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Opinion of the Court
Enmund as essentially requiring the States to alter their definitions of felony murder to include a mens rea requirement with respect to the killing.8 In Cabana v. Bullock, 474 U. S. 376 (1986), however, we rejected precisely such a reading and stated that "our 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" and "does not affect the state's definition of any substantive offense." Id., at 385 (internal quotation marks and citation omitted). For this reason, we held that a State could comply with Enmund's requirement at sentencing or even on appeal. See 474 U. S., at 392. Accordingly, Tison and Enmund do not affect the showing that a State must make at a defendant's trial for felony murder, so long as their requirement is satisfied at some point thereafter. As such, these cases cannot override state-law determinations of when instructions on lesser included offenses are permissible and when they are not.
Finally, respondent argues that the Nebraska Supreme Court's longstanding interpretation that felony murder has no lesser included homicide offenses is arbitrary because, in his view, it is based only on recitations from prior cases, rather than on application of the lesser included offense tests in place since his conviction. See Brief for Respondent 40- 43. This contention is certainly strained with respect to the crime of second-degree murder, which requires proof of intent to kill, while felony murder does not. See Neb. Rev. Stat. §§ 28-303, 28-304 (1995). It appears that the Nebraska Supreme Court has not undertaken respondent's suggested analysis with respect to unlawful act manslaughter-- unintentional killing, committed in the perpetration of an unlawful act. See § 28-305. On his direct appeal, however, respondent did not challenge the Nebraska Supreme Court's
8 The dissent also appears to be of this view, contending that Nebraska's justification for not providing an instruction on second-degree murder is inapplicable when the death penalty is sought. See post, at 101-102.
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