No. 96-1693

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

FRANK X. HOPKINS, WARDEN, PETITIONER

v.

RANDOLPH K. REEVES

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

ROY W. MCLEESE III
Assistant to the Solicitor
General

Department of Justice
Washington, D.C. 20530-0001
(202)514-2217

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QUESTION PRESENTED

Whether Beck v. Alabama, 447 U.S. 625 (1980),
entitles the defendant in a capital case to an instruc-
tion that permits the jury to find the defendant guilty
of non-capital offenses, even where those non-capital
offenses were not charged and, under applicable law,
are not lesser-included offenses of the charged capital

(I)

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TABLE OF CONTENTS

Interest of the United States . . . . 1
Statement . . . . 2
Summary of argument . . . . 7
Argument:
The  omission of jury instructions on non-capital
offenses  that  were not charged and that, under
applicable law, are not lesser-included offenses
of the capital crimes at issue does not violate
Beck v. Alabama . . . . 9
A. Beck  is limited  to  lesser-included-offense
  instructions that are otherwise appropriate
  under applicable law . . . .  10
B. Any requirement that the jury be instructed
  on offenses that are not lesser-included offenses
  under applicable law would be unworkable . . . . 23
C. The court of appeals' reasoning is unsound . . . . 27 
Conclusion . . . . 30
Appendix . . . . 1a
 
TABLE OF AUTHORITIES

Cases:

Bagby  v. Sowders,  894  F.2d  792 (6th Cir.), cert.
denied, 496 U.S. 929 (1990) . . . . 6
Beck v. Alabama, 447 U.S. 625 (1980) . . . . 1, 4, 7, 8, 9,
                                                             10, 11, 21, 27, 28
Cabana  v. Bullock, 474 U.S. 376 (1986) . . . . 9, 29
California  v. Ramos, 463 U.S. 992 (1983) . . . . 7, 20
Clemons  v. Mississippi, 494 U.S. 738 (1990) . . . . 4
Enmund v. Florida, 458  U.S. 782  (1982) . . . .  6, 9, 28, 29
Fulghum  v. State,  277  So. 2d 886 (Ala. 1973) . . . . 13

(III)

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IV

Cases-Continued              Page

Greenwalt v. Ricketts, 943 F.2d 1020 (9th Cir.
1991), cert. denied, 506 U.S. 888 (1992). . . . 4, 22
Greenawalt  v. Stewart, 105 F.3d 1268 (9th Cir.),
cert. denied, 117 S. Ct. 794 (1997) . . . . 22
Hatch  v. Oklahoma, 58  F.3d 1447  (l0th Cir. 1995),
cert. denied, 116 S. Ct. 1881 (1996) . . . . 23
Hill v. Kemp, 833 F.2d 927 (11th Cir. 1987) . . . . 22
Hopkins v. Reeves, 118 S. Ct.30 (1997) . . . . 1-2
Hopper v. Evans, 456 U.S. 605 (1982) . . . . 7, 11, 12,
                                                                13, 20, 22, 25
Jones v. Thigpen, 741   F.2d 805 (5th Cir. 1980
cert. granted, vacated, and remanded, 475 U.S.
1003 (1986) . . . . 23
Keeble v. United States, 412 U.S. 205 (1973) . . . . 13
Morgan  v. State, 71  N.W.  788  (Neb. 1897) . . . . 7, 21
Northwest Airlines, Inc. v. County of Kent,
Michigan, 510 U.S. 355 (1994) . . . . 7
Pitts v. Lockhart, 911 F.2d 109 (8th Cir. 1990),
cert. denied, 501 U.S. 1253 (1991) . . . . 6
Reeves v. Hopkins:
871 F. Supp. 1182 (D. Neb. 1994), rev'd, 76 F.3d
  1424  (8th Cir. 1996) . . . . 4
928 F. Supp. 941 (D. Neb.), aff'd  in part, rev'd in
  part, 102 F.3d 977 (8th Cir. 1996) . . . . 4
76 F.3d 1424 (8th Cir.), cert. denied, 117 S. Ct.
  307 (1996) . . . . 4
102 F.3d 977 (8th Cir. 1996) . . . . 5
Reeves v. Nebraska, 498 U.S. 964 (1990) . . . . 4
Schad v. Arizona, 501 U.S. 624 (1991) . . . . 11, 16, 17,
                                                                  18, 19, 24-25
Schmuck  v. United States, 489 U.S. 705 (1989) . . . . 8, 19,
                                                                           21, 25, 26, 27
Spaziano v. Florida, 468 U.S. 447 (1984) . . . .11, 14,
                                                                15, 16, 20, 26

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V

Cases-Continued              Page

State v. Hubbard, 319 N.W.2d 116 (Neb. 1982) . . . . 3,5
State v. Huebner, 513  N.W.2d  284 (Neb. 1994) . . . . 14
State v. Jones, 515 N.W.2d  654  (Neb. 1994) . . . . 14
State v. Masters, 524 N.W.2d  342 (Neb. 1994) . . . . 5
State v. Montgomery ,  215  N.W.2d   881 (Neb.
1974) . . . . 5
State v. Nissen, 560  N.W.2d  157 (Neb. 1997) . . . . 19
State  v. Pettit, 445  N.W.2d 890 (Neb. 1989) . . . . 14
State v. Price, 562 N.W.2d 340 (Neb. 1997) . . . . 19, 21
State v. Reeves:
344 N.W.2d 433 (Neb.), cert. denied, 469 U.S. 1028
  (1984) . . . . 2, 3
453 N.W.2d 359 (Neb.), cert. granted, vacated, and
  remanded, 498 U.S. 964 (1990) . . . . 4
476 N.W.2d 829 (Neb. 1991), cert. denied, 506 U.S.
  837 (1992) . . . . 4
State v. Williams, 503 N.W.2d 561 (Neb. 1993) . . . . 21
Teague v. Lane, 489 U.S. 288 (1989) . . . . 2
Thompson  v,  State, 184 N.W. 68 (Neb. 1921) . . . . 21
Tison  v.  Arizona,  481  U.S. 137 (1987) . . . .  6, 9, 28, 29
United States v. Dixon, 509 U.S. 688 (1993) . . . . 8, 25
Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.
1988) . . . . 6
Woratzeck v. Ricketts, 820 F.2d 1450 (9th Cir.
1987), cert. granted, vacated, and remanded,
486 U.S. 1051 (1988) . . . . 22-23
Constitution, statutes and rules:
U.S. Const;
Amend. V . . . .  26
  Double Jeopardy Clause . . . . 25
Amend. XIV (Due Process Clause) . . . . 6
28 U.S.C. 2254 . . . . 4,  12, 26

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VI

Statutes and rules-Continued:          Page

Neb. Rev. Stat. (1995):
 28-304(1) . . . . 13, 1a
 28-305(1) . . . . 14, 22, la
 28-507 . . . . 25
 29-1601 . . . . 26
 29-2016(5) . . . .  26 
 29-2520 . . . . 21
Fed. R. Crim. P.:
Rule 7(a) . . . . 26
Rule 30 . . . . 26
Rule 31(c) . . . . 19

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In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 96-1693

FRANK X. HOPKINS, WARDEN, PETITIONER

v.

