State v. Alarcon-Chavez

322 	284 NEBRASKA REPORTS
the evidence for motive or intent. And the court specifi-
cally admonished the jury that it should consider the evidence
for these purposes. No final written instruction corrected its
instruction during trial.
Because the jurors could find the evidence of the previous
transactions relevant to motive or intent only by relying on
propensity reasoning, I believe that the court’s error could be
harmless only if other evidence overwhelmingly established
Payne-McCoy’s guilt.20 Instead, however, the rule 404(2) evi-
dence was the State’s strongest evidence of Payne-McCoy’s
guilt. So I do not believe that the error was harmless.
20 See, U.S. v. Davis, 547 F.3d 520 (6th Cir. 2008); State v. Collins, 281 Neb.
927, 799 N.W.2d 693 (2011).
State of NebraSka, appellee, v. leodaN
alarcoN-chavez, appellaNt.
821 N.W.2d 359
Filed August 17, 2012. 	No. S-11-779.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. 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 conclu-
sion independent of the determination reached by the trial court.
3. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
4. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines whether the pros-
ecutor’s remarks were improper. It is then necessary to determine the extent to
which the improper remarks had a prejudicial effect on the defendant’s right to a
fair trial.
5. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to
conduct criminal trials in such a manner that the accused may have a fair and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. ALARCON-CHAVEZ 	323
Cite as 284 Neb. 322
impartial trial, and prosecutors are not to inflame the prejudices or excite the pas-
sions of the jury against the accused.
6. ____: ____: ____. A prosecutor’s conduct that does not mislead and unduly influ-
ence the jury does not constitute misconduct.
7. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the context of the trial as a whole.
8. Trial: Prosecuting Attorneys: Appeal and Error. When a prosecutor’s conduct
was improper, an appellate court considers the following factors in determin-
ing whether the conduct prejudiced the defendant’s right to a fair trial: (1)
the degree to which the prosecutor’s conduct or remarks tended to mislead or
unduly influence the jury, (2) whether the conduct or remarks were extensive or
isolated, (3) whether defense counsel invited the remarks, (4) whether the court
provided a curative instruction, and (5) the strength of the evidence supporting
the conviction.
Appeal from the District Court for Madison County: robert
b. eNSz, Judge. Affirmed.
Melissa A. Wentling, Madison County Public Defender, Kyle
M. Melia, and Todd W. Lancaster, of Nebraska Commission on
Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Wright, 	coNNolly, 	MccorMack, 	M iller-lerMaN, 	and
caSSel, JJ., and SieverS, Judge.
per curiaM.
Maria Villarreal died after sustaining multiple stab wounds
on March 10, 2010. Leodan Alarcon-Chavez was convicted
of first degree murder, use of a deadly weapon to commit a
felony, and tampering with a witness. In this direct appeal,
Alarcon-Chavez contends that the district court erred in over-
ruling his motion to suppress evidence and in giving a jury
instruction that incorrectly stated the law. He also asserts that
the prosecutor’s closing remarks were so inflammatory that
reversal under the plain error standard is warranted. We affirm.
BACKGROUND
eveNtS prior to StabbiNg
Alarcon-Chavez and Villarreal began dating and moved into
an apartment together in January 2009. Alarcon-Chavez was

