State v. John

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/25/2022 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHN
Cite as 310 Neb. 958State of Nebraska, appellee,
v. Isacc John, appellant.
___ N.W.2d ___
Filed February 18, 2022. No. S-21-118.
1. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact
on the issue of insanity will not be disturbed unless there is insufficient
evidence to support such a finding.
2. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
3. Effectiveness of Counsel: Appeal and Error. An appellate court deter-
mines as a matter of law whether the record conclusively shows that
(1) a defense counsel’s performance was deficient or (2) a defendant
was or was not prejudiced by a defense counsel’s alleged deficient
performance.
4. Insanity: Proof. The insanity defense requires proof that (1) the defend­
ant had a mental disease or defect at the time of the crime and (2) the
defendant did not know or understand the nature and consequences of
his or her actions or that he or she did not know the difference between
right and wrong.
5. ____: ____. A defendant who pleads that he or she is not responsible by
reason of insanity has the burden to prove the defense by a preponder-
ance of the evidence.
6. Trial: Appeal and Error. An appellate court does not resolve conflicts
in the evidence, pass on the credibility of witnesses, evaluate explana-
tions, or reweigh the evidence presented, which are within a fact finder’s
province for disposition.
7. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
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310 Nebraska Reports
STATE v. JOHN
Cite as 310 Neb. 958appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
8. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Kenneth Jacobs, of Hug and Jacobs, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
Isacc John appeals his convictions and sentences for first
degree murder and use of a deadly weapon, not a firearm, to
commit a felony. John asserts that, as the trier of fact, the dis-
trict court for Douglas County erred in finding he did not prove
his insanity defense. Further, John asserts trial counsel was
ineffective in waiving his right to jury trial and in stipulating
to the underlying facts of the killing. Finding no merit to the
appeal, we affirm John’s convictions and sentences.
BACKGROUND
On December 12, 2015, officers with the Omaha Police
Department were called to Linda Chase’s residence in Omaha,
Nebraska. At that location, the officers found Chase deceased
in the bathtub. Her body had extensive stab wounds, but
the officers found little blood within the home. Officers did
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STATE v. JOHN
Cite as 310 Neb. 958find some blood spatter in the kitchen and on the stairs and
reported the smell of cleaning products. A rug with deep
bloodstains was found in the dryer.
The officers learned that Chase shared her residence with
John and issued a “locate warrant” for John. In response to
the warrant, officers advised that they had interacted with John
near 40th and Dodge Streets, concerning a call of individuals’
smoking marijuana in a business, and that John would still be
in that area. Upon arrival, a sergeant investigating the case
observed John was wearing shorts with “red staining.” John
had bloodshot eyes and was emotional, angry, screaming, and
crying. Chase’s family mentioned that John was a user of meth-
amphetamine. Officers took John to the hospital to have his
vitals checked and then to “[c]orrections” for the night.
Pursuant to a search warrant for Chase’s home, officers
found a large, bent kitchen knife, scissors, and other items
with blood and hair on them. Based on the small amount of
blood found, officers concluded that whoever had killed Chase
had taken the time to clean up the crime scene and Chase’s
body. Officers collected cleaning bottles from the kitchen
and basement.
On January 11, 2016, John was charged with first degree
murder and use of a deadly weapon, not a firearm, to com-
mit a felony. Pursuant to Neb. Rev. Stat. § 29-1823 (Reissue
2016), John requested that the court determine his competency
to stand trial. The court held hearings regarding John’s compe-
tency on January 17 and February 17, 2017.
John adduced testimony from Dr. Bruce Gutnik, who
authored a report in April 2016 finding that John was not
competent to stand trial based upon a 1-hour-45-minute eval­
uation, as well as a review of police reports and Chase’s
autopsy results. Gutnik examined John’s intellectual and cogni-
tive functions and found he suffered from a flat affect, loose
associations, hallucinations, and delusions. Gutnik opined that
John met all the criteria for schizophrenia. Though Gutnik
opined that John was not competent to stand trial, he further
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310 Nebraska Reports
STATE v. JOHN
Cite as 310 Neb. 958opined that under appropriate treatment, John could become
competent within a reasonable time.
Gutnik conducted a second evaluation of John, lasting
approximately 1 hour 50 minutes, and he opined in September
2016 that John was still not competent to stand trial. Gutnik
stated he did not observe John to be malingering, reasoning
he had improved from taking the antipsychotic medication
Zyprexa, which improvement John would not have been able
to fake.