RANDOLPH K. REEVES

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
 FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

One of the questions presented in this case is
whether Beck v. Alabama, 447 U.S. 625 (1980), en-
titles the defendant in a capital case to an instruction
that permits the jury to find the defendant guilty of
non-capital offenses, even where those non-capital
offenses were not charged and, under applicable law,
are not lesser-included offenses of the charged capital
crime.  The Court's resolution of that question could
affect the jury instructions given in federal capital
proceedings. 1

___________________(footnotes)

1 The Court limited its grant of certiorari to the first,
second, and fourth questions raised by petitioner  Hopkins v.

(1)

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2

STATEMENT

1. In the early morning on March 29, 1980, in Lin-
coln, Nebraska, Janet L. Messner made an emergency
911 call, reporting that she had been stabbed and that
she believed a friend of hers had been killed.  When
police responded to the residence from which the call
was made, they found Ms. Messner lying on the floor,
suffering from seven stab wounds to her chest.  Ms.
Messner told the police that she had been raped and
stabbed by respondent, Randolph K. Reeves, who she
said was her cousin.  Ms. Messner subsequently died
as a result of her wounds.  State v. Reeves, 344 N.W.2d
433,438-439 (Neb.), cert. denied, 469 U.S. 1028 (1984).
Elsewhere in the residence, the police found the
partially clad body of Victoria L. Lamm. Ms. Lamm
had been fatally stabbed in the chest. The bedroom in
which  Ms. Lamm's  body  was  found  reflected a violent
struggle.  A billfold containing respondent's identifi-
cation was on the floor  near  Ms. Lamm's  body, respon-
dent's underwear was on the bed, and one of his socks
was on the floor near the bed, The underwear con-
tained spermatozoa secretions of respondent's type.
Ms. Lamm's two-year-old daughter was also in the
residence, but was unharmed.  Less than an hour
after Ms. Messner's emergency call, respondent was
arrested some blocks away from the scene of the
murders.  On his body and clothes was blood of the
same type as Ms. Messner's blood.  Respondent, who
had consumed alcohol and peyote, gave a statement in

___________________(footnotes)

Reeves, 118 S. Ct. 30 (199'7).  In this brief, we address the first
two questions, which we have  consolidated  into  a  single  ques-
tion. We do not address the fourth question, which involves
the application of  Teague  v. Lane, 489  U.S. 288 (1989), to the
rule  announced  by  the  court of appeals in this case.

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3

which he said that he could not recall much about the
murders, but did recall having raped and stabbed Ms.
Messner. 344 N.W.2d at 438-439.
2. Respondent was charged with two counts of
first-degree felony murder in the commission or at-
tempted commission of a first-degree sexual assault.
344 N.W.2d at  438.  He  pleaded  not  guilty.  At trial, his
defense was that his consumption of alcohol and
peyote  had  rendered  him  either  insane or incapable of
forming the intent required to commit a first-degree
sexual assault.  Id. at 440.   Respondent  requested  that
the jury be instructed on the offenses of second-
degree murder and manslaughter.  The trial court
denied that request, because, under Nebraska law,
neither  offense  is  a  lesser-included offense of felony
murder. Id. at 442.2  Respondent  was  found guilty  of
both felony-murder counts. Id. at 440. Pursuant to
Nebraska law, a three-judge panel sentenced respon-
dent, imposing a sentence of death on each count.
Ibid. 3. Respondent appealed, challenging, inter alia,
the trial court's refusal to instruct the jury on
second-degree murder and manslaughter.   344 N.W.2d
at 442. The Supreme Court of Nebraska rejected
respondent's argument on that point, explaining that
under Nebraska law neither offense is a lesser-
included offense of felony murder. Ibid. (citing, e.g.,
State v. Hubbard, 319 N.W.2d 116 (Neb. 1982)). The
court rejected respondent's other contentions and
affirmed  his convictions and sentences. Id. at 449.

___________________(footnotes)

2 Nebraska's first-degree murder, second-degree murder,
and manslaughter statutes are reproduced in the Appendix to
this brief,   infra, 1a-2a.

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4

Respondent unsuccessfully sought relief in state
collateral  proceedings. State v. Reeves,  453 N.W.2d
359 (Neb. 1990).  He  filed a petition for a writ of certio-
rari, and this Court granted the petition, vacated the
judgment, and  remanded the case for further consid-
eration in light of  Clemens v. Mississippi,  494 U.S.
738 (1990).  Reeves v. Nebraska , 498  U.S. 964 (1990).
On remand, the Supreme Court of Nebraska once
again affirmed respondent's convictions and sen-
tences.  State v. Reeves,  476 N.W.2d  829 (1991), cert.
denied, 506 U.S. 837 (1992).
4. Respondent then applied for a writ of habeas
corpus  in federal  district court,  pursuant  to 28 U.S.C.
2254.  One of respondent's claims was that the trial
court had violated the requirements of Beck v.
Alabama,   447  U.S. 625 (1980), by  refusing to instruct
the  jury  on  second-degree   murder  and  manslaughter,
thereby submitting the case to the jury solely on the
two capital counts.  The district court rejected that
claim, explaining that second-degree murder and man-
slaughter are not lesser-included offenses of felony
murder under Nebraska law, and that Beck did not
require that a jury be instructed on uncharged of-
fenses that are not lesser-included offenses under
state  law.   Reeves  v. Hopkins,  871 F. Supp. 1182, 1205-
1206 (D. Neb. 1994) (citing Greenawalt v. Ricketts,
943 F.2d 1020, 1029  (9th  Cir. 1991), cert. denied, 506
U.S. 888 (1992)).
5. After further proceedings involving other
claims,* the court of appeals eventually addressed
respondent's Beck claim. It  held that the trial court

___________________(footnotes)
                               
3 See  Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.), cert. denied,
117 S. Ct. 307 (1996), on remand, 928 F. Supp. 941 (D. Neb.
1996).

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5

had  violated  the  requirements  of   Beck  by  refusing  to
instruct the jury on second-degree murder and man-
slaughter.  Reeves  v. Hopkins,  102  F.3d   977,  981-987
(8th Cir. 1996) (reproduced in pertinent part at Pet.
App. 1-16).
The court interpreted Beck as establishing a rule
that, in a capital case, a State "may not prohibit an
instruction on a noncapital charge that the evidence
supports." Pet. App. 15.  It further held that Beck, so
understood, required the trial court in the present
case to instruct the jury on second-degree murder
and manslaughter. Ibid. The court accepted that,
under Nebraska law, second-degree murder and man-
slaughter are not lesser-included offenses of felony
murder. Id. at 8. It concluded, however, that Beck
could not be distinguished on that basis, because Beck
itself invalidated a state law that prohibited lesser-
included-offense instructions in a capital case. Id. at
9. Thus, the court believed, state law alone cannot
justify a trial court's failure to give an instruction
under Beck. Ibid.
The court of appeals also found support for its hold-
ing in Nebraska's "rationale for prohibiting instruc-
tions for noncapital murder in felony murder cases."
Pet. App. 12. As the court explained, Nebraska treats
non-capital murder offenses as not included in felony
murder because non-capital murder offenses require
a culpable mental state with respect to the killing,
while felony murder does not.  Ibid. 4   According to the
court of appeals, however, that rationale "disappears
when the defendant is sentenced to death." Id. at 13.

