a guilty plea waived
the right to enter a plea of not guilty by reason of insanity.
Jenkins responded that he understood. He asserted that Apophis
ordered him to sacrifice the victims. The court asked if Jenkins
purposely and with deliberate and premeditated malice killed
Cajiga-Ruiz. Jenkins answered: “[T]he last thing I could
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remember was I’m in a car. The next thing I know I’m in front
of this truck and I’m in front of these individuals. It wasn’t
premeditated. The demonic force led me to them just like to
the other victims.” He stated, “I don’t recall in the moment
of shooting them.” Similarly, when asked if he remembered
killing Bradford, Jenkins answered that he remembered being
with Bradford and hearing Apophis. With regard to Kruger’s
murder, Jenkins recalled seeing a vehicle pull up behind his,
hearing Apophis, and getting out of his vehicle.
The court expressed concern about accepting the guilty
pleas due to Jenkins’ disagreement with the factual basis. The
court stated that it would accept a no contest plea to all of the
charges, to which Jenkins agreed. After Jenkins entered pleas
of no contest to all counts, he then asked if the court was going
to accept crime scene photographs for purpose of his appeals.
The court advised that it did not need to receive any evidence
at that time. It then accepted the factual basis by the State and
found Jenkins guilty of the charges.
(c) Discussion
(i) Competency
[4,5] The first hurdle is whether Jenkins was competent
to plead no contest. A person is competent to plead or stand
trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend
his or her own condition in reference to such proceedings,
and to make a rational defense.6 The competency standard
includes both (1) whether the defendant has a rational as well
as factual understanding of the proceedings against him or her
and (2) whether the defendant has sufficient present ability
to consult with his or her lawyer with a reasonable degree of
rational understanding.7
6
State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on
other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.
7
See State v. Fox, supra note 3.
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In finding Jenkins competent, the court considered the evi-
dence received at the competency hearing along with its col-
loquy with Jenkins during that hearing. Although the experts
disagreed, there was expert testimony that Jenkins was compe-
tent. The court reasoned that its colloquy with Jenkins showed
that he could “comprehend his rights, convey his reasons why
he believed his rights had and were being violated, and to fol-
low the request of the Court as to the timeliness of submitting
his grievances.”
The court’s interactions with Jenkins are important. At the
time of the court’s competency determination, it had observed
Jenkins on a number of occasions. The U.S. Supreme Court
has recognized that “the trial judge, particularly one . . . who
presided over [a defendant’s] competency hearings . . . , will
often prove best able to make more fine-tuned mental capac-
ity decisions, tailored to the individualized circumstances of
a particular defendant.”8
Here, the court based its competency determination on expert
testimony and its own discussion with Jenkins. Sufficient evi-
dence supports the court’s determination of competency; there-
fore, we will not disturb it.
(ii) Validity of Pleas
[6,7] In considering the validity of Jenkins’ pleas, we recall
well-known principles. A plea of no contest is equivalent to a
plea of guilty.9 To support a finding that a plea of guilty or no
contest has been entered freely, intelligently, voluntarily, and
understandingly, a court must inform a defendant concerning
(1) the nature of the charge, (2) the right to assistance of coun-
sel, (3) the right to confront witnesses against the defendant,
(4) the right to a jury trial, and (5) the privilege against self-
incrimination.10 To support a plea of guilty or no contest, the
8
Indiana v. Edwards, 554 U.S. 164, 177, 128 S. Ct. 2379, 171 L. Ed. 2d 345
(2008).
9
State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
10
See State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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record must establish that (1) there is a factual basis for the
plea and (2) the defendant knew the range of penalties for the
crime with which he or she is charged.11
[8,9] A sufficient factual basis is a requirement for finding
that a plea was entered into understandingly and voluntarily.12
Jenkins contends that his pleas lacked a factual basis, because
he disagreed with the prosecutor’s version of the facts. But
a plea of no contest does not admit the allegations of the
charge; instead, it merely declares that the defendant does
not choose to defend.13 Such a plea means that the defendant
is not contesting the charge.14 We find no requirement that a
defendant agree with the factual basis. If the State presents
sufficient facts to support the elements of the crime charged
and the defendant chooses not to defend the charge, no more
is required. We conclude that the State supplied a sufficient
factual basis.
Jenkins’ other challenges to his pleas are likewise unpersua-
sive. He argues that the record demonstrated he did not make
a knowing, voluntary, and intelligent waiver of his rights. He
further contends that his pleas were the product of psychologi-
cally coercive conditions of solitary confinement.
The record supports a finding that Jenkins entered valid
pleas. The bill of exceptions shows that the court informed
Jenkins of the rights he would be waiving by entering a
guilty or no contest plea and that Jenkins responded he
understood. We agree that some of Jenkins’ statements can
be read to show confusion. But the court, having interacted
with Jenkins on numerous occasions by the time of the plea
hearing, was in the best position to assess the validity of his
waiver of trial rights. Further, the court held a competency
hearing before accepting Jenkins’ pleas and, with the benefit
11
State v. Wilkinson, supra note 9.
12
Id.
13
See 21 Am. Jur. 2d Criminal Law § 645 (2016).
14
See In re Interest of Verle O., 13 Neb. Ct. App. 256, 691 N.W.2d 177 (2005).
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of expert evidence, found Jenkins competent. We cannot say
that the court abused its discretion in accepting Jenkins’ pleas
of no contest.
2. Waiver of Counsel
Jenkins claims that the court committed reversible error
when it allowed him to proceed pro se. He contends that the
court failed to adequately advise him of the pitfalls of pro se
representation.
(a) Standard of Review
[10] The question of competency to represent oneself at trial
is one of fact to be determined by the court, and the means
employed in resolving the question are discretionary with the
court. The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support
the finding.15
[11] In determining whether a defendant’s waiver of coun-
sel was voluntary, knowing, and intelligent, an appellate court
applies a “clearly erroneous” standard of review.16
(b) Additional Background
Less than 1 month after the court found Jenkins competent
to stand trial, it held a hearing on Jenkins’ request to dismiss
his counsel and to proceed pro se. The court told Jenkins that
the charges he faced were “extremely serious,” that repre-
senting himself would be “extremely difficult,” that Jenkins’
counsel was “probably one of the best defense attorneys in
this entire area,” and that Jenkins was “placing [his] defense at
risk” if he did not want counsel to represent him.
The court found that Jenkins voluntarily, knowingly, and
intelligently waived his right to counsel. It granted Jenkins’
motion to represent himself and appointed the public defend-
er’s office to provide an attorney to advise Jenkins.
15
State v. Lewis, 280 Neb. 246, 785 N.W.2d 834 (2010).
16
State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
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(c) Discussion
[12] A criminal defendant has a constitutional right to waive
the assistance of counsel and conduct his or her own defense
under the Sixth Amendment and Neb. Const. art. I, § 11.17
However, a criminal defendant’s right to conduct his or her
own defense is not violated when the court determines that a
defendant competent to stand trial nevertheless suffers from
severe mental illness to the point where he or she is not com-
petent to conduct trial proceedings without counsel.18 The two-
part inquiry into whether a court should accept a defendant’s
waiver of counsel is, first, a determination that the defendant
is competent to waive counsel and, second, a determination
that the waiver is knowing, intelligent, and voluntary.19
(i) Competency
[13] The standard for determining whether a defendant is
competent to waive counsel is the same as the standard for
determining whether a defendant is competent to stand trial.20
Here, the court accepted Jenkins’ waiver of counsel less than 1
month after finding that Jenkins was competent to stand trial—
a determination that we have concluded was supported by
sufficient evidence. And unlike in State v. Lewis,21 where the
record showed that the defendant suffered from severe mental
illness, the court here did not find that Jenkins was impaired
by a serious mental illness or lacked mental competency to
conduct trial proceedings by himself.
[14] We are mindful that the competency question is not
whether a defendant can ably represent himself or herself.
“[T]he competence that is required of a defendant seeking to
waive his right to counsel is the competence to waive the right,
17
State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
18
State v. Lewis, supra note 15.
19
See State v. Hessler, supra note 16.
20
Id.
21
State v. Lewis, supra note 15.
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not the competence to represent himself.”22 Indeed, “a criminal
defendant’s ability to represent himself has no bearing upon
his competence to choose self-representation.”23 The court
recognized during the hearing that it had declared Jenkins
competent to stand trial, and sufficient evidence supports that
finding. Thus, Jenkins was also competent to waive his right
to counsel.
