102
Stevens, J., dissenting
spondent intended to kill his victim, or under Tison v. Arizona, 481 U. S. 137 (1987), that he had the moral equivalent of such an intent. The rationale for Nebraska's general rule that second-degree murder is not a lesser included offense of felony murder does not, therefore, apply to this case.2 To
be faithful to the teaching of Beck v. Alabama, 447 U. S. 625 (1980), the Court should therefore hold that respondent was entitled to the requested instruction.
Accordingly, I respectfully dissent.
2 Moreover, a recent Nebraska Supreme Court decision suggests that Nebraska law may be in flux on the question whether second-degree murder is a lesser included offense of felony murder. Only a few weeks ago, the Nebraska Supreme Court held that a jury verdict finding a defendant guilty of second-degree murder constituted an implied acquittal of the crime of first-degree murder, as defined in § 28-303 of Nebraska's criminal code, and therefore barred a second prosecution under that section for either felony murder or premeditated murder. Nebraska v. White, 254 Neb. 566, 577 N. W. 2d 741 (1998). In reaching that holding the Court explained: "The conduct prohibited by § 28-303 is first degree murder. Premeditated murder and felony murder are not denominated in Nebraska's statutes as separate and independent offenses, but only ways in which criminal liability for first degree murder may be charged and prosecuted." Id., at 577, 577 N. W. 2d, at 748. The difference between a charge of premeditated murder and a charge of felony murder "is a difference in the State's theory of how [the defendant] committed the single offense of first degree murder. . . . Therefore, we hold that the crime of first degree murder, as defined in § 28-303, constitutes one offense even though there may be alternate theories by which criminal liability for first degree murder may be charged and prosecuted in Nebraska." Ibid. Given this holding, the Nebraska Supreme Court may conclude that second-degree murder is a lesser included offense of both premeditated and felony murder, as they are both part of the "one offense" of first-degree murder.
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