State of Nebraska v. James Cotton

On August 7, 2015, Cotton shot and killed Trevor Bare.

During the evening prior to the shooting, Bare saw Cotton in

the apartment immediately above his own. Because Cotton and

Bare had a negative history together, Bare confronted Cotton

and an argument ensued. After the initial altercation, Bare and

his girlfriend, McKayla Burnette, left the apartment house. A

couple of hours later, someone set a fire in the back of the

truck owned by Travis Labno, the new tenant of the apartment

immediately above Bare’s.

Around 6:30 a.m. on August 7, 2015, Bare and Burnette

returned to Bare’s apartment. Upon their return, Labno confronted

Bare outside the house about the fire, while Cotton

exited Labno’s apartment with a shotgun. After the argument

between Labno and Bare ended, Cotton and Bare commenced

an argument, which ended with Cotton’s shooting Bare. Bare

died from his injuries.

At the crime scene, police found a broken piece of fence

wood on the ground, a spent shotgun casing, and a bloodstain

on the ground approximately 6 to 10 feet from the porch. They

also recovered a sawed-off shotgun in the bushes behind a

nearby house, which shotgun was later identified as the murder

weapon.

A search warrant was obtained for Labno’s apartment.

During the execution of the warrant, police discovered the following:

in the bathroom, marijuana on top of the toilet, a bag

in the toilet bowl, and a glass pipe in the sink; in the kitchen,

a broken “meth pipe or crack pipe”; and, in the northwest

bedroom closet, two envelopes with Cotton’s name on them,

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a medication bottle with Cotton’s name on it, an unlabeled

medication bottle containing marijuana, a spoon, a syringe,

and a tin that contained methamphetamine.

The cause of Bare’s death was determined to be a shotgun

wound to the abdomen. Autopsy results revealed that he had

methamphetamine, amphetamine, and “THC” in his system.

The autopsy also revealed the presence of fentanyl, which was

administered to him after the shooting.

At trial, Burnette testified that she and Bare saw Cotton

as they were leaving their apartment at approximately midnight

on August 6, 2015. Burnette said Bare was angry about

Cotton’s presence, so Bare approached Labno’s apartment and

knocked on the door. Burnette stated that she waited about 10

minutes before approaching Labno’s apartment to see what

was happening. When she did, she heard Bare say that “[t]his

is my block” and that Cotton could not stay there. Burnette

testified that she grabbed Bare and pushed him back toward

their car and that as they were leaving, Cotton called Bare

a “pussy.”

Burnette stated that after leaving the apartment, they went

to Bare’s mother’s house where they used marijuana and methamphetamine.

At around 6:30 a.m., Bare and Burnette returned

to Bare’s apartment. When they got there, they saw Labno run

into his apartment. While in the apartment, Burnette said she

could hear Cotton and Labno talking and recognized Cotton’s

voice from the earlier argument. She stated that she heard

Cotton say, “‘I have a round in the gun and I’m going to use

it.’” Burnette told Bare what she heard just before she heard

the sound of footsteps upstairs running outside, at which point,

Bare went outside as well.

Burnette said that after hearing a “smack” outside, she went

to the screen door to see what was happening. She testified that

she saw Bare holding a piece of wood, Labno by the porch,

and Cotton sitting in a chair on the porch behind Labno with

a shotgun in his lap, which he was pointing at Bare. Burnette

testified that Labno and Bare were arguing at first, but then the

argument between them seemed to calm down. Burnette stated

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that Cotton then stood up and started arguing with Bare, who

still had the piece of wood in his hand. She stated that Bare

stepped toward Cotton and said, “[I]f you’re going to hold the

gun to me, then you better fucking shoot me,” at which point,

Cotton shot Bare.

Labno testified that on August 6, 2015, Cotton was helping

him move into his new apartment and that Cotton was planning

on staying with him for a while. According to Labno, Cotton

woke him up during the night to tell him Bare and Burnette had

set fire to his truck. After looking at the truck, Labno stated

that he went back to bed. Cotton’s trial counsel, however,

introduced Labno’s cell phone records, which showed that

Labno’s cell phone made a number of calls around 4 a.m. from

an area away from his apartment. Additionally, in a portion

of Labno’s deposition testimony that was read into evidence,

Labno invoked his right to remain silent in response to a question

regarding whether he left his apartment and returned with

a shotgun, after which the prosecutor said that “we’ll talk about

immunity as it relates to the gun.”

Labno further testified that as he was getting ready for

work the next morning, he saw Bare and Burnette pull into the

driveway in two vehicles, blocking his vehicle in the driveway.

Labno stated that he yelled out to Cotton that Bare was back

and then went out to confront Bare, who had a board in his

hand. Labno told Bare to drop the board so they could fight,

but Bare refused. Labno testified that he heard a “clack” after

his argument had deescalated and turned around to see Cotton

holding a shotgun. He stated that Cotton and Bare began arguing

at that point, from a distance of about 6 to 8 feet apart, and

that the argument then escalated and Cotton shot Bare. Labno

testified that their argument lasted about 5 minutes and that

Bare was acting “totally crazy” and did not seem like he was

going to back down. Labno testified that he was not watching

the fight and was unsure if Bare advanced at Cotton, but he

stated that Bare did not charge him. However, he did state that

just before the shooting, Bare said something like, “If you pull

a gun, you better use it . . . .”

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Cotton testified at trial and admitted that he shot Bare but

claimed that he did so in self-defense. He alleged that Labno

obtained the shotgun and brought it to the altercation with

Bare. Cotton stated that he grabbed the shotgun only after Bare

had hit him with a wooden board and was advancing at him

again with the board.

Cotton also testified that Bare and Bare’s mother used to

live with him. However, issues arose because Bare and his

mother were stealing things from Cotton and Bare was causing

problems in the neighborhood—yelling at children and

flashing a gun in Cotton’s garage. Cotton evicted Bare and his

mother, but Bare continued to drive through the neighborhood

and would occasionally stop in front of Cotton’s house. Cotton

eventually moved out of that residence and was staying in a

hotel on August 6, 2015.

Cotton stated that he stayed at Labno’s apartment that night

at Labno’s request. Cotton also testified that at 2:30 a.m., Bare

was knocking on Labno’s door, and that when Cotton answered

the door, he told Bare to leave. When Bare refused to leave,

Cotton said he got Labno and then went back to the bedroom.

Cotton heard Bare tell Labno “this is my block” and that Labno

slammed the door in Bare’s face. Cotton and Labno testified

that Bare threatened Labno and told him, “I’ll be back, ask

[Cotton] what I’ll do,” as he left with Burnette.

Around 4 a.m., he saw a bright light outside and saw Bare

and Burnette lighting Labno’s truck on fire. Cotton testified

that Labno was not at his apartment at that time, so he went

outside and put out the fire himself. Further, he stated that

when Labno returned, Labno called his friend, Jeff Faye, and

then left and returned with a shotgun.

Cotton stated that later that morning while he was trying to

sleep, Labno yelled out, “They’re here.” He said that Labno

went and got the shotgun, “rack[ed] it,” and said, “There’s

one in the chamber” and tried to hand the gun to Cotton.

Cotton said he refused to take the gun and told Labno to “take

care of your business like a man.” Labno said, “I’m going to

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get the son of a bitch for doing this” and went outside with

the shotgun.

Cotton testified that Bare came to Labno’s front door and

that a confrontation ensued. Cotton stated that he went outside

and tried to leave but could not because his vehicle was

blocked in. He heard Bare yelling at Labno, and when he got

to the side of the house, Labno had the shotgun in his left hand

and Bare was holding a board. He stated that as the argument

escalated, Bare swung the board at him in a “karate chop”

motion. Cotton said the board hit him in the hand, jamming

one of his fingers and giving him a splinter. Cotton said that he

tried to leave to remove the splinter but that Bare said, “You

ain’t going nowhere old mother-fucker, sit down in that chair

or I’ll split your head,” at which point Labno pointed the shotgun

at Bare and told him to back up.

Cotton stated that Bare was still in a rage after his argument

with Labno ended and started yelling at Cotton about money

that Bare thought Cotton owed him. He said that Bare came

up toward the porch and told Cotton, “There’s a gun there, you

punk mother-fucker, you better use it.” Then Bare started coming

toward Cotton, so he grabbed the gun and shot Bare. He

said that he tried to hit Bare in the legs and was not “aiming

to kill the kid.”

Matthew Krisel, a friend of Bare, testified that after the

shooting, he got a telephone call about Bare’s death. Krisel

immediately called Cotton to ask him what had happened, and

Cotton asked Krisel to bring him some “dope,” which, according

to Krisel, meant methamphetamine. Cotton also asked

Krisel if he had heard that Cotton and Labno were “on the

lamb because they shot a kid and he was in critical condition.”

Cotton told Krisel where he was, and Krisel relayed

that location to police. The police apprehended Cotton at a

nearby residence.

During his trial testimony, Krisel acknowledged that he was

testifying against Cotton pursuant to a proffer agreement with

the State and was seeking leniency on his own charges in a

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separate case. Cotton denied having a conversation with Krisel

after the shooting and said that he never asked Krisel to bring

him some “dope.”

While Cotton was in jail, he made recorded telephone calls

to Labno and Faye. During a call to Labno, on August 26,

2015, Cotton asked Labno if he had received Cotton’s letters

and asked Labno if he has “any violence on [his] record”

because he was “just wonderin’ on something.” Labno testified

that he thought Cotton was trying to set him up to take the

gun charge.

