State v. Smith

636 	284 NEBRASKA REPORTS
convictions or of the Court of Appeals’ affirmance of the dis-
trict court’s rulings. Given the aiding and abetting instruction
and the facts, the evidence is sufficient to support the convic-
tions. Although for reasons which differ from the Court of
Appeals’ reasoning, we affirm.
A ffirmed.
CAssel, J., not participating.
stAte of NebrAskA, Appellee, v.
WilliAm e. smith, AppellANt.
822 N.W.2d 401
Filed November 16, 2012. 	No. S-10-442.
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
2. Jury Instructions: Convictions: Appeal and Error. Before an error in the giv-
ing of instructions can be considered as a ground for reversal of a conviction, it
must be considered prejudicial to the rights of the defendant.
3. Homicide: Words and Phrases. A sudden quarrel is a legally recognized
and sufficient provocation which causes a reasonable person to lose normal
self-control.
4. ____: ____. A sudden quarrel does not necessarily mean an exchange of angry
words or an altercation contemporaneous with an unlawful killing and does not
require a physical struggle or other combative corporal contact between the
defendant and the victim.
5. Homicide: Intent. It is not the provocation alone that reduces the grade of the
crime, but, rather, the sudden happening or occurrence of the provocation so as
to render the mind incapable of reflection and obscure the reason so that the ele-
ments necessary to constitute murder are absent.
6. ____: ____. In determining whether a killing constitutes murder or sudden quar-
rel manslaughter, the question is whether there existed reasonable and adequate
provocation to excite one’s passion and obscure and disturb one’s power of
reasoning to the extent that one acted rashly and from passion, without due delib-
eration and reflection, rather than from judgment. The test is an objective one.
Qualities peculiar to the defendant which render him or her particularly excitable,
such as intoxication, are not considered.
7. Lesser-Included Offenses: Jury Instructions: Evidence. The rule in a non-
homicide case is that a trial court must instruct on a lesser-included offense only
if requested to do so and the evidence supports the giving of the lesser-included
instruction. However, a court may give a lesser-included instruction over a
defendant’s objection.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. SMITH 	637
Cite as 284 Neb. 636
8. Homicide: Lesser-Included Offenses: Jury Instructions. 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.
9. Trial: Lesser-Included Offenses: Jury Instructions: Case Disapproved. In
a nonhomicide case, a trial court has no duty to instruct on lesser-included
offenses in the absence of a request for such an instruction; disapproving State v.
Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997), and State v. Dixon, 259 Neb.
976, 614 N.W.2d 288 (2002).
10. Criminal Law: Time: Appeal and Error. A new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in which the new rule
constitutes a “clear break” with the past.
11. 	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 a litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result in damage to the integ-
rity, reputation, and fairness of the judicial process.
12. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
Petition for further review from the Court of Appeals, iNbody,
Chief Judge, and sievers and moore, Judges, on appeal thereto
from the District Court for Lancaster County, pAul d. merritt,
Jr., Judge. Judgment of Court of Appeals affirmed.
Peter K. Blakeslee for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heAviCAN, C.J., Wright, C oNNolly, stephAN, mCC ormACk,
and miller-lermAN, JJ.
stephAN, J.
William E. Smith was convicted by a jury of attempted sec-
ond degree murder, first degree assault, and use of a weapon
to commit a felony. The Nebraska Court of Appeals affirmed
the assault and weapon convictions and found that the trial
court did not err in failing to give a self-defense instruction.1
But it reversed, and remanded for a new trial on the attempted
1 State v. Smith, 19 Neb. App. 708, 811 N.W.2d 720 (2012).

638 	284 NEBRASKA REPORTS
second degree murder conviction, finding the jury should have
been instructed on both attempted second degree murder and
attempted sudden quarrel manslaughter.2 Both the State and
Smith filed petitions for further review, which we granted.
Although our reasoning differs in some respects from that of
the Court of Appeals, we reach the same conclusion.
I. BACKGROUND
1. fACts
The following facts are taken from the published opinion
of the Court of Appeals. Additional facts will be discussed as
pertinent to our consideration of the specific issues presented
for further review.
On November 12, 2008, a surprise 21st birthday party
was thrown for Lorenzo Gaskins. [A] large group of 15 to
20 people—including Tyrone Gaskins, Matthew Weston,
Winston 	Sanniola, 	Lorenzo, 	and 	[LeMarcus 	Gaskins
(Marcus)]—took a limousine to a “gentlemen’s club,”
then to the Spigot bar in downtown Lincoln. At the Spigot
bar, some of the individuals went inside. While inside
the Spigot bar, Tyrone exchanged words with Stacey
Gant. Smith, an acquaintance of Gant, later approached
Tyrone and told him: “‘You don’t . . . disrespect women
like that.’” Tyrone exited the bar, as did Smith and Gant.
Outside of the bar, Tyrone got into an altercation with
Smith. Marcus stepped in and punched Smith in the
mouth. The birthday group retreated to the limousine
and left. Smith left with his friend Carlos Helmstadter in
Helmstadter’s Cadillac Escalade.
The Escalade followed the limousine from the Spigot
bar, located at approximately 17th and O Streets, to Save-
Mart, located near North 11th Street and Cornhusker
Highway—which according to one witness was a 5- to
10-minute drive. At Save-Mart, Smith got out of the pas-
senger side of the Escalade and started yelling. [S]ome
of the individuals [from the birthday group,] including
2 Id.

