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State v. Hinrichsen

Supreme Court of Nebraska

February 5, 2016

STATE OF NEBRASKA, APPELLEE,
v.
MATTHEW G. HINRICHSEN, APPELLANT

         As corrected February 9, 2016.

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          Appeal from the District Court for Antelope County: James G. Kube, Judge.

         James R. Mowbray and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.

         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. STEPHAN, J., not participating. WRIGHT, J., concurring in the result. CONNNNOLLY, J., dissenting. MILLER-LERMAN, J., joins in this dissent.

          OPINION

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         [292 Neb. 613] 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 [292 Neb. 614] 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 romantically 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 telephone calls to Lee which were preserved on a digital recorder found in Lee's belongings. In the recordings, Hinrichsen threatened 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

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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." [292 Neb. 615] Hinrichsen's profanities continue for about 1 1/2 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 [292 Neb. 616] 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

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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 parents' 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 [292 Neb. 617] 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 argument 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 imprisonment for each murder conviction. It sentenced him to consecutive terms of 25 to 30 years' imprisonment for possession 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 instructing the jury that the State, as an element of first degree murder, had to prove the killings were not the result of a sudden [292 Neb. 618] quarrel brought about by a sufficient provocation; (2) improperly instructing the jury on the definition of " sudden quarrel" ; (3) improperly instructing the jury on the definition of " premeditation" ; (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

          An appellate court independently reviews questions of law decided by a lower

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court.[1] The meaning and interpretation of a statute present a question of law.[2]

          Whether jury instructions are correct is a question of law.[3] 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.[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 prejudicial error necessitating reversal.[5]

         IV. ANALYSIS

          The trial court instructed the jury on first degree murder, 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 evidence before the jury, whether requested to do so or not.[6] A [292 Neb. 619] 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 reasonable 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 premised 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 contends the court

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should have defined the term " sudden quarrel" to clarify that provocation negates the element of malice in a first degree murder charge.

         [292 Neb. 620](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 sudden 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 premeditation may be so short as to be instantaneous, provided that the intent to act is formed before the act and not simultaneously 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 quarrel" meant

[292 Neb. 621] that level of provocation sufficient to cause a reasonable 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 similar 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 statement 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

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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 manslaughter. The instruction given in Smith defined second degree murder as an intentional killing done without premeditation [292 Neb. 622] 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 instruction 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 manslaughter were intentional crimes. The distinguishing factor between them " is that [for voluntary manslaughter,] the killing, 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 [292 Neb. 623] 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

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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 voluntary 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 [292 Neb. 624] incorrect because under our holding in Smith, both second degree murder and voluntary manslaughter involve intentional killing; they are differentiated only by the presence 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 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.[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 voluntary manslaughter conviction. We reasoned that the instruction 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 sudden quarrel." [21]

         [292 Neb. 625](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 specifically instructed that the State has to prove lack of sudden quarrel provocation in order to prove the murder. He contends

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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 element of the crime.[23]

          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 homicide was both intentional and unlawful, malice aforethought [292 Neb. 626] 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 committed only manslaughter). The jury was further instructed that malice aforethought and heat of passion on sudden provocation 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 aforethought, 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

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in order to reduce the murder to manslaughter, and the jury was so instructed.

         The defendant in Patterson appealed, arguing this instruction and shifting of the burden of persuasion violated the dictates of Mullaney. But the Court held this was constitutional. [292 Neb. 627] 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 reasonable 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 prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." [34]

          As noted, first degree murder in Nebraska occurs when a person kills another purposely and with deliberate and premeditated 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 convict Hinrichsen of first degree murder, it had to find " from the [292 Neb. 628] 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 provocation. 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 principle 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.

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          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 explicitly requiring the State to prove the homicide was not committed 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 disprove 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 [292 Neb. 629] 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 reasonable 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 defendant 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 constitutional 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 specifically reasoned that first degree murder required the jury to find premeditation, and because a finding of premeditation necessarily was a finding that the defendant engaged in thought before the act occurred, the premeditation finding [292 Neb. 630] 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

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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 instruction conference, the court concluded the defendant had presented 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, arguing 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 [292 Neb. 631] 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 sufficiency 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 therefore, 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 instruction 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.

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          [292 Neb. 632] In People v. Hernandez,[54] the defendant was charged with first degree murder. California defined that crime as an unlawful killing with malice aforethought, premeditation, and deliberation. 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 decision 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 provocation is relevant to determine whether the defendant killed without premeditation and deliberation." [56] But the court disagreed, 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, impulsive 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]

          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 sudden quarrel provocation beyond a reasonable doubt is not [292 Neb. 633] 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 premeditated 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 probable 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 reasonable doubt.

          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 (premeditated) 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 provocation to excite one's passion and obscure and disturb one's power of reasoning to the extent that one acted rashly and

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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 provocation, 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 [292 Neb. 634] 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 shifting 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 erroneous.[59] The key distinction is that in Smith, the jury was prevented 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 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 elements 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 deliberate 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 [292 Neb. 635] 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 Smith [64] are met by the Nebraska jury instructions 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

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a reasonable doubt that the converse was true: that the actions were done with deliberate and premeditated malice, which necessarily disproves 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 objection, 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 contended the step instruction as to the distinction between second degree murder and manslaughter was incorrect based on our [292 Neb. 636] holding in Smith.[66] We acknowledged he was correct, but reasoned 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 purposely 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 [292 Neb. 637] do something before it is done. The time needed for premeditation 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

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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.

          Although Hinrichsen submitted a proposed jury instruction on premeditation, he did not object to the instruction actually 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 definition 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 consideration 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 [292 Neb. 638] 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 substance voluntarily.

Hinrichsen argued § 29-122 was unconstitutional and did not bar his intoxication defense. The district court disagreed.

          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]

          We conclude that Hinrichsen did not preserve the issue for appeal simply by seeking the pretrial order. A pretrial ruling 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. Admission 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.

          The admission of photographs into evidence rests largely within the discretion

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of the trial court, which must determine their relevancy and weigh their probative value [292 Neb. 639] against their possible prejudicial effect.[74] 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.[75]

          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 unattributable 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.

         Affirmed.

         Stephan, J., not participating.

          CONCUR

         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) [292 Neb. 640] 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 evidence 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

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the crime and thus, the burden of proof never shifts to the defendant. 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 provocation. 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 667 [292 Neb. 641] (2013), applies equally to an acquittal first step instruction 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.

          DISSENT

         Connolly, J., dissenting.

         I dissent. First, our 2012 decision in State v. Smith [1] requires a trial court to instruct a jury of its option to convict a defendant 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 [292 Neb. 642] 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

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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 sudden 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 decisions 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 prosecution 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.

         [292 Neb. 643] OUR PRE-2011 CASE LAW WAS INCONSISTENT

         Before 2011, we generally rejected challenges to our acquittal-first step instructions for two reasons. We have reasoned that if a defendant is convicted of first degree murder, 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 instructions, is proper when a jury will only consider a ...


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