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www.nebraska.gov/apps-courts-epub/
09/02/2016 09:10 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. GONZALES
                                                  Cite as 294 Neb. 627




                           State of Nebraska, appellee, v. R aymond Frank
                               Gonzales, Jr., also known as R aymond
                                     Frank Gonzalez, appellant.
                                                    ___ N.W.2d ___

                                        Filed September 2, 2016.   No. S-15-149.

                1.	 Motions for Mistrial: Appeal and Error. An appellate court will not
                    disturb a trial court’s decision whether to grant a motion for mistrial
                    unless the court has abused its discretion.
                2.	 Jury Instructions. Whether the jury instructions given by a trial court
                    are correct is a question of law.
                3.	 Judgments: Appeal and Error. When reviewing questions of law, an
                    appellate court resolves the questions independently of the conclusion
                    reached by the lower court.
                4.	 Trial: Prosecuting Attorneys: Convictions: Due Process. Prosecutorial
                    misconduct prejudices a defendant’s right to a fair trial when the mis-
                    conduct so infected the trial that the resulting conviction violates
                    due process.
                5.	 Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is nec-
                    essary to grant a mistrial for prosecutorial misconduct, the defendant
                    must show that a substantial miscarriage of justice has actually occurred.
                6.	 Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on
                    reasonably drawn inferences from the evidence, the prosecutor is per-
                    mitted to present a spirited summation that a defense theory is illogical
                    or unsupported by the evidence and to highlight the relative believability
                    of witnesses for the State and the defense.
                7.	 Attorneys at Law. The limits of legitimate argument and fair comment
                    cannot be determined precisely by rule and line, and something must be
                    allowed for the zeal of counsel in the heat of argument.
                8.	 Prosecuting Attorneys. Language must be reviewed in its entire context
                    to determine whether the prosecutor was expressing a personal opinion
                    or merely submitting to the jury a conclusion that the prosecutor is argu-
                    ing can be drawn from the evidence.
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                             STATE v. GONZALES
                              Cite as 294 Neb. 627

 9.	 Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
     prejudicial depends largely on the context of the trial as a whole.
10.	 Trial: Juries. Hyperbole in closing arguments is hardly rare, and juries
     should be given credit for the ability to filter out oratorical flourishes.
11.	 Trial: Prosecuting Attorneys: Due Process. The touchstone of due
     process analysis in cases of alleged prosecutorial misconduct is the fair-
     ness of the trial, not the culpability of the prosecutor.
12.	 Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
     prejudice from jury instructions given or refused, the appellant has the
     burden to show that the allegedly improper instruction or the refusal to
     give the requested instruction was prejudicial or otherwise adversely
     affected a substantial right of the appellant.
13.	 ____: ____: ____. To establish reversible error from a court’s refusal to
     give a requested instruction, an appellant has the burden to show that
     (1) the tendered instruction is a correct statement of the law, (2) the
     tendered instruction is warranted by the evidence, and (3) the appellant
     was prejudiced by the court’s refusal to give the tendered instruction.
14.	 Criminal Law: Homicide: Evidence: Jury Instructions. It is the duty
     of the trial court, in homicide cases, to instruct only on those degrees of
     homicide that find support in the evidence.
15.	 Homicide: Words and Phrases. Sudden quarrel manslaughter is dis-
     tinguished from second degree murder by the fact that the killing,
     even if intentional, was the result of a legally recognized provocation,
     i.e., the sudden quarrel, as that term has been defined by Nebraska
     jurisprudence.
16.	 Homicide: Intent. In determining whether a killing constitutes murder
     or sudden quarrel 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 deliberation and reflection, rather than
     from judgment.
17.	 Homicide. A passion for revenge will not mitigate murder to
     manslaughter.
18.	 Homicide: Intent. It is not the provocation alone that reduces the grade
     of the crime; it is also the sudden happening or occurrence of the provo-
     cation so as to render the mind incapable of reflection and obscure the
     reason so that the elements necessary to constitute murder are absent.
19.	 Homicide: Intent: Time. If there was enough time between the provo-
     cation and the killing for a reasonable person to reflect on the intended
     course of action, then the mere presence of passion does not reduce the
     crime below murder.
20.	 Homicide: Lesser-Included Offenses. The legal assumption in a sud-
     den quarrel manslaughter determination is that a reasonable person
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                            STATE v. GONZALES
                             Cite as 294 Neb. 627

     would never be so greatly provoked as to intentionally strike out in
     anger at an innocent person.
21.	 Criminal Law: Evidence: Appeal and Error. In reviewing a criminal
     conviction for a sufficiency of the evidence claim, the relevant question
     for an appellate court is whether, after viewing the evidence in the light
     most favorable to the prosecution, any rational trier of fact could have
     found the essential elements of the crime beyond a reasonable doubt.

  Appeal from the District Court for Dakota County: Paul J.
Vaughan, Judge. Affirmed.
  Todd W. Lancaster, of Nebraska Commission on Public
Advocacy, for appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
   Wright, J.
                     I. NATURE OF CASE
   Raymond Frank Gonzales, Jr., also known as Raymond
Frank Gonzalez, appeals his convictions of first degree murder
and use of a firearm to commit a felony in connection with
the death of Bonnie Baker. Gonzales claims prosecutorial
misconduct when, during closing arguments, the prosecutor
indicated that Gonzales had lied when he denied during law
enforcement interrogations that he was involved in the murder.
The prosecutor also called the defense’s theory of a different
shooter “make believe.” Gonzales further argues that the trial
court erred by failing to instruct the jury, in the definition of
sudden quarrel, that provocation negates the element of malice.
And he claims the court erred by failing to include in the first
degree murder instruction that the State must prove the killing
was not the result of a sudden quarrel.
                    II. BACKGROUND
   On Sunday, December 15, 2013, Bonnie died at her trailer
in the Atokad Trailer Park in South Sioux City, Nebraska,
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          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                      STATE v. GONZALES
                       Cite as 294 Neb. 627