STATE v. SMITH 	639
Cite as 284 Neb. 636
Marcus, went inside the store. When Marcus learned that
Smith wanted to fight him, he went outside to engage
in a fight. Some of Marcus’ group joined in the fight, at
which point Smith was outnumbered. The fight ended
when Helmstadter fired two or three gunshots into the
air. Smith then took Helmstadter’s gun and began firing.
One of Smith’s shots hit Marcus [as Marcus ran away].
Helmstadter and Smith fled the scene. Marcus suffered
life-threatening injuries, including a rib fracture, a punc-
tured lung, a small kidney laceration, and a grade V liver
laceration—the most serious survivable liver laceration,
which Marcus did survive.
. . . .
The State charged Smith with one count of attempted
second degree murder, a Class II felony; one count of first
degree assault, a Class III felony; and one count of use of
a weapon to commit a felony, a Class III felony.
. . . .
. . . The jury found Smith guilty of attempted second
degree murder, first degree assault, and use of a weapon
to commit a felony. Smith was sentenced to 25 to 35
years’ imprisonment for attempted second degree murder,
15 to 20 years’ imprisonment for first degree assault,
and 15 to 20 years’ imprisonment for use of a weapon
to commit a felony. The sentence for first degree assault
was to run concurrently with the sentence for attempted
second degree murder. However, the sentence for use of
a weapon to commit a felony was to run consecutively to
the other sentences.3
2. C ourt of A ppeAls
In his appeal from these convictions, Smith argued that our
opinion in State v. Jones4 should be overruled to the extent it
held that manslaughter was always an unintentional crime. He
3 Id. at 710-14, 811 N.W.2d at 727-29.
4 State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled, State v.
Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

640 	284 NEBRASKA REPORTS
further argued that because manslaughter can be committed
intentionally, the jury should have been instructed that if his
intent to kill was a result of a sudden quarrel, he should be con-
victed of attempted voluntary manslaughter. He also assigned
and argued that the jury should have been instructed that he
acted in self-defense.
Smith acknowledged in his appeal that his trial counsel
did not request instructions on either attempted manslaugh-
ter or self-defense. But his new appellate counsel contended
the instructions were nevertheless warranted based on two
theories: (1) The trial court had a duty to sua sponte instruct
on the law applicable to the case and/or (2) his trial coun-
sel provided ineffective assistance when he failed to request
the instructions.
After this case was briefed but before it was decided by the
Court of Appeals, we decided State v. Smith,5 an unrelated case
involving a different defendant with the same surname. In that
case, we overruled Jones6 and reaffirmed our holding in State
v. Pettit7 that “an intentional killing committed without malice
upon a ‘sudden quarrel,’ as that term is defined by our juris-
prudence, constitutes the offense of manslaughter.”8 The Court
of Appeals was thus faced with applying our decision in Smith
to this case.
In doing so, the Court of Appeals determined that a self-
defense instruction was not warranted by the evidence. It
further determined that Smith’s trial counsel could not have
been deficient in failing to request an instruction on attempted
sudden quarrel manslaughter, because at the time of the trial,
that crime did not exist in Nebraska. The court reasoned
that trial counsel could not have been ineffective “for not
anticipating how the courts would rule.”9 But the Court of
5 State v. Smith, supra note 4.
6 State v. Jones, supra note 4.
7 State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
8 State v. Smith, supra note 4, 282 Neb. at 734, 806 N.W.2d at 394.
9 State v. Smith, supra note 1, 19 Neb. App. at 728, 811 N.W.2d at 738.

STATE v. SMITH 	641
Cite as 284 Neb. 636
Appeals concluded that under our decision in Smith, the trial
court had a sua sponte duty to instruct on attempted sudden
quarrel manslaughter because it was a lesser-included offense
of attempted second degree murder and there was some evi-
dence of a sudden quarrel occurring immediately before the
shooting. We granted petitions for further review filed by
each party.
II. ASSIGNMENTS OF ERROR
In the State’s petition for further review, it assigns that the
Court of Appeals erred in determining that (1) the district court
had a sua sponte duty to instruct the jury on attempted sudden
quarrel manslaughter, (2) Smith was prejudiced by the lack of
an instruction on attempted sudden quarrel manslaughter, and
(3) there was evidence of a sudden quarrel.
In Smith’s petition for further review, he assigns that the
Court of Appeals erred in determining that (1) a self-defense
instruction was not warranted by the evidence, (2) trial counsel
was not ineffective in failing to request a self-defense instruc-
tion, and (3) the district court had no sua sponte duty to give a
self-defense instruction.
III. STANDARD OF REVIEW
[1,2] Whether jury instructions are correct is a question
of law, which an appellate court resolves independently of
the lower court’s decision.10 Before an error in the giving of
instructions can be considered as a ground for reversal of a
conviction, it must be considered prejudicial to the rights of
the defendant.11
IV. ANALYSIS
1. evideNCe of suddeN Q uArrel
[3-6] The offense of manslaughter is defined by Neb. Rev.
Stat. § 28-305(1) (Reissue 2008) as follows: “A person commits
10 State v. Freemont, ante p. 179, 817 N.W.2d 277 (2012); State v. Taylor,
282 Neb. 297, 803 N.W.2d 746 (2011).
11 State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011); State v. Sandoval,
280 Neb. 309, 788 N.W.2d 172 (2010).

