State v. Figures , 308 Neb. 801 ( 2021 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/23/2021 08:09 AM CDT
    - 801 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    State of Nebraska, appellee, v.
    Phillip P. Figures, appellant.
    ___ N.W.2d ___
    Filed April 2, 2021.     No. S-19-1210.
    1. Effectiveness of Counsel: Appeal and Error. Assignments of error
    on direct appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate court will not
    scour the remainder of the brief in search of such specificity.
    2. Convictions: Appeal and Error. In an appeal of a criminal conviction,
    an appellate court reviews the evidence in a light most favorable to
    the prosecution.
    3. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    4. Right to Counsel: Appeal and Error. An appellate court reviews a
    trial court’s rulings on motions to withdraw as counsel and motions to
    dismiss appointed counsel and appoint substitute counsel for an abuse
    of discretion.
    5. Right to Counsel. When a defendant becomes dissatisfied with court-
    appointed counsel, unless he or she can show good cause to the court for
    the removal of counsel, his or her only alternative is to proceed pro se if
    he or she is competent to do so.
    6. ____. An indigent defendant’s right to have counsel does not give the
    defendant the right to choose his or her own counsel.
    7. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not
    enough to secure the appointment of substitute counsel.
    8. Pretrial Procedure: Appeal and Error. Unless granted as a matter of
    right under the Constitution or other law, discovery is within the discre-
    tion of a trial court, whose ruling will be upheld on appeal unless the
    trial court has abused its discretion.
    - 802 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    9. Trial: Juries: Appeal and Error. The retention or rejection of a juror
    is a matter of discretion for the trial court, and this rule applies both to
    the issue of whether a venireperson should be removed for cause and to
    the situation involving the retention of a juror after the commencement
    of trial; thus, the standard of review in a case involving discharge of a
    juror is whether the trial court abused its discretion.
    10. Trial: Juries. A trial court has broad discretion to discharge a juror for
    cause so long as the court has a legal or factual basis to believe that the
    juror cannot serve as an impartial juror.
    11. ____: ____. A court’s decision to discharge a juror is an abuse of discre-
    tion if it is without factual support or for a legally irrelevant reason.
    12. Trial: Waiver. Whether a defendant could and, in fact, did waive his
    or her right to attend all stages of his or her trial presents a question
    of law.
    13. Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court has an obligation to resolve the questions independently
    of the conclusion reached by the trial court.
    14. Constitutional Law: Trial: Waiver. A defendant’s right to be present
    at trial may be waived, but any waiver of this right must be knowing
    and voluntary.
    15. Waiver: Words and Phrases. A waiver is the voluntary and intentional
    relinquishment of a known right, privilege, or claim, and may be dem-
    onstrated by or inferred from a person’s conduct.
    16. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the Nebraska
    Evidence Rules and judicial discretion is involved only when the rules
    make discretion a factor in determining admissibility.
    17. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
    Rules commit the evidentiary question at issue to the discretion of the
    trial court, an appellate court reviews the admissibility of evidence for
    an abuse of discretion.
    18. Evidence: Waiver: Appeal and Error. A party who fails to make a
    timely objection to evidence waives the right on appeal to assert preju-
    dicial error concerning the evidence received without objection.
    19. Trial: 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
    would surely have been rendered, but, rather, whether the actual guilty
    verdict rendered in the questioned trial was surely unattributable to
    the error.
    20. Trial: Evidence: Appeal and Error. Erroneous admission of evi-
    dence is harmless error and does not require reversal if the evidence is
    - 803 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    cumulative and other relevant evidence, properly admitted, supports the
    finding by the trier of fact.
    21.   Motions for Mistrial: Appeal and Error. An appellate court will not
    disturb a trial court’s decision whether to grant a motion for mistrial
    unless the court has abused its discretion.
    22.   Criminal Law: Motions for Mistrial. A mistrial is properly granted in
    a criminal case where an event occurs during the course of trial which
    is of such a nature that its damaging effect cannot be removed by proper
    admonition or instruction to the jury and thus prevents a fair trial.
    23.   Prosecuting Attorneys: Appeal and Error. When considering a claim
    of prosecutorial misconduct, an appellate court first considers whether
    the prosecutor’s acts constitute misconduct.
    24.   Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
    concludes that a prosecutor’s acts were misconduct, the court next
    considers whether the misconduct prejudiced the defendant’s right to a
    fair trial.
    25.   Prosecuting Attorneys: Juries. A prosecutor should not make argu-
    ments calculated to appeal to the prejudices of the jury and should
    refrain from arguments which would divert the jury from its duty to
    decide the case on the evidence.
    26.   Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
    prejudices a defendant’s right to a fair trial when the misconduct so
    infects the trial that the resulting conviction violates due process.
    27.   Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
    prejudicial depends largely upon the context of the trial as a whole.
    28.   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, and 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 essen-
    tial elements of the crime beyond a reasonable doubt.
    29.   Criminal Law: Evidence: Confessions: Proof. A voluntary confession
    is insufficient, standing alone, to prove that a crime has been commit-
    ted, but that it is competent evidence of that fact and may, with slight
    corroboration, establish the corpus delicti as well as the defendant’s
    guilty participation.
    30.   Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
    Whether cumulative error deprived a criminal defendant of his or her
    Sixth Amendment right to a trial by an impartial jury presents a question
    of law to be reviewed de novo.
    - 804 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    31. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of counsel may be determined on direct appeal is a
    question of law.
    32. ____: ____. 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 deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
    33. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
    ineffective assistance of counsel is raised in a direct appeal, the appel-
    lant is not required to allege prejudice; however, an appellant must make
    specific allegations of the conduct that he or she claims constitutes defi-
    cient performance by trial counsel.
    34. 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.
    Appeal from the District Court for Douglas County: Thomas
    A. Otepka, Judge. Affirmed.
    Peder Bartling, of Bartling Law Offices, P.C., L.L.O., 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.
    Cassel, J.
    I. INTRODUCTION
    In this direct appeal, Phillip P. Figures challenges his con-
    victions, pursuant to a jury verdict, for first degree murder and
    use of a firearm to commit a felony. Figures presents numerous
    assignments of error aimed at the trial court, the sufficiency of
    the evidence presented, and his allegedly ineffective trial coun-
    sel. Because we find no reversible error or abuse of discretion,
    we affirm.
    - 805 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    II. BACKGROUND
    1. Charges
    The State charged Figures with first degree murder, a Class
    IA felony, 1 and use of a firearm to commit a felony, a Class
    IC felony. 2 After Vanessa Figures, Figures’ then spouse, pro-
    vided a statement to police, he became a suspect in Fredrick
    Green’s death in Omaha, Nebraska, on July 15, 2018. Charges
    soon followed.
    Citing Vanessa’s statement and other corroborating evi-
    dence, the State alleged that Figures ordered Rufus Dennis
    to kill Green to ensure that Green would not “snitch” to the
    police. According to Vanessa, Green was home when Figures
    and Dennis attempted to burglarize Green’s house.
    2. Trial Events
    Figures was tried by a jury. The trial is summarized below.
    Additional facts pertinent to Figures’ assigned errors are pre-
    sented in the analysis.
    (a) The State’s Case
    Vanessa served as the State’s primary witness. The State
    corroborated Vanessa’s testimony with investigators’ testimony.