At the request of the State, John’s competency was also eval-
uated by mental health professionals at the Lincoln Regional
Center. Forensic psychiatrist Dr. Klaus Hartmann authored a
report in July 2016 indicating further evaluation and observa-
tion of John was necessary due to concerns he was malinger-
ing, or faking symptoms of a mental illness. Following an
extended evaluation, Hartmann found no indication that John
was confused, disorganized, or acting in a bizarre or odd fash-
ion. Hartmann found John had exaggerated his symptoms and
had been uncooperative with the evaluation, which indicated a
serious likelihood of malingering. Regarding John’s Zyprexa
prescription, Hartmann stated the medication was not neces-
sary and would not have much effect on John other than to
cause weight gain. Hartmann submitted a report in August
which opined that John was malingering and competent to
stand trial.
Due to delayed proceedings, each medical expert com-
pleted an additional evaluation of John, and in January 2017,
they submitted reports generally consistent with their previ-
ous findings.
In April 2017, the court entered an order finding John
competent to stand trial. The court noted that the experts had
presented diametrically opposing views on the issue of John’s
competency. The court adopted the opinion of Hartmann, not-
ing that in addition to the January 2017 evaluation, the pro-
fessionals at the Lincoln Regional Center had the benefit of
evaluating John from July 12 to August 16, 2016. The court
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STATE v. JOHN
Cite as 310 Neb. 958was further persuaded by the assessments of John’s treating
psychiatrist, as well as the evaluations of clinical psychologist
Dr. Sherri Browning. Browning found John provided vague
answers to standard questioning, such as claiming he was hear-
ing voices, but being unable to describe the voices, what they
said, or the last time he heard them. Browning stated that it is
out of the ordinary for a patient to provide vague descriptions
of symptoms, because “[u]sually when patients are hearing
voices, they can tell me exactly what the voices are saying . .
. .” Browning further explained that “[u]sually when folks are
experiencing psychiatric symptoms, these symptoms are very
painful and very frightening and scary. And he was not expe-
riencing any emotional distress when talking about the symp-
toms.” Browning believed that John was malingering because,
despite no history of mental illness, John claimed he had these
symptoms for a long time. Through subsequent evaluations,
Browning noted John’s description of his symptoms changed
and became inconsistent.
The court accepted Browning’s diagnosis that John was
malingering based on test results and the lack of signs of
mental illness exhibited by John over the extended evaluation.
Browning testified that John
was doing well at the regional center. We weren’t hearing
from staff that he was having — that they were observing
him experiencing any symptoms. The staff were report-
ing that he was completing his activities of daily liv-
ing without any problems, attending groups without any
problems.
They hadn’t observed him experiencing any symptoms
of mental illness, meaning they didn’t see him talking to
the voices or talking to people that weren’t there. They
didn’t visibly see him being depressed or crying. He
seemed to be — based on the reports I received, that he
was doing well.
The court found “sufficient evidence that . . . John has the
capacity to understand the nature and object of the proceedings
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STATE v. JOHN
Cite as 310 Neb. 958against him, to comprehend his own condition in reference to
such proceedings, and to make a rational defense.”
John waived his right to a jury trial, and the matter pro-
ceeded to a bench trial. Evidence as to the underlying facts
of the killing was submitted through stipulated reports and
photographs. Live witnesses were called as to John’s insanity
defense.
John called as a witness his former attorney, who testified
that on December 11, 2015, John caused a disturbance in the
lobby of her office. John was laughing hysterically and talk-
ing in a manner she was unable to understand. John’s former
attorney testified that when she informed John she may need
to call security, he “curl[ed] up into a ball” and started cry-
ing. She also testified that John did not smell like alcohol
or marijuana.
Gutnik testified regarding each of his evaluations. Gutnik
testified regarding John’s blunted affect and rapid speech.
When asked about what happened the night of Chase’s killing,
John told Gutnik he was drunk and high on marijuana, which
might have been laced with another drug. However, labora-
tory results showed only “THC” in John’s bloodstream at the
time of his arrest. Gutnik diagnosed John with schizophrenia,
alcohol and cannabis use disorder, and a possible schizoaffec-
tive disorder. Gutnik’s subsequent reports indicated that John
showed symptoms of schizophrenia, such as “talk[ing] to the
television.” Gutnik opined in his January 2017 report that John
suffered from schizophrenia and was not malingering. Gutnik
opined that on December 12, 2015, John stabbed and killed
Chase while suffering from schizophrenia and “responding
to the world based on hallucinations and delusions.” Gutnik
opined John did not understand the nature and consequences of
his actions and did not understand the difference between right
and wrong.
John called as a witness Dr. Kirk Newring, a licensed psy-
chologist. Newring testified, based on his two evaluations of
John, that he did see some signs of malingering, but to an
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STATE v. JOHN
Cite as 310 Neb. 958extent that would be typical. Newring conducted the same
malingering test as used by Browning and found John made
no attempt to malinger. Newring found that John’s behav-
ior prior to the killing was consistent with schizophrenia.
