State v. Devers , 306 Neb. 429 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    State of Nebraska, appellee, v.
    Jason D. Devers, appellant.
    ___ N.W.2d ___
    Filed July 10, 2020.    No. S-19-629.
    1. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
    cretion with respect to sanctions involving discovery procedures, and
    their rulings thereon will not be reversed in the absence of an abuse
    of discretion.
    2. Appeal and Error. Appellate courts do not generally consider argu-
    ments and theories raised for the first time on appeal.
    3. Trial: Waiver: Appeal and Error. Failure to make a timely objection
    waives the right to assert prejudicial error on appeal.
    4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the Nebraska
    Evidence Rules; judicial discretion is involved only when the rules make
    discretion a factor in determining admissibility.
    5. Trial: Evidence: Appeal and Error. A trial court’s determination of the
    relevancy and admissibility of evidence must be upheld in the absence
    of an abuse of discretion.
    6. Trial: Evidence. Balancing the probative value of evidence against the
    danger of unfair prejudice is within the discretion of the trial court.
    7. ____: ____. Evidence that is irrelevant is inadmissible.
    8. Evidence. Relevancy requires only that the probative value be some-
    thing more than nothing.
    9. Rules of Evidence. Under 
    Neb. Rev. Stat. § 27-403
     (Reissue 2016),
    relevant evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice.
    10. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
    ency to suggest a decision based on an improper basis.
    11. ____: ____. Unfair prejudice speaks to the capacity of some concededly
    relevant evidence to lure the fact finder into declaring guilt on a ground
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    STATE v. DEVERS
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    306 Neb. 429
    different from proof specific to the offense charged, commonly on an
    emotional basis.
    12.   Evidence: Corroboration: Testimony. Evidence may be relevant
    because it corroborates other testimony.
    13.   Criminal Law: Evidence. The State is allowed to present a coherent
    picture of the facts of the crimes charged, and it may generally choose
    its evidence in so doing.
    14.   Evidence. Most, if not all, evidence offered by a party is calculated to
    be prejudicial to the opposing party.
    15.   Jury Instructions. In construing an individual jury instruction, the
    instruction should not be judged in artificial isolation but must be
    viewed in the context of the overall charge to the jury considered as
    a whole.
    16.   Evidence: Words and Phrases. Circumstantial evidence is not inher-
    ently less probative than direct evidence.
    17.   Verdicts: Appeal and Error. Harmless error review looks to the basis
    on which the trier of fact actually rested its verdict; the inquiry is not
    whether in a trial that occurred without the error, a guilty verdict surely
    would have been rendered, but, rather, whether the actual guilty verdict
    rendered in the questioned trial was surely unattributable to the error.
    18.   Convictions: Evidence: Appeal and Error. 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 ele-
    ments of the crime beyond a reasonable doubt.
    19.   Criminal Law: Aiding and Abetting: Intent: Other Acts. One who
    intentionally aids and abets the commission of a crime may be respon-
    sible not only for the intended crime, if it is in fact committed, but also
    for other crimes which are committed as a natural and probable conse-
    quence of the intended criminal act.
    20.   Effectiveness of Counsel: Appeal and Error. In reviewing claims of
    ineffective assistance of counsel on direct appeal, an appellate court
    decides only whether the undisputed facts contained within the record
    are sufficient to conclusively determine whether counsel did or did not
    provide effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance.
    21.   ____: ____. When a defendant’s trial counsel is different from his or her
    counsel on direct appeal, the defendant must raise on direct appeal any
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    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    issue of trial counsel’s ineffective performance which is known to the
    defendant or is apparent from the record.
    22. ____: ____. Once issues of trial counsel’s ineffective performance are
    properly raised, the appellate court will determine whether the record
    on appeal is sufficient to review the merits of the ineffective perform­
    ance claims.
    23. Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. In order to know whether the record is insufficient to address
    assertions on direct appeal that trial counsel was ineffective, appellate
    counsel must assign and argue deficiency with enough particularity (1)
    for an appellate court to make a determination of whether the claim can
    be decided upon the trial record and (2) for a district court later review-
    ing a petition for postconviction relief to be able to recognize whether
    the claim was brought before the appellate court.
    24. Effectiveness of Counsel: Proof: Appeal and Error. When a claim
    of ineffective assistance of trial counsel is raised in a direct appeal, the
    appellant is not required to allege prejudice; however, an appellant must
    make specific allegations of the conduct that he or she claims constitutes
    deficient performance by trial counsel.
    Appeal from the District Court for Douglas County: Timothy
    P. Burns, Judge. Affirmed.
    Michael J. Wilson, of Berry Law Firm, for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    I. INTRODUCTION
    Jason D. Devers appeals from convictions, pursuant to a jury
    verdict, for first degree felony murder and use of a firearm to
    commit a felony. We find no merit in his claims regarding the
    termination of a witness’ deposition, admission of controlled
    substance and firearm evidence, and sufficiency of the evi-
    dence to support his intentions to commit robbery and use a
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    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    firearm. Further, he asserts 13 claims of ineffective assistance
    of trial counsel, but the three that we reach on direct appeal
    lack merit. We affirm.
    II. BACKGROUND
    In the early morning hours of January 6, 2018, Kyle LeFlore
    was shot and killed outside of Reign Lounge, a bar and night-
    club in Omaha, Nebraska. Following an investigation, Devers
    was arrested. The State filed an information charging him with
    first degree felony murder, 1 use of a deadly weapon to commit
    a felony, 2 and possession of a deadly weapon by a prohib-
    ited person. 3
    Before delving into the proceedings, a brief summary of the
    surrounding events is necessary. In accordance with our stan-
    dard of review, we synopsize them in the light most favorable
    to the State.
    On the evening of January 5, 2018, Devers and Larry
    Goynes went to Reign Lounge. At some point during the
    evening, Devers told Goynes that he knew of a “lick” (target
    for robbery). Sometime past midnight, Devers and Goynes
    left and sat in Devers’ vehicle in the parking lot. Goynes
    received a message that LeFlore was leaving. Goynes got out
    of the vehicle, and Devers drove off. Goynes attempted to
    rob LeFlore, but LeFlore fought back. Goynes shot LeFlore
    and stole his jewelry. Later that morning, LeFlore died.
    After shooting LeFlore, Goynes ran down the street to where
    Devers had moved his vehicle and got in. Following an inves-
    tigation, law enforcement authorities suspected Devers and
    Goynes of the murder. During several searches pursuant to
    warrants, the authorities found a firearm linked to Devers and
    Goynes and found controlled substances and ammunition in
    Devers’ home.
    1
    
