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10/21/2016 09:08 AM CDT




                                                         -1-
                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                STATE v. MARTINEZ
                                                  Cite as 295 Neb. 1




                                        State of Nebraska, appellee, v.
                                        Larry G. M artinez, appellant.
                                                   ___ N.W.2d ___

                                        Filed October 21, 2016.   No. S-15-881.

                1.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion of law, which an appellate court reviews independently of the lower
                    court’s determination.
                2.	 Criminal Law: Appeal and Error. In a criminal case, an appellate
                    court reviews findings of fact for clear error.
                3.	 Mental Competency: Appeal and Error. The trial court’s determina-
                    tion of competency will not be disturbed unless there is insufficient
                    evidence to support the finding.
                4.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules
                    apply, the admissibility of evidence is controlled by the Nebraska
                    Evidence Rules; judicial discretion is involved only when the rules make
                    discretion a factor in determining admissibility.
                5.	 Jury Instructions: Judgments: Appeal and Error. Whether jury
                    instructions given by a trial court are correct is a question of law. When
                    dispositive issues on appeal present questions of law, an appellate court
                    has an obligation to reach an independent conclusion irrespective of the
                    decision of the court below.
                6.	 Pretrial Procedure: Rules of Evidence. In a criminal case, the Nebraska
                    rules of evidence do not apply at suppression hearings.
                7.	 Mental Competency: Trial. The test of mental competency to stand
                    trial is whether the defendant now has the capacity to understand the
                    nature and object of the proceedings against him or her, to comprehend
                    his or her own condition in reference to such proceedings, and to make
                    a rational defense.

                  Appeal from the District Court for Cheyenne County: Derek
               C. Weimer, Judge. Affirmed.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                       STATE v. MARTINEZ
                         Cite as 295 Neb. 1

  Sarah P. Newell, of Nebraska Commission on Public
Advocacy, for appellant.
   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
  Heavican, C.J.
                     INTRODUCTION
   Larry G. Martinez was convicted of first degree murder and
use of a weapon to commit a felony. He was sentenced to life
imprisonment for the murder conviction and an additional 10
to 50 years’ imprisonment for the use conviction, with credit
for 1,149 days’ time served. Martinez appeals. Primarily at
issue are whether Martinez’ statements to law enforcement
should be suppressed as a result of Martinez’ hearing impair-
ment and whether Martinez was competent to stand trial.
We affirm.
                   FACTUAL BACKGROUND
   Martinez was romantically involved with the victim, Mandy
Kershman. The record shows that this relationship was tumul-
tuous, with the couple fighting often. About a week prior to the
murder, Martinez told one of his roommates that he was “going
to kill that fucking bitch,” referring to Kershman.
   On July 18, 2012, at approximately 4:50 p.m., Kershman
was shot and killed while sitting on the couch at a friend’s
home. The cause of death was a single gunshot wound to
her chest.
   At the time of the shooting, Kershman was alone in the
living room; her friend, Leland Blake, was on the computer
in the next room. Blake testified that Kershman had told
him Martinez was planning to come over and that immedi-
ately prior to the shooting, Blake heard Martinez’ voice in
the next room with Kershman. Blake testified that Kershman
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                       STATE v. MARTINEZ
                         Cite as 295 Neb. 1

and Martinez were engaged in some type of verbal alterca-
tion. Moments later Blake heard gunshots, and upon entering
the living room Blake found Kershman dead on the couch.
Through the window, Blake saw Martinez entering his vehicle
and driving away.
   Martinez was subsequently located and questioned about
the shooting. During the course of that interview, Martinez
admitted that he shot Kershman and told law enforcement
where to find the weapon. In addition, Martinez admitted
to one of his roommates that he shot Kershman. A gun was
located in Martinez’ house in the place he had indicated. That
weapon was consistent with the type of weapon used to shoot
Kershman. Because of the type of weapon used, it was not pos-
sible to conclusively find that the gun found in Martinez’ home
was the murder weapon. Martinez was arrested and eventually
charged with first degree murder.
   Martinez filed a motion to suppress the statements he made
to law enforcement. He argued that he suffered from a hear-
ing impairment, that under Neb. Rev. Stat. § 20-152 (Reissue
2012) he was entitled to an interpreter, and that failure to pro-
vide an interpreter required that the statements obtained in the
absence of the interpreter should be suppressed.
   On the motion to suppress, two experts, including one
retained by the State, testified by deposition that Martinez
suffered from a hearing impairment. Lay witnesses, including
Martinez’ relatives and friends, testified as to their observa-
tions when communicating with Martinez. The officers and
other individuals involved in Martinez’ police interview and
subsequent incarceration were also questioned as to their
observations of Martinez’ ability to communicate. The general
consensus from those witnesses was that no one was aware that
Martinez suffered from any hearing impairment; however, the
State does not otherwise contest that Martinez is, in fact, hear-
ing impaired. Following this hearing, the motion to suppress
was denied.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