During the call to Faye, on August 28, 2015, Faye told

Cotton that Labno was upset because it appeared Cotton wanted

Labno to take the blame for having the shotgun. Cotton said he

was “all wound up” and did not recall exactly what he said in

his letters to Labno. Cotton said he was just trying to exonerate

himself on the gun charge. Cotton also said, “I was out of my

mind that day, I was in a heightened thing,” and told Faye that

he would be testifying that he had acted in self-defense. Faye

testified that he believed Cotton was using methamphetamine

at the time of the incident.

Cotton called two of his former neighbors as witnesses to

testify about Bare’s conduct while living with Cotton. The first

witness testified that Bare often acted like a tough guy, kind

of like a “gangster,” and was abusive toward people he was

with and was confrontational toward neighbors. The second

witness stated that Bare was somewhat aggressive and that he

had seen Bare with a sidearm. He said that Cotton had contacted

him once about getting Bare out of his house. Both of

Cotton’s former neighbors also testified that they were aware

that Cotton used methamphetamine and other drugs while he

lived in their neighborhood.

At the close of the State’s case in chief, Cotton filed a

motion to dismiss for lack of sufficient evidence, which was

denied. After closing augments, Cotton renewed his motion to

dismiss and requested a directed verdict for the defense, which

was overruled.

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The jury found Cotton guilty as charged on all four counts.

Cotton filed a motion for new trial, which was denied. In

October 2016, the court appointed Cotton new counsel from

the Douglas County public defender’s office.

In January 2017, Cotton was sentenced to life in prison on

count I (first degree murder), 5 to 20 years’ imprisonment on

count II (use of a deadly weapon to commit a felony), 3 to

20 years’ imprisonment on count III (felon in possession of a

deadly weapon), and 20 months’ to 2 years’ imprisonment on

count IV (possession of a controlled substance). All four sentences

were ordered to run consecutively. Cotton perfected a

timely appeal.

II. ASSIGNMENTS OF ERROR

Cotton presents 11 assignments of error, restated and reordered,

on appeal. He assigns that the court erred in (1) denying

his motion to sever count IV from the amended information,

(2) admitting evidence obtained in a search that went

beyond the scope of the warrant, (3) finding his conviction

of first degree murder was supported by competent evidence,

and (4) denying his motion for new trial based on prosecutorial

misconduct.

Cotton also assigns that his trial counsel was ineffective in

(5) failing to withdraw due to a conflict of interest, (6) failing

to call Lindsey Redinbaugh as a witness, (7) failing to

request a mistrial when Labno testified at trial after having

been declared unavailable and had his deposition read into

the record, (8) failing to object to improper questioning by

the State and instances of prosecutorial misconduct during

closing argument, (9) failing to cross-examine Dr. Erin Linde,

and (10) offering the deposition of Faye at trial, as well as

(11) issues raised by him during allocution at his sentencing

hearing.

III. STANDARD OF REVIEW

[1] A denial of a motion to sever will not be reversed unless

clear prejudice and an abuse of discretion are shown, and an

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appellate court will find such an abuse only where the denial

caused the defendant substantial prejudice amounting to a miscarriage

of justice.1

[2] In reviewing a criminal conviction for a sufficiency of

the evidence claim, whether the evidence is direct, circumstantial,

or a combination thereof, the standard is the same:

An appellate court does not resolve conflicts in the evidence,

pass on the credibility of witnesses, or reweigh the evidence;

such matters are for the finder of fact. The relevant question

for an appellate court is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.2

[3] Whether a claim of ineffective assistance of trial counsel

can be determined on direct appeal presents a question of

law, which turns upon the sufficiency of the record to address

the claim without an evidentiary hearing or whether the claim

rests solely on the interpretation of a statute or constitutional

requirement. We determine as a matter of law whether the

record conclusively shows that (1) a defense counsel’s performance

was deficient or (2) a defendant was or was not prejudiced

by a defense counsel’s alleged deficient performance.3

IV. ANALYSIS

1. Motion to Sever Count IV and

Court’s Admission of Drug Evidenc e

(a) Additional Facts

About 1 month before trial, Cotton filed a motion to suppress

regarding physical evidence obtained from him during

a police interview, the shotgun used to kill Bare, and any evidence

of his use of the shotgun, which the court overruled.

1 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

2 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).

3 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

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Four days before trial, the State filed an amended information

adding count IV, possession of a controlled substance

(methamphetamine). That same day, Cotton filed a motion in

limine and sought to preclude the State from adducing any

evidence regarding the methamphetamine found inside Labno’s

apartment. Cotton’s motion alleged that there was no reliable

basis to conclude that the methamphetamine belonged to

Cotton, so the introduction of that evidence would violate Neb.

Evid. R. 104, 402, 403, and 404.

At the hearing, the police officer who executed the search

warrant testified that police had discovered, in the northwest

bedroom closet, two envelopes with Cotton’s name on them

and a medication bottle with Cotton’s name on it. Additionally,

he stated that a tin containing methamphetamine was also

found in that closet. The district court found there was probable

cause to believe that Cotton committed the crime of

possession of methamphetamine and bound over the charge

for trial.

Also at the hearing, Cotton moved to sever count IV, arguing

that it would allow otherwise inadmissible evidence to be

presented at trial. The court overruled both Cotton’s motion in

limine, to exclude drug evidence, and his motion to sever.

At trial, Cotton’s counsel objected to an officer’s testimony

about the items recovered during the execution of the search

warrant on Fourth Amendment grounds.

(b) Cotton Was Not Prejudiced

by Joinder of Count IV

Cotton assigns that the court erred in overruling his motion

to sever count IV from the amended information. He argues

that count IV was not related or joinable to counts I, II, and

III, because the murder and weapon charges were different

in nature from the drug charge and could be proved without

any reference to the drug charge. Cotton asserts that he was

severely prejudiced by the joinder of count IV, because it

permitted the State to admit propensity evidence of drug use

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that the jury could not have otherwise considered to attack

his character.

[4] There is no constitutional right to a separate trial.4

Instead, the joinder or separation of charges for trial is governed

by Neb. Rev. Stat. § 29-2002 (Reissue 2016), which

states, in relevant part:

(1) Two or more offenses may be charged in the same

indictment, information, or complaint in a separate count

for each offense if the offenses charged, whether felonies

or misdemeanors, or both, are of the same or similar

character or are based on the same act or transaction or

on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.

. . . .

(3) If it appears that a defendant or the state would

be prejudiced by a joinder of offenses in an indictment,

information, or complaint . . . the court may order an

election for separate trials of counts, indictments, informations,

or complaints, grant a severance of defendants,

or provide whatever other relief justice requires.

Under § 29-2002, whether offenses were properly joined

involves a two-stage analysis: (1) whether the offenses were

related and joinable, under subsection (1), and (2) whether the

joinder was prejudicial to the defendant, under subsection (3).5

There is a strong presumption against severing properly joined

counts under § 29-2002(3).6

[5] We have stated that § 29-2002(1) is similar to the federal

rule for joinder, found in Fed. R. Crim. P. 8(a) and (b); so,

federal case law is instructive to our application § 29-2002(1).7

Thus, we review a trial court’s determination on the joinability

4 State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).

5 See Henry, supra note 1.

6 State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

7 See State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).

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of offenses, under § 29-2002(1), de novo.8 However, a misjoinder

of offenses is subject to a harmless error review and will

not be reversed unless it resulted in prejudice.9

[6] Accordingly, while subsections (1) and (3) of § 29-2002

“present different questions, it is clear that there is no error

under either [subsection] if joinder was not prejudicial.”10

Therefore, a denial of a motion to sever will not be reversed

unless clear prejudice and an abuse of discretion are shown,

and an appellate court will find such an abuse only where the

denial caused the defendant substantial prejudice amounting

to a miscarriage of justice.11 A defendant opposing joinder of

charges has the burden of proving prejudice.12

[7,8] To prevail on a severance argument, a defendant

must show compelling, specific, and actual prejudice from the

court’s refusal to grant the motion to sever.13 Severe prejudice

occurs when a defendant is deprived of an appreciable chance

for an acquittal, a chance that the defendant would have had in

a severed trial.14 However, prejudice is not shown if evidence

of one charge would have been admissible in a separate trial

of another charge.15

Here, we need not consider whether count IV was properly

joined with the other counts, because Cotton cannot show

any prejudice from the joinder. At trial, Cotton presented

self-defense as an affirmative defense. To successfully assert

8 See, U.S. v. Zimny, 873 F.3d 38 (1st Cir. 2017); U.S. v. Litwok, 678 F.3d

208 (2d Cir. 2012); U.S. v. Colonna, 360 F.3d 1169 (10th Cir. 2004),

overruled on other grounds, U.S. v. Little, 829 F.3d 1177 (10th Cir. 2016).

9 See, e.g., Zimny, supra note 8.

10 U.S. v. Prigge, 830 F.3d 1094, 1098 (9th Cir. 2016), cert. denied ___ U.S.

___, 137 S. Ct. 697, 196 L. Ed. 2d 573 (2017). See Foster, supra 7.

11 Henry, supra note 1.

12 Id.

13 Stevens, supra note 4.

14 Foster, supra note 7.

15 Stevens, supra note 4.

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a claim of self-defense, one must have a reasonable and

good faith belief in the necessity of using such force.16 Thus,

whether Cotton was under the influence of alcohol or drugs

at the time of the shooting was relevant to determining if

he had a reasonable subjective belief that his use of force

was necessary.

