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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

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 disturbed 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 matters 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 rational 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 reasonable 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.

Nebraska Supreme Court Online Library

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

09/27/2019 01:09 AM CDT
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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 disturbed 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 defendant 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 consideration 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 independently 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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enactment and which disadvantages a defendant by creating or enhancing 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 punishment 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 certification 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 illness 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 sentencing 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 relating 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 circumstance for sentencing purposes.
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30. Sentences: Aggravating and Mitigating Circumstances: Appeal and 

Error. A sentencing panel’s determination of the existence or nonexistence of a mitigating circumstance is subject to de novo review by the 

Nebraska Supreme Court.

31. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: 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 Circumstances. 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 nonpersuasion 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 sentencing, and receive the death penalty. He also makes several challenges 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 proceedings. 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 psychiatrists’ 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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In April 2014, Jenkins ultimately entered a plea of no contest to every count. He did not agree with the factual basis provided 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 public 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 sentencing phase. The court expressed concern that the two psychiatrists 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 postponed 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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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 evaluation of Jenkins and received evidence during a June 2016 competency hearing. In September, the court found that Jenkins 

was competent to proceed with the sentencing phase. It subsequently rejected Jenkins’ challenges to the death penalty.

In November 2016, the death penalty sentencing phase 

began. The three-judge panel unanimously found beyond a reasonable 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 sentencing 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, antisocial, and borderline.”

The panel unanimously determined that the mitigating circumstances 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 similar 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 automatic appeal followed.1

1 See Neb. Rev. Stat. § 29-2525 (Cum. Supp. 2018).
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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 competent 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 penalty. He assigns that the court erred in denying his motion to 

preclude the death penalty as a violation of the ex post facto prohibitions 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 individuals 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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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 litigant 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’ competence 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 entering 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 understood 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 investigation revealed that the victims were lured by Jenkins’ sister 
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and cousin under the premise of performing acts of prostitution. 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 location 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 warrant 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 recovered 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 evidence received at the competency hearing along with its colloquy with Jenkins during that hearing. Although the experts 

disagreed, there was expert testimony that Jenkins was competent. 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 follow 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 capacity 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 evidence supports the court’s determination of competency; therefore, 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 counsel, (3) the right to confront witnesses against the defendant, 

(4) the right to a jury trial, and (5) the privilege against selfincrimination.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 unpersuasive. 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 psychologically 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. 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 counsel 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 representing 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 defender’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 competent to conduct trial proceedings without counsel.18 The twopart 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 intelligently.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 possible 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 intelligently 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 intelligently waived his right to counsel. A knowing and intelligent 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 proceedings 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 represent 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 erroneous. 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 constitutionally infirm as the product of the trial court’s erroneous 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’ competency 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 determining 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 psychiatrists 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 ability 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 statements 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 childhood 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 illness 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 competent 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 distracted. Moore thought that all the symptoms Jenkins reported 

were fabricated. Moore believed that Jenkins had been malingering 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 danger 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 symptoms that just simply are not in keeping with my experience.” 

Hartmann found it unusual that Jenkins “parades his mental illness,” when most people with mental illness do not come forward 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 consultation 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 disorder.” 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 psychiatrist; and Mario J. Scalora, a consulting clinical psychologist. 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 section of the unit, staff reported that Jenkins said “‘he would 

continue to act insane until he got the mental health treatment 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 psychiatrist 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 antisocial features.’”

The report noted that Jenkins had requested on numerous occasions to be diagnosed with schizoaffective disorder. 

When challenged that such requests suggested that Jenkins was 

“more interested in the prescription and diagnosis being documented, 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 favorable for his legal strategies.”
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The report stated that Jenkins had an “inflated view of himself consistent with narcissistic traits.” It elaborated:

Jenkins repeatedly made statements about being a “mastermind,” “strategist,” “chess player,” and engaging in 

“psychological warfare,” in reference to the legal proceedings 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 competent 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 providing 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 process 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] insanities,” 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 “definite 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 “characterized those symptoms as reactions to traumatic experiences (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 exception 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 continuing 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 malingering other psychiatric symptoms. Cimpl Bohn testified that 