   Martinez’ defense at trial was that he shot Kershman dur-
ing a sudden quarrel and, thus, was guilty of manslaughter.
Evidence of Kershman and Martinez’ relationship was offered.
Of most import to Martinez’ defense was a text message
Kershman sent to Martinez shortly before the murder, wherein
Kershman told Martinez that she “want[ed] a man to take care
of me and not bitch about there [sic] money.” Following a jury
trial, however, Martinez was convicted of first degree murder
and use of a weapon to commit a felony.
   After trial, but prior to sentencing, Martinez’ counsel
sought to have Martinez examined for competency. A hearing
was held at which two defense experts testified that Martinez
was incompetent and that because Martinez’ incompetency
was based upon his intellectual functioning, it was unlikely
that his competency could be restored. A witness for the State
testified that Martinez was competent. In addition, the State
offered the testimony of several lay witnesses who testified
as to their observations and interactions with Martinez. The
district court found Martinez to be competent, and he was
sentenced to life imprisonment for the murder conviction, plus
an additional 10 to 50 years’ imprisonment for the use of a
weapon conviction.
   Martinez appeals.
                 ASSIGNMENTS OF ERROR
   On appeal, Martinez assigns, restated and consolidated, that
the district court erred in (1) denying his motion to suppress
his statements made to law enforcement, (2) finding him com-
petent to stand trial, and (3) instructing the jury with regard to
sudden quarrel manslaughter.
                  STANDARD OF REVIEW
  [1] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.1

 1	
      State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

   [2] In a criminal case, an appellate court reviews findings of
fact for clear error.2
   [3] The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support
the finding.3
   [4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility.4
   [5] Whether jury instructions given by a trial court are cor-
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the deci-
sion of the court below.5
                          ANALYSIS
                      Motion to Suppress
   In his first assignment of error, Martinez argues that the
district court erred in denying his motion to suppress state-
ments made to law enforcement, because those statements
were made without the presence or assistance of an inter-
preter, to which Martinez claims he was entitled by virtue
of § 20-152. In connection with this assignment of error,
Martinez also argues that the district court erred in admitting
layperson testimony at the suppression hearing and violated
Neb. Const. art. II, § 1.
   Section 20-152 provides:
         Whenever a deaf or hard of hearing person is arrested
      and taken into custody for an alleged violation of state
      law or local ordinance, the appointing authority shall

 2	
      See State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016).
 3	
      State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
 4	
      State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
 5	
      State v. Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                        STATE v. MARTINEZ
                          Cite as 295 Neb. 1

      procure a licensed interpreter for any interrogation, warn-
      ing, notification of rights, or taking of a statement, unless
      otherwise waived. No arrested deaf or hard of hearing
      person otherwise eligible for release shall be held in cus-
      tody solely to await the arrival of a licensed interpreter. A
      licensed interpreter shall be provided as soon as possible.
      No written or oral answer, statement, or admission made
      by a deaf or hard of hearing person in reply to a ques-
      tion of any law enforcement officer or any other person
      having a prosecutorial function may be used against the
      deaf or hard of hearing person in any criminal proceed-
      ing unless (1) the statement was made or elicited through
      a licensed interpreter and was made knowingly, volun-
      tarily, and intelligently or (2) the deaf or hard of hearing
      person waives his or her right to an interpreter and the
      waiver and statement were made knowingly, voluntarily,
      and intelligently. The right of a deaf or hard of hearing
      person to an interpreter may be waived only in writing.
      The failure to provide a licensed interpreter pursuant to
      this section shall not be a defense to prosecution for the
      violation for which the deaf or hard of hearing person
      was arrested.
A “deaf or hard of hearing person” is defined in Neb. Rev. Stat.
§ 20-151(3) (Supp. 2015) as
      a person whose hearing impairment, with or without
      amplification, is so severe that he or she may have dif-
      ficulty in auditorily processing spoken language without
      the use of an interpreter or a person with a fluctuating or
      permanent hearing loss which may adversely affect the
      ability to understand spoken language without the use of
      an interpreter or other auxiliary aid.
   In its order, the district court found that Martinez was not
“deaf or hard of hearing” for purposes of the statute. On appeal,
Martinez argues that he has been diagnosed with a hearing
impairment by two audiologists and that his impairment meets
the definition of “deaf or hard of hearing” under the statute.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