    The State also endeavored to disprove that other people may
    have committed the murder.
    (i) Vanessa’s Testimony
    At the time of the murder, Vanessa lived with Figures as
    his wife. Before the trial, they divorced. In this section, we set
    forth the facts that she testified to at trial.
    Recounting the days leading up to the murder, Vanessa paid
    for all the living expenses for Figures and herself. Figures
    was unemployed and did not contribute to their finances.
    Becoming upset with the financial situation, Vanessa demanded
    that Figures “get on [his] feet and help [her] pay these
    1
    
    Neb. Rev. Stat. § 28-303
     (Reissue 2016).
    2
    
    Neb. Rev. Stat. § 28-1205
     (Reissue 2016).
    - 806 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    bills.” Figures responded that he and Dennis planned on get-
    ting money by burglarizing Green’s house, which, according to
    Figures, contained an estimated $50,000.
    On the day of the murder, Figures left Vanessa’s house in a
    rush after it was reported to him that Green had left his home.
    When Figures returned in the afternoon, his “adrenaline [was]
    going.” Figures said, “‘Rufus killed him . . . Fred Green, he
    killed him.’”
    Figures explained that the burglary had gone wrong; Green
    was home. After Figures and Dennis entered through an
    unlocked door to Green’s house, they found Green talking
    on a phone. Dennis pointed a gun at Green, who responded,
    “‘This is Pooh, this is Pooh on the phone right now, it’s cool
    . . . .’” Dennis’ sister, Winnie Dennis, was known by the
    name “Pooh.”
    Figures forced Green into the basement. Figures then
    assaulted Green. Figures “tased him so much that . . . [t]he
    back flew off the taser and the batteries popped out.” Figures
    recovered the taser’s batteries, but not the back of the taser.
    Figures then instructed Dennis to guard Green while Figures
    searched the home. Soon after, Dennis shot Green in the leg.
    Figures returned to the basement, and Dennis said, “‘I got to
    kill him, he’s gonna snitch . . . .’” Figures responded, “‘Kill
    him then, cuz.’” Dennis shot Green three or four times, killing
    him. Before returning to Vanessa’s house, Figures took $2,000
    and a gold necklace from Green’s house.
    To cover his tracks, Figures buried the necklace in the yard
    of Vanessa’s house, dumped the clothes he was wearing during
    the murder at a nearby carwash, changed his phone number,
    ensured that Dennis got rid of the murder weapon, and went to
    a state park.
    In the days following the murder, Figures became “more and
    more paranoid,” resulting in hostile behavior toward Vanessa.
    On July 26, 2018, Figures’ temper apexed and he moved out
    of Vanessa’s house. However, Figures continued to call and
    text Vanessa, demanding that she “keep [her] mouth shut.”
    - 807 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    Figures later returned to Vanessa’s house and threatened,
    “‘Don’t make me kill you, Vanessa.’”
    Fearing for her life, Vanessa retrieved Green’s necklace
    from the yard and drove to the Papillion Police Department in
    Papillion, Nebraska. Vanessa gave a detailed statement to the
    Papillion Police Department and, later, to the Omaha Police
    Department, featuring the information she testified to at trial.
    (ii) Corroborating Evidence
    The State amplified Vanessa’s credibility by corroborat-
    ing her testimony with the findings of its investigation. The
    State used a collection of law enforcement investigators to
    present the following: Winnie’s jailhouse phone call, Green’s
    autopsy report, the taser’s back piece, video footage of Figures
    allegedly throwing away the clothes he was wearing during
    the murder, Figures’ interviews with investigators, cell phone
    records, DNA evidence, and cell tower metadata showing
    Figures near Green’s house around the time of the murder. The
    context surrounding each piece of evidence will be addressed
    in turn.
    First, Investigator Wendi Dye explained that the front
    door to Green’s house was unlocked, and she described the
    location of Green’s body and the evidence collected at the
    scene. Additionally, two police officers, Patrick Dempsey and
    Beau Taylor, recounted how Vanessa’s statement aided the
    investigation. For instance, Vanessa’s statement alerted them
    to the taser’s back piece, which was later recovered from
    Green’s basement.
    Next, a coroner discussed Green’s autopsy. She explained
    that Green died from three gunshot wounds to the head and
    chest. Green also suffered a gunshot to the knee.
    The State played a recorded phone call between Green
    and Winnie. Because Winnie was then incarcerated, the call
    was recorded by the correctional facility. In the recording,
    Green said, “Pooh’s on the phone . . . Pooh, say some-
    thing to your brother.” Without hanging up the phone, Green
    stopped talking.
    - 808 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    The State displayed video surveillance footage from a car-
    wash. The footage allegedly showed Figures dumping the
    clothes he was wearing during the murder in the carwash’s trash
    bin. However, investigators were unable to recover the clothes
    before a sanitation truck collected the bin’s contents.
    The State also played a redacted version of Figures’ first
    interview with Investigator Ryan Hinsley. In the video, Figures
    claimed that he was putting a stereo system into his sister’s car
    on the day of the murder. Also, Figures denied knowing Dennis
    or having any knowledge of the murder. However, Hinsley
    testified that, in a followup interview, Figures admitted that
    he knew who the “killer” was and that he could provide more
    information to the investigators. For instance, Figures claimed
    that the “killer” dumped Green’s cell phone in a trash can,
    sewer, or other location, but would not be any more specific.
    Based on this information, investigators found Green’s phone
    in a sewer drain near Vanessa’s house.
    Figures consented to a police search of his cell phone
    and provided a DNA sample. Police officer Oscar Dieguez
    downloaded the contents of Figures’ phone and testified to its
    contents alongside the contents of Dennis’ and Vanessa’s cell
    phones. Dieguez pointed out that Figures’ phone communi-
    cated with Dennis’ phone multiple times before, during, and
    after the day of the murder. Dieguez also verified the threaten-
    ing text messages that Figures sent to Vanessa.
    A DNA analyst testified regarding the DNA testing of 17
    items. Notably, Green’s and another person’s DNA were found
    on some of the items. While Figures was not a DNA contribu-
    tor on a few items, testing of Figures’ DNA was inconclusive
    on other items.
    Finally, investigators used cell tower metadata to show that
    Figures was near Green’s house during the time of the mur-
    der. Both a telecommunications representative and an agent
    with the Federal Bureau of Investigation reviewed metadata
    from Omaha cell towers and concluded that Figures’ cell
    phone traveled near Green’s house before and after the murder.
    - 809 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    Because the phone was inactive during the time the State
    believed the murder occurred, neither witness could specifi-
    cally pinpoint Figures’ phone to be at Green’s house. Another
    telecommunications representative confirmed that Figures
    changed his phone number following the murder.
    (iii) Other Witnesses’ Testimony
    The State presented three other witnesses: Cynthia Anderson,
    Green’s girlfriend; Akil Williams, Green’s business partner;
    and Jazmyne McMiller, Williams’ girlfriend. These three wit-
    nesses collectively discovered Green’s body, but none was
    able to place Figures at the crime scene. However, they estab-
    lished that Green’s murder occurred between 11:45 a.m. and
    1:30 p.m. on July 15, 2018.
