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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. JOHN

Cite as 310 Neb. 958

State 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 determines 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 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.

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 preponderance 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 explanations, 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/13/2022 01:07 AM CDT
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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 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 district 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. 958

find 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 methamphetamine. 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 commit 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 competency 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 evaluation, as well as a review of police reports and Chase’s 

autopsy results. Gutnik examined John’s intellectual and cognitive 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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STATE v. JOHN

Cite as 310 Neb. 958

opined 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 evaluated by mental health professionals at the Lincoln Regional 

Center. Forensic psychiatrist Dr. Klaus Hartmann authored a 

report in July 2016 indicating further evaluation and observation of John was necessary due to concerns he was malingering, 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 fashion. 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 necessary 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 completed an additional evaluation of John, and in January 2017, 

they submitted reports generally consistent with their previous 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, noting that in addition to the January 2017 evaluation, the professionals 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. 958

was 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 hearing 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 experiencing any emotional distress when talking about the symptoms.” 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 reporting that he was completing his activities of daily living 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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against 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 proceeded 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 talking 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 crying. 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, laboratory 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 schizoaffective 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 psychologist. 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. 958

extent 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 behavior prior to the killing was consistent with schizophrenia. 

Newring, like Gutnik, opined John was experiencing schizophrenia 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 telephone 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 competency 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 consequences 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. 958

of 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 proceeded with an insanity defense knowing the court had previously 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 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 We determine 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

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 Id.
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STATE v. JOHN

Cite as 310 Neb. 958

ANALYSIS

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 definition, 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 insanity has the burden to prove the defense by a preponderance of 

the evidence. 7

To support his insanity defense, John relies on the testimony 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 illness, 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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have 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 regardless of his schizophrenia diagnosis.

[6] An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, 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, exhibiting 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 assignment of error is without merit.

Ineffective Assistance of Trial Counsel

John argues he received ineffective assistance of trial counsel, 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 postconviction 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

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evidence 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 component of the Strickland test, the defendant must demonstrate 

a reasonable probability that but for his or her counsel’s deficient 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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brought before the appellate court. 16 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. 17

Therefore, in reviewing John’s claims of ineffective assistance of counsel on direct appeal, we decide only whether the 

undisputed facts contained in the record are sufficient to conclusively 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 proceeded 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 dispose 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 selfdefense. 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. 958

We agree with the State that John’s argument is unpersuasive, 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 evidence 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 therefore conclude John was not prejudiced by trial counsel’s stipulating 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.