State of Nebraska v. John Cave

• Overview
• Cave's Brief on Appeal
• The State's Brief on Appeal
• The Court's Decision
• Back to Malice Index

Overview of State v. Cave

When you read the brief of the Appellant (Cave) the first thing to notice is that there are only two Assignments of Error.

I. The evidence was insufficient as a matter of law to sustain the Defendant's convictions for second degree murder and attempted first degree murder.

II. The District Court abused its discretion in admitting, over objection, evidence of the Defendant's prior behavior.

We will only concern ourselves with the first assignment of error, Issue I.

Then look at the 5th (V.) and the 6th (VI.) Propositions of Law quoted by Cave's attorney. They quote from In re Winship, a U.S. Supreme Court case that says the prosecution must prove the absence of Maine's equivalent of a sudden quarrel when the issue is properly presented, citing Mullaney v. Wilbur, among others.

Cave asks the question

I recommend that you read the entire Argument I. This argument is more than just insufficient evidence. It is (1) that the State has the burden of proving the lack of a sudden quarrel, beyond a reasonable doubt, and (2) that the State failed to meet that burden. It is the first part of this argument that is the most revealing. Cave's brief makes no argument that the 2nd degree murder statute is unconstitutional but cites Mullaney v. Wilbur quite often to argue that the State had to prove a sudden quarrel did not exist, because the issue of a sudden quarrel had been presented by the State's own evidence. But, as you will see later, Mullaney v. Wilbur went farther than this and found Maine's second degree murder statute to be unconstitutional. Neither Cave's nor the State's brief talks about that.

It should be fairly obvious that the point presented to the Nebraska Supreme Court is that, at least where there is some evidence of a sudden quarrel, the State has to distinguish between the crime of 2nd degree murder and manslaughter upon a sudden quarrel. Cave argues that in order to make that distinction, the State must prove the lack of a sudden quarrel beyond a reasonable doubt. Our argument is a little more general than that. We argue that it is the 2nd degree murder statute itself which doesn't distinguish between the two crimes. Not only does it not put the burden of proving a distinction upon the State, it doesn't even tell a defendant how he can go about presenting the defense that the crime is only manslaughter and not 2nd degree murder.

The State presumes we know the answer

The State argues that there was sufficient evidence to convict Cave. Only the last point (C.) of their first argument touches on the burden of proof. The State says, without reciting any case law to support it, "We should presume a court, setting without a jury, is properly instructed in the law." Is that correct when the statute doesn't tell us whether the lack of a sudden quarrel is or isn't an element of the crime of second degree murder that the State has to prove beyond a reasonable doubt?

The Court says its not clear, but won't answer the question

In the Nebraska Supreme Court's decision on the sufficiency of the evidence argument, the second paragraph starts off, "As an initial matter, we note the defendant's contention that...." Off they go discussing Mullaney v. Wilbur and Patterson v. New York, and the burden of proof. Four paragraphs later the Court ends up avoiding the real question that this has revealed, "....it is by no means clear that in a prosecution for second degree murder, the burden is on the State to prove the absence of a sudden quarrel beyond a reasonable doubt. We do not decide the question, however, because even assuming the State carried such a burden, the evidence is sufficient to sustain the convictions in this case."

If the statute doesn't tell us who has this burden of proof and the Court says "it is by no means clear" who has the burden of proof, how can a defendant prepare a defense for such an accusation? This is what "fair warning" is all about. What this case shows is that, long before State v. Myers the Court was made aware that there was some question as to what the standard of proving guilt in a second degree murder case was. We will see how the Court responds to this question in State v. Myers.

I criticize the decision in State v. Cave, first, for not answering the question put to them; who has the burden of proof regarding the sudden quarrel. Second, because their analysis of the sufficiency of the evidence ignores the fact that a defendant may have had more evidence of a sudden quarrel but did not present it because that defendant felt it was the State who had the burden to disprove the sudden quarrel. Knowing who has the burden of proof would have given future defendants "fair warning"of how to present their defenses to 2nd degree murder charges. Instead, the decision in State v. Cave continued to coverup the problem.

Cave's Brief

STATE OF NEBRASKA Appellee,

JOHN O. CAVE, Appellant

REPLACEMENT BRIEF OF APPELLANT

I. The evidence was insufficient as a matter of law to sustain the Defendant's convictions for second degree murder and attempted first degree murder. . . . . . . .7-15

II. The District Court abused its discretion in admitting, over objection, evidence of the Defendant's prior behavior. . . . . . . . . . . . . . . . . . . . . . .15-16

Cage v. Louisiana, 111 S.Ct. 328 (1990). . . . . . . . . . . . . . . . . . . . . .8
Mullaney v. Wilbur, 421 U.S. 684, 687 (1985). . . . . . . . . . . 9, 10, 11, 12
State v. Friend, 230 Neb. 765, 433 N.W.2d__(1988). . . . . . . . . . .15, 16
State v. Lafferty, 309 A.2d.647 (1973). . . . . . . . . . . . . . . . . . . . . . . 8
State v. Pettit, 233 Neb. 436, ___N.W.2d___(1989). . . . . . . . . . . . .8, 14
State v. Trevino, 230 Neb. 85, ___N.W. 2d___(1990). . . . . . . . . . . . 15
State v. Walker, 235 Neb. 85, ___N.W.2d___ (1990). . . . . . . . . . . . . 14
State v. Wilbur,278 A.2d. 139 (1981). . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Lesina, 833 Fed. Rptr.2d 156 (1987). . . . . . . . . . . . . 12
United States v. Lofton, 776 F.2d.918 (1985). . . . . . . . . . . . . . . . . . . . 11

(a) Nature of the Case
This was a criminal prosecution in which the Defendant was charged with First Degree Murder, Attempted Second Degree Murder and two counts of Use.

