State v. Hinrichsen

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/05/2016 09:12 AM CST

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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. HINRICHSEN
Cite as 292 Neb. 611

State of Nebraska, appellee, v.
M atthew G. Hinrichsen, appellant.
___ N.W.2d ___

Filed February 5, 2016. No. S-14-083.

 1. Appeal and Error. An appellate court independently reviews questions
of law decided by a lower court.
 2. Statutes. The meaning and interpretation of a statute present a question
of law.
 3. Jury Instructions. Whether jury instructions are correct is a question
of law.
 4. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
 5. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
 6. Homicide: Lesser-Included Offenses: Jury Instructions. Where mur-
der is charged, a court is required to instruct the jury on all lesser
degrees of criminal homicide for which there is proper evidence before
the jury, whether requested to do so or not.
 7. ____: ____: ____. A trial court is required to give an instruction on
manslaughter where there is any evidence which could be believed
by the trier of fact that the defendant committed manslaughter and
not murder.
 8. Jury Instructions. A trial court is not obligated to instruct the jury on
matters which are not supported by evidence in the record.
 9. Criminal Law: Due Process: Proof. Due process requires a prosecutor
to prove beyond a reasonable doubt every fact necessary to constitute
the crime charged.
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292 Nebraska R eports
STATE v. HINRICHSEN
Cite as 292 Neb. 611

10. Constitutional Law: Due Process. The due process requirements of
Nebraska’s Constitution are similar to those of the federal Constitution.
11. Jury Instructions. A jury instruction based on the language of a statute
is sufficient.
12. Homicide: Jury Instructions: Due Process: Proof. In a first degree
murder case, an explicit jury instruction advising that the State must
prove lack of sudden quarrel provocation beyond a reasonable doubt is
not required in order to comport with the dictates of due process.
13. Homicide: Juries. In finding beyond a reasonable doubt that a defend­
ant acted with deliberate and premeditated malice, a jury is necessarily
simultaneously finding beyond a reasonable doubt that the defendant did
not act upon sudden quarrel provocation.
14. Jury Instructions: Appeal and Error. The failure to object to a jury
instruction after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error.
15. ____: ____. When a party assigns as error the failure to give an
unrequested jury instruction, an appellate court will review only for
plain error.
16. Pretrial Procedure: Jury Instructions: Evidence: Appeal and Error.
A pretrial ruling on the propriety of a jury instruction is akin to a motion
in limine on an evidentiary ruling. An appellant must make a timely
request for the jury instruction at trial in order to preserve the issue
for appeal.
17. Homicide: Photographs. In a homicide prosecution, photographs of a
victim may be received into evidence for the purpose of identification,
to show the condition of the body or the nature and extent of wounds
and injuries to it, and to establish malice or intent.
18. Trial: Juries: Appeal and Error. Harmless error exists when there
is some incorrect conduct by the trial court which, on review of the
entire record, did not materially influence the jury in reaching a verdict
adverse to a substantial right of the defendant.
19. Verdicts: Appeal and Error. Harmless error review looks to the basis
on which the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.

Appeal from the District Court for Antelope County: James
G. Kube, Judge. Affirmed.
James R. Mowbray and Todd W. Lancaster, of Nebraska
Commission on Public Advocacy, for appellant.
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292 Nebraska R eports
STATE v. HINRICHSEN
Cite as 292 Neb. 611

Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ., and Bishop, Judge.
Heavican, C.J.
A jury convicted Matthew G. Hinrichsen of two counts of
first degree murder for the killing of Victoria D. Lee and her
husband, Gabino A. Vargas; one count of using a firearm to
commit a felony; and one count of possessing a firearm during
the commission of a felony. Hinrichsen denied that he intended
to kill the victims.
On appeal, Hinrichsen primarily argues that because sudden
quarrel provocation negates malice, the step instruction for first
degree murder violated his right to due process. We conclude
that when the jury found premeditated and deliberate malice
beyond a reasonable doubt, it simultaneously found no sudden
quarrel provocation beyond a reasonable doubt. Hinrichsen
received due process, and his other arguments lack merit. We
affirm his convictions and sentences.
I. BACKGROUND
1. Historical Facts
Lee and Hinrichsen began dating in the fall of 2009. In
approximately April 2011, they moved into the basement of
Hinrichsen’s parents’ home in Ewing, Nebraska. Lee lived
there until at least July 2012. Afterward, she continued to
have an “on-again-off-again” relationship with Hinrichsen and
still had belongings at the Ewing home. After July, Lee would
sometimes stay in Ewing or with her parents in Iowa. At other
times, she would spend time in Omaha, Nebraska, where she
was taking college courses.
Around the end of 2011, Vargas moved to Ewing to work
on a dairy farm located about 2 miles from the Hinrichsens’
home. Beginning in midsummer 2012, Lee began to come to
the farm to help Vargas. In about September, Vargas began
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Cite as 292 Neb. 611

living in a mobile home on the dairy farm. According to
Vargas’ roommate, Lee would sometimes stay with Vargas in
the mobile home.
Lee and Vargas married on October 22, 2012. But Lee
continued to live at the Hinrichsen house part time until
October 29, when she moved her things out. On that date,
Lee informed Hinrichsen for the first time of her marriage to
Vargas. Hinrichsen testified that he and Lee were still roman-
tically involved up until October 29. After October 29, Lee
either stayed with Vargas in Ewing or with her parents in Iowa.
During November 2012, Hinrichsen made numerous tele-
phone calls to Lee which were preserved on a digital recorder
found in Lee’s belongings. In the recordings, Hinrichsen threat-
ened to harm Lee and Vargas and expressed his hatred of
Vargas. On November 30, Hinrichsen purchased an AK-47
assault rifle and ammunition.
The homicides occurred during the early morning hours of
December 8, 2012. Hinrichsen testified that on December 7, he
had “a couple of” mixed drinks at his parents’ house late in the
afternoon. He then went to a bar in Orchard, Nebraska, where
he continued to drink alcohol. Around 6:30 p.m., he made two
telephone calls to Lee. He then called his cell phone provider
to suspend service to Lee’s cell phone, which was still part of
his cell phone service plan. The Orchard bartender testified that
Hinrichsen spent hundreds of dollars on Keno and told her, “‘I
can’t take it to the grave.’”
At approximately 9 or 10 p.m., Hinrichsen left Orchard and
went to a bar in Ewing, where he continued to drink alcohol.
He also bought wine or champagne and shared it with other
bar patrons, something he did not normally do. Hinrichsen
left that bar a little before midnight. At 12:17 a.m., Lee called
a 911 emergency dispatcher and reported that someone with
a gun was at her house. A recording of the 911 call was
admitted into evidence. In the background of the recording,
Hinrichsen can be heard yelling, “Die, you fucking bitch.
Fucking die. Rot in hell. Fucking die. Fucking burn in hell.”
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STATE v. HINRICHSEN
Cite as 292 Neb. 611

Hinrichsen’s profanities continue for about 11⁄2 minutes, and
then the recording goes silent. Because Lee’s cell phone had
been deactivated, the dispatcher could not pinpoint her exact
location and instead dispatched officers to the general area.
Shortly thereafter, a 911 call reported a fire in the mobile
home where Lee and Vargas lived. At 12:33 a.m., Hinrichsen
texted a friend: “I’m fucking done with life I love you man
good luck.”
Hinrichsen arrived at his parents’ property around 1 a.m.
When his father encountered him, Hinrichsen was naked and
told his father that he had killed Lee and Vargas and burned
the evidence, including their bodies and his clothes. Hinrichsen
also left a suicide note for his parents. When law enforcement
officers arrived a short time later and encountered Hinrichsen
on the property, he was wearing only a rain poncho and was
carrying an automatic pistol. Hinrichsen yelled things at the
officers, including “‘[k]ill me. . . . I don’t deserve to live.’”
Hinrichsen’s father got the gun away from Hinrichsen before
the officers arrested him. Officers then put out a fire in a burn
barrel and found the clothes Hinrichsen had been wearing that
evening. Officers also found an AK-47 rifle and ammunition
hidden on the property, as well as a bloody coat. In the vehicle
that Hinrichsen had been driving, officers found blood on the
console and an empty magazine clip.
At trial, Hinrichsen admitted that he had killed Lee and
Vargas. He testified, however, that he did not intend to kill
them. According to Hinrichsen, he did not even know that
Lee was at Vargas’ house on December 7, 2012, because she
had texted him earlier that day and said that she was going to
Iowa. Hinrichsen explained that at approximately 5 p.m. on
December 7, he saw that Lee had changed her surname on a
social media site and became upset. At that point, he decided
to go to the bars. Around midnight, he got sick and decided to
go home. On the way home, he decided to go to Vargas’ home
to scare him into moving away. Hinrichsen had an AK-47 rifle
and a .22-caliber pistol with him because he had planned to go
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STATE v. HINRICHSEN
Cite as 292 Neb. 611

hunting. When he arrived at Vargas’ home, he saw Lee’s car
in the driveway and “lost control” because Lee had said she
was going to Iowa. Because he was angry, he rammed Vargas’
vehicle twice. Hinrichsen testified that he then grabbed the
AK-47 rifle and took it with him to the door of the residence
to intimidate Vargas.
Hinrichsen yelled and beat on the door, but it was locked.
He shot out the window and unlocked the door. He then beat
on Vargas’ bedroom door, but it was either locked or being
held shut. Hinrichsen fired two shots into the door, and after
doing so, was able to push his way into the room. He found
Vargas lying in a pool of blood on the floor by the door and
not moving. An autopsy showed Vargas died as a result of
gunshot wounds to the chest. Hinrichsen then saw Lee on
the telephone asking for help as she knelt naked by the bed.
According to Hinrichsen, her nakedness made him angrier.
He went toward her, and Lee fell, either when she tried to
run around the bed or when he shoved her. When Lee fell,
Hinrichsen began hitting her with the barrel and the butt of the
AK-47 rifle. An autopsy showed Lee died as a result of blunt
force trauma to her head.
At some point, Hinrichsen set Vargas’ residence on fire.
Hinrichsen claimed he did not do so immediately after the
attack, but instead first drove to his parents’ home where he
decided to shoot himself, but then realized the AK-47 was not
functional. At that point, the killings seemed “surreal” to him,
so he drove back to Vargas’ home to see if Lee and Vargas
were really dead. According to Hinrichsen, the scene was
“pretty gruesome” and he “didn’t want to leave that behind,”
so he set the residence on fire. When he returned to his par-
ents’ house, he left a suicide note for his parents and tried
to burn his bloody clothes because he “didn’t want anybody
to find me like that.” He hid the AK-47 rifle in the attic, put
on a rain poncho, and grabbed the .22-caliber pistol with the
thought of killing himself with the pistol. Hinrichsen changed
his mind after realizing the bullet would probably only be big
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STATE v. HINRICHSEN
Cite as 292 Neb. 611

enough to hurt him, but not kill him. When he saw a sheriff’s
vehicle, he began yelling profanities and asking officers to
shoot him.
2. Procedural History
Before trial, Hinrichsen submitted a written motion asking
the court to instruct the jury on the defense of intoxication.
The court overruled the motion after finding that Neb. Rev.
Stat. § 29-122 (Cum. Supp. 2014) eliminated the intoxication
defense in Nebraska. The court rejected Hinrichsen’s argu-
ment that § 29-122 was unconstitutional because it relieved
the State of its burden to prove his mental state beyond a
reasonable doubt. At the jury instruction conference at the
close of trial, Hinrichsen neither requested an intoxication
instruction nor submitted a proposed intoxication instruction
to the court.
Hinrichsen did, however, object to the court’s proposed
jury instructions for each count of first degree murder and to
the court’s definition of a “sudden quarrel.” Hinrichsen also
offered alternative instructions on both of these issues. The
court overruled his objections and rejected his alternative
instructions. Hinrichsen did not object to the court’s proposed
instruction on premeditation at the jury instruction conference,
but did offer an alternative premeditation instruction.
The jury returned a guilty verdict on all four counts. The
court sentenced Hinrichsen to terms of life-to-life imprison-
ment for each murder conviction. It sentenced him to con-
secutive terms of 25 to 30 years’ imprisonment for posses-
sion of a firearm during the commission of a felony and 40
to 50 years’ imprisonment for use of a firearm to commit a
felony. This is Hinrichsen’s direct appeal from his convictions
and sentences.
II. ASSIGNMENTS OF ERROR
Hinrichsen assigns the trial court erred in (1) not instruct-
ing the jury that the State, as an element of first degree mur-
der, had to prove the killings were not the result of a sudden
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. HINRICHSEN
Cite as 292 Neb. 611

quarrel brought about by a sufficient provocation; (2) improp-
erly instructing the jury on the definition of “sudden quarrel”;
(3) improperly instructing the jury on the definition of “pre-
meditation”; (4) not giving Hinrichsen’s requested instruction
on intoxication; and (5) admitting photographic evidence of the
victims while they were alive.
III. STANDARD OF REVIEW
[1,2] An appellate court independently reviews questions of
law decided by a lower court.1 The meaning and interpretation
of a statute present a question of law.2
[3-5] Whether jury instructions are correct is a question of
law.3 In an appeal based on a claim of an erroneous jury instruc-
tion, the appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant.4 All the jury instructions must
be read together, and if, taken as a whole, they correctly state
the law, are not misleading, and adequately cover the issues
supported by the pleadings and the evidence, there is no preju-
dicial error necessitating reversal.5
IV. ANALYSIS
[6-8] The trial court instructed the jury on first degree mur-
der, second degree murder, and manslaughter. Where murder
is charged, a court is required to instruct the jury on all lesser
degrees of criminal homicide for which there is proper evi-
dence before the jury, whether requested to do so or not.6 A

 1
See State v. Hunnel, 290 Neb. 1039, 863 N.W.2d 442 (2015).
 2
See State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
 3
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
 4
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015); State v.
Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
 5
State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015); State v. Valverde,
286 Neb. 280, 835 N.W.2d 732 (2013).
 6
See, Neb. Rev. Stat. § 29-2027 (Supp. 2015); State v. Smith, 284 Neb. 636,
822 N.W.2d 401 (2012).
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STATE v. HINRICHSEN
Cite as 292 Neb. 611

trial court is required to give an instruction on manslaughter
where there is any evidence which could be believed by the
trier of fact that the defendant committed manslaughter and
not murder.7 A trial court is not obligated to instruct the jury
on matters which are not supported by evidence in the record.8
Here, no one challenges the fact that the trial court found the
evidence sufficient to warrant an instruction on manslaughter,
and we therefore do not address that issue.