of multiple gunshot wounds. Bonnie was shot 16 times with
9-mm bullets that came from the same firearm. The firearm
was never found. In connection with Bonnie’s death, Gonzales
was convicted of murder in the first degree and use of a fire-
arm to commit a felony. He was sentenced to life imprisonment
on the murder conviction and to a consecutive term of 30 to 40
years’ imprisonment on the use of a weapon conviction.
                            1. Party
   The evidence at trial demonstrated that prior to her death,
Bonnie spent the weekend in her trailer, which she shared with
her brother, Elmer Baker, and her niece, Kaylynn Whitebear.
Numerous people partied at the trailer over the weekend,
beginning on Friday night, December 13, 2013, and continuing
until Sunday morning, December 15. The guests drank beer
and spirits excessively. Gonzales was one of the guests; he was
brought to the party by Whitebear around 4 a.m. on Saturday.
During the weekend, Elmer, Gonzales, and two other guests
smoked methamphetamine in Elmer’s bedroom. Bonnie kept
mostly to herself in her bedroom.
   Sometime around 3 a.m. on Sunday, Gonzales woke up
from sleeping on the floor of the living room. He began acting
erratically—yelling, falling, “flopping around on the ground,”
and flipping over the furniture. Elmer pushed Gonzales
toward his bedroom, “because there was nothing [Gonzales
could] break in there.” Gonzales fell back asleep, and Elmer
returned to the living room to talk for a couple of hours with
another person.
                     2. Sexual Encounter
   At approximately 5 a.m., Elmer went to his room to sleep.
He lay sideways at the head of the bed, since Gonzales was
sleeping sideways at the foot of the bed. According to Elmer,
he awoke when Gonzales initiated sexual contact. Elmer testi-
fied that he rebuffed Gonzales’ advances and fell back asleep.
Elmer stated that he awoke again to similar sexual contact.
This led to what Elmer described as mutual and consensual
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. GONZALES
                         Cite as 294 Neb. 627

sexual activity. This sexual activity apparently did not last very
long, and Elmer and Gonzales fell asleep again. Elmer was
openly homosexual. Gonzales was not.

                  3. Gonzales Upset and Teased
    On Sunday morning, between 8 and 10 o’clock, Gonzales
awakened and became very agitated. Elmer described that
while he was sleeping, Gonzales had apparently placed Elmer’s
hand so that it was touching Gonzales’ penis. Elmer tes-
tified that when he, Elmer, woke up to find his hand in
that position, Gonzales jumped up and started “flipping out,”
accusing Elmer of “raping him or something.” Elmer and
Gonzales exited Elmer’s bedroom. They engaged in a heated
conversation in front of other guests, including Gonzales’
friend Ira Rave. Gonzales was making accusations against
Elmer that the encounter was nonconsensual, and Elmer denied
the accusations.
    Whitebear, Rave, and the other guests teased Gonzales, say-
ing he was homosexual. Gonzales appeared angry. Rave teased
Gonzales the most. There was no evidence that Bonnie teased
Gonzales. Gonzales and Rave eventually engaged in an argu-
ment, and they pushed each other. Somebody soon intervened
and broke up the fight.
    Elmer testified that at one point, Gonzales told him, “I’m
going to go get a gun and come back and shoot you.” But
when Elmer suggested that they “go outside . . . and deal with
it right now,” Gonzales said he was just kidding. Another wit-
ness testified similarly that Gonzales had said he “was going
to go get a gun and come back and do a show or something,”
but that afterward, Gonzales said he was just kidding. A third
witness heard Gonzales say something about guns.
    The teasing and arguing continued until 10 or 11 a.m., when
Bonnie asked all the guests to leave. Elmer described Bonnie
as mad and stated that she was tired of everyone drinking
there. Elmer thought that by the time he left, Gonzales no
l­onger seemed angry.
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

   Whitebear drove Gonzales to his mother’s apartment.
Gonzales was accompanied by Rave and two other passengers.
Gonzales was mumbling to himself. One passenger testified
that everyone else in the car was quiet during the ride, but
Whitebear testified that the giggling and teasing of Gonzales
continued in the car.
   One passenger testified that Gonzales was “so calm,” stat-
ing that she “g[o]t no expression from him,” but Whitebear
described Gonzales as “[s]till pissed off” during the car ride.
Two witnesses heard Gonzales say in the car something along
the lines of, “[W]hen I hit that place up, it’s going to be like
a fireworks show.” Nobody thought at the time that Gonzales
was serious.
   When he exited the car, Gonzales was still wearing what
he had worn the night before, although there was some evi-
dence he had left his coat at the trailer. A photograph taken at
a store on December 14, 2013, captured what Gonzales was
wearing the weekend of Bonnie’s murder. He had on black
pants and shoes, a cobalt blue hoodie pullover sweatshirt with
a large white logo on the front, a gray and black beanie hat,
and a dark gray zip-up overcoat. His clothing was generally
loose fitting.
   After dropping off her passengers, Whitebear went to a
friend’s house.
                    4. Eyewitness Descriptions
                           of Shooter
   At some point after Whitebear and all the guests had gone,
Elmer left to give someone a ride. When Elmer arrived back
home 20 minutes later, Bonnie was dead. The shooting occurred
at approximately 1:20 p.m.
   After she was shot, Bonnie ran outside to her front porch
and yelled for help. Several residents of the trailer park heard
Bonnie’s cries and briefly saw the shooter. Six eyewitnesses
testified at trial.
   The eyewitnesses described the shooter as male, young,
and thin. Several witnesses described the shooter as either
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          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                      STATE v. GONZALES
                       Cite as 294 Neb. 627

Native American or Hispanic. At the time of trial Gonzales
was 23 years old and described as being 5 feet 10 inches
tall and weighing 160 pounds; he apparently has both Native
American and Hispanic heritage.
   The witnesses described the shooter as wearing a hoodie
pullover sweatshirt. One witness described the shooter’s cloth-
ing as baggy. The color of the sweatshirt was described by
various witnesses as either gray with some blue on it, tur-
quoise, or light blue. One witness said the shooter may have
been wearing a black beanie, and another said he could have
been wearing a hat. Some witnesses said the shooter’s hood
was up. One witness described the shooter’s pants as being
gray. Another described his pants as khaki.
   One witness described watching the shooter fire shots at
Bonnie while outside the trailer and then run to a parked car
some distance away. This witness saw the shooter holding
what appeared to be a small firearm in the shooter’s right hand
while he ran away.
   The witness described the vehicle as being a four-door tan
Saturn, explaining that he knew a lot about cars. The witness
saw the shooter enter the Saturn in the back seat. In addition
to the driver, a passenger was in the front seat. The shooter
rode away in the Saturn.
                   5. Gonzales’ Whereabouts
                       on Day of Shooting
   Testimony was adduced concerning Gonzales’ whereabouts
at the time of the shooting. Gonzales’ sister and mother con-
firmed that Gonzales had arrived at his mother’s apartment
sometime in the morning of December 15, 2013. Gonzales’
sister testified that she could tell Gonzales was still drunk
from the night before even though he may have slept a few
hours. Gonzales was crying and told her that a man may have
taken advantage of him, though he was not sure. Gonzales’
mother testified that Gonzales was weeping and that he told
his sister that “somebody might have touched him when he was
passed out.”
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          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                      STATE v. GONZALES
                       Cite as 294 Neb. 627