642 	284 NEBRASKA REPORTS
manslaughter if he kills another without malice, either upon a
sudden quarrel, or causes the death of another unintentionally
while in the commission of an unlawful act.” A sudden quar-
rel is a legally recognized and sufficient provocation which
causes a reasonable person to lose normal self-control.12 It
does not necessarily mean an exchange of angry words or an
altercation contemporaneous with an unlawful killing and does
not require a physical struggle or other combative corporal
contact between the defendant and the victim.13 It is not the
provocation alone that reduces the grade of the crime, but,
rather, the sudden happening or occurrence of the provocation
so as to render the mind incapable of reflection and obscure
the reason so that the elements necessary to constitute murder
are absent.14 The question is whether there existed reasonable
and adequate provocation to excite one’s passion and obscure
and disturb one’s power of reasoning to the extent that one
acted rashly and from passion, without due deliberation and
reflection, rather than from judgment.15 The test is an objec-
tive one.16 Qualities peculiar to the defendant which render
him or her particularly excitable, such as intoxication, are
not considered.17
In this case, the Court of Appeals summarized the evidence
relevant to the existence of a sudden quarrel as follows:
Marcus punched Smith in the face at the Spigot bar.
Marcus and his friends left the Spigot bar in a limousine.
Smith asked Helmstadter whether he had a gun, to which
Helmstadter responded that he had a gun in his Escalade.
Smith 	and 	Helmstadter 	then 	got 	into 	Helmstadter’s
12 State v. Smith, supra note 4; State v. Thomas, 262 Neb. 985, 637 N.W.2d
632 (2002).
13 State v. Smith, supra note 4; State v. Lyle, 245 Neb. 354, 513 N.W.2d 293
(1994).
14 Id.
15 Id.
16 Id.
17 State v. Smith, supra note 4; State v. Cave, 240 Neb. 783, 484 N.W.2d 458
(1992).

STATE v. SMITH 	643
Cite as 284 Neb. 636
Escalade and followed Marcus’ limousine to Save-Mart.
Outside of Save-Mart, Smith yelled at Marcus to fight.
Marcus came out of the Save-Mart and engaged in a fight
with Smith. At least two witnesses testified that at least
three or four of Marcus’ friends joined Marcus in his fight
with Smith. Helmstadter testified that after he fired his
gun two or three times into the air, Marcus and his friends
“backed up, everybody dispersed.” After Marcus and his
friends backed away from Smith, Smith grabbed the gun
from Helmstadter, fired several shots in the direction of
Marcus’ friends near the Save-Mart entrance, and fired at
Marcus, who was running away from him. Thus, there is
“some evidence” of a sudden quarrel, and evidence that
the events in the Save-Mart parking lot could inflame
Smith’s passions and provoke him to the point of losing
self-control, particularly when only minutes earlier he
was unexpectedly punched in the mouth by Marcus at the
Spigot bar. And Smith found himself being “jumped” by
Marcus’ friends minutes later as Smith apparently sought
to “even the score” with Marcus, but instead got involved
in a “lopsided” fight with Marcus and three or four of
his friends.18
The court concluded that “[w]hether these facts equate to a
sudden quarrel so as to constitute attempted sudden quarrel
manslaughter is for the jury’s determination—but there is cer-
tainly evidence upon which they could so find.”19
The State argues that this was error because Smith had suf-
ficient time between the end of the fistfight and the shooting
to reflect on his intended course of action. It relies on State
v. Lyle20 and State v. Davis21 as support for this argument. In
Lyle, following a bench trial, a defendant convicted of first
degree murder argued on appeal that the judge erred in not
convicting him of sudden quarrel manslaughter. The evidence
18 State v. Smith, supra note 1, 19 Neb. App. at 725-26, 811 N.W.2d at 736.
19 Id. at 726, 811 N.W.2d at 736.
20 State v. Lyle, supra note 13.
21 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).

644 	284 NEBRASKA REPORTS
established that after the defendant and his brother fought,
the defendant left the scene in his vehicle. He returned 20
minutes later and fatally shot his brother. We determined that
by leaving the scene of the altercation and then returning
20 minutes later to shoot the victim five times, aiming the
weapon up and down the victim’s body, the defendant acted
deliberately and with premeditation, not in the heat of pas-
sion. The operative facts in Lyle are clearly distinguishable
from this case.
Davis is likewise distinguishable. The defendant in that
case was convicted of second degree murder following a
bench trial. He argued on appeal that the evidence was insuf-
ficient to sustain the conviction and that he should have
been convicted of sudden quarrel manslaughter instead. The
evidence established that the defendant loaded a handgun
and placed it in his coat before leaving his home to go to a
mall with several friends. At the mall, the defendant’s group
and another group of people engaged in a verbal confronta-
tion. When a member of the defendant’s group suggested that
a member of the other group had a weapon, the defendant
stated, “‘I’ll shoot him’” and fired a shot, which did not hit
anyone.22 Then, 5 to 30 seconds later, the defendant walked
over to a member of the second group, placed the gun against
the back of his head, and fired the fatal shot. Characterizing
this as an “execution-style” killing, we concluded that the
evidence showed no sudden quarrel or adequate provoca-
tion that hindered the defendant’s ability to act rationally
and reasonably.23
The evidence in this case was that Smith found himself
in a lopsided fistfight with LeMarcus Gaskins (Marcus) and
several others in the Save-Mart parking lot. There is conflict-
ing evidence as to whether the fight ended immediately when
Carlos Helmstadter fired the weapon into the air. One witness
testified that after Helmstadter fired the shots, “[i]t wasn’t like
everybody just broke up, but you could tell that Marcus kind
22 Id. at 757, 757 N.W.2d at 371.
23 Id. at 760, 757 N.W.2d at 373.

