1. Appeal and Error. An appellate court may, at its option, notice plain error.
2. Appeal and Error: Words and Phrases. In determining plain error, where the law at the time of trial was settled and clearly contrary to the law at the time of the appeal, it is enough that an error be "plain" at the time of appellate consideration.
3. Trial: Photographs. The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect.
4. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.
5. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.
6. Jury Instructions: Appeal and Error. 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 indicative of a probable miscarriage of justice.
7. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and sufficient provocation that causes a reasonable person to lose normal self-control.
8. __: __. A sudden quarrel 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.
9. Homicide: Intent. The question when determining whether a killing was upon a sudden quarrel 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.
10. Homicide: Lesser-Included Offenses. Although voluntary manslaughter is a lesser degree of homicide, it is not a lesser-included offense of second degree murder under the elements test, because it is possible to commit second degree murder without committing voluntary manslaughter; one who intentionally kills another without premeditation and without the provocation of a sudden quarrel commits second degree murder, but does not simultaneously commit manslaughter.
11. Homicide: Lesser-Included Offenses: Jury Instructions. Where there is evidence that (1) a killing occurred intentionally without premeditation and (2) the defendant was acting under the provocation of a sudden quarrel, 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 regarding provocation.
12. Homicide: Photographs. Although the probative value of gruesome photographs should be weighed against the possible prejudicial effect before they are [286 Neb. 418] admitted, if the photographs illustrate or make clear some controverted issue in a homicide case, proper foundation having been laid, they may be received, even if gruesome.
13. Criminal Law: Evidence. A defendant cannot negate an exhibit's probative value through a tactical decision to stipulate.
14.__: __. The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing. 15. Criminal Law: Sentences. There is no statutory requirement that the affirmatively stated minimum term for a Class IB felony sentence be less than the maximum term, and although Neb. Rev. Stat. § 29-2204(1)(a)(ii) (Cum. Supp. 2012) permits a sentencing judge imposing a maximum term of life imprisonment for a Class IB felony to impose a minimum term of years not less than the statutory mandatory minimum, it does not require the judge to do so.
16. Homicide: Sentences. A life-to-life sentence for second degree murder is a permissible sentence under Neb. Rev. Stat. § 29-2204 (Cum. Supp. 2012).
17. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.
Appeal from the District Court for Lancaster County: Steven D. Burns, Judge.
James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
I. NATURE OF CASE
Mohamed Abdulkadir was found guilty of second degree murder and use of a deadly weapon to commit a felony for the death of Michael Grandon. The district court sentenced Abdulkadir to a term of imprisonment of life to life for the second degree murder conviction and to a consecutive term of imprisonment of 15 to 25 years for the use of a deadly weapon conviction. Abdulkadir now appeals and alleges the district court erred in giving incorrect jury instructions, in admitting cumulative and gruesome photographs, and in sentencing him to a term of imprisonment of life to life.
[286 Neb. 419] II. BACKGROUND
Abdulkadir was incarcerated at the Nebraska State Penitentiary on June 30, 2011. On that day, Abdulkadir was working in a prison facility when he was informed by other inmates that his prison cell had been robbed. Abdulkadir immediately left work and returned to his cell.
Abdulkadir returned to find that his television, headphones, compact disc player, various clothing items, prayer oils, and toiletries were missing from his cell. Abdulkadir notified caseworker Cody Eastman that his items had been stolen. Eastman told Abdulkadir to file a report.
Instead of filing the report, Abdulkadir, accompanied by his friends, began asking other inmates if they knew anything about the theft. From his questions, Abdulkadir determined that inmate Grandon was a possible suspect. Abdulkadir approached Grandon in the prison gymnasium and questioned him as to his possible involvement in the theft. Grandon swore "on his hood" that he was not involved. At trial, a prisoner testified that Abdulkadir was nonthreatening toward Grandon during the questioning.
After questioning Grandon, Abdulkadir briefly returned to his cell. At that time, Abdulkadir noticed that Grandon had also returned. Abdulkadir testified that as he was leaving his cell, he was "sucker punche[d]" above his left eye by Grandon. Both men engaged in a struggle, and according to Abdulkadir, Grandon pulled a knife out of his pocket. Abdulkadir was able to gain control of the knife as Grandon placed him in a choke hold. Abdulkadir testified that he then stabbed Grandon multiple times in self-defense.
Corporal Henry McFarland was stationed in the "bubble, " an observation control center down the hall from where Grandon was stabbed. Just before the stabbing, four inmates stood shoulder to shoulder blocking McFarland's view from the bubble. McFarland had never seen inmates stand like that before and asked them through the intercom system to move. The inmates said they were trimming each other's hair and slowly dispersed after McFarland commanded them to move.
As the inmates moved away, McFarland heard someone yelling for help. McFarland did not see a knife at that point [286 Neb. 420] and radioed that a fight with no weapons was in progress. McFarland looked down the hallway and saw Grandon fall to the floor. Abdulkadir was standing over Grandon, swinging his arm in a downward motion, and McFarland then saw the knife. McFarland testified that as Abdulkadir was standing over Grandon, McFarland heard Abdulkadir state, " 'You think you can steal from me?'"
Eastman was the first to respond to the fight. When he arrived, he caught a glimpse of the knife and radioed that a weapon was involved and that more personnel would be needed. Abdulkadir was making thrusting motions toward Grandon. Eastman told Abdulkadir that it was over and to drop the weapon. Abdulkadir complied, ...