State v. Malone , 308 Neb. 929 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/21/2021 08:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. MALONE
    Cite as 
    308 Neb. 929
    State of Nebraska, appellee, v.
    Kevin W. Malone, appellant.
    ___ N.W.2d ___
    Filed April 16, 2021.     Nos. S-20-118, S-20-460.
    1. Rules of the Supreme Court: Appeal and Error. Whether a party has
    complied with the requirements under the Nebraska Supreme Court
    rules of appellate procedure is determined de novo upon a review of
    the record.
    2. Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    3. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
    assistance of counsel involve mixed questions of law and fact.
    4. ____: ____. When reviewing claims of ineffective assistance of counsel,
    an appellate court reviews the factual findings of the lower court for
    clear error and the legal determinations de novo.
    5. Records: Appeal and Error. An accurate bill of exceptions is essential
    to providing meaningful appellate review.
    6. Evidence: Records: Appeal and Error. As the only proper vehicle for
    bringing evidence before an appellate court, a bill of exceptions imports
    absolute verity once it has been submitted on appeal.
    7. Appeal and Error. A remand order generally terminates the present
    appeal’s pendency.
    8. Rules of the Supreme Court: Records: Appeal and Error. There is
    only one proper procedure for amending a bill of exceptions, and it is
    set out in Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018).
    9. Rules of the Supreme Court: Appeal and Error. Parties must strictly
    comply with the Nebraska Supreme Court rules of appellate procedure.
    10. ____: ____. A case is eligible for submission at any time after the appel-
    lee’s brief has been filed.
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    11. Rules of the Supreme Court: Records: Appeal and Error. The terms
    of Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018) require that a motion to
    amend the bill of exceptions be filed in the district court and not in an
    appellate court.
    12. Postconviction: Constitutional Law. Under the Nebraska Postconviction
    Act, a prisoner in custody may move to be released on the ground that
    there was such a denial or infringement of his or her constitutional rights
    as to render the judgment void or voidable.
    13. Postconviction: Appeal and Error. Postconviction relief is a very nar-
    row category of relief and is not intended to secure a routine review for
    any defendant dissatisfied with his or her sentence.
    14. ____: ____. A motion for postconviction relief cannot be used to secure
    review of issues that were known to the defendant and which were or
    could have been litigated on direct appeal.
    15. Postconviction: Proof. An evidentiary hearing on a motion for post­
    conviction relief is not required if (1) the motion does not contain factual
    allegations of a violation or infringement of the prisoner’s constitutional
    rights, (2) the motion alleges only conclusions of fact or law, or (3) the
    record affirmatively shows that the prisoner is entitled to no relief.
    16. Postconviction. In the absence of allegations that would render the
    judgment void or voidable, the proper course is to overrule a motion for
    postconviction relief without an evidentiary hearing for failure to state
    a claim.
    17. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    18. Effectiveness of Counsel: Constitutional Law. Under Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    a criminal defendant’s rights under U.S. Const. amend. VI may be
    violated if he or she is afforded inadequate representation by his or
    her attorney.
    19. Postconviction: Effectiveness of Counsel. Under Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    two steps of analysis are required to determine whether a defendant is
    entitled to postconviction relief based on a claim of ineffective assist­
    ance of counsel.
    20. Effectiveness of Counsel: Proof: Appeal and Error. Although both
    elements under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    ,
    
    80 L. Ed. 2d 674
     (1984), must be met for a meritorious claim of inef-
    fective assistance of counsel, an appellate court may address them in
    either order.
    21. Effectiveness of Counsel: Proof. To prevail on a claim of ineffec-
    tive assistance of counsel, a defendant must first show that his or her
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    attorney’s performance was deficient, meaning it objectively did not
    equal that of a lawyer with ordinary training and skill in criminal law.
    22.   ____: ____. To prevail on a claim of ineffective assistance of counsel,
    the defendant must show that he or she suffered prejudice as a result of
    the attorney’s deficient performance.
    23.   Effectiveness of Counsel: Words and Phrases. Prejudice means a rea-
    sonable probability that but for the attorney’s deficient performance, the
    result of the proceeding would have been different.
    24.   Words and Phrases. A reasonable probability is a substantial probabil-
    ity sufficient to undermine confidence in the outcome.
    25.   Effectiveness of Counsel: Presumptions: Appeal and Error. An
    appellate court reviews claims of ineffective assistance of counsel with
    a strong presumption that counsel’s actions were reasonable.
    26.   Postconviction: Effectiveness of Counsel: Appeal and Error. Where
    a defendant was represented by the same attorney at trial and on direct
    appeal, the defendant is not procedurally barred from raising trial coun-
    sel’s ineffectiveness in a motion for postconviction relief.
    27.   Attorney and Client: Conflict of Interest: Words and Phrases. The
    phrase “conflict of interest” denotes a situation in which regard for one
    duty tends to lead to disregard of another or where a lawyer’s repre-
    sentation of one client is rendered less effective by reason of his or her
    representation of another client.
    28.   Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal
    and Error. When a defendant shows that an actual conflict of interest
    burdened his or her attorney’s representation and affected the lawyer’s
    performance, an appellate court applies a presumption of prejudice,
    because it is difficult to measure the precise effect on the defense of
    representation corrupted by conflicting interests.
    29.   Effectiveness of Counsel: Conflict of Interest: Words and Phrases.
    The phrase “actual conflict of interest” encompasses any situation in
    which a defense counsel faces divided loyalties such that regard for one
    duty tends to lead to disregard of another.
    30.   Effectiveness of Counsel: Conflict of Interest. An actual conflict of
    interest is one that adversely affects counsel’s performance.
    31.   Effectiveness of Counsel: Conflict of Interest: Appeal and Error.
    While there are several types of conflicts of interest that could arise,
    where the issue is that the client’s interests could conflict with the
    attorney’s personal interests, an appellate court deems it a personal inter-
    est conflict.
    32.   ____: ____: ____. A personal interest conflict is arguably the least con-
    sequential type of conflict that an appellate court recognizes, because
    when the attorney has a personal conflict, the attorney can still fulfill
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    his or her duty of loyalty to a client, although doing so may be to the
    detriment of the attorney’s personal interest.
    33.   Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal
    and Error. An appellate court generally does not apply a presumption of
    prejudice to personal interest conflicts unless the defendant shows that
    his or her defense counsel faced a situation in which conflicting loyal-
    ties pointed in opposite 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.
    34.   Right to Counsel: Conflict of Interest: Waiver. A defendant can waive
    his or her right to assistance of counsel unhindered by a conflict of inter-
    est, provided that the waiver is knowing and intelligent.
    35.   Right to Counsel: Waiver: Appeal and Error. There is no formalistic
    litany required to establish that a waiver was knowingly and intelli-
    gently made; instead, when considering whether a defendant voluntarily,
    knowingly, and intelligently waived his or her right to counsel, an
    appellate court reviews the totality of the circumstances appearing in
    the record.
    36.   Constitutional Law: Waiver: Records. A voluntary waiver, know-
    ingly and intelligently made, must affirmatively appear from the record,
    before a court may conclude that a defendant has waived a right consti-
    tutionally guaranteed or granted by statute.
    37.   Constitutional Law: Waiver: Appeal and Error. 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.
    38.   Judgments: Appeal and Error. Under a clearly erroneous standard
    of review, an appellate court does not reweigh the evidence, but the
    appellate court decides the ultimate question independent of the trial
    court’s ruling.
    39.   Homicide: Motor Vehicles: Negligence. Contributory negligence is not
    a defense to the charge of motor vehicle homicide; rather, for purposes
    of a defendant’s liability, the issue is whether a defendant’s violation of
    the law was a contributing factor to the death.
    40.   Negligence: Proximate Cause. If a decedent’s negligence is the sole
    proximate cause of his death, then the decedent’s negligence is a defense.
    41.   ____: ____. Proximate causation refers to the basic requirement that
    there must be some direct relation between the injury asserted and the
    injurious conduct alleged.
    42.   Negligence: Proximate Cause: Words and Phrases. A “proximate
    cause” is a moving or effective cause or fault which, in the natural
    and continuous sequence, unbroken by an efficient intervening cause,
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    produces a death or injury and without which the death or injury would
    not have occurred.
    43.   Criminal Law: Negligence: Proximate Cause: Words and Phrases.
    Criminal conduct is a proximate cause of the event in question if the
    event would not have occurred but for that conduct.
    44.   Negligence: Proximate Cause: Words and Phrases. Conduct is not a
    proximate cause of an event if that event would have occurred without
    such conduct.
    45.   Trial: Photographs. Because gruesome crimes produce gruesome
    photo­graphs, the simple fact that a photograph is gruesome does not
    make the photograph inadmissible as unduly prejudicial.
    46.   Trial: Homicide: Photographs. If the State lays proper foundation,
    photographs that illustrate or make clear a controverted issue in a homi-
    cide case are admissible, even if gruesome.
    47.   Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
    Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966), pro-
    hibits the use of statements derived during custodial interrogation unless
    the prosecution demonstrates the use of procedural safeguards that are
    effective to secure the privilege against self-incrimination.
    48.   ____: ____: ____. The safeguards provided by Miranda v. Arizona,
    