STATE v. SMITH 	645
Cite as 284 Neb. 636
of stopped throwing blows, you know, there — it wasn’t as
intense as it was before, I guess.” Helmstadter testified that
after he fired the shots into the air, he approached Smith, who
was 5 yards from his vehicle. Smith grabbed the gun from
Helmstadter’s hand and began shooting. From this evidence,
a finder of fact could conclude that Smith was provoked when
he was “jumped” by several persons in the parking lot and that
as a result of this sudden occurrence, he acted rashly and from
passion, without due deliberation and reflection, rather than
from judgment. Certainly this conclusion is not compelled by
the evidence, but it is at least fairly inferable.
2. eNtitlemeNt to suddeN Q uArrel
mANslAughter iNstruCtioN
The State argues that even if the evidence would have sup-
ported an instruction on attempted sudden quarrel manslaugh-
ter, Smith was not entitled to the instruction because his coun-
sel did not request it and in fact expressly waived it.
(a) Waiver
Smith made a pretrial motion proposing that certain pre-
liminary instructions be given to the jury prior to the intro-
duction of evidence. Included in these proposed instructions
was preliminary instruction No. 2. In relevant part, this
instructed the jury that it could find him guilty of attempted
second degree murder, guilty of attempted manslaughter, or
not guilty. One of the “elements” of attempted second degree
murder, as explained in this instruction, was that the intent to
kill was not “the result of a sudden quarrel.” An “element”
of attempted manslaughter was that the conduct was done
intentionally “as the result of a sudden quarrel.” The district
court informed Smith that it would not give such an instruc-
tion before hearing all the evidence. Smith replied that he
understood, and the requested preliminary instruction was not
given to the jury.
Instead, the jury was instructed at the close of evidence that
it could find Smith guilty of attempted second degree murder
or not guilty. The elements of attempted second degree murder
given to the jury made no mention of a sudden quarrel. At the

646 	284 NEBRASKA REPORTS
final jury instruction conference, Smith withdrew his request
or an instruction on attempted manslaughter and offered no
objection to the attempted second degree murder instruction
that was given.
The State contends that Smith’s actions amount to an
express waiver of a jury instruction on attempted sudden
quarrel manslaughter. This argument is based on language
in State v. Pribil24 providing that “no error can be claimed
for failure to instruct on a lesser-included offense where that
instruction has been expressly waived by the defendant.”
But an express waiver occurs when a defendant specifically
informs the court that he or she does not want an instruction
on a specific offense.25 Because Smith did not do so here, he
has not waived his argument on the attempted manslaugh-
ter instruction.
(b) Failure to Request
In its opinion, the Court of Appeals noted that “[a] party
who does not request a desired jury instruction cannot com-
plain on appeal about incomplete instructions.”26 But it then
stated that “[w]hether requested to do so or not, a trial court
has the duty to instruct the jury on issues presented by the
pleadings and the evidence.”27 Also, the court stated the propo-
sition that “[a] trial court is not required to sua sponte instruct
on lesser-included offenses, but the trial court may do so if
the evidence adduced at trial would warrant conviction of the
lesser charge and the defendant has been afforded a fair notice
of those lesser-included offenses.”28 The State contends that
there is inconsistency between these propositions and the fol-
lowing language in Pribil29:
24 State v. Pribil, 224 Neb. 28, 36, 395 N.W.2d 543, 549 (1986).
25 See State v. Brock, 245 Neb. 315, 512 N.W.2d 389 (1994).
26 State v. Smith, supra note 1, 19 Neb. App. at 720, 811 N.W.2d at 733,
citing State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
27 Id., citing State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
28 Id., citing State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
29 State v. Pribil, supra note 24, 224 Neb. at 36, 395 N.W.2d at 549.

STATE v. SMITH 	647
Cite as 284 Neb. 636
Either the State or the defendant may request a lesser-
included offense instruction where it is supported by
the pleadings and the evidence. However, absent such a
request, it is not error for the trial court to fail to give
such instruction even though warranted. The rationale
for this conclusion is based on the rule that where the
general charge as contained in the instructions fairly
presents the case to the jury, error cannot be predicated
on a failure to instruct on some particular phase of the
case unless a proper instruction has been requested by the
party complaining.
We agree that clarification of the law in this area is in order.
Our starting point is this court’s 1895 decision in Carleton
v. State,30 which addressed the issue of when error in a crimi-
nal case can be predicated on the trial court’s failure to give
a jury instruction which the defendant did not request. After
examining prior case law, this court stated:
[W]e deduce the rule that it is error for the trial court to
fail entirely to instruct the jury on the law of the case,
whether requested so to do or not; that it is likewise error
to partially instruct the jury, but by the omission of cer-
tain elements impliedly to withdraw from the attention
of the jury an issue or element in the case necessary to
determine the rights of the parties, and that an exception
to instructions so partially stating the case covers the
error of omission; but that when the jury is instructed,
and when the instructions given do not impliedly with-
hold from the jury some of the issues or elements proper
for [its] consideration, error cannot be predicated upon
the fact that the court failed to charge upon some particu-
lar phase of the evidence, or some particular feature of
the case, unless a proper instruction was offered by the
party complaining.31
Carleton thus announced a three-part rule. First, it is always
error for the trial court to fail to instruct the jury at all, and
30 Carleton v. State, 43 Neb. 373, 61 N.W. 699 (1895).
31 Id. at 403-04, 61 N.W. at 709.

