                         Nebraska Advance Sheets
	                                 STATE v. TRICE	183
	                                Cite as 286 Neb. 183

and concluding that based upon the results of that investiga-
tion—information which Keyser was aware of at the time of
his plea—Keyser would not have rejected the plea agreement
offered to him. Keyser’s final assignment of error is with-
out merit.
                         CONCLUSION
  The order of the district court denying Keyser’s motion for
postconviction relief is affirmed.
                                                  Affirmed.
  Connolly and McCormack, JJ., participating on briefs.



                      State of Nebraska, appellee, v.
                       De’Aris R. Trice, appellant.
                                    ___ N.W.2d ___

                          Filed July 5, 2013.    No. S-12-126.

 1.	 Appeal and Error. An appellate court may, at its option, notice plain error.
 2.	 Trial: Appeal and Error. In determining plain error, where the law at the time of
     trial was settled and clearly contrary to the law at the time of appeal, it is enough
     that an error be “plain” at the time of appellate consideration.
 3.	 Criminal Law: Time: Appeal and Error. A new criminal rule—one that con-
     stitutes a clear break with the past—applies retroactively to all cases pending on
     direct review or not yet final, and not just to the defendant in the case announcing
     the new rule.
 4.	 Homicide: Words and Phrases. A “sudden quarrel” is 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 killing and does not require a
     physical struggle or other combative corporal contact between the defendant and
     the victim.
 5.	 Homicide: Intent. In determining whether a killing constitutes murder or sud-
     den 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.
 6.	 Criminal Law: Words and Phrases. Generally speaking, a fight between the
     victim and a third party is not a “sudden quarrel” as to the defendant.
 7.	 Appeal and Error: Words and Phrases. Plain error exists where there is error,
     plainly evident from the record but not complained of at trial, which prejudicially
     affects a substantial right of the litigant and is of such a nature that to leave it
    Nebraska Advance Sheets
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     uncorrected would cause a miscarriage of justice or result in damage to the integ-
     rity, reputation, and fairness of the judicial process.
 8.	 Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
     Jeopardy Clause does not forbid a retrial if the sum of all the evidence admitted
     by a trial court, whether erroneously or not, would have been sufficient to sustain
     a guilty verdict.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Reversed and remanded for a new trial.

   Patrick P. Carney and Ryan J. Stover, of Carney Law, P.C.,
for appellant.

   Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.

  Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ., and Moore, Judge.

   Connolly, J.
   A jury convicted De’Aris R. Trice of second degree murder.
Before submitting the case to the jury, the district court gave
the jury a step instruction regarding second degree murder and
manslaughter. Although the instruction was correct when it was
given,1 our subsequent holding in State v. Smith2 rendered the
instruction an incorrect statement of the law. Because Smith
applies retroactively to this case, and because there is evi-
dence—though slight—upon which a jury could conclude that
the killing was intentional but provoked by a sudden quarrel,
and therefore constituted manslaughter, we find plain error.
We reverse.

                       BACKGROUND
                The Morning of the Stabbing
   At about 1:40 a.m. on December 26, 2010, police officers
responded to a call at a house in Norfolk, Nebraska. A police

 1	
      See State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled, State
      v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and State v. Smith, 282
      Neb. 720, 806 N.W.2d 383 (2011).
 2	
      Smith, supra note 1.
                   Nebraska Advance Sheets
	                         STATE v. TRICE	185
	                        Cite as 286 Neb. 183

dispatcher initially reported a possible stabbing, and later
upgraded it to an actual stabbing and possible gun involve-
ment. Officers arrived within a few minutes of the call.
   The scene was chaotic. There had been an after-hours party
at the house. The house was relatively small, there were many
people and cars in the street, and people were trying to leave
the area. One individual told an officer that a person had been
stabbed, but she did not know who did it. That officer jogged
up to the house, looking for anybody with a knife or gun, to
try and secure the scene. But the officer saw a group of people
around a man, later identified as Timothy Warren, lying on the
ground, and the officer stopped to render aid. A woman was
already trying to help Warren. The officer opened Warren’s air-
way, confirmed that he was still breathing, and took a look at
the wound; it was about a 2-inch puncture wound on the right
side of his abdomen. The officer radioed for emergency medi-
cal assistance.
   Other officers arrived. One officer left to get a CPR mask,
while the officer who initially stopped to help Warren left to
secure the scene. The officer left Warren with the woman who
had initially cared for him; she had told the officer that she
had training in CPR and was a nursing and medical assistant.
So the officer, with another officer, approached the house.
From outside the front door, the officers saw an “extremely
agitated” male, with “clenched fists, shaking his arms, [who]
had blood on him,” and a woman standing in front of him try-
ing to hold him back. The officers entered the house, with one
officer “bear hug[ging]” the man, later identified as Rickey
Jordan, and attempting to calm him down. Jordan was yelling
at two individuals in the house, later identified as Trice and
his brother.
   The other officer began talking to Trice and his brother.
The officer told them to stop and stay where they were;
Trice immediately stopped what he was doing, but his brother
became angry. Trice attempted to calm his brother down, and
the officer asked Trice’s brother whether he had stabbed some-
one. Trice’s brother responded incompletely, muttering “some-
thing to the effect of ‘with a knife.’” The officer later described
the statement, not as an admission, but as “something that he
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186	286 NEBRASKA REPORTS