___________________(footnotes)

4 See, e.g., State  v. Masters,  524  N.W.2d 342, 348 (Neb.
1994); State v. Hubbard, 319 N.W.2d at 118; State v.
Montgomery, 215 N.W.2d 881,883 (Neb. 1974).

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6

The court reached that conclusion because, in a
capital prosecution based on felony murder, the State
must in any event establish a level of culpability with
respect to the killing in order to impose the death
sentence. Id. at 12-15 (citing Enmund v. Florida, 458
U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137 (1987)).
The court therefore found itself led to the conclusion
that the State may not, consistent with the Constitu-
tion, bar an instruction on noncapital homicide, in
a felony murder case where the death sentence is
imposed, on the basis that felony murder requires no
showing of intent or, at least, a reckless indifference
to the value of human life." Id. at 13.
Because  the  court  of  appeals concluded that respon-
dent's jury had not been instructed on a non-capital
charge supported by the evidence, it granted a condi-
tional writ of habeas corpus. Pet. App. 14-l6.  The
court  ordered  that  respondent's  convictions  would  be
vacated subject to a new trial unless the State modi-
fied respondent's death sentences to sentences of  life
imprisonment.   Id. at   15-16. 5   

___________________(footnotes)

5 The court explained that modification of respondent's sen-
tence would cure the Beck violation because, as the court had
previously held, the Due Process Clause does not require  that
lesser-included-offense instructions be given in a non-capital
case. Pet. App. 15-16 (citing Pitts v. Lockhart, 911 F.2d 109,
112  (8th Cir. 1990), cert. denied, 501 U.S. 1253 (1991)). See
also, e.g., Bagby v. Sowders, 894 F.2d  792, 795-797 (6th Cir.) (en
bane) (refusal to instruct on lesser-included offenses in non-
capital case does not violate Due Process Clause; citing eases
from the Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits), cert. denied, 496 U.S. 929 (1990);  but see Vujosevic  v.
Rafferty,  644 F.2d 1023, 1026 (3d Cir. 1988),  Therefore, the
court held, the failure to give the requested instructions
undermined the validity only of the death sentences, not of
respondent's underlying felony-murder convictions. Pet. App,

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7

SUMMARY OF ARGUMENT

In Beck v. Alabama, 447 U.S. 625 (1980), this Court
held that it violated the Constitution for Alabama to
withdraw from the jury in a capital case the option,
which otherwise would have existed under Alabama
law, of finding the defendant guilty of a lesser-
included offense that was supported by the evidence.
Nowhere in Beck did the Court suggest that the
Constitution requires trial judges to instruct juries
in capital cases on non-capital offenses that are not
charged and that, under applicable law, are not lesser-
included offenses of the capital charge.  The Court's
subsequent cases establish that Beck stands for a
much narrower proposition: the Constitution pro-
hibits a State from erecting "artificial" barriers
that restrict the jury to an all-or-nothing choice be-
tween capital conviction and acquittal. California v.
Ramos, 463 U.S. 992, 1007 (1983).  It does not require
a trial court to give instructions on offenses that are
not  lesser-included offenses  under  generally applica-
ble  state  law.
It has long been settled under Nebraska law that
second-degree murder and manslaughter are not
lesser-included offenses of felony murder.  See, e.g.,
Morgan v. State, 71 N.W. 788, 794 (Neb. 1897). That
substantive principle of Nebraska law "does not offend
federal constitutional standards," Hopper v. Evans,
456 U.S. 605, 612 (1982), and it justified the Nebraska
trial court's refusal to instruct the jury in this case
on second-degree murder and manslaughter.

___________________(footnotes)

15-16. Respondent did not cross-petition to contest the ade-
quacy of the remedy afforded to him, and that issue is thus not
before the Court. See, e.g., Northwest Airlines, Inc. v. County
of Kent, Michigan, 510 U.S. 355, 364 (1994).

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8

An extension of Beck to require trial courts to
instruct on mm-capital offenses, even when those
offenses are not included within the charged offense
under applicable law, would have highly undesirable
consequences.  First, it would require the federal
courts to develop a test to determine when such
uncharged offenses are sufficiently related to the
charged capital offense as to require submission to
the jury.  The Court has twice in recent years con-
cluded that efforts to develop similar tests were
unworkable.  See United States v. Dixon, 509 U.S.
688, 711-712 (1993); Schmuck  v. United States, 489
U.S. 705,720-721 (1989).  Second, the approach adopted
by the court of appeals in this case would raise dif-
ficult issues relating to the power of capital defen-
dants to waive their rights to adequate notice of the
charges against them and, in the federal system,
to indictment by a grand jury.  Third, the approach
adopted by the court of appeals would create the risk
of unfair surprise, because it would apparently grant
defendants the right to choose, during trial, to place
entirely new offenses before the jury.
The court of appeals erred in believing that Beck
justified overriding Nebraska law on lesser-included
offenses because Beck itself had invalidated a state
law.  Beck held that a State may not single out a
capital crime and refuse to give a lesser-included-
offense instruction where the defendant would other-
wise be entitled to such an instruction under state
law.  Beck does not justify the conclusion that, even
where generally applicable state law would bar the
giving of a lesser-included: offense instruction, the
Constitution requires state courts to devise proce-
dures to instruct on so-me non-lesser-included offense.
Nor is the court of appeals' approach supported by

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9

this Court's decisions in Tison v. Arizona, 481 U.S.
137 (1987), and Enmund v. Florida, 458 U.S. 782
(1982).  Those cases establish that a death sentence
may not be imposed in the absence of a finding that
the defendant was a sufficiently culpable participant
in the killing.  They do not, however, require the jury
to make that finding during the guilt phase of a
criminal trial. Cabana  v. Bullock, 474 U.S. 376, 384,
392 (1986).  Thus, Nebraska  remains  free to assign to
the sentencing body the task of making the finding
required by Tison and Enmund, and can legitimately
conclude that non-capital homicide offenses are not
lesser-included offenses of felony murder because
felony murder requires no showing of a mental state
with respect to the taking of life.

ARGUMENT
THE OMISSION OF JURY INSTRUCTIONS ON
NON-CAPITAL OFFENSES THAT WERE NOT
CHARGED AND THAT, UNDER APPLICABLE
LAW, ARE NOT LESSER-INCLUDED OFFENSES
OF THE CAPITAL CRIMES AT' ISSUE DOES NOT
VIOLATE BECK V. ALABAMA
The court of appeals held that this Court's decision
in Beck v. Alabama, 447 U.S. 625 (1980), requires that
a jury in a capital case be given the option to find the
defendant guilty of non-capital offenses even where
those offenses were not charged and, under applicable
law, are not lesser-included offenses of any charged
offense.  That holding is an unprecedented and unwar-
ranted expansion of Beck.