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966), come into play
    whenever a person in custody is subjected to either express questioning
    or its functional equivalent.
    49.   ____: ____: ____. Under Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966), only that testimony obtained unlawfully
    during custodial interrogation is subject to suppression.
    50.   Trial: Parties. Bifurcation of a trial is generally only appropriate where
    separate proceedings will do justice, avoid prejudice, and further the
    convenience of the parties and the court.
    51.   Trial. Whether claims should be bifurcated is generally within the dis-
    cretion of the trial court.
    52.   Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
    duty to conduct criminal trials in such a manner that the accused may
    have a fair and impartial trial, and prosecutors are not to inflame the
    prejudices or excite the passions of the jury against the accused.
    53.   Trial: Prosecuting Attorneys: Appeal and Error. When considering
    a claim of prosecutorial misconduct, an appellate court first considers
    whether the prosecutor’s acts constitute misconduct.
    54.   Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
    conduct encompasses conduct that violates legal or ethical standards for
    various contexts because the conduct will or may undermine a defend­
    ant’s right to a fair trial.
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    STATE v. MALONE
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    55. Trial: Prosecuting Attorneys. While a prosecutor should prosecute
    with earnestness and vigor and may strike hard blows, he or she is not
    at liberty to strike foul ones.
    56. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
    not mislead and unduly influence the jury is not misconduct.
    57. Trial: Prosecuting Attorneys: Due Process. A prosecutor’s misconduct
    that prejudices a defendant’s right to a fair trial violates due process.
    58. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v.
    Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
     (1963), pros-
    ecutors owe a duty to disclose favorable evidence to criminal defendants
    prior to trial.
    59. Evidence: Impeachment: Words and Phrases. Favorable evidence
    includes both exculpatory and impeachment evidence.
    60. Prosecuting Attorneys: Evidence: Due Process. Suppression by the
    prosecution of evidence favorable to an accused upon request violates
    due process where the evidence is material either to guilt or to punish-
    ment, irrespective of the good faith or bad faith of the prosecution.
    61. Trial: Prosecuting Attorneys: Evidence. A prosecutor should not
    express his or her personal belief or opinion as to the truth or falsity of
    any testimony or evidence or the guilt of the defendant.
    62. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
    ences from the evidence in presenting his or her case, and such infer-
    ences generally do not amount to prosecutorial misconduct.
    63. ____: ____. When a prosecutor’s comments rest on reasonably drawn
    inferences from the evidence, the prosecutor 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.
    64. ____: ____. 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.
    65. Trial: Prosecuting Attorneys: Juries. The danger of a prosecutor
    expressing a personal opinion is that the jurors may infer the prosecutor
    has access to information not in evidence and that with that inference
    and the imprimatur of the government, the jury might rest a decision on
    the government’s opinion rather than on its own view of the evidence.
    Appeals from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed.
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    STATE v. MALONE
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    308 Neb. 929
    Richard L. Boucher and Bradley H. Supernaw, of Boucher
    Law Firm, for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    Kevin W. Malone challenges his convictions and sentences,
    alleging that at trial and on direct appeal he was provided
    ineffective assistance of counsel and subjected to prosecuto-
    rial misconduct. His motion seeking postconviction relief was
    denied without an evidentiary hearing. Malone appealed.
    With that appeal pending, Malone found what he thought
    were three misstatements in the bill of exceptions. He filed an
    application before the Nebraska Court of Appeals to remand
    the cause for a hearing to determine whether to amend the bill
    of exceptions. After a hearing, the district court denied relief.
    Malone again appealed.
    For the reasons stated herein, we find that the arguments
    contained in Malone’s appeals are without merit. We affirm.
    II. BACKGROUND
    1. Convictions
    In May 2017, Malone was tried by a jury on counts of motor
    vehicle homicide, manslaughter, leaving the scene of a per-
    sonal injury accident resulting in serious bodily injury or death,
    and driving without an ignition interlock device. The charges
    stemmed from a 2016 car-motorcycle collision in Omaha,
    Nebraska. After Malone had run a red light, his car and Justin
    Hart’s motorcycle collided, resulting in Hart’s death.
    The jury found Malone guilty on all four counts. After
    accepting the jury’s verdict, the district court sentenced Malone
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    to a total of 40 to 50 years’ imprisonment and revoked his
    driver’s license for 15 years. The Court of Appeals affirmed,
    rejecting Malone’s claims of insufficient evidence and exces-
    sive sentences. 1
    2. Request for Writ of Mandamus
    During his direct appeal, Malone found what he believed
    were misstatements in the bill of exceptions. The court reporter
    at Malone’s trial had certified that the bill of exceptions was
    “correct and complete.” But, disputing this, Malone sent a
    letter to the court reporter in April 2018, alleging that three
    exchanges at trial between the prosecutor and him had been
    omitted from the bill of exceptions. Malone requested that
    the court reporter review the audio recording from trial to
    verify whether these exchanges had indeed occurred. He also
    requested access to the audio recording.
    The court reporter responded with a letter, stating, “I have
    listened to the entire cross-examination [at issue,] and the [b]ill
    of [e]xceptions that you have is an accurate transcription of
    what was said in court on that day.”
    Malone next wrote to the district court judge who had
    presided over his trial. In June 2018, that judge replied to
    Malone’s letter by noting that she had “reviewed the record”
    and determined Malone’s “claim that there is testimony miss-
    ing . . . is unfounded.” The judge accordingly denied Malone’s
    request to access the audio recording from trial because
    Malone had already been “provided with the bill of exceptions
    as requested.”
    In January 2019, Malone filed a pro se “Complaint for Writ
    of Mandamus” in the district court for Douglas County, seek-
    ing to compel production of the audio recording from his trial.
    That complaint was followed by pro se motions for a “Change
    of Judge,” for “Audio Record per Public Records Law,” and
    for “Discovery Evidence: Sound [R]ecordings.” Malone’s
    1
    See State v. Malone, 
    26 Neb. App. 121
    , 
    917 N.W.2d 164
     (2018).
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    complaint and motions were denied, and in October 2020, we
    dismissed his appeal on jurisdictional grounds. 2
    3. Motion for Postconviction Relief
    In June 2019, with his mandamus action still pending,
    Malone filed a verified motion for postconviction relief. After
    having been represented by the same attorney at trial and on
    direct appeal, Malone was represented by a new attorney in his
    postconviction action.
    In his motion, Malone argued that he had been deprived
    of effective assistance of counsel at trial and on direct appeal
    by his attorney’s allowance of a familial relationship with the
    victim to affect the representation. He also contended counsel
    had failed to offer evidence of Hart’s own negligence, failed to
    effectively cross-examine witnesses, failed to move to suppress
    certain evidence, and failed to move to bifurcate the trial. In an
    amended motion, Malone added an allegation that his appel-
    late counsel failed to raise prosecutorial misconduct. Malone
    also claimed that he had been denied due process at trial by
    the prosecutor’s withholding of exculpatory impeachment evi-
    dence, use of false testimony, and commenting inappropriately.
    Further, Malone alleged that “errors and omissions of the
    [b]ill of [e]xceptions prevent[ed] a proper appeal and unduly
    prejudice[d]” him.
    In an order dated January 14, 2020, the district court over-
    ruled Malone’s postconviction motion without an evidentiary
    hearing. The court rejected Malone’s allegations of ineffec-
    tive assistance of counsel because they were not pled with
    specific facts or were affirmatively rebutted by the record.
    Further, it found Malone’s claims of prosecutorial misconduct
    “procedurally barred, because they could have been brought
    on direct appeal.” Finally, because a “conclusory allegation
    that the [b]ill of [e]xceptions is inaccurate would not be a
    2
    See State ex rel. Malone v. Baldonado-Bellamy, 
    307 Neb. 549
    , 
    950 N.W.2d 81
     (2020).
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    constitutional deprivation” capable of rendering Malone’s sen-
    tences void or voidable, the court also denied that claim.
    Malone timely perfected an appeal.
    4. Motion to Amend Bill of Exceptions
    After perfecting an appeal in his postconviction action,
    Malone filed an application in the Nebraska Court of Appeals
    “pursuant to Neb. Ct. R. App. P. §2-105(B)(5) [(rev. 2018),]”
    for a “remand” to the district court, inter alia, “to correct the
    bill of exceptions” and play an audio recording of Malone’s
    testimony at trial.
    The Court of Appeals granted Malone’s application, in part,
    and ordered “pursuant to . . . § 2-105(B)(5) that a hearing shall
    be held in the Douglas County District Court” to determine
    whether to amend the bill of exceptions. However, the Court
    of Appeals specified that “[the] case is not remanded to dis-
    trict court.”
    At an evidentiary hearing held in June 2020, Malone tes-
    tified that three exchanges during the prosecutor’s cross-
    examination of him were missing from the bill of exceptions.
    In the first exchange, Malone recalled telling the prosecu-
    tor that he had attempted mouth-to-mouth resuscitation on
    Hart immediately after the collision. In the second exchange,
    Malone recounted a dialogue about whether Malone’s car or
    Hart’s motorcycle had initiated contact with the other, and
    in the third exchange, Malone alleged that in response to his
    explanation about why he had moved his car after the colli-
    sion, the prosecutor had expressed skepticism. In addition to
    Malone’s testimony that these three exchanges had occurred,
    he offered supportive affidavits from three family members
    who had been in attendance at trial, as well as from a private
    investigator who averred that he had contacted several jurors
    from trial, some of whom said they remembered the alleged
    missing exchanges.
    On June 12, 2020, the district court issued an order deny-
    ing Malone’s motion to amend the bill of exceptions. The
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    court held that “based on the . . . sworn affidavit of [its cur-
    rent court reporter], there are no amendments to be made to
    the [b]ill of [e]xceptions.” The current court reporter averred
    that after having listened to the audio recording from Malone’s
    trial, she believed the bill of exceptions was accurate.
    Malone timely perfected a second appeal. The Court of
    Appeals ordered Malone’s two appeals consolidated. We
    granted bypass of the Court of Appeals’ review.
    III. ASSIGNMENTS OF ERROR
    Malone assigns 13 errors, which we consolidate and restate
    as two: (1) The district court erred in denying his motion to
    amend the bill of exceptions, and (2) the district court erred
    in overruling his motion for postconviction relief without an
    evidentiary hearing.
    IV. STANDARD OF REVIEW
    [1] Whether a party has complied with the requirements
    under our rules of appellate procedure is determined de novo
    upon a review of the record. 3
    [2] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defendant
    failed to allege sufficient facts to demonstrate a violation of his
    or her constitutional rights or that the record and files affirma-
    tively show that the defendant is entitled to no relief. 4
    [3,4] Claims of ineffective assistance of counsel involve
    mixed questions of law and fact. 5 When reviewing claims of
    ineffective assistance of counsel, an appellate court reviews the
    factual findings of the lower court for clear error and the legal
    determinations de novo. 6
    3
    See State v. Catlin, ante p. 294, 
    953 N.W.2d 563
     (2021).
    4
    State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020).
    5
    See State v. Russell, ante p. 499, 
    954 N.W.2d 920
     (2021).
    6
    See 
    id.
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    V. ANALYSIS
    1. Bill of Exceptions
    Malone’s first assignment of error concerns the veracity of
    the bill of exceptions.
    [5,6] An accurate bill of exceptions is essential to providing
    meaningful appellate review. 7 As the only proper vehicle for
    bringing evidence before an appellate court, 8 a bill of excep-
    tions “imports absolute verity” once it has been submitted on
    appeal. 9 As authorized by statute, 10 the various procedures for
    compiling, certifying, and amending a bill of exceptions are
    detailed in Neb. Ct. R. App. P. § 2-105 (rev. 2018). 11
    After perfecting his first appeal, Malone filed an applica-
    tion for the Court of Appeals to “remand” for a § 2-105(B)(5)
    hearing to correct the bill of exceptions. The Court of Appeals
    granted Malone’s application, in part, and ordered the dis-
    trict court to hold a hearing “pursuant to . . . § 2-105(B)(5).”
    Apparently in an attempt to avoid divesting itself of jurisdic-
    tion over Malone’s appeal, the Court of Appeals clarified that
    the “case is not remanded to [the] district court.”
    Following what it termed a “hearing on the [m]andate from
    the Nebraska Court of Appeals on . . . Malone’s [a]pplication
    for [r]emand to [p]roceed in [d]istrict [c]ourt to [c]orrect the
    [b]ill of [e]xceptions,” the district court held that “there are no
    amendments to be made to the [b]ill of [e]xceptions.” Malone
    assigns this was in error.
    7
    See, In re Estate of Radford, 
    297 Neb. 748
    , 
    901 N.W.2d 261
     (2017); Hynes
    v. Good Samaritan Hosp., 
    285 Neb. 985
    , 
    830 N.W.2d 499
     (2013). See,
    also, Curran v. Wilcox, 
    10 Neb. 449
    , 
    6 N.W. 762
     (1880).
    8
    See, State v. Ferrin, 
    305 Neb. 762
    , 
    942 N.W.2d 404
     (2020); Western
    Ethanol Co. v. Midwest Renewable Energy, 
    305 Neb. 1
    , 
    938 N.W.2d 329
    (2020).
    9
    See State v. Dyer, 
    245 Neb. 385
    , 404, 
    513 N.W.2d 316
    , 328 (1994).
    Accord Wonderling v. Conley, 
    182 Neb. 446
    , 
    155 N.W.2d 349
     (1967).
    10
    See 
    Neb. Rev. Stat. § 25-1140
     (Reissue 2016).
    11
    See Peterson v. Skiles, 
    173 Neb. 223
    , 
    113 N.W.2d 105
     (1962) (citing
    previous version of § 2-105).
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    [7] As an initial matter, we question whether the Court
    of Appeals had authority to grant Malone’s application for
    remand without divesting itself of jurisdiction over the cause.
    A remand order generally terminates the present appeal’s pend­
    ency. 12 We see no authority cited to us permitting the Court of
    Appeals to have remanded only a portion of the issues before it
    while maintaining jurisdiction over the remaining issues.
    [8,9] Indeed, the authority cited by Malone in his application
    for remand did not allow for the procedure he requested. There
    is only one proper procedure for amending a bill of exceptions,
    and it is set out in § 2-105(B)(5). 13 We require strict compli-
    ance with our rules of appellate procedure. 14
    Under § 2-105(B)(5), parties in a case “may amend the bill
    of exceptions by written agreement to be attached to the bill of
    exceptions.” 15 In the case of disagreement between the parties,
    the bill of exceptions can be amended upon a motion to the
    district court:
    Proposed amendments not agreed to by all the parties to
    the case shall be heard and decided by the district court
    after such notice as the court shall direct. The order of
    the district court thereon shall be attached to the bill
    of exceptions prior to the time the case is submitted to
    the Supreme Court. Hearings with respect to proposed
    amendments to a bill of exceptions may be held at cham-
    bers anywhere in the state. 16
    [10] In Millennium Laboratories v. Ward, 17 we inter-
    preted the above language to find that so long as the proper
    12
    See TransCanada Keystone Pipeline v. Tanderup, 
    305 Neb. 493
    , 
    941 N.W.2d 145
     (2020). Cf. Rohde v. Farmers Alliance Mut. Ins. Co., 
    244 Neb. 863
    , 
    509 N.W.2d 618
     (1994).
    13
    See Dyer, 
    supra note 9
    .
    14
    See Catlin, supra note 3. See, also, Hilligas v. Farr, 
    171 Neb. 105
    , 
    105 N.W.2d 578
     (1960).
    15
    See Dyer, 
    supra note 9
    .
    16
    § 2-105(B)(5). See Dyer, 
    supra note 9
    .
    17
    Millennium Laboratories v. Ward, 
    289 Neb. 718
    , 
    857 N.W.2d 304
     (2014).
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    procedure is followed, a district court may order the bill of
    exceptions amended at any time before the case is submit-
    ted for a decision by the appellate court. A case is “‘eli-
    gible for submission at any time after the appellee’s brief has
    been filed.’” 18
    After the appeal in Millennium Laboratories had been
    perfected, but before the case was submitted to this court,
    the appellee moved in the district court to amend the bill of
    exceptions. The district court held a § 2-105(B)(5) hearing
    and sustained the appellee’s motion, ordering the clerk of
    the district court to prepare and transmit an amended bill of
    exceptions.
    We found that such amended bill of exceptions, duly certi-
    fied, had been properly made a part of the appellate record
    pursuant to § 2-105(B)(5). 19 The proper procedure in moving to
    amend the bill of exceptions had been followed. 20
    We note that 2 months before we decided Millennium
    Laboratories, we were presented with a similar scenario in
    State v. Kays. 21 After perfecting an appeal, the appellant filed
    an application with the Court of Appeals to remand to the
    district court to correct the bill of exceptions. The Court of
    Appeals granted the application and returned the matter to the
    district court for a § 2-105(B)(5) hearing. We held, inter alia,
    that the district court’s subsequent order declining to amend the
    bill of exceptions was not plain error. 22
    [11] But to the extent our decision in Kays can be read to
    approve the underlying procedure used to amend the bill of
    exceptions in that case and in the case at issue, that aspect
    of the decision is overruled. The terms of § 2-105(B)(5)
    18
    Id. at 724, 857 N.W.2d at 310 (quoting Neb. Ct. R. App. P. § 2-111(A)
    (rev. 2014)).
    19
    See Millenium Laboratories, supra note 17.
    20
    See id.
    21
    State v. Kays, 
    289 Neb. 260
    , 
    854 N.W.2d 783
     (2014).
    22
    See 
    id.
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    require that a motion to amend the bill of exceptions be filed
    in the district court and not in an appellate court.
    Consequently, here we find that Malone failed to comply
    with the procedure set forth in § 2-105(B)(5). He sought
    to amend the bill of exceptions by filing an application for
    remand in the Court of Appeals. Since his initial appeal had
    been perfected at that time, but not yet submitted to the Court
    of Appeals, Malone could have moved in the district court to
    amend the bill of exceptions. 23
    But he did not do so. We find no evidence in the appellate
    record that Malone filed a motion to amend the bill of excep-
    tions in the district court; his attempt to amend the bill of
    exceptions was therefore improper. Because he failed to strictly
    comply with our rule of appellate procedure for amending the
    bill of exceptions, we do not consider the merits of his first
    assignment of error.
    2. Postconviction Relief
    Malone next assigns that the district court erred in over-
    ruling his motion for postconviction relief without an eviden-
    tiary hearing.
    [12-14] Under the Nebraska Postconviction Act, 24 a pris-
    oner in custody may move to be released on the ground that
    there was such a denial or infringement of his or her consti-
    tutional rights as to render the judgment void or voidable. 25
    Postconviction relief is a very narrow category of relief and
    is not intended to secure a routine review for any defendant
    dissatisfied with his or her sentence. 26 A motion for postcon-
    viction relief cannot be used to secure review of issues that
    23
    See Millennium Laboratories, supra note 17.
    24
    