    McMiller arrived first at Green’s house around 1:30 p.m.,
    and when no one answered the door, she remained on the
    porch. Soon after, Williams met McMiller on the porch, where
    they stayed. Finally, Anderson returned to the house. Anderson
    lived at the property and had left around 11:45 a.m. to donate
    plasma. Anderson entered the house and became alarmed
    when she saw that her bedroom’s dresser drawers were ran-
    sacked. McMiller and Williams then went inside the house, and
    Anderson discovered Green’s body in the basement.
    Anderson called the 911 emergency dispatch service and
    tried to resuscitate Green, but McMiller and Williams immedi-
    ately left the property. Williams testified that they left because
    he did not want to risk being around law enforcement while
    possessing a gun. After Williams hid the gun, McMiller and
    Williams returned to Green’s house, but law enforcement had
    arrived. All three witnesses complied with investigators and
    subjected themselves to interviews and DNA requests.
    (b) Defense Evidence
    Figures raised his defense during his cross-examination
    of the State’s witnesses—claiming that Williams murdered
    Green. Figures elicited testimony that Green and Williams sold
    drugs together and that Williams owed Green $8,000. Figures
    - 810 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    highlighted that Williams fled the scene after Green’s body was
    discovered instead of trying to resuscitate him. Figures also
    brought out that investigators declined to test Williams’ DNA
    against Green’s items. Finally, Figures presented video camera
    footage from Vanessa’s doorbell camera that showed he was
    not carrying the clothes that Vanessa had told police he wore to
    commit the crime. Figures rested without testifying or present-
    ing his own witnesses.
    3. Verdict and Sentences
    The jury found Figures guilty of first degree murder and use
    of a firearm to commit a felony. The court sentenced Figures
    to life imprisonment for the murder conviction and 40 to 50
    years’ imprisonment for the firearm conviction, to be served
    consecutively, with 476 days’ credit for time served on the lat-
    ter sentence.
    Represented by new counsel, Figures filed a timely appeal.
    III. ASSIGNMENTS OF ERROR
    Figures assigns 10 errors with multiple subparts. For pur-
    poses of clarity, we have reordered and consolidated the
    assignments.
    Two assignments address pretrial hearings. Figures attacks
    orders overruling his motions for appointment of successor
    trial counsel and Figures’ trial counsels’ motions to withdraw.
    Figures also claims the court abused its discretion by denying
    Figures’ request to be provided physical copies of discovery
    while incarcerated.
    Four assignments speak to trial events. Figures asserts that
    the court abused its discretion by sustaining the State’s motion
    to dismiss the “jury’s only African-American juror,” erred by
    allowing the State to present a portion of its case in chief in
    Figures’ absence, erred by permitting the State to introduce
    inadmissible hearsay testimony and character evidence over
    Figures’ objections, and erred in overruling his motion for
    a mistrial.
    - 811 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    Two assignments speak generally. Figures assigns that the
    evidence was insufficient to support his convictions. He also
    raises an assignment of cumulative error.
    [1] Finally, Figures assigns that he received ineffective
    assistance of trial counsel. We have held that assignments of
    error on direct appeal regarding ineffective assistance of trial
    counsel must specifically allege deficient performance, and
    an appellate court will not scour the remainder of the brief in
    search of such specificity. 3 We quote Figures’ assignment of
    errors in this section. However, for purposes of clarity, we will
    reorder and consolidate these assignments in the analysis.
    Figures assigns that his trial counsel failed
    1) to seek a trial continuance and/or to object/to seek to
    exclude witnesses that the State endorsed in its “Amended
    Motion For Leave To Endorse,” dated July 18, 2019; 2)
    to seek a continuance and/or to object/to seek to exclude
    digital forensic reports and/or to obtain an expert to
    counter said reports and related testimony; 3) to sub-
    ject Vanessa to rigorous cross-examination; 4) to subject
    Williams to rigorous cross-examination; 5) to move the
    Court for a sequestration order and prohibition order
    pursuant to State v. Hess . . . ; 6) to subject Dye to rig-
    orous cross-examination; 7) to posit the proper founda-
    tion objection to Hinsley’s testimony/to subject Hinsley
    to rigorous cross-examination; 8) to renew a pre-trial
    motion in limine/posit the proper objections to Dieguez’s
    “expert” testimony; 9) to file a motion for new trial pur-
    suant to § 29-2101; 10) to investigate Figures’ alibi wit-
    nesses and to present an alibi defense when so instructed;
    11) to posit proper objections to Dempsey and Taylor’s
    “expert” testimony; [and] 12) to secure DNA/GSR testing
    of Williams’ sample.
    With the exception of the ninth instance, the State concedes
    that the assignments of deficient conduct were sufficiently
    3
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
    - 812 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    specific. Based on this concession, we do not consider the
    specificity of the other assignments further.
    IV. STANDARD OF REVIEW
    [2,3] In an appeal of a criminal conviction, we review the
    evidence in a light most favorable to the prosecution. 4 An
    abuse of discretion occurs when a trial court’s decision is
    based upon reasons that are untenable or unreasonable or if
    its action is clearly against justice or conscience, reason, and
    evidence. 5 Additional standards of review will be set forth in
    the analysis.
    V. ANALYSIS
    1. Motion for New Counsel
    Figures first assigns that the court abused its discretion by
    denying his motions for appointment of successor trial coun-
    sel and, correspondingly, by denying Figures’ trial counsel’s
    and cocounsel’s motion to withdraw. Figures asserts that his
    motions were based upon his trial counsel’s incompetence
    and not rooted in mere dissatisfaction. Additionally, Figures
    argues that the court applied the wrong legal standard, claiming
    that the court applied an “exceptional circumstances” standard
    instead of a “good cause” standard.
    (a) Additional Facts
    Because Figures was indigent, counsel was appointed.
    However, Figures repeatedly moved the court to allow his
    court-appointed counsel to withdraw.
    First, Figures’ trial counsel, at Figures’ request, filed a
    motion on September 24, 2018. In a hearing on the motion,
    Figures explained that (1) he did not agree to his specific
    counsel representing him, (2) he was not comfortable with
    his attorney, (3) he wanted an attorney with more experience
    with murder trials, and (4) he disagreed with his counsel’s
    4
    State v. Dehning, 
    296 Neb. 537
    , 
    894 N.W.2d 331
     (2017).
    5
    State v. Martinez, 
    306 Neb. 516
    , 
    946 N.W.2d 445
     (2020).
    - 813 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    defense strategy. The court denied Figures’ motion, finding
    that “[Figures had not] shown good cause, and mere dissat-
    isfaction [was] not sufficient.” Figures then filed a document
    pro se on October 3, reciting the arguments he presented at
    the hearing and also claiming that his trial counsel should be
    removed because (1) his trial counsel was “hired [and] picked”
    by the prosecution, (2) he does not trust his counsel, (3) coun-
    sel was not communicating with him, and (4) trial counsel was
    not following his instructions. No hearing was held on this
    pro se document.
    In response to Figures’ filing another document pro se
    on May 6, 2019, Figures’ trial counsel again filed a motion
    to withdraw on May 23. At a hearing regarding the motion,
    Figures reiterated his arguments from the September 2018
    hearing and his pro se document. He added that his counsel
    failed to explain the ramifications of waiving his right to a
    speedy trial and that he could not review the entire discovery
    because of his poor working relationship with counsel. Figures
    also declined to represent himself pro se and explained that he
    could not afford private counsel.