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10

A. Beck Is Limited To Lesser-Included-Offense
  Instructions That Are Otherwise Appropriate
  Under Applicable Law

1. In Beck, the defendant was charged with the
capital crime of robbery-intentional killing  447 U.S.
at 627.  His defense was that he had participated in the
robbery, but had not intended the death of  the victim.
Id. at 629-630. In light of  that defense, the defendant
would have been entitled, under general principles of
Alabama law, to a lesser-included-offense instruction
on felony murder. Id. at 630. The trial court never-
theless refused to instruct the jury on felony murder,
relying on an Alabama statute, unique in American
criminal law," that precluded trial judges fro-m in-
structing the jury on lesser-included offenses in a
capital case. Id. at 62% & n..3, 630, 635.
Because Alabama law required the jury to impose a
death sentence if it found Beck guilty of robbery-
intentional killing, the jury in Beck's case was con-
fronted with an all-or-nothing choice: "either convict-
ing [Beck] of the capital crime, in which case it [would
be] required to impose the death penalty, or acquit-
ting him, thus allowing him to  escape all penalties for
his alleged participation in the crime." 447 U.S. at
629. This Court  held that Alabama's statute violated
the Constitution. Id. at 62?. The Court explained
that, "when the evidence unquestionably establishes
that the defendant is guilty of a serious, violent
offense-but leaves some doubt with respect to an
element that would justify conviction of a capital
offense-the failure to give the jury the `third option'
of  convicting  on a lesser  included offense would seem
inevitably to enhance the risk of an unwarranted
conviction." Id. at 637.  That risk, the Court held,
"cannot be tolerated in a case  in  which the defendant's

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11

life is at stake." Ibid. Thus, the Court concluded,
"Alabama is constitutionally prohibited from with-
drawing th[e] option [of finding the defendant guilty
on a lesser-included offense] from the jury in a capital
case." Id. at 638:
The Court's holding in Beck was narrow it vio-
lated the Constitution for Alabama to withdraw from
the jury in a capital ease the option, which otherwise
would have existed under Alabama law, of finding the
defendant guilty of a lesser-included offense that was
supported by the evidence. 447  U.S. at 627, 630 &  n.5,
637.  Nowhere in Beck did the Court suggest that
the Constitution requires trial judges to instruct
juries in capital cases on offenses that are not lesser-
included offenses under applicable law.  Moreover,
this Court's subsequent cases establish that Beck
cannot properly be read to impose such an obligation.
2. This Court has addressed Beck claims in three
subsequent cases: Hopper v. Evans, 456 U.S. 605
(1982); Spaziano v. Florida, 468 U.S. 447, 454-457
(1984); and Schad v.  Arizona, 501 U.S. 624, 645-648
(1991).  In each case, the Court rejected efforts to
extend the holding of Beck. Examination of the three

___________________(footnotes)

6 The defendant in Beck had relied on "both the Eighth
Amendment as made applicable to the States by the Fourteenth
Amendment and the Due Process Clause of the Fourteenth
Amendment." 447 U.S. at 632. Although it did not specify the
precise constitutional source for the right it identified, the
Court in Beck did limit its holding to capital cases.  See, e.g.,
id. at 638 (Alabama's withdrawal of a lesser-included-offense
instruction was "constitutionally prohibited * * * in a capital
case"); id. at  638  n.14  (leaving  open question "whether the Due
Process Clause would require the giving of [lesser-included-
offense] instructions in a noncapital case").

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12

cases demonstrates that the trial court in this case
acted constitutionally when  it  declined  to instruct  the
jury on offenses that had not been charged and that
are not lesser-included offenses of felony murder
under Nebraska law.
a. In. Hopper, the defendant was charged in Ala-
bama state court with robbery-intentional killing.
456 U.S. at 607.  He took the stand at trial, admitted
that he had shot the victim in the back during the
robbery, and asked the jury to return a guilty verdict.
Id. at 607-608.  He was convicted and sentenced to
death. Id. at 606. The defendant subsequently sought
habeas corpus relief in federal court, pursuant to
26 US.C. 2254, arguing inter alia that his conviction
and sentence were invalid because he had been
convicted under a statute that prohibited the jury
from considering any lesser-included offenses in a
capital case. Id. at 608-609. This Court rejected that
claim.
The Court pointed out that its holding in Beck was
expressly limited to cases in which the evidence
would reasonably have supported a verdict on the
lesser-included offense.  456 U.S. at 610.  Where the
evidence does not reasonably support a verdict on the
lesser-included offense rather than the capital of-
fense, the Court explained, giving the jury the op-
tion of arbitrarily convicting on the lesser-included
offense makes capital proceedings more rather than
less unreliable. Id. at 610-611. The Court then looked
to Alabama law to determine whether the evidence in
the case reasonably supported the giving of a lesser-
included-offense instruction.  Id. at 611-613. The

___________________(footnotes)
                                            
7 Under general principles of Alabama law, a lesser-
included-offense instruction should be given if "there is any

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13

defendant argued that the jury could reasonably have
found him guilty of non-capital felony murder, which
did not require proof of intent to kill. Id. at 612.  The
Court rejected that argument, because the evidence
in the case-including the defendant's admission that
he intentionally shot the victim in the back during a
robbery" affirmatively  negated  any claim that [the
defendant] did not intend to kill the victim." Id. at
613.  Thus, the Court concluded, "[a]n instruction on
the offense of unintentional killing during this rob-
bery was therefore not warranted" under Alabama
law, and the failure to give such an instruction did not
violate the Constitution.  Ibid.8

___________________(footnotes)

reasonable theory from the evidence which would support the
position" that the defendant committed the lesser-included
offense rather than the greater. 456 U.S. at 611-612 (quoting
Fulghum v. State, 277 So. 2d 886, 890 (Ala. 1973)). The rule
followed in the federal courts is that a lesser-included-offense
instruction should be given "if the evidence would permit a
jury rationally to find [a defendant] guilty of the lesser offense
and acquit him of the greater." Id. at 612 (quoting Keeble v.
United States, 412 U.S. 205, 208 (1973)). The Court remarked
in Hopper that " [t]he Alabama rule clearly does not offend
federal constitutional standards." Ibid.

8 The court of appeals in the present case did not discuss
the question whether the evidence would have permitted a
reasonable jury to acquit respondent of felony murder but
convict him of second-degree murder or manslaughter. As to
second-degree murder, the answer to that question is plainly
"no." Under Nebraska law, second-degree murder requires
proof of an intent to kill. Neb. Rev. Stat.  28-304(1) (1995).
Respondent's defense was that he was so intoxicated that he
either was insane or lacked the ability to form the intent to
commit the predicate offense of first-degree sexual assault. No
rational jury could rely on that defense to acquit respondent
of felony-murder while at the same time finding respondent
guilty of second-degree murder. Thus, under Hopper, the jury

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14

b. The Court next considered a Beck claim in
Spaziano v. Florida, 468 U.S. at 454-457. In Spaz-
iano, the defendant was charged with first-degree
murder. Id. at 450. At the close of the evidence, the
trial court offered to instruct the jury on the non-
capital lesser-included offenses of attempted first-
degree murder, second-degree murder, third-degree
murder, and manslaughter. Ibid. The trial court was
             