The State agrees that Martinez has a hearing impairment, but
contends that the record shows that Martinez does not meet the
definition under the statute because he does not have difficulty
auditorily processing or understanding spoken language with-
out an interpreter.
   Before addressing the underlying question, we address
Martinez’ contention that the district court erred in allowing
lay witnesses to testify about Martinez’ hearing. Martinez
asserts that § 20-152 operates technically and that only the
testimony of an audiologist suffices to show a hearing loss.
Martinez then argues that lay testimony is “inappropriate, irrel-
evant, confusing, and ultimately inadmissible under Neb. Rev.
Stat. §§ 27-104, 401, 403, 602 and 701.”6
   Martinez cites to no case law to support the assertion that
lay testimony is inadmissible. Other jurisdictions have per-
mitted the offering of such testimony of evidence tending
to either show or not show that a defendant is deaf or hard
of hearing.7
   Moreover, we note that the witnesses in question did
not testify as to Martinez’ ability to hear, but, rather, testi-
fied only to their own perception of whether Martinez was
able to communicate with them without using an inter-
preter. As discussed below, this is relevant to the question of
whether Martinez was deaf or hard of hearing for purposes of
the statute.
   [6] Finally, we note that in a criminal case, the rules of evi-
dence do not apply at suppression hearings.8 As such, we find
that the district court did not abuse its discretion in admitting
lay witness testimony.

 6	
      Brief for appellant at 8.
 7	
      See, State v. Kail, 760 N.W.2d 16 (Minn. App. 2009); Hollaman v. State,
      312 Ark. 48, 846 S.W.2d 663 (1993). See, also, People v. Demann, No.
      268657, 2007 WL 2404534 (Mich. App. Aug. 23, 2007) (unpublished
      opinion).
 8	
      See State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
                      STATE v. MARTINEZ
                        Cite as 295 Neb. 1

   We turn to the underlying question of whether the district
court erred in finding that Martinez was not deaf or hard of
hearing for purposes of § 20-152. Under that statute, a deaf
or hard of hearing person is defined as someone whose hear-
ing impairment is so severe that the use of an interpreter or
other auxiliary aid is necessary to process or understand spo-
ken language. The district court found Martinez did not meet
this definition.
   A review of the DVD of the interview with law enforce-
ment shows that Martinez, who was not wearing hearing
aids at the time, had no trouble following along, conversing,
and engaging in the interview. Throughout the 25-minute
interview, Martinez tracked questions and answered appro-
priately. He never indicated that he had any trouble hearing
the officers.
   On the few occasions that Martinez answered in a way that
suggested he did not understand, the question was repeated,
and Martinez then appropriately responded. The interview-
ing officer would often repeat back Martinez’ answer, and
Martinez would confirm that that was what he had said.
The interview DVD also shows that Martinez corrected the
officers when they misstated what he had said. And the
DVD shows that Martinez gave more than “yes” or “no”
answers and on a few occasions offered unsolicited, but on
topic, statements.
   In addition to responding to the interviewing officer,
Martinez is seen on the DVD responding to the other officer
who was in the room and sitting off to one side. According to
the officers’ testimonies, Martinez followed all verbal com-
mands given during his arrest, even those made when Martinez
was turned away from the officer. This supports the finding
that Martinez was not deaf or hard of hearing as defined by
the statute.
   Evidence from other witnesses also supports the finding
that Martinez did not need an interpreter or auxiliary aid to
process or understand spoken language. Most people who
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

testified had no idea that Martinez suffered from a hearing
impairment. The district court’s findings regarding Martinez’
ability to process and understand spoken language without an
interpreter were not clearly erroneous. As such, the district
court did not err in denying the motion to suppress.
   Having concluded that the district court did not err in find-
ing that Martinez was not deaf or hard of hearing under the
statute, we also reject Martinez’ assertion that the district
court’s adoption of a new standard violated the separation of
powers clause of the Nebraska Constitution.
   Martinez’ first assignment of error is without merit.