1. First Degree Murder Instructions
Hinrichsen assigns that the trial court’s instructions on the
first degree murder charges were erroneous in several respects.
We address each argument in turn.

(a) Sudden Quarrel
Hinrichsen’s primary argument is that the court failed to
instruct the jury that the State had to prove beyond a reason-
able doubt that the killings were not the result of a sudden
quarrel brought about by a sufficient provocation in order to
convict him of first degree murder. He contends that by failing
to give an express instruction to this effect, the court violated
his right to due process of law. Hinrichsen’s argument is pre-
mised on the proposition that the malice element of murder is
negated by evidence that the killing was provoked by a sudden
quarrel provocation,9 so that the jury must be able to consider
that the existence of sudden quarrel provocation negates mal-
ice. He contends the instructions given did not allow the jury
to consider this crucial issue. Alternatively, Hinrichsen con-
tends the court should have defined the term “sudden quarrel”
to clarify that provocation negates the element of malice in a
first degree murder charge.

 7
State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
 8
Id.
 9
See, State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013); Smith, supra
note 7; State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).
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(i) Court’s Instructions and Hinrichsen’s
Proposed Instructions
The trial court instructed the jury using an acquittal first
step instruction. The jury was instructed that the elements of
first degree murder were that Hinrichsen killed the victims (1)
purposely and (2) with deliberate and premeditated malice.
The jury was instructed that if it found the State had proved
each of these elements beyond a reasonable doubt, it was the
jury’s duty to convict Hinrichsen of first degree murder. If,
however, the jury found the State had failed to prove any of
the elements beyond a reasonable doubt, the jury was to then
consider whether the State had proved second degree murder.
The jury was instructed that the elements of second degree
murder were that the killings occurred (1) intentionally (2)
without premeditation and (3) not upon a sudden quarrel. If
the jury found the State had proved each of these elements
beyond a reasonable doubt, it was instructed that its duty was
to convict Hinrichsen of second degree murder. If, however,
the jury found the State had failed to prove any of the elements
of second degree murder beyond a reasonable doubt, it was to
then consider whether the State had proved manslaughter. The
jury was instructed that the elements of manslaughter were
that the killing occurred either (1) intentionally upon a sud-
den quarrel or (2) unintentionally during the commission of an
unlawful act.
The court instructed the jury that “[d]eliberate” meant “not
suddenly or rashly. Deliberation requires that one consider
the probable consequences of his actions before acting.” The
court instructed that “[p]remeditation” meant “to form a desire
to do something before it is done. The time needed for pre-
meditation may be so short as to be instantaneous, provided
that the intent to act is formed before the act and not simul-
taneously with the act.” The court instructed that “[m]alice”
meant “intentionally doing a wrongful act without just cause
or excuse.” And the court instructed that “[s]udden quar-
rel” meant
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STATE v. HINRICHSEN
Cite as 292 Neb. 611

that level of provocation sufficient to cause a reason-
able person to lose normal self-control; passion suddenly
aroused which clouds reason and prevents rational action.
It does not necessarily require an exchange of angry
words or an altercation which occurs at the same time as
the killing. It does not require a physical struggle or other
combative bodily contact between the defendant and the
victim. It is a degree of provocation which excites the
passion of a reasonable person enough to obscure one’s
power of reasoning, resulting in an action which occurs
rashly, without due deliberation and reflection. It does
not, however, include specific individual qualities of the
defendant which might render him particularly excitable,
such as voluntary intoxication.
Hinrichsen’s proposed instructions were substantially simi-
lar to those given by the court but would have included, as an
additional element of first degree murder, that the State needed
to prove that he did not kill the victims upon a sudden quarrel.
Alternatively, Hinrichsen proposed to refine the definition of
the term “sudden quarrel” given to the jury by adding a state-
ment that “[p]rovocation negates the element of malice found
in the crime of first degree murder.”
(ii) State v. Smith
The jury instructions given properly enumerated each
statutory element of each degree of Nebraska homicide.10
Nevertheless, Hinrichsen argues they violated his right to due
process of law. To support this argument, he relies extensively
on State v. Smith,11 decided by this court in 2011.
In Smith, we addressed the validity of the Nebraska jury
instructions for second degree murder and voluntary man-
slaughter. The instruction given in Smith defined second degree
murder as an intentional killing done without premeditation

10
See Neb. Rev. Stat. §§ 28-303 to 28-305 (Reissue 2008 & Supp. 2015).
11
Smith, supra note 7.
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and stated that if the jury found the State proved each of those
elements beyond a reasonable doubt, it had a duty to find the
defendant guilty of second degree murder. The instruction told
the jury it could consider whether the defendant had committed
manslaughter only if it found that the State had failed to prove
one or more elements of the crime of second degree murder
beyond a reasonable doubt. The defendant argued the instruc-
tion deprived him of due process because it did not allow the
jury to consider whether his intent to kill was the result of a
sudden quarrel.
We agreed that the instruction was error. We concluded that
in Nebraska, both second degree murder and voluntary man-
slaughter were intentional crimes. The distinguishing factor
between them “is that [for voluntary manslaughter,] the kill-
ing, even if intentional, was the result of a legally recognized
provocation, i.e., the sudden quarrel, as that term has been
defined by our jurisprudence.”12 We reasoned that under the
common law, “‘homicide, even if intentional, was said to be
without malice and hence manslaughter if committed in the
heat of passion upon adequate provocation.’”13 We held that
under Nebraska law, “an intentional killing committed without
malice upon a ‘sudden quarrel,’ as that term is defined by our
jurisprudence, constitutes the offense of manslaughter.”14
Based on this clarification of the elements of the crimes
of second degree murder and voluntary manslaughter, we
concluded that the second degree murder to manslaughter
step instruction given in Smith was incorrect. Specifically,
the instruction was wrong because it “required the jury to
convict [the defendant] on second degree murder if it found
that [he had] killed [the victim] intentionally, but it did not
permit the jury to consider the alternative possibility that the

12
Id. at 732, 806 N.W.2d at 393.
13
Id. at 732-33, 806 N.W.2d at 393, quoting A.L.I., Model Penal Code and
Commentaries § 210.3, comment 1 (1980).
14
Id. at 734, 806 N.W.2d at 394.
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killing was intentional but provoked by a sudden quarrel, and
therefore constituted manslaughter.”15 We held that a trial
court must give a manslaughter instruction under § 29-2027
(Reissue 2008) when there is any evidence upon which a jury
could believe that the defendant committed manslaughter
and not murder. But we did not specify the contents of such
an instruction. Instead, we held that the trial court’s failure
to give such an instruction did not prejudice the defendant
because there was no evidence to support the giving of
the instruction.
Shortly after Smith was decided, the Nebraska Court of
Appeals misinterpreted our holding in an unrelated case with
the same caption:
The Nebraska Supreme Court found that the jury . . .
should have been given a step instruction requiring the
jury to convict on second degree murder if it found that
[the defendant] killed [the victim] intentionally, without
premeditation, but that if the jury acquitted him of that
charge, it could consider the alternative possibility that
the killing was intentional but provoked by a sudden
quarrel, and therefore constituted manslaughter.16
On further review, we clarified that the Court of Appeals had
misinterpreted Smith “to require a step instruction under which
the jury would consider the ‘alternative possibility’ of volun-
tary manslaughter only if it acquitted the defendant of second
degree murder.”17 We reasoned:
Necessarily implicit in the Court of Appeals’ reference to
a “step” instruction is that if a jury concludes a defendant
killed another intentionally and without premeditation,
thereby determining his guilt of second degree murder,
it could never consider voluntary manslaughter. That is

15
Id.
16
State v. Smith, 19 Neb. App. 708, 722, 811 N.W.2d 720, 734 (2012)
(emphasis supplied).
17
Smith, supra note 6, 284 Neb. at 656, 822 N.W.2d at 416.
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incorrect because under our holding in Smith, both second
degree murder and voluntary manslaughter involve inten-
tional killing; they are differentiated only by the pres-
ence or absence of the sudden quarrel provocation. If the
provocation exists, it lessens the degree of the homicide
from murder to manslaughter.18
We held that the jury must be instructed as follows:
[W]here there is evidence that (1) a killing occurred
intentionally without premeditation and (2) the defend­
ant was acting under the provocation of a sudden quar-
rel, a jury must be given the option of convicting of
either second degree murder or voluntary manslaughter
depending upon its resolution of the fact issue regard-
ing provocation.19
In State v. Trice,20 we addressed this issue again. There, the
trial court had given the jury an acquittal-first step instruction
for second degree murder and manslaughter before we issued
our 2011 decision in Smith. Because the defendant’s appeal
was pending when we issued Smith, we held that the holding
of that case applied retroactively to the defendant in Trice and
that the instruction given was error. We also concluded that
the evidence of a sudden quarrel provocation, while weak, was
sufficient to support a reasonable inference that the defendant
had killed under an adequate provocation. We rejected the
State’s argument that the jury had implicitly rejected a vol-
untary manslaughter conviction. We reasoned that the instruc-
tion was insufficient to put the sudden quarrel provocation
before the jury: “The problem, of course, is that under the
instructions given (and presumably followed), the jury never
actually considered whether [the defendant] acted upon a sud-
den quarrel.”21

18
Id. at 656, 822 N.W.2d at 417.
19
Id.
20
Trice, supra note 9.
21
Id. at 192, 835 N.W.2d at 674.
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(iii) Due Process and Sudden Quarrel
Hinrichsen argues that because a jury in a second degree
murder case must be specifically instructed that the State has to
prove lack of sudden quarrel provocation in order to prove the
murder, a jury in a first degree murder case must also be spe-
cifically instructed that the State has to prove lack of sudden
quarrel provocation in order to prove the murder. He contends
the lack of such an explicit instruction violates his due process
rights, because in Nebraska, a sudden quarrel upon sufficient
provocation negates the murder element of malice.22 He relies
on the premise that the State may not shift the burden of proof
to the defendant when an affirmative defense negates an ele-
ment of the crime.23
[9,10] Due process requires a prosecutor to prove beyond
a reasonable doubt every fact necessary to constitute the
crime charged.24 The due process requirements of Nebraska’s
Constitution are similar to those of the federal Constitution.25
In Mullaney v. Wilbur,26 the U.S. Supreme Court applied
the due process concept to jury instructions in a case simi-
lar to the instant case. The Maine law at issue in Mullaney
defined murder as the “‘unlawful[l] kill[ing] [of] a human
being with malice aforethought, either express or implied.’”27
It defined manslaughter as the “‘unlaw[ful] kill[ing] [of] a
human being in the heat of passion, on sudden provocation,
without express or implied malice aforethought.’”28 The jury
was instructed that if the prosecution established the homi-
cide was both intentional and unlawful, malice aforethought

22
See, Trice, supra note 9; Smith, supra note 7; Lyle, supra note 9.
23
See Smith v. U.S., ___ U.S. ___, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013).
24
In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
25
State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003).
26
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508
(1975).
27
Id., 421 U.S. at 686 n.3.
28
Id.
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(murder) was to be conclusively implied unless the defendant
proved by a fair preponderance of the evidence that he acted
in the heat of passion on sudden provocation (and commit-
ted only manslaughter). The jury was further instructed that
malice aforethought and heat of passion on sudden provo-
cation were two inconsistent things, so that by proving the
existence of the latter, the defend­ant would necessarily negate
the existence of the former and reduce the homicide from
murder to manslaughter. The Court reasoned that this shifting
of the burden of persuasion was improper because it required
the defendant to prove the lack of an element, malice afore-
thought, required to convict him of murder. The Court held
“the Due Process Clause requires the prosecution to prove
beyond a reasonable doubt the absence of the heat of passion
on sudden provocation when the issue is properly presented in
a homicide case.”29
Two years later, the Court decided Patterson v. New York,30
another jury instruction case similar to the instant case. In
Patterson, the defendant was charged with second degree
murder, which New York defined as intentionally causing
the death of another person. New York defined manslaughter
as the intentional killing of another “‘under circumstances
which do not constitute murder because [the actor] acts under
the influence of extreme emotional disturbance.’”31 New York
required the defendant to demonstrate the existence of extreme
emotional disturbance by a preponderance of the evidence in
order to reduce the murder to manslaughter, and the jury was
so instructed.
The defendant in Patterson appealed, arguing this instruc-
tion and shifting of the burden of persuasion violated the dic-
tates of Mullaney. But the Court held this was constitutional.

