Cite as: 524 U. S. 88 (1998)
Stevens, J., dissenting
interpretation on this ground, and the clearest statement in his briefs on why a manslaughter instruction should have been given referred to manslaughter generally, for the following reason: "As the Court ruled in State v. Ellis, 208 Neb. 379, 303 N. W. 2d 741 (1981), such an instruction is necessary 'where there is no eye witness to the act, and the evidence is largely circumstantial.' " Reply Brief for Appellant in No. 81-706 (Neb. Sup. Ct.), p. 11. We will not second-guess the Nebraska Supreme Court's 100-year-old interpretation of state law when respondent failed to present his challenge to that court in the first instance.
For the foregoing reasons, the Court of Appeals' judgment granting respondent a conditional writ of habeas corpus is reversed.
It is so ordered.
Justice Stevens, dissenting.
As a matter of Nebraska law, second-degree murder is not ordinarily a lesser included offense of felony murder.1 Based in part on this fact, the Court holds that it was not necessary for the trial judge to grant respondent's request for an instruction authorizing the jury to find respondent guilty of that offense. The Court's logic would be unassailable if the State had not sought the death penalty.
The reason that Nebraska generally does not consider second-degree murder a lesser included offense of felony murder is that it requires evidence of an intent to cause the death of the victim, whereas felony murder does not. But in this case the State sought to impose the death penalty on respondent for the offense of felony murder. As a matter of federal constitutional law, under Enmund v. Florida, 458 U. S. 782 (1982), it could not do so without proving that re-1 See, e. g., State v. Price, 252 Neb. 365, 373, 562 N. W. 2d 340, 346 (1997); State v. Masters, 246 Neb. 1018, 1025, 524 N. W. 2d 342, 348 (1994); State v. Ruyle, 234 Neb. 760, 773, 452 N. W. 2d 734, 742-743 (1990); State v. McDonald, 195 Neb. 625, 636-637, 240 N. W. 2d 8, 15 (1976).
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