State v. Jenkins
| Decision Date | 19 July 2019 |
| Docket Number | Nos. S-17-577,S-17-657.,s. S-17-577 |
| Citation | 931 N.W.2d 851,303 Neb. 676 |
| Parties | STATE of Nebraska, appellee, v. Nikko A. JENKINS, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, for appellant.
Nikko A. Jenkins, pro se.
Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, 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.
In consolidated appeals, one of which involved the death penalty, Nikko A. Jenkins challenges his competency to 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.
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.
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 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
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 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.
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.
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
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,...
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