29
Id., 421 U.S. at 704.
30
Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281
(1977).
31
Id., 432 U.S. at 199.
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It reasoned that under the New York scheme, in order to
prove murder, the State had to prove the death, the intent to
kill, and causation beyond a reasonable doubt. Thus, the State
had the burden of persuasion on all the essential elements
of the crime. This distinguished the New York law from the
Maine law at issue in Mullaney, where the element of malice
aforethought was presumed if the State proved intent, and the
defendant then had to disprove it. The Court reasoned that
the New York affirmative defense of an extreme emotional
disturbance did not “serve to negate any facts of the crime”
and that thus, it was appropriate to require the defendant to
carry the burden of persuasion on the defense.32 The Court
specifically held that it would not adopt “as a constitutional
imperative . . . that a State must disprove beyond a reason-
able doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused.”33 Instead,
it clarified that the “Due Process Clause requires the prosecu-
tion to prove beyond a reasonable doubt all of the elements
included in the definition of the offense of which the defend­
ant is charged.”34
[11] As noted, first degree murder in Nebraska occurs when
a person kills another purposely and with deliberate and pre-
meditated malice.35 The jury was so instructed in this case,
and a jury instruction is sufficient if it uses the language of
the statute.36 Here, due process did not require more. Under
Patterson, due process is met as long as the State has to prove
beyond a reasonable doubt all of those enumerated elements:
a killing, done purposely, with deliberate and premeditated
malice. In the instant case, the jury was instructed that to con-
vict Hinrichsen of first degree murder, it had to find “from the

32
Id., 432 U.S. at 207.
33
Id., 432 U.S. at 210.
34
Id. (emphasis supplied).
35
§ 28-303(1).
36
See State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
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evidence beyond a reasonable doubt” that he killed the victims,
that he did so purposely, and that he did so with deliberate
and premeditated malice. There was no burden imposed on the
defendant to disprove any of these elements.
But Hinrichsen contends that due process was violated
because the jury was not expressly instructed that the State
was required to prove the absence of sudden quarrel provoca-
tion. He contends that such an instruction is necessary because
“malice is an element of first degree murder and a sudden
quarrel upon sufficient provocation negates malice.”37 In Smith
v. U.S.,38 the Court recently clarified that the principle of due
process is violated if the State shifts the burden of proof to a
defendant where the defendant’s affirmative defense negates
an element of the crime. Hinrichsen generally argues this prin-
ciple was violated because the nature of the acquittal-first step
instruction effectively prevented the jury from considering his
sudden quarrel defense until it had already found him guilty of
first degree murder.
Several federal courts have rejected similar arguments. In
Dunckhurst v. Deeds,39 the defendant was convicted of first
degree murder. He filed for habeas relief, contending the trial
court erred by denying his request for a jury instruction explic-
itly requiring the State to prove the homicide was not commit-
ted in the heat of passion (with provocation). The Ninth Circuit
examined all of the jury instructions given and concluded that
even though no express instruction requiring the State to dis-
prove provocation was given, the jury was properly instructed
that the State had the burden to prove beyond a reasonable
doubt every element of the offense of first degree murder.
Specifically, the jury was instructed that it had to prove the
killing was with deliberation and premeditation and that it was
done without legal cause or excuse. The court reasoned these

37
Brief for appellant at 21.
38
Smith, supra note 23.
39
Dunckhurst v. Deeds, 859 F.2d 110 (9th Cir. 1988).
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instructions, viewed as a whole, adequately informed the jury
of the State’s burden of proof.
In U.S. v. Molina-Uribe,40 the defendant was charged with
first degree murder.41 He requested an instruction requiring
the government to prove the “absence of sudden quarrel and
heat of passion upon sudden provocation” beyond a reason-
able doubt, but the court refused the instruction.42 Reasoning
that the murder charge placed no burden of any kind upon
the defendant and that he did not have to prove the absence
of provocation in order to defeat the murder charge, the Fifth
Circuit held the instructions given did not violate due process.
The Fourth Circuit has also weighed in on this issue. In
Gutherie v. Warden, Maryland Penitentiary,43 the defend­
ant was convicted of first degree murder. The court found
Mullaney was violated as to the second degree murder and
manslaughter instructions because the jury was instructed
that the defendant had the burden of proving he acted in the
heat of passion upon sudden provocation in order to reduce
the murder to manslaughter. But it reasoned this constitu-
tional error in the instructions was harmless, because the
jury actually convicted the defendant of first degree murder
and “‘in proving the elements of first degree murder beyond
any reasonable doubt . . . the state necessarily disproved
manslaughter beyond a reasonable doubt.’”44 The court spe-
cifically reasoned that first degree murder required the jury
to find premeditation, and because a finding of premedita-
tion necessarily was a finding that the defendant engaged in
thought before the act occurred, the premeditation finding

40
U.S. v. Molina-Uribe, 853 F.2d 1193 (5th Cir. 1988), overruled on other
grounds, U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991), overruled on
other grounds, U.S. v. Johnson, 1 F.3d 296 (5th Cir. 1993).
41
See 18 U.S.C. § 1111 (2012).
42
Molina-Uribe, supra note 40, 853 F.2d at 1200.
43
Gutherie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir. 1982).
44
Id. at 823.
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simultaneously negated a finding of manslaughter in the heat
of passion.
The rationale that no specific jury instruction on the heat
of passion or provocation burden of proof is necessary is also
supported by the U.S. Supreme Court’s decision in Victor
v. Nebraska.45 In the context of analyzing whether the jury
instructions given comported with due process by adequately
defining the concept of beyond a reasonable doubt, the
Court stated:
[S]o long as the court instructs the jury on the necessity
that the defendant’s guilt be proved beyond a reasonable
doubt, . . . the Constitution does not require that any
particular form of words be used in advising the jury of
the government’s burden of proof. . . . Rather, “taken as
a whole, the instructions [must] correctly conve[y] the
concept of reasonable doubt to the jury.”46
State courts have also rejected the due process argument that
Hinrichsen advances. In State v. Auchampach,47 the defendant
was convicted of first degree murder. At trial, he admitted
the killings but denied they were premeditated and claimed
they occurred in the heat of passion. During the jury instruc-
tion conference, the court concluded the defendant had pre-
sented sufficient evidence to warrant an instruction on heat
of passion manslaughter. However, it refused his request to
give the Minnesota jury instruction which enumerated the
absence of heat of passion as an element of premeditated first
degree murder.
On appeal, the defendant contended this was error, argu-
ing the trial court’s “refusal [to give the instruction] relieved
the state of proving beyond a reasonable doubt an element of
first-degree intentional murder—that [he] did not act in the

45
Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994).
46
Id., 511 U.S. at 5 (citations omitted) (emphasis supplied).
47
State v. Auchampach, 540 N.W.2d 808 (Minn. 1995).
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heat of passion.”48 In reviewing the argument, the court noted
due proc­ess required that the jury be instructed on the State’s
­burden to prove beyond a reasonable doubt every element of
the crime charged.49 It also noted that in reviewing the suffi-
ciency of the jury instructions, the instructions must be viewed
in their entirety.50
The court reasoned that under the applicable Minnesota
statute, the absence of heat of passion was not an enumerated
element of premeditated first degree murder and that there-
fore, under Patterson, there was no constitutional requirement
that the State prove the absence of heat of passion beyond a
reasonable doubt before it could convict the defendant of first
degree murder.51 It reasoned, however, that under Minnesota
law, the State nevertheless had the burden to so prove the
lack of heat of passion in order to obtain a conviction for
first degree murder.52 Notably, it did not find that such a
burden meant that the jury had to receive an explicit instruc-
tion to that effect. Rather, viewing the jury instructions as
a whole, the court reasoned they adequately informed the
jury of the State’s burden of proof. Specifically, the jury was
instructed that it had to find guilt beyond a reasonable doubt,
was instructed on the definition of heat of passion, and was
instructed that an “unconsidered or rash impulse, even though
it includes an intent to kill, is not premeditated.”53 Moreover,
the court reasoned that at closing argument, the defendant
argued he was not guilty of first degree murder because there
was no premeditation and that thus, the jury was fully aware
of the issue before it.

48
Id. at 816.
49
Id.
50
Id.
51
Auchampach, supra note 47. See Patterson, supra note 30.
52
Auchampach, supra note 47.
53
Id. at 818.
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In People v. Hernandez,54 the defendant was charged with
first degree murder. California defined that crime as an unlaw-
ful killing with malice aforethought, premeditation, and delib-
eration. The jury was instructed that “deliberation mean[t] a
decision to kill after a careful weighing of the considerations
for and against this choice; premeditation mean[t] a deci-
sion to kill before commission of the act that caused death;
. . . a ‘decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated.’”55
The defendant contended these instructions were insufficient
because they did not “specifically inform the jury that provo-
cation is relevant to determine whether the defendant killed
without premeditation and deliberation.”56 But the court dis-
agreed, stating, “[W]hen the instructions are read as a whole
there is no reasonable likelihood the jury did not understand
[that provocation is relevant to the issues of premeditation and
deliberation.] [T]he jury was instructed . . . that a rash, impul-
sive decision to kill is not deliberate and premeditated.”57 It
thus reasoned that “the jurors would have understood that
provocation (the arousal of emotions) can give rise to a rash,
impulsive decision, and this in turn shows no premeditation
and deliberation.”58
[12] Following the general rationale articulated by the
various federal and state authorities cited, and in light of the
fact that lack of sudden quarrel is not a statutory element of
first degree murder in Nebraska, we find that an explicit jury
instruction advising that the State must prove lack of sud-
den quarrel provocation beyond a reasonable doubt is not

54
People v. Hernandez, 183 Cal. App. 4th 1327, 107 Cal. Rptr. 3d 915
(2010).
55
Id. at 1332, 107 Cal. Rptr. 3d at 920 (emphasis in original).
56
Id. at 1333, 107 Cal. Rptr. 3d at 920.
57
Id. at 1334, 107 Cal. Rptr. 3d at 921.
58
Id.
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required in order to comport with the dictates of due process.
Instead, the question is whether the jury instructions given,
viewed as a whole, adequately informed the jury that the State
had the burden to prove lack of sudden provocation beyond
a reasonable doubt in order to convict Hinrichsen of first
degree murder.
We think it is clear that they did. The instructions given
required the State to prove beyond a reasonable doubt that the
victims were killed intentionally and with deliberate and pre-
meditated malice. Malice was defined as an act done without
just cause or excuse. Deliberate was defined as “not suddenly
or rashly. Deliberation requires that one consider the prob-
able consequences of his actions before acting.” Premeditation
was defined as “to form a design to do something before it
is done.” The jury was expressly instructed that it could find
Hinrichsen guilty of first degree murder only if it found the
State had proved each of these elements beyond a reason-
able doubt.
[13] Under the plain language of the instructions given, to
convict on the first degree murder charge, the State had to
prove beyond a reasonable doubt that (1) Hinrichsen’s intent
to do the act was formed before the act was done (premedi-
tated) and (2) his intent was formed not suddenly or rashly,
but instead was formed after he had considered the probable
consequences of his act (deliberate). In Nebraska, sudden
quarrel is present when there is reasonable and adequate prov-
ocation to excite one’s passion and obscure and disturb one’s
power of reasoning to the extent that one acted rashly and
from passion, without due deliberation and reflection, rather
than from judgment. Thus, in finding beyond a reasonable
doubt that Hinrichsen acted with deliberate and premeditated
malice, the jury necessarily simultaneously found beyond a
reasonable doubt that there was no sudden quarrel provoca-
tion, i.e., that he did not act without due deliberation and
reflection. It is logically impossible to both deliberate and not
deliberate at the same time. The crucial question of whether
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Hinrichsen acted with deliberate and premeditated malice, or
instead acted without due deliberation and reflection, was very
much presented to the jury even if the jury was not directly
instructed that sudden quarrel provocation negates malice.
And the burden of proving whether Hinrichsen acted with
deliberate and premeditated malice, and thus did not act under
a sudden provocation, rested on the State. There was no shift-
ing of the burden to the defendant.
The first degree murder step instruction given in this case
is thus very different from the second degree murder step
instruction we addressed in Smith and found to be errone-
ous.59 The key distinction is that in Smith, the jury was pre-
vented from considering the crucial issue—whether the kill-
ing, although intentional, was the result of a sudden quarrel.
The existence of a sudden quarrel was an additional element
the jury needed to consider, but the instruction prevented it
from doing so.
Here, the existence of a sudden quarrel is not an additional
element. Rather, it is the converse of the enumerated ele-
ments of first degree murder.60 To find Hinrichsen guilty of
first degree murder, the jury had to be convinced that none of
the evidence, whether offered by the State or by Hinrichsen,
raised a reasonable doubt that Hinrichsen killed with deliberate
and premeditated malice.61 Thus, the jury was not in any way
prevented from considering the crucial issue. When it decided
beyond a reasonable doubt that Hinrichsen killed with deliber-
ate and premeditated malice, it necessarily also decided beyond
a reasonable doubt that the converse was true—i.e., his actions
were not the result of a sudden quarrel, done “rashly, without
due deliberation and reflection.” Instead of preventing the jury
from considering the crucial issue, the jury instructions here

59
See Smith, supra note 7.
60
See Auchampach, supra note 47.
61
See Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267
(1987).
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directly presented that issue to the jury for its consideration.
And the instructions at all times placed the burden of proof on
the State.
Thus, the due process requirements of Mullaney,62
Patterson,63 and Smith64 are met by the Nebraska jury instruc-
tions as they currently read—the instructions require the State
to prove beyond a reasonable doubt every enumerated element
necessary to convict of first degree murder: intent, purpose,
deliberation, premeditation, and malice. And the definitions of
deliberate and premeditation necessarily require the jury to find
the absence of provocation beyond a reasonable doubt in order
to find the existence beyond a reasonable doubt of deliberate
and premeditated malice. Although the current instructions do
not explicitly inform the jury that the State has the burden to
disprove sudden quarrel provocation beyond a reasonable doubt
in order to convict of first degree murder, the instructions read
as a whole do require the State to prove beyond a reasonable
doubt that the converse was true: that the actions were done
with deliberate and premeditated malice, which necessarily dis-
proves sudden quarrel provocation. These instructions properly
keep the burden of disproving the existence of sudden quarrel
provocation on the State. There is no unconstitutional shifting
of the burden to the defendant.
We have already held as much in at least one recent case. In
State v. Alarcon-Chavez,65 the defendant was charged with and
convicted of first degree murder. Over the defendant’s objec-
tion, the trial court gave the standard step instruction from
NJI2d Crim. 3.1 defining the elements of first degree murder,
second degree murder, and manslaughter. On appeal, he con-
tended the step instruction as to the distinction between second
degree murder and manslaughter was incorrect based on our

62
Mullaney, supra note 26.
63
Patterson, supra note 30.
64
Smith, supra note 23.
65
State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
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holding in Smith.66 We acknowledged he was correct, but rea-
soned the error was not prejudicial to the defendant:
We have held that a defendant convicted of first degree
murder under a step instruction cannot be prejudiced by
any error in the instructions on second degree murder or
manslaughter because under the step instruction, the jury
would not have reached those levels of homicide. . . .
Here, the jury considered how [the victim’s] death
occurred and concluded [the defendant] killed her pur-
posely and with deliberate and premeditated malice. In so
concluding, the jury necessarily considered and rejected
that the killing was the result of provocation and was
therefore without malice. The jury found the evidence
met the elements of first degree murder. Under these
circumstances where the jury found that premeditation,
intent, and malice existed beyond a reasonable doubt, [the
defendant] was not prejudiced [by any error in the second
degree murder/]manslaughter instruction.67
Because the given jury instructions on first degree murder
accurately placed the burden of proof on the State, Hinrichsen’s
contention that the district court erred in not adding a sentence
to its definition of sudden quarrel is also without merit. In
future cases, however, it would be a better practice for courts,
in first degree murder cases in which evidence of provocation
has been adduced by the defendant, to clarify the definition
of deliberation. We encourage courts in such cases to define
“deliberate” to mean “not suddenly or rashly, but doing an act
after first considering the probable consequences. An act is not
deliberate if it is the result of sudden quarrel provocation.”
(b) Premeditation
The district court gave the NJI2d Crim. 4.0 instruction for
premeditation, defining that term to mean “to form a design to