— like he didn’t complete his thought when he said it.” At that
point, Trice’s brother calmed down.
   The officer then left to help with Jordan, who was still strug-
gling. The officers placed Jordan in handcuffs. Other people at
the party told the officers that they had the “wrong guy,” and
they released Jordan later that morning. Meanwhile, Trice and
his brother had left the party. The paramedics had also arrived
and transported Warren to the hospital. There, doctors discov-
ered that the stab wound had caused significant internal dam-
age and that Warren was bleeding heavily into his abdomen.
The doctors performed surgery to try and repair the damage,
but they were unsuccessful, and Warren died.
           The Investigation, Trial, and Sentencing
   The police secured and processed the crime scene that same
morning and collected and preserved possible evidence of the
crime, including photographs, swabs of blood, and several
knives. Each of the knives was a regular kitchen knife with
one exception—there was also a decorative knife, later identi-
fied as belonging to Trice. During the investigation, the police
sent several items to the Nebraska State Patrol crime laboratory
to be tested for DNA and to determine if the DNA matched
any individuals at the party. Notably, the police sent in Trice’s
knife, the alleged murder weapon, to be tested for Warren’s
DNA, but the results were inconclusive. Police also inter-
viewed many people at the party. Eventually, the investigation
focused on Trice as a suspect. By that time, he had returned to
his hometown of Chicago, Illinois. When he found out that the
police were looking for him, he voluntarily turned himself in
and returned to Nebraska.
   At trial, much of the testimony came from people at the
party. That testimony revealed that the people living at the
house had been at a club which closed at 1 a.m. After the club
closed, they invited people to their house for an after-hours
party, and, although the invitation list was initially small, a
“few people turned into a lot.”
   Stories of exactly what happened at the party varied from
witness to witness. The record indicates that at some point,
Warren got into a verbal altercation in the living room with
                  Nebraska Advance Sheets
	                        STATE v. TRICE	187
	                       Cite as 286 Neb. 183

Kevin Bardwell. Warren threw a punch at Bardwell, starting a
fight between them, and other people got involved. During that
fight, someone stabbed Warren. The majority of the people at
the party testified that they did not see who stabbed Warren.
Several witnesses testified that Trice was at the party and in
the living room, but the testimony about what Trice did and
where he was during the fight differed. Jordan and another wit-
ness, however, testified that they saw Trice stab Warren during
the fight.
   Testimony also revealed that after Warren had been stabbed,
Jordan became enraged. At some point, Trice allegedly cut
Jordan on the arm. Jordan grabbed some knives from the
kitchen and went after Trice, who locked himself in the bath-
room. Jordan was yelling that Trice had stabbed his friend and
that he was going to kill Trice. About that time, the police
arrived and detained Jordan. Trice and his brother then left the
party with his brother’s girlfriend and her mother. Testimony
indicated that on the ride home, Trice’s brother repeatedly
asked him if he had done “‘it’” or “‘this.’” Trice’s brother
testified that eventually Trice said, “‘Yeah, I — I had to, I had
to protect you and me.’” His brother’s girlfriend testified that
Trice said that “he cut somebody, but he didn’t kill nobody,”
and her mother testified that Trice said, “‘Yeah, I stabbed him
in the leg, but I did not kill him.’”
   The court instructed the jury. Notably, the court gave a
then-correct step instruction regarding second degree murder
and manslaughter. The instruction told the jury that it should
find Trice guilty of second degree murder if the State proved
beyond a reasonable doubt that he had intentionally, but with-
out premeditation, killed Warren. The instruction then stated
that only if the State failed to prove those elements could the
jury then consider whether Trice had committed manslaughter
(here, based on a sudden quarrel). The jury found Trice guilty
of second degree murder. The court sentenced Trice to a term
of 40 years to life in prison.
                ASSIGNMENTS OF ERROR
  As will be discussed more fully below, we find plain error.
As such, we do not recite Trice’s assigned errors, which are
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188	286 NEBRASKA REPORTS