___________________(footnotes)

should not have been instructed as to second-degree "' murder.
See  State  v. Huebner,  513  N.W.2d 284, 292-293 (Neb. 1994)
(jury should not be instructed as to lesser-included offense
unless "the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant
of the lesser offense").
At the time of the offenses in this case, manslaughter re-
quired proof that the defendant caused the death  either  inten-
tionally but without malice, as upon a sudden quarrel, or unin-
tentionally while in the commission of an unlawful act. Neb.
Rev. Stat.  28-305(1) (1995); State v. Pettit, 415 N.W. 2d  890,
905 (Neb. 1989) (manslaughter upon sudden quarrel requires
proof  of  intent to kill); but  cf.  State v. Tunes, 515 N.W.2d 654,
658-659 (Neb. 1394) (overruling  Pettit  and  holding  that  man
slaughter  upon  sudden  quarrel does not  require  proof of intent
to kill).  The first type  of  manslaughter--killing  that is inten-
tional but without malice-could not properly have been
submitted to the jury in this case, for the same reason that
second-degree murder could not properly have been.  An in-
struction as to  the  second  type  of manslaughter-unlawful-act
manslaughter-would have been supported by the evidence
only if a jury could reasonably have found that--although
respondent was too intoxicated to form the intent to commit
first-degree sexual assault, and thus should be acquitted of
felony murder-he was not too intoxicated to form the intent
necessary to commit some other unlawful act, and therefore
should be  convicted of "unlawful act" manslaughter  because  he
unintentionally caused his victims' death while committing that
unlawful act. Respondent did not identify any such unlawful
act  in  the  trial  court, nor has he since.

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15

willing to do so, however, only if the defendant would
waive his statute-of-limitations defense to those
charges. ibid. The defendant refused to waive the
defense, and the trial court accordingly refused to
instruct on any lesser-included offenses.  Ibid.  The
defendant was convicted of first-degree murder, and
was sentenced to death. Id. at 451452.  After exten-
sive state-court proceedings, this Court granted the
defendant's petition for a writ of certiorari, to con-
sider inter alia the defendant's claim that the trial
court's refusal to instruct the jury as to any lesser-
included offenses violated the requirements of Beck.
Id. at 453454.
The Court rejected the defendant's claim.  It ex-
plained that its concern in Beck was "to eliminate the
distortion of the factfinding process that is created
when the jury is forced into an all-or-nothing choice
between capital murder and innocence." 468 U.S. at
455. "Requiring that the jury be instructed on lesser
included offenses for which the defendant may not be
convicted, however, would simply introduce another
type of distortion into the factfinding process. * * *
Beck does not require that the jury be tricked into
believing that it has a choice of crimes for which to
find the defendant guilty, if in reality there is no
choice." Id. at 455-456.  Thus, the Court concluded,
" [w]here no lesser included offense exists, a lesser
included offense instruction detracts from, rather
than enhances, the rationality of the process. Beck
does not require that result." Id. at 455.9

___________________(footnotes)

9 The Court went on to indicate the view that a defendant
would be entitled under Beck to choose either to waive a
statute-of-limitations defense and insist on the giving of lesser-
included-offense instructions or to assert the statute-of-

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16

c. The Court most recently addressed the scope of
Beck in Schad v. Arizona, 501 U.S. at 645-648. In
Schad, the defendant was charged with a single count
of first-degree murder. Id. at 628 (opinion  of  Souter,
J.). Under Arizona law, first-degree murder is a
single offense that includes both premeditated murder
and felony murder. Ibid. The defendant's defense was
that "the circumstantial evidence proved at most that
[the defendant] was a thief, not a murderer." Id. at
629 (opinion of Souter, J.). The defendant asked that
the jury be instructed on the lesser-included offense
of theft, but the trial court refused. Ibid. The jury
was instructed, however, on the non-capital lesser-
included offense of second-degree murder. Id. at 646. 10
The  defendant  was  convicted of first-degree murder,
and was sentenced to death by the trial judge after a
separate hearing. Id. at 629 (opinion of Souter, J.).
The defendant challenged his conviction and sentence,
arguing inter  alia that the trial court had violated
 
___________________(footnotes)
          
limitations defense and forfeit the right to such instructions.
468 U.S. at 456; see also id. at 467 (white, J., concurring in part
and concurring in the judgment) (characterizing the Court's
discussion of the point as dictum).  Because the defendant in
Spaziano had knowingly chosen to assert his statute-of-
limitaticms defense, the Court concluded, "it was not error for
the trial judge to refuse to instruct the jury on the lesser
included offenses." Id. at 457.
10 As explained  below,  see  note  15, infra,  second-degree
murder is not a lesser-included offense of felony murder under
Nebraska law.  In Schad, however, the State was proceeding
against the defendant in a single count charging both pre
meditated murder and felony murder. 501 U.S. at 628 (opinion
of Souter, J.). Under Arizona law, second-degree murder ap-
parently is treated as a lesser-included offense of premedi-
tated murder but not felony murder. Id. at 660 (White, J.,
dissenting).

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17

the requirements of Beck by refusing to instruct the
jury as to the lesser-included offense of robbery. Id.
at 645.11 Specifically, the defendant argued that Beck
required that the jury be instructed on all non-capital
lesser-included offenses that were supported by the
evidence. Id. at 646. This Court disagreed. Id. at 646-
648.  The Court pointed out that, unlike the jury in Beck,
the jury in Schad had not faced an all-or-nothing
choice between capital murder and acquittal, because
it had been instructed on the non-capital lesser-
included offense of second-degree murder. 501 U.S. at
646-647.  The Court rejected the argument that an
instruction on robbery was also required in order to
permit the jury to render a verdict consistent with
one reasonable view of the evidence, i.e., that, al-
though the defendant had participated in the robbery,
he had been completely uninvolved in the victim's
murder. Id. at 647.  As the Court explained, the reli-
ability of the jury's first-degree murder conviction
was not undermined by the absence of a lesser-
included-offense instruction on robbery
To accept the [contrary] contention * * *, we
would have to assume that a jury unconvinced
that petitioner was guilty of either capital or

___________________(footnotes)

11 Apparently, the defendant in Schad requested at trial a
lesser-included-offense instruction only as to theft, while on
appeal he contended that a robbery instruction should have
been given. 501 U.S. at 629-630 (opinion of Souter, J.). In this
Court, the defendant claimed that instructions should have
been given as to both offenses. Id. at 645. Based on a conces-
sion by the State, this Court treated the request for a robbery
instruction as having been properly preserved, and did not
reach the question whether the request for a theft instruction
had been properly preserved. Id. at 645 n.10.