(b) The Issues Tried in the Court Below
The issues tried in the Court below were whether the Defendant committed the above crimes.

(c) How The Issues were Decided and Judgment Entered
After a bench trial, the Defendant was found guilty of Murder in the Second Degree, Attempted First Degree Murder, and two counts of Use.

(d) The Scope of Review
The scope of review is error on the record and plain error. In addition, in determining the sufficiency of the evidence to support a criminal conviction, the reviewing court will sustain the conviction if the evidence viewed and construed most favorable to the State is sufficient to support the verdict.

The evidence was insufficient as a matter of law to sustain the Defendant's convictions for second degree murder and attempted first degree murder.

The District Court abused its discretion in admitting, over objection, evidence of the Defendant's prior behavior.

When examining the sufficiency of evidence, the Court must take the view most favorable to the State; however, the Court will reverse convictions where sufficient evidence of guilt is lacking.
State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Herman v. Midland Ag Service, Inc., 200 Neb. 356, 264 N.W.2d.161.

It is within the trial court's discretion to admit or exclude evidence on the ground of relevancy, and such rulings will be upheld absent an abuse of discretion.
State v. Trevino, 230 Neb. 494, ___N.W.2d___(1988).

Admission of irrelevant evidence is harmless error and unless, when with other evidence properly adduced, it effects substantial rights of the adverse party.
State v. Rathburn, 195 Neb. 485, 230 N.W.2d 253 (1976).

The Due Process Clause of the Fourteenth Amendment requires that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged.
In Re Winship, 397 U.S. 358 (1970).

To satisfy that requirement, the prosecution in a homicide case must prove beyond a reasonable doubt the absence of heat of passion on sudden provocation when the issue is properly presented.
In Re Winship, 397,U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975); United States v. Lofton, 776 F.2d. 918 (1985); United States v. Lesina, 833 F.2d. 156 (1987).

The record shows the following: On December 29, 1989, the Defendant, John Cave, resided at 3122 Seward Street along with Marvin Morton, Linda Meck and nine-year old Lance McMisson (5:19-6:6). Cave had been residing there since November of that year. The deceased, Rose Marie Kimball resided at 2705 Fort Street with her three children (10: 12-23). Cave had been acquainted with both Kimball and Meck for a period of five years. Cave pursued romance with Kimball and occasionally visited the Kimball residence, both by himself and in the company of Meck (40:18-41:25). Meck described the Defendant as a "kind and considerate" person who would "help anybody" but he was also going through a breakup with his girlfriend and was quite "hurt about the relationship" (6:7-8:5).

On the day of the shooting, Meck and Kimball spent the morning together (10:24-11:5). Both Kimball and Meck were attending AA meetings and had planned to attend one later in the evening at approximately 7 p.m. (39:4-11). Later that day, Meck needed to return to her residence "to get some money" and she, Kimball, Kimball's two year old daughter Marie and Lance McMisson drove to Meck's residence. When they arrived, Cave was sitting in the living room drinking wine and according to Meck, he appeared "depressed" (11:6-12:4). From there, Rose Marie Kimball, Karen Meck and John Cave left and went to Dailey's Liquor Store and purchase liquor (12:5-13:6). They then ate at McDonald's and continued on to Kimball's Fort Street residence. When they arrived, they all sat down and ate and then both Kimball and John Cave went to the upstairs to lay down (13:18-14:6).

As mentioned earlier, Linda Meck was called as a witness by the State during this trial. Meck, at this point, testified that prior to going upstairs to lay down, Cave made the comment to both Meck and Kimball that "if he couldn't have--have both of us, he didn't want nobody to have us" (16:7-13). The defense disputed the statement and on cross-examination, Meck admitted that she hadn't told the police anything about that. "Well, the police talked to me, but I didn't tell them about, you know, if he can't have both of us--I didn't tell the police that. I did tell the prosecutor that." (48:14-18). Additionally, on cross-examination, Meck testified that this led to "an argument";
Q. Did he say that with her present?
A. Yeah. He said it between both of us, both Rose sneered it off. She didn't--
Q. Uh-huh.
A. --Pay attention to it.
Q. Was there an argument?
A. Ah, yes, between John and Rose.
Q. All right. And it was at that--
A. At that point--
Q. -- point--
A. Yeah.
(43:3-13)

Additionally, the prosecutor on direct examination asked the following: Q. Did John and Rose have any other discussion that you were present at and that you heard?
A. Ah, John did ask Rose at the time if he could stay at the house, and Rose said, "No, I'm going to take you back to where you were staying at. I don't want nobody here except for Lance and the baby.
Q. Did John seem to accept that?
A. No.
Q. What was his mood like at this time?
A. He was a little upset.
Q. Did he ask again?
A. Yes. And she said, "no."
Q. And what was his mood like at this point?
A. Mad.
Q. Had you ever seen him mad before?
A. No.
Q. Now, after Lance went upstairs and awakened Rose, what happened?
A. Ah, Rose came downstairs and John asked her again, "Can I stay?" And Rose said, "No."
Q. Where was John at this time?
A. He was down in the living room.
(16:20-17:16)