    The district court overruled Figures’ motions, finding that
    Figures did not show good cause for removal of his counsel.
    While the court referenced “exceptional circumstances” when
    it explained to Figures what conditions would warrant new
    counsel, it ultimately cited State v. Bratton 6 and ruled that “[it
    did not] find that [there was] good cause shown for appoint-
    ment of new counsel.” Figures’ counsel noted in a later hear-
    ing on June 20, 2019, that Figures’ relationship with him had
    “significantly improved.”
    Figures’ cocounsel also moved to withdraw from the case
    on July 17, 2019. However, counsel’s basis for the motion
    was that he had taken a new job in another state. Because
    cocounsel’s motion was on the eve of trial, the court overruled
    his motion.
    6
    State v. Bratton, 
    187 Neb. 460
    , 
    191 N.W.2d 612
     (1971).
    - 814 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (b) Standard of Review
    [4] An appellate court reviews a trial court’s rulings on
    motions to withdraw as counsel and motions to dismiss
    appointed counsel and appoint substitute counsel for an abuse
    of discretion. 7
    (c) Discussion
    [5-7] When a defendant becomes dissatisfied with court-
    appointed counsel, unless he or she can show good cause to
    the court for the removal of counsel, his or her only alternative
    is to proceed pro se if he or she is competent to do so. 8 An
    indigent defendant’s right to have counsel does not give the
    defend­ant the right to choose his or her own counsel. 9 Mere
    distrust of, or dissatisfaction with, appointed counsel is not
    enough to secure the appointment of substitute counsel. 10
    Because Figures declined to proceed pro se or retain private
    counsel, Figures had to show that his trial counsel was incom-
    petent. Figures cited evidence that he disliked his trial counsel
    and that Figures did not have a good working relationship
    with him.
    The district court found that Figures failed to prove that his
    trial counsel was incompetent. The court applied the correct
    standard and did not abuse its discretion.
    2. Discovery
    Figures next assigns that the court abused its discretion
    by denying his request to obtain his own physical copies of
    discovery material. Figures asserts the court failed to base
    its decision on 
    Neb. Rev. Stat. § 29-1912
     (Reissue 2016).
    Figures also argues he could not properly review discovery
    7
    See, State v. Sierra, 
    305 Neb. 249
    , 
    939 N.W.2d 808
     (2020); State v.
    Weathers, 
    304 Neb. 402
    , 
    935 N.W.2d 185
     (2019).
    8
    Weathers, 
    supra note 7
    .
    9
    
    Id.
    10
    
    Id.
    - 815 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    because of his “dysfunctional” relationship with his trial
    counsel. 11
    (a) Additional Facts
    Figures requested copies of discovery that he could keep in
    his possession, instead of reviewing discovery with his attor-
    ney. Figures was incarcerated for the entirety of the proceed-
    ings. While not in the record, the State’s brief explained that
    Figures’ counsel followed local practice and agreed to not pro-
    vide physical copies of the discovery to Figures in exchange
    for the State providing more discovery than was required by
    statute. At oral arguments, Figures’ appellate counsel con-
    ceded that “traditionally, the way discovery is disseminated
    to a criminal defendant is through counsel.” The court denied
    Figures’ request.
    (b) Standard of Review
    [8] Unless granted as a matter of right under the Constitution
    or other law, discovery is within the discretion of a trial court,
    whose ruling will be upheld on appeal unless the trial court has
    abused its discretion. 12
    (c) Discussion
    Section 29-1912 “permit[s] the defendant to inspect and
    copy or photograph [discovery],” but does not mandate that
    the State provide physical copies of discovery for a defendant
    to possess while incarcerated. Figures’ counsel possessed the
    physical copies of the discovery, which Figures could review.
    Therefore, we find that the court did not abuse its discretion in
    denying his request.
    3. Juror Dismissal
    Figures next assigns that the court abused its discretion
    by sustaining the State’s motion to strike the “jury’s only
    11
    Brief for appellant at 34.
    12
    State v. Henry, 
    292 Neb. 834
    , 
    875 N.W.2d 374
     (2016).
    - 816 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    African-American juror.” Figures argues that the court’s ruling
    was not supported by the record and that the State did not artic-
    ulate a race-neutral reason pursuant to Batson v. Kentucky 13
    for discharging the juror. However, the juror’s removal did
    not result from a peremptory challenge by the State; rather, it
    occurred during the course of the trial.
    (a) Additional Facts
    In the middle of the trial, the State brought to the court’s
    attention that a juror may have had improper communications
    with Figures’ associate. The court heard from two witnesses
    and the juror. The two witnesses testified that the day before,
    they saw the juror talking with a man in the courthouse, which
    they recognized as being Figures’ associate.
    The juror initially denied talking to anyone. However, the
    juror returned to the courtroom a short time later and modi-
    fied her testimony. The juror then testified that a man had
    approached her, but she thought he was just trying to “hit on
    [her],” so she ignored him.
    The State moved to strike the juror, citing the witnesses’ and
    juror’s testimony. The court sustained the State’s motion over
    Figures’ objection. In its ruling, the court noted that “there was
    quite a discrepancy in the [juror’s] testimony” about “conduct
    not even 24 hours ago.”
    (b) Standard of Review
    [9] The retention or rejection of a juror is a matter of dis-
    cretion for the trial court, and this rule applies both to the
    issue of whether a venireperson should be removed for cause
    and to the situation involving the retention of a juror after the
    commencement of trial; thus, the standard of review in a case
    involving discharge of a juror is whether the trial court abused
    its discretion. 14
    13
    Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 90 L. Ed. 2d. 69 (1986).
    14
    State v. Huff, 
    298 Neb. 522
    , 
    905 N.W.2d 59
     (2017).
    - 817 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (c) Discussion
    
    Neb. Rev. Stat. § 29-2004
    (2) (Reissue 2016) authorizes a
    court to disqualify a juror for cause after the juror has been
    sworn in. Section 29-2004(2) has been amended since Figures’
    trial, but neither version of § 29-2004(2) identifies the reasons
    for which a juror might be discharged. 15
    [10,11] Case law, however, establishes that a trial court has
    broad discretion to discharge a juror for cause so long as the
    court has a legal or factual basis to believe that the juror can-
    not serve as an impartial juror. 16 Therefore, a court’s decision
    to discharge a juror is an abuse of discretion if it is without
    factual support or for a legally irrelevant reason. 17
    We find that the court did not abuse its discretion in dis-
    charging the juror. Noting that there were “discrepanc[ies]” in
    the juror’s testimony, the court had a factual basis to believe
    that the juror would not be able to serve as an impartial juror.
    Additionally, we find no merit to Figures’ claim that the juror’s
    dismissal violated Batson. 18
    4. Figures’ Absence
    Figures assigns that the court erred by allowing the State
    to present a portion of its case in chief in Figures’ absence.
    Figures argues that the court deprived him of his right to be
    present in the courtroom at every stage of his trial.
    (a) Additional Facts
    After the African-American juror was excused, Figures left
    the courtroom for the remainder of the day, declining to
    be present for the opening portion of Dye’s direct exami-
    nation. The court allowed the State to continue to present
    witnesses. Figures was not deprived of his opportunity to
    15
    See, generally, State v. Dunster, 
    278 Neb. 268
    , 
    769 N.W.2d 401
     (2009).