    Neb. Rev. Stat. § 28-303
    (2) (Cum. Supp. 2018).
    2
    
    Neb. Rev. Stat. § 28-1205
    (1)(a) and (c) (Reissue 2016).
    3
    
    Neb. Rev. Stat. § 28-1206
    (1)(a) and (3)(b) (Supp. 2017).
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    1. Pretrial
    (a) Motions in Limine
    (i) Piya Milton’s
    Deposition
    Prior to trial, Devers moved to take the deposition of Piya
    Milton, a witness for the State. The district court granted
    the motion and ordered that it take place on August 9, 2018.
    It entered a similar order in a companion case pertaining to
    Latiba Lemon.
    At the deposition, with Devers’ counsel present, Milton
    refused to answer questions, claiming that her life would be
    in danger if she did. The court was asked to intervene. After
    Milton informed the court of her belief, the court ordered
    the deposition to be discontinued and appointed counsel for
    Milton. The court stated that after Milton received counsel,
    Devers would be free to file another motion to take Milton’s
    deposition. At that time, the State indicated that it would
    not object.
    Instead of filing another motion to depose Milton, Devers
    filed a motion in limine asking the court to prohibit the State
    from calling Milton as a witness, based upon her refusal to
    cooperate at the deposition. The court’s order overruling the
    motion recounted the events and reiterated that Devers was free
    to file an additional motion to take Milton’s deposition. Devers
    did not do so.
    (ii) Firearms and Controlled
    Substances
    Devers filed a separate motion in limine to prohibit the
    introduction of several items of evidence, including “[a]ny
    evidence regarding firearms that were recovered and alleged
    to have been used in the homicide of . . . Le[F]lore [and a]ny
    evidence regarding [controlled substances] that were recov-
    ered from [Devers’] residence on January 6, 2018, pursuant to
    search warrant.”
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    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    The district court overruled the motion in limine regard-
    ing the evidence related to a firearm, stating that it “[could
    not] make a pretrial ruling on it because it’ll depend on how
    the evidence comes in.” The State argued that the evidence
    regarding controlled substances found in Devers’ home was
    relevant to corroborate the testimony of a jailhouse informant.
    Regarding the controlled substances, the court took the matter
    under advisement.
    (b) Motion to Dismiss
    Devers filed a pro se motion to dismiss, alleging a violation
    of his rights to a speedy trial under 
    Neb. Rev. Stat. §§ 29-1207
    and 29-1208 (Reissue 2016) and under the Sixth Amendment
    to the U.S. Constitution. The court overruled his motion. The
    court’s order discussed the respective claims.
    Regarding the statutory claim, the court calculated that
    Devers’ motion for discovery, motion to take Milton’s deposi-
    tion, and requested continuance resulted in 108 days of exclud-
    able time. This, the court explained, extended Devers’ trial
    date several months beyond the date on which he had filed his
    motion to dismiss. It noted that Devers’ motion for discovery
    alone, which excluded only 4 days, was sufficient to defeat his
    motion to dismiss.
    As to the constitutional claim, the court applied the bal-
    ancing test from State v. Johnson. 4 It noted that Devers’ trial
    was scheduled to begin less than a year from the date of the
    offense. Devers’ counsel, the court explained, “has done any-
    thing any other criminal defense attorney would have done.”
    It reasoned that “if Devers’ counsel was not allowed the time
    to properly prepare for trial, Devers, in the event he was con-
    victed, would [argue] later in a postconviction motion that he
    did not receive the effective assistance of counsel.” The court
    found that Devers had not shown unreasonable delay in bring-
    ing him to trial, or that he was prejudiced.
    4
    State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
     (2017).
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    2. Trial
    (a) Reign Lounge Events
    We now summarize the evidence presented at trial regarding
    the events of January 5 and 6, 2018, relevant to the assign-
    ments of error asserted on appeal.
    (i) Milton
    Prior to discussing the incident, Milton testified that she had
    been diagnosed with bipolar depression and, on the night of the
    incident, was on medication. We now summarize her testimony
    regarding the events that night.
    On the evening of January 5, 2018, Milton drove herself and
    two friends to Reign Lounge. Around 10:15 p.m., they arrived.
    They left their jackets in Milton’s vehicle, and she gave her car
    keys to one of her friends.
    At about 1 o’clock the following morning, Milton had an
    altercation with another woman. A security guard “pick[ed]
    [her] up and took [her] out” of the club. The guard refused to
    allow Milton to retrieve her car keys. She was then outside for
    15 to 20 minutes in below-zero temperatures without her jacket
    or keys.
    While Milton was outside, she heard a man calling her name.
    The man got out of the passenger’s seat of a maroon sport util-
    ity vehicle (SUV), walked toward her, asked if she remembered
    him, and said he knew her child’s father. After Milton talked
    to the man, he invited her to warm up in his vehicle. Milton
    got into the vehicle and sat behind the passenger’s seat. She
    described the vehicle as “a maroon truck” that was a smaller
    SUV than her vehicle.
    Once in the maroon SUV, the man sat in the passenger’s
    seat, and there was another man in the driver’s seat. The man
    in the passenger’s seat identified himself as “Ratchet.” She
    described Ratchet as “heavyset, low cut, brown skin.” Milton
    identified a picture of Goynes in evidence as depicting Ratchet.
    She described the driver as “a dark skin dude with a black coat
    on with braids, or dreads.” She identified the driver as Devers.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    After Goynes and Milton discussed why she had been
    kicked out of the club, he showed her a black gun. According
    to Milton, “[i]t was readily apparent that he was armed with
    a firearm” and “[h]e had it out the whole time.” Around 1:55
    a.m., Goynes received a call or text message; said, “‘Right
    now, right now’”; and jumped out of the maroon SUV. After
    Goynes jumped out, Devers drove away. At that point, Milton
    asked to leave the vehicle, and Devers said, “‘You can’t go out
    right now.’” Devers drove for a while and then parked by “a
    whole bunch of trees.”
    Devers and Milton remained parked for about 20 minutes.
    While they were parked, Devers identified himself as “‘Little
    Pockets.’” Milton asked to be returned to Reign Lounge,
    and Devers stated, “‘We can’t go over there right now.’”
    After another 10 minutes, Milton saw Goynes running to the
    maroon SUV.
    Once Goynes was in the vehicle, Devers asked, “‘What
    did you get?’” Goynes responded, “‘He really didn’t have
    nothing.’” Milton testified that “[Goynes] said that [LeFlore]
    wouldn’t give up nothing so [Goynes] had to shoot him.”
    Devers asked, “‘You didn’t get nothing?’” In response, Goynes
    held up “these little chains,” and Devers asked, “‘Can I get
    one?’” Devers took one of the chains and put it around his
    neck. Milton stated that she did not know which chain Devers
    took but that she knew one chain had a cross on it.
    Devers then drove off, and Milton asked to be taken back
    to Reign Lounge. Devers responded, “‘No. I can’t go over
    there.’” Devers drove them to Lemon’s home and told Goynes
    to “go in there and hide something, take his clothes off and
    go take a bath, or something like that.” Devers further told
    Goynes, “‘I’ll get rid of something for you,’” but Milton was
    unsure what it was. Goynes got out of the vehicle and did not
    come back.
    Devers then drove Milton back to Reign Lounge. While he
    dropped her off, she put his cell phone number in her own
    cell phone under the name “Pockets.” Due to police presence,
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    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    Milton was unable to retrieve her vehicle. Milton called
    Devers, and he picked up Milton and her friends. After Devers
    dropped off Milton’s friends at home, he drove Milton to his
    home to sell her marijuana and then drove her home.
    Several days after the incident, Milton communicated with
    a family member of LeFlore’s. LeFlore’s family recorded the
    conversation. Five days after the events, a homicide detective
    interviewed Milton. Milton signed a consent form allowing the
    police to search her cell phone.
    (ii) Marvin Stockdale
    Marvin Stockdale, a jailhouse informant, testified about
    conversations he had with Devers in the Douglas County
    Correctional Center. Stockdale informed the jury that he was
    interviewed by law enforcement as a jailhouse informant in
    two cases, one of which pertained to Devers. At the time
    of trial, Stockdale was facing several charges and potential
    imprisonment of 73 years.
    After becoming Stockdale’s cellmate, Devers discussed the
    incident with Stockdale. At or near the time of the conversation
    with Devers, Stockdale took notes. At trial, Stockdale’s notes
    were read verbatim to the jury. Here, we briefly summarize
    his testimony.
    Devers told Stockdale that on the evening of the incident,
    he started out at a gas station selling “ecstasy pills” to some
    “girls.” The girls were heading to Reign Lounge, and Devers
    told them he would be there later. Devers went to Reign
    Lounge with Goynes. When Devers arrived at Reign Lounge,
    he found the girls from the gas station. He explained that “the
    Army dude” offered to buy the girls drinks and that the girls
    then started talking to “the Army dude.”
    Devers said that he felt it was rude the girls stopped pay-
    ing attention to him and that he went looking for Goynes.
    Devers found Goynes and told Goynes that “he had a lick for
    him.” Stockdale explained that a “lick” means a target for rob-
    bery. Goynes asked, “‘Where?’” Devers pointed to “the Army
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    STATE v. DEVERS
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    dude,” who, Devers said, had a “big wad of cash.” Devers
    told Goynes that he did not care about the money and that he
    just wanted “the Army dude[’s]” jewelry. Devers said, “‘I just
    didn’t think my little cousin stupid ass would kill him. . . . I
    told him to shoot if he act up, but damn.’”
    Devers then jumped forward in the story and said that he
    picked up Goynes “on the corner.” Devers stated that he was in
    the driver’s seat and that Milton was in the back seat. Devers
    explained that Milton got into his vehicle because it was cold
    outside. Stockdale testified that he did not know Milton and
    had never had a conversation with her.
    (iii) Michael Sullivan
    Michael Sullivan, another jailhouse informant, testified
    regarding conversations he had with Devers in the Douglas
    County Correctional Center. Sullivan explained that he did not
    prod for information; rather, Devers just kept talking. Sullivan
    also took notes of these conversations.
    After a month of their being in jail together, Devers told
    Sullivan about his charges. Sullivan said, “‘They must think
    you’re the shooter.’” Devers responded, “‘No. I was the driver.’”
    A few weeks later, after Devers returned from a meeting
    with his counsel, he and Sullivan discussed Devers’ case again.
    Devers stated that he was going to trial and that the main wit-
    ness was his “brother’s baby’s mom,” because she overheard
    him talking about a “lick.” Sullivan testified that he understood
    a “lick” to mean a robbery of a drug dealer.
    During their last conversation, Devers told Sullivan, “‘I was
    selling “X” at the club. I was walking around with baggies in
    my hand. I think they got me on camera. I’m pretty sure they
    did. They got me on camera, so they got me.’”
    (b) Search of Devers’ Home
    At trial, evidence was presented regarding controlled sub-
    stances found during a search of Devers’ home. We summarize
    that evidence.
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    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    (i) Aaron Hanson
    Aaron Hanson, a sergeant of the Omaha Police Department,
    testified about the search. Hanson obtained a search warrant
    for a North 40th Street residence in Omaha (Devers’ home).
    The warrant authorized law enforcement to search for firearms
    and narcotics.
    On the evening of January 6, 2018, Hanson and other offi-
    cers executed the search warrant. At that time, four individuals
    were at the home, including Kenvaughn Glass. Law enforce-
    ment did not find a firearm but found 9-mm and .22-caliber