648 	284 NEBRASKA REPORTS
a defendant can raise such failure as error whether or not he
or she requested instructions. Second, it is error to omit from
the jury instructions an issue or element in the case neces-
sary to determine the rights of the parties, and a defendant
can raise such error whether other instructions were requested
or not. Third, when the instructions given are somehow lack-
ing but do not withhold from the jury an issue or element, a
defendant cannot assign error unless he or she requested a
proper instruction on the matter. The question presented in
the instant case is whether the failure to instruct on a lesser-
included offense is subject to the second or third part of the
Carleton rule.
Our early case law on this question is inconsistent. In Dolan
v. State,32 the defendant was charged with assault with intent to
murder. The jury was not instructed on lesser grades of assault,
and the defendant did not request such an instruction. Relying
in part on Vollmer v. State,33 the court held that the second part
of the rule announced in Carleton applied and that because the
“issue of the defendant’s guilt of the lesser grades of assault
was not in fact submitted to the jury,” there was reversible
error, even though no lesser instructions were requested.34 But
Vollmer was a murder case in which this court specifically
noted that there was a statutory duty to instruct on all forms
of homicide.
The holding of Dolan was essentially repeated the next year
in Pjarrou v. State.35 In that case, the defendant was charged
with robbery. He contended the trial court erred because it
failed to instruct the jury on lesser crimes of larceny and
assault, even though he did not request such an instruction. We
reasoned that
[b]y the plea of not guilty the charge of the informa-
tion was traversed and put in issue in all its constitu-
ent elements, and to the extent that the lesser crimes
32 Dolan v. State, 44 Neb. 643, 62 N.W. 1090 (1895), disapproved in part,
McIntyre v. State, 116 Neb. 600, 218 N.W. 401 (1928).
33 Vollmer v. State, 24 Neb. 838, 40 N.W. 420 (1888).
34 Dolan v. State, supra note 32, 44 Neb. at 646, 62 N.W. at 1091.
35 Pjarrou v. State, 47 Neb. 294, 66 N.W. 422 (1896).

STATE v. SMITH 	649
Cite as 284 Neb. 636
were included and entered into the charge of the greater
they became the subjects in the case for necessary and
strict proof.36
We thus held that the court should have instructed the jury
on the lesser-included offenses despite the fact that it was not
requested to do so.
But in Barr v. State,37 we adopted a different approach.
In that case, the defendant was charged with mayhem. In its
instruction to the jury, the court defined mayhem and informed
the jury that if it were not convinced of his guilt of that
crime beyond a reasonable doubt, it could find him guilty of
assault and battery. The instruction, however, did not define
the elements of assault and battery. The jury convicted him of
assault and battery, and he appealed, arguing the instruction
was improper. We held that the “omission” of failing to define
assault and battery was not error because the defendant had
not requested the court to instruct the jury on the definition of
those terms.38
Although Barr differed from Dolan and Pjarrou in that
it did not completely remove a lesser-included offense from
the jury, its holding, and not the holdings of either Dolan or
Pjarrou, was extended in McConnell v. State.39 There, the
defendant was charged with and convicted of assault with
intent to commit rape. On appeal, he argued that the court erred
in failing to instruct the jury on lesser-included offenses such
as assault and battery or simple assault. He had not requested
the jury be so instructed. After concluding that the requested
charges were indeed lesser-included offenses, this court noted
that “authorities are divided on” the issue of whether a request
must be made for lesser-included offense instructions and that
the “weight of authority favors the defendant’s contention.”40
36 Id. at 297, 66 N.W. at 423.
37 Barr v. State, 45 Neb. 458, 63 N.W. 856 (1895).
38 Id. at 462, 63 N.W. at 857.
39 McConnell v. State, 77 Neb. 773, 110 N.W. 666 (1906), disapproved, State
v. Pribil, supra note 24.
40 Id. at 775, 110 N.W. at 667.

650 	284 NEBRASKA REPORTS
Nevertheless, citing Barr, we held that “we are already com-
mitted to the rule that the failure of the court to give such an
instruction is not reversible error, unless such request is ten-
dered and refused.”41 The opinion makes no reference to Dolan
or Pjarrou.
Dolan was expressly disapproved in McIntyre v. State.42
There, the defendant was charged with and convicted of stab-
bing with intent to wound. On appeal, he alleged the trial court
erred in failing to instruct on lesser-included offenses, even
though no request was made. We held that the failure to request
instructions waived any error and expressly disapproved the
language in Dolan to the contrary.
In 1993, we readopted the statutory elements test for deter-
mining lesser-included offenses in State v. Williams.43 In that
case, we articulated the rule to be:
[A] court must instruct on a lesser-included offense if (1)
the elements of the lesser offense for which an instruc-
tion is requested are such that one cannot commit the
greater offense without simultaneously committing the
lesser offense and (2) the evidence produces a rational
basis for acquitting the defendant of the greater offense
and convicting the defendant of the lesser offense.44
In later cases in which we have stated this rule, we have some-
times omitted the italicized language regarding a request for a
lesser-included offense instruction.45 In other cases, we have
included it.46
[7] But although there is inconsistency in the language
we have used over the years, the holdings of our cases since
41 Id.
42 McIntyre v. State, supra note 32.
43 State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
44 Id. at 965, 503 N.W.2d at 566 (emphasis supplied).
45 See, State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v.
Weaver, supra note 27.
46 See, State v. Erickson, supra note 11; State v. Schroeder, 279 Neb. 199,
777 N.W.2d 793 (2010); State v. Banks, 278 Neb. 342, 771 N.W.2d 75
(2009); State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009); State v.
Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