Direct examination of Kimball continued with the prosecutor again focusing on the events which occurred in the house prior to Cave, Kimball and Meck leaving for the car (18:11-20:22). Kimball and Meck were on their way to the AA meeting and Cave wanted to stay at Kimball's house while they were gone (43:14-44:13). On cross-examination, defense counsel continued to draw out testimony about "the argument between Kimball and Cave: Q. Shortly before going into the car, correct? And the argument centered mainly around whether John was going to get to stay with the kids while you and Rose Marie went to the AA meeting; is that right?
A. Right. He wanted to stay -- stay there at the house, and Rose said no.
Q. All right. Did John say why he wanted to stay there?
A. He just wanted to stay.
Q. All right. In your opinion, was he being unreasonable?
A. Well, she just --she requested him not to stay there. He was pretty mad about it, yes.
Q. He was belligerent about it.
A. Yes, uh-huh. He kept on asking her why I can't stay and Rose said, "I don't want you here."
(43:14-44:2)

Meck then testified that as Rose "was putting the key in the ignition", Meck "heard what I thought was a firecracker", causing her to put her hands on the back of her head and move (20:23-21:25). She then said "John, why did you hit Rose and I -- but "was pretty sure" that at this time, Cave was gone (22:1-15). By this time, Lance McMission was present so Meck, noticing blood on her hands, instructed him to call police (22:13-23:13).

The record indicates that Meck suffered bodily injury from the incident (23:16-27:7). Additionally, during the course of the trial, the State was allowed to present testimony over objections (8:6-21, 35:7-37-37:17) from Meck, about two incidents involving Cave with a weapon. One occurred close to Christmas of 1989 (31:13-33:18) and the other on the day before Kimball was killed (33:18-35:6). Additionally, the State unsuccessfully attempted to bring out evidence about a third incident in which the Defendant was in possession of the gun in front of Meck's husband (35:7-37:17). Concerning the Christmas evidence, Meck testified that Cave had been drinking that day (7:11-9:8) and had took a .22 caliber gun out from underneath the couch and discharged it in the presence of his brother, wife and children (31:15-33:19). Concerning the incident on the day before the shooting in question, Meck testified she observed Cave again shooting the gun "up in the air" after an argument with Kimball (33:21-35:6). Additionally, Meck testified that the couple had been fighting since Tuesday of that week (35:7-19).

The trial court found the Defendant guilty of Murder in the Second Degree, Attempted First Degree and two counts of Use of a Weapon during the commission of a felony.

THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE DEFENDANT'S CONVICTIONS FOR SECOND DEGREE MURDER AND ATTEMPTED FIRST DEGREE MURDER.

Under Nebraska law as interpreted by this Court in State v. Pettit, 233 Neb. 436, ___N.W.2d___(1989), there are three types of intentional killings. If a person kills another person purposely and with deliberate and premeditated malice, or in the perpetration of a felony, the person has committed murder in the first degree. Neb. Rev. Stat. §28-303 (Reissue 1989). If a person causes the death of another person intentionally, "but without premeditation", he or she has committed murder in the second degree. Neb. Rev. Stat. §28-304 (Reissue 1989). And finally, under Pettit, supra, a person commits manslaughter, if he intentionally kills another without malice, upon a sudden quarrel. Neb. Rev. Stat. §28-305 (Reissue 1989); Pettit, supra at 461.

Additionally, it is undisputed:

In State criminal trials, the Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). This reasonable doubt standard "plays a vital role in the American scheme of criminal procedure." Winship, 397 U.S., at 363, 90 S.Ct. at 1072. Among other things, "it is a prime instrument for reducing the risk of convictions resting on factual error." Ibid.

Cage v. Louisiana, 111 S.Ct. 328 (1990).

In 1975, Maine state law required a defendant charged with murder to prove that he acted "in the heat of passion on sudden provocation" in order to reduce the homicide to manslaughter. A jury found Stillman Wilbur, Jr., "Guilty of Murder". The case involved a fatal assault in a hotel room. Wilbur claimed that he attacked the man "in a frenzy" provoked by the latter's homosexual advance. The defense offered no evidence and argued that Wilbur lacked criminal intent. Alternatively, Wilbur asserted that at most, it was a manslaughter rather than a murder, since it occurred in the heat of passion.

The trial court instructed the jury that in Maine there are two types of homicide, murder and manslaughter and that the prosecution is required to prove the elements beyond a reasonable doubt. The jury was further instructed that if the prosecution established an unintentional and unlawful homicide, malice afterthought was to be implied "unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation". The jury found Wilbur guilty of murder. Wilbur appealed to the Maine Supreme Court:

"Respondent appealed to the Maine Supreme Judicial Court, arguing that he had been denied due process because he was required to negate the element of malice aforethought be proving that he had acted in the heat of passion on sudden provocation. He claimed that under Maine law malice aforethought was an essential element distinguishing murder from manslaughter. Respondent contended, therefore, that this Court's decision in Winship requires that the prosecution to prove the existence of that element beyond a reasonable doubt.

Mullaney v. Wilbur, 421 U.S. 684, 687 (1985).