    ammunition.
    Before the State could present evidence of narcotics found
    during the search, Devers renewed his motion in limine. The
    district court overruled the renewed motion, granted Devers a
    continuing objection, and gave the following limiting instruc-
    tion to the jury:
    Members of the jury, this evidence of the seized con-
    trolled substance, marijuana, located at [Devers’ home]
    is received for the limited purpose of the potential or the
    possibility of corroborating the testimony of . . . Milton
    or a later witness . . . Stockdale. You must consider the
    evidence only for that limited purpose and no other.
    Hanson testified that during the search, law enforcement
    found synthetic marijuana, methamphetamine, and drug pack-
    aging materials.
    (ii) Jailhouse Informants
    Stockdale stated that Devers discussed the search of his
    home. Devers stated that law enforcement found “some drugs.”
    Stockdale did not remember what kind of drugs Devers said
    were found.
    Sullivan stated that Devers discussed the search. According
    to Sullivan, Devers stated that law enforcement found “K-2.”
    Sullivan explained that “K-2” is synthetic marijuana.
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    STATE v. DEVERS
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    306 Neb. 429
    (iii) Patricia Smith
    Patricia Smith, the mother of Devers’ children, testified at
    trial. She testified that in January 2018, she lived at the same
    address as Devers’ home. At the time, Devers, who had his
    own set of keys, was staying at the house because Smith’s
    7-month-old child had been admitted to the hospital. Smith
    stated that she did not know that narcotics, firearms, or ammu-
    nition were in her home.
    Smith additionally testified that Devers was a “family per-
    son who spen[t] a lot of time with . . . his family” and that
    Kenvaughn came over to her home often.
    (c) Search at Benson Towers
    At trial, the State also presented evidence regarding a fire-
    arm linked to the murder.
    (i) Chae Glass
    Chae Glass, a juvenile detention specialist at the Douglas
    County Youth Center, testified regarding a firearm that was
    found at Benson Towers. Chae was an adopted cousin of
    LeFlore’s and a maternal uncle to Kenvaughn and Shydale
    Glass. Devers is a paternal uncle to Kenvaughn and Shydale.
    On January 6, 2018, Shydale established contact with Chae.
    Chae picked up Shydale and drove him to Chae’s sister’s
    home. On their way, Shydale told Chae to stop and pick up
    Kenvaughn.
    While in his sister’s home, Chae saw Kenvaughn and Shydale
    in the bathroom wiping down a firearm with a T-shirt. Chae
    described the firearm as a chrome and black handgun. After
    the bathroom observation, Chae did not see either Shydale or
    Kenvaughn with the firearm. But he stated, “[T]here was a
    lot of, you know, interchanging going on under the shirt, you
    know what I’m saying, hiding it.”
    Chae then drove Kenvaughn and Shydale to Benson Towers.
    Once at Benson Towers, Chae dropped off Kenvaughn and
    Shydale and drove a couple of blocks away to make a call
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    to the 911 emergency dispatch service. Chae instructed the
    police to pull him over.
    (ii) Hanson
    Hanson testified about a search of an apartment at Benson
    Towers that led to the seizure of a firearm linked to the murder.
    On January 6, 2018, at the end of Hanson’s shift, he
    received information that led him to Benson Towers. Hanson
    became aware that Kenvaughn and Devers were related.
    Hanson began looking for a familial connection to Kenvaughn
    at Benson Towers. Based upon information from other officers,
    Hanson found that Kenvaughn was related to Wendy Williams,
    a Benson Towers resident.
    The next morning, Hanson and other officers went to
    Williams’ apartment in Benson Towers for a “knock and talk,”
    and at the apartment, Williams’ roommate answered the door
    and allowed law enforcement to enter. Shanequa Dismuke
    was also present. During the “knock and talk,” Hanson found
    unlawful items and another officer drafted a search war-
    rant affidavit.
    Law enforcement received a warrant and was allowed to
    search for narcotics and firearms. During the search, law
    enforcement personnel found and opened a safe. Hanson testi-
    fied that they found two 9-mm firearms and multiple packages
    of marijuana.
    At trial, after Hanson disclosed the contents of the safe, a
    sidebar was held and the court explained that the testimony
    must be limited to the firearm that was found wrapped in a
    T-shirt. Devers renewed his motion in limine and requested
    a continuing objection. The court granted the continuing
    objection.
    Hanson clarified that one of the 9-mm firearms belonged to
    Dismuke and that the other was found wrapped in a T-shirt.
    He confirmed that the 9-mm ammunition seized from Devers’
    home could be fired by the T-shirt-wrapped firearm found at
    Benson Towers.
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    306 Nebraska Reports
    STATE v. DEVERS
    Cite as 
    306 Neb. 429
    3. Final Jury
    Instructions
    The final jury instructions contained a specific instruction
    regarding the evidence of controlled substances found during
    the search of Devers’ home: “The evidence of the seized con-
    trolled substances located at [Devers’ home] was received for
    the limited purpose of the potential or the possibility of cor-
    roborating the testimony of . . . Milton, . . . Stockdale, and . . .
    Sullivan. You must consider this evidence only for that limited
    purpose, and no other.”
    4. Verdict and
    Sentences
    The jury found Devers not guilty of possession of a deadly
    weapon by a prohibited person. The jury found him guilty of
    first degree felony murder and use of a deadly weapon to com-
    mit a felony. The district court sentenced Devers to life impris-
    onment for first degree murder and 5 to 5 years’ imprisonment
    for use of a deadly weapon. The sentences imposed were to
    run consecutively.
    Devers filed a timely appeal, in which he is represented by
    different counsel than at trial.
    III. ASSIGNMENTS OF ERROR
    Devers assigns, reordered and restated, that the district court
    (1) abused its discretion when it terminated the deposition of
    Milton and overruled his motion in limine to exclude Milton’s
    testimony and (2) erred in admitting irrelevant and unfairly
    prejudicial testimony regarding (a) the controlled substances
    found during a search of his home and (b) the firearm found
    at Benson Towers. He also assigns that (3) the evidence was
    insufficient to convict him of first degree felony murder and
    use of a deadly weapon, because a trier of fact could not find
    (a) that Devers knew in advance that Goynes intended to rob
    LeFlore and (b) that Devers knew in advance that Goynes
    intended to use a firearm.
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    STATE v. DEVERS
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    306 Neb. 429
    In compliance with our decision in State v. Mrza, 5 Devers
    assigned 13 claims of ineffective assistance of trial counsel.
    Twelve claims asserted trial counsel performed deficiently by
    failing to
    •  “object to the trial court’s erroneous limiting instruction
    regarding the drug testimony by Hanson”;
    •  “submit evidence in support of [Devers’ pro se] motion [to
    dismiss on constitutional speedy trial grounds] and . . . file
    an interlocutory appeal of the trial court’s order denying
    dismissal”;
    •  “present testimony from Corrections Officer Hall, who would
    have testified that Devers resisted having Stockdale as a
    cellmate because Devers knew Stockdale would use the cell
    assignment as an opportunity to fabricate incriminating state-
    ments by Devers”;
    •  “present testimony from Joequana Goynes, . . . Lemon,
    and Teosha Valentine, who would have testified that Milton
    admitted (1) that Devers did not knowingly aid in the rob-
    bery, (2) that prosecutors coached her testimony, and (3)
    that prosecutors threatened prosecution of Milton if she did
    not comply”;
    •  “present testimony from . . . Sullivan’s father, Michael
    Sullivan, Sr., who would have testified that Sullivan admit-
    ted to him that he lied to police about his conversations with
    Devers, and that he received off-the-record promises of leni-
    ency in exchange for testifying”;
    •  “present testimony from Corey Finley, who would have tes-
    tified that he observed Devers in the area of 25th and Fort
    Streets at the time of the shooting”;
    •  “present testimony from Emmanuel Jackson and Kaleena
    Johnson, who both would have testified that . . . Stockdale
    admitted that he lied to police about his conversations with
    Devers, and that he received off-the-record promises of leni-
    ency in exchange for testifying”;
    5
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
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    •  “investigate or present testimony from Kenvaughn and
    Shydale . . . , who both would have testified that the handgun
    seen in their possession by Chae . . . had no connection to
    Devers or Goynes, and that they were coerced into remain-
    ing silent”;
    •  “obtain or present the recording of Milton made by LeFlore’s
    family members on January 11, 2019”;
    •  “consult or call as a witness an expert in pharmacology who
    would have testified that, on both January 6, 2018 and at the
    time of trial, Milton’s prescriptions affected her ability to
    both accurately form and recall memories”;
    •  “consult with, or call as a witness, an independent telecom-
    munications expert because he or she would have testified
    that the cell phone evidence did not support the State’s
    theory as to Devers’ and Milton’s movements on January 5-6,
    2019, but instead was either inconclusive or directly refuted
    Special Agent Kevin Hoyland’s testimony and demonstrative
    exhibit”; and
    •  “investigate and bring to the attention of the trial court and/or
    the jury the prosecutors’ use of malicious prosecution tactics
    against . . . Smith to coerce her testimony against Devers.”
    The last claim asserted that trial counsel “not only . . . pro-
    vided unreasonable advice that Devers should waive his right
    to testify, but . . . interfered with Devers’ freedom to decide
    whether to testify by telling Devers he must abide by [coun-
    sel’s] advice not to testify.”
    IV. ANALYSIS
    1. Deposition Sanctions
    (a) Standard of Review
    [1] Trial courts have broad discretion with respect to sanc-
    tions involving discovery procedures, and their rulings thereon
    will not be reversed in the absence of an abuse of discretion. 6
    6
    State v. Sierra, 
    305 Neb. 249
    , 
    939 N.W.2d 808
     (2020).
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    (b) Discussion
    Devers argues that the district court abused its discretion
    when it terminated Milton’s deposition and denied Devers’
    motion in limine to exclude her as a witness. He contends that
    there are no rules governing depositions that allow a party to
    bring the trial judge to terminate the deposition. He further
    contends that because Milton refused to testify at the depo-
    sition, the court abused its discretion in denying the motion
    in limine.
    [2,3] Devers’ first argument—concerning the lack of dis-
    covery rules allowing a judge to terminate a deposition—was
    not raised to the district court. Appellate courts do not gener-
    ally consider arguments and theories raised for the first time
    on appeal. 7 And, as noted by the State, when the district court
    terminated the deposition, Devers failed to object. Failure to
    make a timely objection waives the right to assert prejudicial
    error on appeal. 8 Because Devers failed to object to the termi-
    nation of the deposition and did not raise the termination argu-
    ment during his motion in limine hearing, we will not address
    this argument.
    Regarding Devers’ second argument, the district court
    entered an order in compliance with its statutory powers.
    Pursuant to a criminal discovery statute, Devers filed a motion
    to take Milton’s deposition. 9 During the deposition, Milton
    refused to answer questions over concerns for her safety and
    the district court terminated the deposition. Under another
    criminal discovery statute, when a party fails to comply with
    criminal discovery procedures, including the statute authorizing
    depositions, “the court may” 10 either “[p]rohibit the party from
    calling a witness not disclosed or introducing in evidence the
    7
    State v. Uhing, 
    301 Neb. 768
    , 
    919 N.W.2d 909
     (2018).
    8
    State v. Swindle, 
    300 Neb. 734
    , 
    915 N.W.2d 795
     (2018).
    9
    See 
    Neb. Rev. Stat. § 29-1917
     (Reissue 2016).
    10
    