                            Competency
   In his second assignment of error, Martinez assigns that the
district court erred in finding that he was competent. He also
argues that the district court erred in admitting the testimony of
lay witnesses at this hearing.
   Neb. Rev. Stat. § 29-1823(1) (Reissue 2008) states in part
that “[i]f at any time prior to trial it appears that the accused
has become mentally incompetent to stand trial, such dis-
ability may be called to the attention of the district court by
the county attorney, by the accused, or by any person for
the accused.”
   The procedural posture of this case is unusual in that
Martinez’ competency was not challenged until after his con-
viction, but before his sentencing. However, there is no dispute
that the court can determine Martinez’ competency at any time,
including after trial but prior to final judgment, and that, in
fact, it is the obligation of the court to do so.9
   [7] This court will affirm the district court’s decision if
there is sufficient evidence to support its finding. The test
of mental competency to stand trial is whether the defendant

 9	
      See, Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103
      (1975); U.S. v. Arenburg, 605 F.3d 164 (2d Cir. 2010). See, also, 21 Am.
      Jur. 2d Criminal Law § 90 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

now has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make
a rational defense.10
   As an initial matter, Martinez argues—as he did with respect
to the denial of his motion to suppress—that the district court
erred in admitting the testimony of lay witnesses on the issue
of his competency. But the record is clear that these witnesses
did not testify as to Martinez’ competency, but, rather, testi-
fied as to their interactions with and observations of Martinez.
This evidence is admissible to rebut or corroborate the testi-
mony of the expert witnesses relating to Martinez’ competency.
The district court did not abuse its discretion in allowing
this testimony.
   We turn to our review of the district court’s determination
regarding competency. In this case, two experts testified that
Martinez was not competent. The first, Dr. Linda Hunter, was
originally retained to conduct IQ testing to assist with sentenc-
ing. Hunter determined that Martinez’ full scale IQ was 57,
with a verbal IQ of 55, and a performance IQ of 64. Hunter
also performed other testing which suggested that Martinez had
“significant issues in his cognitive ability,” with an extremely
low range of intellectual functioning.
   Hunter was present for the entirety of the competency hear-
ing and eventually reviewed outside materials, including let-
ters and prison kites authored by Martinez. Hunter testified
on rebuttal that the additional evidence did not change her
opinion. In addition, Hunter indicated that because Martinez’
incompetency was based upon his intellectual functioning,
it was not likely that Martinez could be restored to compe-
tency. Hunter also testified that she did not believe Martinez
was malingering.
   Dr. Y. Scott Moore also testified that he believed Martinez
was not competent and that it was not likely that Martinez

10	
      State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                       STATE v. MARTINEZ
                         Cite as 295 Neb. 1

could be restored to competency due to the nature of his
incompetency. Moore administered no standardized tests dur-
ing his evaluation, but did review the testing done by Hunter.
Moore reviewed a partial transcript of the trial and some
evidence presented at trial. Moore testified that he was con-
cerned that Martinez was not able to answer many of his
questions. Moore testified that Martinez could have been
malingering but that he did not believe that this was so.
Moore also asserted that he was able to “look [Martinez] in
the eyes” to see if he was telling the truth. Moore testified
that he relied on answers provided by Martinez and did not
investigate those answers further. Moore reviewed the evi-
dence presented at the competency hearing and testified on
rebuttal that it did not change his opinion that Martinez was
not competent.
   Dr. Carl Greiner testified for the State. Greiner testified
that it was his opinion that Martinez was malingering and that
he was competent to stand trial. Greiner testified that prior
to his evaluation of Martinez, he reviewed materials, includ-
ing Hunter’s evaluations and letters and prison kites written
by Martinez; Martinez’ employment, personal, medical, and
criminal history; and the events surrounding Kershman’s death.
Greiner indicated that it was his opinion that Martinez was
deliberately underperforming during his examination and that
the extrinsic evidence supported the conclusion that Martinez
understood the legal process.
   In addition to the experts, several lay witnesses testified as
to their observations about Martinez that might reflect upon
his competency. The evidence presented showed that Martinez
had been employed most recently as janitorial staff at both a
fast-food restaurant and a grocery store. Martinez had held
other, labor-intensive jobs in his adult life. One of those
jobs required a “license” obtained through testing with the
employer to drive a certain type of equipment. Martinez also
obtained a driver’s license, although the record reflects that it
did take him several attempts to pass that examination.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                       STATE v. MARTINEZ
                         Cite as 295 Neb. 1