Accordingly, the evidence of count IV would have been

admissible at trial even if the count would have been severed

from the amended information. Therefore, this assignment of

error is without merit.

(c) Cotton Waived Right to Object

to Lawfulness of Seizure

of Methamphetamine

Cotton argues that the court erred in denying his motion

to suppress, because the State exceeded the search warrant—

limited to firearms, companion equipment, and ammunition—

when it seized the methamphetamine from Labno’s apartment.

The State contends that this assignment of error is not properly

before this court, because Cotton’s motion to suppress

made no mention of methamphetamine or drug paraphernalia

and he never filed an additional motion to suppress or

expanded his initial motion.

Neb. Rev. Stat. § 29-822 (Reissue 2016) provides, in relevant

part, the following:

Any person aggrieved by an unlawful search and seizure

may move for return of the property so seized and

to suppress its use as evidence. The motion shall be filed

in the district court where a felony is charged and may

be made at any time after the information or indictment

is filed, and must be filed at least ten days before trial

or at the time of arraignment, whichever is the later,

unless otherwise permitted by the court for good cause

shown. . . . Unless claims of unlawful search and seizure

16 State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).

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are raised by motion before trial as herein provided,

all objections to use of the property as evidence on the

ground that it was obtained by an unlawful search and

seizure shall be deemed waived; Provided, that the court

may entertain such motions to suppress after the commencement

of trial where the defendant is surprised by

the possession of such evidence by the state, and also

may in its discretion then entertain the motion where the

defendant was not aware of the grounds for the motion

before commencement of the trial.

[9,10] A suppression hearing is preparatory, because it

relates to auxiliary issues not immediately relevant to the question

of guilt and is held in anticipation of certain evidence

being introduced at a forthcoming trial.17 It is the intention of

§ 29-822 that motions to suppress evidence are to be ruled on

and finally determined before trial, unless the motion is within

the exceptions contained in the statute.18 Accordingly, absent

an exception, a failure to move for the suppression of evidence

seized unlawfully waives the objection.19

As the State argues, Cotton’s motion to suppress did not

make any mention of the methamphetamine or other drugs

and drug paraphernalia seized during the search of Labno’s

apartment. While Cotton would have had cause to file a new

motion to suppress or amend his previous motion less than 10

days prior to trial, as a response to the State’s amended information,

he did not do so. Instead, he filed a motion in limine

to exclude methamphetamine evidence on the basis of evidence

rules 104, 402, 403, and 404—not Fourth Amendment

grounds. While he did make a Fourth Amendment objection

to the evidence at trial, he did not make a motion to suppress

and the court would have had no basis to apply the

17 State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014), citing Wayne R.

LaFave et al., Criminal Procedure § 10.1 (5th ed. 2009).

18 Piper, supra note 17.

19 State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972).

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statutory exception for surprise when the objection concerned

the exact evidence which was the subject of Cotton’s motion

in limine.

We conclude that Cotton waived his right to object to the

seizure’s lawfulness by failing to move for the suppression of

the evidence. Thus, this assignment of error is without merit.

2. Evidenc e Was Sufficient to

Support Cotton’s Conviction

Cotton argues that the evidence was insufficient as a matter

of law to support a guilty verdict of first degree murder,

because the State failed to prove that he acted with deliberate

or premediated malice. Instead, he argues that the evidence

clearly shows that he acted instinctively in self-defense.

The State argues that the jury was properly instructed on the

elements of first degree murder, its burden, and Cotton’s claim

of self-defense. It argues that while the evidence supporting

the conviction was disputed, we must view it in the light most

favorable to the State, and that matters of weight and credibility

are for the jury to decide.

[11] Pursuant to Neb. Rev. Stat. § 28-303 (Supp. 2017), a

person commits murder in the first degree if he or she kills

another person purposely and with deliberate and premeditated

malice. We have summarized the three elements which the

State must prove beyond a reasonable doubt to obtain a conviction

for first degree murder as follows: The defendant (1)

killed another person, (2) did so purposely, and (3) did so with

deliberate and premeditated malice.20

With respect to the element of “deliberate and premeditated

malice,” under § 28-303, our cases commonly look to the facts

showing the planning of a murder and the manner in which the

murder was carried out.21 Specifically, the deliberation element

means not suddenly or rashly, and requires the State to prove

20 State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).

21 Id.

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that the defendant considered the probable consequences of his

act before committing it.22

[12-14] The premeditation element requires the State to

prove that a defendant formed the intent to kill a victim without

legal justification before doing so, but no particular length

of time for premeditation is required.23 It is sufficient if an

intent to kill is formed before the act is committed and not

simultaneously with the act that caused the death.24 The time

required to establish premeditation may be of the shortest possible

duration and may be so short that it is instantaneous, and

the design or purpose to kill may be formed upon premeditation

and deliberation at any moment before the homicide is

committed.25 Whether premeditation exists depends on numerous

facts about how and what the defendant did prior to the

actual killing which show he or she was engaged in activity

directed toward the killing, that is, planning activity.26 A question

of premeditation is for the jury to decide.27

Burnette testified that after she and Bare returned to Bare’s

apartment, she heard Cotton say, “‘I have a round in the gun

and I’m going to use it.’” Then, she stated that when she

looked outside during the altercation, she saw Bare holding

a piece of wood, Labno by the porch, and Cotton sitting in

a chair on the porch behind Labno with a shotgun pointed at

Bare in his lap. While the altercation was between Labno and

Bare initially, Burnette stated that Cotton became upset when

their argument deescalated and that Cotton went into Labno’s

apartment. She testified that when Cotton reemerged from the

apartment, he placed himself in between Labno and Bare, still

with the gun. Bare then stepped toward Cotton and said, “[I]f

22 State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

23 Id. See, also, Escamilla, supra note 20.

24 Braesch, supra note 22.

25 Escamilla, supra note 20.

26 Id.

27 Id.

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you’re going to hold the gun to me, then you better fucking

shoot me,” at which point Cotton shot Bare.

Cotton admitted to shooting Bare and to doing so purposefully.

While Cotton presented a different version of events

and claimed his actions were in self-defense, we must view

the evidence in the light most favorable to the State. Based

on Burnette’s testimony, there was sufficient evidence for a

jury to conclude that Cotton went outside with the shotgun

and injected himself into the argument between Labno and

Bare with deliberate and premeditated malice to kill Bare.

Therefore, this assignment of error is without merit.

3. Ineffective Assistanc e

of Counsel

[15] When a defendant’s trial counsel is different from his or

her counsel on direct appeal, the defendant must raise on direct

appeal any issue of trial counsel’s ineffective performance

which is known to the defendant or is apparent from the record.

Otherwise, the issue will be procedurally barred.28

[16] However, the fact that an ineffective assistance of

counsel claim is raised on direct appeal does not necessarily

mean that it can be resolved.29 Such a claim may be resolved

when the record on direct appeal is sufficient to either affirmatively

prove or rebut the merits of the claim.30 The record is

sufficient if it establishes either that trial counsel’s performance

was not deficient, that the appellant will not be able to

establish prejudice, or that trial counsel’s actions could not be

justified as a part of any plausible trial strategy.31

[17] In the case of an argument presented for the purpose

of avoiding procedural bar to a future postconviction proceeding,

appellate counsel must present a claim with enough

28 State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

29 Id.

30 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

31 See id.

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particularity for (1) an appellate court to make a determination

of whether the claim can be decided upon the trial record and

(2) a district court later reviewing a petition for postconviction

relief to be able to recognize whether the claim was brought

before the appellate court.32 A claim insufficiently stated is no

different than a claim not stated at all.33

[18,19] To prevail on a claim of ineffective assistance of

counsel under Strickland v. Washington,34 the defendant must

show that his or her counsel’s performance was deficient and

that this deficient performance actually prejudiced the defendant’s

defense.35 To show deficient performance, a defendant

must show that counsel’s performance did not equal that of a

lawyer with ordinary training and skill in criminal law.36 To

show prejudice, the defendant must demonstrate a reasonable

probability that but for counsel’s deficient performance, the

result of the proceeding would have been different.37 A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.38 The two prongs of this test may be

addressed in either order, and the entire ineffectiveness analysis

should be viewed with a strong presumption that counsel’s

actions were reasonable.39

(a) Cotton Waived Right to Counsel

Free of Conflict of Interest

Cotton contends that his trial counsel was ineffective for

failing to file a motion to withdraw, because his trial counsel

32 State v. Mendez-Osorio, supra note 2.

33 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

34 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

35 Burries, supra note 3.

36 State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).

37 See Burries, supra note 3.

38 State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).

39 Jedlicka, supra note 28.

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had a conflict of interest. He also asserts that his waiver of

the conflict of interest was not effective, because it was not a

signed writing and his trial counsel could not have given him

detached advice when the conflict of interest was a personal

conflict of Cotton’s trial counsel.

The State argues that Cotton’s affirmative waiver of his

trial counsel’s conflict of interest on the record was knowing

and intelligent and that there was a strong presumption toward

allowing Cotton to choose his own counsel, so the court did not

err in accepting his waiver.