    Neb. Rev. Stat. § 29-1919
     (Reissue 2016).
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    material not disclosed” 11 or “[e]nter such other order as it
    deems just under the circumstances.” 12 In the district court’s
    order, it specifically stated that “Devers [was] free to file an
    additional motion to take [Milton’s] deposition . . . .” Because
    the court’s order was entered in November 2018 and trial
    occurred in March 2019, significant time remained in which to
    depose Milton again. Under these circumstances, we agree with
    the district court that authorizing a second deposition was a
    sufficient remedy. Accordingly, the district court did not abuse
    its discretion in denying Devers’ motion in limine.
    2. Relevancy and Unfair Prejudice
    (a) Standard of Review
    [4-6] In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the
    Nebraska Evidence Rules; judicial discretion is involved only
    when the rules make discretion a factor in determining admis-
    sibility. 13 A trial court’s determination of the relevancy and
    admissibility of evidence must be upheld in the absence of
    an abuse of discretion. 14 Balancing the probative value of
    evidence against the danger of unfair prejudice is within the
    discretion of the trial court. 15
    (b) Discussion
    Because both of Devers’ assignments asserting error in the
    admission of evidence are based on relevancy and unfair preju-
    dice, we recall general applicable principles.
    [7,8] Evidence that is irrelevant is inadmissible. 16 “Relevant
    evidence means evidence having any tendency to make the
    11
    § 29-1919(3).
    12
    § 29-1919(4).
    13
    State v. Lierman, 
    305 Neb. 289
    , 
    940 N.W.2d 529
     (2020).
    14
    State v. Carpenter, 
    293 Neb. 860
    , 
    880 N.W.2d 630
     (2016).
    15
    State v. Thomas, 
    303 Neb. 964
    , 
    932 N.W.2d 713
     (2019).
    16
    
