dissenting.
I respectfully dissent. Eggers was convicted of second degree murder in connection with the death of a 3-year-old child. The evidence showed that the child died as the result of severe blows to the head and that there were marks on the walls in the corner of the dining room which indicated that something had been flailed against the walls. Eggers admitted he placed the child in a bathtub filled with water to make it look as though the child had drowned.
In denying Eggers’ request for postconviction relief, the district court concluded that there was no denial or infringement on Eggers’ rights which would render the judgment void or voidable under the Nebraska or U.S. Constitutions and that Eggers’ counsel was not ineffective, but met the standard of an attorney with ordinary training and skill in criminal law. I agree with the district court’s judgment. At no time prior to State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), had this court held that a defendant received ineffective assistance of counsel because counsel failed to object to a jury instruction which did not include malice as an element of second degree murder. In my opinion, malice is not an element of second degree murder, see State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), and the trial court properly instructed the jury on the elements of the crime.
In granting postconviction relief to Eggers, the majority refers to State v. Williams, ante p. 931, 531 N.W.2d 222 (1995). In Williams, the majority held that the failure to include the element of malice in the jury instruction on second degree murder constitutes plain error and that the failure of defense counsel to object to an instruction which omits a material element of the crime charged demonstrates ineffective assistance of counsel.
To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient and (2) such deficient performance prejudiced the defense, that is, a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have *993been different. State v. Clausen, ante p. 309, 527 N.W.2d 609 (1995). Eggers cannot establish that a reasonable probability exists that the result of his trial would have been different had the jury instructions contained the element of malice.
A criminal defendant seeking postconviction relief has the burden of alleging and proving that the claimed error is prejudicial. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994). In my opinion, Eggers has not proven that the omission of the element of malice from the jury instructions was prejudicial, and the majority fails to explain how Eggers was prejudiced. Malice is defined as the intentional doing of an unlawful act without just cause or excuse. See State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994). Eggers could not have offered any excuse for his actions which resulted in the death of a 3-year-old child other than insanity, which he did not plead.
“ ‘[I]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.’ ” State v. Timmerman, 240 Neb. 74, 89, 480 N.W.2d 411, 420 (1992). See, also, Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). There has been no showing of prejudice to Eggers and clearly no showing that the result of the trial would have been different if the jury instructions had included the element of malice. In my opinion, Eggers is not entitled to postconviction relief.
Connolly, J., joins in this dissent.