66
See Smith, supra note 7.
67
Id. at 335, 821 N.W.2d at 368-69 (emphasis supplied).
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do something before it is done. The time needed for premedita-
tion may be so short as to be instantaneous, provided that the
intent to act is formed before the act and not simultaneous with
the act.” This definition of premeditation has been repeatedly
advanced and affirmed by this court.68 Hinrichsen submitted
a proposed jury instruction defining premeditation to include
only the first sentence of the instruction given. He contends his
proposed instruction is the statutory definition of premeditation
from Neb. Rev. Stat. § 28-302(3) (Reissue 2008) and that this
court has exceeded the scope of its authority by expanding on
that definition in our cases.
[14] Although Hinrichsen submitted a proposed jury instruc-
tion on premeditation, he did not object to the instruction actu-
ally given by the district court. The failure to object to a jury
instruction after it has been submitted to counsel for review
precludes raising an objection on appeal absent plain error.69
Even if the issue had been preserved, there was no error, as
our prior cases have not impermissibly expanded the defini-
tion of premeditation set forth in § 28-302(3), but instead have
simply interpreted the meaning of the term “before” as used in
that statute.70
2. Voluntary Intoxication
Months prior to trial, Hinrichsen asked the court to give a jury
instruction on the defense of intoxication. The State objected,
citing § 29-122. That statute, enacted in 2011, provides:
A person who is intoxicated is criminally responsible
for his or her conduct. Intoxication is not a defense to
any criminal offense and shall not be taken into consid-
eration in determining the existence of a mental state
that is an element of the criminal offense unless the
defendant proves, by clear and convincing evidence, that

68
See, e.g., State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
69
See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2008).
70
See Taylor, supra note 68.
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he or she did not (1) know that it was an intoxicating
substance when he or she ingested, inhaled, injected,
or absorbed the substance causing the intoxication or
(2) ingest, inhale, inject, or absorb the intoxicating sub-
stance voluntarily.
Hinrichsen argued § 29-122 was unconstitutional and did not
bar his intoxication defense. The district court disagreed.
[15] At trial, Hinrichsen did not renew his request for a jury
instruction on intoxication or offer a proposed instruction to
that effect. Nevertheless, in this appeal, he contends that the
trial court erred in not giving one. When a party assigns as
error the failure to give an unrequested jury instruction, an
appellate court will review only for plain error.71
[16] We conclude that Hinrichsen did not preserve the issue
for appeal simply by seeking the pretrial order. A pretrial rul-
ing on the propriety of a jury instruction is unusual, and under
the circumstances of this case, is akin to a motion in limine on
an evidentiary ruling.72 We have repeatedly held that a pretrial
evidentiary ruling is not preserved for appeal unless the issue is
raised at trial.73 We apply that same rationale here and conclude
that Hinrichsen did not preserve the intoxication defense issue
for appellate review. And we find no plain error in the trial
court’s refusal to give the instruction.
3. A dmission of Photograph
During the testimony of Lee’s mother, the State offered a
photograph of Lee and Vargas on their wedding day. Hinrichsen
objected on relevancy grounds, but the trial court overruled the
objection. Hinrichsen challenges that ruling on appeal.
[17] The admission of photographs into evidence rests
largely within the discretion of the trial court, which must
determine their relevancy and weigh their probative value

71
Kass, supra note 36.
72
See, generally, State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014);
State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).
73
See id.
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against their possible prejudicial effect.74 In a homicide pros-
ecution, photographs of a victim may be received into evidence
for the purpose of identification, to show the condition of the
body or the nature and extent of wounds and injuries to it, and
to establish malice or intent.75
[18,19] The State contends the photographs were admitted
for identification purposes because the bodies of the victims
were burned beyond recognition. We need not decide whether
the admission was error, because we conclude any error was
harmless error. Harmless error exists when there is some
incorrect conduct by the trial court which, on review of the
entire record, did not materially influence the jury in reach-
ing a verdict adverse to a substantial right of the defendant.76
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unat-
tributable to the error.77 We conclude the actual guilty verdict
rendered was surely unattributable to any error in admitting
the photograph.
V. CONCLUSION
For the foregoing reasons, we affirm Hinrichsen’s convic-
tions and sentences.
A ffirmed.
Stephan, J., not participating.

74
State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
75
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
76
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
77
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

Wright, J., concurring in the result.
I respectfully concur in the result, but I write separately to
reiterate the rule that Neb. Rev. Stat. §29-2027 (Supp. 2015)
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requires the court to instruct the jury on all lesser degrees of
criminal homicide for which there is proper evidence before
the jury. In a case where there is evidence that a defendant
killed intentionally but was acting under a provocation, the
jury must be instructed that it has the option of convicting the
defendant of voluntary manslaughter or second degree murder
or first degree murder depending upon its determination of the
fact issue regarding provocation.
Premeditation or provocation are fact issues that should be
considered simultaneously when there is proper evidence of
a provocation. The logic of this rule is that since provocation
negates premeditation and premeditation negates provocation,
the jury should consider and decide this question at the same
time. When the defendant has presented proper evidence that
the defendant was acting under a provocation, that issue should
be addressed at the same time that the jury considers whether
the act causing the death was premeditated.
In a first degree murder case, the State presents its evidence
that the murder was premeditated. If the defendant offers evi-
dence that the killing was the result of provocation, the State’s
evidence must establish beyond a reasonable doubt that the
murder was not the result of a provocation. In that manner,
the burden remains upon the State to prove the elements of the
crime and thus, the burden of proof never shifts to the defend­
ant. The State disproves the defense of provocation by its
evidence of premeditation. The question is whether the State’s
evidence negates beyond a reasonable doubt the claim of prov-
ocation. The State negates the defendant’s claim of provocation
by presenting evidence that proves beyond a reasonable doubt
that the defendant killed the victim with premeditation and
malice aforethought.
An acquittal first step instruction precludes the jury from
effectively considering the factual issue of provocation in its
determination of a defendant’s guilt. As the dissent points out,
our reasoning in State v. Smith, 284 Neb. 636, 822 N.W.2d
401 (2012), and State v. Trice, 286 Neb. 183, 835 N.W.2d
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667 (2013), applies equally to an acquittal first step instruc-
tion on first degree murder. Voluntary manslaughter is not a
lesser-included offense of first degree murder. And under a
step instruction on the three degrees of homicide, the jury must
acquit the defendant of first and second degree murder before
it considers the issue of provocation. This has the effect of
prioritizing the evidence by requiring the jury to consider first
and second degree murder before it can consider the evidence
of provocation. I agree with the dissent’s position that the
court is required to instruct the jury in a manner that explains
the jury’s options under § 29-2027 of whether to convict
the defendant of first degree murder, second degree murder,
or manslaughter.
But the reason that I concur is that clearly Hinrichsen was
not entitled to a provocation instruction. The fact that the
trial court instructed on provocation does not establish that
Hinrichsen was prejudiced by the court’s step instruction.
There is simply no evidence that Hinrichsen was provoked into
killing two people in the manner that he did.
Connolly, J., dissenting.
I dissent. First, our 2012 decision in State v. Smith1 requires
a trial court to instruct a jury of its option to convict a defend­
ant of second degree murder or sudden quarrel (voluntary)
manslaughter, depending on its resolution of a provocation
defense. This requirement—that a court must instruct the jury
on its options for conviction—should also apply to a first
degree murder prosecution when a trial court determines that
there is adequate evidence of a sudden quarrel provocation
to put the issue before the jury. So, under Neb. Rev. Stat.
§ 29-2027 (Supp. 2015), I believe a court should minimally
give two instructions: (1) the jury must consider evidence of a
sudden quarrel provocation in deciding whether the State has
proved the elements of first degree murder; and (2) it cannot

 1
State v. Smith, 284 Neb. 636, 822 N.W.2d at 401 (2012).
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convict a defendant of murder if it finds that evidence of a sud-
den quarrel provocation creates a reasonable doubt about the
defendant’s guilt.
Second, the majority’s reasoning in distinguishing Smith
directly conflicts with due process requirements. I recognize
that this court has rejected several due process challenges to
jury instructions in first degree murder prosecutions. But our
recent decisions and a recent U.S. Supreme Court decision
compel me to reevaluate our due process holdings. I conclude
federal due process decisions show that we have erroneously
upheld acquittal-first step instructions in first degree murder
prosecutions with voluntary manslaughter as a lesser degree
offense. Because the Due Process Clause requires the State to
disprove any affirmative defense that negates an element of the
charged crime, we were wrong.
Notably, the majority does not dispute that the State must
disprove a provocation defense. Instead, it concludes that
under an acquittal-first step instruction in a first degree murder
prosecution, the jury necessarily rejects the existence of a sud-
den quarrel provocation. The majority points out that in 2012,
we reached the same conclusion in a per curiam decision, State
v. Alarcon-Chavez.2 But the reasoning in Alarcon-Chavez, and
the majority’s reasoning today, is inconsistent with our deci-
sions in State v. Smith and State v. Trice.3
Third, the majority misconstrues or mistakenly relies on
federal and state cases that do not support its holding. In doing
so, it ignores the majority of jurisdictions that require the pros-
ecution to disprove an adequately raised provocation defense
under similar homicide statutes. It is long overdue for this
court to join those courts in recognizing that the Due Process
Clause requires no less.

 2
State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
 3
State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013).
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OUR PRE-2011 CASE LAW
WAS INCONSISTENT
Before 2011, we generally rejected challenges to our
­acquittal-first step instructions for two reasons. We have rea-
soned that if a defendant is convicted of first degree mur-
der, the defendant cannot be prejudiced by any error in an
instruction for second degree murder or manslaughter, because
the jury never reaches those issues.4 And we have said that
because an acquittal-first step instruction provides a logical
and orderly process for guiding a jury’s deliberations, it is
not error to require a jury to consider the greater homicide
offense first.5
But the cases from other states that we originally cited
did not support our conclusion that an acquittal-first step
instruction is always appropriate. Specifically, they did not
show that a step instruction, without any clarifying instruc-
tions, is proper when a jury will only consider a mitigating
circumstance in a lesser offense if it acquits the defendant of
a greater offense.6
Conversely, we reasoned in State v. Jones7 that a jury is free
to consider the defendant’s guilt of a lesser degree manslaugh-
ter offense before deciding his or her guilt of murder. But the
fact is that a jury either considers whether a defendant acted
under a sudden provocation or does not. And if, as we have
often stated, it is true that jurors follow their instructions, then
they do not consider a provocation defense in determining a
defendant’s guilt of murder. So while some of our cases have

 4
See, e.g., State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995); State
v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled on other
grounds, State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011), and State
v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
 5
See, e.g., State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003); Jones,
supra note 4.
 6
See Jones, supra note 4 (citing cases).
 7
Id.
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been inconsistent, our recent cases have rejected the rationale
that a jury considers a defendant’s provocation defense.
STATE V. SMITH ALSO REQUIRES AN OPTION
INSTRUCTION IN FIRST DEGREE MURDER
PROSECUTIONS IF THERE IS ADEQUATE
EVIDENCE OF A SUDDEN QUARREL
PROVOCATION
In 2011, we reaffirmed our 1989 holding in State v. Pettit8
that a sudden quarrel manslaughter is an intentional homicide
that does not negate the actor’s intent to kill.9 We overruled our
contrary holding in Jones that manslaughter is an unintentional
homicide10 and reaffirmed Pettit’s holding that an adequate
provocation is an extenuating circumstance that mitigates the
defendant’s culpability—but not one that justifies or excuses
a killing.
Because our 2011 holding reaffirmed that the only dis-
tinction between second degree murder and voluntary man-
slaughter is a legal provocation, we held that the court’s step
instruction was incorrect. As the majority recognizes, we held
that the instruction incorrectly “required the jury to convict
on second degree murder if it found that [the defendant]
killed [the victim] intentionally, but it did not permit the jury
to consider the alternative possibility that the killing was
intentional but provoked by a sudden quarrel, and therefore
constituted manslaughter.”11 We held that a trial court must
give an instruction under § 29-2027 if any evidence exists
upon which a jury could believe that the defendant committed
manslaughter and not murder. Section 29-2027, in relevant
part, provides that “[i]n all trials for murder the jur[ors,] if
they find the prisoner guilty thereof, shall ascertain in their

 8
State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
 9
See Smith, supra note 4.
10
Jones, supra note 4.
11
Smith, supra note 4, 282 Neb. at 734, 806 N.W.2d at 394.
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verdict whether it is murder in the first or second degree
or manslaughter.”
In 2012, we clarified in State v. Smith12 that in nonhomicide
cases, a trial court does not have a duty to instruct on a lesser-
included offense unless the defendant requests the instruction.
But we also stated that in murder prosecutions, § 29-2027 is
“a mandatory rule that [requires a court] to instruct the jury
on all lesser degrees of criminal homicide for which there is
proper evidence before the jury, whether requested to do so
or not.”13
Moreover, in Smith, we emphasized that voluntary man-
slaughter is not a lesser-included offense of second degree
murder under our elements test, because it is possible to
commit second degree murder without committing voluntary
manslaughter. Instead, a sudden quarrel provocation is an
extenuating circumstance that lessens the degree of homicide
to manslaughter. We held that under § 29-2027, “where there
is evidence that [a defendant killed intentionally and was act-
ing under a provocation], a jury must be given the option of
convicting [the defendant] of either second degree murder or
voluntary manslaughter depending upon its resolution of the
fact issue regarding provocation.”14
So, Smith directly conflicts with, and effectively abro-
gates, the reasoning in Jones15 that under an acquittal-first step
instruction, a jury considers whether a defendant is guilty of a
sudden quarrel provocation before determining that he is guilty
of murder. Under Jones, we presumed that a jury considered
whether the defendant was guilty of manslaughter before find-
ing his guilt of murder. If that were so, we would have had
no reason to require an option instruction in Smith. Instead,
in Smith, we implicitly recognized that an acquittal-first step