(ii) Validity of Waiver
[15,16] In order to waive the constitutional right to counsel,
the waiver must be made knowingly, voluntarily, and intel-
ligently.24 When a criminal defendant has waived the right to
counsel, this court reviews the record to determine whether
under the totality of the circumstances, the defendant was
sufficiently aware of his or her right to counsel and the pos-
sible consequences of his or her decision to forgo the aid of
counsel.25 Formal warnings do not have to be given by the trial
court to establish a knowing, voluntary, and intelligent waiver
of the right to counsel.26 In other words, a formalistic litany is
not required to show such a waiver was knowingly and intel-
ligently made.27
Jenkins’ waiver of counsel was voluntary. Like in State v.
Dunster,28 no promises or threats were made to encourage
the waiver of the right to counsel and the defendant prepared
his own written motion to discharge counsel. Moreover, the
decision to discharge counsel and proceed pro se was not
forced upon Jenkins; rather, Jenkins wished to handle matters
22
Godinez v. Moran, 509 U.S. 389, 399, 113 S. Ct. 2680, 125 L. Ed. 2d 321
(1993) (emphasis in original).
23
Id., 509 U.S. at 400 (emphasis in original).
24
State v. Ely, supra note 17.
25
State v. Hessler, supra note 16.
26
State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009), overruled in part
on other grounds, State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
27
Id.
28
State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
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in a particular way and was dissatisfied with his counsel’s
failure to file certain motions that counsel believed to be
frivolous.
[17] The record shows that Jenkins knowingly and intel-
ligently waived his right to counsel. A knowing and intelli-
gent waiver can be inferred from conduct, and consideration
may be given to a defendant’s familiarity with the criminal
justice system.29 Jenkins, as a convicted felon at the time of
the instant charges, had prior involvement with the criminal
justice system. And counsel represented Jenkins in proceed-
ings leading up to the hearing on Jenkins’ motion to discharge
counsel. The fact that Jenkins was represented during earlier
proceedings indicates that he was aware of his right to counsel
and that he knew what he would forgo if he waived counsel.30
The court warned Jenkins that it would be difficult to repre-
sent himself. But a waiver of counsel need not be prudent, just
knowing and intelligent.31
The court’s determination that Jenkins’ waiver of counsel
was voluntary, knowing, and intelligent was not clearly errone-
ous. Jenkins knew that he had the right to legal counsel and
that he faced potential sentences of death. Further, the court
appointed Jenkins’ prior counsel to provide advice.
3. Competency to Proceed to Sentencing
Jenkins claims that his convictions and sentences are con-
stitutionally infirm as the product of the trial court’s errone-
ous determination that he was competent to proceed to trial
and sentencing.
(a) Standard of Review
The question of competency to stand trial is one of fact to be
determined by the court, and the means employed in resolving
the question are discretionary with the court. The trial court’s
29
See State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997).
30
See State v. Hessler, supra note 16.
31
State v. Ely, supra note 17.
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determination of competency will not be disturbed unless there
is insufficient evidence to support the finding.32
(b) Additional Background
Above, we summarized evidence as to Jenkins’ competency
prior to entry of his pleas. The court also held several postplea
competency hearings, which we discuss next.
(i) July 2014
In July 2014, the court held a hearing on Jenkins’ compe-
tency to proceed with the death penalty phase. Gutnik, who
evaluated Jenkins on four occasions over a number of years,
testified that he looks at consistency over time in determin-
ing whether a person is accurately relating auditory and visual
hallucinations. Gutnik testified that Jenkins consistently spoke
about seeing various Egyptian gods and about hearing the
voice of an Egyptian god. Gutnik stated that records from psy-
chiatrists when Jenkins was 8 years old mentioned auditory and
visual hallucinations. Gutnik noted that symptoms had been
reported on multiple occasions unrelated to legal issues, and
he questioned what a person’s motivation would be to say he
or she was hearing things when there was no secondary gain
involved. Gutnik observed that Jenkins had a long history of
self-mutilation, some of it having to do with delusional beliefs
about emissaries from Egyptian folklore and some of it coming
from his mood swings.
Gutnik opined that Jenkins was incompetent to “stand trial.”
Although Jenkins understood that he had an attorney and that a
judge would be present during the death penalty phase, Gutnik
testified that Jenkins did not understand that he had been
convicted. Gutnik did not believe that Jenkins had “the abil-
ity to meet the stress of a real trial without his rationality or
judgment breaking down.” Gutnik testified that Jenkins could
“probably” be restored to competency, but that he would need
to be in a hospital and treated with medications.
32
State v. Fox, supra note 3.
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Dr. Jane Dahlke, a psychiatrist who evaluated Jenkins when
he was 8 years old, testified that he was hospitalized for 11
days. Jenkins’ mother brought him to the hospital due to state-
ments of self-harm and increasing aggression toward others.
Dahlke diagnosed him with oppositional defiant disorder and
attention deficit hyperactive disorder. At that time, the field of
psychiatry was not diagnosing 8-year-old children with bipolar
disorder. But based on the records of her observations, Dahlke
now would have diagnosed Jenkins with some form of child-
hood bipolar disorder. She noted in her records that Jenkins
talked about hearing voices that would tell him to steal and had
nightmares about his father shooting his mother. He reported
auditory hallucinations and seeing “black spirits.” Because
Dahlke did not see any reason for Jenkins to feign mental ill-
ness or to have any secondary gain for doing so, she felt that
Jenkins was experiencing what he reported.
Moore differed, testifying that he believed Jenkins was com-
petent to proceed to sentencing. He had evaluated Jenkins three
times, most recently a month earlier. In Moore’s experience
with schizophrenics, those hearing voices “block off” and/or
“look to the side” and are unable to continue giving attention
to Moore. But Jenkins differed; he said he heard voices all of
the time, and at no point during the evaluation was Jenkins dis-
tracted. Moore thought that all the symptoms Jenkins reported
were fabricated. Moore believed that Jenkins had been malin-
gering all along, including when he was 8 years old, and using
fanciful stories to try to explain his behavior and not be held
accountable for it. Moore opined that a person can be psychotic
and competent at the same time. He explained: “A person who
is psychotic can understand all of the procedures against him.
He may disagree with them, but he understands them and can
work up a defense with his attorney.”
Baker first encountered Jenkins in 2009 and last saw him in
February 2013. She did not examine Jenkins for the purpose of
determining whether he was competent. She noted psychotic
symptoms, such as Jenkins’ reports of being paranoid and of
auditory hallucinations where he heard a voice that he called
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Apophis. In a December 2009 note, Baker stated that Jenkins
appeared to be attempting to use mental health symptoms
for secondary gain, including to avoid legal consequences in
court for recent behaviors. Baker opined in February 2013 that
Jenkins appeared to be mentally ill and was an imminent dan-
ger to others.
Dr. Klaus Hartmann, a forensic psychiatrist, first met Jenkins
during a June 2014 evaluation. He opined that Jenkins was
competent to proceed to sentencing. Hartmann did not believe
that Jenkins had a major mental disorder; rather, Hartmann felt
that Jenkins had a personality disorder which accounted for
his symptoms.
Hartmann also thought that many of Jenkins’ symptoms
appeared contrived. He testified that they were “a caricature
of mental illness rather than a real mental illness,” that Jenkins
overelaborated, and that Jenkins “produces additional symp-
toms that just simply are not in keeping with my experience.”
Hartmann found it unusual that Jenkins “parades his mental ill-
ness,” when most people with mental illness do not come for-
ward to say they are sick. According to Hartmann, most people
who are psychotic do not understand that they are psychotic,
which is part of having lost touch with reality. He remarked
that although Jenkins would say he had no memory of events,
in further questioning, Jenkins understood and remembered
clearly some of the matters.
Dr. Martin W. Wetzel saw Jenkins for a psychiatric con-
sultation in March 2013. According to his report, Jenkins
expressed bizarre auditory hallucinations that “did not appear
to be consistent with typical symptoms of a psychotic dis-
order.” Wetzel’s assessment was “Bipolar Disorder NOS,
Probable”; “PTSD, Probable”; “Antisocial and Narcissistic
PD Traits”; and “Polysubstance Dependence in a Controlled
Environment.” The report stated: “The patient has an unusual
list of demands, the first of which has been placement in a
psychiatric hospital. This could be related to a singular motive
or a combination of motives, including malingering and/or a
sense of disease.”