    16
    See, e.g., Huff, 
    supra note 14
    .
    17
    See 
    id.
    18
    Batson, 
    supra note 13
    .
    - 818 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    cross-­examine Dye, and Figures’ counsel was present during
    the entire testimony.
    (b) Standard of Review
    [12,13] Whether a defendant could and, in fact, did waive
    his or her right to attend all stages of his or her trial presents a
    question of law. 19 When reviewing questions of law, an appel-
    late court has an obligation to resolve the questions indepen-
    dently of the conclusion reached by the trial court. 20
    (c) Discussion
    [14] The Confrontation Clause of the Sixth Amendment to
    the U.S. Constitution and Neb. Const. art I, § 11, provide for
    the accused’s right to be present in the courtroom at every
    stage of the trial. 21 
    Neb. Rev. Stat. § 29-2001
     (Cum. Supp.
    2020) provides: “No person indicted for a felony shall be
    tried unless personally present during the trial.” However, a
    defendant’s right to be present at trial may be waived, but any
    waiver of this right must be knowing and voluntary. 22
    [15] A waiver is the voluntary and intentional relinquish-
    ment of a known right, privilege, or claim, and may be dem-
    onstrated by or inferred from a person’s conduct. 23 We have
    explained that if a defendant could “‘prevent the completion
    of the trial by voluntarily absenting himself, and thus tie the
    hands of justice, he would be permitted to take advantage of
    his own wrong.’” 24
    Figures voluntarily and intentionally waived his right to
    be present during a portion of the trial. Figures left the
    19
    State v. Warlick, ante p. 656, ___ N.W.2d ___ (2021).
    20
    State v. Stabler, 
    305 Neb. 415
    , 
    940 N.W.2d 572
     (2020).
    21
    Warlick, supra note 19.
    22
    Id.
    23
    Id.
    24
    Id. at 677-78, ___ N.W.2d at ___ (quoting Scott v. State, 
    113 Neb. 657
    ,
    
    204 N.W. 381
     (1925)).
    - 819 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    courtroom on his own accord. We will not allow Figures to take
    advantage of his own conduct. Figures’ claim has no merit.
    5. Evidentiary Rulings
    Combining two of Figures’ assignments, Figures assigns that
    the court abused its discretion or erred by permitting the State
    to introduce two pieces of inadmissible evidence: character
    evidence and hearsay. First, Figures argues that the court erred
    by allowing the State to elicit testimony of a failed drug deal
    and Figures’ threats toward Vanessa. Next, Figures asserts that
    investigators’ testimony regarding Vanessa’s statement to law
    enforcement was inadmissible hearsay. Each will be addressed
    in turn.
    (a) Standard of Review
    [16,17] In proceedings where the Nebraska Evidence
    Rules apply, the admissibility of evidence is controlled by the
    Nebraska Evidence Rules and judicial discretion is involved
    only when the rules make discretion a factor in determining
    admissibility. 25 Where the Nebraska Evidence Rules commit
    the evidentiary question at issue to the discretion of the trial
    court, an appellate court reviews the admissibility of evidence
    for an abuse of discretion. 26
    [18] A party who fails to make a timely objection to evi-
    dence waives the right on appeal to assert prejudicial error
    concerning the evidence received without objection. 27
    [19,20] 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 would surely have been rendered, but, rather, whether
    the actual guilty verdict rendered in the questioned trial was
    surely unattributable to the error. 28 Erroneous admission of
    25
    Martinez, 
    supra note 5
    .
    26
    
    Id.
    27
    State v. Vann, 
    306 Neb. 91
    , 
    944 N.W.2d 503
     (2020).
    28
    State v. Taylor, 
    287 Neb. 386
    , 
    842 N.W.2d 771
     (2014).
    - 820 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    evidence is harmless error and does not require reversal if the
    evidence is cumulative and other relevant evidence, properly
    admitted, supports the finding by the trier of fact. 29
    (b) Alleged Character Evidence
    (i) Additional Facts
    During pretrial hearings and a colloquy immediately before
    opening arguments were presented at trial, the parties disputed
    the admissibility of two of Figures’ actions after the murder: a
    failed drug deal and threats toward Vanessa. After the murder,
    Figures had a verbal dispute with Vanessa’s aunt at Vanessa’s
    house. The State alleged that the dispute originated from a
    failed drug deal. Additionally, as recounted earlier, Figures
    repeatedly threatened Vanessa, demanding that she not tell any-
    one about his involvement in Green’s death.
    Figures sought to exclude evidence of his actions pursuant
    to 
    Neb. Rev. Stat. § 27-404
    (2) (Reissue 2016). Figures argued
    that the State planned to use this evidence to show his bad
    character and propensity to commit the murder.
    The State refuted Figures’ arguments. However, because the
    State never brought up the failed drug deal at trial, the only
    evidence that reached the jury was Figures’ threats toward
    Vanessa. Citing State v. Parnell, 30 the State argued that Figures
    made terroristic threats toward Vanessa, which were inex-
    tricably intertwined with the charged offense and fell out-
    side § 27-404(2).
    The district court agreed with the State, allowing Vanessa to
    testify about Figures’ threats toward her. While Figures had a
    continuous objection regarding the failed drug deal, he did not
    object to Vanessa’s testimony regarding the threats at trial.
    (ii) Discussion
    For separate reasons, we dispose of this assignment without
    addressing its merits. Because the State never presented the
    29
    Id.
    30
    State v. Parnell, 
    294 Neb. 551
    , 
    883 N.W.2d 652
     (2016).
    - 821 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    alleged drug deal to the jury, it could not generate prejudicial
    error. Regarding Vanessa’s testimony about Figures’ threats,
    Figures failed to object to this testimony at trial. Therefore,
    Figures waived his right to assert prejudicial error concerning
    the evidence of Figures’ threats.
    (c) Hearsay
    (i) Additional Facts
    The State elicited testimony from both Dempsey and Taylor,
    police officers who took Vanessa’s statement. They recited
    Vanessa’s statements to law enforcement, including what
    Figures told Vanessa. Figures objected, based upon hearsay.
    The court overruled the objection, but noted Figures’ continu-
    ing objection.
    (ii) Discussion
    The court erred by allowing the officers to testify to inad-
    missible hearsay. The officers testified about statements which
    were made out of court and used for the truth of the matter
    asserted. 31 While Vanessa’s statements regarding what Figures
    told her are admissible as opposing party statements, it does
    not justify allowing the officers to testify regarding Vanessa’s
    own statements. 32
    The court’s error, however, was harmless. The officers’ tes-
    timony was cumulative to Vanessa’s testimony earlier in the
    trial, and the State presented other relevant evidence that sup-
    ported the jury’s verdict. We will not reverse based upon this
    harmless error.
    6. Motion for Mistrial
    Figures next assigns the court erred in overruling his motion
    for a mistrial. Figures argues that he was deprived of a fair
    trial, because prosecutorial misconduct misled the jury as to the
    evidence it could consider.
    31
    See 
    Neb. Rev. Stat. § 27-801
    (3) (Reissue 2016).
    32
    See § 27-801(4)(b).