    Neb. Rev. Stat. § 27-402
     (Reissue 2016); State v. Brown, 
    302 Neb. 53
    , 
    921 N.W.2d 804
     (2019).
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    existence of any fact that is of consequence to the deter­
    mination of the action more probable or less probable than it
    would be without the evidence.” 17 Relevancy requires only that
    the probative value be something more than nothing. 18
    [9-11] Under 
    Neb. Rev. Stat. § 27-403
     (Reissue 2016),
    relevant evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice. 19
    Unfair prejudice means an undue tendency to suggest a deci-
    sion based on an improper basis. 20 Unfair prejudice speaks
    to the capacity of some concededly relevant evidence to lure
    the fact finder into declaring guilt on a ground different from
    proof specific to the offense charged, commonly on an emo-
    tional basis. 21
    (i) Controlled Substances
    Devers makes two arguments concerning the admission of
    controlled substances seized from the search of his home.
    Neither is persuasive.
    First, he argues that evidence of methamphetamine, syn-
    thetic marijuana, and packaging materials had little to no
    probative value. Second, he argues that the minimal probative
    value of the drug evidence was substantially outweighed by the
    danger that the jury believed him to be a “trafficker of danger-
    ous narcotics.” 22 And, he asserts, the court’s attempt to cure the
    problem by means of a contemporaneous limiting instruction
    did not encompass all of the target evidence, and consequently,
    he “suffered the full prejudicial effects of this wrongly admit-
    ted evidence.” 23 We disagree.
    17
    
    Neb. Rev. Stat. § 27-401
     (Reissue 2016).
    18
    State v. Brown, 
    supra note 16
    .
    19
    
    Id.
    20
    
    Id.
    21
    
    Id.
    22
    Brief for appellant at 19.
    23
    Id. at 20.
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    [12,13] Contrary to Devers’ first argument, the admission of
    the testimony regarding controlled substances was relevant to
    corroborate the testimony of Milton, Stockdale, and Sullivan.
    We have recognized that evidence may be relevant because it
    corroborates other testimony. 24 This follows from a broader
    principle: The State is allowed to present a coherent picture of
    the facts of the crimes charged, and it may generally choose its
    evidence in so doing. 25 Hanson testified that during the search
    of Devers’ home, law enforcement seized synthetic marijuana,
    methamphetamine, and packaging materials. Milton testified
    that on the night of the incident, she purchased marijuana from
    Devers. Stockdale testified that during his conversations with
    Devers, Devers stated that his house was searched and that
    drugs were found. And Devers told Sullivan that law enforce-
    ment seized “K-2” from Devers’ home. The evidence was
    relevant to corroborate the testimony of an eyewitness and jail-
    house informants. In other words, the evidence had substantial
    probative value to corroborate both Milton’s testimony that she
    was with Devers the night of the incident and Devers’ state-
    ments to Stockdale and Sullivan about the incident.
    [14,15] Nor was the evidence’s probative value substan-
    tially outweighed by unfair prejudice. Most, if not all, evi-
    dence offered by a party is calculated to be prejudicial to the
    opposing party. 26 But the court’s limiting instruction restricted
    the use of the evidence only to corroborate the testimony of
    Milton, Stockdale, and Sullivan. Although the court’s initial
    limiting instruction, given contemporaneously with Hanson’s
    testimony, referred only to evidence of “marijuana,” the court’s
    final jury instructions broadly encompassed the “evidence
    of seized controlled substances located at [Devers’ home].”
    In construing an individual jury instruction, the instruction
    should not be judged in artificial isolation but must be viewed
    24
    See State v. Freemont, 
    284 Neb. 179
    , 
    817 N.W.2d 277
     (2012).
    25
    