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Following the July 2014 hearing, the court found that Jenkins
was not competent to proceed with sentencing.
(ii) February and March 2015
In February 2015, the court held a status hearing regarding
Jenkins’ competency. Jenkins informed the court that he had
been stable the past 6 months and was competent to proceed.
The court received a 31-page report submitted by Jennifer
Cimpl Bohn, a clinical psychologist; Rajeev Chaturvedi, a psy-
chiatrist; and Mario J. Scalora, a consulting clinical psycholo-
gist. The report detailed observations from Lincoln Regional
Center sessions and a discussion of current competency-related
abilities. They opined that Jenkins was competent to proceed
with sentencing, that he demonstrated an adequate factual
understanding of the proceedings, and that he demonstrated
the ability to rationally apply such knowledge to his own case.
Their diagnosis was “Other Specified Personality Disorder
(e.g., Mixed Personality Features - Antisocial, Narcissistic, and
Borderline),” malingering, polysubstance dependence, and a
history of posttraumatic stress disorder.
The report contained extensive background information.
It included a discussion that Jenkins’ hearing voices at a
young age may have actually been the voices of children
with Jenkins and that his sleeping difficulties and nightmares
related to violent events he had witnessed. The report noted
that a February 2012 record from a “Mental Illness Review
Team” indicated that Jenkins “referred to his presentation
of symptoms as a ‘skit’ in conversations with his mother
and girlfriend.” A record 2 months later revealed that after
Jenkins broke a fire suppression sprinkler and flooded a sec-
tion of the unit, staff reported that Jenkins said “‘he would
continue to act insane until he got the mental health treat-
ment he was entitled to’” and that actions such as breaking
sprinkler heads and smearing feces “‘would get immediate
response[s] from mental health. He stated he was a smart man
and knew how to get the responses from mental health so he
could get the treatment he needed.’” The report contrasted
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letters written by Jenkins on the same day in 2012: Several of
the letters were written in a pyramid design, with comments
about schizophrenia and Egyptian gods and goddesses, and
the need for emergency hearings; whereas a different letter
was written in typical form with a clear request for a copy of
Jenkins’ records.
The report documented instances in which Jenkins appeared
to use symptoms of mental illness for secondary gain. In
January 2013, Jenkins obtained access to restricted property
after he stated that Apophis wanted him to harm himself. After
cutting himself, Jenkins refused to have sutures removed if
his restrictive status was not decreased. According to a mental
health contact note, Jenkins said he “could ignore Apophis if
allowed access to ear buds or paper in his room.” In February,
Jenkins broke another fire suppression sprinkler in his room
and staff reported that Jenkins said he was hearing voices
and would break another sprinkler head if put back in the
same cell.
According to the report, a psychiatrist indicated in April
2013 that Jenkins “appeared to be ‘performing.’” The psy-
chiatrist mentioned that Jenkins told his mother he “was ‘going
to try to get a psychiatric diagnosis so he could get paid,’
seemingly in reference to obtaining disability benefits.” That
psychiatrist diagnosed Jenkins with “‘Antisocial Personality
with narcissistic features vs. Narcissistic Personality with anti-
social features.’”
The report noted that Jenkins had requested on numer-
ous occasions to be diagnosed with schizoaffective disorder.
When challenged that such requests suggested that Jenkins was
“more interested in the prescription and diagnosis being docu-
mented, as opposed to actually receiving treatment for mental
health problems,” Jenkins “generally changed the topic or
grinned and remained silent.” According to the report, Jenkins
had remarked that asking for certain medications in the past
“resulted in him obtaining diagnoses that he perceives as favor-
able for his legal strategies.”
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The report stated that Jenkins had an “inflated view of him-
self consistent with narcissistic traits.” It elaborated:
Jenkins repeatedly made statements about being a “mas-
termind,” “strategist,” “chess player,” and engaging in
“psychological warfare,” in reference to the legal pro-
ceedings and his assertions that he will be able to have
governmental agencies held liable for his actions by
stating certain things (e.g., that he needs treatment in
a different placement), obtaining a documentation trail,
and then exhibiting certain behaviors (e.g., self-harm).
When describing his actions to have others held liable
for his actions, he demonstrated significant forethought,
outlining how he strategizes to achieve his goals, and
that the fruits of his labor have been realized by [the
Department of Correctional Services’] being criticized for
their actions.
Jenkins also made repeated comments about not wanting to
be found competent. The report explained:
He described how it was his intent to be found compe-
tent for trial because he wanted to enter a guilty plea so
he would have grounds to appeal later on, but wanted
to be found incompetent after the conviction, and as a
result, behaved in such a way to achieve that goal. In a
similar manner, . . . Jenkins repeatedly highlighted how
being diagnosed with a mental illness by Drs. Baker,
Oliveto, and Gutnik has benefitted him, and sought to
pressure [Lincoln Regional Center] personnel into pro-
viding a similar diagnosis by stating that those were
“medical doctors” with many years of experience. While
he repeatedly asserted suffering from “severe” mental
illness, . . . Jenkins never appeared bothered by the
symptoms. At times, [he] became confrontational and
intimidating. There was no indication of psychotic proc­
ess throughout these discussions, and he sporadically,
almost as an afterthought, would assert that he heard
auditory hallucinations and suffered from delusions (e.g.,
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reference to returning to his cell to “bask in [his] insani-
ties,” or that he would go to his cell to converse with
“the spiritual realm”).
In August 2014, Jenkins was administered a test to assess
his self-report of symptoms. The results showed “a pattern of
markedly elevated sub-scores that is strongly characteristic of
an individual feigning a mental disorder.” The test contained
eight primary scales, and Jenkins’ scores were in the “defi-
nite feigning range” on four scales, in the “probable feigning
range” on three scales, and in the “indeterminate range” on
one scale.
The report stated that Jenkins had been inconsistent in his
report of psychotic symptoms. Although records suggested
that Jenkins reported hallucinatory experiences as a child,
providers at the facility where Jenkins was hospitalized “char-
acterized those symptoms as reactions to traumatic experi-
ences (i.e., nightmares) or real experiences (i.e., older boys
who instructed him to steal).” According to the report, “The
lack of further report of such symptoms until over a decade
later provides credence to that initial conceptualization of
those symptoms.” The report stated that Jenkins’ self-report
as an adult “has been inconsistent over time, with the excep-
tion of a common theme of hearing the voices of Apophis and
other gods/demons in the last few years.” The report provided
several reasons, which we do not detail here, why Jenkins’
assertions that he “always” heard those voices since childhood
lacked credibility.
In March 2015, the court found that Jenkins was competent
to proceed with the death penalty phase.
(iii) December 2015
In December 2015, shortly after Gutnik evaluated Jenkins
and opined that he was not competent, the court held a hearing.
Gutnik believed that Jenkins was deteriorating over time due
to being kept in isolation. Upon the State’s motion, the court
stated that it would allow doctors from the Lincoln Regional
Center to evaluate Jenkins.
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(iv) June 2016
The court next held a competency hearing in June 2016. By
that time, Cimpl Bohn, Chaturvedi, and Scalora had jointly
evaluated Jenkins beginning in January 2016 and continu-
ing until their report was authored on May 10. The team saw
Jenkins once in January, March, and April.
Cimpl Bohn opined that Jenkins had “a significant severe
personality disorder marked by antisocial, narcissistic and
borderline traits.” She believed that Jenkins was malinger-
ing other psychiatric symptoms. Cimpl Bohn testified that
Jenkins’ presentation of psychotic symptoms and his self-
report of such symptoms was not validated by behavioral
observations or record review. With regard to malingering,
Cimpl Bohn testified that Jenkins’ self-harming clearly had a
secondary gain component. And psychological testing helped
confirm the malingering diagnosis. Cimpl Bohn testified that
a person can have a mental illness and still be malingering,
but she felt that Jenkins suffered from a severe personality
disorder and not from a psychotic disorder or a major affec-
tive mood disorder.