Jenkins’ presentation of psychotic symptoms and his selfreport 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 affective 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 concerns 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 counsel 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 competent and diagnosed him with “schizophrenia versus schizoaffective 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 continued 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’ testimony at the May 2016 competency hearing, Jenkins ably 
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followed the questions of his attorney and supplied appropriate 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 precipitated 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 competent only out of an abundance of caution. Its order contained 

the following quote: “‘If at any time while criminal proceedings 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 question 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 heightens 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 referendum 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) 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.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 available 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 provided otherwise.44

This contention presupposes that L.B. 268 became operative. 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 invoking 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 applicable 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 earlier 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 persons contributing things of value in connection with the petition 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 signatures of more than 10 percent of electors had been filed.

Our decision noted that there were sufficient signatures to suspend 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 contained signatures of more than the 10-percent requirement).

[23] Jenkins’ notion conflicts with several fundamental principles. 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 measure 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 election officials counted and verified signatures. Jenkins’ argument 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 constitution demands that the power of referendum not be impaired 

by ministerial tasks appurtenant to the process. Having produced 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 violates 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 penalty sentencing phase, if not waived,57 ceases after the determination of aggravating circumstances.58 If no aggravating circumstance 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 aggravating circumstances as determined to exist justified imposition 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 sentencing, 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 universal.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 disability. 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 explicitly 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 understanding 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 illness 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 personality 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 concluded that Jenkins’ symptoms were “‘more behavioral/Axis II 

in nature.’”

There is no doubt that Jenkins exhibited abnormal behaviors. But a number of experts believed that he was malingering. 

A test revealed scores indicative of feigning a mental disorder. In support of the view that Jenkins was not malingering, 

some—Gutnik, in particular—pointed to Jenkins’ having hallucinations dating back to age 8. But Dahlke’s 1995 psychological 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 serious 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 Amendment and Neb. Const. 

art. I, § 9, in All 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 dissenting 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 unreliable. In Glossip, he pointed to evidence that innocent people 

have been convicted, sentenced to death, and executed. But 

75 Stewart 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 egregiousness of the crime often did not affect application of 

the death penalty and other studies showing that circumstances 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 individuals 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 punishment goals that the death penalty is said to serve are deterrence of capital crimes by prospective offenders and retribution.87 This record does not refute the existence of these goals, 

and the people’s judgment speaks in support of their continued vitality.

Jenkins also asserted that the death penalty runs against 

evolving standards of decency. He pointed out that it is prohibited 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 capital 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 penalty 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 sentencing 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 evidence 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’ counsel 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 purpose 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 introduction 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. 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 imposition 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. 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.

102Neb. 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 sentencing 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 murdered 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 illness, his unfulfilled request for commitment before the crime, 

and the debilitating impact of solitary confinement in violation 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 behavioral rather than mental health in nature.” In 1999, a psychiatric assessment stated that Jenkins “appeared very manipulative . . . 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, adolescent 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 transferring Jenkins to an inpatient mental health unit at the Lincoln 

105 Id.
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Correctional Center. And we have already detailed the conflicting 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 hospitalization. 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 custody 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 testified 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 exacerbates 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 something that helps people become psychologically healthier, especially 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 determine the psychiatric effects of solitary confinement concluded 

that “‘such confinement may result in prolonged or permanent 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 professor of psychology who had studied the psychological effects 

of solitary confinement for more than 30 years: “‘The psychological 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 circumstances 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 nonexistence of a mitigating circumstance.107 We look to whether 

the sentencer “fairly considered the defendant’s proposed mitigating 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 circumstances 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 divergence of opinion offered by mental health professionals as to 

whether Jenkins suffers from a mental illness, or if he is feigning mental illness.” It accepted the opinions of Cimpl Bohn 

and her team and found that no statutory mitigating circumstance 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 circumstance 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 specifically asked to consider. And although we review the sentencing 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 without 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 circumstance. Our review of the record shows that contrary to Jenkins’ 

assertion, the sentencing panel considered the impact of solitary confinement. The sentencing panel recognized Jenkins’ 

“extensive history of misconduct in the State Penitentiary”; 

however, it found insufficient evidence to support solitary confinement 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 manufacture 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 confinement 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.

Affirmed.

Papik and Freudenberg, JJ., not participating.