    Id.
    26
    State v. Thomas, 
    supra note 15
    .
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    in the context of the overall charge to the jury considered
    as a whole. 27 Here, the situation resembled that in another
    case where we said, “The district court’s limiting instruction
    restricted the jury’s use of the evidence and minimized the
    tendency to suggest a decision on an improper basis.” 28 Based
    on the limiting instructions, taken as whole, we cannot say
    that the district court abused its discretion in admitting the
    evidence of controlled substances.
    (ii) Firearm
    Devers makes two arguments concerning the admission of
    the firearm seized at Benson Towers. First, he argues that
    the firearm evidence had minimal probative value and was
    substantially outweighed by the danger of unfair prejudice,
    because “the State introduced little, if any, evidence establish-
    ing a direct connection between Devers and the handgun . . .
    at the Benson Towers.” 29 Second, he argues that the prosecutor
    elicited testimony from Hanson about “‘multiple packages of
    marijuana’” found in the safe that served only to confuse the
    issues and unfairly prejudice Devers. 30
    To support the first argument, Devers relies upon State v.
    Sellers. 31 There, the defendant argued that the district court
    should have admitted the evidence of a handgun seized during
    the search of the victim. After unsuccessful attempts to serve
    the victim with a subpoena, the victim was arrested. At the
    home where the arrest occurred, law enforcement conducted a
    search and seized several items, including firearms. The district
    court granted the State’s motion in limine to exclude admission
    of firearm evidence. On appeal, we reasoned that the proba-
    tive value of the firearms seized at the arrest was minimal.
    27
    State v. Ely, 
    295 Neb. 607
    , 
    889 N.W.2d 377
     (2017).
    28
    See State v. Perrigo, 
    244 Neb. 990
    , 1001, 
    510 N.W.2d 304
    , 311 (1994).
    29
    Brief for appellant at 28.
    30
    
    Id.
    31
    State v. Sellers, 
    279 Neb. 220
    , 
    777 N.W.2d 779
     (2010).
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    There was no proof linking the victim to the handgun, and law
    enforcement personnel testified that they could not place the
    handgun as having been in the victim’s possession. We con-
    cluded that the minimal probative value was outweighed by the
    danger of prejudice.
    Here, however, the State relied upon circumstantial evidence
    to connect Devers to the firearm seized at Benson Towers.
    Milton stated that after the incident, Devers drove Goynes to
    Lemon’s house and that Devers told Goynes that Devers would
    get rid of something for Goynes. It was known that Devers
    spent a lot of time with family, including Kenvaughn. The next
    day, Chae picked up Kenvaughn and Shydale and took them
    to their mother’s home. Chae saw them wipe down a firearm
    with a T-shirt. Chae then drove Kenvaughn and Shydale to
    Benson Towers. Later that evening, Kenvaughn was at Devers’
    home when law enforcement executed the search warrant. The
    following morning, law enforcement received a search war-
    rant for an apartment with a family connection to Kenvaughn
    and Shydale. Law enforcement seized a handgun wrapped in a
    T-shirt. Milton described the handgun as black, Chae described
    the handgun as chrome and black, and Hanson stated that the
    ammunition found at Devers’ home could be fired by the hand-
    gun found at Benson Towers.
    [16] Devers contends that the circumstantial nature of the
    firearm evidence had minimal probative value and therefore
    prejudiced him. Circumstantial evidence is not inherently
    less probative than direct evidence. 32 Unlike the situation
    in Sellers, the temporal proximity from the shooting to the
    seizure of the firearm increased the probative value of the cir-
    cumstantial evidence. 33 And, here, the evidence of the firearm
    was relevant to the crimes charged. We cannot say that the
    circumstantial evidence of the firearm was substantially out-
    weighed by the danger of unfair prejudice. Accordingly, the
    32
    See State v. Thelen, 
    305 Neb. 334
    , 
    940 N.W.2d 259
     (2020).
    33
    See State v. Sellers, 
    supra note 31
    .
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    district court did not abuse its discretion in admitting evidence
    of the firearm.
    [17] Regarding Devers’ second argument, assuming with-
    out deciding that admission of the statement about “multiple
    packages of marijuana” seized in the safe with the firearm
    was error, we conclude the error was harmless. Harmless error
    review looks to the basis on which the trier of fact actually
    rested its verdict; the inquiry is not whether in a trial that
    occurred without the error, a guilty verdict surely would have
    been rendered, but, rather, whether the actual guilty verdict
    rendered in the questioned trial was surely unattributable to
    the error. 34 In the entirety of the trial, the challenged testimony
    represented only a single isolated statement. Here, the guilty
    verdicts were surely unattributable to this sole reference. Any
    error in admitting that evidence was harmless.
    3. Sufficiency of Evidence
    (a) Standard of Review
    [18] In reviewing a criminal conviction for a sufficiency
    of the evidence claim, whether the evidence is direct, circum-
    stantial, 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. 35
    (b) Discussion
    (i) Intent to Commit Robbery
    Devers argues that the jury could not have found him guilty
    of first degree felony murder, because there was insufficient
    34
    State v. Dady, 
    304 Neb. 649
    , 
    936 N.W.2d 486
     (2019).
    35
    State v. Montoya, 
    305 Neb. 581
    , 
    941 N.W.2d 474
     (2020).
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    evidence to support that Devers “‘intended that the crime be
    committed[,] or [Devers] knew that the other person intended
    to commit the crime[,] or [Devers] expected the other person
    to commit the crime.’” 36 He contends that Milton’s testimony
    was not credible because a security guard did not identify
    Devers as the driver of the vehicle and that video surveil-
    lance footage inside Reign Lounge “did not confirm many
    of Stockdale’s claims.” 37 This, however, merely invites us to
    pass on credibility or reweigh the evidence. We decline to
    do so.
    The evidence adduced at trial showed Devers knew Goynes
    intended to commit robbery. Because the testimony showed
    Devers turned Goynes on to the “lick,” refused to return to
    Reign Lounge while Goynes was gone, implicitly understood
    why Goynes left the vehicle, and waited for Goynes to return,
    there was sufficient evidence for the jury to find Devers
    intended, knew, or expected Goynes to commit the robbery.
    Viewed in the light most favorable to the prosecution, there
    was sufficient evidence for any rational trier of fact to find
    Devers guilty beyond a reasonable doubt.
    (ii) Intent to Use
    Firearm
    Devers argues that the jury could not have found him
    guilty of use of a firearm to commit a felony. He argues that
    Milton’s “evidence that Devers was present in the vehicle
    outside Reign Lounge such that he had an opportunity to
    know that Goynes both intended to rob LeFlore and intended
    to use a firearm to do so” 38 was insufficient to support his
    conviction.
    The record shows sufficient evidence that Devers knew
    Goynes intended to use a firearm to commit the robbery.
    36
    Brief for apellant at 38.
    37
    Id. at 39.
    38
    Id.
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    Stockdale testified that Devers said, “‘I just didn’t think
    my little cousin stupid ass would kill him. . . . I told him to
    shoot if he act up, but damn.’” Milton agreed that when she
    was in the vehicle with Devers and Goynes, it was readily
    apparent that Goynes was armed with a firearm, and she testi-
    fied that he “had it out the whole time.” This evidence alone
    is sufficient.
    [19] Based on Nebraska’s aiding and abetting statute, 39 the
    State argues an alternative theory that the reasoning in State v.
    McClain, 40 which in turn relies upon State v. Mantich, 41 applies
    here. In Mantich, we explained that “one who intentionally
    aids and abets the commission of a crime may be responsible
    not only for the intended crime, if it is in fact committed, but
    also for other crimes which are committed as a natural and
    probable consequence of the intended criminal act.” 42 There,
    we determined that using a firearm was a natural and prob-
    able consequence of kidnapping, robbing, and terrorizing the
    victim. And as an aider or abettor of the criminal acts, the
    defendant could properly be convicted of using a firearm to
    commit a felony “even if the jury believed that [the defendant]
    was unarmed.” 43
    The same reasoning applies here. The record shows that
    the State prosecuted Devers as an aider and abettor. Devers
    intended to rob LeFlore, Goynes shot and robbed LeFlore,
    Devers aided Goynes by driving the vehicle, and LeFlore died
    of his wounds. Use of the firearm in the commission of the
    murder was a natural and probable consequence of the intended
    act of robbery. Considered in the light most favorable to the
    prosecution, the evidence was sufficient for any rational trier
    of fact to find Devers guilty.
    39
    See 
    Neb. Rev. Stat. § 28-206
     (Reissue 2016).
    40
    State v. McClain, 
    285 Neb. 537
    , 
    827 N.W.2d 814
     (2013).
    41
    State v. Mantich, 
    249 Neb. 311
    , 
    543 N.W.2d 181
     (1996).
    42
    