Cimpl Bohn testified that in “short bursts,” Gutnik could
have mistaken Jenkins’ bizarre and dramatic behavior for a
type of mental illness. She felt that the psychiatrist who offered
a diagnosis of schizoaffective disorder in July 2015 “seemed
to be struck by some of the dramatic nature of . . . Jenkins’
statements about auditory hallucinations.” She noted that the
psychiatrist’s record reflected that Jenkins’ thought process was
organized and logical, that his speech was generally normal
and understandable, and that he was coherent. Cimpl Bohn
testified that if the diagnosis was schizoaffective disorder or
schizophrenia, one would expect to see some disorganization
of the thought process and not just reported hallucinations or
delusions. She noted that the psychiatrist’s notes raised con-
cerns about malingering or secondary gain and suspicion that
Jenkins was self-harming to get out of segregation.
Cimpl Bohn opined that Jenkins was competent to proceed.
In making that determination, she considered whether Jenkins
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possessed a factual understanding of the legal system and
legal proceedings, an ability to apply that to the individual’s
own case, and a rational ability to consult with counsel. Cimpl
Bohn felt that Jenkins would struggle with developing rapport
with counsel, because his narcissism was a significant barrier.
She opined that Jenkins’ difficulties in working with coun-
sel stemmed from a personality disorder. She explained that
Jenkins believed he was “smarter than anybody in the room”
and that any strategy was going to be flawed if it was not
Jenkins’ own.
Gutnik recounted his interactions with Jenkins. He first
saw Jenkins in March 2011. When he next saw Jenkins in
November 2013, Gutnik concluded that Jenkins was not com-
petent and diagnosed him with “schizophrenia versus schizo­
affective disorder, depressed type, and rule out personality
disorder otherwise not specified.” When Gutnik saw Jenkins
in May 2014 and April and December 2015, Gutnik concluded
that Jenkins remained psychotic with the same diagnoses.
Gutnik saw Jenkins in June 2016 and found that Jenkins con-
tinued to have schizoaffective disorder.
Gutnik testified that Jenkins’ multiple mutilations of his
own penis would be an indication of severe mental illness.
He thought a person would “have to be fairly out of touch
and psychotic to be able to not react to that level of pain.”
Gutnik noted that four other psychiatrists thought Jenkins was
psychotic and that Jenkins’ delusions about Egyptian gods
dated back to 2009—before the crimes at issue. Gutnik did not
believe that Jenkins was malingering, because “he has been
consistently psychotic every time that I’ve seen him.”
On September 20, 2016, the court entered an order on
Jenkins’ motion to determine whether he was competent to
proceed with the sentencing phase. The court recognized
the competing opinions of Gutnik and Cimpl Bohn. It stated
that Gutnik saw Jenkins on a limited basis, whereas Cimpl
Bohn and her staff had regular communication with Jenkins.
The court also found it significant that during Jenkins’ tes-
timony at the May 2016 competency hearing, Jenkins ably
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followed the questions of his attorney and supplied appropri-
ate answers. The court accepted the opinion of Cimpl Bohn
and found that Jenkins was competent to proceed with the
sentencing phase.
(c) Discussion
We begin by addressing what would at first blush appear
to be inconsistent decisions regarding Jenkins’ competence.
In February 2014, the court found Jenkins competent to stand
trial. Subsequently, it allowed Jenkins to waive his right to
counsel, to enter pleas of no contest, and to waive his right
to have a jury determine whether aggravating circumstances
existed. Then, in July, the court found that Jenkins was not
competent to proceed with sentencing. From the timing of
events, it would appear that the court’s reversal was precipi-
tated by its reappointment of counsel and counsel’s motion to
determine whether Jenkins was competent.
The court’s order reflects that it found Jenkins to be not com-
petent only out of an abundance of caution. Its order contained
the following quote: “‘If at any time while criminal proceed-
ings are pending facts are brought to the attention of the court,
either from its own observation or from suggestion of counsel,
which raise a doubt as to the sanity of the defendant, the ques-
tion should be settled before further steps are taken.’”33 The
court explained: “This Court must be satisfied that [Jenkins]
is competent to proceed with the sentencing phase of a death
penalty case. The fact that this is a death penalty case height-
ens the concern and consideration of this Court.” The court
prudently allowed a lengthy evaluation process to occur, and in
September 2016, the court found that Jenkins was competent to
proceed with sentencing.
The record shows that the court received conflicting expert
evidence throughout the proceedings as to Jenkins’ competency.
The court also had abundant opportunities to interact with and
observe Jenkins. Ultimately, the court accepted Cimpl Bohn’s
33
State v. Campbell, 192 Neb. 629, 631, 223 N.W.2d 662, 663 (1974).
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opinion that Jenkins was competent. Sufficient evidence in the
record supports the court’s determination; therefore, we will
not disturb the court’s finding of competency.
4. Ex Post Facto Challenge
Jenkins contends that the court erred by denying his motion
to preclude the death penalty as a violation of the Ex Post
Facto Clauses of the U.S. and Nebraska Constitutions.34
We disagree.
(a) Standard of Review
[18] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews.35
(b) Additional Background
In May 2015, the Nebraska Legislature passed 2015 Neb.
Laws, L.B. 268,—which abolished the death penalty in
Nebraska—and then overrode the Governor’s veto of the bill.
The Legislature adjourned sine die on May 29. Because L.B.
268 did not contain an emergency clause, it was to take effect
on August 30.36
Following the passage of L.B. 268, opponents of the bill
sponsored a referendum petition to repeal it. On August 26,
2015, the opponents filed with the Nebraska Secretary of State
signatures of approximately 166,000 Nebraskans in support of
the referendum. On October 16, the Secretary of State certified
the validity of sufficient signatures. Enough signatures were
verified to suspend the operation of L.B. 268 until the referen-
dum was approved or rejected by the electors at the upcoming
election. During the November 2016 election, the referendum
passed and L.B. 268 was repealed, that is, in the language of
the constitution, the act of the Legislature was “reject[ed].”37
34
U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.
35
State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
36
See Neb. Const. art. III, § 27.
37
See Neb. Const. art. III, § 3.
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(c) Discussion
Jenkins’ ex post facto argument focuses on his uncertainty
as to whether the repeal of the death penalty was in effect for
a period of time. We first explain that there is technically no
ex post facto violation for Jenkins, then we resolve the issue
presented by Jenkins under what we sometimes refer to as the
“Randolph doctrine.”38
[19-21] An ex post facto law is a law which purports to
apply to events that occurred before the law’s enactment and
which disadvantages a defendant by creating or enhancing
penalties that did not exist when the offense was committed.39
There are four types of ex post facto laws: those which (1) pun-
ish as a crime an act previously committed which was innocent
when done; (2) aggravate a crime, or make it greater than it
was, when committed; (3) change the punishment and inflict a
greater punishment than was imposed when the crime was com-
mitted; and (4) alter the legal rules of evidence such that less or
different evidence is needed in order to convict the offender.40
The Ex Post Facto Clause “bars only application of a law that
‘“changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.”’”41 The
clause’s underlying purpose is to “assure that legislative Acts
give fair warning of their effect and permit individuals to rely
on their meaning until explicitly changed.”42
Here, the death penalty was in effect at the time of Jenkins’
crimes in 2013. It was also in effect at the time that Jenkins
was sentenced. Because the repeal of the repeal of the death
penalty did not inflict a greater punishment than that avail-
able when Jenkins committed the crimes, there is no ex post
facto law.
38
See State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
39
See State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
40
Id.
41
State v. Kantaras, 294 Neb. 960, 972, 885 N.W.2d 558, 567 (2016).
42
Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17
(1981).
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[22] But Jenkins also claims that under State v. Randolph,43
a defendant is entitled to take advantage of any reduction in
penalties before final disposition. Under the Randolph doctrine,
generally, when the Legislature amends a criminal statute by
mitigating the punishment after the commission of a prohibited
act but before final judgment, the punishment is that provided
by the amendatory act unless the Legislature specifically pro-
vided otherwise.44
This contention presupposes that L.B. 268 became opera-
tive. Jenkins contends that it took effect on August 30, 2015,
and remained in effect until October 16, when the Secretary
of State confirmed the validity and number of signatures. On
the other hand, the State argues that the bill never went into
effect, because its operation was suspended by the referendum
petition until approved by Nebraska voters. We agree with
the State.
We pause to discuss the referendum process provided for in
the Nebraska Constitution.45 As pertinent here, petitions invok-
ing the referendum must be signed by not less than 5 percent
of Nebraska’s registered voters and filed in the Secretary
of State’s office within 90 days after the Legislature which
passed the bill adjourned sine die.46 “Upon the receipt of the
petitions, the Secretary of State, with the aid and assistance
of the election commissioner or county clerk, shall determine
the validity and sufficiency of signatures on the pages of the
filed petition.”47 The Secretary of State must total the valid
signatures and determine whether constitutional and statutory
requirements have been met.48 With two exceptions not appli-
cable here, an act is suspended from taking effect prior to a
43
State v. Randolph, supra note 38.