   About 20 minutes after Gonzales arrived at his mother’s
apartment, his three older cousins, David Rodriguez, Anthony
Housman, and Louis Housman, came to the apartment.
Gonzales’ sister testified that Gonzales had told her he wanted
to talk to their older cousins because “he didn’t know if his
manhood was taken or not.” The cousins and Gonzales spoke
in the kitchen.
   According to Gonzales’ sister, Rodriguez, Anthony, and
Gonzales went outside sometime around 2 p.m. She was unsure
whether they had gone for a walk or a ride, as she showered
after they went outside. According to Gonzales’ sister, Louis
had already gone home. Rodriguez, Anthony, and Gonzales
were back in the apartment by the time Gonzales’ sister got
out of the shower. She believed the three men had been gone
around 15 to 20 minutes.
   According to Gonzales’ mother, Louis stayed at the apart-
ment while Rodriguez, Anthony, and Gonzales left for a while.
It was sometime between noon and 2 p.m. when they left. She
did not believe they were gone more than 15 or 20 minutes,
because they were back before the end of a 30-minute cartoon
that another of her sons was watching.
   Anthony testified that he did not go to Gonzales’ mother’s
apartment and then leave with Gonzales. Rather, Anthony
testified that he picked up Gonzales at the Atokad Trailer
Park on December 15, 2013, after learning that Gonzales
needed a ride. He said Rodriguez accompanied him to pick
up Gonzales. Anthony could not say what time this occurred;
he believed it was daytime. Anthony testified that when they
picked Gonzales up, he was on the road, walking.
   Rodriguez similarly testified that Gonzales called him
and asked him to pick him up at the Atokad Trailer Park.
Rodriguez was unclear what time this occurred, other than
that it was before 1 or 2 p.m. Rodriguez testified he accom-
panied Anthony to pick up Gonzales. They met Gonzales
on a road in the Atokad Trailer Park. Rodriguez testified
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. GONZALES
                         Cite as 294 Neb. 627

 that after picking Gonzales up, they took him to Gonzales’
­mother’s apartment.
    Louis testified that he had no recollection of seeing Gonzales
 or visiting Gonzales’ mother’s apartment on December 15, 2013.
    Gonzales’ mother’s apartment is an approximately 14-­minute
 drive from Bonnie’s trailer. Rodriguez’ and Anthony’s resi-
 dences are located between Bonnie’s trailer and Gonzales’
 mother’s apartment. Rodriguez’ residence is 9 minutes’ drive
 from Bonnie’s trailer, and Anthony’s residence is 11 minutes’
 drive from Bonnie’s trailer.

                          6. Tan Saturn
   It is undisputed that Anthony owned a tan, four-door Saturn.
In the morning on December 16, 2013, law enforcement
inspected the Saturn with Anthony’s permission, but did not
seize it. At the time of this initial inspection, the officers
observed that the floormats were tan.
   A warrant was obtained, and the Saturn was seized around
5 p.m. on the following day, December 17, 2013. The officers
immediately noticed that the floormats were different. They
were black and appeared to be new. Also, the Saturn appeared
to have been emptied of any paper, cans, wrappers, or other
items that law enforcement expected to find, based on their
initial inspection. Anthony told law enforcement that he had
washed the Saturn earlier that day. The tan floormats were
never recovered.
   Though samples were taken from the Saturn for DNA test-
ing, none tested positive for hemoglobin, and no other forensic
evidence was found in the Saturn.
                          7. Gun
   Law enforcement officers searched Gonzales’ residence,
as well as his mother’s apartment, Rodriguez’ residence,
and Anthony’s residence. The officers found a .357-caliber
revolver at Anthony’s residence. That revolver was traced
as having been stolen during a home invasion robbery. The
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          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                      STATE v. GONZALES
                       Cite as 294 Neb. 627

victim of the robbery reported the theft of two 9-mm hand-
guns in addition to the .357-caliber revolver, although no
9-mm handguns were found during the searches. The bullets
used to shoot Bonnie were consistent with 33 different makes
and models of 9-mm firearms.

                    8. Gonzales’ Interview
   Gonzales was arrested at approximately 9:40 p.m. on
December 15, 2013. The arresting officer observed that
Gonzales appeared to have showered and to have on clean
clothes. Gonzales agreed to be interviewed, and he was inter-
viewed three times. When asked about the clothes he had
worn on the weekend, Gonzales said they were at home. He
explained that there was blood on the blue sweatshirt he had
been wearing, because he had accidentally cut himself the
night before.
   Concerning his whereabouts at the time of the shooting,
Gonzales said in one interview that he was at his mother’s
apartment and then left with Rodriguez and Anthony to go to
Anthony’s residence. Gonzales said that he stayed there 2 to 3
hours and then went home.
   Throughout the three interviews, Gonzales repeatedly and
consistently denied being involved in Bonnie’s shooting or
being at the Atokad Trailer Park at the time of the shooting.
Indeed, as characterized by counsel, he denied being involved
in the shooting “dozens of times.”
   Then law enforcement officers told Gonzales that they were
just trying to give Gonzales an opportunity to tell his side of
the story, Gonzales told law enforcement that he already had.
When the officers continued to press Gonzales, he said, “I got
my story, I’m sticking to my story.”
   Defense counsel emphasized that Gonzales’ consistent and
repeated denial of any involvement in the shooting was in
the face of hours of interrogation by officers trained on how
“to get people to open up and make statements if they have
incriminating evidence.”
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