STATE v. SMITH 	651
Cite as 284 Neb. 636
the 1928 McIntyre decision have been consistent. The rule
in a nonhomicide case is that a trial court must instruct on
a lesser-included offense only if requested to do so and the
evidence supports the giving of the lesser-included instruc-
tion.47 However, a court may give a lesser-included instruc-
tion over a defendant’s objection.48 Thus, failure to instruct on
lesser-included offenses in a nonhomicide case falls within the
third part of the Carleton rule; because it does not “impliedly
withhold from the jury some of the issues or elements proper
for [its] consideration,”49 it cannot be considered error if the
defendant did not request the instruction. This rule is solely
one of common law.
[8] But in a prosecution for murder, both the substance and
the source of the rule are different. Neb. Rev. Stat. § 29-2027
(Reissue 2008) provides in relevant part: “In all trials for mur-
der the jury before whom such trial is had, if they find the
prisoner guilty thereof, shall ascertain in their verdict whether
it is murder in the first or second degree or manslaughter . .
. .” This statute, although modified slightly over the years, has
been in effect since the late 1800’s. We have interpreted it to
impose a mandatory rule that 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.50
47 See State v. Pribil, supra note 24. See, also, State v. James, supra note 28;
State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988); State v. Sotelo,
197 Neb. 334, 248 N.W.2d 767 (1977); State v. Bell, 194 Neb. 554, 233
N.W.2d 920 (1975); State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195
(1975); State v. Warner, 187 Neb. 335, 190 N.W.2d 786 (1971); State v.
Caha, 184 Neb. 70, 165 N.W.2d 362 (1969); Guerin v. State, 138 Neb.
724, 295 N.W. 274 (1940); Haynes v. State, 137 Neb. 69, 288 N.W. 382
(1939); McIntyre v. State, supra note 32; State v. Butler, 10 Neb. App. 537,
634 N.W.2d 46 (2001); State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631
(1992).
48 See State v. Pribil, supra note 24.
49 Carleton v. State, supra note 30, 43 Neb. at. 404, 61 N.W. at 709.
50 See, State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), abrogated
on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002);
State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984).

652 	284 NEBRASKA REPORTS
Here, where the charge is attempted murder, we must
decide whether to apply the common-law rule applicable to
nonhomicide cases or the statutory rule applicable to mur-
der cases. The answer is quite simple, as the plain language
of § 29-2027 applies only to trials “for murder.” Criminal
attempt is a codified crime in Nebraska and is punished
in a manner different from the fully accomplished crime.51
Specific to this case, second degree murder is a Class IB
felony codified at Neb. Rev. Stat. § 28-304 (Reissue 2008),
while attempted second degree murder is a Class II felony
codified at § 28-201. Had the Legislature meant § 29-2027 to
apply to trials for attempted murder, it could have easily so
provided. We therefore find the plain language of the statute
applies only to murder trials.
We acknowledge that two prior cases appear to adopt a dif-
ferent interpretation of § 29-2027. In State v. Al-Zubaidy,52 an
appeal from a conviction of attempted first degree murder, we
held that the trial court erred in not giving a lesser-included
offense instruction on attempted second degree murder, despite
the fact that the defendant had not requested the instruction.
We did so in reliance on the rule stated in State v. Rowe53 that
where murder is charged, the court is required, without request,
to charge on such lesser degrees of homicide as to which the
evidence is properly applicable. Rowe was an appeal from a
second degree murder conviction which we reversed because
there was evidence that the killing resulted from a sudden quar-
rel, but the trial court failed to instruct on manslaughter. As we
have noted above, a court’s duty to instruct on lesser degrees
of homicide supported by the evidence in a murder trial derives
from § 29-2027. Our opinion in Al-Zubaidy did not recognize
this distinction, nor did it explain how the statutory rule could
apply in a trial for attempted murder.
[9] In State v. Dixon,54 an appeal from a conviction for
attempted first degree murder, we relied on Al-Zubaidy in
51 See Neb. Rev. Stat. § 28-201 (Cum. Supp. 2012).
52 State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).
53 State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).
54 State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000).