44
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
45
See Neb. Const. art. III, § 3.
46
See id.
47
Neb. Rev. Stat. § 32-1409(1) (Reissue 2016).
48
§ 32-1409(3).
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referendum election when the referendum petition is signed by
at least 10 percent of the state’s registered voters.49
We reject the notion that signatures must be verified and
certified before the act’s operation will be suspended. An ear-
lier case implicitly determined that this notion is not correct.50
That case presented the following pertinent timeline of events
in 1965:
• July 1: The legislative bill at issue became law.
• August 17: The Legislature adjourned sine dine.
• September 29: A referendum petition and affidavit as to per-
sons contributing things of value in connection with the peti-
tion were filed.
• November 15: Additional certificates and a supplemental
statement were filed in connection with the petition.
• December 13: The Secretary of State certified that valid sig-
natures of more than 10 percent of electors had been filed.
Our decision noted that there were sufficient signatures to sus-
pend the act from taking effect; there was no suggestion that
the act went into effect on November 17 (3 calendar months
after adjournment) and remained in effect until December 13
(when the Secretary of State certified that the petition con-
tained signatures of more than the 10-percent requirement).
[23] Jenkins’ notion conflicts with several fundamental prin-
ciples. The power of referendum must be liberally construed
to promote the democratic process.51 The power is one which
the courts are zealous to preserve to the fullest tenable meas­
ure of spirit as well as letter.52 The constitutional provisions
with respect to the right of referendum reserved to the people
should be construed to make effective the powers reserved.53
49
See, Neb. Const. art. III, § 3; Pony Lake Sch. Dist. v. State Committee for
Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).
50
Klosterman v. Marsh, 180 Neb. 506, 143 N.W.2d 744 (1966).
51
See Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
52
See id.
53
See Pony Lake Sch. Dist. v. State Committee for Reorg., supra note 49.
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Stated another way, the provisions authorizing the referendum
should be construed in such a manner that the legislative power
reserved in the people is effectual.54 The right of referendum
should not be circumscribed by narrow and strict interpretation
of the statutes pertaining to its exercise.55
Jenkins’ contention—that suspension cannot occur until a
sufficient number of signatures are certified—would make
ineffectual the people’s power to suspend an act’s operation.
Whether an act went into effect, and for how long, would
depend upon how quickly the Secretary of State and elec-
tion officials counted and verified signatures. Jenkins’ argu-
ment demonstrates the absurdity of such a view. Because the
Secretary of State was unable to confirm that a sufficient
number of voters signed the petitions until October 16, 2015,
Jenkins contends that L.B. 268 went into effect on August 30,
thereby changing all death sentences to life imprisonment and
changing the status of any defendant facing a potential death
sentence to a defendant facing a maximum sentence of life
imprisonment. Such an interpretation would defeat the purpose
of this referendum—to preserve the death penalty. Our consti-
tution demands that the power of referendum not be impaired
by ministerial tasks appurtenant to the process. Having pro-
duced the signatures necessary to suspend the act’s operation,
the people were entitled to implementation of their will.
[24] We conclude that upon the filing of a referendum
petition appearing to have a sufficient number of signatures,
operation of the legislative act is suspended so long as the
verification and certification process ultimately determines that
the petition had the required number of valid signatures. And
Jenkins did not dispute either the sufficiency of the signatures
or the outcome of the referendum election. Accordingly, the
filing of petitions on August 26, 2015—prior to the effective
date of L.B. 268—suspended its operation until Nebraskans
54
See id.
55
See Hargesheimer v. Gale, supra note 51.
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effectively rejected the bill by voting to repeal it. Because
L.B. 268 never went into effect, the Randolph doctrine has
no application.
5. Constitutionality of Death
Penalty Procedure
Jenkins argues that Nebraska’s death penalty scheme vio-
lates the 6th and 14th Amendments to the U.S. Constitution
and Neb. Const. art. I, §§ 3 and 6. He contends that Nebraska’s
statutory procedure is unconstitutional because, he asserts, it
does not require a jury to find each fact necessary to impose a
sentence of death.
(a) Standard of Review
The constitutionality of a statute presents a question of law,
which an appellate court independently reviews.56
(b) Additional Background
Under Nebraska law, a jury’s participation in the death pen-
alty sentencing phase, if not waived,57 ceases after the deter-
mination of aggravating circumstances.58 If no aggravating cir-
cumstance is found to exist, the court enters a sentence of life
imprisonment without parole.59 But if the jury finds that one
or more aggravating circumstances exist, the court convenes
a panel of three judges to receive evidence of mitigation and
sentence excessiveness or disproportionality.60 In determining
an appropriate sentence, the panel considers whether the aggra-
vating circumstances as determined to exist justified imposi-
tion of a death sentence, whether mitigating circumstances
existed which approached or exceeded the weight given to the
aggravating circumstances, or whether the sentence of death
56
State v. Stone, supra note 35.
57
See Neb. Rev. Stat. § 29-2520(3) (Cum. Supp. 2018).
58
§ 29-2520(4)(g).
59
§ 29-2520(4)(h).
60
Id.
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was excessive or disproportionate to the penalty imposed in
similar cases.61
(c) Discussion
Jenkins argues that Nebraska’s scheme violates the Sixth
Amendment, relying upon the U.S. Supreme Court’s decision
in Hurst v. Florida.62 In that decision, the opinion includes
a statement that “[t]he Sixth Amendment requires a jury, not
a judge, to find each fact necessary to impose a sentence of
death.”63 According to Jenkins, Nebraska’s law is contrary to
Hurst because judges determine the existence or nonexistence
of mitigating circumstances and perform the weighing process.
He takes the position that the determination of the existence of
mitigating factors, the weighing process of the aggravating and
mitigating circumstances, and the proportionality review must
be performed by a jury. Because Jenkins waived a jury and
expressly stated he would “rather have the judges” for sentenc-
ing, we doubt he has standing to attack the constitutionality of
Nebraska’s procedure on the grounds he asserts.64 But, in any
event, he is wrong.
We recently discussed Hurst in detail in State v. Lotter.65
We rejected an argument that Hurst held a jury must find
beyond a reasonable doubt that the aggravating circumstances
outweighed the mitigating circumstances. In doing so, we
cited a number of federal and state courts reaching the same
conclusion, but acknowledged that the view was not uni-
versal.66 Further, we recognized our previous decision67 that
earlier U.S. Supreme Court precedent—upon which Hurst
61
Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2018).
62
Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
63
Id., 136 S. Ct. at 619.
64
See U.S. v. Skinner, 25 F.3d 1314 (6th Cir. 1994).
65
See State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied
No. 18-8415, 2019 WL 1229787 (U.S. June 17, 2019).
66
See id.
67
See State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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was based—did not require the determination of a mitigating
circumstance, the balancing function, or the proportionality
review to be undertaken by a jury. Nothing in Hurst requires
a reexamination of that conclusion. This assignment of error
lacks merit.
6. Whether Death Penalty Is Cruel and Unusual
Punishment When Imposed on Seriously
Mentally Ill Offenders and Individuals
With Intellectual Disability
Jenkins begins his argument that the death penalty is cruel
and unusual punishment when imposed on certain offenders by
pointing to U.S. Supreme Court precedent68 declaring that the
Eighth Amendment prohibits the execution of individuals with
mental retardation. And he correctly observes that the Nebraska
Legislature responded by precluding the imposition of the
death penalty on any person with an intellectual disability.69
We agree with Jenkins’ general assertions that a person with an
intellectual disability may not be executed. However, Jenkins
does not assert or argue that he suffers from an intellectual dis-
ability. Therefore, whether Jenkins should be ineligible for the
death penalty on that basis is not before us.
[25] Unlike situations of intellectual disability, neither the
U.S. Supreme Court nor the Nebraska Legislature has explic-
itly precluded the death penalty for an individual with a
severe mental illness. Rather, the Supreme Court has held that
the Eighth Amendment forbids executing a prisoner whose
mental illness makes him or her unable to “reach a rational
understanding of the reason for [his or her] execution.”70
Whether a prisoner has any particular mental illness is not
determinative; rather, what matters is whether a prisoner has
68
See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002).