                     9. Gunshot R esidue on
                        Gonzales’ H and
   On December 16, 2013, after law enforcement’s first inter-
view with Gonzales, a police identification technician col-
lected samples from Gonzales’ hands to analyze for gunshot
residue. The technician testified that there are three ways
gunshot residue can get on a subject’s hands; either the subject
discharged a firearm, the subject was in the vicinity of a fire-
arm being discharged, or the subject came into contact with a
surface that had gunshot residue on it.
   Tests on scanning electron microscope “stub” samples
revealed the presence of 1 three-component particle, 1 two-
component particle, and 11 one-component particles on
Gonzales’ right hand. On Gonzales’ left hand, the tests of
those samples revealed 0 three-component particles, 2 two-
component particles, and 13 one-component particles. A swab
sample, which is a presumptive field test, revealed 0 three-
component particles, 0 two-component particles, and 1 one-­
component particle.
   The technician explained that gunshot residue consists of
lead, barium, and antimony. Three-component particles are
composed of all three elements; furthermore, the shape of the
particle demonstrates whether the elements were exposed to a
very-high-heat reaction. Three-component particles are highly
specific to the discharge of a firearm.
   Two-component particles do not have very many other
sources besides the discharge of a firearm. But they are also
consistent with sources such as brake pad linings, fireworks, or
a deployed airbag.
   One-component particles, in addition to being consistent
with the discharge of a firearm, are consistent with a number
of other sources such as car batteries, paint, stained glass win-
dows, and certain paper products.
   When he was arrested, Gonzales’ hands were not bagged
to avoid possible contamination by touching something that
might have gunshot residue on it. Because Gonzales’ hands
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

were not bagged, the technician admitted that it was possible
Gonzales’ hands could have become contaminated by gunshot
residue if it was present in the police vehicle that transported
him to the station or present in the room where he was inter-
rogated. The technician stated that bagging the hands is recom-
mended both in order to avoid contamination and to eliminate
particle loss due to wiping or washing one’s hands.
                    10. Gonzales’ Clothes
                         Never Found
   The law enforcement officers investigating Bonnie’s death
were never able to locate the clothing that Gonzales wore dur-
ing the weekend of December 15, 2013, including his shoes.
Elmer eventually found Gonzales’ coat that had been left in
the trailer.
                 11. State’s Closing A rguments
   In both opening statements and closing argument, the pros-
ecutor characterized the case as being about “embarrassment”
and “rage.” The prosecutor argued that the encounter with
Elmer was Gonzales’ motive for shooting whoever he found
at the trailer. He argued that Gonzales’ “stunt double” did not
“jump[] into” a car matching the description of Anthony’s
Saturn and that any defense theory that this was a random act
by an “anonymous drug dealer” was “make believe” and “sci-
ence fiction.”
   The State argued that any theory by defense counsel that
the shooter was Louis or one of Gonzales’ other cousins
was “just make believe.” The State argued further, “That’s
just making things up. That’s a red herring.” The State, after
reminding the jury that it was not to base its decision on
speculation and conjecture, said, “[W]hen the gentleman there
made that fact up that’s exactly what that was. That wasn’t the
evidence. That was just mere speculation, that was just creat-
ing something.”
   The prosecutor reviewed with the jury the fact that dur-
ing interviews with law enforcement, Gonzales, in denying
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

shooting Bonnie, repeatedly said that was his story and he
was sticking with it. The prosecutor then argued, “I suggest to
you that that’s exactly what it is, it’s a story.” The State then
argued that Gonzales was acting evasive during the interviews
with law enforcement and that he was minimizing how much
he was upset by the encounter with Elmer.
   The prosecutor utilized an analogy of “Johnnie” who denies
having eaten a slab of chocolate cake. Johnnie blames his
circumstances on aliens who beamed down and put chocolate
cake all over Johnnie’s hands and face. The State asked rhetor-
ically whether Johnnie’s denial would have more weight if he
denied eating the cake 15 times. The State reminded the jury,
“I think everybody agreed [in voir dire] that once a lie, always
a lie. You can repeat that lie, it doesn’t change it.”
   The prosecutor displayed a checklist to the jury. The
checklist included items such as “Fits general description of
shooter,” “Was at the party at Lot #4 preceding the shooting,”
“Felt was taken advantage of by a man from that party,” “Was
crying and upset about being taken advantage of,” “Said he
would light Lot #4 up like the 4th of July,” “Had the motive
to kill EB [sic],” and “Had the rage to kill anyone in the
trailer/BB.”
   The list also included the statement, “Was in the vicinity of
Lot #4 ATP at the time of the shooting.” In placing a check-
mark by this item in the list, the prosecutor argued that the
shooter had to have known Anthony. And, again, in referring
to the possibility that the shooter was Louis, the “[m]an on
the moon,” or a “[r]andom drug dealer,” the prosecutor said,
“That’s just make believe.”
   Another item on the list was, “Lied about [being] in the
vicinity of Lot #4 at time of the shooting.” The prosecutor
placed a checkmark by that statement on the list, reading it out
loud to the jury.
   Defense counsel had not objected at the time the prosecu-
tor originally commented about the defense’s theory’s being
“make believe,” “science fiction,” and based on speculation,
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. GONZALES
                         Cite as 294 Neb. 627

nor at the time the prosecutor said that Gonzales’ “story” or
statements to law enforcement were “exactly [t]hat[,] a story.”
Defense counsel did object when the State placed a checkmark
next to “Lied about [being] in the vicinity of Lot #4 at time of
the shooting.”
   The court sustained defense counsel’s objection that the
prosecutor was improperly commenting on the credibility of a
witness. The prosecutor then scribbled over “Lied about” and
wrote above the scribble: “Denied Dozens of times.”
   Then the prosecutor said:
      Denied dozens of times. That’s a big one, isn’t it?
         All right. If I’m the shooter, I ain’t — I ain’t — No
      way I’m putting myself in that — in that vicinity of the
      Trailer Park; right? . . . Rodriguez does. Yeah, I was there,
      picking a guy up.
         I’m not doing it. I’m not within miles of that Trailer
      Park. Not miles? No. Not miles at the time of the shoot-
      ing. I never went back there. Never. That’s what I’d say.
      I’m not going to put myself right back in that spot after
      I did it.
   The prosecutor closed with a summary of the events of
December 15, 2013, and how a shooter killed Bonnie and ran
into a car to escape the scene of the crime. The prosecutor then
said, “That’s the man (indicating), right there. That’s the man
that killed Bonnie . . . .”
                   12. Motion for Mistrial
   Defense counsel moved for a mistrial based on the prosecu-
tor’s statements during closing arguments. Particularly, defense
counsel objected to the statements by the prosecutor about
Gonzales’ “story” or account’s being “exactly [t]hat[,] a story”;
the prosecutor’s comments analogizing Johnnie’s denial of
eating the cake several times to Gonzales’ repeated denial
and asserting, “once a lie, always a lie”; and the prosecutor’s
use of a checklist wherein he checked off a statement that
Gonzales had “[l]ied” about being in the vicinity at the time of
the shooting.
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