    Id. at 327
    , 
    543 N.W.2d at 193
    .
    43
    
    Id. at 328
    , 
    543 N.W.2d at 193
    .
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    4. Ineffective Assistance of Counsel
    (a) Standard of Review
    [20] In reviewing claims of ineffective assistance of counsel
    on direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are sufficient to
    conclusively determine whether counsel did or did not provide
    effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance. 44
    (b) Legal Framework
    [21,22] 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 perform­
    ance which is known to the defendant or is apparent from
    the record. 45 Once raised, the appellate court will determine
    whether the record on appeal is sufficient to review the merits
    of the ineffective performance claims. 46
    [23,24] In order to know whether the record is insufficient
    to address assertions on direct appeal that trial counsel was
    ineffective, appellate counsel must assign and argue deficiency
    with enough particularity (1) for an appellate court to make a
    determination of whether the claim can be decided upon the
    trial record and (2) for a district court later reviewing a peti-
    tion for postconviction relief to be able to recognize whether
    the claim was brought before the appellate court. 47 When a
    claim of ineffective assistance of trial counsel is raised in a
    direct appeal, the appellant is not required to allege prejudice;
    however, an appellant must make specific allegations of the
    conduct that he or she claims constitutes deficient performance
    by trial counsel. 48
    44
    State v. Lierman, 
    supra note 13
    .
    45
    
    Id.
    46
    
    Id.
    47
    
    Id.
    48
    
    Id.
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    (c) Discussion
    (i) Limiting Instruction
    Devers argues that trial counsel was ineffective for fail-
    ing to object to the allegedly deficient limiting instruction
    that misdescribed the evidence of controlled substances. He
    contends that at trial, the district court limited the evidence to
    “marijuana,” but that Hanson’s testimony included evidence of
    synthetic marijuana, methamphetamine, and packing materials.
    The claim is sufficiently alleged, and the record is sufficient to
    review it.
    Regarding the admission of evidence of controlled sub-
    stances, the record shows that the district court gave two limit-
    ing instructions. While the original instruction restricted the
    jury to consider only the evidence of “marijuana” to corrobo-
    rate witness testimony, the final jury instruction encompassed
    evidence of all controlled substances. As we previously deter-
    mined, the limiting instructions, taken as a whole, removed any
    prejudice regarding the additional controlled substances. We
    conclude that this argument is without merit.
    (ii) Motion to Dismiss
    Devers argues that trial counsel erred in failing to present
    evidence that he asserted his constitutional right to a speedy
    trial early and often in communications with his counsel.
    Devers further argues that counsel was ineffective for failing
    to file an interlocutory appeal from the denial of his motion to
    dismiss. We agree with the State that this claim is sufficiently
    alleged and that the record is sufficient to review it.
    Devers’ first argument addresses only a purported failure
    to present evidence on his constitutional speedy trial claim.
    The State argues that counsel was not ineffective for fail-
    ing to produce evidence to support Devers’ motion, because
    Devers did not argue to the district court that he asserted
    his constitutional right early and often in communications
    with counsel. 49 Even if we assume that the State’s argument
    49
    See Johnston v. Mahally, 
    348 F. Supp. 3d 417
     (E.D. Pa. 2018).
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    is incorrect, Devers was not prejudiced. The district court
    analyzed Devers’ constitutional speedy trial claim and found
    no unreasonable delay or prejudice. We agree and find that
    Devers’ trial counsel’s actions did not prejudice Devers; thus,
    his claim lacks merit.
    Devers’ second argument also fails. As the U.S. Supreme
    Court has stated, “application of the principles articulated
    in [Cohen v. Beneficial Loan Corp. 50] and [Abney v. United
    States 51] to [constitutional] speedy trial claims compels the
    conclusion that such claims are not appealable before trial.” 52
    Because denial of a motion to dismiss based upon a consti-
    tutional speedy trial claim is not a final, appealable order,
    Devers’ argument lacks merit.
    (iii) Corrections Officer Hall
    Devers argues trial counsel was ineffective for failing to
    present testimony from “Corrections Officer Hall,” who would
    have testified that “upon learning that Stockdale would be
    moved into [Devers’] cell, Devers became irate due to his
    belief . . . Stockdale would use the opportunity to fabricate
    incriminating statements by Devers in an effort to obtain
    leniency,” 53 and that Corrections Officer Hall informed Devers
    he would have to lock Devers down because Devers was so
    upset about Stockdale’s being moved into his cell. The claim is
    sufficiently alleged, and the record is sufficient to review part
    of the claim.
    Devers’ argument that Corrections Officer Hall would testify
    that Devers believed that Stockdale would fabricate incrimi-
    nating evidence is without merit. First, Corrections Officer
    50
    Cohen v. Beneficial Loan Corp., 
    337 U.S. 541
    , 
    69 S. Ct. 1221
    , 
    93 L. Ed. 1528
     (1949).
    51
    Abney v. United States, 
    431 U.S. 651
    , 
    97 S. Ct. 2034
    , 
    52 L. Ed. 2d 651
    (1977).
    52
    United States v. MacDonald, 
    435 U.S. 850
    , 861, 
    98 S. Ct. 1547
    , 
    56 L. Ed. 2d 18
     (1978).
    53
    Brief for appellant at 46.
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    Hall would not be able to testify to Devers’ personal beliefs,
    pursuant to 
    Neb. Rev. Stat. § 27-603
     (Reissue 2016). And any
    statements that Devers made to Corrections Officer Hall would
    be inadmissible hearsay, pursuant to 
    Neb. Rev. Stat. § 27-801
    (Reissue 2016). Accordingly, the claim is without merit.
    The record is insufficient to address the claims concern-
    ing observations that Corrections Officer Hall made when
    Devers received the news that Stockdale would be his cellmate
    and concerning any statements Corrections Officer Hall made
    to Devers.
    (iv) Remaining Claims
    The State concedes that the remaining claims of ineffective
    assistance of counsel, not addressed above, are sufficiently
    alleged, but the record is insufficient to review them. We need
    not address them further.
    V. CONCLUSION
    We conclude that the district court did not err in overruling
    Devers’ motions in limine and did not err in admitting evidence
    of controlled substances from Devers’ home and evidence of
    the firearm seized at Benson Towers. We also conclude that the
    admission of a sole reference to “multiple packages of mari-
    juana” was, at most, harmless error. Viewing the evidence in
    the light most favorable to the State, we further conclude that
    the evidence at trial supported Devers’ convictions. Finally,
    we conclude that the assignments of ineffective assistance of
    counsel that we reach on direct appeal lack merit. Accordingly,
    we affirm Devers’ convictions and sentences.
    Affirmed.
    Cassel, J., concurring.
    In numerous decisions, this court has determined that an
    allegation of ineffective assistance of trial counsel, asserted
    by new appellate counsel, was not stated with sufficient speci-
    ficity where it failed to allege the name of the witness who
    would have testified and the specific content of the witness’
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    proposed testimony. 1 This naturally followed from this court’s
    holding that an appellant must make specific allegations of the
    conduct that he or she claims constitutes deficient perform­
    ance by trial counsel when raising an ineffective assistance
    claim on direct appeal. 2 As this court stated, “[g]eneral allega-
    tions . . . are insufficient . . . .” 3
    But this court has not insisted upon a specification of the
    name of a purported expert witness, where the allegation of
    ineffective assistance of trial counsel asserts a failure to adduce
    expert testimony for a particular opinion or conclusion. 4 And
    here, perhaps because of our case law, the State conceded that
    allegations of ineffective assistance for failing to “consult or
    call as a witness an expert in pharmacology who would have
    testified that, on [the date of the events,] Milton’s prescrip-
    tions affected her ability to both accurately form and recall
    memories” 5 and failing to “consult with, or call as a witness,
    an independent telecommunications expert because he or she
    would have testified that the cell phone evidence did not sup-
    port the State’s theory as to Devers’ and Milton’s movements
    on [the dates of the events]” 6 were “sufficiently alleged” 7 or
    “sufficiently stated.” 8
    1
    See, e.g., State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
     (2014); State v.
    Marks, 
    286 Neb. 166
    , 
    835 N.W.2d 656
     (2013); State v. McGhee, 
    280 Neb. 558
    , 
    787 N.W.2d 700
     (2010); State v. Davlin, 
    277 Neb. 972
    , 
    766 N.W.2d 370
     (2009).
    2
    See State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
     (2014).
    3
    