69
See Neb. Rev. Stat. § 28-105.01(2) (Cum. Supp. 2018).
70
Panetti v. Quarterman, 551 U.S. 930, 958, 127 S. Ct. 2842, 168 L. Ed. 2d
662 (2007).
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a rational understanding of why he or she is to be executed.71
The Supreme Court explained:
[The] standard [of Panetti v. Quarterman72] focuses on
whether a mental disorder has had a particular effect: an
inability to rationally understand why the State is seeking
execution. . . . Conversely, that standard has no interest
in establishing any precise cause: Psychosis or dementia,
delusions or overall cognitive decline are all the same
under Panetti, so long as they produce the requisite lack
of comprehension.73
We observe that other courts have determined a diagnosis of
schizophrenia or paranoid schizophrenia74 does not preclude
a death sentence where the defendant is competent to be
executed.
Jenkins does not argue that he lacks the requisite under-
standing of the reason for his execution. Rather, he argues that
the same rationale for exempting the intellectually disabled
from the death penalty should apply to exempt defendants who
are seriously mentally ill from that punishment. We decline to
vary from the principle articulated in Panetti.
Moreover, we are not persuaded that, even if we were to
stray beyond Panetti, Jenkins would qualify for relief. The
record reveals a conflict in expert opinion as to whether
Jenkins suffered from a serious or severe mental illness.
Some professionals had no doubt that Jenkins was severely
mentally ill. Oliveto and Gutnik diagnosed Jenkins with
schizophrenia. A different psychiatrist diagnosed Jenkins with
schizoaffective disorder, bipolar type. Psychiatrists Baker and
71
See Madison v. Alabama, ___ U.S. ___, 139 S. Ct. 718, 203 L. Ed. 2d 103
(2019).
72
Panetti v. Quarterman, supra note 70.
73
Madison v. Alabama, supra note 71, 139 S. Ct. at 728.
74
See, Lindsay v. State, No. CR-15-1061, 2019 WL 1105024 (Ala. App.
Mar. 8, 2019); Ferguson v. State, 112 So. 3d 1154 (Fla. 2012); Corcoran v.
State, 774 N.E.2d 495 (Ind. 2002); Com. v. Jermyn, 551 Pa. 96, 709 A.2d
849 (1998); Berry v. State, 703 So. 2d 269 (Miss. 1997).
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Wetzel expressed that Jenkins could have a severe mental ill-
ness or that he could be malingering.
Other professionals opined that Jenkins was not severely
mentally ill. Dr. Mark Weilage, who met with Jenkins in 2012,
concluded that Jenkins had no major mental illness. Hartmann
did not believe Jenkins had a major mental disorder. Moore
believed that Jenkins’ main diagnosis was antisocial personal-
ity disorder. Cimpl Bohn, Chaturvedi, and Scalora opined that
Jenkins suffered from a significant severe personality disorder
marked by antisocial, narcissistic, and borderline traits and
that he malingered other symptoms. Psychiatrist Dr. Cheryl
Jack met with Jenkins in April 2013, and her impression was
“‘Axis I: No diagnosis; and Axis II: Antisocial Personality,
with narcissistic features vs. Narcissistic Personal[i]ty with
antisocial features.’” And in December 2009, Baker con-
cluded that Jenkins’ symptoms were “‘more behavioral/Axis II
in nature.’”
There is no doubt that Jenkins exhibited abnormal behav-
iors. But a number of experts believed that he was malingering.
A test revealed scores indicative of feigning a mental disor-
der. In support of the view that Jenkins was not malingering,
some—Gutnik, in particular—pointed to Jenkins’ having hal-
lucinations dating back to age 8. But Dahlke’s 1995 psycho-
logical report revealed a misunderstanding as to the reported
hallucinations:
A previous report had said [Jenkins] heard voices telling
him to do bad things. On further inquiry, [Jenkins] said
these are real voices of these older boys, and he only
hears them when the boys are there with him. There was
no evidence of psychosis or auditory hallucination in this
interview. It may be that [Jenkins] misunderstood the
question in the previous interview.
A December 1997 medical report—when Jenkins was age 11—
stated that Jenkins denied auditory and/or visual hallucinations.
A psychiatric assessment from July 1999 likewise stated that
Jenkins denied any auditory or visual hallucinations.
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The record contains credible expert testimony that Jenkins
has been feigning mental illness. We are not persuaded that
Jenkins suffers from a serious mental illness. Thus, we need
not determine in this case whether either the U.S. Constitution
or the Nebraska Constitution would prohibit imposing capital
punishment on an offender who actually suffers from a seri-
ous mental illness. A court decides real controversies and
determines rights actually controverted, and does not address
or dispose of abstract questions or issues that might arise in a
hypothetical or fictitious situation or setting.75
7. Whether Death Penalty Violates
Eighth A mendment and Neb. Const.
art. I, § 9, in A ll Cases
Jenkins asserts that the death penalty in all cases violates
both the federal and state Constitutions. He contends this is so
“[f]or all of the reasons set forth by Justice Breyer in Glossip v.
Gross [76] . . . .”77 In Glossip, Justice Breyer authored a dissent-
ing opinion explaining why he “believe[d] it highly likely that
the death penalty violates the Eighth Amendment”78 and Justice
Scalia offered a persuasive rebuttal in a concurring opinion.79
But more importantly, the majority of the U.S. Supreme Court
expressly recognized “it is settled that capital punishment is
constitutional.”80
Justice Breyer believed that the death penalty was unreli-
able. In Glossip, he pointed to evidence that innocent people
have been convicted, sentenced to death, and executed. But
75
Stew. v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
76
See Glossip v. Gross, ___ U.S. ___, 135 S. Ct. 2726, 192 L. Ed. 2d 761
(2015) (Breyer, J., dissenting; Ginsburg, J., joins).
77
Brief for appellant at 139.
78
Glossip v. Gross, supra note 76, 135 S. Ct. at 2776-77.
79
See Glossip v. Gross, supra note 76 (Scalia, J., concurring; Thomas, J.,
joins).
80
Id., 135 S. Ct. at 2732. See Bucklew v. Precythe, ___ U.S. ___, 139 S. Ct.
1112, 203 L. Ed. 2d 521 (2019).
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Justice Scalia reasoned that “it is convictions, not punishments,
that are unreliable.”81 He asserted, “That same pressure [to
secure a conviction] would exist, and the same risk of wrongful
convictions, if horrendous death-penalty cases were converted
into equally horrendous life-without-parole cases.”82
Justice Breyer viewed the death penalty as being imposed
arbitrarily. He cited studies indicating that comparative egre-
giousness of the crime often did not affect application of
the death penalty and other studies showing that circum-
stances such as race, gender, or geography often do affect
its application. But “[a]pparent disparities in sentencing are
an inevitable part of our criminal justice system.”83 Justice
Scalia described variance in judgments as a consequence of
trial by jury and reasoned that “the fact that some defendants
receive mercy from their jury no more renders the underlying
punishment ‘cruel’ than does the fact that some guilty indi-
viduals are never apprehended, are never tried, are acquitted,
or are pardoned.”84
Justice Breyer also felt that the death penalty was cruel due
to excessively long delays before execution. But a majority of
the U.S. Supreme Court stated that “[t]he answer is not . . . to
reward those who interpose delay with a decree ending capital
punishment by judicial fiat.”85
Justice Breyer believed that lengthy delays undermined the
penological justification. A punishment is unconstitutional if
it “makes no measurable contribution to acceptable goals of
punishment and hence is nothing more than the purposeless
81
Glossip v. Gross, supra note 76, 135 S. Ct. at 2747 (Scalia, J., concurring;
Thomas, J., joins) (emphasis in original).
82
Id.
83
McCleskey v. Kemp, 481 U.S. 279, 312, 107 S. Ct. 1756, 95 L. Ed. 2d 262
(1987).
84
Glossip v. Gross, supra note 76, 135 S. Ct. at 2748 (Scalia, J., concurring;
Thomas, J., joins).
85
Bucklew v. Precythe, supra note 80, 139 S. Ct. at 1134.
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and needless imposition of pain and suffering.”86 The two pun-
ishment goals that the death penalty is said to serve are deter-
rence of capital crimes by prospective offenders and retribu-
tion.87 This record does not refute the existence of these goals,
and the people’s judgment speaks in support of their contin-
ued vitality.