The Maine Supreme Court rejected this contention in State v. Wilbur, 278 A.2d.139 (1971). In doing so, the Court "noted that it did not anticipate the application of the Winship principle to be a factor, such as the heat of passion on sudden provocation." Mullaney, supra, at 688.

The United States District Court rejected this view as did the First Circuit Court of Appeals. Following this decision, the Maine Supreme Court again decided in State v. Lafferty, 309 A.2d. 647 (1973), to allow the prosecution to shift "to the defendant to prove that he acted in the heat of passion on sudden provocation in order to receive the lesser felony prescribed for manslaughter." Mullaney, supra, at 698.

In view of Maine's Supreme Court's consistent rejection of the Winship principles and "because of the importance of the issue presented", the United States Supreme Court accepted certiorari and decided "the issue is whether the main rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process." Mullaney, supra, at 692.

Justice Powell, writing for the Court, stated:

"It has been suggested, State v. Wilbur, 278 A.2d, at 145, that because of the difficulties in negating and argument that the homicide was committed in the heat of passion that burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.

Indeed, the Maine Supreme Judicial Court itself acknowledged that most States require the prosecution to prove the absence of passion beyond a reasonable doubt. Id., at 146. Moreover, the difficulty of meeting such an exacting burden is mitigated in Maine where the fact at issue is largely an "objective, rather than a subjective, behavior criterion." State v. Rollins, 295 A.2d., at 920. In this respect, proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. And although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him. See Tot v. United States, 319 U.S. 463, 469 (1943); Leary v. United States 395 U.S. 6, 45 (1969).

Nor is the requirement of proving a negative unique in our system of criminal jurisprudence. Maine itself requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Millett, 274 A.2d. 504 (1971). Satisfying this burden imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden to proving a fact so critical to criminal culpability.

Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U.S., at 372 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue properly presented in a homicide case.

Mullaney, supra, at 701-704.

In United States v. Lofton, 776 F.2d. 918 (1985), the defendant, Jessica Lofton, was found guilty of Murder in the Second Degree after being charged with Murder in the First Degree of fatally shooting her husband, at a Fort Riley military reservation. Her defense at trial was that she acted in the heat of passion on adequate provocation, "which would constitute the lesser included offense of voluntary manslaughter". On appeal, she contended that the trial court failed to adequately instruct the jury of her heat of passion defense. Despite defense counsel's failure to object to the Court's instructions, the Court found, under the plain error rule, that the Court erred in failing to instruct the jury, "on the government's special burden when a heat of passion defense is raised: that the prosecution must prove beyond a reasonable doubt that the absence of heat of passion in order to obtain a conviction for murder". Lofton, supra, at 921. The Court rested its decision upon the basic principle of Winship that "the prosecution in a criminal case must prove beyond a reasonable doubt every element of the crime charged and that failure to hold the government to its burden "exempts the government from its obligation under the due process clause to prove the defendant guilty of murder beyond a reasonable doubt." Mullaney, supra, at 920. Essentially, the Lofton court determined that Mullaney required them to hold that a defendant in a federal murder case who has sufficiently raised a heat of passion defense is entitled to have the jury instructed that it is the government's duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.

This principle was again reaffirmed in United States v. Lesina, 833 Fed. Rptr. 2d 156 (1987). Again, the Federal District Court reversed the defendant's conviction because the Judge failed to instruct that the government must prove beyond a reasonable doubt that the defendant did not act in a heat of passion or upon a sudden quarrel.

In light of the foregoing, the record in this case establishes that an unlawful killing, "upon a sudden quarrel", occurred and the State certainly did not prove beyond a reasonable doubt otherwise.

According to testimony put forth by the prosecution, on the day of the shooting, Cave and Kimball had a "discussion" centering around whether or not Kimball was going to allow Cave to stay at her residence (16:20-17:16). This discussion escalated into an argument between Kimball and Cave which continued all the way up to the time of the shooting.

It cannot be disputed the Due Process Clause of the Fourteenth Amendment requires that the prosecution prove beyond a reasonable doubt the absence of heat of passion in order to obtain a conviction for Second Degree Murder. Mullaney, Lofton, Lesina, supra.It cannot be said that the prosecution in this case met its burden of proof. In relation to the "sudden quarrel"involved in "manslaughter", this Court has previously determined:

"Sudden quarrel does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim. See State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984). Rather, in relation to manslaughter, a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control, or, as expressed in Savary v. State, 62 Neb. 166, 175, 87 N.W. 34, 47-48 (1901):
whether the defendant acted under the impulse of passion suddenly aroused which clouded the reason and prevented rational action . . .whether there existed reasonable and adequate provocation to excite the passion of the defendant and obscure and disturb his power of reasoning to the extent that he acted rashly and from passion, without due deliberation and reflection, rather than from judgment."

State v. Pettit, supra, at 454.

Nowhere is it stated that if the fact finder is the judge, this somehow lessens the State's burden.

"Since we are dealing in criminal cases with human liberty" State v. Walker, 235 Neb. 85, ___N.W.2d___(1990).