Newring, like Gutnik, opined John was experiencing schizo-
phrenia at the time of the killing and was unable to appreciate
the nature and consequences of his conduct and could not tell
the difference between right and wrong.
The State adduced testimony from Hartmann and Dr.
Jennifer Cimpl Bohn. On June 11, 2020, Hartmann and Cimpl
Bohn evaluated John to determine whether he was insane at
the time of the killing. Hartmann opined John was not insane
at the time of the killing and was malingering. Hartmann stated
John did not appear to be psychotic, but, rather, he could speak
in an articulate and coherent manner, especially when he was
not being observed for an examination. Hartmann noted a tele-
phone call John made from jail in which he told his mother
that he needed to “prove . . . to the doctors that he was crazy.”
Hartmann opined John was not mentally ill and stated John had
been able to conduct himself appropriately during the months
he spent in jail. Hartmann stated it was possible John had been
extremely intoxicated during the killing. Hartmann opined John
understood the stabbing was wrong because he attempted to
clean up the crime scene.
Based on her evaluation of John and her review of his com-
petency and insanity evaluations, Cimpl Bohn opined that even
if John suffered from schizophrenia, he understood right from
wrong with respect to the killing.
Following trial, the district court found the State had
proved John guilty beyond a reasonable doubt of murder in
the first degree and use of a deadly weapon, not a firearm, to
commit a felony. The court found John failed to prove by the
preponderance of the evidence that he had a mental disease
or defect and that he did not understand the nature and con-
sequences of his actions or the difference between right and
wrong. The court sentenced John to consecutive sentences
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STATE v. JOHN
Cite as 310 Neb. 958of life imprisonment and 40 to 50 years’ imprisonment, with
credit for time served.
John appealed directly to this court. 1
ASSIGNMENTS OF ERROR
John assigns, restated, that the district court erred in finding
he did not prove his insanity defense. John also assigns that
he received ineffective assistance of trial counsel, arguing (1)
counsel should not have waived his jury trial right and pro-
ceeded with an insanity defense knowing the court had previ-
ously found John to be malingering and (2) counsel should not
have stipulated to the underlying facts of the killing, because
John could have claimed he acted in self-defense.
STANDARD OF REVIEW
[1] The verdict of the finder of fact on the issue of insanity
will not be disturbed unless there is insufficient evidence to
support such a finding. 2
[2,3] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question of
law, which turns upon the sufficiency of the record to address
the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. 3 We determine as a matter of law whether the
record conclusively shows that (1) a defense counsel’s perform­
ance was deficient or (2) a defendant was or was not prejudiced
by a defense counsel’s alleged deficient performance. 4
1
Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).
2
State v. Johnson, 308 Neb. 331, 953 N.W.2d 772 (2021); State v. Stack,
307 Neb. 773, 950 N.W.2d 611 (2020); State v. France, 279 Neb. 49, 776
N.W.2d 510 (2009); State v. McGhee, 274 Neb. 660, 742 N.W.2d 497(2007).
3
State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020); State v. Hood, 301
Neb. 207, 917 N.W.2d 880 (2018).
4
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHN
Cite as 310 Neb. 958ANALYSIS
Insanity Defense
[4,5] Any person prosecuted for an offense may plead that
he or she is not responsible by reason of insanity at the time of
the offense. 5 Generally, under Nebraska’s common-law defini-
tion, the insanity defense requires proof that (1) the defendant
had a mental disease or defect at the time of the crime and
(2) the defendant did not know or understand the nature and
consequences of his or her actions or that he or she did not
know the difference between right and wrong. 6 A defendant
who pleads that he or she is not responsible by reason of insan-
ity has the burden to prove the defense by a preponderance of
the evidence. 7
To support his insanity defense, John relies on the testi-
mony of Gutnik and Newring who opined he killed Chase
while suffering from schizophrenic delusions. Gutnik evaluated
John on three occasions and found John was not malingering.
Gutnik viewed John’s improvements from taking Zyprexa as a
sign of genuine illness which would be difficult to malinger.
John argues the medication was successfully treating an ill-
ness, because his prescription continued during his stay at the
Lincoln Regional Center. John argues, therefore, the trial court
erred in finding that he did not have a mental disease or defect
at the time he killed Chase.
The State presented opposing medical testimony from
Hartmann, and other Lincoln Regional Center professionals,
who had the benefit of evaluating John over a period of 6
weeks. Hartmann opined John was malingering and did not
5
Neb. Rev. Stat. § 29-2203(1) (Reissue 2016). See, State v. Lamb, 213 Neb.
498, 330 N.W.2d 462 (1983); State v. Newson, 183 Neb. 750, 164 N.W.2d
211 (1969).
6
State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019); State v. Williams,
295 Neb. 575, 889 N.W.2d 99 (2017). See NJI2d Crim. 7.0. See, also,
NJI2d Crim. 3.2.