    Id. at 770
    , 848 N.W.2d at 578.
    4
    See, State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
     (2017) (failure to
    retain unnamed expert witness to refute State’s DNA evidence not deemed
    insufficiently specific); State v. Filholm, supra note 2 (failure to consult
    and present testimony of unnamed DNA expert witness not deemed
    insufficiently specific).
    5
    Brief for appellant at 51.
    6
    Id. at 52.
    7
    Brief for appellee at 32.
    8
    Id.
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    One might wonder whether an assignment of error on direct
    appeal regarding an unnamed expert is sufficiently specific.
    In posing this question, I emphasize that I am not criticizing
    appellate counsel here—either for the degree of specificity of
    Devers’ assignment or for the State’s concession.
    Several principles are settled: A criminal defendant has the
    right to the effective assistance of appellate counsel in his
    or her first appeal as of right. 9 There is no federal or state
    constitutional right to an attorney in state postconviction pro-
    ceedings. 10 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 perform­
    ance which is known to the defendant or is apparent from
    the record. 11
    These principles collectively teach that where appellate
    counsel is different from trial counsel, the state and federal
    Constitutions provide a defendant only one opportunity for
    the assistance of counsel in framing allegations of ineffective
    assistance of trial counsel.
    Might one then expect that appellate counsel should craft
    such allegations at least in accordance with the standard used
    to measure deficient performance? To show deficient perform­
    ance, a defendant must show that counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in
    criminal law. 12 Should it then follow that such ordinary train-
    ing and skill includes evaluating the need for expert testimony
    and determining whether such testimony can be secured? And
    9
    See, Halbert v. Michigan, 
    545 U.S. 605
    , 
    125 S. Ct. 2582
    , 
    162 L. Ed. 2d 552
     (2005); Pennsylvania v. Finley, 
    481 U.S. 551
    , 
    107 S. Ct. 1990
    , 
    95 L. Ed. 2d 539
     (1987); Evitts v. Lucey, 
    469 U.S. 387
    , 
    105 S. Ct. 830
    , 
    83 L. Ed. 2d 821
     (1985); Ross v. Moffitt, 
    417 U.S. 600
    , 
    94 S. Ct. 2437
    , 
    41 L. Ed. 2d 341
     (1974); Douglas v. California, 
    372 U.S. 353
    , 
    83 S. Ct. 814
    , 
    9 L. Ed. 2d 811
     (1963).
    10
    State v. Custer, 
    298 Neb. 279
    , 
    903 N.W.2d 911
     (2017).
    11
    State v. Lierman, 
    305 Neb. 289
    , 
    940 N.W.2d 529
     (2020).
    12
    State v. Sierra, 
    305 Neb. 249
    , 
    939 N.W.2d 808
     (2020).
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    if there is an expert witness who would testify to a specific
    proposition, might it demand that appellate counsel locate and
    name the expert?
    This could mean that more time may be required to prepare
    and submit a brief on direct appeal where appellate counsel is
    different from trial counsel. But is this not merely a necessary
    consequence of an important principle: The need for final-
    ity in the criminal process requires that a defendant bring all
    claims for relief at the first opportunity. 13
    In an appropriate case, this court should consider whether
    allegations of trial counsel’s deficient performance regard­
    ing a potential expert witness’ testimony are sufficient with-
    out naming the expert. The matter was not raised in the case
    decided today. If it is raised in the future, it deserves this
    court’s attention.
    13
    State v. Phelps, 
    286 Neb. 89
    , 
    834 N.W.2d 786
     (2013).