In this case, evidence exists that a "sudden quarrel occurred and the defendant acted under the impulse of passion". The record reveals that at the time of the killing, there existed reasonable and adequate provocation which would have obscured and disturbed his power of reasoning to the extent that he acted "rashly and from passion, without due deliberation and reflection, rather than from judgment". Pettit, supra, at 454. To say in this case the State proved beyond a reasonable doubt that this did not occur would be intolerable. No doubt, the burden is heavy for the prosecution to satisfy, however in this case, the prosecution does absolutely nothing to negate the argument that the homicide was committed in the heat of passion. Although it may have been difficult to prove that the defendant did not act in the heat of passion upon sudden provocation, the burden "is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. The prosecution did absolutely nothing to establish factual circumstances, indicating that this homicide did not occur in the heat of passion upon sudden provocation. Relieving the State of its burden in this particular case would lead to the likelihood of erroneous murder convictions in other cases. This Court should therefore hold that the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation and that they clearly failed to do so in this case.

Therefore, the convictions for Second Degree Murder, Attempted First Degree Murder and using a weapon while committing these felonies should be reversed.

THE DISTRICT COURT ABUSED ITS DISCRETION IN ADMITTING, OVER OBJECTION, EVIDENCE OF THE DEFENDANT'S PRIOR BEHAVIOR.

"It is within the trial court's discretion to admit or exclude on the ground of relevancy, and such rulings will be upheld absent an abuse of discretion." State v. Trevino, 230 Neb. 494, __N.W.2d__(1988).

"Generally, the admission or exclusion of evidence is a matter within the discretion of the trial court, which ruling is not be disturbed on appeal absent an abuse of discretion." State v. Friend, 230 Neb. 765, ___N.W.2d__(1988).

The critical issue in the Defendant's trial is whether or not he killed Rose Kimball purposely and deliberately with premeditated malice on December 21, 1989 (T:1).

The Defendant argues that testimony concerning him discharging a firearm approximately a month prior to this incident was not relevant in any way to this case. The trial court determined that the incident that had apparently taken place between Cave and Marvin occurring on the Tuesday before the shooting was irrelevant to the issues at hand (35:7-36:10). It would seem that an incident occurring a month prior to the shooting would also be irrelevant. Finally, the Defendant would argue the incident about him discharging a firearm on the day before the shooting was also irrelevant. Alternatively, the Defendant would argue that "the probative force of the evidence" was "minimal" and that "the evidence of prior acts was, however, extremely probative on the one issue for which it may not be offered: character of the accused." Friend, supra, at 768.

Therefore, there was an abuse of discretion and the trial court's decision to let this evidence in. It cannot be said this evidence did not "materially influence" the judge in reaching this verdict. Therefore, the admission of this evidence was prejudicial and certainly not harmless.

Respectfully submitted,
THOMAS M. KENNEY
Douglas County Public Defender
BRIAN S. MUNNELLY
Assistant Public Defender

This is not a case where there exists even a question that the burden on any element of the offenses in question here has shifted to Mr. Cave. The State carried its burden on every element of the offense found. Although Cave's brief cites considerable authority for the proposition that the shifting of such a burden would be impermissible, he cites nothing in this record to indicate that such an even has transpired.

We should presume a court, setting without a jury, is properly instructed in the law.

Cave next argues that certain evidence that he had previously discharged a firearm was inappropriately admitted by the trial court.

Cave argues that "testimony concerning him discharging a firearm approximately a month prior to this incident was not relevant". (Brief of Appellant, p. 13) (Emphasis added) Testimony regarding Cave's discharging the firearm came into the record at (33:11-13) and (34:17-35:3). No objection was made to that testimony.

If a party does not make a timely objection to the admission of evidence, that party waives the right to assert on appeal prejudicial error with regard to that evidence. State v. Chapman, 234 Neb. 369, 451 N.W.2d 263 (1990).

At one point the State asked witness Linda Meck:

Q. Have you ever seen John Cave with a handgun while he was staying with you during the period of November 25th until December 29th, 1989?
A. Yes, I have.
Q. Where was this and when did you see it?
MR. RILEY: Objection. Irrelevant.
THE COURT: Overruled.
THE WITNESS: I've seen him. He had the handgun at my house.

(31:15-23). The only defense objection not sustained during the testimony about which Cave complains (35:7-36:10) was to the relevancy of the question: "Where was this [that Cave was seen with a handgun] and when did you see it?" (35:19).

The testimony, admitted by a court sitting without a jury, was relevant. This testimony established Cave's possession of a loaded handgun. Linda Meck did not observe a gun in Cave's possession on the evening of the homicide. (31:5-14) Lance Meek did not see a gun in Cave's possession following the shooting. (72:10) Rosemarie cannot tell us what she saw. Therefore, this testimony was relevant to show that Cave, at a time near the homicide (1) possessed a loaded handgun and (2) normally carried it concealed on his person. (36:16-37:11)

The evidence against Cave, taken as a whole, so clearly points to his responsibility for these crimes that any alleged error in the admission to this evidence is harmless.

Three people entered a motor vehicle. The windows are up. The doors are closed. The two occupants of the front seat suffer gunshot wounds to the head inflicted from the rear. No evidence of bullets entering the vehicle is discovered. (100:9-12) John Cave carried a small .22 caliber handgun. John Cave was occupying the rear seat of the vehicle when the shots were fired.

First, this was a trial to the court not a jury. Second, even if trial error exists, evidence of guilt here is so overwhelming that no prejudice can reasonably be said to have been suffered by Mr. Cave. State v. Pribil, 227 Neb. 397, 417 N.W.2d 786 (1988).

For each and all of the foregoing reasons the judgment and sentence of the District court should be affirmed.

The Court's Decision

Appeal from the District Court for Douglas County: Donald J. Hamilton, Judge. Affirmed.

