1. Appeal and Error. An appellate court may, at its option, notice plain error.
2. Trial: Appeal and Error. In determining plain error, where the law at the time of trial was settled and clearly contrary to the law at the time of appeal, it is enough that an error be "plain" at the time of appellate consideration.
3. Criminal Law: Time: Appeal and Error. A new criminal rule—one that constitutes a clear break with the past—applies retroactively to all cases pending on direct review or not yet final, and not just to the defendant in the case announcing the new rule.
4. Homicide: Words and Phrases. A "sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. It does not necessarily mean an exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim.
5. Homicide: Intent. In determining whether a killing constitutes murder or sudden quarrel manslaughter, the question is whether there existed reasonable and adequate provocation 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.
6. Criminal Law: Words and Phrases. Generally speaking, a fight between the victim and a third party is not a "sudden quarrel" as to the defendant.
7. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of the litigant and is of such a nature that to leave it [286 Neb. 184] uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial if the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Madison County: James G. Kube, Judge. Reversed and remanded for a new trial.
Patrick P. Carney and Ryan J. Stover, of Carney Law, PC, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ., and Moore, Judge.
A jury convicted De'Aris R. Trice of second degree murder. Before submitting the case to the jury, the district court gave the jury a step instruction regarding second degree murder and manslaughter. Although the instruction was correct when it was given,  our subsequent holding in State v. Smith rendered the instruction an incorrect statement of the law. Because Smith applies retroactively to this case, and because there is evidence—though slight—upon which a jury could conclude that the ...