324 	284 NEBRASKA REPORTS
the sole leaseholder for their apartment, which was located
in Norfolk, Nebraska. Their relationship ended after Alarcon-
Chavez informed Villarreal that he was seeing another woman.
After the breakup, Villarreal stayed in the apartment and
Alarcon-Chavez moved in with a friend. While he was living
with his friend, Villarreal called to threaten him on several
occasions. Once, she told him that her boyfriend would “adjust
accounts” with him.
On two occasions when he knew Villarreal would not
be present, Alarcon-Chavez went back to the apartment he
had shared with Villarreal. One time, he noticed another
man’s clothes.
In late February 2010, Villarreal began dating Aniel Campo
Pino, and he moved into the apartment with Villarreal and her
3-year-old son.
On March 9, 2010, Alarcon-Chavez saw Villarreal and Pino
at a store. Alarcon-Chavez returned to his friend’s house around
7 p.m. and began consuming alcohol. Around 11 p.m., he drove
across town to Wal-Mart to purchase more beer. While at Wal-
Mart, Alarcon-Chavez saw a set of Sunbeam knives, and he
testified he decided to purchase them for cooking purposes. He
purchased the knives and beer just after 11:30 p.m. He returned
to his friend’s house and took the beer inside, but left the knife
set in the vehicle.
Alarcon-Chavez knew Villarreal went to work early in the
morning. So, around 5 a.m. on March 10, 2010, he drove to
the apartment where Villarreal was living. He testified that he
intended to tell Villarreal and Pino to get out of his apartment.
He explained he did not want to live with his friend anymore
because he had been sleeping on the floor and using clothes for
a pillow.
StabbiNg
Alarcon-Chavez arrived at the apartment around 5:10 or 5:20
a.m. He initially got out of the vehicle, but then, after remem-
bering Villarreal’s threat that Pino would “adjust accounts”
with him, reentered it. Alarcon-Chavez then remembered the
knife set, so he opened the package with his teeth and con-
cealed one of the knives on his body.

STATE v. ALARCON-CHAVEZ 	325
Cite as 284 Neb. 322
Alarcon-Chavez entered the apartment and found Villarreal
in the kitchen making her lunch. She had a knife in her hand.
Villarreal came toward Alarcon-Chavez and grabbed his body
and somehow dropped the knife. She was holding Alarcon-
Chavez and yelling for the police and for Pino, and Alarcon-
Chavez was struggling to escape her grip. Fearing that Pino
would attack him, he drew the knife he had concealed on his
body. Alarcon-Chavez and Villarreal continued to struggle, and
as he tried to get loose, he stabbed Villarreal in the abdomen.
Alarcon-Chavez did not remember stabbing her anywhere else.
After the stabbing, Villarreal sat on the floor and leaned back
onto the carpet. Alarcon-Chavez then heard someone coming
and locked the door.
Pino had gone outside before Alarcon-Chavez arrived. He
went back to the apartment after he heard Villarreal scream.
When he arrived, the door was locked. Villarreal was scream-
ing that he should not come in because a man was stabbing
her. Pino told Alarcon-Chavez to come out of the apartment so
he could help Villarreal, but Alarcon-Chavez did not respond.
Pino left for a few minutes to give Alarcon-Chavez an oppor-
tunity to leave, but Alarcon-Chavez was still inside when Pino
returned. Pino heard Villarreal saying, “Leo, don’t kill me,
Leo, don’t kill me.” Alarcon-Chavez then told Villarreal he was
going to kill her and said, “I told you not to leave me because
if you did this was going to happen to you.” Pino told a neigh-
bor to call the police and then retrieved a friend.
Police officers were dispatched to the apartment. One offi-
cer knocked at 6:06 a.m. and tried unsuccessfully to open the
door. An officer standing outside of the apartment activated a
tape recorder. Villarreal can be heard on the recording plead-
ing for help. She told Alarcon-Chavez to go away and not to
kill her. She said that she had been stabbed five times and
that Alarcon-Chavez was still in the apartment with her. The
recording also revealed numerous expressions of pain from
Villarreal, several of which occurred just before the officers
entered the apartment. Alarcon-Chavez testified that Villarreal
was not asking him not to kill her, but, rather, was begging him
not to kill himself.