    Neb. Rev. Stat. §§ 29-3001
     to 29-3004 (Reissue 2016).
    25
    § 29-3001(1). See State v. Dalton, 
    307 Neb. 465
    , 
    949 N.W.2d 752
     (2020).
    26
    See, Dalton, 
    supra note 25
    ; State v. Beehn, 
    303 Neb. 172
    , 
    927 N.W.2d 793
    (2019).
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    were known to the defendant and which were or could have
    been litigated on direct appeal. 27
    [15,16] Section 29-3001(2) entitles a prisoner to an eviden-
    tiary hearing on his or her motion for postconviction relief,
    unless “the motion and the files and records of the case show
    to the satisfaction of the court that the prisoner is entitled to
    no relief.” 28 An evidentiary hearing is not required if (1) the
    motion does not contain factual allegations of a violation or
    infringement of the prisoner’s constitutional rights, (2) the
    motion alleges only conclusions of fact or law, or (3) the
    record affirmatively shows that the prisoner is entitled to no
    relief. 29 In the absence of allegations that would render the
    judgment void or voidable, the proper course is to overrule
    the motion without an evidentiary hearing for failure to state
    a claim. 30
    The district court overruled Malone’s motion for postconvic-
    tion relief without an evidentiary hearing. Malone assigns that
    this was error.
    Before we consider the arguments that Malone raises in sup-
    port of this assignment of error, we note an argument he does
    not preserve on appeal. Malone does not assign or specifically
    argue that the alleged misstatements in the bill of exceptions,
    discussed above, violated his constitutional rights. At oral
    argument, Malone conceded that he was not raising such an
    argument on appeal, but that his argument concerning the bill
    of exceptions was limited to alleging that the district court had
    erred under § 2-105(B)(5) of the appellate rules of practice in
    declining to amend the bill of exceptions.
    [17] An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the
    27
    See Dalton, 
    supra note 25
    . See, also, State v. Tyler, 
    301 Neb. 365
    , 
    918 N.W.2d 306
     (2018).
    28
    See Parnell, 
    supra note 4
    .
    29
    See 
    id.
    30
    See Tyler, 
    supra note 27
    . See, also, Parnell, 
    supra note 4
    .
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    error to be considered by an appellate court. 31 Because Malone
    did not specifically assign and argue that the alleged mis-
    statements in the bill of exceptions violated his constitutional
    rights, we do not consider any such argument here.
    (a) Claim of Ineffective
    Assistance of Counsel
    We begin our analysis of Malone’s postconviction motion by
    considering his claim of ineffective assistance of counsel.
    [18-20] Our ineffective assistance of counsel jurisprudence
    stems from Strickland v. Washington, 32 which held that a crimi-
    nal defendant’s rights under U.S. Const. amend. VI may be
    violated if he or she is afforded inadequate representation by
    his or her attorney. 33 Under Strickland, we apply a two-step
    analysis for determining whether a defendant is entitled to
    postconviction relief based on a claim of ineffective assistance
    of counsel. 34 Although both elements must be met for a meri-
    torious claim of ineffective assistance of counsel, an appellate
    court may address them in either order. 35
    [21-25] To prevail under Strickland, a defendant must first
    show that his or her attorney’s performance was deficient,
    meaning it objectively did not equal that of a lawyer with ordi-
    nary training and skill in criminal law. 36 Second, the defend­
    ant must show that he or she suffered prejudice as a result
    of the attorney’s deficient performance. 37 Prejudice means
    31
    Cinatl v. Prososki, 
    307 Neb. 477
    , 
    949 N.W.2d 505
     (2020).
    32
    See Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984).
    33
    See Dalton, 
    supra note 25
    .
    34
    See 
    id.
     Accord Shinn v. Kayer, ___ U.S. ___, 
    141 S. Ct. 517
    , 
    208 L. Ed. 2d 353
     (2020).
    35
    See State v. Clausen, 
    307 Neb. 968
    , 
    951 N.W.2d 764
     (2020).
    36
    