Jenkins also asserted that the death penalty runs against
evolving standards of decency. He pointed out that it is pro-
hibited by 19 (now 21)88 states and that at least 4 states have
governor-imposed moratoria. But as Justice Scalia observed:
Time and again, the People have voted to exact the death
penalty as punishment for the most serious of crimes.
Time and again, this Court has upheld that decision. And
time and again, a vocal minority of this Court has insisted
that things have “changed radically,” . . . and has sought
to replace the judgments of the People with their own
standards of decency.89
Less than 3 years ago, Nebraskans had the opportunity to
eliminate the death penalty and 61 percent voted to retain
capital punishment.90 This vote demonstrates that the people
of Nebraska do not view the death penalty as being contrary
to standards of decency. As the majority of the U.S. Supreme
Court recently explained: That the Constitution allows cap-
ital punishment “doesn’t mean the American people must
86
Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982
(1977).
87
See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976).
88
See, State v. Gregory, 192 Wash. 2d 1, 427 P.3d 621 (2018) (holding
that death penalty, as administered in State of Washington, violated state
constitution); N.H. Rev. Stat. Ann. § 630:1 (2019).
89
Glossip v. Gross, supra note 76, 135 S. Ct. at 2749 (Scalia, J., concurring;
Thomas, J., joins).
90
See Legislative Journal, 150th Leg., 1st Sess. 18 (Jan. 4, 2017) (showing
320,719 votes to retain legislation eliminating death penalty and 494,151
votes to repeal such legislation).
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continue to use the death penalty. The same Constitution that
permits States to authorize capital punishment also allows
them to outlaw it. But it does mean that the judiciary bears
no license to end a debate reserved for the people and their
representatives.”91 In Nebraska, the people have spoken.
[26] The U.S. Supreme Court has not found the death pen-
alty to be unconstitutional in all cases. As the Fifth Circuit
determined, “We are bound by Supreme Court precedent which
forecloses any argument that the death penalty violates the
Constitution under all circumstance[s].”92 Similarly, we do
not find the death penalty to be a violation of the Nebraska
Constitution.93
8. Sentence of Death—
Facts From Plea
Jenkins assigns that the sentencing panel erred in sentenc-
ing him to death based on facts alleged during the proceeding
on his no contest plea. We disagree.
(a) Standard of Review
[27] In a capital sentencing proceeding, this court conducts
an independent review of the record to determine if the evi-
dence is sufficient to support imposition of the death penalty.94
(b) Additional Background
During the death penalty sentencing phase, the State offered
exhibit 81, the transcript from the plea hearing. Jenkins’ coun-
sel objected to the use of the transcript of the plea for any
purpose and stated that the statements of the prosecutor were
unsworn and were hearsay. The State represented that the pur-
pose of the exhibit was to show that Jenkins was convicted
91
Bucklew v. Precythe, supra note 80, 139 S. Ct. at 1122-23.
92
U.S. v. Jones, 132 F.3d 232, 242 (5th Cir. 1998). See, also, U.S. v.
Quinones, 313 F.3d 49 (2d Cir. 2002) (noting that argument relying upon
Eighth Amendment is foreclosed by Supreme Court’s decision).
93
See State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
94
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
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of those particular crimes. The sentencing panel received the
exhibit for any statements made by Jenkins against interests
and for findings of the court. The panel stated that it would
receive the statements by the prosecutor, but not for the truth
of the matter asserted.
The sentencing panel’s order specifically states that the
“factual descriptions come from [the] factual basis given by
the State at the time of [Jenkins’] pleas of no contest to all
counts on April 16, 2014, Exhibit 81.” The order then set forth
the same facts from the plea hearing regarding each murder
that we included in the portion of our analysis addressing the
acceptance of Jenkins’ pleas.
(c) Discussion
Jenkins’ argument is premised upon a rule of evidence. He
points to the rule stating:
Evidence of a plea of guilty, later withdrawn, or a plea
of nolo contendere, or of an offer to plead guilty or nolo
contendere to the crime charged or any other crime, or of
statements made in connection with any of the foregoing
pleas or offers, is not admissible in any civil or criminal
action, case, or proceeding against the person who made
the plea or offer. This rule shall not apply to the introduc-
tion of voluntary and reliable statements made in court on
the record in connection with any of the foregoing pleas
or offers when offered for impeachment purposes or in
a subsequent prosecution of the declarant for perjury or
false statement.95
We have stated that this evidentiary rule does not apply to the
sentencing stage.96
For practical purposes, a plea of no contest has the same
effect as a plea of guilty with regard to the case in which it
is entered.97 The difference between a plea of no contest and
95
Neb. Evid. R. 410, Neb. Rev. Stat. § 27-410 (Reissue 2016).
96
See State v. Klappal, 218 Neb. 374, 355 N.W.2d 221 (1984).
97
See State v. Wiemer, 15 Neb. Ct. App. 260, 725 N.W.2d 416 (2006).
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a plea of guilty appears simply to be that while the latter is a
confession or admission of guilt binding the accused in other
proceedings, the former has no effect beyond the particular
case.98 But the facts admitted via a no contest plea can be used
in the proceeding involving the no contest plea.99
We have recognized that strict rules of evidence do not apply
at the sentencing phase. 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 imposi-
tion of sentence.100 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, and evidence may be presented as to any matter
that the court deems relevant to the sentence.101
[28,29] But there is a caveat to this general rule, which
Jenkins recognizes. A capital sentencing statute dictates: “The
Nebraska Evidence Rules shall apply to evidence relating to
aggravating circumstances.”102 And there is authority for the
proposition that a no contest plea constitutes an admission of
all the elements of the offenses, but not an admission to any
aggravating circumstance for sentencing purposes.103 So while
the sentencing panel could consider Jenkins’ no contest plea
and the factual basis underlying it, it could not use it as an
admission to aggravating circumstances.
98
See id.
99
See State v. Simnick, 17 Neb. Ct. App. 766, 771 N.W.2d 196 (2009), reversed
in part on other grounds 279 Neb. 499, 779 N.W.2d 335 (2010).
100
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, supra note 93.
101
Id.
102
Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2018).
103
See People v. French, 43 Cal. 4th 36, 178 P.3d 1100, 73 Cal. Rptr. 3d
605 (2008). See, also, 21 Am. Jur. 2d, supra note 13; 22 C.J.S. Criminal
Procedure and Rights of Accused § 238 (2016).
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Upon our independent review, we conclude that the sen-
tencing panel’s “Finding as to Aggravators” is supported by
evidence adduced during the death penalty sentencing phase.
Testimony of a police officer who investigated the homicide
scenes of all the murder victims and who interviewed Jenkins
in connection with the murders established that Jenkins mur-
dered Uribe-Pena and Cajiga-Ruiz at the same time and that
based on those murders, Jenkins had a substantial prior history
of serious assaultive or terrorizing criminal activity by the time
of the murders of Bradford and Kruger. Additionally, based on
certified copies of convictions and the testimony of two armed
robbery victims of Jenkins, the sentencing panel found that
Jenkins, at the time of all the murders, had previously been
convicted of crimes involving the use of threats of violence.
Although the sentencing panel stated that it used the factual
basis from the no contest plea hearing, the panel’s findings
as to aggravating circumstances were supported by evidence
adduced during the sentencing hearing. This assignment of
error lacks merit.
9. Sentence of Death—
Mitigating Factors
Jenkins assigns error to the sentencing panel’s failure “to
give meaningful consideration to his lifelong serious mental ill-
ness, his unfulfilled request for commitment before the crime,
and the debilitating impact of solitary confinement in viola-
tion of Fifth, Eighth, and Fourteenth amendments to the U.S.
Constitution and Article I Sections 3 and 9 of the Nebraska
Constitution.” We constrain our analysis to the three areas
assigned by Jenkins.
(a) Standard of Review
[30] The sentencing panel’s determination of the existence
or nonexistence of a mitigating circumstance is subject to de
novo review by this court.104
104
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
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[31] In reviewing a sentence of death, the Nebraska Supreme
Court conducts a de novo review of the record to determine
whether the aggravating and mitigating circumstances support
the imposition of the death penalty.105
(b) Additional Background
(i) Lifelong Mental Illness
Jenkins’ records show a history of behavioral issues. His
first interaction with mental health professionals was in 1995,
at age 8, when he was evaluated at a hospital. A letter in 1998
noted that “the majority of his difficulties seem to be behav-
ioral rather than mental health in nature.” In 1999, a psychi-
atric assessment stated that Jenkins “appeared very manipu-
lative . . . and would appear to take on a victim role” and
the diagnosis contained therein showed “Conduct Disorder”
under “Axis I: Clinical Disorders.” In 2001, a report stated:
“Personality assessment suggests a Conduct Disorder, ado-
lescent onset type, an Oppositional Defiant Disorder, and a
Developing Antisocial Personality Disorder. No other problems
of anxiety, depression, or psychosis were indicated.”