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18

second-degree murder, but loath to acquit him
completely (because it was convinced he was
guilty of robbery), might choose capital murder
rather than second-degree murder as its means of
keeping him off the streets.  Because we can see
no basis to assume such irrationality, we are
satisfied that the second-degree murder instruc-
tion in this case sufficed to ensure the verdict's
reliability.
Id. at 647-648. The Court further explained that it
was not holding that the requirements of Beck would
invariably be satisfied by the submission of any
lesser-included offense, even if the lesser-included
offense was not supported by the evidence. Id. at 648.
Because it was undisputed, however, that the lesser-
included offense instructed to the jury in Schad was
supported by the evidence, the Court concluded that
the requirements of Beck had been met. Ibid. 12

___________________(footnotes)

12 The  dissent  in  Schad  took  the  view that Beck required
that the jury be given a lesser-included-offense instruction as to
each of the prosecution's theories of guilt.  501 U.S. at  661-662
(White, J., dissenting).  Because the second-degree murder in-
struction was a lesser-included offense only as to the State's
premeditated-murder theory, and because the jury was not
given a lesser-included-offense instruction that applied to the
State's felony-murder theory, the dissent would have reverse,
Ibid.  The dissent noted but rejected Arizona's claim that an
instruction on robbery would not have been appropriate be-
cause robbery was not a lesser-included offense of felony
murder under Arizona law. Id, at 660-662. The dissent ac-
knowledged that  "  is true that the rule in Beck only applies
if there is in fact a lesser included offense to that with which
the defendant is charged." Id. at 661.  It further acknowl-
edged that "deference  is due state legislatures  and courts in
defining crimes." Ibid. In the view of the dissent, however,
the required deference had "constitutional limits," and did not

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19

3. The court of appeals in this ease held that Beck
requires that the jury in a capital case be instructed
on at least one non-capital homicide offense supported
by the evidence, even if the capital charge lacks
any lesser-included homicide offenses under the law
of the jurisdiction. Pet. App. 14-15. That holding is
erroneous.

___________________(footnotes)

extend to the case of felony murder-robbery and the predicate
robbery, because "the underlying crime must, as a matter of
law, be a lesser included offense of the greater." Id. at 661-662.
The dissent supported that conclusion by pointing out that,
under the test used in the federal courts for determining which
offenses are "necessarily included" within the meaning of
Federal Rule of Criminal Procedure 31(c), predicate felonies
are lesser-included offenses of felony murder. Id. at 661 n.6
(citing   Schmuck  v.  United  States, 489 U.S. 705 (1989)).

___________________(footnotes)

13  The court of appeals appeared to require that, at least in
this case, the  State  could  not "bar  an  instruction   on  noncapital
homicide." Pet. App. 13. The court of appeals did not discuss
whether a non-capital offense other than homicide would
satisfy  Beck, and it suggested that, under Nebraska law, felony
murder has no lesser-included offenses. Id. at 8. Although
there is language to that effect in some Nebraska cases, see,
e,g., State v. Price, 562 N.W. 2d 340, 346 (Neb. 1997), that
language appears to refer to lesser-included homicide offenses,
because it is clear under Nebraska law that the predicate felony
is a lesser-included offense of felony murder.  See State v.
Nissen, 560 N.W.2d 157, 178-179 (Neb. 1997) (burglary is lesser-
included offense of felony murder/burglary). Respondent in
this case did not request that the jury be instructed as to the
predicate  felony of  first-degree sexual assault, which is a lesser
included offense of felony murder under Nebraska law. Of
course, an instruction as to first-degree sexual assault would
not have been supported by the evidence in this case, because
no rational jury could have acquitted respondent of felony
murder but convicted him of sexual assault.  See note  8, supra.
On the other hand, the same appears to be  true  of  the  offenses

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20

Beck and the cases applying it do not establish a per
se rule that the jury in a capital case can never be
confronted with an all-or-nothing choice between
finding the defendant guilty of a capital charge or
acquitting.  Rather, they establish a much narrower
proposition: a State may not erect "artificial" barri-
ers that restrict the jury to an all-or-nothing choice
between a capital offense and acquittal. California v.
Ramos, 463 U.S. 992, 1007 (1983).  Thus, the Court
upheld the defendant's conviction in Hopper, even
though the jury had confronted an all-or-nothing
choice between conviction on a capital count and
acquittal, because the State was entitled to enforce
its rule that lesser-included-offense instructions
should not be given unless the evidence reasonably
supported the concision that the defendant was
guilty of the lesser-included offense but not guilty of
the greater offense. 456 U.S. at 610-M2.  Similarly,
the Court upheld the defendant's conviction in Spaz -
iano, even though the jury had confronted an all-or-
nothing  choice  between  conviction  on a capital count
and acquittal, because the State was entitled to insist
that the defendant waive his statute-of-limitations
defense if he wished to have the jury instructed on
lesser-included offenses. 468 U.S. at 454-457.
Similar considerations dictate that respondent's
convictions and sentences should be upheld.  This,
unlike Beck, is not a case in which the State artifi-
cially reduced the options available to juries in capital
cases alone. 14  Rather, the State simply enforced its

___________________(footnotes)
                                  
as to which respondent did request that the jury be instructed.
See ibid.
14 Nebraska's capital-sentencing procedures are quite
different from the procedures followed in Alabama at the time

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21

long-standing rule of substantive law-applicable in
capital and non-capital cases alike-that second-
degree murder and manslaughter are not lesser-
included offenses of felony murder.  See, e.g., State v.
Price, 562 N.W.2d 340, 346 (Neb. 1997); Thompson v.
State, 184 N.W. 68 (Neb. 1921) (reversing manslaugh-
ter conviction because defendant had been charged by
information with felony murder, and manslaughter
was not properly submitted to jury as lesser-included
offense of felony murder);  Morgan v. State, 71 N.W.
788, 794 (Neb. 1897).15  As  the  federal  courts  had con-

___________________(footnotes)

Beck was decided. In Beck, the jury was told that, if it entered
a guilty verdict, it would be required to impose a death
sentence. 447 U.S. at 639 n.15. The Court in Beck concluded
that such knowledge undermined the reliability of the jury's
determination of guilt. Id. at 639-643.  In Nebraska, by con-
trast, the jury plays no role in imposition of sentence. Neb.
Rev. Stat.  29-2520 (1995). One of the concerns that animated
the  decision  in  Beck, therefore, is not implicated in the present
case.
15 To determine whether one offense is a lesser-included
offense of another, the Nebraska courts generally apply an
"elements" test essentially identical to that applied in the  fed-
eral courts.  See State v. Williams, 503 N.W.2d 561, 565 (Neb.
1993) (overruling 1990 decision that had adopted "cognate-
evidence" test and returning to elements test that court had
previously followed); Schmuck v. United States, 489 U.S.
at 716. Under that test, the elements of the two offenses are
compared, and, if proof of one offense necessarily establishes
proof of the other, the latter offense is a lesser-included offense
of the former.  Applying the elements test, second-degree mur-
der is clearly not a lesser-included offense of felony murder
under Nebraska law, because a defendant who is guilty of
felony murder will not necessarily have the intent to kill that
is required to establish guilt of second-degree murder.  The
same is true as to manslaughter premised on an intentional
killing without malice.  See  note  8,  supra.