STATE v. SMITH 	653
Cite as 284 Neb. 636
concluding that the trial court erred in not instructing on
attempted second degree murder despite the fact that the
defendant had not requested this instruction. Dixon also relied
on the principle that
[i]t 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 omis-
sion of certain elements have the effect of withdrawing
from the jury an essential issue or element in the case are
prejudicially erroneous.55
But that principle is derived from the second part of the
Carleton rule, and as we have discussed, failure to instruct on
lesser-included offenses in a nonhomicide case is governed
by the third part of the Carleton rule, which precludes a find-
ing of error in the absence of a request for the instruction. We
therefore conclude that our decisions in Al-Zubaidy and Dixon
were incorrect on this point, and insofar as they hold that in
a nonhomicide case, a trial court has a duty to instruct on
lesser-included offenses in the absence of a request for such an
instruction, we disapprove them.
Here, Smith did not request an instruction on attempted
sudden quarrel manslaughter. Because he was charged with
attempted murder, a nonhomicide charge, the district court
had no duty to instruct on any lesser-included offenses in the
absence of such a request. Smith has not preserved this issue
for appellate review, and the Court of Appeals erred in relying
on the court’s sua sponte duty to instruct as a basis for remand-
ing the cause for a new trial.
(c) Ineffective Assistance of Counsel
For the sake of completeness, we note that the Court of
Appeals also addressed whether Smith’s trial counsel was
ineffective for failing to request an instruction on attempted
sudden quarrel manslaughter. It concluded that his counsel
could not have been deficient in failing to request the instruc-
tion, because at the time of the trial, the crime of attempted
55 Id. at 982, 614 N.W.2d at 294, citing State v. Brown, 258 Neb. 346, 603
N.W.2d 456 (1999).

654 	284 NEBRASKA REPORTS
voluntary manslaughter did not exist in Nebraska. The court
reasoned that trial counsel could not have been ineffective “for
not anticipating” how this court would rule in Smith.56
We agree with this rationale and holding. Therefore, because
(1) the trial court had no duty to instruct on attempted sud-
den quarrel manslaughter in the absence of a request to do so
and (2) Smith’s trial counsel was not ineffective in failing to
request such an instruction, we must conclude that Smith has
presented no error which would entitle him to a new trial.
3. preJudiCe ANd plAiN error
But notwithstanding this conclusion, we cannot ignore the
fact that our decision in Smith brought about a significant
change in the law after this case was tried and while it was
pending on appeal. At the time this case was tried, voluntary
manslaughter was an unintentional crime and the crime of
attempted voluntary manslaughter did not exist.57 There was
thus no reason for Smith to request an instruction on attempted
voluntary manslaughter, even though there was evidence of a
sudden quarrel. Given the intervening change in the law, we
conclude that Smith is entitled to a new trial.
[10] In Griffith v. Kentucky,58 the U.S. Supreme Court held
that “a new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, state or federal, pending
on direct review or not yet final, with no exception for cases
in which the new rule constitutes a ‘clear break’ with the
past.” The Court reasoned that after it decides a new rule in a
particular case, the “integrity of judicial review requires” that
the new rule be applied “to all similar cases pending on direct
review.”59 The Court further reasoned that “selective applica-
tion of new rules violates the principle of treating similarly
situated defendants the same.”60 The Court noted that the ideal
56 State v. Smith, supra note 1, 19 Neb. App. at 728, 811 N.W.2d at 738.
57 See State v. Jones, supra note 4.
58 Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649
(1987). See, also, State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
59 Griffith v. Kentucky, supra note 58, 479 U.S. at 323.
60 Id.

STATE v. SMITH 	655
Cite as 284 Neb. 636
of even-handed administration of justice would not be served
if only the defendant in the case announcing the new rule
could receive its benefit and other similarly situated defendants
could not.
We applied these principles in State v. Mata.61 There, we
held that the new constitutional rule requiring a jury to deter-
mine aggravating factors in a capital sentencing proceeding
announced by the U.S. Supreme Court in Ring v. Arizona62
required resentencing of a defendant whose death sentence
was pending on appeal at the time that Ring was decided,
notwithstanding the fact that he had not raised at his sen-
tencing hearing the substantive issue which was decided in
Ring. Invoking the doctrine of plain error, we reasoned that
the error was plainly evident from the record, that it affected
a substantial right of the defendant, and that to ignore the
error would “result in damage to the integrity, reputation, and
fairness of the judicial process.”63 We agreed with the U.S.
Supreme Court that “‘where the law at the time of trial was
settled and clearly contrary to the law at the time of appeal—
it is enough that an error be “plain” at the time of appel-
late consideration.’”64
[11] Although our decision in Smith did not announce a new
constitutional rule, we conclude that the reasoning of Griffith
and Mata applies. 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 a 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.65 Accordingly,
although our reasoning differs in some respects from that of the
Court of Appeals, we agree with its determination that Smith
61 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated in part on
other grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
62 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
63 State v. Mata, supra note 61, 266 Neb. at 699, 668 N.W.2d at 477.
64 Id., quoting Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137
L. Ed. 2d 718 (1997).
65 State v. Mata, supra note 61.

656 	284 NEBRASKA REPORTS
is entitled to a new trial at which the jury can be instructed on
the distinction between second degree murder and voluntary
manslaughter under our holding in Smith66 for the purpose of
determining whether Smith committed the charged offense of
attempted second degree murder.
We emphasize, however, that the Court of Appeals misinter-
preted our opinion in 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.67 Although voluntary manslaughter is
a lesser degree of homicide, it is not a lesser-included offense
of second degree murder under the elements test, because it is
possible to commit second degree murder without committing
voluntary manslaughter; one who intentionally kills another
without premeditation and without the provocation of a sudden
quarrel commits second degree murder, but does not simultane-
ously commit manslaughter. 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 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 manslaugh-
ter. Thus, where there is evidence that (1) a killing occurred
intentionally without premeditation and (2) the defendant was
acting under the provocation of a sudden quarrel, a jury must
be given the option of convicting of either second degree mur-
der or voluntary manslaughter depending upon its resolution of
the fact issue regarding provocation.
4. self -defeNse
[12] Because we are reversing Smith’s conviction and
remanding for a new trial, it is not necessary that we resolve
66 See State v. Moore, 276 Neb. 1, 751 N.W.2d 631 (2008).
67 State v. Smith, supra note 1, 19 Neb. App. at 722, 811 N.W.2d at 734.