   The judge denied the motion for mistrial but instructed the
jury as follows:
     [D]uring the closing statement the prosecutor made some
     comments which were in reference to the credibility
     of [Gonzales] or to the credibility of witnesses, it’s
     improper for Counsel to make arguments regarding their
     belief that someone lied or their credibility.
        And so I’m going to ask you to disregard the com-
     ments regarding [Gonzales’] statement that it was his
     story and he was sticking to it or once a lie always a lie.
     Those type of comments are improper and you should
     disregard those.
        As I had reminded you in the instructions, comments
     of Counsel is not evidence. This is just their inference of
     the — of the evidence submitted.
        So with that notation, though, I want you to disre-
     gard [the prosecutor’s] comments regarding [Gonzales’]
     credibility.
           13. Defense Counsel’s Closing A rguments
   During trial, defense counsel had pointed out that Louis
and Gonzales were of similar build and had similar features.
Defense counsel suggested that Louis could have been the
shooter. Defense counsel also pointed out the consistency of
Gonzales’ denials to law enforcement despite being inter-
rogated over several hours by “experienced law enforcement
officers, with training in techniques to get people to open up
and make statements.” And defense counsel generally pointed
out the “holes” in the State’s case. Defense counsel reminded
the jury that the State’s arguments were not evidence.
                    14. Jury Instructions
   At the jury instruction conference, defense counsel had
asked the court that the jury be instructed on the “negative
element” of first degree murder that Gonzales did not kill
Bonnie upon a sudden quarrel. Additionally, defense counsel
had asked that the jury be instructed as follows: “In your
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preliminary deliberations on Count I, you may consider the
crimes of first degree murder, second degree murder, and man-
slaughter in any order.” (Emphasis supplied.)
   Finally, defense counsel asked that the jury be instructed on
the definition of sudden quarrel as
      a legally recognized and sufficient provocation which
      causes a reasonable person to lose normal self-control. It
      does not necessarily mean an exchange of angry words
      or an altercation contemporaneous with an unlawful kill-
      ing and does not require a physical struggle or other
      combative corporal contact between the defendant and
      the victim. The question is whether there existed reason-
      able 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. 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. Provocation
      negates the element of malice found in the crime of first
      degree murder.
   The court generally denied these requested instructions.
Instead, instruction No. 5 was given. Instruction No. 5 first
summarized that as to count I, the jury could find Gonzales
guilty of first degree murder, second degree murder, or man-
slaughter or could find Gonzales not guilty.
   Instruction No. 5 then set forth an “Elements” section and
an “Effects of Findings” section. The Elements section was
presented first.
   Under the Elements section, the jury was instructed that to
find Gonzales guilty of first degree murder, the jury must find
that the State proved beyond a reasonable doubt that Gonzales
killed Bonnie purposely and with deliberate and premedi-
tated malice.
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   To find Gonzales guilty of second degree murder, the jury
was instructed that it must find the State proved beyond a rea-
sonable doubt that Gonzales killed Bonnie and that he did so
intentionally and not as a result of a sudden quarrel.
   To find Gonzales guilty of manslaughter, the jury was
instructed that it must find the State proved beyond a reason-
able doubt that Gonzales killed Bonnie either intentionally
upon a sudden quarrel or unintentionally in the commission of
an unlawful act, to-wit, by Gonzales’ knowingly, intentionally,
or recklessly causing bodily injury to Bonnie.
   The Effect of Findings section followed. That section
explained in detail how the jury must consider each of the
crimes listed under count I “in sequence, beginning with
First Degree Murder, then Second Degree Murder, and then
Manslaughter, until you unanimously find the defendant guilty
of one of these three crimes or until you unanimously find him
not guilty of all three of the crimes listed in Count I.”
   A separate instruction contained the definitions generally
applicable to the case. “Deliberate” was defined as “not sud-
denly or rashly. Deliberation requires that one considered the
probable consequences of his or her actions before acting.”
“Malice” was defined as the “intentional doing of a wrongful
act without just cause or excuse.”
   “Sudden quarrel” was defined as
      a legally recognized and sufficient provocation causing a
      reasonable person to lose normal self-control; or passion
      suddenly aroused which clouds reason and prevents ratio-
      nal action. It does not necessarily require an exchange of
      angry words or an altercation contemporaneous with the
      killing and does not require a physical struggle or other
      combative bodily contact between the defendant and
      the victim.

              III. ASSIGNMENTS OF ERROR
  Gonzales assigns that the trial court erred in (1) not
granting a mistrial based on prosecutorial misconduct during
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closing argument, (2) finding sufficient evidence to sup-
port a verdict of first degree murder, and (3) instructing the
jury concerning the elements of first degree murder without
instructing the jury that the State had to prove the killing
was not a result of a sudden quarrel brought about by suf-
ficient provocation.

                 IV. STANDARD OF REVIEW
   [1] We will not disturb a trial court’s decision whether to
grant a motion for mistrial unless the court has abused its
discretion.1
   [2,3] Whether the jury instructions given by a trial court
are correct is a question of law.2 When reviewing questions of
law, an appellate court resolves the questions independently
of the conclusion reached by the lower court.3

                        V. ANALYSIS
                1. Prosecutorial Misconduct
   [4,5] We begin by addressing Gonzales’ assignment of
error alleging prosecutorial misconduct. When considering a
claim of prosecutorial misconduct, we first consider whether
the prosecutor’s acts constitute misconduct.4 A prosecutor’s
conduct that does not mislead and unduly influence the jury
is not misconduct.5 But if we conclude that a prosecutor’s
acts were misconduct, we consider whether the misconduct
prejudiced the defendant’s right to a fair trial.6 Prosecutorial
misconduct prejudices a defendant’s right to a fair trial
when the misconduct so infected the trial that the resulting

 1	
      See State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
 2	
      State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).
 3	
      Id.
 4	
      State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
 5	
      Id.
 6	
      Id.
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 conviction violates due process.7 Before it is necessary to
 grant a mistrial for prosecutorial misconduct, the defend­
 ant must show that a substantial miscarriage of justice has
­actually occurred.8