    Id.
     See, also, Andrus v. Texas, ___ U.S. ___, 
    140 S. Ct. 1875
    , 
    207 L. Ed. 2d 335
     (2020).
    37
    See Clausen, 
    supra note 35
    .
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    a reasonable probability that but for the attorney’s deficient
    performance, the result of the proceeding would have been
    different. 38 A reasonable probability is a substantial probabil-
    ity sufficient to undermine confidence in the outcome. 39 We
    review these two prongs with a strong presumption that coun-
    sel’s actions were reasonable. 40
    [26] Where, as here, the defendant was represented by the
    same attorney at trial and on direct appeal, the defendant is not
    procedurally barred from raising trial counsel’s ineffectiveness
    in a motion for postconviction relief. 41
    (i) Defense Counsel’s Familial
    Relationship With Victim
    Malone’s first allegation of ineffective assistance of counsel
    is that his trial counsel’s personal familial relationship with
    Hart amounted to an actual conflict of interest that adversely
    affected the lawyer’s representation of Malone.
    [27,28] The phrase “conflict of interest” denotes a situa-
    tion in which regard for one duty tends to lead to disregard
    of another or where a lawyer’s representation of one client is
    rendered less effective by reason of his or her representation
    of another client. 42 When a defendant shows that “‘an actual
    conflict of interest’” burdened his or her attorney’s repre-
    sentation and affected the lawyer’s performance, we apply a
    “presumption of prejudice,” because it is difficult to measure
    38
    See Parnell, 
    supra note 4
    .
    39
    State v. Collins, 
    307 Neb. 581
    , 
    950 N.W.2d 89
     (2020). See, also, Shinn,
    supra note 34.
    40
    See State v. Weathers, 
    304 Neb. 402
    , 
    935 N.W.2d 185
     (2019). Accord
    Parnell, 
    supra note 4
    .
    41
    See State v. Devers, 
    306 Neb. 429
    , 
    945 N.W.2d 470
     (2020), cert. denied
    No. 20-6385, 
    2021 WL 231973
     (U.S. Jan. 25, 2021). See, also, State v.
    Senteney, 
    307 Neb. 702
    , 
    950 N.W.2d 585
     (2020).
    42
    State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
     (2013) (citing State v.
    Marchese, 
    245 Neb. 975
    , 
    515 N.W.2d 670
     (1994)).
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    the precise effect on the defense of representation corrupted by
    conflicting interests. 43
    According to Malone, his attorney was “a second, third, or
    fourth cousin” to one of Hart’s parents. Malone asserts that it
    was because of this actual conflict of interest that at trial the
    attorney did not effectively cross-examine Matthew Kelly, the
    Omaha police officer who arrived at the scene and arrested
    Malone a short time later, or raise Hart’s own negligence as a
    defense. For example, Malone notes that when explaining why
    he did not wish to raise Hart’s own negligence as a defense, the
    attorney allegedly stated it would “make . . . Hart look bad and
    upset [Hart’s] family.” Malone thus urges this court to apply a
    presumption of prejudice under Strickland based on his attor-
    ney’s familial relationship with Hart.
    a. Actual Conflict of Interest
    As an initial matter, we are unpersuaded that the famil-
    ial relationship between Malone’s attorney and the victim
    amounted to an actual conflict of interest.
    [29,30] We define an actual conflict of interest for Sixth
    Amendment purposes broadly. The phrase “actual conflict
    of interest” therefore encompasses any situation in which a
    defense counsel faces divided loyalties such that regard for
    one duty tends to lead to disregard of another. 44 An actual
    conflict of interest is one that adversely affects counsel’s
    performance. 45
    [31] While there are several types of conflicts of interest
    that could arise, where the issue is that the client’s interests
    43
    State v. Avina-Murillo, 
    301 Neb. 185
    , 197, 198, 
    917 N.W.2d 865
    , 875
    (2018) (quoting Strickland, 
    supra note 32
    ). See, also, Cuyler v. Sullivan,
    