    - 822 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (a) Additional Facts
    During the trial, the State stipulated to the admissibility of a
    video clip from Vanessa’s doorbell video camera (exhibit 372).
    However, the State noted that, in response, it would play the
    rest of the camera’s footage (exhibit 373) to argue that the time
    stamps were altered. Figures stipulated to the admissibility of
    exhibit 373.
    During Hinsley’s cross-examination, Figures offered into
    evidence and played exhibit 372 to the jury. On Hinsley’s
    redirect, the State offered exhibit 373 “not to go back to the
    jury, but just for purposes of the record and then ask[ed] . . .
    permission to, for demonstrative purposes, illustrate a few that
    will assist the detective in explaining his testimony.” The
    State then played a portion of exhibit 373 to the jury in order
    for Hinsley to assert that the doorbell footages’ time stamps
    were altered.
    The parties readdressed these exhibits in their closing argu-
    ments. First, Figures asserted that exhibit 372 contradicted
    Vanessa’s testimony that Figures was carrying the clothes he
    wore to Green’s house on the day of the murder. Figures then
    argued that because the State could not refute exhibit 372, it
    did not want the jury to see the exhibit.
    The State objected to Figures’ argument, asserting that it
    misstated the evidence on the record. The court did not explic-
    itly rule on the State’s objection, but Figures amended his argu-
    ment to focus on the States’ claim that exhibit 372’s time stamp
    was manipulated.
    During rebuttal, the State stated that “[i]t’s one thing to
    zealously represent your client, but it’s quite another thing to
    come up here and make the implications that you just heard
    over the last hour.” The State accused Figures of mischaracter-
    izing exhibit 372 as evidence that the State wanted to “hide.”
    Referencing the time stamp manipulation, the State explained
    that it presented neither exhibit 372 nor exhibit 373 during
    Hinsley’s direct examination, because it did not believe it had
    the foundation to offer it.
    - 823 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    After the jury was sent to deliberate, Figures moved for
    a mistrial. Figures argued that the jury was instructed that it
    could only consider evidence that had been properly admitted.
    Figures claimed the jury was under the impression that exhibit
    372, which was properly admitted, could not be considered
    based upon the parties’ interactions at closing statements and
    the State’s rebuttal statement. Figures concluded that he did not
    have a fair trial, because the entire proceedings were tainted.
    Explaining that “[it did not] think we’ve even gotten close to
    that,” the court overruled Figures’ motion for a mistrial.
    (b) Standard of Review
    [21,22] An appellate court will not disturb a trial court’s
    decision whether to grant a motion for mistrial unless the court
    has abused its discretion. 33 A mistrial is properly granted in a
    criminal case where an event occurs during the course of trial
    which is of such a nature that its damaging effect cannot be
    removed by proper admonition or instruction to the jury and
    thus prevents a fair trial. 34
    (c) Discussion
    [23,24] When considering a claim of prosecutorial miscon-
    duct, we first consider whether the prosecutor’s acts constitute
    misconduct. 35 If we conclude that a prosecutor’s acts were mis-
    conduct, we next consider whether the misconduct prejudiced
    the defendant’s right to a fair trial. 36
    We have acknowledged that “prosecutorial misconduct” can-
    not be neatly defined, but we have said that generally, it
    encompasses conduct that violates legal or ethical standards for
    various contexts because the conduct will or may undermine
    33
    State v. Gonzales, 
    294 Neb. 627
    , 
    884 N.W.2d 102
     (2016).
    34
    State v. Lester, 
    295 Neb. 878
    , 
    898 N.W.2d 299
     (2017).
    35
    State v. Hernandez, 
    299 Neb. 896
    , 
    911 N.W.2d 524
     (2018).
    36
    
    Id.
    - 824 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    a defendant’s right to a fair trial. 37 We have also said that a
    ­prosecutor’s conduct that does not mislead and unduly influ-
    ence the jury is not misconduct. 38
    We disagree with Figures’ assertion that the State made
    baseless objections that misled the jury. The record shows that
    at a sidebar, the parties had a genuine dispute regarding which
    exhibits were not offered to the jury. The court grappled with
    that issue as well. We do not find the State’s objections consti-
    tuted prosecutorial misconduct.
    [25] However, we are concerned with the State’s rebuttal
    statement. We have ruled that a prosecutor should not make
    arguments calculated to appeal to the prejudices of the jury
    and should refrain from arguments which would divert the jury
    from its duty to decide the case on the evidence. 39 We recog-
    nize that hyperbole in closing arguments is hardly rare and that
    juries should be given credit for the ability to filter out ora-
    torical flourishes. 40 But comments by prosecutors to the effect
    that a defense attorney’s job is to mislead the jury in order to
    garner an acquittal for his or her client is not only distasteful
    but borders on being unethical and such comments only serve
    to denigrate the legal profession in the eyes of the jury and,
    consequently, the public at large. 41
    Here, the State stated that “[i]t’s one thing to zealously
    represent your client, but it’s quite another thing to come up
    here and make the implications that you just heard over the
    last hour.” Here, the State never explicitly argued that Figures
    was lying or trying to mislead the jury. But the implication
    37
    
    Id.
    38
    
    Id.
    39
    See State v. Barfield, 
    272 Neb. 502
    , 
    723 N.W.2d 303
     (2006), disapproved
    on other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
    (2007).
    40
    See 
    id.
    41
    See 
    id.
    - 825 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    of the State’s argument reaches the extreme end of permis-
    sible conduct.
    [26,27] However, even if we assume that the State’s argument
    crossed the line into prosecutorial misconduct, it does not war-
    rant reversal because it did not prejudice Figures. Prosecutorial
    misconduct prejudices a defendant’s right to a fair trial when
    the misconduct so infects the trial that the resulting conviction
    violates due process. 42 Whether prosecutorial misconduct is
    prejudicial depends largely upon the context of the trial as a
    whole. 43 In determining whether a prosecutor’s improper con-
    duct prejudiced the defendant’s right to a fair trial, we consider
    the following factors: (1) the degree to which the prosecutor’s
    conduct or remarks tended to mislead or unduly influence the
    jury, (2) whether the conduct or remarks were extensive or
    isolated, (3) whether defense counsel invited the remarks, (4)
    whether the court provided a curative instruction, and (5) the
    strength of the evidence supporting the conviction. 44
    Because the State’s conduct was not prejudicial and did not
    violate Figures’ right to a fair trial, we find that the court did
    not abuse its discretion in overruling Figures’ motion for a
    mistrial. The single comment was made at the end of the trial
    and was overshadowed by the plenitude of evidence supporting
    Figures’ conviction. It was within the court’s discretion to find
    that the jury could filter out the State’s hyperbole and render a
    verdict based upon the evidence presented.
    7. Sufficiency of Evidence
    Figures argues that the evidence presented was insufficient
    to support his convictions. Citing State v. Scott, 45 Figures
    claims there was insufficient corroboration of Figures’ confes-
    sion to Vanessa.
    42
    State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
     (2016).
    43
    Hernandez, 
    supra note 35
    .
    44
    
    Id.
    45
    See State v. Scott, 
    200 Neb. 265
    , 
    263 N.W.2d 659
     (1978).