The panel received the deposition of a chaplain at the
Douglas County Youth Detention Center while Jenkins “was
kind of a regular” there. The chaplain testified that he and
Jenkins “hung out all the time” when Jenkins was 15 to 16
years old. Although not a mental health specialist, the chaplain
did not observe any indications of mental illness in Jenkins. He
did not recall Jenkins ever talking about Egyptian gods.
Baker testified that she had always thought Jenkins was
mentally ill, but that she was not sure if his behaviors were
due to mental illness or malingering. Weilage informed Jenkins
in 2012 that a mental illness review team believed “‘there was
not an Axis I severe mental illness present’” to justify transfer-
ring Jenkins to an inpatient mental health unit at the Lincoln
105
Id.
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Correctional Center. And we have already detailed the con-
flicting evidence concerning whether Jenkins suffered from a
serious mental illness or was malingering.
(ii) Requests for Commitment
In February 2013—months before Jenkins’ scheduled release
from prison—he sent an informal grievance to the warden
requesting emergency protective custody and psychiatric hos-
pitalization. In a grievance to the warden sent the next day,
Jenkins advised that his mother was seeking an emergency
protective custody order for psychiatric hospitalization. In a
March letter to a member of the Nebraska Board of Parole,
Jenkins stated that he had filed an emergency protective cus-
tody petition in Johnson County, Nebraska, to be submitted
to the county’s mental health board. The Johnson County
Attorney’s office acknowledged receipt of letters regarding
Jenkins’ mental health.
(iii) Effect of Solitary Confinement
Jenkins spent extensive time on room restriction and in
disciplinary segregation. According to an ombudsman report,
as much as 60 percent of Jenkins’ time with the Department
of Correctional Services was in segregation. On at least nine
occasions between January 2009 and January 2012, Jenkins
spent periods of at least 45 days in disciplinary segregation,
five of those being 60 days in length.
The Douglas County Youth Detention Center chaplain tes-
tified that he kept in communication with Jenkins over the
years. In 2009 or 2010, Jenkins told the chaplain that Jenkins
had been in solitary confinement for 2 years. According to the
chaplain, Jenkins was “different”: “Angry, saying he wants to
hurt people, wants to hurt himself. He was going crazy, said
he’s just sitting in his cell.”
Kirk Newring, Ph.D., testified that extended periods of
time in solitary confinement or segregation typically exac-
erbates any existing mental health diagnoses or condition.
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He testified that “[i]f somebody is in segregation and can’t
come up with other solutions, recurrent self-injury would not
be unexpected as a problem-solving approach.” Cimpl Bohn
acknowledged that solitary confinement is generally not some-
thing that helps people become psychologically healthier, espe-
cially for individuals with a mental illness. Hartmann testified
that an extended period of time in solitary confinement is “an
extremely stressful experience” and that it could be detrimental
to a person’s mental health.
The ombudsman’s report recognized that a board-certified
psychiatrist who evaluated more than 200 prisoners to deter-
mine the psychiatric effects of solitary confinement concluded
that “‘such confinement may result in prolonged or perma-
nent psychiatric disability, including impairments which may
seriously reduce the inmate’s capacity to reintegrate into the
broader community upon release from prison.’” (Emphasis
omitted.) The report also acknowledged the research of a pro-
fessor of psychology who had studied the psychological effects
of solitary confinement for more than 30 years: “‘The psycho-
logical consequences of incarceration may represent significant
impediments to post-prison adjustment.’”
(c) Discussion
[32,33] A sentencer may consider as a mitigating factor any
aspect of a defendant’s character or record and any of the cir-
cumstances of the offense that the defendant proffers as a basis
for a sentence less than death.106 As noted, we review de novo
the sentencing panel’s determination of the existence or non­
existence of a mitigating circumstance.107 We look to whether
the sentencer “fairly considered the defendant’s proposed miti-
gating circumstances prior to rendering its decision.”108 The
106
See Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978).
107
State v. Torres, supra note 104.
108
See State v. Ryan, 233 Neb. 74, 147, 444 N.W.2d 610, 654 (1989).
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risk of nonproduction and nonpersuasion as to mitigating cir-
cumstances is on the defendant.109
Jenkins assigns that the sentencing panel failed to give
“meaningful consideration” to his lifelong history of mental
illness. The sentencing panel recognized “significant diver-
gence of opinion offered by mental health professionals as to
whether Jenkins suffers from a mental illness, or if he is feign-
ing mental illness.” It accepted the opinions of Cimpl Bohn
and her team and found that no statutory mitigating circum-
stance was proved. Nonetheless, the sentencing panel found
that Jenkins’ bad childhood was a nonstatutory mitigator to be
considered in the weighing process as was his mental health.
The panel’s seven-page analysis of the bad childhood cir-
cumstance included discussion of mental health records from
Jenkins’ childhood and adolescent years. The panel adequately
considered Jenkins’ mental health issues, and we agree with
its conclusion.
Jenkins also contends that the sentencing panel erred by
failing to consider that the killings would have been prevented
if his request to be committed had been fulfilled. But we do
not find anywhere on the record where Jenkins advised the
panel that he wished for such requests to be considered as a
nonstatutory mitigating factor. The absence of such request
likely explains why the panel’s order did not discuss such
requests. While there was evidence that Jenkins requested to
be committed, we will not fault the panel for failing to discuss
a nonstatutory mitigating circumstance that it was not specifi-
cally asked to consider. And although we review the sentenc-
ing panel’s determination of the existence or nonexistence of
mitigating circumstances de novo, we do so only on the record.
To the extent the record contains evidence of Jenkins’ requests
for commitment, his argument now relies only on speculation
and conjecture. We have considered it and find it to be with-
out merit.
109
See State v. Torres, supra note 104.
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Finally, Jenkins asserts that his extensive time in solitary
confinement should have been considered a mitigating circum-
stance. Our review of the record shows that contrary to Jenkins’
assertion, the sentencing panel considered the impact of soli-
tary confinement. The sentencing panel recognized Jenkins’
“extensive history of misconduct in the State Penitentiary”;
however, it found insufficient evidence to support solitary con-
finement as a nonstatutory mitigator. We see no error.
Unfortunately, solitary confinement can be a “necessary
evil.” Justice Kennedy stated:
Of course, prison officials must have discretion to decide
that in some instances temporary, solitary confinement is
a useful or necessary means to impose discipline and to
protect prison employees and other inmates. But research
still confirms what this Court suggested over a century
ago: Years on end of near-total isolation exact a terrible
price.110
Here, Jenkins’ own actions led to his disciplinary segregation.
The Department of Correctional Services must have some
recourse to deal with an inmate who does such things as manu-
facture a weapon from a toilet brush, threaten to assault staff,
assault staff, attempt to escape, and interfere with or refuse to
submit to a search. The sentencing panel acted reasonably in
not rewarding such behavior by considering the resulting con-
finement as a mitigating factor. Upon our de novo review, we
reach the same conclusion.
We affirm Jenkins’ death sentences.
V. CONCLUSION
Many of the issues in this death penalty appeal turn on
Jenkins’ competency and mental health. Evidence touching on
these matters was abundant and highly conflicting. The trial
court and the sentencing panel, like the members of this court,
110
Davis v. Ayala, ___ U.S. ___, 135 S. Ct. 2187, 2210, 192 L. Ed. 2d 323
(2015) (Kennedy, J., concurring).
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are not medical experts. In light of the conflicting evidence,
they gave weight to the expert evidence reflecting that Jenkins
suffered from a personality disorder and was feigning mental
illness. We find no error in that regard.
We cannot say that the district court abused its discretion in
finding Jenkins to be competent to waive counsel, to enter no
contest pleas, to proceed to sentencing, and to be sentenced to
death. We reject Jenkins’ constitutional challenges to the death
penalty and affirm his convictions and sentences.
A ffirmed.
Papik and Freudenberg, JJ., not participating.