12
Smith, supra note 1.
13
Id. at 651, 822 N.W.2d at 414.
14
Id. at 656, 822 N.W.2d at 417.
15
Jones, supra note 4.
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instruction precludes the jury from considering a provocation
defense in determining a defendant’s guilt of murder.
And the majority recognizes that we made this reasoning
explicit in State v. Trice.16 There, we specifically rejected the
State’s argument that the jury had implicitly rejected a vol-
untary manslaughter conviction under an acquittal-first step
instruction by convicting the defendant of second degree mur-
der. We concluded that “under the instructions given (and pre-
sumably followed), the jury never actually considered whether
[the defendant] acted upon a sudden quarrel.”17
The majority acknowledges our holdings in Smith and Trice.
But it ignores the obvious implications for first degree murder
prosecutions. The reasoning in Smith and Trice applies equally
to an acquittal-first step instruction on first degree murder,
second degree murder, and sudden quarrel manslaughter. That
is, if a jury cannot consider whether a defendant’s “‘intent to
kill was the result of a sudden quarrel’” in a step instruction
on second degree murder and voluntary manslaughter,18 a jury
also cannot consider whether a defendant’s intent to kill was
the result of a sudden quarrel in a step instruction on all three
degrees of homicide. As the instructions in this case illustrate,
a jury must acquit the defendant of two murder charges before
the step instruction permits it to even consider a sudden quar-
rel provocation. Whether the charged crime is first degree
murder or second degree murder, the mitigating circumstance
exists only as an element of the lesser degree manslaugh-
ter offense.
Moreover, just as voluntary manslaughter is not a lesser-
included offense of second degree murder under our elements
test, it is not a lesser-included offense of first degree mur-
der. One can commit a deliberate and premeditated murder
without killing under a sudden quarrel provocation. Because

16
Trice, supra note 3.
17
Id. at 192, 835 N.W.2d at 674.
18
See id. at 189, 835 N.W.2d at 672.
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it is a lesser degree offense, our reasoning in Smith should
also apply here. It applies because whether the charge is first
degree murder or second degree murder, the emotional dis-
turbance caused by an adequate provocation is an additional
consideration outside of the elements of the murder charge
that results in a less culpable state of mind. The provocation
reduces the degree of homicide to manslaughter despite the
actor’s intent to kill.
Because an acquittal-first step instruction precludes the jury
from considering a sudden quarrel provocation when determin-
ing guilt of first degree murder, Smith requires a trial court to
instruct the jury in a manner that explains its options under
§ 29-2027: i.e., whether to convict the defendant of first degree
murder, second degree murder, or manslaughter. As I explain
more fully later, that mandate should minimally require two
jury instructions in a first degree murder case: (1) an instruc-
tion that jurors must consider evidence of a sudden quarrel
provocation when determining whether the State has proved
the elements of first degree murder; and (2) an instruction that
they cannot convict the defendant of first degree murder if
they find that evidence of a sudden quarrel provocation cre-
ates a reasonable doubt about the defendant’s guilt of murder.
Without such instructions, the jurors cannot exercise their
option to convict the defendant of voluntary manslaughter, as
§ 29-2027 requires.
I believe the majority incorrectly concludes that in the
instruction on first degree murder, the jury necessarily finds
beyond a reasonable doubt that the defendant did not kill while
provoked by a sudden quarrel. It reasons as follows: For first
degree murder, the State must prove that the defendant acted
with deliberate and premeditated malice. The definitions of the
deliberate and premeditated elements require a jury to find that
the defendant formed an intent to kill before acting and that the
defendant did not act rashly or suddenly. In contrast, a sudden
quarrel provocation means that a defendant acted rashly and
from passion, without due deliberation and reflection.
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Thus, in finding beyond a reasonable doubt that Hinrichsen
acted with deliberate and premeditated malice, the jury
necessarily simultaneously found beyond a reasonable
doubt that there was no sudden quarrel provocation, i.e.,
that he did not act without due deliberation and reflection.
It is logically impossible to both deliberate and not delib-
erate at the same time.
Applying this reasoning, the majority concludes that our
2011 decision in Smith is distinguishable because here, the
provocation defense was necessarily presented to the jury:
The key distinction is that in Smith, the jury was pre-
vented from considering the crucial issue—whether the
killing, although intentional, was the result of a sudden
quarrel. The existence of a sudden quarrel was an addi-
tional element the jury needed to consider, but the instruc-
tion prevented it from doing so.
Here, the existence of a sudden quarrel is not an addi-
tional element. Rather, it is the converse of the enumer-
ated elements of first degree murder. To find Hinrichsen
guilty of first degree murder, the jury had to be convinced
that none of the evidence, whether offered by the State or
by Hinrichsen, raised a reasonable doubt that Hinrichsen
killed with deliberate and premeditated malice.
This reasoning is incorrect and contrary to our case law.
I agree that it is logically impossible to deliberate and not
deliberate. But under an acquittal-first step instruction, the
court never informs the jury that murder and manslaughter
are mutually exclusive homicides or that the jury can con-
sider the sudden quarrel defense in considering whether the
State has proved the elements of murder. The majority’s
assumption that the sudden quarrel defense is presented to
the jury and that the jury understands the State has the burden
to disprove the defense is nothing more than an implausible
legal fiction.
First, nothing in the instructions informs the jury that the
State has the burden to disprove a sudden quarrel defense.
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Second, the jury does not consider the defense because a sud-
den quarrel provocation is obviously not an element of either
first or second degree murder. It is an extenuating circum-
stance that exists outside of the elements of a murder charge.
By holding in Smith that voluntary manslaughter is not a
lesser-included offense murder, we implicitly recognized this
relationship. And we have explicitly recognized the same in
rejecting a due process challenge to step instructions on second
degree murder and voluntary manslaughter:
Under Nebraska law, second degree murder is defined
as causing the death of another intentionally, but with-
out premeditation. . . . The definition of manslaughter
includes the intentional killing of another, without malice,
upon a sudden quarrel. . . . In order to convict a person
of second degree murder, the State is required to prove all
three elements—the death, the intent to kill, and causa-
tion—beyond a reasonable doubt. None of the elements
is presumed upon proof of the others, nor is any element
presumed in the absence of proof by the defendant of the
converse of that element. As in [the] New York [statutes
that the U.S. Supreme Court considered in Patterson v.
New York19], the fact that a homicide occurs “upon a sud-
den quarrel” is an additional circumstance which serves
to mitigate an intentional killing.20
The same reasoning applies to first degree murder. To
prove first degree murder, the State must show that a defend­
ant killed another “‘purposely and with deliberate and pre-
meditated malice.’”21 In 2013, we rejected an argument that
an acquittal-first step instruction in a first degree murder

19
Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281
(1977).
20
State v. Cave, 240 Neb. 783, 789, 484 N.W.2d 458, 464 (1992) (emphasis
supplied).
21
State v. Bauldwin, 283 Neb. 678, 706, 811 N.W.2d 267, 290 (2012),
quoting Neb. Rev. Stat. § 28-303 (Reissue 2008).
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prosecution must include an element that requires the State to
disprove a sudden quarrel defense because the “absence of a
sudden quarrel is not an element of [first degree murder].”22
So nothing in the elements of the first degree murder charge
of an acquittal-first step instruction informs a jury that evi-
dence of a sudden quarrel provocation rebuts the murder ele-
ments or that the State must prove the absence of a sudden
quarrel. And an acquittal-first step instruction blocks a jury
from considering a provocation defense in a lesser degree
manslaughter instruction.
For each murder count, the instructions here informed the
jury that it must convict Hinrichsen of first degree murder if
it concluded that the State had proved the elements of that
charge beyond a reasonable doubt. In effect, the instructions
told the jurors to stop deliberating at this point. And if the
jury acquitted Hinrichsen of first degree murder and found
that the State had proved the elements of second degree mur-
der, the instruction again threw up a roadblock to convict and
cease deliberating.
The question is not whether a Philadelphia lawyer could
see through these instructions and conclude that the jury could
consider the provocation evidence in deciding a defendant’s
guilt of murder. The question is whether the jury instructions
are constructed so that the jury would not consider a mitigating
circumstance in a lesser degree manslaughter offense.23 The
acquittal-first step instruction created more than a risk that the
jury would not consider Hinrichsen’s sudden quarrel defense
in determining his guilt of murder; it effectively instructed the
jury not to do so.
In sum, the instructions themselves and our case law sup-
port a conclusion that the jury did not consider Hinrichsen’s
provocation defense when determining his guilt of first degree
murder. So the majority’s reasoning that the jury understood

22
See State v. Morgan, 286 Neb. 556, 562, 837 N.W.2d 543, 549-50 (2013).
23
See Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990).
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the State had the burden to disprove Hinrichsen’s provoca-
tion defense, and rejected it, boils down to this syllogism: The
elements of first degree murder and voluntary manslaughter
are mutually exclusive. Therefore, by finding that the State
proved that Hinrichsen killed purposely and with deliberate
and premeditated malice, the jury could not find that he was
guilty of voluntary manslaughter. As I explain next, this rea-
soning only highlights the due process problem presented by
an acquittal-first step instruction for first degree murder and
voluntary manslaughter.

DUE PROCESS REQUIRES THE STATE TO DISPROVE
ANY AFFIRMATIVE DEFENSE THAT NEGATES
AN ELEMENT OF THE CRIME
First Degree Murder and M anslaughter
are Mutually Exclusive Homicides
As the majority opinion shows, proof of a sudden quarrel
manslaughter negates the deliberation element of first degree
murder. Other courts agree.24 As the majority states, “It is
logically impossible to both deliberate and not deliberate at the
same time.” Other courts also recognize that a legal provoca-
tion negates the premeditation element,25 and we have agreed
that to be adequate, a provocation must negate the elements of
murder: “It is not the provocation alone that reduces the grade
of the crime, but, rather, the sudden happening or occurrence of
the provocation so as to render the mind incapable of reflection
and obscure the reason so that the elements necessary to consti-
tute murder are absent.”26 Even more fundamentally, the major-
ity acknowledges that under our statutes, proof of manslaughter

24
See, People v. Jones, 223 Cal. App. 4th 995, 167 Cal. Rptr. 3d 659 (2014);
Villella v. State, 833 So. 2d 192 (Fla. App. 2002); State v. Van Zante, 26
Wash. App. 739, 614 P.2d 217 (1980).
25
See id.
26
Smith, supra note 1, 284 Neb. at 642, 822 N.W.2d at 408, citing Smith,
supra note 4; State v. Lyle, 258 Neb. 263, 603 N.W.2d 24 (1999).
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negates the malice element of first degree murder—because
manslaughter is a homicide committed “without malice.”27
As stated, a first degree murder charge requires the State to
prove the defendant killed another person “purposely and with
deliberate and premeditated malice.”28 The “malice” element
requires the State to prove a defendant killed intentionally,
without just cause or excuse.29 This definition does not obvi-
ously exclude a voluntary manslaughter conviction because a
sudden quarrel provocation is an extenuating circumstance that
mitigates, but does not justify or excuse, a killing.30
But first degree murder is a homicide committed with mal-
ice. In contrast, a “person commits manslaughter if he or she
kills another without malice . . . upon a sudden quarrel.”31 So
regardless of how our definitions of “malice” and “without
malice” have changed over the decades, the Legislature long
ago determined that first degree murder and voluntary man-
slaughter are mutually exclusive homicides. A defendant can-
not be guilty of murder if the defendant killed while provoked
by a legal provocation. We have implicitly and explicitly rec-
ognized that proof of a sudden quarrel manslaughter negates
the malice element of first degree murder.32
So obviously, in a first degree murder prosecution, the State
will not prove the offense of voluntary manslaughter.33 To do so
would disprove the murder charge. Because it is the defendant,
not that State, who presents this evidence, the Illinois Supreme
Court held almost 30 years ago that it is grave (plain) error to
instruct the jury in a murder prosecution that the State has the

27
See Neb. Rev. Stat. § 28-305 (Supp. 2015).
28
See § 28-303.
29
State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).
30
See Smith, supra note 4 (reaffirming Pettit, supra note 8).
31
§ 28-305(1); State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
32
See, Trice, supra note 3; Smith, supra note 4; Lyle, supra note 26; Pettit,
supra note 8.
33
See Lyle, supra note 26.
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burden to prove both murder and a manslaughter offense based
on a mitigating mental state.34 And we have specifically stated
that in a first degree murder prosecution, “[i]t is a question for
the trier of fact whether the defendant . . . has presented suf-
ficient evidence of provocation to cast a reasonable doubt on
the element of malice.”35
Because the State has no incentive to prove a sudden quarrel
manslaughter in a first degree murder prosecution and proof
of such provocation precludes a first degree murder convic-
tion, the defendant produces provocation evidence as a partial
affirmative defense.36 It does not justify or excuse the killing.
But because it precludes a murder conviction and lessens the
degree of homicide from murder to manslaughter,37 a legal
provocation operates as a partial excuse to a murder charge.38
And because the defense rests on considerations outside the
elements of the charged murder and negates a defendant’s
criminal liability for that crime even if the State could other-
wise prove those elements, it is an affirmative defense.39
If a defendant produces evidence sufficient to raise an
affirm­ative defense, our case law requires the State to dis-
prove that theory beyond a reasonable doubt.40 As discussed

34
See People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1
(1988).
35
Lyle, supra note 26, 258 Neb. at 271-72, 603 N.W.2d at 31 (emphasis
supplied).
36
See Cave, supra note 20. Accord, State v. Austin, 244 Conn. 226, 710 A.2d
732 (1998); People v. McVay, 170 Ill. App. 3d 443, 524 N.E.2d 635, 120
Ill. Dec. 605 (1988).
37
See Smith, supra note 1.
38
See, e.g., Mitchell N. Berman & Ian P. Farrell, Provocation Manslaughter
as Partial Justification and Partial Excuse, 52 Wm. & Mary L. Rev. 1027
(2011).
39
See, e.g., U.S. v. Davenport, 519 F.3d 940 (9th Cir. 2008). Accord
Patterson, supra note 19.
40
See, Burlison, supra note 4; State v. Kinser, 252 Neb. 600, 567 N.W.2d
287 (1997); State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992).
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next, when an affirmative defense negates an element of the
charged crime, federal courts have interpreted the Due Process
Clause to unquestionably demand that the State disprove
the defense.
U.S. Supreme Court Precedent
on Due P rocess R equirements
In three seminal cases in the 1970’s and 1980’s, the U.S.
Supreme Court considered whether the jury instructions in
murder prosecutions violated due process requirements. In
the first case, Mullaney v. Wilbur,41 the Maine Supreme Court
had interpreted its homicide statutes to mean that malice, as
an element of murder, was presumed when the State proved a
homicide was intentional and unlawful, unless the defendant
proved by a preponderance of the evidence that he had killed
under a sudden provocation. The trial court explained that
malice aforethought and sudden provocation were inconsistent
and that malice was presumed unless the defendant proved
that he killed in the heat of passion—thereby negating malice
aforethought. The U.S. Supreme Court held that this shifting of
the burden of proof on the critical fact in dispute violated due
process. By requiring the defendant to prove the critical fact in
dispute, Maine’s laws increased the likelihood of an erroneous
murder conviction:
Under this burden of proof a defendant can be given a life
sentence when the evidence indicates that it is as likely as
not that he deserves a significantly lesser sentence. This is
an intolerable result . . . . We therefore hold that the Due
Process Clause requires the prosecution to prove beyond
a reasonable doubt the absence of the heat of passion on
sudden provocation when the issue is properly presented
in a homicide case.42