                (a) Were Statements Misconduct?
   Public prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have a
fair and impartial trial.9 While a prosecutor should prosecute
with “earnestness and vigor” and “may strike hard blows, he is
not at liberty to strike foul ones.”10
   [6] Gonzales points out that according to the American
Bar Association, “[t]he prosecutor should not express his or
her personal belief or opinion as to the truth or falsity of any
testimony or evidence or the guilt of the defendant,”11 and
that the Nebraska Rules of Professional Conduct state that a
lawyer shall not, in trial, “state a personal opinion as to . . .
the credibility of a witness . . . or the guilt or innocence of
an accused.”12 But we have explained that when a prosecu-
tor’s comments rest on reasonably drawn inferences from the
evidence, the prosecutor is permitted to present a spirited
summation that a defense theory is illogical or unsupported
by the evidence and to highlight the relative believability of
witnesses for the State and the defense.13 Thus, in cases where

 7	
      Id.
 8	
      State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).
 9	
      State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on
      other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
10	
      Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314
      (1935).
11	
      1 ABA Standards for Criminal Justice, Prosecution Function and Defense
      Function, Standard 3-5.8(b) (3d ed. 1993).
12	
      Neb. Ct. R. of Prof. Cond. § 3-503.4(e).
13	
      See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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the prosecutor comments on the theory of defense, the defend­
ant’s veracity, or the defendant’s guilt, the prosecutor crosses
the line into misconduct only if the prosecutor’s comments are
expressions of the prosecutor’s personal beliefs rather than a
summation of the evidence.14
   The principle behind the prohibition of expressing personal
opinions on the defendant’s veracity and guilt is that when a
prosecutor asserts his or her personal opinions, the jury might
be persuaded by a perception that counsel’s opinions are cor-
rect because of his position as prosecutor, rather than being
persuaded by the evidence.15 The prosecutor’s opinion carries
with it the imprimatur of the government and may induce the
jury to trust the government’s judgment rather than its own
view of the evidence.16 Moreover, the jury is aware that the
prosecutor has prepared and presented the case and conse-
quently may have access to matters not in evidence; thus, the
jury may infer that such matter precipitated the prosecutor’s
personal opinion.17
   [7] Some courts appear to hold that it is per se miscon-
duct to say that the defendant lied or is a liar.18 While there
is authority that discourages prosecutors from using terms
such as lied or liar in arguments to the jury, we are unper-
suaded that a per se rule is appropriate. After all, closing

14	
      See, U.S. v. Iacona, 728 F.3d 694 (7th Cir. 2013); U.S. v. Stover, 474 F.3d
      904 (6th Cir. 2007); State v. Graves, 668 N.W.2d 860 (Iowa 2003).
15	
      See, Beaugureau v. State, 56 P.3d 626 (Wyo. 2002); State v. Campbell, 241
      Mont. 323, 787 P.2d 329 (1990); Wilson v. People, 743 P.2d 415 (Colo.
      1987).
16	
      United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
17	
      State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001), overruled on other
      grounds, State v. Grant, 286 Conn. 499, 944 A.2d 947 (2008).
18	
      See, Wend v. People, 235 P.3d 1089 (Colo. 2010); State v. Hilton, 79 Conn.
      App. 155, 829 A.2d 890 (2003); Gomez v. State, 751 So. 2d 630 (Fla. App.
      1999); State v. Graves, supra note 14; Haddock v. State, 282 Kan. 475,
      146 P.3d 187 (2006); State v. Campbell, supra note 15.
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arguments often have a “‘rough and tumble quality about
them, . . . the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line, and
something must be allowed for the zeal of counsel in the heat
of argument.’”19
   [8] Instead, we adopt the approach that looks at the entire
context of the language used to determine whether the prosecu-
tor was expressing a personal opinion or merely submitting
to the jury a conclusion that the prosecutor is arguing can be
drawn from the evidence.20 If the prosecutor is commenting
on the fact that the evidence supports the inference that the
defend­ant lied, as opposed to a personal opinion carrying the
imprimatur of the government, the comment is not miscon-
duct.21 This is distinguishable from calling the defendant a
“liar,” which is more likely to be perceived as a personal attack
on the defendant’s character.
   In State v. Nolan,22 we found that the prosecutor’s argument
that defense counsel was going to use “‘smoke screens and
mirrors,’” was not misconduct. We reasoned that the pros-
ecutor’s statement was made in the context of what the State
believed the evidence showed and the prosecutor’s belief that
defense counsel was going to try to divert the jurors’ attention
from that evidence.23

19	
      State v. Hampton, 66 Conn. App. 357, 373, 784 A.2d 444, 455 (2001).
20	
      See, U.S. v. Iacona, supra note 14; U.S. v. Delgado, 672 F.3d 320 (5th
      Cir. 2012); U.S. v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003); People v.
      Boyette, 29 Cal. 4th 381, 127 Cal. Rptr. 2d 544, 58 P.3d 391 (2002); Lugo
      v. State, 845 So. 2d 74 (Fla. 2003); Pacifico v. State, 642 So. 2d 1178 (Fla.
      App. 1994); State v. Cordeiro, 99 Haw. 390, 56 P.3d 692 (2002); State v.
      Graves, supra note 14; Com. v. Coren, 437 Mass. 723, 774 N.E.2d 623
      (2002); State v. Davis, 311 P.3d 538 (Utah App. 2013).
21	
      See, Com. v. Coren, supra note 20; People v. Howard, 226 Mich. App.
      528, 575 N.W.2d 16 (1997).
22	
      State v. Nolan, 292 Neb. 118, 135, 870 N.W.2d 806, 822 (2015).
23	
      Id.
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   In U.S. v. Hernandez-Muniz,24 the court found no miscon-
duct based on the prosecutor’s statements in closing arguments
urging that the jury would “‘have to agree that there were
some lies told during the course of this case’” and character-
izing the defendant’s statement as “a ‘lie’” after drawing the
jury’s attention to conflicting testimony among the defendant
and other witnesses. The court stated that while a prosecutor
would be well advised to avoid directly accusing a defendant
of lying,25 the comments, in context, were not improper. They
were in response to arguments by opposing counsel and were
only a commentary on the evidence.
   In U.S. v. Delgado,26 the court similarly held that the pros-
ecutor did not commit misconduct by arguing in closing argu-
ments that the defendant had lied. The court noted that “con-
text is crucial”27 and that the prosecutor’s statement was made
in response to defense counsel’s attack of government wit-
nesses and after a detailed summary of the evidence. The
statement that the defendant lied, the court explained, was a
commentary on what the evidence showed; it was not an asser-
tion of the prosecutor’s personal opinion or an attack on the
defendant’s character.28 The court also distinguished asserting
that the defendant had lied from describing the defendant as
a liar.29 Finally, the court placed weight on the fact that the
prosecutor did not use “‘expressions such as “I think,” “I
know,” “I believe,”’” or other expressions that convey a per-
sonal opinion.30
   Here, the prosecutor did not call Gonzales a “liar” and did
not preface any statement in a way that conveyed a personal