STATE v. SMITH 	657
Cite as 284 Neb. 636
his argument that the Court of Appeals erred in finding he
was not entitled to a self-defense instruction in the first trial.
However, an appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those
issues are likely to recur during further proceedings.68
Obviously, we cannot predict whether Smith will assert
self-defense at his second trial or what evidence there might
be to support this defense. But we reject his argument that
because the evidence at his first trial was sufficient to raise
an inference of sudden quarrel, it was necessarily sufficient
to support an inference of self-defense. Self-defense is a
statutorily defined affirmative defense in Nebraska.69 Section
28-1409 provides:
[T]he use of force upon or toward another person is jus-
tifiable when the actor believes that such force is imme-
diately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on
the present occasion.
. . . .
(4) The use of deadly force shall not be justifiable
under this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily harm, kidnapping or sexual intercourse compelled
by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting
a claim of right thereto or by complying with a demand
that he abstain from any action which he has no duty to
take . . . .
68 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011); State v. Riley,
281 Neb. 394, 796 N.W.2d 371 (2011).
69 Neb. Rev. Stat. § 28-1409 (Reissue 2008); State v. Iromuanya, 272 Neb.
178, 719 N.W.2d 263 (2006).

658 	284 NEBRASKA REPORTS
Deadly force is force which the actor uses with the purpose
of causing or which he knows to create a substantial risk of
causing death or serious bodily harm.70 Purposely firing a
weapon in the direction of another person constitutes deadly
force.71 To successfully assert a claim of self-defense, one must
have a reasonable and good faith belief in the necessity of
using such force.72 In addition, the force used in self-defense
must be immediately necessary and must be justified under
the circumstances.73
The Court of Appeals found there was “no evidence that
Smith had a reasonable and good faith belief that he needed
to protect himself against death or serious bodily harm, which
would justify his use of deadly force.”74 It noted that after
Helmstadter fired shots in the air, “the fight broke up,” and
Smith then “grabbed” the gun and fired at Marcus, “who was
running away from him.”75 It also noted Smith had two oppor-
tunities to retreat because he could have chosen not to follow
Marcus to Save-Mart and/or could have chosen to get in the
vehicle and leave after the fight ended.
In his petition for further review, Smith contends that there
was evidence that the fight did not end after Helmstadter fired
the shots in the air. Specifically, he points to the testimony of
a witness who said that after the shots, the fighting “wasn’t as
intense.” Smith argues that on this evidence, the jury “could
easily have found [that] he was attempting to protect himself
from a severe and perhaps life-threatening beating, and met
that threat with force that was immediately necessary for that
self-protection.”76 He further argues that the fact that the Court
of Appeals found sufficient evidence of a sudden quarrel at the
70 Neb. Rev. Stat. § 28-1406(3) (Reissue 2008).
71 State v. Iromuanya, supra note 69.
72 Id.
73 Id.
74 State v. Smith, supra note 1, 19 Neb. App. at 729, 811 N.W.2d at 738.
75 Id.
76 Memorandum brief for appellant in support of petition for further review
at 8.

BLAKELY v. LANCASTER COUNTY 	659
Cite as 284 Neb. 659
time of the shooting “undermines its finding that [Smith] could
have retreated rather than fire the weapon.”77
We disagree. Even if Smith was provoked by a sudden quar-
rel to fire the shot which hit Marcus, it does not necessarily
follow that he was justified in using deadly force by a belief
that it was necessary to protect himself against death or seri-
ous bodily harm. We agree with the Court of Appeals that on
this record, there is no evidence that Smith had a reasonable
and good faith belief that he needed to protect himself against
death or serious bodily harm at the moment that he fired the
shots. Whether he was provoked by a sudden quarrel to fire the
shots is a separate and distinct inquiry which is not dependent
upon a reasonable and good faith belief in the necessity of
using deadly force for self-protection.
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals which affirmed in part and in part
reversed the judgment of the district court and remanded the
cause for a new trial.
A ffirmed.
CAssel, J., not participating.
77 Id. at 9.
mike blAkely, AppellANt, v. lANCAster C ouNty,
NebrAskA, ANd the lANCAster C ouNty
persoNNel poliCy boArd, Appellees.
825 N.W.2d 149
Filed November 16, 2012. 	No. S-11-686.
1. Administrative Law: Words and Phrases. An administrative agency is a gov-
ernmental authority, other than a court and other than a legislative body, which
affects the rights of private parties through either adjudication or rulemaking.
2. Civil Service: Administrative Law: Words and Phrases. Under the County
Civil Service Act, Neb. Rev. Stat. §§ 23-2517 to 23-2533 (Reissue 2012), a “per-
sonnel policy board” is an administrative agency performing quasi-judicial func-
tions when it reviews a grievance of, or disciplinary action against, a classified
service employee.