    446 U.S. 335
    , 
    100 S. Ct. 1708
    , 
    64 L. Ed. 2d 333
     (1980).
    44
    Avina-Murilla, supra note 43. Accord State v. Jackson, 
    275 Neb. 434
    , 
    747 N.W.2d 418
     (2008).
    45
    See Avina-Murilla, supra note 43. See, also, Mickens v. Taylor, 
    535 U.S. 162
    , 
    122 S. Ct. 1237
    , 
    152 L. Ed. 2d 291
     (2002).
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    could conflict with the attorney’s personal interests, we deem it
    a personal interest conflict. 46 Malone raises a personal interest
    conflict because he argues that his attorney’s personal interests,
    by way of the familial relationship with Hart, prevented the
    attorney from adequately defending Malone.
    [32,33] A personal interest conflict is arguably the least con-
    sequential type of conflict that we recognize, because “when
    the attorney has a personal conflict, the attorney can still fulfill
    his or her duty of loyalty to a client, although doing so may
    be to the detriment of the attorney’s personal interest.” 47 We
    generally do not apply a presumption of prejudice to personal
    interest conflicts unless “‘the defendant shows that his or her
    defense counsel faced a situation in which conflicting loyalties
    pointed in opposite 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.’” 48
    Although we have never before considered whether a famil-
    ial relationship similar to the one presented here qualifies as an
    actual conflict of interest, we have considered other personal
    interest conflicts. In State v. Edwards, 49 we held that a defense
    attorney’s friendship with a material prosecution witness did
    not amount to an actual conflict of interest. This determina-
    tion was because “[t]he record simply [did] not support a
    finding that [the attorney] had such a loyalty to [the witness]
    that would have tempted him at trial to act against [the defend­
    ant’s] interests.” 50
    46
    See Avina-Murillo, 
    supra note 43
    .
    47
    
    Id. at 198
    , 917 N.W.2d at 875.
    48
    Id. at 202, 917 N.W.2d at 877-78 (quoting State v. Cotton, 
    299 Neb. 650
    ,
    
    910 N.W.2d 102
     (2018), disapproved on other grounds, Avina-Murillo,
    
    supra note 43
    ). See, also, State v. Edwards, 
    294 Neb. 1
    , 
    880 N.W.2d 642
    (2016).
    49
    Edwards, 
    supra note 48
    .
    50
    
    Id. at 22
    , 880 N.W.2d at 655.
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    Likewise, in State v. Jackson, 51 no actual conflict of interest
    was found where the defendant had alleged that the friendship
    between his trial counsel and appellate counsel prevented the
    appellate counsel from adequately raising the trial counsel’s
    ineffectiveness. We held that because “[the defend­ant] fails
    to point to evidence which might show that [trial counsel
    and appellate counsel] had a personal relationship,” there is
    nothing to suggest that appellate counsel had divided loyalties
    that might have resulted in his adjusting his appeal strategy to
    protect his friend. 52
    In contrast, in State v. Armstrong, 53 we found an actual con-
    flict of interest based on defense counsel’s declining to ask for
    a continuance at trial. This determination was because defense
    counsel feared that he would personally face criminal or ­ethical
    sanctions. 54 As a result, we found that the defendant “faced
    a situation in which conflicting loyalties pointed in opposite
    directions,” and this accordingly raised a presumption of preju-
    dice under Strickland. 55
    Perhaps the best analogy to this case is State v.
    ­Avina-Murillo. 56 There, a conflict arose during trial when the
    defense counsel and defendant were found to have eaten lunch
    at a restaurant together with the victim and his family. The trial
    court made a record of the incident, noting that no-contact and
    sequestration orders had been in place prohibiting any contact
    between the defense counsel and the victim’s family. Defense
    counsel lied about the incident to the trial court, then declined
    to call the victim’s family to testify at trial. We found that
    51
    Jackson, supra note 44.
    52
    Id. at 442, 747 N.W.2d at 430.
    53
    State v. Armstrong, 
    290 Neb. 991
    , 
    863 N.W.2d 449
     (2015), disapproved on
    other grounds, Avina-Murillo, 
    supra note 43
    .
    54
    See 
    id.
    55
    Id. at 1016, 863 N.W.2d at 468.
    56
    Avina-Murillo, 
    supra note 43
    .
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    despite the defense counsel’s apparent personal interest con-
    flict, it “[did] not rise to the level of demanding a presumption
    of prejudice.” 57
    Similarly, here, the alleged personal interest conflict is
    based on a relationship between the defense counsel and the
    victim’s family. Hart is apparently the son of “a second, third,
    or fourth cousin” to Malone’s attorney. We note that other
    jurisdictions have categorically found similarly distant degrees
    of familial relationship insufficient to present an actual conflict
    of interest, stating, for example, that “a familial relationship
    more distant than the third degree of relationship shared by
    defense counsel and the victim of a crime is insufficient to
    present a conflict of interest so as to disqualify defense counsel
    from representing the accused.” 58 We also note that pursuant to
    our code of judicial ethics, a judge is not necessarily disquali-
    fied from a case due to a familial relationship with the victim
    unless the victim is at least a first cousin or equivalent degree
    of relation to the victim. 59
    Not only is Malone’s attorney at best a distant relative to
    Hart, there is nothing in the record to suggest that the attorney
    felt any loyalty to Hart or to Hart’s immediate family. The
    attorney acknowledged that he had never met Hart and that
    he did not expect the relationship “would affect [his] repre-
    sentation of . . . Malone.” We see no basis for finding that the
    attorney’s familial relationship led him to disregard his repre-
    sentation of Malone.
    Thus, to the extent Malone’s attorney had a personal interest
    conflict in his representation at trial, we find that it was not an
    actual conflict of interest that would give rise to a presumption
    of prejudice under Strickland.
    57
    Id. at 203, 917 N.W.2d at 878.
    58
    See, e.g., State v. Vance, 
    207 W. Va. 640
    , 647, 
    535 S.E.2d 484
    , 491 (2000).
    59
    See Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(2). See, also,
    Thompson v. Millard Pub. Sch. Dist. No. 17, 
    302 Neb. 70
    , 
    921 N.W.2d 589
    (2019).
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    b. Waiver
    Moreover, we find that even if there had been an actual con-
    flict of interest, Malone effectively waived such conflict.
    [34-36] 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. 60 There is no formal­
    istic 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 cir-
    cumstances appearing in the record. 61 A voluntary waiver,
    knowingly and intelligently made, must affirmatively appear
    from the record, before a court may conclude that a defend­
    ant has waived a right constitutionally guaranteed or granted
    by statute. 62
    [37,38] 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. 63 Under a clearly erroneous standard of
    review, an appellate court does not reweigh the evidence, but
    the appellate court decides the ultimate question independent
    of the trial court’s ruling. 64
    According to Malone, the district court erred in accepting
    his waiver of the defense counsel’s personal interest conflict
    because the relinquishment in open court was not knowing and
    intelligent. According to Malone, he had only been made aware
    of the familial relationship between his attorney and Hart on
    the day of the hearing. By stating that he had discussed the
    conflict with Malone and Malone’s family, Malone claims that
    60
    Cotton, supra note 48.
    61
    Id.
    62
    Id.
    63
    State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
     (2020).
    64
    Cotton, 
    supra note 48
    .
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    his attorney “misrepresented” their conversations. 65 Malone
    claims that he “was stunned in court by the revelation” from
    his attorney. 66
    Although Malone may now claim that he was stunned
    by his attorney’s revelation, the transcript from his hearing
    indicates otherwise. After the attorney’s disclosure that he
    was distantly related to the victim, Malone was asked by the
    court whether he had any issue with his attorney’s continuing
    representation of him. Malone responded, “No, ma’am,” that
    he had no issue.
    Even if, as Malone now alleges, it was not until the day
    of the hearing that he learned of his attorney’s potential per-
    sonal interest conflict, he effectively waived such conflict by
    stating that he understood his attorney’s disclosure and still
    had no issues. Malone raised no other issues pertaining to a
    conflict of interest besides what he heard and agreed to in
    open court.
    It was therefore not clear error for the district court to con-
    clude, based on this conversation, that Malone’s waiver was
    knowing, intelligent, and voluntary. The district court did not
    err in finding the personal interest conflict waived.
    Malone’s argument that prejudice should be presumed based
    on his defense attorney’s personal interest conflict is accord-
    ingly without merit.
    (ii) Failure to Raise Defense Based
    on Hart’s Own Negligence
    Malone’s next allegation of ineffective assistance of counsel
    is based on his counsel’s failure to raise Hart’s own negligence
    as a defense.
    [39] Malone acknowledges that under longstanding prin-
    ciple, “contributory negligence is not a defense to the charge
    of motor vehicle homicide. . . . Rather, [for purposes of a
    65
    Brief for appellant at 33.
    66
    Id. at 34.
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    defend­ant’s liability,] the issue is whether a defendant’s viola-
    tion of the law was a contributing factor to the death.” 67
    [40] Still, Malone cites State v. Ring 68 for the proposition
    that if a decedent’s negligence is the sole proximate cause
    of his death, then the decedent’s negligence is a defense. 69
    According to Malone, Hart’s own negligence in “laying down”
    his motorcycle when he saw Malone’s car approaching was
    a “superseding and intervening cause of [Hart’s] injuries.” 70
    Malone contends that his trial counsel should have argued that
    by laying down his motorcycle, Hart had violated provisions
    of Nebraska’s motorcycle operator manual. Malone alleges
    that if his trial counsel would have raised this argument, a
    traffic accident reconstructionist Malone had hired would have
    testified that “Hart’s actions were ‘extremely dangerous’ and,
    without . . . Hart’s own negligence, the collision never would
    have occurred.” 71
    [41-44] But Malone’s argument misconstrues the concept
    of proximate causation as it relates to this record. Proximate
    causation refers to the basic requirement that there must be
    some direct relation between the injury asserted and the inju-
    rious conduct alleged. 72 A “proximate cause” is a moving or
    effective cause or fault which, in the natural and continuous
    sequence, unbroken by an efficient intervening cause, pro-
    duces a death or injury and without which the death or injury
    67
    State v. Brown, 
    258 Neb. 330
    , 340, 
    603 N.W.2d 419
    , 427 (1999) (citing
    State v. Ring, 
    233 Neb. 720
    , 
    447 N.W.2d 908
     (1989), disapproved on other
    grounds, State v. Irish, 
    292 Neb. 513
    , 
    873 N.W.2d 161
     (2016); State v.
    William, 
    231 Neb. 84
    , 
    435 N.W.2d 174
     (1989); and State v. Rotella, 
    196 Neb. 741
    , 
    246 N.W.2d 74
     (1976)).
    68
    Ring, 
    supra note 67
    .
    69
    See, also, Brown, 
    supra note 67
    ; William, 
    supra note 67
    ; State v. Meints,
    