24	
      U.S. v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir. 1999).
25	
      Id.
26	
      U.S. v. Delgado, supra note 20.
27	
      Id. at 335.
28	
      U.S. v. Delgado, supra note 20.
29	
      Id.
30	
      Id. at 337.
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opinion. To the contrary, the statements complained of on
appeal were in the context of a detailed summation of the
evidence. The prosecutor’s comments were also in response
to defense counsel’s emphasis on the number of times that
Gonzales denied committing the crime. The prosecutor’s state-
ments are properly viewed as a commentary on the evi-
dence presented at trial, as opposed to an expression of per-
sonal opinion.
   We encourage prosecutors to preface any questionable state-
ments with the phrase, “the evidence shows.” But viewed
in context, it is clear that the prosecutor’s statement that
Gonzales lied, as well as the prosecutor’s dramatic summations
of defense counsel’s theories as “science fiction” and the like,
was nothing more than commentary on what the prosecutor
believed the evidence showed. We do not conclude that the
prosecutor was stating a personal belief based on personal
knowledge. Thus, we find no misconduct.

               (b) Were Statements Prejudicial?
   [9] In any event, the statements complained of in this
appeal were not unfairly prejudicial. Whether prosecutorial
misconduct is prejudicial depends largely on the context of
the trial as a whole.31 In determining whether a prosecutor’s
improper conduct prejudiced the defendant’s right to a fair
trial, we consider the following factors: (1) the degree to
which the prosecutor’s conduct or remarks tended to mis-
lead or unduly influence the jury; (2) whether the conduct
or remarks were extensive or isolated; (3) whether defense
counsel invited the remarks; (4) whether the court provided a
curative instruction; and (5) the strength of the evidence sup-
porting the conviction.32
   [10] Hyperbole in closing arguments is hardly rare, and
juries should be given credit for the ability to filter out

31	
      State v. McSwine, supra note 4.
32	
      Id.
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oratorical flourishes.33 In this case, the alleged prosecutorial
misconduct was limited to statements made in closing argu-
ments and did not inundate the trial. The objected-to statements
were largely hyperbole. And the court gave a lengthy curative
instruction. In that curative instruction, the court emphasized
for the jury that the prosecutor’s comments were not evidence
and that the jurors were to disregard any of the prosecutor’s
comments regarding Gonzales’ credibility.
   [11] The touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not
the culpability of the prosecutor. Consequently, “the aim of due
process ‘is not punishment of society for the misdeeds of the
prosecutor but avoidance of an unfair trial to the accused.’”34
The prosecutor’s comments in this case, even if they could be
considered misconduct, did not deprive Gonzales of his right
to a fair trial.
                        2. Jury Instructions
   We turn next to Gonzales’ assignment of error concerning
the jury instructions. Gonzales asserts that the court erred by
failing to instruct for first degree murder that the jury must
find the “negative element” that the killing was not upon a sud-
den quarrel.35 He also asserts that he was prejudiced because
the trial court failed to specify in the definition of sudden quar-
rel that provocation negates the element of malice.
   [12,13] In reviewing a claim of prejudice from jury instruc-
tions given or refused, the appellant has the burden to show
that the allegedly improper instruction or the refusal to
give the requested instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.36 To

33	
      State v. Barfield, supra note 9.
34	
      Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78
      (1982).
35	
      Brief for appellant at 41. See State v. Hinrichsen, 292 Neb. 611, 877
      N.W.2d 211 (2016).
36	
      State v. Casterline, supra note 2.
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establish reversible error from a court’s refusal to give a
requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and
(3) the appellant was prejudiced by the court’s refusal to give
the tendered instruction.37
   [14] It is the duty of the trial court, in homicide cases, to
instruct only on those degrees of homicide that find support in
the evidence.38 And where the evidence shows that the defend­
ant purposely pointed a loaded gun at another and pulled the
trigger, and there is no evidence of a sudden quarrel or other
condition that might permit a finding that there was an absence
of malice, then the court is not required to give an instruction
that would permit the jury to render a verdict of manslaugh-
ter.39 We conclude that Gonzales’ tendered instructions were
not warranted by the evidence, because the facts do not permit
a finding that the shooting of Bonnie was without malice and
upon a sudden quarrel.
   [15,16] Sudden quarrel manslaughter is distinguished from
second degree murder by the fact that the killing, even if
intentional, was the result of a legally recognized provoca-
tion, i.e., the sudden quarrel, as that term has been defined
by our jurisprudence.40 Such provocation is an extenuating
circumstance that mitigates the killing.41 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.42

37	
      Id.
38	
      State v. Freeman, 201 Neb. 382, 267 N.W.2d 544 (1978).
39	
      See State v. Hardin, 212 Neb. 774, 326 N.W.2d 38 (1982).
40	
      See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
41	
      See id.
42	
      Id.
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   [17] The test is an objective one.43 A passion for revenge
will not mitigate murder to manslaughter.44 Qualities peculiar
to the defendant which render him or her particularly excit-
able are not considered.45 The concept of manslaughter was not
intended to excuse a defendant’s subjective personality flaws.46
“The concept of manslaughter ‘“is a concession to the infir-
mity of human nature, not an excuse for undue or abnormal
irascibility. . . .”’”47
   A quarrel is generally defined as an altercation, an angry
dispute, or an exchange of recriminations, taunts, threats, or
accusations between two persons.48 A quarrel justifying the
lesser offense of manslaughter is a legally recognized and suf-
ficient provocation which causes a reasonable person to lose
normal self-control.49 It is “‘“severe”’” provocation.50
   [18,19] And it is not the provocation alone that reduces the
grade of the crime; it is also the sudden happening or occur-
rence 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.51 Thus, if there
was enough time between the provocation and the killing
for a reasonable person to reflect on the intended course of
action, then the mere presence of passion does not reduce the
crime below murder.52 The inquiry is whether the suspension