[20] The Sixth Amendment to the U.S. Constitution provides

that a criminal defendant has a right to have the assistance of

counsel for his or her defense. An essential part of that right

is the defendant’s ability to select the counsel of his or her

choice.40 In general, defendants are free to employ counsel of

their own choice and the courts are afforded little leeway in

interfering with that choice.41 Accordingly, because disqualification

of a criminal defendant’s chosen counsel raises problems

of a constitutional dimension, it is a harsh remedy that

should be invoked infrequently.42

The Sixth Amendment also recognizes a presumption in

favor of the defendant’s chosen counsel.43 Among the reasons

for this presumption are (1) a historic respect for the defendant’s

autonomy in crafting a defense, (2) the strategic importance

of choice in ensuring vigorous advocacy, and (3) practical

considerations of costs to the defendant and the judicial

system if counsel of choice were wrongly denied.44

[21,22] But the right to effective assistance of counsel also

entitles the accused to his or her counsel’s undivided loyalties,

40 State v. Kawa, 270 Neb. 992, 708 N.W.2d 662 (2006), overruled on other

grounds, Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

41 Id.

42 Id.

43 Id.

44 Id.

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free from conflicting interests.45 In the absence of an objection,

the court has a duty to inquire into a potential conflict of interest

only when the trial court knows or reasonably should know

that a particular conflict exists—which is not to be confused

with a situation in which the trial court is aware of a vague,

unspecified conflict of interest, such as that which inures in

almost every instance of multiple representation.46

[23,24] A defendant can waive his or her right to assistance

of counsel unhindered by a conflict of interest, provided

that the waiver is knowing and intelligent, but a court is not

required to accept a defendant’s waiver in all circumstances.47

The right to counsel of choice is not absolute. A trial court

must recognize a presumption in favor of a defendant’s counsel

of choice, but that presumption may be overcome by a demonstration

of actual conflict or a showing of a serious potential

for conflict.48 Disqualification in such cases is necessary,

because when a defendant is represented by an attorney who

has an actual or potentially serious conflict, the defendant may

be deprived of effective assistance of counsel.49

[25] A defendant who raised no objection at trial must

show that an actual conflict of interest existed and that the

conflict adversely affected his or her lawyer’s performance.50

When an actual conflict exists, there is no need to show that

the conflict resulted in actual prejudice to the defendant. If

the defendant shows that his or her defense counsel faced a

situation in which conflicting loyalties pointed in opposite

45 State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

46 State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006), citing Wood v.

Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981), and

Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333

(1980).

47 Kawa, supra note 40.

48 Id.

49 Id.

50 Edwards, supra note 45.

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directions and that his or her counsel acted for the other client’s

interests or the counsel’s own personal interests and

against the defendant’s interests, prejudice is presumed.51 A

conflict of interest must be actual, rather than speculative or

hypothetical, before a court can overturn a conviction because

of ineffective assistance of counsel.52

Here, there was no motion to withdraw or motion to disqualify

regarding Cotton’s trial counsel. Nevertheless, upon

being informed by the State of Cotton’s trial counsel’s potential

ethical violations, the court fulfilled its duty to inquire

into the potential conflict of interest. The issue was discussed

by the parties’ attorneys, and Cotton affirmatively

waived the potential conflict of interests on the record. We

first consider whether his waiver was effective. If Cotton’s

consent was effective, we then consider whether the court

abused its discretion in accepting Cotton’s waiver. If either

of the preceding questions are answered in the negative, we

must determine whether Cotton’s trial counsel had an actual

conflict of interest that adversely affected his representation

of Cotton.

(i) Additional Facts

Lindsey Redinbaugh is the mother of Labno’s children.

Before trial, Cotton’s trial counsel identified Redinbaugh as a

witness, who would testify that Labno procured the shotgun

used to kill Bare. Redinbaugh was served a subpoena on July

19, 2016, to appear and testify at Cotton’s trial.

The State filed a motion in limine requesting to have

Redinbaugh excluded as a witness or to allow the State to

inquire on cross-examination regarding her employment with

Cotton’s trial counsel. The State also requested that the court

advise Cotton of the potential conflict of interest resulting from

his trial counsel’s relationship with Redinbaugh.

51 See id.

52 Id.

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The State’s motion in limine alleged the following facts:

Redinbaugh was hired by Cotton’s trial counsel on approximately

July 22, 2016; Redinbaugh and Cotton’s trial counsel

had discussed Matthew Krisel’s statements to law enforcement;

on July 29, while Krisel was being deposed by Cotton’s

trial counsel, Redinbaugh sent Krisel two messages on social

media accusing him of “‘snitching’” and discouraging him

from doing so; Redinbaugh was arrested that day for witness

tampering, and her cell phone was seized; Cotton’s

counsel informed a deputy Douglas County Attorney that

Redinbaugh’s cell phone may contain attorney work product

and that he intended to represent Redinbaugh on the tampering

charges.

In the motion in limine, the State also expressed concerns

that Cotton’s attorney may have aided Redinbaugh in witness

tampering and either inappropriately discussed this case with

Redinbaugh or allowed her access to case material, in violation

of discovery rules. Cotton’s trial counsel’s response to the

motion in limine does not appear in the record.

At the hearing on the motion, in Cotton’s presence, the

State alleged that Cotton’s trial counsel had requested that

the parties stipulate to not calling Redinbaugh as a witness

and stated that “the concern or the appearance of it is, is that

[Cotton’s trial counsel] is now getting out of calling a material

witness on behalf [of Cotton] to save himself from any

ethical problems.” Cotton’s trial counsel responded that he

had informed the State he did not intend to call Redinbaugh

at the deposition of Krisel based on trial strategy. Cotton’s

trial counsel also stated that he had conferred with counsel for

discipline and Cotton and that he and Cotton believed that it

was in Cotton’s best interests for him to continue representing

Cotton.

There were also two versions of a local newspaper article

which concerned the situation between Cotton’s trial counsel

and Redinbaugh entered into evidence. The record does not

establish that Cotton read the articles.

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The court then questioned Cotton about the motion. Upon

the court’s inquiry, Cotton stated that he had read the State’s

motion in limine, had discussed it with his trial counsel,

had been able to ask his trial counsel any questions that he

had about the motion in limine, had read his trial counsel’s

response to the State’s motion in limine, and understood the

potential ethics violations the State had raised concerning his

attorney and their implications. Then, the following colloquy

between the court and Cotton occurred: “THE COURT: Okay.

Do you choose to go forward with [your trial counsel] as your

counsel? [Cotton]: I do. THE COURT: All right. And do you

wish to go to trial today? [Cotton]: Yes, sir.”

(ii) Cotton’s Waiver Was Effective

[26,27] A waiver is the voluntary and intentional relinquishment

of a known right, privilege, or claim, and may be

demonstrated by or inferred from a person’s conduct.53 There

is no formalistic litany required to establish that a waiver was

knowingly and intelligently made; instead, when considering

whether a defendant voluntarily, knowingly, and intelligently

waived his or her right to counsel, we review the totality

of the circumstances appearing in the record.54 A voluntary

waiver, knowingly and intelligently made, must affirmatively

appear from the record, before a court may conclude that a

defendant

has waived a right constitutionally guaranteed or

granted by statute.55

[28,29] In determining whether a defendant’s waiver of a

statutory or constitutional right was voluntary, knowing, and

intelligent, an appellate court applies a clearly erroneous standard

of review.56 Under a clearly erroneous standard of review,

53 State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).

54 See id., citing State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).

55 Id.

56 Id.

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we do not reweigh the evidence, but we decide the ultimate

question independent of the trial court’s ruling.57

First, Cotton asserts that his waiver was per se ineffective,

because it did not comply with Neb. Ct. R. of Prof. Cond.

§ 3-501.7(b)(4), which requires an attorney to obtain “informed

consent, confirmed in writing” from a client when there is a

concurrent conflict of interest.

The Nebraska Rules of Professional Conduct govern

the ethical duties and restrictions of attorneys in Nebraska.

Conversely, a defendant’s right to counsel free of conflicting

interests, and the waiver thereof, is governed by the state

and federal Constitutions. Accordingly, while Cotton’s trial

counsel’s alleged failure to obtain written consent may be relevant

in disciplinary proceedings, it is not relevant to Cotton’s

waiver before the court.

Second, Cotton asserts that he could not effectively waive

the conflict of interest, because his trial counsel’s conflict was

personal, which prevented him from giving detached advice.

Though it is conceivable that any advice from Cotton’s trial

counsel to Cotton concerning the waiver was tainted with selfinterest,

the record contains an extensive dialogue between

Cotton and the court. Cotton admitted that he had personally

reviewed the State’s motion in limine and that he was in court

during the hearing. Accordingly, Cotton was aware of the

factual basis for the conflict of interest and the State’s concerns

about the impact that Cotton’s trial counsel’s conflicts

might have on his defense. Cotton also stated that he was able

to ask his counsel any questions he had about the situation.

While it is possible that Cotton’s trial counsel was not honest

with Cotton, Cotton was aware of the situation and had

reason to view his trial counsel’s statements with skepticism.

Nevertheless, Cotton affirmatively stated on the record that he

57 See, State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011); Jacob North

Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596 (2010), overruled

on other grounds, Heckman, supra note 40.

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wished to proceed to trial with his counsel. Therefore, we hold

that Cotton made a knowing and intelligent waiver of the conflict

of interest on the record.

(iii) Court Did Not Abuse Its Discretion

in Accepting Cotton’s Waiver

[30,31] When determining whether or not to disqualify a

defense counsel, the court must balance two Sixth Amendment

rights: (1) the defendant’s right to be represented by counsel

of choice and (2) his or her right to a defense conducted by

an attorney who is free of conflicts of interest.58 The U.S.