41
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508
(1975).
42
Id., 421 U.S. at 703-04 (emphasis in original).
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But 2 years later, in Patterson v. New York,43 the Court
upheld the constitutionality of a New York statute that cre-
ated an affirmative defense—extreme emotional distress—to
a charge of second degree murder. If a defendant proved the
defense by a preponderance of the evidence, the second degree
murder charge was reduced to manslaughter. The only elements
that the State was required to prove for murder were the death,
the defendant’s intent to kill, and causation.
The Court distinguished Mullaney as addressing laws that
required the defendant to prove a fact that negated an element
of the murder charge.
[M]alice, in the sense of the absence of provocation, was
part of the definition of that crime. Yet malice, i.e., lack
of provocation, was presumed and could be rebutted by
the defendant only by proving by a preponderance of the
evidence that he acted with heat of passion upon sud-
den provocation.44
“Such shifting of the burden of persuasion with respect to a
fact which the State deems so important that it must be either
proved or presumed is impermissible under the Due Process
Clause.”45 In contrast, New York’s affirmative defense did
not violate due process because it “does not serve to nega-
tive any facts of the crime which the State is to prove in
order to convict of murder. It constitutes a separate issue on
which the defendant is required to carry the burden of persua-
sion . . . .”46
Finally, in Martin v. Ohio,47 the defendant had the burden
of proving by a preponderance of the evidence a self-defense
claim that overlapped and could tend to negate a component
of the murder charge that required the State to prove the

43
Patterson, supra note 19.
44
Id., 432 U.S. at 216.
45
Id., 432 U.S. at 215.
46
Id., 432 U.S. at 207 (emphasis supplied).
47
Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987).
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d­ efendant killed with prior calculation and design. The major-
ity concluded that the instructions did not unconstitutionally
shift the burden to the defendant to disprove an element of the
murder charge because the trial court instructed the jury to
consider the defense in determining guilt:
To find guilt, the jury had to be convinced that none of the
evidence, whether offered by the State or by [the defend­
ant] in connection with her plea of self-defense, raised a
reasonable doubt that [the defendant] had killed her hus-
band, that she had the specific purpose and intent to cause
his death, or that she had done so with prior calculation
and design. It was also told, however, that it could acquit
if it found by a preponderance of the evidence that [the
defendant] had not precipitated the confrontation, that she
had an honest belief that she was in imminent danger of
death or great bodily harm, and that she had satisfied any
duty to retreat or avoid danger. . . .
....
It would be quite different if the jury had been instructed
that self-defense evidence could not be considered in
determining whether there was a reasonable doubt about
the State’s case, i.e., that self-defense evidence must be
put aside for all purposes unless it satisfied the preponder-
ance standard. Such an instruction would relieve the State
of its burden and plainly run afoul of Winship’s mandate.
. . . The instructions in this case could be clearer in this
respect, but when read as a whole, we think they are
adequate to convey to the jury that all of the evidence,
including the evidence going to self-defense, must be con-
sidered in deciding whether there was a reasonable doubt
about the sufficiency of the State’s proof of the elements
of the crime.48
Justice Powell, writing for the four dissenting justices, con-
cluded Patterson shows that the Due Process Clause prohibits

48
Id., 480 U.S. at 233-34 (emphasis supplied), citing In re Winship, 397 U.S.
358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
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shifting the burden to a defendant to prove a defense that
negates an element of the crime and that the instructions in
Martin created an unacceptable risk the jury would lower the
State’s burden of proof:
The Court found that this burden shifting [in Patterson]
did not violate due process, largely because the affirma-
tive defense did “not serve to negative any facts of the
crime which the State is to prove in order to convict of
murder.” . . . The clear implication of this ruling is that
when an affirmative defense does negate an element of
the crime, the state may not shift the burden. . . .
The reason for treating a defense that negates an
element of the crime differently from other affirmative
defenses is plain. If the jury is told that the prosecution
has the burden of proving all the elements of a crime,
but then also is instructed that the defendant has the
burden of disproving one of those same elements, there
is a danger that the jurors will resolve the inconsistency
in a way that lessens the presumption of innocence. For
example, the jury might reasonably believe that by raising
the defense, the accused has assumed the ultimate burden
of proving that particular element. Or, it might reconcile
the instructions simply by balancing the evidence that
supports the prosecutor’s case against the evidence sup-
porting the affirmative defense, and conclude that the
state has satisfied its burden if the prosecution’s version
is more persuasive. In either case, the jury is given the
unmistakable but erroneous impression that the defendant
shares the risk of nonpersuasion as to a fact necessary
for conviction.49
The import of Martin is that due process does not require
the State to disprove an affirmative defense to a murder
charge that does not necessarily negate an element of the
crime, even if some facts that prove the defense would, if

49
Id., 480 U.S. at 237-38 (emphasis supplied) (Powell, J., dissenting;
Brennan, Marshall, and Blackmun, JJ., join).
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believed, tend to negate an element of the murder charge. But
in that circumstance, due process does prohibit the State from
precluding the jury’s consideration of a defense that overlaps
an essential element when determining guilt, because the evi-
dence could create a reasonable doubt regarding the proof of
that element.
More recently, the Court put to rest any argument that
Patterson had limited Mullaney’s holding to only those jury
instructions that presume an element of a murder charge. In
Smith v. U.S.,50 the Court adopted Justice Powell’s statement
in his Martin dissent that under Patterson, states may not shift
the burden to the defendant on an affirmative defense that
negates an element of the crime. In Smith,51 the Court relied on
that statement to explain when the government cannot consti-
tutionally put the burden of persuasion on a defendant to prove
an affirmative defense:
Allocating to a defendant the burden of proving
withdrawal [from a drug conspiracy] does not violate
the Due Process Clause. While the Government must
prove beyond a reasonable doubt “every fact neces-
sary to constitute the crime with which [the defendant]
is charged,”[52] . . . “[p]roof of the nonexistence of
all affirmative defenses has never been constitutionally
required[.]”[53] The State is foreclosed from shifting the
burden of proof to the defendant only “when an affirma­
tive defense does negate an element of the crime.”[54]
. . . Where instead it “excuse[s] conduct that would oth-
erwise be punishable,” but “does not controvert any of
the elements of the offense itself,” the Government has

50
Smith v. U.S., ___ U.S. ___, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013)
(emphasis in original).
51
Id., 133 S. Ct. at 719.
52
In re Winship, supra note 48, 397 U.S. at 364.
53
Patterson, supra note 19, 432 U.S. at 210.
54
Martin, supra note 47, 480 U.S. at 237 (Powell, J., dissenting).
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no constitutional duty to overcome the defense beyond a
reasonable doubt.[55]
Our acquittal-first step instruction does not comply with the
Court’s clear statement that states cannot shift the burden of
proof to a defendant on an affirmative defense that negates an
element of the crime. As previously explained, in Nebraska,
proof of a sudden quarrel provocation negates the deliberate,
premeditated, and malice elements of first degree murder.
Conversely, malice is a mens rea that does not exist if the
defendant killed as the result of a sudden quarrel provocation.
Yet, evidence of a sudden quarrel provocation will only be pro-
duced by a defendant in a murder prosecution because proving
that the defendant killed under a provocation negates the level
of culpability required for murder.
So the due process question is which party should bear
the burden of persuasion to prove or disprove an affirmative
defense that, if believed, negates elements of the charged
crime. Under Smith v. U.S., it cannot be the defendant. Lower
federal courts had previously agreed that Mullaney pre-
cludes shifting the burden of persuasion to a defendant on
such defenses.
Federal Courts of A ppeals’ Decisions
Nebraska’s homicide statutes are similar to the federal gov-
ernment’s homicide statutes. Like Nebraska’s manslaughter
statute, the federal manslaughter statute requires proof that the
defendant acted “without malice” and voluntary manslaughter
is unlawful killing upon a sudden quarrel or heat of passion.56
But the federal murder statute defines both first degree and
second degree murder to include “malice aforethought” as an
element.57 Even before the U.S. Supreme Court issued Smith
v. U.S. in 2013, federal appellate courts had applied Mullaney

55
Dixon v. United States, 548 U.S. 1, 6, 126 S. Ct. 2437, 165 L. Ed. 2d 299
(2006).
56
See 18 U.S.C. § 1112(a) (2012).
57
See 18 U.S.C. § 1111(a) (2012).
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to invalidate jury instructions that placed the burden of per-
suasion on a defendant to prove a provocation that does noth-
ing more than rebut the malice element of murder.
For example, in United States v. Lofton,58 the Tenth Circuit
held that in a federal murder prosecution with a heat of passion
defense, Mullaney required the trial court to put the defendant’s
theory squarely before the jury and inform the jury that the
government had the burden to show its absence. The court con-
cluded that Patterson did not apply because under New York
law, malice was not an element of the second degree murder
charge. In contrast, malice was an element of murder under
federal law, and a heat of passion defense directly negated
malice. But in Lofton, the only part of the step instruction
that informed the jury of the heat of passion defense was the
manslaughter instruction. The requirement that a court instruct
the jury on the government’s burden to disprove the heat of
passion defense was not satisfied by the instruction that the
government was required to prove heat of passion to secure a
manslaughter conviction.
In Lofton, the Tenth Circuit explicitly rejected the govern-
ment’s argument that “the court implicitly defined malice and
heat of passion as mutually exclusive and that the structure of
the charge forced the jury to find the presence of malice, and
thus the absence of heat of passion, in order to find murder”:
[T]he charge did not specifically distinguish the two as
inconsistent mental states or inform the jury that finding
one necessarily precluded finding the other. Moreover,
while the court distinguished first-degree from second-
degree murder on the basis of premeditation, it did not
differentiate second-degree murder from manslaughter
on the basis of the distinction between malice and heat
of passion.
Indeed, the very structure of the charge precluded the
jury from considering the effect of [the] heat of passion

58
United States v. Lofton, 776 F.2d 918 (10th Cir. 1985).
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defense on the murder count. Instruction 13 advised the
jury that if it found the defendant not guilty of first-
degree murder, it must then consider if she was guilty
of second-degree murder; if it found that she was not
guilty of second-degree murder, it must then determine
if she was guilty of manslaughter. . . . Thus, the jury was
instructed to consider manslaughter only if it found [the
defendant] not guilty of murder. The verdict form fol-
lowed this same format. Although the charge instructed
the jury at least seven times of the Government’s burden
of proof beyond a reasonable doubt of each element of the
crime, and notwithstanding the direction that the instruc-
tions must be considered as a whole, this was insufficient
to inform the jury that the Government must prove the
absence of heat of passion beyond a reasonable doubt.
A clear and unambiguous instruction to this effect is the
constitutional minimum required by Mullaney.59
Two years later, the Ninth Circuit agreed with the Tenth
Circuit, reasoning: “We construe Mullaney to require jury
instructions for murder to state that the government bears the
burden of proving beyond a reasonable doubt the absence of
heat of passion or sudden quarrel where that defense is raised.”60
The Fifth Circuit, however, initially disagreed with the
Ninth and Tenth Circuits. In U.S. v. Molina-Uribe,61 the
court acknowledged that the “part of Mullaney which sur-
vives Patterson [is] the rule that a State may not place
upon the defend­ ant the burden of persuasion on an issue
that, if e­stablished, would necessarily negate an element of

59
Id. at 921, 922. Accord U.S. v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005).
60
U.S. v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987). Accord U.S. v. Bushyhead,
270 F.3d 905 (9th Cir. 2001). See, also, United States v. Jackson, 368 F.3d
59 (2d Cir. 2004); 2A Kevin F. O’Malley et al., Federal Jury Practice and
Instructions § 45:03, notes (6th ed. 2009 & Supp. 2015); 2 Leonard B.
Sand et al., Modern Federal Jury Instructions, No. 41-4 (2005).
61
U.S. v. Molina-Uribe, 853 F.2d 1193 (5th Cir. 1988), overruled on other
grounds, U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991).
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the crime.”62 But like this court in State v. Morgan,63 the
Fifth Circuit stated that the instructions did not define malice
aforethought in terms of an absence of heat of passion. It con-
cluded that the instructions did not violate Mullaney because
“malice is neither presumed nor required to be disproved by
the defendant.”64 It further reasoned that because the govern-
ment had the burden of proving heat of passion, (presumably,
in a lesser-included instruction for manslaughter), no burden
was placed on the defendant to prove that the murder was
committed in the heat of passion. Finally, it reasoned that in
determining whether the victim was killed with premeditation
and malice aforethought, the jury was instructed to “‘consider
all the facts and circumstances preceding, surrounding and
following the killing . . . which tend to shed light upon the
condition of the mind and heart of the accused before and at
the time of the deed.’”65
The Fifth Circuit has not overruled its holding in Molina-
Uribe. But the year after it issued this opinion, it reached the
opposite conclusion in U.S. v. Browner.66 There, the court
acknowledged that a heat of passion defense negates the mal-
ice element in the federal homicide statute and that this rela-
tionship requires the government to disprove an adequately
raised provocation:
[T]he federal statute simply declares the language of the
common-law offense, and so when the defendant, without
legal justification but actuated by a [heat of passion] kills
intentionally (or with one of the other mental states that
constitutes malice), the killing is nevertheless deemed to
be in the absence of malice under the federal statute. . . .