   Following his arrest for Kershman’s murder, Martinez was
found to be an insulin-dependent diabetic; nurses at the
Diagnostic and Evaluation Center (D&E) where Martinez
was confined pending trial and sentencing testified as to his
ability to manage his condition, including monitoring his own
blood sugars by taking his own blood sample, reviewing those
results, and determining what additional dosage was required
beyond his maintenance dose. Martinez was taught this upon
his arrival at D&E, and witnesses testified that he was able
to accept and retain instruction on this matter after only a
few times. In custody, Martinez has also sought assistance
as required for repairs relating to his eyeglasses and hear-
ing aids.
   Other witnesses from D&E testified that Martinez was
quiet, polite, and respectful, with one witness even describing
Martinez as an ideal inmate. Martinez was presentable in cloth-
ing and attire, and was where he should be when he should be
there. Martinez maintained employment as a cleanup porter at
D&E and trained new hires.
   One witness from D&E described an incident where Martinez
discussed that a hearing had been canceled due to a personal
matter involving his attorney. The record shows Martinez was
aware of how long he has been in custody. The record also
shows that Martinez engaged in allowed social activities at
D&E, including playing cards and a least looking at books,
newspapers, and magazines. There was some evidence, in the
form of letters and prison kites written by Martinez, to suggest
that Martinez could read and write at a level more advanced
than he admitted to during his competency evaluations. Though
counsel suggested that Martinez might have had help writing
the letters and prison kites, there was no evidence offered to
show that was the case.
   Another witness was Martinez’ ex-wife, who testified
that when married to Martinez, Martinez appeared to com-
pile sports statistics and do the accompanying arithmetic.
Martinez’ ex-wife also testified that she once filed for a
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. MARTINEZ
                                Cite as 295 Neb. 1

protection order against Martinez and that he appeared in
court on the matter. Martinez also had a criminal record with
a prior conviction and incarceration for a felony, but there was
no indication that his competency was challenged at any point
in the past.
   A finding of competency will be upheld if there is suf-
ficient evidence to support it. In this case, Greiner testi-
fied that Martinez was competent. Other witnesses testified
as to Martinez’ interactions with them, further suggesting
competency. This evidence was sufficient for Martinez to be
found competent. Martinez’ second assignment of error is with-
out merit.
                         Jury Instructions
   In his third assignment of error, Martinez argues that the
district court erred in its instructions regarding the definition
of the term “deliberation” and erred in not instructing the jury
that as an element of first degree murder, the State must dis-
prove that Martinez acted on a sudden quarrel.
   Specifically, Martinez notes that this court held in State
v. Hinrichsen11:
      In future cases, however, it would be a better practice for
      courts, in first degree murder cases in which evidence of
      provocation has been adduced by the defendant, to clarify
      the definition of deliberation. We encourage courts in
      such cases to define “deliberate” to mean “not suddenly
      or rashly, but doing an act after first considering the prob-
      able consequences. An act is not deliberate if it is the
      result of sudden quarrel provocation.”
Accordingly, Martinez argues that the jury should have been
instructed that in addition to meaning “‘not suddenly or
rashly,’” “‘an act is not deliberate if it is the result of sudden
quarrel provocation.’”12

11	
      State v. Hinrichsen, 292 Neb. 611, 636, 877 N.W.2d 211, 228 (2016).
12	
      Brief for appellant at 8.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                        STATE v. MARTINEZ
                          Cite as 295 Neb. 1

   Martinez argues that Hinrichsen created a new rule and
that the district court’s error in the instructions is plain error.
We disagree. We specifically noted in Hinrichsen that the jury
instructions as given were not reversible error, but the addi-
tional instruction might be a “better practice” going forward.
And we cannot fault the district court for not complying with
our “better practice” when this case was tried almost 2 years
before our decision in Hinrichsen.
   For the same reason—that the jury instructions in Hinrichsen
were not reversible error—we conclude that Martinez’ argu-
ment with respect to the elements of first degree murder are
without merit. We note, though, that the jury was instructed
in the definition of “Sudden Quarrel” that “[p]rovocation . . .
negates malice,” another issue in Hinrichsen.
   There is no merit to Martinez’ third assignment of error.
                       CONCLUSION
  The decision of the district court is affirmed.
                                                      A ffirmed.