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22

sistently held before the decision of the court of ap-
peals in this case, it does not offend Beck for a trial
Court  to refuse  the  request  of  a capital defendant that
the jury be instructed on an uncharged offense which,
under applicable law, is not a lesser-included offense
of any charged offense. 16
           
___________________(footnotes)

Under Nebraska law, manslaughter can also be committed
by causing death "while in the commission of an unlawful act. "
Neb.  Rev.  Stat. 28-305 (1)  (1995).  Applying an elements test.,
that form of manslaughter could be viewed as a lesser-included
offense  of  felony  murder, because a defendant who committed
felony murder necessarily would have caused death while in
the commission of an unlawful act.  The Nebraska courts do
not appear to have specifically discussed "unlawful act" man-
slaughter  when  explaining  the  basis  for  the  long-standing rule
that manslaughter is not a lesser-included offense of felony
murder.  Whatever  its basis, the rule that manslaughter  is not a
lesser-included offense of  felony murder has been well settled
in Nebraska for more than a century.  There is no reason to
conclude  that  Nebraska's  approach  to that  question "offend[s]
federal constitutional standards," Hopper  v. Evans, 456 U.S.
at 612. In any event, the evidence in this case would not have
supported an instruction on "unlawful act" manslaughter.  Sec
note 8, supra.
16 See, e.g., Greenawalt v. Stewart, 105  F.3d 1268, 1276  (9th
Cir.) (trial court's refusal to instruct jury on second-degree
murder did not violate requirements of Reck, because, under
Arizona law, second-degree murder was not lesser-included
offense of felony murder), cert. denied, 117 S. Ct. 794 (1997);
Greenawalt v. Ricketts, 943 F.2d 1020, 1029 (9th Cir. 1991)
(same), cert. denied, 506 U.S. 888 (1992); Hill v. Kemp, 833
F'.2d 927, 929 (llth Cir. 1987 (under Georgia law, statutory
rape is not lesser-included offense of forcible rape; therefore,
even assuming that the requirements of Beck extend to non-
capital cases, refusal to instruct as to statutory rape was not
constitutional error); Woratzeck v. Ricketts, 820 F.2d 1450,
1457 (9th Cir. 1987) (because, under Arizona law, second-degree
murder is not lesser-included offense of felony murder, trial

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23

B. Any Requirement That The Jury Be Instructed
On Offenses That Are Not Lesser-Included
Offenses Under Applicable Law Would Be
Unworkable

In addition to being unprecedented, the rule adopted
by the court of appeals would give rise to serious
practical problems. As has been noted, Nebraska
courts, like their federal counterparts, generally
apply an "elements" test to determine whether an un-
charged offense may properly be submitted to the jury
as a lesser-included offense. See note 15, supra. A
rule that the Constitution requires state and federal
courts to instruct juries on uncharged non-capital

court's refusal to instruct as to second-degree murder did not
violate requirements of Beck; "The constitutional protection
prohibits the state from withdrawing [the lesser included
offense] option from the jury in a capital case.  As there was
no option to withdraw, [the defendant] was not denied due
process.") (internal quotation marks and citation omitted),
cert. granted, vacated, and remanded on other grounds, 486
U.S. 1051 (1988); Jones  v. Thigpen,  741   F.2d 805, 816 (5th Cir.
1984) ("Beck can be read only to require instruction in capital
cases on lesser included offenses available under state law.
Mississippi defines no lesser included offense that might have
applied to this robbery-killing, and the trial court in this
case was therefore not bound by Beck to deliver a lesser in-
cluded offense instruction.") (citation omitted), cert. granted,
vacated, and remanded on other grounds, 475 U.S. 1003 (1986);
cf. Hatch v. Oklahoma, 58 F.3d 1447, 1454 (10th Cir. 1995)
(affirming capital sentence even though trial court refused to
instruct jury as to non-capital offense, because one requested
offense was not supported by evidence, and other was not
lesser-included offense under Oklahoma law, "We do not read
Beck or any other case as establishing a constitutional require-
ment that states create a noncapital murder offense for every
set of facts under which a murder may be committed."), cert.
denied, 116 S. Ct. 1881 (1996).

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24

offenses that have elements different from those of
the charged offense- lesser-unincluded offenses-
would  generate a  daunting array  of difficult issues. 17
First, it is entirely unclear what relationship
would have to exist between the charged capital
offense and the other offense that the defendant
wished to have the jury consider. For example, there
was evidence in the present case suggesting that
respondent committed a variety of lesser offenses in
addition to second-degree murder and manslaughter:
burglary, assault, indecent exposure, public intoxica-
tion, and possession of peyote.  A similarly lengthy
list could be drawn up in most capital cases. The
court of appeals does not identify, and logic does not
immediately suggest, the principles that should gov-
ern a court's determination as to which such offenses
that are not lesser-included offenses under generally
applicable state law a defendant could insist that the
jury consider as an alternative to capital murder
charges. 18

___________________(footnotes)

17  The  supposed  obligation  to  instruct  on  lesser-unincluded
offenses could arise in two contexts, First, a charged capital
offense might lack any lesser-included offenses under applica-
ble  law.  Second, even if the charged capital offense had lesser-
included offenses, an instruction as to those lesser-included
offenses might not be supported by the evidence, while an
instruction as to one or more lesser-unincluded offenses might
be. In the latter context, the rule adopted by the court of
appeals would apparently require that the jury be instructed
on  at  least  one lesser-unincluded offense that was supported by
the evidence.
18 Defendants do not have a right under Beck to have the
jury instructed as to all lesser-included---or, under the ap-
proach of the court of appeals in this  case, lesser-unincluded-
offenses.  Rather, it suffices if one lesser-included offense
supported by the evidence is submitted to the jury. Schad, 501

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25

In two recent cases, the Court has noted the dif-
ficulties created by rules--other than an elements
test-for determining the requisite degree of rela-
tionship between offenses.   See United States v.
Dixon, 509 U.S. 688, 711-712 & n.16 (1993) (overruling
earlier case applying "same conduct" test to deter-
mine whether subsequent criminal prosecution is
barred by Double Jeopardy Clause; unlike "same ele-
ments" test, "same conduct" test produced confusion
and was unworkable); Schmuck v. United States, 489
U.S. 705, 720-721 (1989) (rejecting "inherent relation-
ship" test for determining when offense should be
submitted to jury as lesser-included offense; "inher-
ent relationship" test is "rife with the potential for
confusion," while the "elements" test "promotes  judi-
cial economy by providing a clearer rule of decision").
One highly undesirable consequence of the rule
adopted by the court of appeals in this case is that the
federal courts would be required once again to at-
tempt to develop a test, other than the elements test,
for determining when an uncharged lesser-unincluded
offense was sufficiently related to a charged capital
offense as to make it constitutionally obligatory to
submit the uncharged offense to the jury.  Moreover,

___________________(footnotes)

U.S. at 645-648. In addition, under Hopper, a defendant could
not insist that the jury be instructed as to an offense if the
evidence would not permit a reasonable jury to find the defen-
dant guilty of that offense while at the same time acquitting on
the capital murder count. 456 U.S. at 610-612.  In the present
case, the latter principle would rule out some of the listed
offenses-e.g., burglary (which requires proof of unlawful
intent,  see  Neb. Rev. Stat. $28-507 (1995)), see  note 8,  supra-
but not others, e.g., possession of peyote. It is wholly unclear
how a trial court would  decide which of  the remaining  lesser-
unincluded offenses should be submitted to the jury.