Supreme Court has also recognized an independent interest of

the courts in ensuring that criminal trials are conducted within

the ethical standards of the profession and that legal proceedings

appear fair to all who observe them.59 Whether a conflict

of interest justifies the disqualification of defense counsel is a

matter committed to the discretion of the trial court.60

Here, where Cotton effectively waived his right to proceed

with counsel free of any conflicts of interest, we begin by

considering whether his trial counsel had an actual conflict of

interest or a showing of a serious potential for conflict, which

would be required to overcome the presumption in favor of

Cotton’s choice of counsel.

[32] We have broadly defined the phrase “actual conflict” to

include any situation in which a defense attorney faces divided

loyalties such that regard for one duty tends to lead to disregard

of another.61 An actual conflict may arise from concurrent

representation, subsequent representation, or a personal conflict

held by counsel.62 Accordingly, if a defense counsel acts

58 State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001), overruled on other

grounds, Heckman, supra note 40.

59 Id.

60 See State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).

61 Edwards, supra note 45.

62 See, § 3-501.7; McGuire, supra note 60; Edwards, supra note 45.

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or refrains from acting at trial in a manner that is inconsistent

with the defendant’s interests based on the preceding sources

of conflicts, the defense counsel actively represents conflicting

interests.63

[33,34] The seriousness of any potential conflict of interest

depends on its likelihood and dimensions.64 When weighing

the interests at stake, courts generally give substantial

weight to defense counsel’s representations regarding conflicts

of interest.65

Cotton’s trial counsel had disclosed that the reason for calling

Redinbaugh as a witness was to support Cotton’s allegation

that Labno, not himself, had acquired the shotgun used in

the shooting and to attack Labno’s credibility, who claimed he

had not procured the gun. While Labno’s testimony supported

the State’s theory of the case, the testimony of the State’s primary

witness—Burnette—would have been wholly unaffected

by the source of the gun used in the shooting. Accordingly, the

evidence presented to the trial court did not support a conclusion

that the failure to call Redinbaugh was per se an actual

conflict of interest.

However, the jury’s determination of whether or not Cotton

acted in self-defense was based solely on the credibility of

Cotton and the witnesses to the shooting. In a case dependent

on witness credibility, any witness that could strengthen the

defendant’s credibility and undermine a State witness’ credibility

could be in the defendant’s interest to call. Accordingly,

Cotton’s trial counsel’s decision not to call Redinbaugh, in

light of the ethical violations by Cotton’s trial counsel that the

court determined she would be subject to cross-examination

on, did support a conclusion that his actions represented a

potential conflict of interest.

63 See Edwards, supra note 45.

64 Ehlers, supra note 58, citing Wheat v. United States, 486 U.S. 153, 108 S.

Ct. 1692, 100 L. Ed. 2d 140 (1988).

65 Id.

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Nevertheless, we conclude that Cotton’s trial counsel’s

potential conflict of interest was not a serious one. As mentioned

above, the State’s case rested primarily on the credibility

of Burnette, not Labno. The trial court had no reason to believe

that Redinbaugh would absolutely be called to testify at trial or

that her testimony would have made a significant impact, especially

in light of the defense’s cell phone record evidence that

also undermined Labno’s testimony that he did not leave his

apartment during the early morning of August 7, 2015. Further,

Cotton’s trial counsel stated that he had informed the State that

Redinbaugh would not be called as a witness, based on trial

strategy, before the issue of witness tampering arose, which the

State did not dispute.

Because of the substantial weight that Cotton’s trial counsel

was entitled to on this testimony, the evidence presented to

the court did not support a finding that Cotton’s trial counsel’s

potential conflict of interest was serious. Accordingly, the presumption

in favor of Cotton’s right to choose his own counsel

after waiving the conflict of interest could not be overcome.

Therefore, the court did not abuse its discretion in accepting

Cotton’s waiver of the conflict of interest. This assignment of

error is without merit.

(b) Cotton Cannot Show Prejudice From

His Trial Counsel’s Decision Not to

Call Redinbaugh as Witness

Related to the preceding section, Cotton argues that his

trial counsel was ineffective for failing to call Redinbaugh as

a witness. Again, he alleges that she would have testified that

Labno left his apartment prior to the shooting to procure the

shotgun used to shoot Bare. He argues that he was prejudiced

because the testimony would have supported his credibility and

undermined Labno’s credibility, which was essential because

his claim of self-defense hinged on who brought the shotgun

into the apartment.

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The State argues that the only material fact in dispute is

whether Cotton acted in self-defense, and the fact of who

brought the shotgun to the house had no bearing on that fact.

As discussed above, while witness credibility was paramount

to determining whether or not Cotton acted in self-defense,

the State’s case rested primarily on Burnette’s testimony of

the shooting, not Labno’s. As Cotton argues, his claim of

self-defense is largely based on who brought the gun into the

apartment during the dispute with Bare. However, as the State

argues, whether Cotton or Labno procured the gun is largely

irrelevant to who possessed the gun at the time of the shooting.

Burnette’s testimony established that Cotton possessed the gun

before any altercation with Bare began and maintained possession

of the gun until Cotton ultimately shot Bare.

Accordingly, assuming without deciding that Cotton’s trial

counsel’s decision to not have Redinbaugh provide the testimony

Cotton alleges at trial was deficient, Cotton cannot prove

a reasonable probability that the outcome of the proceedings

would have been different if Redinbaugh had testified as

alleged. Because Cotton cannot show that he was prejudiced by

his trial counsel’s failure to call Redinbaugh as a witness, this

assignment of error is without merit.

(c) Cotton Waived Right to Request Mistrial

Regarding Labno’s Testimony

Cotton contends that his trial counsel was ineffective for

failing to request a mistrial when Labno appeared at trial after

being declared unavailable and having a portion of his deposition

read into the record. He asserts that his trial counsel

effectively admitted deficient performance on the record by

expressing uncertainty on how to proceed. Cotton also asserts

that his decision not to request a mistrial was invalid because

of his trial counsel’s admission. He argues that he was prejudiced,

because Labno’s testimony received undue influence by

being presented to the jury twice and the State had the opportunity

to corroborate Labno’s deposition testimony.

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The State argues that Cotton’s trial counsel’s performance

was not defective but, instead, represented legitimate trial

strategy. Further, it contends that Cotton cannot complain that

his counsel did not request a mistrial, because Cotton consented

to Labno’s testimony.

(i) Additional Facts

On the fourth day of trial, the State informed the court that

it had subpoenaed Labno to testify but that he had failed to

appear. Accordingly, it requested that Labno be declared an

unavailable witness and asked that it be allowed to read his

deposition into evidence.

In support of the request, the State asked the court to

take judicial notice of the subpoena issued to Labno; offered

the court’s bench warrant for Labno, issued when he failed

to appear on the first day of trial; and offered a copy of

Labno’s criminal record file, showing that the Omaha Police

Department’s homicide unit made two unsuccessful attempts

to locate Labno pursuant to the court’s bench warrant. The

attorney appointed to represent Labno in the case testified

that he had spoken with Labno earlier that day and that Labno

indicated he would be present to testify at trial. However, he

stated that he had heard nothing further from Labno and was

currently unable to reach him.

The district court found that the State made a prima facie

showing that Labno was unavailable and allowed the State

to read Labno’s deposition into the record. Then, with seven

pages of the deposition left, the State informed the court that

it had just received a note indicating that Labno had arrived at

the courthouse.

The State proposed that Labno’s deposition be stricken with

an accompanying instruction to the jury or, alternatively, that

they continue with the deposition and not have Labno testify.

However, the State ultimately decided to defer to the defense’s

decision with how to proceed.

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Cotton’s trial counsel initially indicated that he was unsure

of the legal stance of the case at that point and was not sure

how to proceed. Cotton’s trial counsel then reasoned that the

two options were to allow Labno to be declared available and

be permitted to testify or to move to strike Labno’s deposition

testimony and move for a mistrial because the jury would not

be able to disregard the deposition testimony. The court then

determined that the State could proceed with Labno’s live testimony,

without striking the deposition, and stated that it would

not declare a mistrial, but told Cotton’s trial counsel that he

could still object after conferring with Cotton.

After conferring with Cotton, Cotton decided to proceed

with calling Labno without objection. The court then questioned

Cotton further on whether he consented to proceeding

without objection. Cotton stated that he had been in the courtroom

while the situation was discussed and then the situation

was again relayed to him. At that point, the court presented

Cotton with the following question: “Do you . . . want a mistrial

or do we want to keep going and allow . . . Labno to take

the stand and start from the beginning?” Cotton stated that he

understood the question, and then his trial counsel stated that

they wished to proceed. Nothing in the record indicated that

Cotton disagreed with his trial counsel’s final confirmation.

The jury was brought back in, and the court informed it

that Labno had just arrived to testify. The court informed the

jury that Labno would now take the stand and that while the

information might be repetitive, it was its job to decipher and

deal with that information.

(ii) Analysis

[35] A mistrial is properly granted in a criminal case where

an event occurs during the course of trial that is of such a

nature that its damaging effect cannot be removed by proper

admonition or instruction to the jury and thus prevents a

fair trial.66 The defendant must prove that the alleged error

66 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).