    - 826 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (a) Standard of Review
    [28] 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, and
    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. 46
    (b) Discussion
    [29] Scott mandates that a voluntary confession is insuffi-
    cient, standing alone, to prove that a crime has been commit-
    ted, but that it is competent evidence of that fact and may, with
    slight corroboration, establish the corpus delicti as well as the
    defendant’s guilty participation. 47
    The State presented sufficient corroborating evidence for the
    jury to convict Figures. The State presented evidence regard-
    ing Green’s cause of death, the condition of the crime scene,
    a recorded phone call, tangible physical evidence, forensics,
    cell phone data, and cell tower metadata. This evidence cor-
    roborated Figures’ confession to Vanessa. Figures’ claim has
    no merit.
    8. Accumulation of Errors
    Figures next argues that the aggregated errors in Figures’
    case warrants reversal.
    (a) Standard of Review
    [30] Whether cumulative error deprived a criminal defendant
    of his or her Sixth Amendment right to a trial by an impartial
    jury presents a question of law to be reviewed de novo. 48
    46
    See State v. Stack, 
    307 Neb. 773
    , 
    950 N.W.2d 611
     (2020).
    47
    See Scott, 
    supra note 45
    .
    48
    State v. Smith, 
    292 Neb. 434
    , 
    873 N.W.2d 169
     (2016).
    - 827 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (b) Discussion
    Because we already determined that the errors assigned by
    Figures were either meritless or inconsequential, we decline to
    reverse based on the cumulative error doctrine. It has no appli-
    cation here.
    9. Ineffective Assistance
    of Counsel
    Finally, Figures presents 12 assignments of ineffective assist­
    ance of counsel. Figures’ appellate counsel is different than his
    trial counsel. For purposes of clarity, we have reordered and
    consolidated some of Figures’ assignments.
    (a) Standard of Review
    [31-33] Whether a claim of ineffective assistance of counsel
    may be determined on direct appeal is a question of law. 49 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 preju-
    diced by counsel’s alleged deficient performance. 50 When the
    claim 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. 51
    [34] 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. 52
    49
    State v. Clausen, 
    307 Neb. 968
    , 
    951 N.W.2d 764
     (2020).
    50
    
    Id.
    51
    State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
     (2019).
    52
    State v. McGuire, 
    299 Neb. 762
    , 
    910 N.W.2d 144
     (2018).
    - 828 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    (b) Specific Assignments
    (i) Witness List
    Figures starts his ineffective assistance of counsel assign-
    ments by arguing that his trial counsel was defective by (1) not
    seeking a trial continuance after the State amended its witness
    list or (2) not objecting to and seeking to exclude newly added
    witnesses from testifying at trial. Both parts of Figures’ claim
    will be addressed in turn.
    First, the record is insufficient to address why Figures’ trial
    counsel did not move for a continuance. While Figures’ trial
    counsel objected to the State’s motion, a continuance was never
    raised. The record does not explain why Figures’ trial counsel
    did not do so.
    Next, Figures’ trial counsel was not deficient by not object-
    ing and seeking to exclude the witnesses at trial. Because the
    State amended its witness list more than 30 days before trial,
    the court overruled Figures’ pretrial objection. 53 It would have
    been futile to object again at trial.
    (ii) Digital Forensic Reports
    Figures argues his trial counsel was defective by (1) not
    seeking a trial continuance after the State disclosed the digital
    forensic reports, (2) not objecting to and seeking to exclude the
    reports at trial, and (3) failing to obtain an expert to refute the
    reports. Each part of the claim will be addressed in turn.
    The record is insufficient to address the first part of Figures’
    claim. The record does not detail why Figures’ trial counsel
    did not move for a continuance. At the hearing following the
    State’s disclosure of the digital forensic reports, Figures’ trial
    counsel explicitly stated that Figures was not requesting a
    continuance at that time, but he did not provide an explana-
    tion why.
    Figures’ trial counsel was not deficient for failing to object
    to and seek to exclude the contents of the digital forensic
    53
    See 
    Neb. Rev. Stat. § 29-1602
     (Reissue 2016).
    - 829 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    reports at trial. Because the timely reports were admissible evi-
    dence, the court overruled Figures’ pretrial motion to preclude
    the reports, based upon alleged late disclosure, and it would
    have been futile to object again at trial. 54
    Finally, the record does not provide the necessary context
    regarding obtaining or presenting a digital forensic expert. The
    court granted Figures’ motion to obtain an expert. However,
    the record does not explain whether Figures did in fact obtain
    an expert and, if so, why Figures did not present the expert to
    counter the digital forensic reports.
    (iii) Witness Testimony
    Figures also assigns that his trial counsel deficiently cross-
    examined witnesses and failed to raise proper objections to
    witnesses’ testimony at trial. Each claim will be addressed
    in turn.
    a. Vanessa
    Figures assigns his trial counsel ineffectively cross-­examined
    Vanessa by not inquiring into Vanessa’s inconsistent statements
    to law enforcement, her delay in reporting the crime, and
    whether she had entered into an agreement to testify in lieu of
    criminal prosecution. The record is devoid as to why Figures’
    trial counsel chose not to ask Vanessa particular questions. We
    agree with the State that the record is insufficient to address
    this assignment.
    b. Williams
    Figures next assigns that his trial counsel ineffectively
    cross-examined Williams by not asking about Williams’ prior
    inconsistent statements to law enforcement, by not asking
    about Williams’ drug use on the day of the murder, and by
    failing to obtain Williams’ criminal history before his testi-
    mony. Figures also asserts that his trial counsel “los[t] control
    54
    See Crowder v. Aurora Co-op Elev. Co., 
    223 Neb. 704
    , 
    393 N.W.2d 250
    (1986).
    - 830 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    of Williams’ testimony.” 55 Each claim will be addressed
    in turn.
    First, the record is insufficient to explain why Figures’ trial
    counsel declined to ask Williams about his prior inconsistent
    statements and marijuana use. Additionally, the record does
    not establish whether Figures suffered prejudice by his trial
    counsel’s failure to obtain Williams’ criminal record before
    trial. However, the record is sufficient to address Figures’ trial
    counsel’s “losing control of Williams’ testimony.” 56
    We disagree with Figures’ characterization of his trial coun-
    sel’s interaction with Williams. While Williams provided hostile
    commentary throughout his cross-examination, Figures’ trial
    counsel sufficiently bypassed Williams’ aggression, objected to
    nonresponsive testimony, and remained focused on extracting
    testimony from Williams. Figures’ claim has no merit.
    Finally, Figures argues, but fails to assign, that his trial
    counsel was deficient by not objecting to relevance and
    improper witness bolstering on Williams’ redirect examina-
    tion. 57 Because Figures failed to assign error on these matters,
    we decline to address them. 58
    c. Dye
    Figures also assigns that his trial counsel ineffectively
    cross-examined Dye by failing to inquire into her presence in
    the courtroom during Williams’ testimony, how she learned of
    the contents of Williams’ testimony, and her investigation of
    Williams as a suspect in Green’s homicide. The record again
    lacks the detail necessary to address Figures’ claim, because
    it does not explain why Figures’ trial counsel declined to
    ask Dye particular questions. Therefore, we cannot resolve
    this claim.
    55
    See   brief for appellant at 67.
    56
    See   
    id.
    57
    See   
    Neb. Rev. Stat. §§ 27-401
    , 27-402, and 27-608 (Reissue 2016).
