92
Opinion of the Court
commit the underlying felony. State v. Reeves, 216 Neb. 206, 217, 344 N. W. 2d 433, 442 (1984). Although a conviction for felony murder renders a defendant eligible for the death penalty, see § 28-303, the jury is not charged with sentencing the defendant; under Nebraska law, capital sentencing is a judicial function, § 29-2520.
At trial, respondent requested that the jury be instructed on both murder in the second degree and manslaughter, which, he argued, were lesser included offenses of felony murder. App. 6-9.1 The trial court refused on the ground that the Nebraska Supreme Court consistently has held that second-degree murder and manslaughter are not lesser included offenses of that crime. Id., at 10. Respondent's jury thus was presented with only the two felony-murder counts.2 Although respondent raised an insanity defense, the jury rejected it and convicted him on both counts. A three-judge sentencing panel then convened to consider aggravating and mitigating circumstances. It sentenced respondent to death on both convictions.
After the Nebraska Supreme Court affirmed his convictions and sentences, State v. Reeves, 216 Neb. 206, 344 N. W. 2d 433, cert. denied, 469 U. S. 1028 (1984), respondent unsuccessfully pursued state collateral relief, State v. Reeves, 234 Neb. 711, 453 N. W. 2d 359 (1990). This Court then vacated the Nebraska Supreme Court's judgment for further consideration in light of Clemons v. Mississippi, 494 U. S. 738 (1990), because respondent's death sentence had been based in part on an invalid aggravating factor. See Reeves v. Nebraska, 498 U. S. 964 (1990). On remand, the Nebraska Su-1 Under Nebraska law, second-degree murder is defined as "caus[ing] the death of a person intentionally, but without premeditation," § 28-304, and manslaughter as "kill[ing] another without malice, either upon a sudden quarrel, or caus[ing] the death of another unintentionally while in the commission of an unlawful act," § 28-305.
2 Respondent did not request an instruction on sexual assault in the first degree.
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