326 	284 NEBRASKA REPORTS
When another officer arrived, he knocked and announced his
presence and tried to open the door. Either Pino or his friend
told the officers they needed to get inside. The officers entered
the apartment by kicking the door several times. When the
officers opened the door, they observed Alarcon-Chavez stand-
ing over Villarreal’s body with a knife in each hand. Alarcon-
Chavez was shot with an electric stun gun and handcuffed. He
was covered in blood. As Alarcon-Chavez was being taken out
of the apartment, Pino’s friend asked him “why [he] didn’t
do this to [Pino and his friend],” and he responded that “he
didn’t want to do any harm to [them], the problem wasn’t
with [them].”
Although she was obviously in pain, Villarreal was alert,
coherent, and talking when the officers first entered the apart-
ment. Within a few minutes, her color turned to an ash gray
and she stopped speaking. There was a large amount of blood
around her. She died as a result of multiple stab wounds. Her
most traumatic wound traversed the upper right side of her
abdomen. The cut went through the right lobe of her liver and
pierced her inferior vena cava. The wound caused a massive
intra-abdominal hemorrhage. She also had stab wounds on the
right side of her back, on her right tricep, and under her left
armpit. She had several deep cuts on her hands which were
described at trial by one of the officers as classic defense
wounds. The officer explained, “[I]f somebody is attacking you
with a knife, your natural reaction is to protect your body [by]
bring[ing] your hands up.”
iNveStigatioN
Several items from the crime scene underwent DNA test-
ing. Villarreal was included as a match for blood found on
two knives discovered at the scene, and testing revealed an
infinitely low possibility that the blood belonged to anyone
else. Villarreal was also a match for blood found on a blue shirt
Alarcon-Chavez was wearing at the time of his arrest. Blood
found on the shirt also revealed a single male profile. While
this blood was never compared with the blood of Alarcon-
Chavez, one officer opined that the blood came from Alarcon-
Chavez’ being shot with the electric stun gun, which would

STATE v. ALARCON-CHAVEZ 	327
Cite as 284 Neb. 322
have penetrated his skin. There were no defensive wounds on
Alarcon-Chavez’ hands.
Officers learned that a vehicle parked outside the apartment
belonged to Alarcon-Chavez. By looking through the window,
an officer saw a package for three Sunbeam knives protrud-
ing from a Wal-Mart bag; one of the knives was missing.
An officer believed that a knife found inside the apartment
was the missing knife. After discussing with the prosecutor
what was observed in the vehicle, officers decided to tow the
vehicle without first obtaining a warrant. Department policy
permitted the officers to seize the vehicle and later obtain a
search warrant. The vehicle was transported and secured in
the Norfolk Police Division’s sally port, and a search warrant
was obtained.
The following items were recovered from the vehicle: a
knife; a package of three knives in a Wal-Mart bag with
the middle knife missing; an unbent piece of plastic, which
appeared to be cut from the package of knives; a barbell; a
baseball bat; a warning citation for speeding; a purchase con-
tract showing the vehicle was purchased on March 7, 2010;
and another Wal-Mart bag with a holder for jumper cables.
The State charged Alarcon-Chavez with murder in the first
degree, use of a deadly weapon to commit a felony, and
tampering with a witness. The latter charge was based upon
an incident between Alarcon-Chavez and Villarreal for which
Alarcon-Chavez was charged with terroristic threats and use of
a weapon to commit a felony.
MotioN to SuppreSS
Alarcon-Chavez moved to suppress all physical evidence
seized by the officers during the search of his vehicle, and
following a hearing, the court made the following factual
findings:
Officers were called to an apartment where [Villarreal]
was found with multiple stab wounds. [Alarcon-Chavez]
was present in the apartment in the possession of a
knife and was arrested. Law enforcement officers were
directed to an automobile in the apartment parking lot. A
three-knife set was in plain view in the vehicle in which