    212 Neb. 410
    , 
    322 N.W.2d 809
     (1982).
    70
    Brief for appellant at 24.
    71
    Id. at 23.
    72
    Irish, supra note 67.
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    would not have occurred. 73 Criminal conduct is a proximate
    cause of the event in question if the event would not have
    occurred but for that conduct. 74 Conversely, conduct is not a
    proximate cause of an event if that event would have occurred
    without such conduct. 75
    Here, it is clear that Hart’s action was not the sole proxi-
    mate cause of the collision. Even if Hart was not acting with
    due care when he laid down his motorcycle, that action was
    defensive. It was Hart’s attempt to stop his motorcycle before
    it collided with Malone’s car, which, after having run a red
    light and pulling directly into the path of Hart’s motorcycle,
    was rapidly approaching.
    Laying down one’s motorcycle may seem a dangerous,
    extraordinary maneuver if performed in isolation; however,
    Hart’s action was not performed in isolation, but instead was
    in response to an imminent, life-threatening danger precipitated
    by Malone. In that situation, it was entirely foreseeable that
    Hart would take defensive action to protect himself. Hart’s lay-
    ing down his motorcycle was therefore not the sole proximate
    cause of his own death.
    Malone also asserts in his brief that Hart’s negligence “acted
    as a superseding and intervening cause of [Hart’s] injuries.” 76
    We acknowledge that we have made reference to independent
    intervening causes in some of our prior cases where the alleged
    negligence of the victim was at issue. 77 But it appears that lan-
    guage was first used in cases in which the defendant alleged
    that a third party had caused the victim’s death. 78 Because
    the doctrine of efficient intervening cause focuses on whether
    73
    
    Id.
    74
    
    Id.
    75
    
    Id.
    76
    Brief for appellant at 24.
    77
    See, e.g., Ring, 
    supra note 67
    .
    78
    See, Hoffman v. State, 
    162 Neb. 806
    , 
    77 N.W.2d 592
     (1956); Birdsley v.
    State, 
    161 Neb. 581
    , 
    74 N.W.2d 377
     (1956).
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    the acts of a third party broke a causal connection, 79 we believe
    that doctrine has no role to play when, as here, it is contended
    only that the victim’s negligence caused his or her death. In
    such a case, a victim’s negligence cannot absolve the defendant
    of a motor vehicle homicide charge unless the actions of the
    victim were the sole proximate cause of the accident. 80
    There is no merit to Malone’s contention regarding a defense
    based on Hart’s action as the sole proximate cause of his own
    death. As we stated in a similar context, “‘[t]his effort to shift
    the blame for what occurred to the [decedent] by introducing an
    argument based upon proximate cause does not impress us.’” 81
    (iii) Failure of Adequate
    Cross-Examination
    Malone continues his ineffective assistance of counsel argu-
    ment by next raising his trial counsel’s cross-examination of
    Kelly, the Omaha police officer who had arrived at the scene
    of the collision and arrested Malone.
    Kelly testified at trial as to Malone’s impairment at the
    time of the collision. Malone’s attorney cross-examined Kelly.
    According to Malone, this cross-examination was inadequate
    because it failed to raise Kelly’s “multiple contradictory state-
    ments, statements of facts unsupported by any evidence or
    testimony, and statements of his own subjective opinion unsup-
    ported by any other evidence.” 82 If a “competent” cross-
    examination would have been performed, Malone alleges that
    his trial counsel could have impeached Kelly “and ma[de] it
    clear to the jury that he was not a trustworthy witness worthy
    of belief.” 83
    79
    See Jacobs Engr. Group v. ConAgra Foods, 
    301 Neb. 38
    , 
    917 N.W.2d 435
    (2018).
    80
    See Brown, 
    supra note 67
    .
    81
    William, 
    supra note 67
    , 
    231 Neb. at 90
    , 
    435 N.W.2d at 178
     (quoting State
    v. Machmuller, 
    196 Neb. 734
    , 
    426 N.W.2d 69
     (1976)).
    82
    Brief for appellant at 26.
    83
    
    Id.
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    This allegation is without merit. Not only are Malone’s alle-
    gations of factual misstatements in Kelly’s testimony largely
    unfounded according to the appellate record, Malone does not
    explain what he believes a “competent” trial counsel would
    have said to further emphasize the alleged contradictions and
    misstatements in Kelly’s testimony. 84
    As such, Malone failed to allege sufficient facts to support
    his allegation. 85 The district court thus did not err in rejecting
    this argument.
    (iv) Failure to Move to Suppress
    Fourth, Malone contends that his trial counsel was ineffec-
    tive for failing to file certain pretrial motions.
    a. Autopsy Photograph
    Malone first identifies autopsy photographs of Hart that
    were introduced at trial, but that Malone claims were unduly
    prejudicial and so should have been suppressed under 
    Neb. Rev. Stat. § 27-403
     (Reissue 2016). Although Malone’s attor-
    ney did not move prior to trial to suppress the photographs, he
    did object at trial. Malone now argues his attorney was inef-
    fective for not having had the photographs suppressed at trial
    and not having adequately raised the issue on direct appeal.
    According to Malone, his trial counsel “showed a lack of
    preparation to support his objection [at trial]” 86 and “did not
    raise the issue, leaving the prosecutor’s vague and inaccurate
    argument unchallenged.” 87
    [45,46] Even if his trial counsel and appellate counsel had
    challenged the photographs in the manner Malone now sug-
    gests, Malone has not shown that it would have changed the
    outcome of his trial. As we observed recently, “gruesome
    84
    Cf. State v. Custer, 
    298 Neb. 279
    , 
    903 N.W.2d 911
     (2017).
    85
    See Strickland, 
    supra note 32
    .
    86
    Brief for appellant at 28.
    87
    Id. at 29.
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    crimes produce gruesome photographs.” 88 The simple fact that
    a photograph is gruesome does not make the photograph inad-
    missible as unduly prejudicial. 89 If the State lays proper foun-
    dation, photographs that illustrate or make clear a controverted
    issue in a homicide case are admissible, even if gruesome. 90
    Here, Malone does not dispute that the State laid a proper
    foundation for the autopsy photographs, because they were
    offered during the testimony of the coroner who examined
    Hart. The autopsy photographs were offered during the coro-
    ner’s testimony to aid the coroner in describing Hart’s injuries.
    Among other things, the nature of these injuries were relevant
    to the manner in which Hart had died. Malone challenged
    whether he or Hart had collided with the other. Through the
    coroner’s testimony and the autopsy photographs, the State
    sought to show it was Malone who collided with Hart and not
    the other way around.
    The photographs were also relevant to other issues at trial,
    such as the speed at which Hart had been traveling and whether
    Hart attempted to avoid the collision. Malone has accordingly
    failed to show that he was prejudiced, and his argument with
    respect to these photographs is thus without merit.
    b. Stephen Venteicher’s Testimony
    Malone next challenges the testimony of Stephen Venteicher,
    the other Omaha police officer who arrived at the scene of the
    collision and aided in Malone’s arrest a short time later.
    [47,48] Malone alleges that Venteicher’s testimony at trial
    about his interactions with Malone during the arrest should
    have been suppressed under Miranda v. Arizona. 91 Miranda
    88
    State v. Britt, 
    305 Neb. 363
    , 372, 
    940 N.W.2d 270
    , 277 (2020) (citing State
    v. Stelly, 
    304 Neb. 33
    , 
    932 N.W.2d 857
     (2019)).
    89
    See Britt, 
    supra note 88
    .
    90
    