Thomas M. Kenney, Douglas County Public Defender, and Kelly S. Breen for appellant.

Don Stenberg, Attorney General, and J. Kirk Brown for appellee.

HASTINGS, D.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., WHITE, J.

This is a criminal case in which the defendant-appellant, John O. Cave, was charged with first degree murder for the killing of Rose Kimball (count I), attempted first degree murder for the shooting of Linda Meck (count III), and two counts of using a firearm in the commission of a felony (counts II and IV). See Neb. Rev. Stat. §§28-303, 28-201, and 29-1205 (Reissue 1989). The defendant pled not guilty and also, though the record does not so reflect, apparently waived his right to a jury trial, resulting in the case being tried to the Douglas County District Court sitting without a jury. The court found the defendant guilty of both counts of use of a firearm in the commission of a felony and, regarding counts I and III, guilty of the lesser-included offenses of second degree murder and attempted second degree murder. See Neb. Rev. Stat. §28-304 (Reissue 1989).

The court sentenced the defendant to life imprisonment on count I, 15 to 30 years' imprisonment on count III, and 6 to 15 years' imprisonment on each of counts II and IV. The court ordered that the sentences imposed on counts II and IV run consecutively to those imposed on counts I and III and that the sentence imposed on count III run concurrently with those imposed on counts I and II. Finally, the court granted the defendant credit for 163 days' time served and ordered him to pay the costs of the action. From the foregoing judgment and sentences, the defendant appeals.

During November and December 1989, the defendant lived with Linda Meck, Marvin Morton, and Linda's 10 year-old son, Lance, at their residence in Omaha, Nebraska. Linda subsequently married Marvin, and at the time of trial, she was know as Linda Morton. Linda had offered the defendant a place to stay after he broke up with his girl friend. Linda testified that during this time period, the defendant was depressed over the breakup and was drinking heavily.

On December 29, Linda spent the day with her best friend, Rose Kimball. At approximately 5 p.m., Linda, Rose, Lance, and Rose's 2-year-old daughter, Marie, stopped by Linda's residence. They found the defendant sitting in the living room drinking wine. Linda testified that the defendant was "pretty out of it," meaning he was very intoxicated. When Linda told Marvin that they were going over to Rose's, the defendant decided to go along.

Linda, Rose, the two children, and the defendant left in Rose's car. They stopped at a liquor store, where Linda bought the defendant some wine, and then at a fast-food restaurant, where they purchased some food, before going to Rose's house. As they ate their dinner at Rose's the defendant twice asked Rose if he could stay at the house. When Rose responded in the negative, the defendant became upset and angry. Linda testified that the defendant told them that "if he couldn't have-have both of us, he didn't want nobody to have us." Linda also testified that after the breakup with his girl friend, the defendant wished to pursue a romantic relationship with Rose, but Rose was not interested.

At approximately 6 p.m., Rose went upstairs to take a nap, telling Linda to wake her in time for their 7 o'clock Alcoholics Anonymous meeting. The defendant also went upstairs to take a nap at this time. A short time later, Linda sent Lance to wake Rose. After telling his mother that he had awakened Rose, Lance went back upstairs to play with an Atari computer game located in one of the bedrooms. Lance testified that while he was upstairs, he heard Rose and the defendant arguing in the hallway. He heard Rose say, "Johnny, you're going--you're going to your brother's house." Lance further testified that as they were walking downstairs, Lance heard the defendant tell Rose, "If I can't have you, no one can."

The argument continued downstairs, with the defendant again asking if he could stay and Rose again denying the request. At that point, Rose told Linda it was time to leave and told the defendant she was going to take him home. Linda and Rose then told Lance, who was to watch the baby, that they were leaving, and the three adults walked out to the car. Linda testified that the defendant was quiet as they approached the car and that there was no yelling, screaming, or fit of anger at this point. Lance, however, testified that he heard screaming coming from the driveway, which caused him to look out the bedroom window.

In any event, Rose got into the driver's seat of the car; Linda sat in the front passenger-side seat; and the defendant got into the backseat behind Linda. As Rose put the key in the ignition, Linda heard a scream and two noises that sounded like "a firecracker." Lance testified that he heard five or six "firecrackers" from the upstairs bedroom. Linda placed her hands behind her head to protect herself and then turned to the defendant and asked, "John, why did you hit Rose and I?" Linda then saw that Rose was bleeding from the mouth, and she jumped out of the car and instructed Lance, who was coming from the house, to call the police.

Emergency personnel arrived shortly thereafter. The defendant was gone by this time, though neither Linda nor Lance remembered seeing him leave the scene. The defendant turned himself over to authorities in Missoula, Montana, on December 31, 1989. He subsequently waived his right to extradition and was returned to Nebraska for trial.

A pathologist who performed the autopsy on Rose testified that she sustained two gunshot wounds to the head, one of which resulted in multiple fractures and a right subdural hemorrhage and caused her death. Linda survived despite suffering three gunshot wounds to the back of her head as well as wounds to her hands.

Linda testified that she did not see the defendant with a gun at any time on December 29. However, she did testify to seeing him with a small handgun during the time he lived with her. She testified that she saw the defendant remove the gun from under a cushion on the couch where he slept. Linda further testified that on December 18, the defendant discharged the gun inside her house in front of Lance. She also testified that on December 28, the day before the occurrence at issue, the defendant discharged the gun into the air as Rose was driving down the street with Marie and Lance.

