Jury Instructions: Appeal and Error. Whether
a jury instruction is correct is a question of law, regarding
which an appellate court is obligated to reach a conclusion
independent of the determination reached by the trial court.
Jury Instructions: Proof: Appeal and Error.
The appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant.
Trial: Courts: Homicide: Jury Instructions.
A trial court is required to give an instruction where there
is any evidence which could be believed by the trier of fact
that the defendant committed manslaughter and not murder.
Homicide: Intent: Words and Phrases. A
"sudden quarrel" is a legally recognized and
sufficient provocation which causes a reasonable person to
lose normal self-control; 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
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 uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation,
and fairness of the judicial process.
Trial: Judges: Jury Instructions: Appeal and
Error. It is the duty of a trial judge to instruct
the jury on the pertinent law of the case, whether requested
to do so or not, and an instruction or instructions which by
the omission of certain elements have the effect of
withdrawing [27 Neb.App. 74] from the jury an essential issue
or element in the case are prejudicially erroneous.
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.
from the District Court for Douglas County: Gregory M.
Schatz, Judge. Reversed and remanded for a new trial.
C. Riley, Douglas County Public Defender, and Leslie E.
Cavanaugh for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Chief Judge, and Pirtle and Arterburn, Judges.
S. Loving was convicted by a jury of murder in the second
degree and use of a deadly weapon to commit a felony. The
district court subsequently sentenced Loving to a total of
110 to 130 years' imprisonment. Loving appeals from his
convictions here. On appeal, Loving assigns numerous errors,
including that the district court erred by incorrectly
instructing the jury as to the elements of murder in the
second degree. Because we find merit to Loving's
assertion that the district court erred in instructing the
jury as to the elements of murder in the second degree and
because we find such error is not harmless, we reverse
Loving's convictions and remand the cause for a new
State filed an information charging Loving with first degree
murder pursuant to Neb. Rev. Stat. § 28-303(1) (Reissue
2016) and with use of a deadly weapon to commit a felony
pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue 2016).
The charges against Loving stem from an incident which
occurred on July 7, 2016. Evidence adduced at trial revealed
that at [27 Neb.App. 75] 5:53 p.m., shots were fired near the
intersection of 28th and Laurel Avenues in Omaha, Nebraska.
Approximately 3 minutes after the shots were fired, the 911
emergency dispatch service received a telephone call
indicating that there was a shooting victim located at a gas
station a short distance from 28th and Laurel Avenues.
police arrived at the gas station, they found Marshall
Washington in the front seat of a silver sport utility
vehicle (SUV) suffering from a gunshot wound to his right
cheek. Washington's injuries were '"not
compatible with life.'" He was pronounced dead at a
hospital upon his arrival. At the gas station, police also
located the driver of the SUV, Theodore Loving. Theodore told
police that his nephew, Loving, had shot at the vehicle as a
result of a dispute they were having. Theodore claimed that
Loving owed him $3, 000 for drugs he had purchased. Loving
was subsequently arrested and charged with the murder of
trial, Loving admitted that he fired the shots at
Theodore's SUV, which shots resulted in Washington's
death. However, he claimed that he was justified in firing
the shots in defense of himself and his family, because he
was afraid that Theodore was going to kill him, his sister,
and his sister's children.
State disputed Loving's claim of self-defense. It
presented evidence to demonstrate that Loving was angry with,
and not afraid of, Theodore on the day of the shooting. The
State also presented evidence to show that Loving fired the
shots at Theodore's SUV when it was moving away from him
and that after the shooting, Loving attempted to change his
appearance and avoid arrest.
State called Theodore to testify. Theodore testified that he
lives in California, but occasionally comes to Nebraska to
visit family, including Loving and Loving's sister,
Dynasti Loving. Theodore explained that his relationship with
Loving and Dynasti was "nothing but love" and that
he "always went out of [his] way to help them."
When Theodore visited Nebraska in 2012 or 2013, he helped
supply Loving with a [27 Neb.App. 76] large quantity of
marijuana. Specifically, Theodore testified that on
Loving's behalf, he obtained 1 pound of marijuana from
his associates in Juarez, Mexico, and 1 pound of marijuana
from his "friends in east Oakland." Despite
receiving the 2 pounds of marijuana, Loving refused to pay
for it. Because of Loving's refusal, Theodore paid $3,
000 of his own funds to his associates in Mexico, because
"you don't want to mess with the Juarez boys."
Theodore's friends from Oakland were never paid.
2016, Theodore returned to Nebraska for a visit. When he
arrived in Nebraska, Theodore had a "friendly"
conversation with Loving about the debt Loving owed to
Theodore's friends in Oakland. Theodore testified that he
was not concerned about Loving's repaying the $3, 000 he
owed to Theodore; rather, he wanted Loving to repay
Theodore's friends from Oakland. According to Theodore,
Loving told Theodore that he needed a few weeks to obtain the
funds to repay his debt. After Theodore's conversation
with Loving, he continued to have contact with Loving,
including purchasing marijuana from Loving and spending time
together at Dynasti's house. Theodore testified that
everything was "[f]ine" and "great"
between him and Loving through the beginning of July.
first few days of July 2016, Theodore's relationship with
Loving changed. Theodore testified that he observed Loving to
be spending a lot of money "partying," so he
brought up again to Loving the drug debt. Testimony from
Theodore and Loving and evidence recovered from Loving's
cellular telephone indicated that in the first few days of
July, Theodore and Loving exchanged numerous text messages
and telephone calls regarding Loving's drug debt.