328 	284 NEBRASKA REPORTS
one knife was missing. The knife recovered at the apart-
ment appeared to be part of that set. The vehicle was
then impounded and transported into police custody. A
search warrant was obtained the next day and the car
was searched.
Based upon this evidence, the district court concluded
that the officers had probable cause to seize the vehicle. The
court reasoned that because the officers had probable cause
to conduct a warrantless search of the vehicle, they were
also authorized to seize the vehicle and to search it after
obtaining a warrant. Accordingly, the court denied the motion
to suppress.
trial aNd Jury iNStructioNS
A jury trial was held from June 13 to 16, 2011. At the
jury instruction conference, the court proposed giving NJI2d
Crim. 3.1, the standard step instruction defining the ele-
ments of first degree murder, second degree murder, and
manslaughter, in that order. Alarcon-Chavez objected to the
proposed instruction.
Alarcon-Chavez’ proposed instruction did not challenge the
elements of the crimes. Rather, it contested the order in which
the jury was to consider them. The court overruled Alarcon-
Chavez’ objection, reasoning that the jury was required to
read all instructions in connection with one another and that
the instructions adequately informed the jury there were three
levels of homicide.
cloSiNg arguMeNtS
During closing argument, the State discussed Alarcon-
Chavez’ credibility and truthfulness. The prosecutor ques-
tioned Alarcon-Chavez’ claim that he opened the package of
knives with his teeth, arguing the evidence showed it was cut
open. The prosecutor asserted that the knife purchase was
not a spontaneous decision, as claimed by Alarcon-Chavez,
and that Alarcon-Chavez did not go back to the apartment
for the purpose of telling Villarreal and Pino to leave. The
prosecutor called Alarcon-Chavez’ claim that Villarreal was
begging for him not to kill himself “absolutely preposter-
ous and insulting.” The prosecutor also likened the case to

STATE v. ALARCON-CHAVEZ 	329
Cite as 284 Neb. 322
the O.J. Simpson case. In concluding, the prosecutor said,
“[T]he defense told you to focus on credibility. But they call
[Alarcon-Chavez] anyway.”
When Alarcon-Chavez’ defense attorney began his closing
argument, he told the jury he would not go through all the
evidence or “sit and read [the jury] instructions.” One of the
prosecutor’s first statements in rebuttal was that it was smart
for the defense not to discuss the evidence or the jury instruc-
tions very much because both essentially said to “go back and
find [Alarcon-Chavez] guilty.” The prosecutor asked the jury to
be “fair to dead people” and again challenged Alarcon-Chavez’
credibility, commenting, “You saw him lying.”
Finally, the prosecutor told a story about General Anthony
McAuliffe’s being informed that he was surrounded and that
he should surrender. McAuliffe responded, “‘Nuts,’” and when
General George Patton learned of the response, he said, “[A]
man that eloquent has to be saved.” Turning back to the
case, the prosecutor asked, “[W]hat do you say to this crazy
theory[?]” and stated, “What you’re going to have to do is go
back there and fill out guilty. That is the most eloquent answer
you can give, and that is the short answer, the same answer
[General] McAuliffe would have given.” Alarcon-Chavez did
not object to any of the prosecutor’s closing remarks.
verdict aNd SeNteNciNg
Alarcon-Chavez was found guilty on all counts. He was sen-
tenced to life imprisonment, with credit for 534 days of time
served, for murder in the first degree; to an indeterminate term
of not less than 19 nor more than 20 years’ imprisonment for
use of a deadly weapon to commit a felony; and to an indeter-
minate term of not less than 1 nor more than 2 years’ imprison-
ment for tampering with a witness. The sentences were to run
consecutively. Alarcon-Chavez timely appealed.
ASSIGNMENTS OF ERROR
Alarcon-Chavez assigns the district court erred in denying
his motion to suppress and in failing to give his proposed
jury instruction. He also assigns that reversal is warranted
under the plain error standard due to the prosecutor’s clos-
ing remarks.

330 	284 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review.1 Regarding historical
facts, we review the trial court’s findings for clear error.2 But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.3
[2] 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.4
ANALYSIS
MotioN to SuppreSS
Alarcon-Chavez asserts the district court erred in finding it
was lawful for the officers to seize his vehicle without a war-
rant. The district court relied on Chambers v. Maroney5 and
State v. Franklin6 in concluding that the officers could lawfully
seize the vehicle and then search it at a later time after obtain-
ing a warrant.
In 	Chambers, 	a 	gas 	station 	was 	robbed 	by 	two 	men.
Witnesses described the clothing of the robbers and a vehicle
which sped away just after the robbery. Within an hour, police
stopped a vehicle fitting the description, occupied by men
wearing the described clothing. The occupants were arrested,
and police drove the vehicle to the station and searched it with-
out a warrant.
The U.S. Supreme Court first recognized:
For constitutional purposes, we see no difference between
on the one hand seizing and holding a car before presenting
1 State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
2 Id.
3 Id.
4 State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
5 Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419
(1970).
6 State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975).