62
Id. at 1204 n.33, quoting Holloway v. McElroy, 632 F.2d 605 (5th Cir.
1980).
63
Morgan, supra note 22.
64
Molina-Uribe, supra note 61, 853 F.2d at 1204.
65
Id. at 1205.
66
U.S. v. Browner, 889 F.2d 549 (5th Cir. 1989).
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The malice that would otherwise attach is negated by the
fact that the intentional killing occurred in the heat of
passion in response to a sufficient provocation. . . . Since
malice is an element of murder, no murder can occur
when a sufficient provocation induces the requisite heat
of passion. Thus, the malice element of the traditional
offense of murder implicitly forces prosecutors to dis-
prove the existence of adequate provocation when the
evidence suggests that it may be present.67
The Sixth Circuit has applied the same reasoning to state
court jury instructions. It held that regardless of whether a state
court has characterized a manslaughter statute as an affirmative
defense, the constitutional inquiry is whether a mitigating cir-
cumstance in the manslaughter statute, like a sudden passion,
negates an element of the murder charge. It reasoned that under
Mullaney, a state may not constitutionally require a defendant
to negate an element of the charged crime, even if this proof is
designated an affirmative defense.68
It is true that in federal habeas actions, the Ninth and Tenth
Circuits have been lenient in reviewing challenges to state
court jury instructions. But in those cases, the courts’ reviews
were limited by the federal habeas statute or the jury instruc-
tions under review at least required the jury to consider the
provocation defense in determining guilt of murder.
For example, the Ninth Circuit rejected a challenge to a
Nevada state court’s murder and manslaughter step instruction
that specifically defined malice “‘as used in the definition of
Murder, [to mean] the intentional doing of a wrongful act with-
out legal cause or excuse or what the law considers adequate
provocation.’”69 “Thus, to find [the defendant] guilty of first

67
Id. at 552 (emphasis in original). Accord Lizama v. U.S. Parole Com’n,
245 F.3d 503 (5th Cir. 2001).
68
See Rhodes v. Brigano, 91 F.3d 803 (6th Cir. 1996).
69
Dunckhurst v. Deeds, 859 F.2d 110, 112 (9th Cir. 1988) (emphasis in
original).
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degree murder, the jury necessarily had to find that the State
proved beyond a reasonable doubt that [he] killed [the victim]
with malice aforethought, i.e., without adequate provocation.”70
Notably, while the Ninth Circuit concluded that this definition
of malice was sufficient to convey the prosecution’s burden of
proof, the Nevada Supreme Court has since explicitly held that
the State has the burden to prove a defendant did not act in the
heat of passion.71
The Tenth Circuit similarly upheld an Oklahoma state
court’s jury instruction that did not require the state to prove
the absence of heat of passion, which evidence was produced
as an affirmative defense. But the instructions did inform the
jurors that “‘[m]alice and heat of passion cannot co-exist’”
and that they should consider all the circumstances in deter-
mining whether the defendant had acted with malice or in the
heat of passion.72 The court noted the instruction was given
only because it was a lesser-included offense, not because
the defend­ant had squarely raised the defense. In that circum-
stance, the instructions were adequate.
In 2006, in Bland v. Sirmons,73 the Tenth Circuit rejected
another federal habeas challenge to Oklahoma’s jury instruc-
tions, despite concluding that the claim was procedurally
barred. As in the earlier case, the jury instructions did not
require the prosecution to prove that the defendant did not act
in the heat of passion. In dicta, the court stated that Patterson
had limited Mullaney “to situations where a fact is presumed or
implied against a defendant.”74 The court nonetheless acknowl-
edged that if its decision “in Lofton were controlling, [the

70
Id. at 113.
71
See Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005).
72
See Davis v. Maynard, 869 F.2d 1401, 1405 (10th Cir. 1989), vacated on
other grounds, Saffle v. Davis, 494 U.S. 1050, 110 S. Ct. 1516, 108 L. Ed.
2d 756 (1990).
73
Bland v. Sirmons, 459 F.3d 999, 1014 (10th Cir. 2006).
74
Id. at 1013.
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petitioner] might well be entitled to relief.”75 But it explained
that Lofton could not support a habeas challenge to the instruc-
tions under the federal Antiterrorism and Effective Death
Penalty Act of 1996.
Congress had passed that act a decade before the Tenth
Circuit decided Bland. Since its enactment, a federal court
cannot grant habeas relief unless a state court decision “‘was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.’”76 The “decisions of lower federal courts
applying Supreme Court precedent are not determinative.”77
The Tenth Circuit concluded that because the Fifth Circuit
had disagreed with its decision in Lofton, “the lower federal
courts have in fact divided as to the proper scope of Mullaney
after Patterson.”78 It concluded that the state court ruling
upholding the instruction was not an unreasonable applica-
tion of “Mullaney, as the Supreme Court construed that rule
in Patterson.”79
As explained, however, in 2013, the U.S. Supreme Court
clarified the reach of Mullaney. Under Smith v. U.S., the State
is foreclosed from shifting the burden of proof to a defend­
ant on an affirmative defense that negates an element of the
crime.80 Smith was a unanimous decision, and its explanation
of due process requirements shows that Patterson did not limit
Mullaney “to situations where a fact is presumed or implied
against a defendant.”81 Under Smith, Mullaney’s central tenet
still applies: It is intolerable for the defendant to bear the risk

75
Id. at 1014.
76
Id. (emphasis in original), citing 28 U.S.C. § 2254(d)(1) (2012).
77
Id.
78
Id.
79
Id.
80
See Smith, supra note 50 and text quoted at note 51.
81
Bland, supra note 73, 459 F.3d at 1013.
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of error on the critical fact in dispute distinguishing murder
from manslaughter.
Moreover, in 2013, the Seventh Circuit specifically relied
on Smith v. U.S. to explain why the government has the bur-
den to disprove an adequate provocation claim in a federal
murder prosecution.82 In that decision, the court stated that a
provocation defense is like an entrapment defense because, if
believed, it negates a defendant’s culpability. So a provocation
defense simply “puts the government to its proof” and requires
it to prove the defendant did not kill in the heat of passion.83
Citing Smith, the court explained that a provocation defense
is unlike an affirmative defense that does not have a mutually
exclusive relationship with an element of the crime: “To prove
that a defendant has killed in the heat of passion is unlike
proof that the statute of limitations has run, because proof
that prosecution is time-barred does not negate any element of
the crime.”84
The Seventh Circuit’s decision illustrates that since the U.S.
Supreme Court issued Smith v. U.S., there is clearly established
federal precedent by the Supreme Court on the due proc­
ess requirement that the prosecution disprove an affirmative
defense that negates an element of the charged offense.
Of course, the due process requirement stated in Smith v.
U.S. applies only if an affirmative defense negates an element
of the charged crime. So the majority, by acknowledging that
Smith applies here, agrees that a sudden quarrel provocation
is an affirmative defense that the State must disprove because
it negates elements of the first degree murder charge. But it
dodges Smith’s requirements. Instead, it relies on precedent
that is outdated or misconstrued to conclude that the jury
understood the State had the burden to prove Hinrichsen did
not kill as the result of a sudden provocation and that the

82
See U.S. v. Delaney, 717 F.3d 553 (7th Cir. 2013).
83
Id. at 559.
84
Id., citing Smith, supra note 50.
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State met its burden. And its prescribed placebo for future
first degree murder prosecutions will not cure the due process
problem nor bring the instruction in compliance with our deci-
sion in State v. Smith.85
MAJORITY’S SUGGESTED INSTRUCTION
IS INADEQUATE
Despite concluding that the acquittal-first step instruction
for first degree murder complies with the due process require-
ments, the majority suggests the following instruction for
future cases:
In future cases, . . . it would be a better practice for
courts, in first degree murder cases in which evidence of
provocation has been adduced by the defendant, to clarify
the definition of deliberation. We encourage courts in
such cases to define “deliberate” to mean “not suddenly
or rashly, but doing an act after first considering the prob-
able consequences. An act is not deliberate if it is the
result of sudden quarrel provocation.”
But why should such an instruction be necessary if under
our current instructions, jurors already consider sudden quar-
rel evidence and conclude that the State disproved the defense
when they convict a defendant of first degree murder? If
jurors actually understood that the deliberation element and a
provocation defense are mutually exclusive and that by prov-
ing the deliberation element, the State necessarily disproves a
provocation defense, there should be no need to inform them
that an act is not deliberate if it is the result of a sudden quar-
rel provocation. So the majority’s suggestion that in the future,
courts give a mutually exclusive instruction in the definition
of deliberation is an implicit acknowledgment that a jury cur-
rently (1) does not consider sudden quarrel evidence in deter-
mining a defendant’s guilt of first degree murder and (2) does
not understand that by proving the deliberation element, the
State disproves a provocation defense.

85
Smith, supra note 1.
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Of course, having jurors in the future consider evidence of
a sudden quarrel in deciding whether a defendant deliberated
a homicide is an improvement over our current instructions.
And if the majority were requiring courts in the future to con-
sider evidence of the provocation defense in deciding guilt of
murder, that instruction would partially bring our instruction
in compliance with Martin v. Ohio.86 As explained, under that
case, a State cannot preclude a jury from considering evidence
of an affirmative defense that overlaps and tends to negate an
element of the charged crime.
But only instructing a jury that an act is not deliberate if
it is the result of a sudden quarrel provocation would give
jurors the impression that a provocation defense is irrelevant
to the elements of premeditation and malice. And proof of
a sudden quarrel provocation also negates the elements of
premeditation and malice. So I believe a better option under
§ 29-2027 is to instruct the jury that (1) the jury must con-
sider evidence of a sudden quarrel provocation in deciding
whether the State has proved the elements of first degree
murder; and (2) it cannot convict a defendant of murder if it
finds that evidence of a sudden quarrel provocation creates a
reasonable doubt about the defendant’s guilt. This instruction
would better explain a jury’s options under § 29-2027, as
State v. Smith requires.
But even if the suggested instruction were adequate, the
majority knows well that suggested instructions are toothless,
as our 2009 decision in State v. Goodwin87 illustrated. There,
we found no constitutional infirmity or error in the acquittal-
first step instruction in a first degree murder case. Nonetheless,
we encouraged courts in future cases to give an instruction
under NJI2d Crim. 3.1, which we described as providing a
clearer and more concise explanation of the process by which
the jury is to consider lesser-included offenses. But in 2012,

86
See Martin, supra note 47.
87
State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
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an appeal arose in which the court did not give the instruction.
We affirmed because we had held in Goodwin that the step
instruction was constitutional.88
Additionally, nothing in our current step instruction or the
suggested instruction for first degree murder complies with the
mandate in State v. Smith: i.e., “a jury must be given the option
of convicting [the defendant] of either second degree murder
or voluntary manslaughter depending upon its resolution of the
fact issue regarding provocation.”89
But the more important point is that the majority’s legal
fiction is false. The acquittal-first step instruction blocks the
jury’s consideration of the provocation defense, and the instruc-
tions do not explain the defense’s mutually exclusive relation-
ship with the murder elements. Moreover, even if the jury
were instructed to consider the mutually exclusive relationship
between a provocation defense and each element of murder
negated by that defense, this correction would not resolve the
burden of proof problem. And the cases relied on by the major-
ity do not support its conclusion that a court is not required to
instruct a jury that the State has the burden to disprove a sud-
den quarrel provocation.
CASES CITED BY THE MAJORITY
DO NOT SUPPORT ITS HOLDING
Federal Court Decisions
As stated, the majority recognizes that Smith v. U.S. applies
here because it prohibits states from shifting the burden of
proof to the defendant for an affirmative defense that negates
an element of the crime. Nonetheless, the majority erroneously
relies on the following statement in Patterson to conclude that
“due process is met as long as the state has to prove beyond
a reasonable doubt all of those enumerated elements” of first
degree murder:

88
See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
89
Smith, supra note 1, 284 Neb. at 656, 822 N.W.2d at 417.
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Traditionally, due process has required that only the most
basic procedural safeguards be observed; more subtle bal-
ancing of society’s interests against those of the accused
ha[s] been left to the legislative branch. We therefore will
not disturb the balance struck in previous cases hold-
ing that the Due Process Clause requires the prosecu-
tion to prove beyond a reasonable doubt all of the ele-
ments included in the definition of the offense of which
the defendant is charged. Proof of the nonexistence of
all affirmative defenses has never been constitutionally
required; and we perceive no reason to fashion such a
rule in this case and apply it to the statutory defense at
issue here.90
Taken out of context, this statement appears to support
the majority’s conclusion. But the only reason that the U.S.
Supreme Court saw no reason to require New York to prove
a defendant did not kill as the result of an extreme emo-
tional distress was because it had already determined that
this affirmative defense “d[id] not serve to negative any facts
of the crime which the State is to prove in order to convict
of murder.”91
But the same is not true here. Unlike the affirmative defense
in Patterson, this court has acknowledged that an adequate
provocation must negate three elements of first degree murder:
premeditation, deliberation, and malice. Moreover, in distin-
guishing Mullaney, the Court in Patterson specifically stated
that shifting “the burden of persuasion with respect to a fact
which the State deems so important that it must be either
proved or presumed is impermissible under the Due Process
Clause.”92 It may have been reasonable before Smith v. U.S.93
to interpret Patterson as nonetheless limiting Mullaney to

90
Patterson, supra note 19, 432 U.S. at 210.
91
Id., 432 U.S. at 207.
92
Id., 432 U.S. at 215 (emphasis supplied).
93
Smith, supra note 50.
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those laws that presumed the element of malice upon proof of
an intentional and unlawful homicide. But the Court’s deci-
sion in Smith refutes that interpretation of Patterson. There,
the Court adopted Justice Powell’s interpretation of Patterson:
“The clear implication of this ruling [in Patterson] is that when
an affirm­ative defense does negate an element of the crime,
the state may not shift the burden.”94 So the majority incor-
rectly reduces Patterson to requiring only that the State prove
the elements of the charged crime beyond a reasonable doubt.
And its acknowledgment that the Supreme Court’s decision in
Smith v. U.S. applies here directly conflicts with its reliance on
its incorrect interpretation of Patterson.
The majority similarly takes false comfort in the Ninth
Circuit’s decision upholding a Utah state court’s jury instruc-
tions on murder and provocation. It misconstrues the holding
by failing to mention the significant fact that the Utah instruc-
tion at least defined malice to mean “‘the intentional doing
of a wrongful act without legal cause or excuse or what the
law considers adequate provocation.’”95 As previously stated,
the Ninth Circuit concluded that this instruction required the
jury to find that the defendant did not kill because of a sudden
provocation in order to find him guilty of first degree murder.
Leaving aside whether this instruction would be adequate
under Smith v. U.S., our jury instruction does not define
“malice” to exclude a sudden quarrel provocation. Nothing in
the court’s acquittal-first step instruction allowed the jury to
consider Hinrichsen’s provocation defense in determining his
guilt of first degree murder. So unlike Utah’s jury instruction,
the acquittal-first step instruction here violated both Martin v.
Ohio96 and Mullaney v. Wilbur.97