    58
    See   McGuire, 
    supra note 52
    .
    - 831 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    In Figures’ brief, he also argues, but fails to assign, that his
    trial counsel was ineffective for failing to object to multiple
    portions of Dye’s testimony, failing to offer pertinent motions,
    and eliciting evidence from Dye that contradicted Figures’
    defense. Because Figures’ failed to assign error on these mat-
    ters, we decline to address them. 59
    d. Hinsley
    Figures next assigns that his trial counsel was ineffective
    by failing to make a foundational objection to exhibit 373
    and moving to strike to Hinsley’s related testimony. Figures’
    assignment mischaracterizes the record. As discussed ear-
    lier, Figures and the State entered into stipulations regarding
    the doorbell footage. The State stipulated to Figures’ playing
    exhibit 372 with the understanding that it would play exhibit
    373 to argue that the time stamps were manipulated. Figures’
    trial counsel agreed to this arrangement. Consequently, Figures
    was able to play exhibit 372 without the State’s making a foun-
    dational objection.
    In this appeal, Figures now argues that his trial coun-
    sel should have presented a foundational objection to exhibit
    373—from which exhibit 372 originates. The State’s sole pur-
    pose in playing exhibit 373 was to explain to the jury that it
    did not present the exhibit earlier because it did not believe
    there was sufficient foundation to present it. Figures’ objection
    would have proved the State was right and discredited exhibit
    372, which he presented earlier. Therefore, Figures’ trial coun-
    sel was not deficient.
    Figures also argues, but fails to assign, that his trial counsel
    was ineffective by eliciting incriminating testimony against
    Figures from Hinsley. We likewise decline to address this argu-
    ment, because Figures failed to properly assign error. 60
    59
    See 
    id.
    60
    See 
    id.
    - 832 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    e. Dieguez
    Figures assigns that his trial counsel was ineffective by fail-
    ing to (1) renew his pretrial motion to preclude Dieguez from
    testifying; (2) object to Dieguez’ testimony and the exhibits
    that Dieguez used during his testimony for being irrelevant,
    improper expert witness testimony, hearsay, and having a pro-
    bative value that was substantially outweighed by the danger
    of unfair prejudice; and (3) object to the exhibits for violating
    Crowder v. Aurora Co-op. Elevator Co. 61 Each claim will be
    addressed in turn.
    First, Figures’ claim that his trial counsel should have
    renewed his pretrial motion to preclude Dieguez from testify-
    ing has no merit. Figures argued in his pretrial motion that
    § 29-1602 required that the State disclose that Dieguez would
    serve as an expert witness. However, while statute mandates
    that the State endorse a list of witnesses known to it, it does
    not require that the State highlight a witness’ expert status. 62
    Next, Figures could not have properly objected to Dieguez’
    testimony or the exhibits presented. Dieguez’ testimony and
    exhibits discussed relevant statements made by Figures and
    had a probative value that was not outweighed by any unfair
    prejudice. Also, the exhibits did not violate Crowder. 63 The
    exhibits were a PowerPoint presentation of the digital forensic
    reports of Figures’, Vanessa’s, and Dennis’ phones. The docu-
    ments summarized by the exhibits were identifiable, admissi-
    ble, voluminous, and previously disclosed to Figures. Figures’
    claim has no merit.
    Figures argues, but fails to assign, that his trial counsel inef-
    fectively cross-examined Dieguez. Because Figures failed to
    assign error, we decline to address the argument. 64
    61
    See § 27-401 and 
    Neb. Rev. Stat. §§ 27-403
    , 27-602, 27-702, 27-705,
    27-802, and 27-1006 (Reissue 2016); Crowder, 
    supra note 54
    .
    62
    See § 29-1602.
    63
    See Crowder, 
    supra note 54
    .
    64
    See McGuire, 
    supra note 52
    .
    - 833 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    f. Dempsey and Taylor
    Figures assigns that his trial counsel was ineffective by fail-
    ing to object to Dempsey’s and Taylor’s “expert” testimony.
    However, Figures argues that his trial counsel was ineffec-
    tive by failing to object to the officers’ testimony regarding
    Vanessa’s statements to them as hearsay and needlessly cumu-
    lative evidence. Figures’ arguments differ from his assignment,
    and therefore, we decline to address them. 65
    (iv) Sequestration of Witnesses
    Figures also assigns his trial counsel was ineffective by fail-
    ing to move for the witnesses to be sequestered. Figures argues
    his trial counsel’s failure to move for sequestration led to the
    State’s witnesses coordinating their testimony.
    The record is insufficient to address Figures’ assignment.
    The record does not provide any evidence that the witnesses
    coordinated their testimony or that Figures suffered any preju-
    dice by his trial counsel’s not moving for the sequestration
    of witnesses.
    (v) Motion for New Trial
    Figures argues that his trial counsel was ineffective by fail-
    ing to move for a new trial based upon evidence that arose
    after the jury rendered its verdict. Figures alleges Vanessa sent
    him a letter, which contained information supporting a motion
    for new trial, 2 days after the jury rendered its verdict. Figures
    asserts that he provided the letter to his trial counsel, but trial
    counsel never moved for a new trial.
    But the State responds that Figures’ assignment—which,
    as quoted above, asserted only that trial counsel failed to
    file a motion for new trial—was insufficient. We agree. We
    have already recounted a defendant’s obligation to specifi-
    cally allege the deficient conduct which is asserted as a claim
    of ineffective assistance of counsel. 66 The assignment fails to
    state any ground for the motion.
    65
    See 
    id.
    66
    See Mrza, 
    supra note 3
    .
    - 834 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. FIGURES
    Cite as 
    308 Neb. 801
    Even if we were to consider his argument’s reference to a
    letter, the assignment still lacks specificity. In the context of
    direct appeal, like the requirement in postconviction proceed-
    ings, mere conclusions of fact or law are not sufficient to
    allege ineffective assistance of counsel. 67 Figures fails to state
    what “information” was contained in the letter. 68 Without that
    specificity, it is at best a mere conclusion and an insufficient
    allegation of deficient conduct.
    (vi) Alibi
    Figures assigns that his trial counsel was ineffective by
    failing to present his alibi defense. Figures told investigators
    that he was installing a car stereo with his brother and sister
    at the time of Green’s death. Figures avers that he instructed
    his trial counsel to present that statement as an alibi defense,
    but, instead, his trial counsel only asserted that Williams killed
    Green. The record is insufficient to address this claim.
    (vii) Williams’ DNA Sample
    Finally, Figures assigns that his trial counsel was ineffective
    by failing to secure testing of Williams’ DNA and gunshot resi-
    due samples. Neither sample was tested by law enforcement.
    Figures claims his trial counsel’s inaction was inconsistent with
    his defense that Williams killed Green.
    The record does not explain why Figures’ trial counsel did
    not request that Williams’ DNA and gunshot residue samples
    be tested. Therefore, we cannot address Figures’ final claim.
    VI. CONCLUSION
    We find no court errors or abuse of discretion warrant-
    ing reversal. The evidence presented was sufficient for the
    jury to convict Figures. Finally, based upon the record pro-
    vided, Figures did not receive ineffective assistance of counsel.
    Therefore, we affirm the judgment of the district court.
    Affirmed.
    67
    State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
     (2014).
    68
    Brief for appellant at 72.