numerous. Nor do we find those alleged errors necessar-
ily likely to recur on remand,3 so there is no need to dis-
cuss them.
                   STANDARD OF REVIEW
   [1,2] An appellate court may, at its option, notice plain
error.4 In determining plain error, where the law at the time
of trial was settled and clearly contrary to the law at the time
of appeal, it is enough that an error be “plain” at the time of
appellate consideration.5
                           ANALYSIS
          Step Instruction R egarding Second Degree
                  Murder and Manslaughter
   Our decision is guided by Smith6 and our case law apply-
ing it. In Smith, the district court instructed the jury to con-
vict the defendant if the State proved beyond a reasonable
doubt that the defendant had killed intentionally, but without
premeditation. The court further instructed the jury that only
if the State failed to prove one of those elements could the
jury go on to consider whether the defendant had committed
manslaughter.7
   At the time, that instruction was correct because in State
v. Jones,8 we had held that an intentional killing could never
be sudden quarrel manslaughter. But in Smith, we overruled
Jones and held that “an intentional killing committed without
malice upon a ‘sudden quarrel,’ . . . constitutes the offense of
manslaughter.”9 Because of that holding, the jury instruction in
Smith was no longer a correct statement of the law:
      [T]he step instruction required the jury to convict on sec-
      ond degree murder if it found that [the defendant] killed

 3	
      See, e.g., State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).
 4	
      See, e.g., State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
 5	
      See, e.g., State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
 6	
      See Smith, supra note 1.
 7	
      See id.
 8	
      See Jones, supra note 1.
 9	
      Smith, supra note 1, 282 Neb. at 734, 806 N.W.2d at 394.
                        Nebraska Advance Sheets
	                              STATE v. TRICE	189
	                             Cite as 286 Neb. 183

      [the victim] intentionally, but it did not permit the jury
      to consider the alternative possibility that the killing was
      intentional but provoked by a sudden quarrel, and there-
      fore constituted manslaughter.10
   Although the instruction was error, we found no resulting
prejudice. We reasoned that the defendant “was prejudiced by
the erroneous jury instruction only if the jury could reasonably
have concluded on the evidence presented that his intent to kill
was the result of a sudden quarrel.”11 We found insufficient evi-
dence in the record to support that conclusion and concluded
the error was harmless.12
   [3] Here, the jury instruction is, in all material respects,
identical to the erroneous jury instruction in Smith. Although
we decided Smith several weeks after the trial and verdict in
this case, the new rule in Smith still applies here.13 A new
criminal rule—one that constitutes a clear break with the
past14—applies retroactively to all cases pending on direct
review or not yet final, and not just to the defendant in the case
announcing the new rule.15 Concluding otherwise would violate
the principle of treating similarly situated defendants the same
and would compromise the ideal of evenhanded administration
of justice.16 Because Trice’s case was not yet final when Smith
came out and because the Smith rule was clearly a new rule,
it applies in this case. So the step instruction given here was
error. The question is whether that error prejudiced Trice. The
answer depends on whether “the jury could reasonably have
concluded on the evidence presented that his intent to kill was
the result of a sudden quarrel.”17

10	
      Id.
11	
      Id. at 735, 806 N.W.2d at 395.
12	
      See Smith, supra note 1.
13	
      See, e.g., State v. Watt, 285 Neb. 647, ___ N.W.2d ___ (2013); Smith,
      supra note 5.
14	
      See Smith, supra note 5.
15	
      See id.
16	
      See id.
17	
      See Smith, supra note 1, 282 Neb. at 735, 806 N.W.2d at 395.
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   [4,5] A “sudden quarrel” is a legally recognized and suf-
ficient provocation which causes a reasonable person to lose
normal self-control.18 It does not necessarily mean an exchange
of angry words or an altercation contemporaneous with an
unlawful killing and does not require a physical struggle or
other combative corporal contact between the defendant and
the victim.19 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.20
   We note that in defining a “sudden quarrel,” in Smith,
we also stated, “It is not the provocation alone that reduces
the grade of the crime, but, rather, the sudden happening
or occurrence of the provocation so as to render the mind
incapable of reflection and obscure the reason so that the ele-
ments necessary to constitute murder are absent.”21 This state-
ment was imprecise. Although provocation negates malice,22
malice is not a statutory element of second degree murder
in Nebraska.23 The above italicized language should not be
included in future jury instructions; while such an inclusion
is not necessarily prejudicial error, it is error nonetheless and
should be avoided.
   Here, the record presents an unclear, confusing picture as
to exactly what happened at the party. Witnesses’ accounts of
what happened varied from person to person, including details
of the fight; who it involved; and, notably, the actions and
whereabouts of Trice during the fight. Although the witnesses’
stories differ, there is at least some evidence indicating that
Trice might have acted upon a sudden quarrel.