Theodore sent Loving a text message telling him he could
"at least send $200 towards [his] debt." Loving
replied to the message that he did not intend to repay a
3-year-old debt. Loving also told Theodore to stop calling
him and threatened to go to Theodore's girlfriend's
house where Theodore was staying "to do something"
to him. The State presented evidence that around this same
time, Loving [27 Neb.App. 77] sent a text message to Dynasti,
stating, '"He talking about he on his way I'm
going to smoke him.'"
testified that based on Loving's behavior, on July 5,
2016, he contacted a friend of his from Oakland named
"Mike." Theodore gave this friend Loving's
telephone number and told him that Loving lived with Dynasti.
Text messages recovered from Theodore's cellular
telephone indicate that Theodore also instructed Mike what to
say when he telephoned Loving. Theodore also texted Mike at
some point asking him if he had called Loving yet.
Ultimately, Mike telephoned Loving sometime in early July and
left him a voice mail message. On the message, Mike mentioned
Theodore's name and threatened violence against Loving,
Dynasti, and everyone who lived in Dynasti's house, if
Loving did not repay his debt. Specifically, the voice mail
message stated as follows:
Your Uncle Theodore will get that money. I know you are at
your sister's house and I will come there if I have to
and I will fuck both you all up. I am not going to leave
nothing. Do you understand? So you best try to get that money
as soon as you can and pass it to your blood or there will be
some blood. And that is real ass talk. Now, if you got any
sense, you better get my money or else I am going to
[indecipherable] everybody in the house at your sister's.
testified that he learned that Mike had left the message
after Dynasti contacted Theodore on July 7 and was upset with
him. Theodore then sent a text message to Mike, asking him,
'"Why did you say my name?'"
July 7, 2016, Theodore learned through social media that it
was the birthday of his childhood friend, Washington, who he
had not seen in a number of years. Theodore also learned that
Washington was not in good health and was residing at a local
nursing home. He went to visit Washington for his birthday.
Theodore and Washington left the nursing home after eating
dinner there so that Theodore could "show [Washington] a
good time on his birthday." From the nursing home,
Theodore drove with Washington in the passenger seat [27
Neb.App. 78] of his SUV to the area of 30th and Crown Point
Avenues to obtain marijuana. Dynasti's house is located
at the intersection of 28th and Crown Point Avenues. Theodore
testified that he was not "particularly heading to
Dynasti's" when he left the nursing home.
testified that when he approached Dynasti's house on
Crown Point Avenue, he recognized someone, whose name he did
not know, who was parked in front of the house and pulled up
next to the person's vehicle to ask him if he had any
marijuana to sell. While Theodore was stopped in front of the
house, Loving came to the front of the house from the
backyard. Loving told Theodore, "'You better get out
of here before something happens. Ya'll weed days over
here are over with.'" Theodore then began to drive
away from Dynasti's house, telling Loving that he and
Washington would just go around the corner to buy marijuana.
drove around the block, trying to get to a nearby liquor
store. He testified that he could not continue east on Crown
Point Avenue after leaving Dynasti's house because there
was a schoolbus blocking his way. Theodore admitted that this
was the first time he had mentioned the schoolbus. When
Theodore's SUV was near the intersection of 28th and
Laurel Avenues, which is located behind Dynasti's house,
Theodore observed Loving running toward him from behind
Dynasti's house. At this time, Theodore had slowed his
SUV down, but he did not stop. Loving then started shooting a
gun toward the SUV. Theodore believed Loving fired four
shots. Theodore quickly drove away from the area. He observed
that Washington had been shot and "knew it was
bad." Theodore testified that he was not heading
anywhere in particular and that he ended up at a nearby gas
station. He did not call 911 until he reached the gas station
because his cellular telephone's "battery was
dead." Theodore testified that he did not threaten
Loving during their encounter on July 7, 2016. He also
testified that he did not have a gun.
the defense's cross-examination of Theodore, he admitted
that although he spoke with numerous officers [27 Neb.App.
79] immediately after the shooting and had given a deposition
prior to trial, he had never before mentioned obtaining
marijuana for Loving from people located in Mexico and
Oakland and. thus, never mentioned Loving owed the people
from Mexico or Oakland any money. Instead, Theodore
repeatedly told police that Loving owed him money for
marijuana and that Theodore wanted it back. In fact, in
Theodore's text messages to Loving from May through July
2016, he never mentioned Loving owing anyone but Theodore
money. In a telephone call to his sister while he was in a
police interview room, Theodore stated that '"all I
want is my money'" Theodore also told police several
times that he went to Dynasti's house on July 7, 2016, in
order '"to settle this with Jeffrey.'"
Theodore believed that Loving was "dodging" him.
Theodore did not mention wanting to buy marijuana for
Washington when he initially spoke with police. Theodore told
police that he did not even smoke marijuana.
the defense's cross-examination of Theodore, it presented
evidence that prior to Theodore's trial testimony, he had
denied knowing anything about Mike or about the threatening
message Mike had sent to Loving.
investigators who inspected Theodore's SUV after the
shooting located three bullets on its passenger side. One of
the bullets entered through the outside of the front
passenger-side door and was located inside that door. A
second bullet was located in the top molding of the rear
passenger-side door. The third bullet was located on the
plastic trim on the bottom of the passenger side between the
front and rear doors. The three bullets recovered from
Theodore's SUV and the bullet recovered from Washington
were all .40-caliber and were all fired from the same gun.
the front and rear passenger-side windows of Theodore's
SUV were shattered during the shooting. The front
passenger-side window was made of clear or greenish-colored
glass. Glass matching that window was located on the east
side of the intersection of 28th and Laurel Avenues. The rear
passenger-side window was made of tinted glass. The glass
appeared to [27 Neb.App. 80] be black in color. Glass
matching the rear window was located on Laurel Avenue, a few