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actually

prejudiced him or her, rather than creating only the

possibility of prejudice.67

We reject Cotton’s assertion that his trial counsel’s statements

on the record constituted an admission of deficient

performance. While Cotton’s trial counsel initially expressed

that he was unfamiliar with how to proceed in this novel situation,

the record shows that he had a clear grasp of the situation

and the basis for a mistrial. His statements on the record

indicate that his decision of whether to proceed with Labno’s

live testimony or move to strike Labno’s deposition testimony

and request a mistrial was based on trial strategy, rather than

deficient performance. Accordingly, the record is insufficient

to determine whether such strategy itself amounted to a deficient

performance.

[36] Nevertheless, such an examination is unnecessary,

because Cotton personally consented to proceeding with

Labno’s live testimony. A defendant has a fundamental constitutional

right to a fair trial.68 Accordingly, the principles

required to waive such a right, as discussed above, apply with

full force here. The record shows that Cotton admitted listening

to the full discussion of the situation and each attorney’s

and the court’s proposition of how to proceed and the legal

basis supporting the decision. He also had the opportunity to

confer with his trial counsel on how to proceed. Even though

his trial counsel may not have understood the exact basis for

moving for a mistrial or to strike Labno’s deposition testimony,

the record shows, as mentioned above, that his trial

counsel understood the basis for a mistrial and that it was an

option here.

[37] Cotton stated affirmatively on the record that he understood

that he was being asked whether he wanted a mistrial

or to allow Labno to provide live testimony. While it was

Cotton’s trial counsel who ultimately answered the question,

as stated above, consent may be inferred by a defendant’s

67 Id.

68 See State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

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actions.69 Based on the circumstances here, Cotton’s failure

to protest his trial counsel’s consent to proceed with live testimony

was effective to provide consent to his trial counsel’s

statement. A defendant who has been fully informed of the

constitutional right to testify may not acquiesce in his or her

counsel’s advice that he or she waive that right, and then later

claim that he or she did not voluntarily waive such right.70

Therefore, this assignment of error is without merit.

(d) Prosecutorial Misconduct

[38] When considering a claim of prosecutorial misconduct,

we first consider whether the prosecutor’s acts constitute misconduct.

71 A prosecutor’s conduct that does not mislead and

unduly influence the jury is not misconduct.72 But if we conclude

that a prosecutor’s acts were misconduct, we consider

whether the misconduct prejudiced the defendant’s right to a

fair trial.73 Prosecutorial misconduct prejudices a defendant’s

right to a fair trial when the misconduct so infected the trial

that the resulting conviction violates due process.74 Before it is

necessary to grant a mistrial for prosecutorial misconduct, the

defendant must show that a substantial miscarriage of justice

has actually occurred.75

(i) Prosecutor’s Statements Regarding

Burnette’s Testimony in

Closing Arguments

Cotton argues that the court erred in denying his motion for

new trial based on prosecutorial misconduct. Cotton contends

69 See Qualls, supra note 53.

70 See State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).

71 See Johnson, supra note 68.

72 Id.

73 State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).

74 Id.

75 Id.

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that the prosecutor’s statement in his rebuttal closing argument—

that Burnette did not testify that Bare was advancing

toward Cotton when Cotton shot Bare—was improper, because

the evidence showed otherwise. He also assigns error to his

trial counsel’s failure to object to the prosecutor’s statement

and his failure to request a mistrial, to the extent that his claim

of prosecutorial misconduct is prejudiced. Cotton argues the

prosecutor’s statement prejudiced him by mischaracterizing a

material fact when the State’s case was not strong and by preventing

his counsel from responding.

The State admits that the statement was not entirely accurate

but argues that it did not amount to misconduct, because the

evidence adduced from Burnette was conflicting. It also argues

that Cotton was not prejudiced, because his attorney rebutted

a similar statement made by the prosecutor in the initial closing

argument, the prosecutor admitted in the rebuttal closing

argument that he could be wrong about what Burnette said, and

the jury was instructed that statements by the attorneys were

not evidence.

a. Additional Facts

On direct examination, Burnette responded to a question by

saying that “he” stepped forward and then Bare said, “If you’re

going to shoot me — if you’re going to hold the gun to me,

then you better fucking shoot me.” However, in that answer,

Burnette had referred to both Cotton and Bare, which made it

unclear as to who had stepped forward. Later in her direct testimony,

Burnette responded, “No,” when asked, “Right before

[Cotton] shot [Bare], did you see [Bare] make any motion or

movement towards [Cotton]?” Then, on cross-examination,

Burnette clarified that Bare did take a step toward Cotton a

second or two before making his statement and that Bare was

shot right after making the statement.

During closing arguments, the parties made the following

respective comments about Burnette’s testimony, regarding

whether or not Bare had approached Cotton before being shot:

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[State’s initial closing argument]: . . . But most importantly,

what does [Labno] tell you about the actions of

. . . Bare? That . . . Bare did not advance at him. Never.

Never advanced to . . . Cotton, which is consistent with

[the testimony of] Burnette. . . .

. . . .

[Cotton’s closing argument]: [The prosecutor] says

[Bare] didn’t move forward. But really, on cross, it was

brought out that [Bare] did move forward. In fact — and

that’s why I said even if you think everything [Burnette]

did say was true, what [Burnette] said is that [Cotton]

and [Bare] were about four to five feet from each other,

well within striking distance. [Cotton] motioned, asked

[Bare] to go into the apartment, and then [Bare] moved

forward and said, If you have a gun you better use it, and

that was all within one to two seconds of the shot.

. . . .

[State’s rebuttal argument]: . . . I completely disagree

that . . . Burnette said [Bare] moved forward . . . . And

if I’m wrong, I’m wrong. Labno didn’t say it. Burnette

didn’t say that. But that’s your responsibility. Go back

[and] look at your notes. That’s why you have them.

b. Cotton Failed to Preserve Issue of

Prosecutorial Misconduct and

Prosecutor’s Statement Did

Not Constitute Plain Error

[39] One may not waive an error, gamble on a favorable

result, and, upon obtaining an unfavorable result, assert the previously

waived error.76 Accordingly, a party who fails to make

a timely motion for mistrial based on prosecutorial misconduct

waives the right to assert on appeal that the court erred in not

declaring a mistrial due to such prosecutorial misconduct.77

76 State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).

77 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

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While Cotton filed a motion for new trial after his conviction,

he failed to preserve the issue of prosecutorial misconduct

for appellate review, because he failed to object and make a

timely motion for a mistrial.

[40] When a defendant has not preserved a claim of prosecutorial

misconduct for direct appeal, we will review the record

only for plain error.78 Plain error exists where there is an error,

plainly evident from the record but not complained of at trial,

which prejudicially affects a substantial right of a litigant and

is of such a nature that to leave it uncorrected would cause a

miscarriage of justice or result in damage to the integrity, reputation,

and fairness of the judicial process.79

Based on our discussion in the following section, we conclude

that the prosecutor’s statement did not amount to plain

error, because Cotton was not prejudiced to the extent that

leaving it uncorrected would amount to a miscarriage of justice.

Therefore, the trial court did not err in overruling Cotton’s

motion for new trial based on prosecutorial misconduct.

c. Cotton Cannot Show Prejudice by

Trial Counsel’s Failure to Object

to Prosecutor’s Statement

Before considering whether Cotton’s trial counsel was deficient

for failing to object to the prosecutor’s statement, which

would require a determination as to whether the prosecutor’s

statement amounted to prosecutorial misconduct, we consider

whether Cotton was prejudiced by his trial counsel’s failure

to object.

As the State admits, the prosecutor’s statement did mischaracterize

the evidence adduced on cross-examination. However,

directly after making the statement, the prosecutor admitted

that he could potentially be wrong and that the members of

the jury needed to refer to their notes to resolve the factual

78 State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

79 State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).

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dispute. Further, as the State acknowledged, this statement

responded to Cotton’s trial counsel’s response to a similar contention

that the prosecutor made in its initial closing argument.

This back-and-forth highlighted the importance of this fact and

allowed each side to argue its position to the jury. The court

instructed the jury that “[i]t is your duty to decide what the

facts are” and that “[s]tatements, arguments, and questions of

the lawyers for the state and [Cotton]” are not evidence.

[41] The purpose of jury instructions is to assure decisions

that are consistent with the evidence and the law and to inform

the jury clearly and succinctly of the role it is to play, the decisions

it must make, and to assist and guide the jury in understanding

the case and considering testimony.80 Absent evidence

to the contrary, it is presumed that a jury followed the instructions

given in arriving at its verdict.81

We reject Cotton’s argument that the prosecutor’s statement

went unanswered and had the effect of misleading the jury on

a material fact. Instead, both sides were able to discuss the

factual issue and the jury was instructed that the attorneys’

statements were not evidence and that it was the jury’s duty

to decide factual matters, which the jury presumably followed.

Accordingly, we do not believe the prosecutor’s statement

undermines the confidence in the jury’s decision. Therefore,

this assignment of error is without merit.

(ii) Prosecutor’s Statements About

Credibility in Closing Argument

Did Not Constitute Misconduct

Cotton argues that his trial counsel provided ineffective

assistance by failing to object to prosecutorial misconduct in

the State’s closing argument regarding Cotton and his trial

counsel’s credibility. He argues his trial counsel was deficient,

because the prosecution’s characterization that Cotton

80 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

81 State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).

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and his trial counsel had fabricated Cotton’s testimony was a

personal opinion that amounted to misconduct. Cotton argues

that he was prejudiced because the prosecutor’s statements are

accorded weight by a jury and they undercut his theory of selfdefense

that relied on his credibility.