STATE v. ALARCON-CHAVEZ 	331
Cite as 284 Neb. 322
the probable cause issue to a magistrate and on the other
hand carrying out an immediate search without a warrant.
Given probable cause to search, either course is reason-
able under the Fourth Amendment.7
The Court then reasoned that the vehicle could have been
searched when stopped because there was probable cause to
search it and it was readily mobile. The Court held the war-
rantless search was valid because both factors still existed at
the station house.
In Franklin, the defendant was arrested as he approached
and entered a vehicle on a public street. Officers began to
search the vehicle, but after a disturbance, the vehicle was
towed to the police lot and the search continued. Partly rely-
ing on Chambers, we upheld the entire search. We opined that
if there is “probable cause for the arrest of an accused in his
motor vehicle on a public highway” and “probable cause for
the search of the vehicle at that time, a search a short time later
while the vehicle is still in police custody is not unreasonable
even though made without a warrant.”8
Alarcon-Chavez argues the district court erred in relying
on Chambers and Franklin because the defendants in those
cases were arrested in their motor vehicles in public areas,
whereas he was arrested inside the apartment and the vehicle
was parked on private property. To support the distinction
he draws between a seizure of a vehicle on private property
and one on public property, he relies on Coolidge v. New
Hampshire.9 There, the U.S. Supreme Court held that exigent
circumstances were required for the automobile exception to
apply and that no such circumstances existed because officers
developed probable cause well before the warrantless search,
the vehicle was parked in the defendant’s driveway, the objects
sought from the vehicle were neither dangerous nor stolen, and
the suspect was not fleeing the area.
7 Chambers, supra note 5, 399 U.S. at 52.
8 Franklin, supra note 6, 194 Neb. at 642, 234 N.W.2d at 617.
9 Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d
564 (1971), overruled on other grounds, Horton v. California, 496 U.S.
128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

332 	284 NEBRASKA REPORTS
The U.S. Court of Appeals for the Fourth Circuit addressed
similar arguments in U.S. v. Brookins.10 Officers were patrol-
ling open-air drug markets when they observed a vehicle
backing into a driveway. They saw the defendant and another
man standing near the vehicle. The defendant reached into the
vehicle and then handed the other man a clear plastic sandwich
bag. Both men then speedily walked away from the vehicle,
and the plastic bag was discarded. Upon inspection, the bag
contained 26 small rocks of “suspected crack cocaine.”11 The
defendant was arrested nearby.
The defendant’s wife fled the scene in the vehicle, which
officers found about 15 minutes later in the driveway of a
residence belonging to her mother. Police obtained the keys
and in subsequent warrantless searches recovered several items
of evidentiary value. The defendant’s motion to suppress was
granted. The district court found that the automobile excep-
tion, which allows law enforcement officers to search a vehicle
without a warrant under certain circumstances, did not justify
the warrantless search because the vehicle was not read-
ily mobile.
On appeal, the Fourth Circuit reversed. The court rejected
the defendant’s argument that under Coolidge,12 the automo-
bile exception would never apply to a vehicle situated on pri-
vate, residential property. The court noted that in an opinion13
postdating Coolidge, the U.S. Supreme Court held that the
automobile exception has no separate exigency requirement
and applies if the vehicle is readily mobile and probable cause
exists to believe it contains contraband. The Fourth Circuit
found that the two requisites were met and that therefore, the
automobile exception justified the warrantless search.
The Fourth Circuit also discussed the district court’s deter-
mination that for a search to come within the holding of
10 U.S. v. Brookins, 345 F.3d 231 (4th Cir. 2003).
11 Id. at 233.
12 Coolidge, supra note 9.
13 Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442
(1999).