7
France, supra note 2; McGhee, supra note 2. See § 29-2203(1).
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STATE v. JOHN
Cite as 310 Neb. 958have a mental defect. Browning likewise found John to be
malingering, noting his exaggerations and inconsistencies in
describing his symptoms. Moreover, Cimpl Bohn opined John
understood right from wrong at the time of the killing regard-
less of his schizophrenia diagnosis.
[6] An appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, evaluate explana-
tions, or reweigh the evidence presented, which are within a
fact finder’s province for disposition. 8 Here, the fact finder
heard and rejected the evidence offered by John in support of
his insanity defense. The court implicitly accepted the State’s
evidence and rejected John’s. There is evidence in the record
that would support the conclusion that John was not insane,
including John’s attempting to clean up the crime scene, exhib-
iting appropriate behavior while in jail, and making a statement
that he needed to “prove . . . to the doctors that he was crazy.”
We conclude that the district court did not err in finding that
John was not insane at the time he killed Chase. This assign-
ment of error is without merit.
Ineffective Assistance of Trial Counsel
John argues he received ineffective assistance of trial coun-
sel, who was different from his appellate counsel. When a
defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record; otherwise, the
issue will be procedurally barred in a subsequent postconvic-
tion proceeding. 9 John claims he was provided ineffective
assistance when trial counsel (1) proceeded with a bench trial,
knowing the court found in its competency determination
that John was malingering, and (2) stipulated to underlying
8
McGhee, supra note 2. See Stack, supra note 2.
9
See, State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020); State v.
Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019); Hood, supra note 3.
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STATE v. JOHN
Cite as 310 Neb. 958evidence which deprived John of the ability to argue that he
acted in self-defense.
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 10 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 11 To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law in the area. 12 To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. 13 A reasonable probability does not require
that it be more likely than not that the deficient performance
altered the outcome of the case; rather, the defendant must
show a probability sufficient to undermine confidence in the
outcome. 14 The two prongs of this test may be addressed in
either order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel’s actions were
reasonable. 15
[7,8] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
11
State v. Stricklin, ante p. 478, 967 N.W.2d 130 (2021); State v. Newman,
ante p. 463, 966 N.W.2d 860 (2021).
12
Id.13
Id.14
Id.15
Hood, supra note 3.
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Nebraska Supreme Court Advance Sheets
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STATE v. JOHN
Cite as 310 Neb. 958brought before the appellate court. 16 The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining
factor is whether the record is sufficient to adequately review
the question. 17
Therefore, in reviewing John’s claims of ineffective assist­
ance of counsel on direct appeal, we decide only whether the
undisputed facts contained in the record are sufficient to con-
clusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 18
Regarding John’s claim that counsel should not have pro-
ceeded to a bench trial, it is undisputed there is no evidence in
the record from trial counsel on this issue. Thus, our record is
not adequate to address this issue on direct appeal.
However, we conclude that our record is sufficient to dis-
pose of John’s second ineffective assistance claim that counsel
should not have stipulated to the admission of police reports,
photographs, and evaluation reports showing the underlying
evidence of the killing. John contends that by doing so, trial
counsel deprived John of the ability to argue that he acted in
self-defense.
John relies on the trial testimony from Hartmann and Cimpl
Bohn, who both stated that John told them he acted in self-
defense. John also relies on Newring’s testimony that John
told him that John grabbed scissors because Chase had a knife
in her hand and stepped toward him. John further claims that
Chase cut his finger and that a photograph of his hand on the
day of his arrest showed evidence of the cut. John therefore
argues that “trial counsel was ineffective in stipulating to the
facts of this case, then not asking for the trier of fact to at least
consider the use of force in protecting himself.” 19
16
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
17
Id.18
See Blaha, supra note 9.
19
Brief for appellant at 27.
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STATE v. JOHN
Cite as 310 Neb. 958We agree with the State that John’s argument is unper-
suasive, as there is no clear nexus between stipulating to the
background facts and counsel’s failure to assert a claim of
self-defense. The record indicates that the self-defense evi-
dence which John relies on was presented to the court during
trial. Additionally, other evidence offered at trial indicates that
John stabbed Chase 29 times, placed her body in the bathtub,
cleaned up the crime scene, and fled the residence. We there-
fore conclude John was not prejudiced by trial counsel’s stipu-
lating to the underlying facts of the murder. This assignment of
error is without merit.
CONCLUSION
The district court did not err in concluding John was not
legally insane at the time of the killing. In addition, John’s trial
counsel was not ineffective for stipulating to the underlying
facts of the murder. Our record is insufficient to decide John’s
other claim of ineffective assistance of counsel. We affirm
John’s convictions and sentences.
Affirmed.