Nebraska Supreme Court upholds bench trial conviction for unintentional manslaughter Neb. Rev. Stat. § 28-305 (Reissue 2008) while also finding the Defendant guilty of intentional use of a weapon to commit a felony (section 28-1205 RRS Neb). State v. Tucker, S-08-623, 278 Neb. 935 . Defendant was charged with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Defendant waived a jury trial. The court found Defendant guilty of the lesser-included offense of manslaughter "by unintentionally causing the death of . . . victim while in the commission of an unlawful act. the court explained that the predicate felony to that offense was "assault and/or a terroristic threat. By acquitting Defendant of first and second degree murder, the trial court made the implicit finding that Defendant lacked the specific intent to kill and that he also lacked the specific intent to commit any of the listed felonies for felony murder. By finding Defendant guilty of unintentional manslaughter, the court found that Defendant did not intend to kill victim, but that he did kill victim during the intentional commission of an unlawful act. based on the predicate offense of intentional assault, the evidence was sufficient to support the trial court’s judgment that Defendant was guilty of use of a weapon to commit a felony

Defendant convicted of murder in "Boys Don't Cry" case loses appeal from post-conviction proceedings in which he requested new trial based on co-defendant's perjury at trial. State v. Lotter, S-08-449 through S-08-451, 278 Neb. 466. Defendant was too late in brining to motion for new trial based on Nissen's perjury; fear of the death sentence is not enough to show prosecutorial coercion. Unlike postconviction relief, relief under Neb. Rev. Stat. § 29-2103 (Reissue 2008) {motion for new trial based on newly discovered evidence} is not strictly limited to constitutional claims. A motion for postconviction relief cannot be used to obtain, outside of the 3-year time limitation under Neb. Rev. Stat. § 29-2103 (Reissue 2008), what is essentially a new trial based on newly discovered evidence. Once a defendant has been afforded a fair trial and convicted of the offense for which the defendant was charged, the presumption of innocence disappears. Even if a defendant has not actually killed a victim, substantial participation in the felony Constitutional Law: Criminal Law: Witnesses: Death Penalty. A witness’ testimony is not the result of unconstitutional coercion simply because it is motivated by a legitimate fear of a death sentence

Nebraska Supreme Court, Miller-Lerman, Justice affirms Lancaster County District Court conviction of felony murder and use of a firearm to commit a felony from the shooting death in an armed robbery of a marijuana dealer. State v. Banks, S-07-670, 278 Neb. 342. Defendant broke into the victims home to rob him of cash and a marijuana stash. Defendant shot the victim twice in the chest as he was getting away in his friends car. Nebraska Supreme Court affirms District Court's refusal to allow an alternative premediated first degree murder instruction along with the court's felony murder instruction. The district court's refusal to allow the jury to consider lesser included homicide offenses and acquittal on robbery the Supreme Court also affirms. Defendant also loses his appeal on jury selection, venue, witnesses cross examination and the state's late amendment of the weapons charge from a Class III felony to a firearms Class II felony. We conclude that Banks has not established reversible error from the court’s refusal to instruct on premeditated murder and the lesser-included offenses of second degree murder and manslaughter. In this case, Banks was convicted of first degree murder based on sufficient evidence. Banks has shown no prejudice from the refusal to instruct on premeditated murder, because such instruction would have simply given the jury an additional theory under which to convict Banks of first degree murder. Banks also has not shown that he was prejudiced by the failure to instruct on premeditated murder with its corresponding lesser-included offenses, because the evidence did not produce a rational basis to acquit him of first degree murder under a felony murder theory but convict him of second degree murder or manslaughter. The district court therefore did not violate Banks’ right to due process and did not otherwise prejudicially err when it refused to give the instructions requested by Banks