18	
      Smith, supra note 5.
19	
      Id.
20	
      See id.
21	
      Smith, supra note 1, 282 Neb. at 726, 806 N.W.2d at 389 (emphasis
      supplied).
22	
      See id.
23	
      See Burlison, supra note 1.
                        Nebraska Advance Sheets
	                               STATE v. TRICE	191
	                              Cite as 286 Neb. 183

    [6] Although the fight existed mainly between Warren and
Bardwell, and generally speaking, a fight between the vic-
tim and a third party is not a “sudden quarrel” as to the
defendant,24 various witnesses indicated that the fight involved
more than just those two individuals. For example, when asked
whether there was “more than one person in there fighting with
[Warren],” one witness replied, “Yes . . . I seen about five in
the living room at this time.” Another witness testified that
Warren and Bardwell “[got] to fighting. They [got] to fighting.
Everybody pushing everybody, grabbing everybody.” Other
witnesses testified that they were involved in the fight only
to break it up, though whether they actually were trying to
break it up was not clear from the record. Additionally, several
people were injured during the fight. For example, one witness
testified that her friend got hit in the nose and was bleeding. In
short, the record shows that a brawl broke out.
    Trice’s involvement in that brawl is less than clear. Various
witnesses placed him at different places in the room, with
different levels of involvement. Some said that he was off to
the side, along the wall, and was not involved in the fight.
But Trice’s brother, a witness for the State, testified that he
and Trice were trying to stop the fight and that his “little
brother [Trice] jumped in the middle.” Trice’s brother also
testified that once Trice was involved in the fight, Warren
swung a bottle “over [his] little brother’s shoulder,” though
it’s unclear whether this was directed at Bardwell or Trice.
Trice’s brother also testified that he initially stayed at this
party because he “didn’t feel that [Trice] was safe,” because
of some “earlier events” that had happened days before the
party. Finally, Trice’s brother testified that when he and Trice
left, he asked Trice whether he had done “‘it,’” to which Trice
eventually responded, “‘Yeah, I — I had to, I had to protect
you and me.’”
    We believe, all things considered, that a jury could find that
Trice acted upon a sudden quarrel. Certainly, the evidence does

24	
      See, e.g., Watt, supra note 13; State v. Harris, 27 Kan. App. 2d 41, 998
      P.2d 524 (2000); State v. Ruscingno, 217 N.J. Super. 467, 526 A.2d 251
      (1987). Cf. State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007).
    Nebraska Advance Sheets
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not compel this conclusion; as we have stated, the evidence in
this regard is slight. But such a conclusion is at least reasonably
inferable. Even the State, at oral argument, seemingly agreed
that a manslaughter instruction was “probably properly given,”
though the State emphasized that the jury, in the State’s view,
rationally rejected the sudden quarrel premise. The problem,
of course, is that under the instructions given (and presumably
followed25), the jury never actually considered whether Trice
acted upon a sudden quarrel.
   [7] We therefore find plain error. Plain error exists where
there is error, plainly evident from the record but not com-
plained of at trial, which prejudicially affects a substantial
right of the litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result
in damage to the integrity, reputation, and fairness of the
judicial process.26 Here, the jury instruction did not properly
instruct the jury regarding the interplay between second degree
murder and manslaughter. And because there was evidence—
though slight—upon which a jury could have convicted Trice
for sudden quarrel manslaughter, that error was prejudicial.
We reverse.
                         Double Jeopardy
   [8] Having found reversible error, we must determine
whether the totality of the evidence was sufficient to sustain
Trice’s conviction. If it was not, then double jeopardy forbids a
remand for a new trial.27 But the Double Jeopardy Clause does
not forbid a retrial if the sum of all the evidence admitted by
a trial court, whether erroneously or not, would have been suf-
ficient to sustain a guilty verdict.28
   After reviewing the record, we conclude that the evidence at
trial was sufficient to support the verdict against Trice. There
were two witnesses who testified to seeing him stab Warren,
and there were also witnesses who testified that Trice admitted

25	
      See, e.g., State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
26	
      Smith, supra note 5.
27	
      See, e.g., State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
28	
      See, e.g., id.
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	                       STATE v. TRICE	193
	                      Cite as 286 Neb. 183

to stabbing him. We therefore conclude that double jeopardy
does not preclude a remand for a new trial and that the State
may retry Trice on the second degree murder and manslaugh-
ter charges.
                       CONCLUSION
  We find plain error in the step instruction regarding second
degree murder and manslaughter.
                   R eversed and remanded for a new trial.
  Heavican, C.J., not participating.