94
Martin, supra note 47, 480 U.S. at 237 (emphasis in original) (Powell, J.,
dissenting), quoted in Smith, supra note 50.
95
See Dunckhurst, supra note 69, 859 F.2d at 112 (emphasis in original).
96
Martin, supra note 47.
97
Mullaney, supra note 41.
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Similarly, the Fifth Circuit’s decision in Molina-Uribe98 is
a thin reed for the majority to hold onto in a constitutional
analysis. As explained, a year after it held that the government
need not prove the absence of a heat of passion, it specifically
recognized that because a heat of passion defense negates
the malice element in the federal homicide statute, the gov-
ernment must prove the defendant did not kill in the heat of
passion when the defense is raised.99 Additionally, an integral
part of the Fifth Circuit’s reasoning was that in determining
whether the victim was killed with premeditation and malice
aforethought, the jury was instructed to “‘consider all the facts
and circumstances preceding, surrounding and following the
killing . . . which tend to shed light upon the condition of
the mind and heart of the accused before and at the time of
the deed.’”100 That instruction is not given in Nebraska. So
the Fifth Circuit’s decision fails to validate our acquittal-first
step instruction.
The majority also erroneously relies on the Fourth Circuit’s
decision in Guthrie v. Warden, Maryland Penitentiary.101
There, malice, as an element of second degree murder, was
presumed when the State proved the defendant killed willfully
and intentionally, and without legal excuse or justification,
unless the defendant proved that he killed because of a sud-
den provocation. The Fourth Circuit held that these instruc-
tions were a clear violation of Mullaney. But because the
defendant was convicted of first degree murder, it held that
the violation was harmless error: i.e., by proving the murder
was deliberate and premeditated, the State had necessarily
“‘disproved manslaughter beyond a reasonable doubt.’”102 The
court reasoned that the defendant’s heat of passion defense

98
Molina-Uribe, supra note 61.
99
See Browner, supra note 66.
100
Molina-Uribe, supra note 61, 853 F.2d at 1205.
101
Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir. 1982).
102
Id. at 823.
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was relevant only to the distinction between manslaughter and
second degree murder and did not “touch on” the elements of
first degree murder.103
But this harmless error analysis does not support the major-
ity’s conclusion that our acquittal-first step instruction com-
plies with due process requirements. The Fourth Circuit held
that the instruction was error. And however questionable its
reasoning was in determining that the error was harmless,
the Fourth Circuit reasoned that the provocation defense did
not negate any element of the first degree murder charge.
But this court has acknowledged that in Nebraska, proof of
a sudden quarrel provocation negates three elements of first
degree murder. And the majority explicitly acknowledges here
that a provocation defense negates the elements of malice
and deliberation.
More important, the Fifth Circuit’s reasoning in Molina-
Uribe and the Fourth Circuit’s reasoning in Guthrie have
been effectively abrogated by Smith v. U.S. Both courts
explicitly or implicitly reasoned that the government’s proof
of the murder elements negated the provocation defense.
It is true that a malice element in a murder charge and a
provocation defense under a manslaughter statute have a
mutually exclusive relationship. They cannot both exist. But
by foreclosing states from shifting the burden of proof to
the defendant “‘when an affirmative defense does negate an
element of the crime,’”104 the Supreme Court clearly meant
that for such defenses, the prosecution must “overcome the
defense beyond a reasonable doubt.”105 In re Winship106 has
required states to prove the elements of a crime beyond a rea-
sonable doubt since 1970. And the principle that states may
not shift the burden to the defend­ant to prove an affirmative

103
See id.
104
Smith, supra note 50, 133 S. Ct. at 719 (emphasis in original).
105
See id.
106
In re Winship, supra note 48.
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defense that negates an element of the crime is an extension
of In re Winship—not synonymous with it. The Court clearly
meant that a state must disprove any additional consideration
in an affirmative defense that negates an element of the
charged crime.
The majority avoids this requirement by engaging in a
formalistic interpretation of the Court’s mandate that states
cannot shift the burden of proof. It reasons that our jury
instruction complies with due process because it does not
specifically instruct the jury that the defendant has the bur-
den to disprove any element of the murder charge. But just
because our jury instruction does not explicitly inform the
jury that the defendant bears this burden does not make it
constitutional. The defendant, not the State, produces the
provocation evidence, and a provocation is a circumstance
that exists outside of the listed elements that the State must
prove. As noted, this court has stated that “[i]t is a question
for the trier of fact whether the defendant . . . has presented
sufficient evidence of provocation to cast a reasonable doubt
on the element of malice.”107 And like this court, a jury will
reasonably conclude that the defendant has the burden to
negate the elements of first degree murder unless it is spe-
cifically informed that the State has the burden to disprove
the defense.
Contrary to the majority’s reasoning, it is because the ele-
ments and affirmative defense have a mutually exclusive rela-
tionship that the State must disprove a provocation defense.
Without this burden of proof instruction, there is a danger
that the jurors will resolve the inconsistency in a way that
lessens the presumption of innocence.108 That is, even when a
jury is expressly allowed to consider any evidence of a sud-
den provocation, a jury could determine that a defendant had

107
Lyle, supra note 26, 258 Neb. at 271-72, 603 N.W.2d at 31 (emphasis
supplied).
108
See Martin, supra note 47 (Powell, J., dissenting).
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failed to negate the elements of malice, deliberation, and pre-
meditation, instead of determining that the State proved them
beyond a reasonable doubt.
This is the reasoning that the U.S. Supreme Court implicitly
agreed with in Smith v. U.S. when it adopted Justice Powell’s
statement that a state must disprove a defense that negates an
element of the crime. I cannot reconcile the Smith Court’s rea-
soning with the majority’s conclusion that our instruction com-
plies with due process because proof of the murder elements
necessarily negates a sudden quarrel defense.

State Courts Cited By the M ajority
R equire the State to Disprove
a P rovocation Defense
State court decisions, of course, are not determinative of
what the federal Due Process Clause requires when they con-
flict with the U.S. Supreme Court’s precedent. I discuss these
cases only to demonstrate that the majority’s purported support
is not support at all. To the contrary, the jury instructions in
other jurisdictions only emphasize this court’s increasing isola-
tion in continuing to uphold our acquittal-first step instructions
in first degree murder cases.
The majority discusses a Minnesota case and a California
case for support that a court need not explicitly instruct the
jury that the State must prove the absence of a heat of passion
defense if the instructions, viewed as a whole, are sufficient
to convey the State’s burden of proof. Neither case supports
its holding.
The California case is distinguishable because the court
was dealing with a different issue. In California, malice afore-
thought is an element of both first degree murder and second
degree murder. But first degree murder requires additional
proof that the defendant deliberated and premeditated the mur-
der. A provocation that subjectively precludes a person from
deliberating and premeditating a murder negates those ele-
ments and reduces a homicide from first degree to second
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degree murder. In contrast, a provocation that would cause
an objectively reasonable person to react with deadly pas-
sion negates the element of malice and reduces a murder to
voluntary manslaughter.109 Since at least 2000, the California
Supreme Court has required the State to prove the absence of a
provocation when the issue is properly raised.110
The California Court of Appeals did not decide People v.
Hernandez,111 the case the majority relies on, until 2010. An
instruction on the State’s burden to disprove the provocation
was not at issue in Hernandez. The trial court presumably fol-
lowed the California Supreme Court’s earlier mandate. The
trial court also instructed the jury that a provocation may
reduce a murder from first degree to second degree and may
reduce a murder to manslaughter. The issue in Hernandez was
whether the defendant was entitled to a more specific instruc-
tion on how the jury should consider a provocation, assuming
it found that one existed, in determining the defendant’s guilt
of second degree murder or manslaughter. The California Court
of Appeals concluded that a trial court is not required to give
the more specific instruction unless it is requested—which
the defendant did not do. The court further concluded that the
instructions, read as a whole, were adequate to ensure that the
jury understood the claimed provocation was also relevant to
negating premeditation and deliberation. It noted that the trial
court had separately instructed the jury that a decision to kill
which is made rashly, impulsively, or without careful consider-
ation is not deliberate and premeditated.
Hernandez illustrates that California law is more lenient
on the effect of a provocation and that its jury instructions
are more explicit than Nebraska’s on the relationship of a

109
See People v. Hernandez, 183 Cal. App. 4th 1327, 107 Cal. Rptr. 3d 915
(2010).
110
See People v. Rios, 23 Cal. 4th 450, 2 P.3d 1066, 97 Cal. Rptr. 2d 512
(2000).
111
Hernandez, supra note 109.
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provocation to the elements of first degree murder. The instruc-
tions here did not explain the mutually exclusive relationship
between a provocation and any element of murder. But more
to the point, Hernandez did not hold that a court need not
instruct a jury on the State’s burden to prove the absence of a
provocation when the issue is raised. The court simply was not
addressing that issue.
The Minnesota case that the majority cites, State v.
Auchampach,112 is distinguishable for a different reason.
Minnesota’s homicide statutes are significantly different than
Nebraska’s. Most important, the first degree murder statute
does not have a malice element. Instead, it sets out seven acts
that constitute the crime. The first listed act is intentionally
causing the death of another with premeditation; the other
acts are causing the death of another under specified circum­
stances.113 Additionally, the voluntary manslaughter statute
does not have a “without malice” element.114
The defendant in Auchampach was charged with premedi-
tated murder. The trial court instructed the jury that under
Minnesota law, a defendant is guilty of manslaughter and not
murder if the defendant killed in the heat of passion. It fur-
ther instructed that if the jurors concluded the defendant had
committed a crime but was in doubt about which crime, they
could only find him guilty of manslaughter. Finally, the court
instructed the jury that an “unconsidered or rash impulse, even
though it includes an intent to kill, is not premeditated.”115 But
the court refused to instruct the jury that the prosecution had
the burden to prove the absence of a provocation.
On appeal, the Minnesota Supreme Court concluded that the
State was not constitutionally required to disprove a provo-
cation because the absence of a heat of passion was not

112
State v. Auchampach, 540 N.W.2d 808 (Minn. 1995).
113
See Minn. Stat. § 609.185 (2014).
114
See Minn. Stat. § 609.20(1) (2014).
115
Auchampach, supra note 112, 540 N.W.2d at 818.
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an element of premeditated murder. It nonetheless held that
in future cases, a court must explicitly instruct a jury that
the prosecution has the burden to prove the absence of an
adequately raised provocation. And it concluded that the trial
court’s instructions had been adequate to convey the prosecu-
tion’s burden to disprove the provocation.
But because of the difference in Minnesota’s murder stat-
ute, Auchampach is not persuasive authority for jury instruc-
tions under our homicide statutes. The court had no reason to
consider whether a provocation claim would negate a malice
element of murder. Neither malice nor its converse exists in
Minnesota’s homicide statutes. It is true that the jury instruc-
tions indicated that a provocation defense negated the premedi-
tated element of murder under Minnesota’s statutes. But the
important point here is that the court corrected its instructions
to explicitly inform juries that the State must prove the absence
of a provocation. And the only reason for explicitly requiring
this instruction is to clarify to a jury that the State bears the
risk of error on the critical fact in dispute (provocation) that
distinguishes murder from manslaughter.
In short, like the federal cases that the majority cites, the
state cases it cites are distinguishable. They are either not
dealing with homicide statutes that retain the common-law
concepts of “malice” and “without malice,” or the instruc-
tions that were given at least required the jury to consider
that an element of the crime and a provocation defense could
not coexist.
The lack of supporting cases in the majority opinion is
not surprising. Even when the U.S. Supreme Court decided
Mullaney in 1975, the large majority of states already required
“the prosecution to prove the absence of the heat of passion
on sudden provocation beyond a reasonable doubt.”116 Since
Mullaney was issued, other courts have reached the same

116
Mullaney, supra note 41, 421 U.S. at 696, citing Wayne R. LaFave &
Austin W. Scott, Jr., Handbook on Criminal Law 539-540 (1972).
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conclusion.117 And many state legislatures have abandoned the
common-law concept of malice,118 perhaps, in part, because of
the burden of proof problems created by this element.
But none of the cases cited by the majority, state or federal,
upheld an acquittal-first step instruction that precluded the
jury from considering the mitigating circumstance of a sudden
provocation in determining a defendant’s guilt of murder.
SUMMATION
Despite concluding that Nebraska’s acquittal-first step
instruction does not offend due process, the majority could, of
course, require an explicit instruction in future cases that the
State has the burden to prove the defendant did not kill as the
result of a sudden quarrel provocation. The majority claims
that our instruction implicitly requires the State to disprove a
provocation defense. So it could follow the Minnesota Supreme
Court’s lead, and make this burden explicit to ensure that the
jury understands that the State bears the risk of nonpersuasion
on the issue of provocation.
Alternatively, it could have, and should have, extended State
v. Smith119 to first degree murder prosecutions. Under Smith,
§ 29-2027 is a procedural rule for murder prosecutions that
requires a jury instruction to clarify the jury’s options of con-
viction, depending on its resolution of a provocation defense.
Instead, the majority clings to a legal fiction that our acquittal-
first step instruction poses no due process problem. It reaches
this conclusion despite this court’s requirement that a sudden
quarrel provocation negate the deliberate, premeditated, and
malice elements of first degree murder.

117
See, e.g., Rios, supra note 110; Reddick, supra note 34; Commonwealth v.
Nieves, 394 Mass. 355, 476 N.E.2d 179 (1985); Auchampach, supra note
112; Crawford, supra note 71.
118
See, e.g., Patterson, supra note 19; Ala. Code § 13A-6-2, commentary
(2006); Ky. Rev. Stat. Ann. § 507.020, commentary (West 2006); La. Stat.
Ann. § 14:30, reporter’s comment (2007); Minn. Stat. § 609.185 (2014).
119
Smith, supra note 1.
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Although the majority acknowledges that the U.S. Supreme
Court’s decision in Smith v. U.S.120 applies here, it interprets
the decision so that it is meaningless. But Smith clarified
that the Due Process Clause requires the State to overcome a
provocation defense because it negates three elements of first
degree murder. I believe that the majority’s interpretation is
wrong. Because of the recent changes in our own case law and
the U.S. Supreme Court’s recent clarification of due process
requirements, I can no longer agree that our instruction com-
plies with due process. I dissent.
Miller-Lerman, J., joins in this dissent.

120
Smith, supra note 50.