## Facts

- Trevelle J. Taylor was tried for first-degree murder and use of a deadly weapon to commit a felony arising from the shooting death of Justin Gaines, who was killed while seated in his car.
- The prosecution presented substantial physical and testimonial evidence linking Taylor to the shooting.
- Joshua Kercheval, a key witness, allegedly drove Taylor and another man to the area where the shooting occurred.
- Before trial, Taylor called Kercheval and, in a threatening manner, warned him not to testify; the call was recorded and admitted into evidence.
- The trial court instructed the jury that Taylor’s attempt to dissuade Kercheval from testifying could serve as a basis to infer guilt, but the instruction did not clearly state that the jury was not required to draw that inference.
- The jury convicted Taylor of both charges; the court imposed life imprisonment for murder and a consecutive 10-year sentence for the weapon offense.
- Taylor appealed, challenging, among other things, the constitutionality of the inference instruction and the sufficiency of the evidence supporting first-degree murder.

## Issues

1. Whether the instruction permitting an inference of guilt from Taylor’s attempt to intimidate a witness created an unconstitutional presumption that relieved the State of proving guilt beyond a reasonable doubt.
2. If the instruction was erroneous, whether double jeopardy barred retrial or whether the evidence admitted at trial was sufficient to permit retrial.
3. Whether the evidence was sufficient to support premeditation and deliberation for first-degree murder.

## Decision

- The Nebraska Supreme Court held the inference instruction was erroneous because it failed to tell jurors they were not required to draw the inference and that guilt must still be proved beyond a reasonable doubt based on all the evidence.
- The court concluded the instructional error was not harmless and required reversal.
- The court held the evidence admitted at trial (including the recorded threat) was sufficient to sustain the verdict; therefore, double jeopardy did not bar retrial.
- The court reversed the convictions and remanded for a new trial.

## Legal Principles

- A presumption that relieves the State of its burden to prove any essential element beyond a reasonable doubt violates due process.
- When instructing on a specific permissive inference, the court must explain that the jury may, but is not required to, draw the inference and that the inferred fact must be proved beyond a reasonable doubt on all the evidence.
- Retrial after reversal for trial error is not barred by double jeopardy if the sum of all evidence admitted at the first trial, whether erroneously admitted or not, was sufficient to support a guilty verdict.
- Premeditation requires that the intent to kill be formed before the act, and no particular time period is required; it may be instantaneous so long as it precedes the killing.

## Conclusion

The court reversed and remanded for a new trial because the witness-intimidation inference instruction omitted required limiting language and risked shifting the burden of proof, but retrial was permitted because the evidence admitted at trial was sufficient to support the convictions, including on premeditation.


State v. Taylor, 803 N.W.2d 746 (Neb. 2011)