43	
      Id.
44	
      See 2 Wayne R. LaFave, Substantive Criminal Law § 15.2 (2d ed. 2003).
45	
      Id.
46	
      State v. Dubray, supra note 13.
47	
      State v. Lyle, 245 Neb. 354, 364, 513 N.W.2d 293, 302 (1994), quoting
      Com. v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986).
48	
      See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991).
49	
      Id.
50	
      See State v. Cave, 240 Neb. 783, 790, 484 N.W.2d 458, 464 (1992).
51	
      Id.
52	
      See State v. Lyle, supra note 47.
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of reason reasonably continued from the time of provocation
until the very instant of the act producing death took place.53
“‘[I]f, from any circumstances whatever shown in evidence, it
appears that the [defendant] reflected and deliberated, or if in
legal presumption there was time or opportunity for cooling,
the provocation [cannot] be considered by the jury in arriving
at [its] verdict.’”54
   Assuming without deciding that the alleged provocation in
this case was sufficient to cause a reasonable person to act
rashly and from passion, the evidence failed to permit a find-
ing that any such suspension of reason reasonably continued
from the time of the provocation until the time Bonnie was
killed. The shooting occurred at least 5 hours from the time of
the alleged sexual assault and at least 2 hours from the time
that the teasing about that encounter had ceased. The evidence
was uncontroverted that when being teased at the trailer,
Gonzales threatened to go get a gun and come back and shoot
people. If the jury believed that Gonzales was the shooter, the
evidence was that he did precisely that. Gonzales retrieved a
gun, arranged a ride back to the trailer, and shot Bonnie 16
times. Both the length of time from the allegedly sufficient
provocation and the calculating nature of leaving the scene to
retrieve a weapon indicate that the killing did not occur under
a reasonably continuing suspension of reason.
   In cases where there was a much shorter cooling-off period,
but the defendant left the scene of the provocation and
returned later with a weapon, we have held that the evidence
did not support an instruction on manslaughter. For instance,
in State v. Lyle,55 we held that the 20-minute time period
between the provocation and the killing, in which time the
defendant left, obtained a gun, and returned to the vicinity of
the fight, was inconsistent with sudden quarrel manslaughter.

53	
      See id.
54	
      Id. at 360, 513 N.W.2d at 300.
55	
      State v. Lyle, supra note 47.
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Similarly, in State v. Freeman,56 we held that there was no evi-
dence from which a jury could infer that the murder was upon
a sudden quarrel when the victim was stabbed 14 times after
the defend­ant had gone to the kitchen to procure the knife and
returned to the victim’s bedroom.
   Furthermore, Gonzales did not kill Elmer, Rave, or any other
person who allegedly provoked him. He killed Bonnie, who by
all accounts was involved in these events only to the extent that
she asked everyone to leave the trailer. There was no evidence
of any kind of quarrel between Bonnie and Gonzales before
she was shot.
   The majority rule is that the lesser crime of manslaughter
may be justified when the defendant kills a third party who
was not responsible for the acts of provocation when (1) the
defendant is mistaken that the person is responsible for the
acts of provocation or (2) the defendant attempts to kill the
provoker but accidentally kills an innocent bystander.57 But
courts have consistently held that it is not manslaughter when
the defendant strikes out in rage and intentionally kills a
person known by the defendant at the time to be innocent of
the provocation.58
   [20] The legal assumption is that a reasonable person would
never be so greatly provoked as to intentionally strike out in
anger at an innocent person.59 Thus, in State v. Bautista,60 we
held that it was not error for the trial court to refuse to instruct
on manslaughter when the defendant went back to a bar look-
ing for the man he had been in a fight with and, not finding
him, killed the provoker’s father.

56	
      State v. Freeman, supra note 38.
57	
      See 2 LaFave, supra note 44 (and cases cited therein).
58	
      See id.
59	
      See id.
60	
      State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975). See, also, State v.
      Cave, supra note 50.
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   There was no evidence from which the jury could have
concluded that Gonzales had mistaken Bonnie for someone
else, had accidentally struck her while aiming his weapon at a
provoker, or was blindly striking out in an immediate response
to provocation. Instead, the killing appears to be an act of
vengeance upon the only person Gonzales could find present
when he returned to the trailer with a gun. And, as stated, a
passion for revenge will not mitigate murder to manslaughter.61
Even if the shooting could be viewed as an act less subjectively
calculating, the evidence supports nothing more than undue
irascibility, which is likewise not grounds for a manslaugh-
ter instruction.62 A reasonable person under the provocation
alleged in this case would not intentionally shoot a person
indisputably innocent of the provocation, especially given the
lengthy cooling-off period that had passed.
   For these reasons, we conclude that the evidence did not
support a finding of sudden quarrel manslaughter. Because
the evidence did not support a finding of sudden quarrel
manslaughter, there can be no reversible error based on the
alleged deficiencies in the instructions on sudden quarrel
manslaughter.

                   3. Sufficiency of Evidence
   [21] Lastly, we address Gonzales’ claim that the evi-
dence was insufficient to support the verdict. In reviewing a
criminal conviction for a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.63 The relevant question for an appellate court

61	
      See 2 LaFave, supra note 44.
62	
      State v. Lyle, supra note 47.
63	
      State v. Casterline, supra note 2.
                              - 656 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. GONZALES
                        Cite as 294 Neb. 627

is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.
   There was evidence that on the day of the killing, Gonzales
had threatened to return to the trailer and shoot the place up
like a “fireworks show.” Eyewitness reports of the shooter
generally match the description of Gonzales as he appeared
that day, and one eyewitness described the getaway vehicle as
being of a make, model, and color similar to the car belonging
to Gonzales’ cousin Anthony. Gonzales’ relatives testified that
Gonzales’ whereabouts could not be confirmed for a period
of time close to the time of the shooting. Rodriguez and
Anthony testified that they picked Gonzales up at the Atokad
Trailer Park, even though numerous other witnesses attested
that Whitebear had driven Gonzales home from the party, and
Gonzales claimed that he did not return to the trailer park
after going home. When Gonzales was arrested, there was
gun residue on his hands, he had showered, the clothes he
wore the day of the killing were never located, and Gonzales
told officers that if they did find his clothes, they might find
his blood on his shirt. The evidence was sufficient to convict
Gonzales of first degree murder and use of a firearm to com-
mit a felony.
                      VI. CONCLUSION
   For the foregoing reasons, we find no merit to Gonzales’
assignments of error. We affirm the judgment of the trial court.
                                                   A ffirmed.