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26

federal courts addressing  claims  under  24 U.S.C.  2254
would be required to apply that test to a wide array of
state statutes.
Second, submission of uncharged lesser-unincluded
offenses would-barring waiver-violate the rights of
the defendant.  Schmuck, 489 US. at 717-718 (noting
that submission of such offenses, without waiver, may
violate defendant's right to indictment and right to
notice)." Arguably, the  defendant could waive those
rights, ibid,; cf. Spaziano, 468 U.S. at 456, but the
question then arises whether the defendant is free to
waive those rights selectively, only as to the offense
or offenses that he wishes for his tactical reasons to
have submitted to the jury, or whether, conversely,
the defendant could be required to waive his right to
notice and indictment as to all appropriate lesser
offenses.  Either approach would present diffculties
Third, granting defendants the right to have un-
charged and unincluded offenses submitted to the
jury would raise concerns about unfair surprise.  In
Nebraska, as in the federal system, the contents of
jury instructions are often not resolved until the
trial is almost. over. Neb. Rev. Stat. 29-2016(5)
(1995) (requests for jury instructions shall be made
after evidence is concluded); Fed It. Crim. P. 30
(requests for instructions are to be made at close of

___________________(footnotes)

19 In Nebraska, felony cases may be prosecuted either by
indictment or by information.  Neb.  Rev.  Stat. 29-1601 (1995).
In the federal system, felony cases must be prosecuted by
indictment. U.S. Const. Amend. V;  Fed. R. Crim. P. 7(a).
20 On the one hand, it would hardly seem fair to permit a
defendant to pick and choose among the array of lesser-
unincluded offenses solely on the bask of his tactical interests.
On the other hand, it would be no fairer to permit the
prosecution to do the same.

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27

evidence or at such earlier time during trial as court
directs; court shall rule on requests before closing
arguments).  That does not create problems when
the issue is the propriety of instructing the jury as
to lesser-included offenses.  Because such offenses
are necessarily established by proof of the charged
offense, the parties will have been focusing their
respective efforts on proving or raising doubts as to
the elements of the lesser-included offenses.  See
Schmuck, 489 U.S. at 718,720.
The same will not be true as to lesser offenses with
new elements.  Such offenses introduce distinct is-
sues into a trial, and neither party would have any
way to anticipate that it needed to address those
issues during the evidentiary phase of the proceed-
ings.  See Schmuck, 489 U.S. at 720 (rejecting "inher-
ent relationship" test for identifying lesser-included
offenses, because that test would not "permit[] both
sides to know in advance what jury instructions will
be available and to plan their trial strategies
accordingly").

C. The Court Of Appeals' Reasoning Is Unsound

1. The court of appeals believed that it was justi-
fied in overriding Nebraska law on lesser-included
offenses because Beck itself had invalidated a state
law. Pet. App. 9, 11 & n.11. That reasoning is in-
correct. Beck held that a State may not single out a
capital crime and  deny  the  giving  of  a lesser-included-
offense instruction where the defendant would other-
wise be entitled to such an instruction under general
principles of state law. As the Court explained in
Beck, Alabama gave defendants the right to a lesser-
included-offense instruction in all non-capital cases,
447 U.S. at 636-637, and the State conceded that,

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28

under its general rule, Beck "would have been en-
titled to instructions on first-degree (felony) murder
and robbery; id. at 630 n.5.  Beck does not justify the
conclusion that, even where generally applicable state
law would bar the giving of a lesser-included-offense
instruction, the Constitution requires state courts to
devise procedures to instruct on some non-lesser-
included offense. And, for the reasons discussed
above, any extension of  Beck to impose such a re-
quirement would encounter serious obstacles.
2. The court  of appeals also found support for its
holding in this Court's  decisions  in  Tison v. Arizona,
481 U.S. 137, 158 (1987) (death penalty could properly
be imposed upon defendant convicted of felony murder,
where defendant was major participant in predicate
felony and acted with reckless indifference to human
life), and Enmund v. Florida, 458 U.S. 782, 801 (1982)
(death penalty could not be properly be imposed on
defendant convicted of felony murder, where defen-
dant was minor participant in predicate felony and
lacked culpable mental state as to killing). Pet. App.
12-15.  The court  of  appeals  appeared to reason that,  in
order to comply with Tison and Enmund, the State
will in any event have to make a showing about the
mental state of the defendant with respect to the
killings.  Accordingly, the court concluded, the State
cannot withhold from the jury instructions on other
homicide offenses on the theory that those offenses
inject a new issue into the case, i.e., proof of a men-
tal state relating to the killing.  Id. at 13 ("To hold
otherwise would mean  that  the  State court avoid Beck
by claiming that it need show no intent or reckless
indifference with respect to the killing, yet could
simultaneously avoid  Enmund by adducing precisely
such evidence.").

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29

The court of appeals erred in its application of
Tison and Enmund.  This Court has made clear that
Tison and Enmund do not affect the power of the
States and the federal government to define the
elements of capital offenses. Cabana v. Bullock, 474
U.S. 376, 385 (1986) ("[O]ur  ruling  in  Enmund  does
not  concern  the  guilt  or  innocence of the defendant-
it establishes no new elements of the crime of murder
that must be found by the jury.").  To the contrary,
although Tison and Enmumd together define a sub-
stantive limitation on the circumstances in which a
death sentence may be imposed, the limitation they
define may properly be addressed at sentencing, or
even thereafter. Id. at 392 (determination that defen-
dant's conduct was sufficient to justify capital sen-
tence may be made by "an appellate court, a trial
judge, or a jury").
Tison and Enmund therefore do not undermine
Nebraska's rationale for declining to treat second-
degree murder and manslaughter as lesser-included
offenses of felony murder.  The fact that the State
must ultimately meet the requirement imposed by
Tison and Enmund does not support the conclusion
that the jury in a capital case must be instructed on
that requirement.  Accordingly, Tison and Enmund
are entirely consistent with the State's generally
applicable rule that homicide charges such as second-
degree murder are not lesser-included offenses of
felony murder-in a capital prosecution or otherwise.

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30

CONCLUSION

The judgment of the court of appeals should be
reversed.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

ROY W. MCLEESE  III
Assistant to the Solicitor
General

NOVEMBER 1997

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APPENDIX

Neb. Rev. Stat. 28-303.  Murder in the first degree;
penalty.

A person commits murder in the first degree if
he kills another person (1) purposely and with
deliberate and premeditated malice, or (2) in the
perpetration of or attempt to perpetrate any
sexual assault in the first degree, arson, robbery,
kidnapping, hijacking of any public or private
means of transportation, or burglary, or (3) by
administering poison or causing the same to be
done; or if by willful and corrupt perjury or sub-
ornation of the same he purposely procures the
conviction and execution of any innocent person.
The determination of whether murder in the first
degree shall be punished as a Class I or Class IA
felony shall be made pursuant to sections 29-2520
to 29-2524.

Neb. Rev. Stat 28-304.  Murder in the second
degree; penalty.

(1) A person commits murder in the second de-
gree if he causes the death of a person intention-
ally, but without premeditation.

(2) Murder in the second degree is a Class IB
felony.

Neb. Rev. Stat $28-305. Manslaughter; penalty.

(1) A person commits manslaughter if he kills
another without malice, either upon a sudden

(la)

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2a

quarrel, or causes the death of another uninten-
tionally while in the commission of an unlawful

act.

(2) Manslaughter  is a Class III felony.