The State argues that the statements were an acceptable

attack on Cotton’s credibility.

a. Additional Facts

During his initial closing argument, the prosecutor began

by discussing the jury instructions. Regarding jury instruction

No. 22, he stated the following:

Instruction No. 22, is the sole — you guys are the credibility

— or the sole judges of a witness’s credibility.

The conduct and demeanor of the witness while testifying.

Was . . . Burnette appropriate as she sat in this chair

and told you what happened August 6th into August 7th,

2015? Did it look like it was staged? Was it scripted?

Okay? How about the sources of information, including

the opportunity for seeing or knowing the things about

which the witness testified. . . . [Y]ou know from the

testimony through . . . Burnette and . . . Labno specifically,

they didn’t have this entire binder. They weren’t

privy to everybody’s statements. They didn’t review

depositions of every single witness, and they sure didn’t

sit in and listen to every single witness the State put on

when we presented our case. . . . And that’s important

why? Because who has had everything from the day

— from August of 2015, who has had everything? . . .

Cotton has seen every single thing that I have. . . . How

about the reasonableness or unreasonableness of the testimony

of the witness? . . . Burnette, again, did it make

sense? Was it corroborated by other evidence — physical

evidence? Was it corroborated, more importantly,

by other witnesses? . . . Labno, or — or was it just so

unbelievable . . . .

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Then, while discussing Cotton’s testimony throughout his initial

closing argument, the prosecutor stated at three points that

Cotton’s testimony seemed scripted. Cotton identified the first

of these statements as prosecutorial misconduct. The statement,

including the surroundings statements, is as follows:

Keep in min[d], he’s had everything, everything the State

has, for a year almost, to sit and review it. All the depositions,

police reports, videos of the interviews, and he sat

through all of this. . . .

. . . .

. . . He sat through all of this trial with every single

witness right there in that chair. When I sat here and

listened to [Cotton’s] statement, I paid attention to his

demeanor, and I hope you did, too. Because I thought it

was unreasonable what he was talking about. It almost

felt like it was a script. The defense attorney . . . : I know

this is emotional for you right now, [Cotton] — and it

was, Oh, cue the quivering lip. It was — there were times

when [Cotton] would look at [his attorney] almost as like,

What are you asking? Stay on script.

Cotton’s trial counsel followed up on this during his closing

argument with the ensuing statements:

Now, on Friday we all saw . . . Cotton sit here. We saw

him speak from his heart and tell his account. And you

know what I think we saw is that that wasn’t scripted. I

think what we saw is that was the opposite of scripted.

I couldn’t — he didn’t want to just answer my questions.

What he wanted to do was elaborate and elaborate

and elaborate. He wanted to fill in every detail that you

didn’t have, even if it was inconsistent with some of the

witnesses. I think it’s totally obvious that the last thing

. . . Cotton did was think, What am I going to say, how

I’m go to go tailor it to everyone, how am I going to

convince people that I have a story that makes sense that

fits just enough. I think you could see that’s not what he

was doing.

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. . . .

. . . There’s no evidence that . . . Cotton had conspired

to develop his script, besides the fact that he’s sitting here.

Other people had reviewed their depositions, as well.

. . . .

. . . I don’t want you to listen to the county attorney

trying to force it down your throats that . . . Cotton cannot

be trusted for the sole reason that he sat here in the trial

and heard other people testify.

b. Analysis

[42,43] Public prosecutors are charged with the duty to

conduct criminal trials in such a manner that the accused may

have a fair and impartial trial.82 Because prosecutors are held

to a high standard for a wide range of duties, the term “prosecutorial

misconduct” cannot be neatly defined.83 Generally,

prosecutorial misconduct encompasses conduct that violates

legal or ethical standards for various contexts because the

conduct will or may undermine a defendant’s right to a fair

trial.84 While a prosecutor should prosecute with earnestness

and vigor and may strike hard blows, he is not at liberty to

strike foul ones.85

[44] A prosecutor must base his or her argument on the

evidence introduced at trial rather than on matters not in evidence.

86 When a prosecutor’s comments rest on reasonably

drawn inferences from the evidence, he or she is permitted to

present a spirited summation that a defense theory is illogical

or unsupported by the evidence and to highlight the relative

believability of witnesses for the State and the defense.87 These

82 Gonzales, supra note 73.

83 State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).

84 Id.

85 Gonzales, supra note 73.

86 Johnson, supra note 68.

87 Nolan, supra note 83.

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types of comments are a major purpose of summation, and they

are distinguishable from attacking a defense counsel’s personal

character or stating a personal opinion about the character of a

defendant or witness.88

The State compares the prosecutor’s comments in closing to

those in State v. Jacob89 and State v. Custer.90 In both Custer

and Jacob, we reviewed comments by prosecutors to determine

if they had made improper statements on the defendants’

invocation of their right to remain silent between the time they

were arrested and trial.

In Custer, we relied on our holding in Jacob by equating

the statements in the case to those considered in Jacob. We

summarized the relevant statements in Jacob, during closing

arguments, as “before the defendant testified at trial, he ‘“had

five years to think of his answers, five years to run through all

of this. Five years to prepare”’ and that he had ‘“sat through

this trial and heard every witness and every question.”’”91

Further, we stated:

We characterized the State’s remarks in Jacob as commenting

on the defendant’s credibility and as implying

that “in evaluating the credibility of [the defendant’s] testimony,

the jury should consider that [the defendant] had

the benefit of first hearing all the witnesses’ testimony

and had 5 years to prepare his testimony.”92

In both cases, we concluded that the prosecutor’s statements

commented only on the defendant’s credibility and

were not an impermissible commentary on the defendant’s

silence. Accordingly, the prosecutor’s comments in this

case discussing Cotton’s access to the State’s evidence in

88 Id.

89 State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on other

grounds, Nolan, supra note 83.

90 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

91 Id. at 111, 871 N.W.2d at 261, quoting Jacob, supra note 89.

92 Id., citing and quoting Jacob, supra note 89.

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testifying were not misconduct, because they concerned only

Cotton’s credibility.

The prosecutor’s comments in this case, however, did not

stop at merely attacking Cotton’s credibility based on his

access to the State’s evidence. Instead, the prosecutor took his

comments in closing one step further by stating that Cotton

seemed to use his access to the State’s evidence to script his

testimony and, further still, implying that Cotton’s trial counsel

took part in the scripting.

In State v. Barfield,93 we held that the prosecutor’s characterization

of the defendant as a “‘monster’” and strong

“insinuat[ion] that defense lawyers are all liars” constituted

misconduct.94 We found such statements to be an impermissible

personal expression of the defendant’s culpability and

implication that it is the job of defense attorneys to mislead

juries, which “‘denigrate[s] the legal profession in the eyes of

the jury and, consequently, the public at large.’”95

Then, in State v. Dubray,96 we also held a prosecutor’s statements

to be misconduct when he “characterized defense counsel

as ‘walking on the graves of these two people’ and arguing

that the victims ‘deserved to die.’” We reasoned that these

statements were not as bad as calling defense attorneys liars,

as in Barfield, but were directed at defense counsel personally

and not at his arguments.

[45] However, in State v. Nolan,97 we differentiated a prosecutor’s

statements from those in Barfield and Dubray by

recognizing that “‘a distinction exists between arguing that

a defense strategy is intended to distract jurors from what

93 State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on

other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).

94 Id. at 512, 514, 723 N.W.2d at 313, 314.

95 Id. at 514, 723 N.W.2d at 314, quoting U.S. v. Linn, 31 F.3d 987 (10th Cir.

1994).

96 Dubray, supra note 78, 289 Neb. at 228, 854 N.W.2d at 605.

97 Nolan, supra note 83, 292 Neb. at 135, 870 N.W.2d at 822.

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the evidence shows, which is not misconduct, and arguing

that a defense counsel is deceitful, which is misconduct.’”

There, we held that a prosecutor’s “statements during closing

arguments that the defense counsel was going to use ‘smoke

screens and mirrors’ to point out inconsistencies in the evidence”

were not improper, because they were distracting

rather than deceitful.98

Here, in the context of the prosecutor’s entire closing argument

and Cotton’s trial counsel’s response, the prosecutor’s

references to Cotton’s testimony as being “scripted” appears

to be more of an imprecise substitute for lacking genuineness

than an implication of perjury.

The prosecutor began by asking the jury to remember each

witness’ conduct and demeanor while testifying and consider

if Burnette’s testimony appeared “scripted” or “staged.”

Then the prosecutor juxtaposed Cotton’s level of access to

testimony and evidence in the case to that of the State’s witnesses

to highlight the differences in inconsistencies—asking

the jury to consider whether witnesses’ statements contained

inconsistencies but were supported by other evidence or,

instead, neatly explained away inconsistencies without corroboration.

Throughout the rest of the closing, the prosecutor’s

references to Cotton’s testimony being “scripted” also

appear in the context of asking the jury to consider whether

Cotton’s emotions seemed genuine or his answers fit the facts

too perfectly.

Cotton’s trial counsel attempted to rebut the prosecutor’s

statements that Cotton’s testimony was “scripted” by stating,

instead, that Cotton spoke “from his heart” and did not “tailor”

his testimony to be consistent with other witnesses. He also

argued that Cotton was not any less reliable than other witnesses

solely because he had access to testimony, because they

could review their own depositions to ensure their statements

were consistent.