STATE v. ALARCON-CHAVEZ 	333
Cite as 284 Neb. 322
Chambers,14 the seizure must occur immediately incident to
arrest. In rejecting this determination, the Fourth Circuit opined
that although Chambers involved a situation in which the
vehicle was seized immediately after an arrest, “the reasoning
supporting the subsequent search was that probable cause still
obtained.”15 The court then held that the seizure and subsequent
searches were lawful because the officers had probable cause
to search the vehicle without obtaining a warrant.
The 	facts 	Alarcon-Chavez 	relies 	upon 	to 	distinguish
Chambers are of no consequence. He argues that probable
cause alone was not sufficient to support the seizure of his
vehicle, because his vehicle was located on private property
and he was not arrested in his vehicle following a traffic stop.
But Brookins16 also involved a seizure of a vehicle from private
property and an arrest that occurred away from the vehicle
that did not follow a traffic stop. The search in Brookins was
upheld because the vehicle was readily movable, the officers
had probable cause to search the vehicle at the time it was
discovered, and the probable cause factor still obtained at the
time of the search.
The pertinent inquiry in this case, which differs from
Brookins in that the officers obtained a warrant before search-
ing Alarcon-Chavez’ vehicle, is whether officers could have
immediately searched the vehicle without a warrant.17 That is
determined by whether the vehicle was readily mobile and the
officers had probable cause to believe the vehicle contained
contraband or evidence of a crime.18
14 Chambers, supra note 5.
15 Brookins, supra note 10, 345 F.3d at 238.
16 Brookins, supra note 10.
17 See Chambers, supra note 5 (opining that if there is probable cause to
conduct immediate warrantless search of vehicle, it is constitutionally
permissible to seize and hold vehicle until warrant is obtained).
18 See, Dyson, supra note 13; U.S. v. Claude X, 648 F.3d 599 (8th Cir. 2011);
U.S. v. Kennedy, 427 F.3d 1136 (8th Cir. 2005); Brookins, supra note 10;
State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996); State v. Sanders,
15 Neb. App. 554, 733 N.W.2d 197 (2007).

334 	284 NEBRASKA REPORTS
Both requisites were met in this case. The vehicle was
operational and therefore readily movable. Probable cause sup-
ported an at-the-scene search because officers knew Villarreal
had been severely injured with a knife, a Sunbeam knife was
found in the apartment, and a set of Sunbeam knives with one
knife missing was clearly visible from outside of the vehicle.
Given probable cause to search the vehicle in the parking lot of
the apartment, it was equally permissible for the officers to tow
the vehicle and later obtain a warrant. We therefore conclude
the district court did not err in overruling Alarcon-Chavez’
motion to suppress.
Jury iNStructioNS
Alarcon-Chavez argues that under State v. Smith,19 his mur-
der conviction must be reversed because the jury instruction on
manslaughter did not require the State to prove that the killing
was not the result of a sudden quarrel. We assume without
deciding that Alarcon-Chavez’ objection to the instruction was
sufficient to preserve this issue for our review.
In Smith, we found a jury instruction erroneous because
it required the jury to convict on second degree murder if it
found the killing was intentional and because the instruction
did not permit the jury to consider the alternative possibility
that the killing was intentional but provoked by a sudden quar-
rel. The jury instruction here is substantially similar to the one
given in Smith.
Despite Alarcon-Chavez’ contentions, this is not a structural
error requiring automatic reversal. In Smith, we classified the
error as trial error and noted:
Before an error in the giving of jury instructions can be
considered as a ground for reversal of a conviction, it
must be considered prejudicial to the rights of the defend-
ant. The appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.20
19 Smith, supra note 4.
20 Id. at 734-35, 806 N.W.2d at 394.