On appeal, the defendant argues (1) that the evidence is insufficient as a matter of law to sustain the convictions of second degree murder and attempted second degree murder and (2) that the trial court erred in admitting testimony regarding his discharge of a handgun during the days and weeks prior to the shootings.

As previously noted, the State charged the defendant in this case with one count of first degree murder and one count of attempted first degree murder. A person commits first degree murder by killing another purposely and with deliberate and premeditated malice. §28-303(1). The trial court found that the State failed to carry its burden of proving that the shootings were premeditated and therefore did not convict the defendant of these two crimes. The trial court did, however, find that the shootings were intentional and, accordingly, found the defendant guilty of the lesser-included offenses of second degree murder and attempted second degree murder. §28-304(1). For his first assignment of error, the defendant argues that the evidence is insufficient to sustain these convictions.

As an initial matter, we note the defendant's contention that "the Due Process Clause of the Fourteenth Amendment requires that the prosecution prove beyond a reasonable doubt the absence of heat of passion in order to obtain a conviction for Second Degree Murder." Brief for appellant at 13. The defendant relies heavily upon the U.S. Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), for the proposition that the State carries such a burden. However, Mullaney involved a murder prosecution under a statute defining the crime as the unlawful killing of another with "malice aforethought." Me.Rev.Stat.Ann. Tit. 17, §2651 (West 1964) (repealed 1976). Despite the fact that malice aforethought was an essential element of the offense, the trial court instructed the jury that it could presume the existence of malice aforethought from proof that the killing was intentional and unlawful unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion. The Supreme Court held that this instruction violated the defendant's due process rights by shifting to him the burden of disproving an essential element of the crime.

In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Supreme Court addressed the applicability of Mullaney to a scheme more similar to the one involved in this case. In Patterson, the defendant shot and killed his estranged wife's former fiance after finding his wife and the former fiance together. The defendant was charged with second degree murder under a New York statute defining the offense as intentionally causing the death of another. N.Y.Penal Law §125.25(1) (McKinney 1987). The same statute provides for an affirmative defense based upon evidence that the defendant "acted under the influence of extreme emotional disturbance." Id. New York also recognizes the crime of manslaughter, which is defined as the intentional killing of another "under circumstances which do not constitute murder because (the defendant) acts under the influence of extreme emotional disturbance." N.Y.Penal Law §125-20(2) (McKinney 1987). Pursuant to this scheme, the trial court instructed the jury that if it found beyond a reasonable doubt that the defendant had intentionally killed the victim, but he proved by a preponderance of the evidence that he had done so under the influence of extreme emotional disturbance, it had to find him guilty of manslaughter rather than murder. The jury found the defendant guilty of murder, and he appealed.

On appeal, the defendant argued that the New York murder statute was functionally equivalent to the one struck down in Mullaney and was therefore unconstitutional. The Supreme Court rejected this argument, stating:

We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute. . .as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. . . . . .It seems to us that the State satisfied the mandate of [In re]Winship, [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)] that it prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [Patterson was] charged."

Patterson, 432 U.S. at 205-06. The Court concluded that the New York Legislature's decision to impose upon the defendant the burden of proving additional circumstances which lessen his culpability does not violate due process.

Under Nebraska law, second degree murder is defined as causing the death of another intentionally, but without premeditation. §28-304(1). The definition of manslaughter includes the intentional killing of another, without malice, upon a sudden quarrel. Neb. Rev. Stat. §28-305(1) (Reissue 1989);State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989) (to sustain a conviction for voluntary manslaughter, the State must not only prove that the defendant killed another upon a sudden quarrel, but also that he intended to kill the other person). In order to convict a person of second degree murder, the State is required to prove all three elements - the death, the intent to kill, and causation - beyond a reasonable doubt. None of the elements is presumed upon proof of the others, nor is any element presumed in the absence of proof by the defendant of the converse of that element. As in New York, the fact that a homicide occurs "upon a sudden quarrel" is an additional circumstance which serves to mitigate an intentional killing. §28-305(1); Pettit, supra.

It is clear that whether a state's homicide laws violate due process depends a great deal upon the manner in which a state defines the crime charged. State v. Chelette, 463 So. 2d 1282 (La. App. 1984), citing Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Given the similarity between the second degree murder and manslaughter statutes of this state and those of New York, it is by no means clear that in a prosecution for second degree murder, the burden is on the State to prove the absence of a sudden quarrel beyond a reasonable doubt. We do not decide the question, however, because even assuming the State carried such a burden, the evidence is sufficient to sustain the convictions in this case.

On a claim of insufficiency of the evidence, the Supreme Court will not set aside a guilty verdict in a criminal case if the verdict is supported by relevant evidence. State v. Fellman, 236 Neb. 850, 464 N.W.2d 181 (1991). In determining the sufficiency of the evidence to support a conviction, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweighs the evidence. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990). Such matters are for the trier of fact. Id. When the trial of a criminal case is to the court rather than a jury, the trial court's factual findings are given the same effect as a jury verdict and will not be set aside unless clearly erroneous. Id.

The crime of manslaughter developed at common law in recognition of the fact that some intentional killings are committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing. Pettit, supra. Thus, "'[a]s a concession to human frailty,'" intentional killings which would otherwise constitute murder are reduced to voluntary manslaughter if committed" 'in the heat of passion as a result of severe provocation.'" Id. 223 Neb.at 449, 445 N.W.2d at 899, quoting 2 Charles E. Torcia, Wharton's Criminal Law §153 (14th ed. 1979).