98 Id.

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While we recognize that the portion identified by Cotton

could be viewed differently in another context and advise

prosecutors to exercise precision, the prosecutor’s statements,

here, were a permissible spirited summation that Cotton’s

knowledge of the case could have allowed him to explain away

inconsistencies and allowed his attorney to ask questions that

presented him the opportunity to do so—not an implication of

perjury. Thus, the prosecutor’s statements concerning Cotton’s

testimony being “scripted” did not amount to misconduct that

would support this assignment of ineffective assistance of

counsel for failing to object.

[46] The more concerning statement made by the prosecutor

is when he stated, in reference to Cotton’s testimony,

“I thought it was unreasonable what [Cotton] was talking

about.” The Nebraska Rules of Professional Conduct state

that a lawyer shall not, in trial, “state a personal opinion as to

. . . the credibility of a witness . . . or the guilt or innocence

of an accused.”99 In cases where the prosecutor comments

on the theory of defense, the defendant’s veracity, or the

defendant’s guilt, the prosecutor crosses the line into misconduct

only if the prosecutor’s comments are expressions of

the prosecutor’s personal beliefs rather than a summation of

the evidence.100

In this instance, the prosecutor’s comment appears to be

stating his personal opinion as to the credibility of Cotton’s

testimony. As a result, the comment would be improper.

[47] Again, however, if we conclude that a prosecutor’s acts

were misconduct, we must determine whether the statement

complained of was unfairly prejudicial. It is as much a prosecutor’s

duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate

means to bring about a just one.101

99 Neb. Ct. R. of Prof. Cond. § 3-503.4(e).

100 Gonzales, supra note 73.

101 McSwine, supra note 80.

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Because the “average jury, in a greater or less degree,

has confidence that these obligations, which so plainly

rest upon the prosecuting attorney, will be faithfully

observed,” “improper suggestions, insinuations and, especially,

assertions of personal knowledge are apt to carry

much weight against the accused when they should properly

carry none.”102

Nevertheless, whether prosecutorial misconduct is prejudicial

depends largely on the context of the trial as a whole.103

[48] In determining whether a prosecutor’s improper conduct

prejudiced the defendant’s right to a fair trial, we consider

the following factors: (1) the degree to which the prosecutor’s

conduct or remarks tended to mislead or unduly influence the

jury; (2) whether the conduct or remarks were extensive or

isolated; (3) whether defense counsel invited the remarks; (4)

whether the court provided a curative instruction; and (5) the

strength of the evidence supporting the conviction.104

Here, the prosecutor’s personal opinion, based on the nature

of his position, certainly carried some weight with the jury.

However, the prosecutor’s comment was made within a broad

discussion about the credibility of Cotton’s testimony, rather

than as a punctuated stand-alone declaration. Further, the prosecutor

did not state that he believed Cotton was being untruthful

and he did not call Cotton a liar. Thus, the weight that we

accord to the comment is minimal. Also weighing in favor of

finding prejudice are the facts that Cotton’s trial counsel did

not invite the error and that no specific curative instruction

was provided. The general instructions that the attorney’s statements

were not evidence and that the jury is the sole judge of

credibility, however, do substantially negate the impact of the

related factor.

102 Id. at 584, 873 N.W.2d at 418.

103 McSwine, supra note 80.

104 Id.

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On the other hand, the prosecutor’s comment occurred only

once in his closing argument and did not inundate the trial.

Also, the evidence of Cotton’s guilt was substantial. Cotton

admitted that he shot and killed Bare. Burnette testified that

she heard Cotton state that he had a round in the gun and was

going to use it and that when Bare said, “[I]f you’re going to

hold the gun to me, then you better fucking shoot me,” Cotton

shot Bare. Labno testified that he was unsure if Bare advanced

at Cotton, but he stated that Bare did not charge him and that

just before the shooting, Bare said something like, “If you pull

a gun, you better use it . . . .”

Because the statement was not exceedingly prejudicial or

pervasive and the weight of the evidence supported the convictions,

we find that the prosecutor’s comment did not deprive

Cotton of his right to a fair trial. Therefore, this assignment of

error is without merit.

(iii) Cotton Cannot Show Prejudice From

Trial Counsel’s Failure to Object

to Prosecutor’s Asking Burnette

Whether Bare Had Children

Cotton argues that his trial counsel was ineffective for failing

to object to the prosecutor’s asking Burnette if Bare had

children. He argues that such questions were misconduct,

because they were irrelevant to the case and served only to

garner sympathy for the victim and excite the jurors’ passions

against him, which prejudiced him by harming his selfdefense

case.

The State argues that regardless of whether Cotton’s counsel

should have objected to the questions or whether the questions

were improper, Cotton cannot show prejudice, because

the testimony about Bare’s having children was cumulative of

Cotton’s own testimony.

We agree with the State that Cotton cannot show any prejudice

from the prosecutor’s questions when Cotton also testified

that Bare had three children. The evidence that Cotton

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complains of was properly before the jury, so he cannot show

that cumulative evidence of the same fact created a reasonable

probability of a different outcome.105 Therefore, this assignment

of error is without merit.

(e) Trial Counsel’s Decision to Introduce

Faye’s Deposition Cannot Be

Resolved on Direct Appeal

Cotton argues that his trial counsel’s performance was deficient

for entering Faye’s deposition into evidence, because it

included harmful evidence that would otherwise have been

inadmissible.

The State argues that Cotton’s trial counsel’s performance

was not deficient, because the deposition included beneficial

testimony, and that Cotton cannot show prejudice, because the

harmful testimony he identified was cumulative.

The decision of whether to call a witness, or present a witness’

deposition, is a matter of trial strategy. When the ineffective

assistance of counsel at issue could involve trial strategy,

we have generally found a trial record reviewed on direct

appeal to be insufficient for adequate review, because it does

not tell us the reasons defense counsel tried the case in a particular

manner.106 In this matter, we, too, find this assignment

of error cannot be resolved on direct appeal; however, Cotton

has made sufficient allegations of deficient conduct.

(f) Cotton Cannot Show Prejudice

From Trial Counsel’s Failure to

Cross-Examine Dr. Erin Linde

Cotton argues that his trial counsel’s performance was

deficient, because he did not cross-examine Dr. Erin Linde,

the forensic pathologist who performed the autopsy on Bare,

about the methamphetamine, amphetamine, “THC,” and fentanyl

found in Bare’s blood. He argues that he was prejudiced

105 See State v. Reichert, 242 Neb. 33, 492 N.W.2d 874 (1992).

106 See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

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because his trial counsel’s decision to not cross-examine

Dr. Linde removed an opportunity to remind the jury of

these facts.

Cotton’s trial counsel elicited testimony from Burnette that

she witnessed Bare injecting methamphetamine after they

returned to Bare’s mother’s house on the morning of the shooting.

On direct examination, Dr. Linde testified that as a result

of Bare’s blood transfusion after the shooting, she was able to

test only Bare’s heart for controlled substances and that the

amount of drugs a person has taken or when they were taken

cannot be determined by testing in the heart.

Cotton does not allege that his trial counsel could have elicited

any additional, beneficial facts from Dr. Linde. Cotton’s

trial counsel’s decision to not have Dr. Linde merely reiterate

her testimony that Bare tested positive for certain controlled

substances does not create a reasonable probability that the

outcome of the proceedings would have been different, especially

when his trial counsel did elicit stronger testimony on

the subject from another witness. Therefore, this assignment of

error is without merit.

(g) Additional Claims of Ineffective

Assistance of Counsel

Cotton argues that his trial counsel was ineffective on four

additional bases: (1) allowing an unlicensed attorney to participate

in the trial and engage in the practice of law; (2) not

having trial counsel’s mother, a licensed attorney, sit second

chair as trial counsel promised; (3) ineffectively selecting

a jury; and (4) ineffectively failing to discover exculpatory

evidence. Cotton further argues that while such claims cannot

be resolved on the current record, he has sufficiently alleged

deficient conduct.

The State agrees that the first two claims cannot be resolved

on the present record, but that Cotton has made sufficient

allegations of deficient conduct. However, the State argues

that the second two claims were not raised with sufficient

particularity.

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At the sentencing hearing, Cotton stated that his trial counsel

had promised him that the fees he paid to his trial counsel were

to retain both his trial counsel and his trial counsel’s mother, a

licensed attorney, to be present at his trial. Cotton stated further

that his trial counsel’s mother was present at his initial meeting

with his trial counsel. Cotton also stated that rather than his

trial counsel’s mother appearing at his trial, another individual,

who was not a licensed attorney, sat second chair at his trial

and participated in jury selection.

We agree with the parties that Cotton has stated his claims

of ineffective assistance of counsel—regarding an unlicensed

attorney participating in voir dire and his trial counsel’s mother

not sitting second chair at trial—with enough particularity to

allege deficient conduct and for us to determine that an evidentiary

hearing would be required to resolve the claims.

However, Cotton does not identify with specificity how his

trial counsel was ineffective in selecting a jury or what exculpatory

evidence he failed to discover. Such broad assertions are

not sufficient to allege deficient conduct.107

Cotton’s claim that there was insufficient evidence to support

the verdicts is without merit. None of Cotton’s claims of

trial court error have merit. Cotton’s motion for new trial for

prosecutorial misconduct was properly denied. Any claim of

ineffective assistance of counsel is either affirmatively disproved

by the record, not sufficiently presented for our review,

or not able to be reviewed on the record before us. Accordingly,

Cotton’s convictions are affirmed.