STATE v. ALARCON-CHAVEZ 	335
Cite as 284 Neb. 322
We concluded in Smith that the defendant failed to meet his
burden because the evidence was insufficient for a jury to rea-
sonably conclude that provocation existed so as to justify an
instruction on sudden quarrel manslaughter.
We reach the same conclusion here, although for a slightly
different reason. The jury was instructed that it could return
one of several verdicts: guilty of first degree murder, guilty of
second degree murder, guilty of manslaughter, or not guilty.
From these, the jury convicted Alarcon-Chavez of first degree
murder.
We have held that a defendant convicted of first degree mur-
der 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.21 And other courts have also
concluded that when a jury is instructed on first and second
degree murder and the defendant is found guilty of first degree
murder, any error in the instruction for manslaughter or any
improper failure to instruct the jury on manslaughter does not
require reversal.22
Here, the jury considered how Villarreal’s death occurred
and concluded Alarcon-Chavez 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, Alarcon-Chavez was not prejudiced and his substantial
rights were not affected by the manslaughter instruction.
21 See State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). See, also,
State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
22 See, State v. Soto, 162 N.H. 708, 34 A.3d 738 (2011); State v. Yoh, 180
Vt. 317, 910 A.2d 853 (2006); State v. Williams, 977 S.W.2d 101 (Tenn.
1998); People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975); McNeal v.
State, 67 So. 3d 407 (Fla. App. 2011), review denied 77 So. 3d 1254 (Fla.
2011); State v. Barnes, 740 S.W.2d 340 (Mo. App. 1987).

336 	284 NEBRASKA REPORTS
proSecutorial M iScoNduct
[3] Alarcon-Chavez argues that the prosecutor’s closing
remarks deprived him of his right to a fair trial and that rever-
sal under the plain error standard is proper. Plain error may
be found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the
judicial process.23 The U.S. Supreme Court has noted that “the
plain-error exception to the contemporaneous-objection rule is
to be ‘used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.’”24
[4-8] Generally, in assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper. It is then
necessary to determine the extent to which the improper
remarks had a prejudicial effect on the defendant’s right
to a fair trial.25 Prosecutors are charged with the duty to
conduct criminal trials in such a manner that the accused
may have a fair and impartial trial, and prosecutors are not
to inflame the prejudices or excite the passions of the jury
against the accused.26 A prosecutor’s conduct that does not
mislead and unduly influence the jury does not constitute
misconduct.27 Whether prosecutorial misconduct is prejudi-
cial depends largely on the context of the trial as a whole.28
When a prosecutor’s conduct was improper, this court consid-
ers the following factors in determining whether the conduct
prejudiced the defendant’s right to a fair trial: (1) the degree
to which the prosecutor’s conduct or remarks tended to
23 State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
24 United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1
(1985). Accord Barfield, supra note 23.
25 See State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
26 Id.
27 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
28 Id.

STATE v. ALARCON-CHAVEZ 	337
Cite as 284 Neb. 322
mislead or unduly influence the jury, (2) whether the conduct
or remarks were extensive or isolated, (3) whether defense
counsel invited the remarks, (4) whether the court provided a
curative instruction, and (5) the strength of the evidence sup-
porting the conviction.29
Alarcon-Chavez relies on State v. Barfield,30 in which this
court held under the plain error standard that a prosecutor’s
statements during closing arguments required reversal and a
new trial. In closing arguments, the prosecutor referred to the
defendant as a “‘vicious dictator,’” a “‘tower of terror,’” a
“‘two-headed hydra,’” a “‘monster of mayhem,’” and a “‘king
of killers.’”31 As a part of the defense’s closing argument, the
defense attorney read the definition of “lie” from a dictionary.
On rebuttal, the prosecutor’s first statement to the jury was
as follows:
“You know, in 20 years as a prosecutor the hardest
thing I think I’ve had to do is sit there with a straight
face when a criminal defense lawyer had to look up the
definition of ‘lie’ in a dictionary. Why, I thought that was
printed on the back of their business cards.”32
We concluded that these comments were “clearly improper”33
and that to leave such conduct uncorrected would result in
damage to the integrity, reputation, and fairness of the judi-
cial process. We noted that the prosecutor’s comments were
“of a very serious nature” and that “the prosecutor’s unac-
ceptable remarks” did not “reflect a single, isolated instance,
but were numerous.”34 After finding the evidence was not
overwhelming against the defendant, we determined a retrial
was necessary.
Alarcon-Chavez 	asserts 	that 	the 	prosecutor 	improperly
described portions of his testimony as untruthful. At one
29 See id.
30 Barfield, supra note 23.
31 Id. at 512, 723 N.W.2d at 313.
32 Id. at 514, 723 N.W.2d at 314.
33 Id. at 511, 723 N.W.2d at 312.
34 Id. at 515, 723 N.W.2d at 315.