    Id.
    91
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
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    prohibits the use of statements derived during custodial inter-
    rogation unless the prosecution demonstrates the use of pro-
    cedural safeguards that are effective to secure the privilege
    against self-incrimination. 92 The Miranda safeguards come into
    play whenever a person in custody is subjected to either
    express questioning or its functional equivalent. 93
    The interactions at issue occurred around the time
    Venteicher apprehended Malone upon finding him a distance
    from the collision site. After stopping Malone, Venteicher
    pulled Malone out of his car, put him on the ground, and
    handcuffed him. Then, before Venteicher read Miranda warn-
    ings to Malone, Malone stated he had consumed “a few beers
    earlier.” Venteicher testified that Malone made this statement,
    and Malone argues his defense counsel should have objected
    and moved to suppress the statement on grounds that it was
    obtained in violation of Miranda.
    [49] But as the State notes, even if Malone’s counsel
    had moved to suppress Venteicher’s testimony on Miranda
    grounds, only that testimony obtained during Venteicher’s
    custodial interrogation would have been subject to suppres-
    sion. 94 As indicated above, the only prejudicial testimony that
    Malone alleges was wrongfully obtained during this custodial
    interrogation was Malone’s assertion that he had consumed “a
    few beers earlier.” This statement was also recounted at trial
    by Kelly, and Malone has not raised a similar Miranda issue
    with respect to Kelly’s testimony. Moreover, there was ample
    other testimony and evidence offered at trial to support the
    conclusion that Malone was under the influence of alcohol
    or drugs at the time of the collision. Therefore, to the extent
    Venteicher’s testimony was inadmissible under Miranda, it
    was cumulative.
    92
    State v. Johnson, ante p. 331, 
    953 N.W.2d 772
     (2021).
    93
    
    Id.
    94
    See, id.; State v. Benson, 
    305 Neb. 949
    , 
    943 N.W.2d 426
     (2020).
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    Malone has not shown that he was prejudiced by any failure
    of counsel in not moving to suppress Venteicher’s testimony.
    c. Toxicology Report
    Malone additionally identifies a toxicology report that he
    alleges was offered in violation of 
    Neb. Rev. Stat. § 60-6
    ,201
    (Reissue 2010).
    After Malone was arrested, he voluntarily submitted a urine
    sample to police for testing. The test results were included in
    the police’s drug recognition examination and at trial. Kelly
    and Venteicher testified that the results of Malone’s urinaly-
    sis were consistent with the presence of alcohol and drugs in
    Malone’s system. Malone contends that his trial counsel should
    have moved to suppress the results of the urinalysis because its
    results were not valid.
    Section 60-6,201(3) states that “[t]o be considered valid,
    tests of blood, breath, or urine made under section 60-6,197
    . . . shall be performed according to methods approved by
    the Department of Health and Human Services.” One such
    Department of Health and Human Services (DHHS) rule states
    that “[t]he presence of a drug shall mean any laboratory con-
    firmatory test result, signal, or finding that shall be equal to or
    greater than the cutoff level.” 95 In that same DHHS rule, cutoff
    limits are prescribed for seven drugs: marijuana, cocaine, mor-
    phine, codeine, phencyclidine, amphetamines, and metham-
    phetamine. 96 “Cutoff level means the amount of drug detected
    which determines the absence or presence of drug.” 97
    Because the drugs found in Malone’s system—zolpidem,
    diphenhydramine, citalopram-escitalopram, and 7-aminoclo­
    nazepam—did not have prescribed cutoff limits, Malone claims
    they were not legally present in his system and the results
    95
    177 Neb. Admin. Code, ch. 7, § 002.01 (2007).
    96
    Id.
    97
    Id., § 001.10.
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    of the urinalysis were thus invalid under 
    Neb. Rev. Stat. § 60-6
    ,197 (Cum. Supp. 2020).
    As the State notes, Malone has not cited any authority for
    the proposition that all drugs must have cutoff limits pre-
    scribed. Indeed, the DHHS rule Malone cites expressly only
    prescribes cutoff limits for the seven drugs listed. 98 It does not
    follow, then, that because those seven drugs have cutoff limits
    prescribed, tests of all other drugs not listed are inherently
    invalid and their results cannot be used at trial. A better read-
    ing of the rule is that the seven drugs listed need to be tested
    according to the cutoff limits prescribed and that testing for
    other drugs simply does not have cutoff limits prescribed by
    that particular DHHS rule.
    Malone further contends that his urinalysis failed to com-
    port with quality controls. He cites another DHHS rule, which
    states that “[n]o test results shall be reported if a quality con-
    trol sample result is outside of acceptable limits.” 99 Malone
    then makes the following conclusory statement: “[T]here is no
    indication that a quality control sample was tested and no indi-
    cation of whether the quality control sample result was within
    the acceptable limits.” 100
    Malone’s argument here is unclear. It appears he is arguing
    that his trial counsel should have objected to the urinalysis on
    grounds that the test was not performed according to adequate
    quality control. But he offers no evidence that a quality control
    sample was not tested or that the quality control sample result
    was not within acceptable limits. Malone has therefore failed to
    meet his burden of showing that his counsel’s performance was
    deficient. This argument is without merit.
    (v) Failure to Move to Bifurcate
    Malone’s final allegation of ineffective assistance of coun-
    sel is that his trial counsel should have moved to bifurcate
    98
    See 
    id.,
     § 002.01.
    99
    Id., § 006.05D2.
    100
    Brief for appellant at 31.
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    trial between the first three counts and the fourth count with
    which he was charged.
    The fourth charge was significant, Malone contends, because
    it alleged that he had failed to use an ignition interlock device.
    By allowing that charge to be combined at trial with the other
    three charges, Malone alleges that he was forced to impliedly
    concede to the jury that he had previously been convicted of
    driving under the influence. The issue of whether Malone had
    driven under the influence was relevant to the first charge,
    motor vehicle homicide. 101 To prevent prejudice, Malone con-
    tends that his trial counsel should have moved to bifurcate
    trial between Malone’s fourth charge, failure to use an ignition
    interlock device, and his other three charges.
    The district court rejected Malone’s argument, reasoning
    that Malone’s attorney had entered a stipulation preventing the
    jury from hearing why Malone had been required to use an
    ignition interlock device. Pursuant to that stipulation, neither
    the State nor any witnesses testified about Malone’s previous
    three convictions for driving under the influence. Still, Malone
    contends that was not enough to avert prejudice and that the
    fourth charge should have been tried wholly separately because
    it “had no bearing on the other charges.” 102
    [50,51] Even if Malone’s counsel would have moved to
    bifurcate trial, it is questionable whether such motion would
    have been granted. Bifurcation of a trial is generally only
    appropriate where separate proceedings will do justice, avoid
    prejudice, and further the convenience of the parties and the
    court. 103 Whether claims should be bifurcated is generally
    within the discretion of the trial court. 104
    101
    See, 
    Neb. Rev. Stat. § 28-306
    (1) (Reissue 2016); State v. Valdez, 
    305 Neb. 441
    , 
    940 N.W.2d 840
     (2020).
    102
    Brief for appellant at 32.
    103
    See Webb v. Nebraska Dept. of Health & Human Servs., 
    301 Neb. 810
    ,
    