The fact that two people argue before one intentionally kills the other does not necessarily convert the crime from murder to manslaughter. Rather, as used in §28-305(1), a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. Pettit, supra. The question is "'whether there existed reasonable and adequate provocation to excite the passion of the defendant and obscure and disturb his power of reasoning to the extent that he acted rashly and from passion, without due deliberation and reflection, rather than from judgment. . ." Id. at 454, 445 N.W.2d at 901, quoting Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901). The test is an objective one. Patterson, supra. Qualities peculiar to the defendant which render him particularly excitable, such as intoxication, are not considered. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law §7.10(10) (1986).

With these principles in mind, we address separately the defendant's convictions for second degree murder and attempted second degree murder.

Rose Kimball and the defendant clearly argued prior to the shootings. However, the record indicates that this argument resulted from the defendant's anger at Rose's refusal to allow him to stay at her house. In rejecting the defendant's request Rose explained that she did not want anyone in the house with her 2-year-old daughter except Lance. The record reveals that, to the extent Rose became angry at all, her anger resulted from the defendant's refusal to accept her initial decision and his insistence on pursing the matter after such refusal. Given the defendant's intoxication and past romantic advances, Rose's steadfast refusal to give the defendant permission to stay does not seem unreasonable. More importantly, her behavior is certainly not the sort of "severe" provocation that would excite the passion of a reasonable person, causing the person to lose normal self-control. See Braunie v. State, 105 Neb. 355, 180 N.W. 567 (1920) (evidence that the victim provoked the defendant to anger, by itself, is insufficient as a matter of law to reduce a murder to manslaughter). Given the defendant's statement to the effect that if he could not have Rose, no one could, it is not seriously disputed that the defendant caused the death of Rose and intended to do so. Therefore, the trial court did not err in finding the defendant guilty of second degree murder for the death of Rose Kimball.

With regard to the shooting of Linda Meck, an additional factor is involved. In State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975), the defendant was involved in a fight with another man at a club. The defendant left briefly to take his nephew home, then returned to the club with a gun. Upon returning, the defendant encountered the other man's father, and when the father refused to disclose his son's whereabouts, the defendant shot and killed him. The defendant was convicted of second degree murder, and he appealed, arguing that the trial court erred in failing to instruct the jury on manslaughter and provocation. This court affirmed the conviction, holding that the evidence did not support an instruction on provocation because any provocation which existed resulted from the acts of the victim's son, not the victim himself.

Here, there is no evidence that the defendant quarreled with Linda Meck at any time. Whatever provocation existed resulted from the defendant's argument with Rose, not Linda. Therefore, while the claimed provocation is as inadequate to support a manslaughter conviction for Linda's shooting as it is for Rose's, we also hold that the defendant's argument regarding the shooting of Linda must fail based upon the decision in Bautista. Again, noting Linda's testimony that the defendant's threatening statement was directed at both her and Rose, there is evidence that the defendant intended to kill them both. Thus, the State presented sufficient evidence to sustain the defendant's attempted second degree murder conviction for the shooting of Linda Meck. The defendant's first assignment of error is without merit.

For his second assignment of error, the defendant argues that the trial court erred in admitting Linda Meck's testimony regarding his discharge of a firearm on December 18 and December 28. The defendant argues that the challenged testimony is irrelevant to the critical issue in the case - his mens rea on the day of the shooting - and constitutes inadmissible evidence of his character.

Without deciding the question, we note that it is at least arguable that the defendant's discharge of a weapon as Rose Kimball drove down the street the night before her murder is relevant evidence of his intent or plan to kill her and thus is admissible under Neb.Evid.R.401 and 404(2), Neb.Rev.Stat. §27-401 and 27-404(2)(Reissue 1989). In any event, in a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury.

State v. Lomack, 239 Neb. 368, 370, 476 N.W.2d 237, 239 (1991).

Moreover, the defendant did not object to any of the challenged testimony at trial. A prerequisite to an appeal based upon the erroneous admission of evidence is a timely objection stating the specific grounds for the objection unless the grounds are apparent from the context. State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992), citing Neb.Evid.R. 103(1)(a), Neb.Rev.Stat. §27-103(1)(a) (Reissue 1989). "One function of a proper objection is to direct the court's attention to questioned admissibility of particular evidence so that the court may intelligently, quickly, and correctly rule on the reception or exclusion of evidence." Coleman, 239 Neb. at 812, 478 N.W.2d at 357. A litigant is not entitled to silently allow the opposing party to produce evidence and then, upon entry of an adverse verdict, "wander among the Nebraska Evidence Rules" on appeal, in hopes of obtaining a reversal. Id. Rather, if a party fails to make a timely objection to evidence, the party waives the right on appeal to assert prejudicial error concerning the evidence received without objection. State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989).

The defendant waived any objection to the challenged testimony by failing to object to it at trial, and thus his second assignment of error is also without merit. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

FAHRNBRUCH, J., concurring in the result.

While concurring with the majority in the result reached in this case, I, nevertheless, continue to adhere to the analyses of the manslaughter statute set forth in the dissents in State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), and the analysis set forth in State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).

BOSLAUGH, J., joins in this concurrence.