338 	284 NEBRASKA REPORTS
point, the prosecutor questioned Alarcon-Chavez’ claim that
he opened the knife set using his teeth. But this statement was
not improper because it was supported by evidence adduced
at trial35 which showed the set was cut open. The prosecutor
also argued that the knife set was purchased with the purpose
of killing Villarreal and that Alarcon-Chavez did not return
to the apartment simply to reclaim the premises. These state-
ments are also not improper, because evidence supported them.
Specifically, Alarcon-Chavez purchased the knife set less than
6 hours before entering the apartment and stabbing Villarreal,
and although he brought the beer into his friend’s apartment, he
left the knife set in his vehicle. Pino overheard Alarcon-Chavez
tell Villarreal he was going to kill her and overheard him say,
“I told you not to leave me because if you did this was going
to happen to you.” A reasonable inference from this evidence
is that Alarcon-Chavez purchased the knives, and later entered
the apartment, for the purpose of killing Villarreal.
The 	prosecutor 	also 	called Alarcon-Chavez’ claim 	that
Villarreal was begging for him not to kill himself “absolutely
preposterous and insulting.” Evidence supported this because
nothing from the tape recording indicated that Villarreal was
begging Alarcon-Chavez not to kill himself, and, rather, the
evidence showed that Villarreal was begging for her own life.
Alarcon-Chavez 	also 	challenges 	the 	prosecutor’s 	state-
ments, “[T]he defense told you to focus on credibility. But
they call [Alarcon-Chavez] anyway” and “You saw [Alarcon-
Chavez] lying.” He asserts these also were improper attacks
on his credibility. The first comment came after the prosecutor
had detailed specific examples of evidence that contradicted
Alarcon-Chavez’ testimony. And following the second state-
ment, the prosecutor gave an example of where other evidence
contradicted Alarcon-Chavez’ testimony. Viewed in context,
these comments simply summarized the prosecutor’s remarks
35 See, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006) (stating
that prosecutor’s argument must be based on evidence); State v. Swillie,
240 Neb. 740, 484 N.W.2d 93 (1992) (opining that it is not prejudicial
for prosecutor to make remarks based on deductions and inferences drawn
from evidence).

STATE v. ALARCON-CHAVEZ 	339
Cite as 284 Neb. 322
concerning the inconsistencies between Alarcon-Chavez’ testi-
mony and other evidence and were not improper.
The remainder of the challenged comments consist of the
prosecutor’s story about General McAuliffe, the request to the
jury to be “fair to dead people,” the prosecutor’s likening the
case to the O.J. Simpson case, and the prosecutor’s statement
early in rebuttal that it was smart for the defense not to discuss
the evidence or the jury instructions very much because they
essentially said to “go back and find [Alarcon-Chavez] guilty.”
Even assuming these comments were improper, it cannot be
said that they prejudiced Alarcon-Chavez. These were a few
isolated comments in a long closing argument and rebuttal, and
the evidence that the murder was premeditated and deliberate
was, as described earlier, plenary.
Moreover, any resulting prejudice to Alarcon-Chavez was
not of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, and fairness of the judicial
process. The comments from Barfield36 that met that standard
were repetitive, clearly improper, and quite egregious. The
comments at issue here simply do not rise to that level.
CONCLUSION
For the reasons discussed, we conclude Alarcon-Chavez’
assignments of error are without merit, and we affirm his
convictions.
affirMed.
StephaN, J., participating on briefs.
heavicaN, C.J., not participating.
36 Barfield, supra note 23.