    920 N.W.2d 268
     (2018).
    104
    See, id.; Connelly v. City of Omaha, 
    278 Neb. 311
    , 
    769 N.W.2d 394
    (2009).
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    Here, the four charges at issue all stemmed from the same
    event. The convenience of the court and of at least one party,
    the State, was best served by litigating the issues all at once.
    As analyzed above, the parties made efforts to mitigate any
    prejudicial effect from trying the fourth charge with the first
    three. Malone has thus not shown that he was prejudiced by
    his counsel’s failure to move to bifurcate his trial with respect
    to the charge of driving without an ignition interlock device.
    Malone has failed to show that the district court abused its
    discretion in not bifurcating. This argument is without merit.
    (b) Claim of Prosecutorial Misconduct
    We turn to Malone’s argument that his constitutional rights
    at trial were violated by prosecutorial misconduct. According
    to Malone, the prosecutor engaged in misconduct by with-
    holding exculpatory evidence, allowing false testimony, and
    commenting inappropriately about Malone’s credibility as
    a witness.
    The district court initially rejected this argument as proce-
    durally barred. Malone then amended his motion to add an
    allegation that his appellate counsel had been ineffective for
    failing to raise the claims of prosecutorial misconduct on direct
    appeal. The district court again rejected Malone’s claim, rea-
    soning that even if not procedurally barred, the claim failed to
    “set forth the facts and applicable law to establish an objection
    based on any of these prosecutorial [misconduct] claims would
    . . . have been successful.” We agree.
    [52,53] Prosecutors are charged with the duty to conduct
    criminal trials in such a manner that the accused may have
    a fair and impartial trial, and prosecutors are not to inflame
    the prejudices or excite the passions of the jury against the
    accused. 105 When considering a claim of prosecutorial miscon-
    duct, an appellate court first considers whether the prosecutor’s
    acts constitute misconduct. 106
    105
    State v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
     (2020).
    106
    State v. Guzman, 
    305 Neb. 376
    , 
    940 N.W.2d 552
     (2020).
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    [54-57] 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. 107 While a prosecutor should prosecute with “‘earnest-
    ness and vigor’” and “‘may strike hard blows, he [or she] is
    not at liberty to strike foul ones.’” 108 A prosecutor’s conduct
    that does not mislead and unduly influence the jury is not
    misconduct. 109 But a prosecutor’s misconduct that prejudices a
    defendant’s right to a fair trial violates due process. 110
    (i) Withheld Evidence
    Malone’s first allegation of prosecutorial misconduct is that
    the prosecutor withheld exculpatory and impeachment evi-
    dence from him at trial.
    [58-60] Under Brady v. Maryland, 111 prosecutors owe a duty
    to disclose favorable evidence to criminal defendants prior
    to trial. 112 Favorable evidence includes both exculpatory and
    impeachment evidence. 113 The “‘suppression by the prosecu-
    tion of evidence favorable to an accused upon request violates
    due process where the evidence is material either to guilt or to
    punishment, irrespective of the good faith or bad faith of the
    prosecution.’” 114
    107
    See Price, 
    supra note 105
    .
    108
    State v. Gonzales, 
    294 Neb. 627
    , 645, 
    884 N.W.2d 102
    , 117 (2016)
    (quoting Berger v. United States, 
    295 U.S. 78
    , 
    55 S. Ct. 629
    , 
    79 L. Ed. 1314
     (1935)).
    109
    Price, 
    supra note 105
    .
    110
    See Gonzales, 
    supra note 108
    . See, also, Cotton, 
    supra note 48
    .
    111
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
     (1963).
    112
    See State v. Harris, 
    296 Neb. 317
    , 
    893 N.W.2d 440
     (2017).
    113
    
    Id.
     See, also, United States v. Bagley, 
    473 U.S. 667
    , 
    105 S. Ct. 3375
    , 
    87 L. Ed. 2d 481
     (1985) (citing Giglio v. United States, 
    405 U.S. 150
    , 
    92 S. Ct. 763
    , 
    31 L. Ed. 2d 104
     (1972)).
    114
    Harris, 
    supra note 112
    , 
    296 Neb. at 332
    , 893 N.W.2d at 452 (quoting
    Brady, 
    supra note 111
    ).
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    Citing Brady, Malone alleges that two pieces of evidence
    were wrongfully withheld by the prosecutor: a cruiser cam-
    era video of Kelly’s interactions while apprehending Malone
    and blood-stained clothing that Malone had worn at the time
    of the collision. Malone alleges that “[b]y withholding the
    cruiser video and blood stained clothing, the State deprived . . .
    Malone of strong evidence to impeach . . . Kelly and to defend
    against the false allegations of the prosecuting attorneys that he
    did not attempt to render assistance to [Hart].” 115
    Malone’s argument distorts the record. As the State notes, it
    does not appear that either the video or blood-stained clothing
    were withheld from Malone at trial. Indeed, one of Malone’s
    trial experts referenced the video in one of his reports, thus
    suggesting that it had been provided to him by Malone prior to
    trial. Nor was Malone’s blood-stained clothing withheld from
    him, for his defense counsel referenced it during his open-
    ing statement. Multiple witnesses for the defense, including
    Malone, also referenced it during their testimony.
    Malone’s argument here is unsupported by the record. His
    defense counsel was not deficient under Strickland for declin-
    ing to raise it.
    (ii) Misstated Evidence
    Malone’s second allegation of prosecutorial misconduct is
    that the prosecutor misstated the evidence offered at trial.
    Specifically, Malone alleges that the prosecutor stated
    falsely on four occasions that Malone had pulled directly into
    the intersection and that Hart had thus been left with no chance
    to avert the collision. We do not find these statements by the
    prosecutor to be misrepresentations of the record, considering
    that several witnesses did in fact testify that Hart lacked time
    to avert the collision.
    Malone also argues that the prosecutor falsely characterized
    Malone’s response after the collision. While the prosecutor
    115
    Brief for appellant at 36.
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    stated that Malone did not render aid to Hart after the collision
    and instead began picking up his car’s parts from the road to
    conceal his identity, Malone claims these statements were inac-
    curate. He additionally raises what he characterizes as inaccu-
    racies in the testimony of certain of the State’s witnesses. He
    contends that they testified falsely that Malone had run from
    his car after the collision.
    Again, the record does not support Malone’s argument. As
    the prosecutor indicated, it does not appear that Malone effec-
    tively rendered aid to Hart after the collision. It is true that
    some witnesses testified that Malone attempted to resuscitate
    Hart, but those witnesses generally agreed that the attempts
    had been unhelpful because of Hart’s dire condition and
    Malone’s apparent unfamiliarity with how to perform resus-
    citation. Other witnesses stated that Malone had rendered no
    aid at all. Therefore, the prosecutor’s statements that Malone
    did not render aid were not misstatements of the evidence
    at trial.
    Further, Malone offers no facts to rebut the prosecutor’s
    statement that Malone began picking up his car’s parts from
    the road soon after the collision in what appeared to be an
    attempt to conceal his identity. Because Malone’s argument
    here is again unsupported by the record, the argument fails.
    (iii) Comments About Malone’s Credibility
    Malone’s third allegation of prosecutorial misconduct is
    that at trial, the prosecutor commented inappropriately about
    Malone’s credibility as a witness.
    [61-64] As Malone notes, this court has recognized that a
    prosecutor should not express his or her personal belief or
    opinion as to the truth or falsity of any testimony or evidence
    or the guilt of the defendant. 116 However, a prosecutor is
    entitled to draw inferences from the evidence in presenting his
    116
    See Price, 
    supra note 105
    .
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    or her case, and such inferences generally do not amount to
    prosecutorial misconduct. 117
    “[W]hen a prosecutor’s comments rest on reasonably
    drawn inferences from the evidence, the prosecutor 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. Thus, in cases where the prosecu-
    tor 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 com-
    ments are expressions of the prosecutor’s personal beliefs
    rather than a summation of the evidence.” 118
    [65] The danger of a prosecutor expressing a personal opin-
    ion is that the jurors may infer the prosecutor has access to
    information not in evidence and that with that inference and
    the imprimatur of the government, the jury might rest a deci-
    sion on the government’s opinion rather than on its own view
    of the evidence. 119
    Malone’s argument here is without merit. He points to the
    statements discussed above that he alleges were wrongfully
    omitted from the bill of exceptions. Because those statements
    are not in the appellate record, we do not consider them. A bill
    of exceptions is the only vehicle for bringing evidence before
    an appellate court, and evidence which is not made a part of
    the bill of exceptions may not be considered. 120
    The only remaining argument that Malone raises is the pros-
    ecutor’s statements, during closing, that Malone had “weave[d]
    a story” and that his testimony was “ridiculous.” However,
    these appear to be “reasonably drawn inferences from the
    117
    State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
     (2019).
    118
    Price, 
    supra note 105
    , 306 Neb. at 55, 944 N.W.2d at 293 (quoting
    Gonzales, 
    supra note 108
    ).
    119
    Price, 
    supra note 105
    .
    120
    See, Ferrin, 
    supra note 8
    ; Western Ethanol Co., supra note 8.
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    308 Nebraska Reports
    STATE v. MALONE
    Cite as 
    308 Neb. 929
    evidence” presented at trial, and not statements about the pros-
    ecutor’s beliefs in the case. 121 They did not amount to prosecu-
    torial misconduct.
    The touchstone of a due process analysis in a case of alleged
    prosecutorial misconduct is the fairness of trial. 122 Because the
    prosecutor’s conduct in this case did not deprive Malone of a
    fair trial, we cannot say that it amounted to prosecutorial mis-
    conduct. We therefore cannot say that Malone’s trial counsel
    and appellate counsel were deficient for failing to raise the
    prosecutor’s conduct at trial.
    VI. CONCLUSION
    For the reasons stated above, we reject Malone’s argument
    concerning the bill of exceptions. We further find that the dis-
    trict court did not err in finding Malone was not entitled to an
    evidentiary hearing on his claims of ineffective assistance of
    counsel and prosecutorial misconduct. We accordingly affirm
    the district court’s orders in this case.
    Affirmed.
    121
    See Price, 
    supra note 105
    , 306 Neb. at 55, 944 N.W.2d at 293 (quoting
    Gonzales, 
    supra note 108
    ).
    122
    Gonzales, 
    supra note 108
    .