State v. Cotton , 299 Neb. 650 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/29/2018 08:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COTTON
    Cite as 
    299 Neb. 650
    State of Nebraska, appellee, v.
    James Cotton, appellant.
    ___ N.W.2d ___
    Filed April 20, 2018.    No. S-17-196.
    1.	 Pleadings: Parties: Judgments: Appeal and Error. A denial of a
    motion to sever will not be reversed unless clear prejudice and an
    abuse of discretion are shown, and an appellate court will find such an
    abuse only where the denial caused the defendant substantial prejudice
    amounting to a miscarriage of justice.
    2.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    3.	 Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a question of law,
    which turns upon the sufficiency of the record to address the claim
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement. An appellate
    court determines as a matter of law whether the record conclusively
    shows that (1) a defense counsel’s performance was deficient or (2)
    a defendant was or was not prejudiced by a defense counsel’s alleged
    deficient performance.
    4.	 Trial: Joinder. There is no constitutional right to a separate trial.
    5.	 Trial: Joinder: Appeal and Error. An appellate court reviews a trial
    court’s determination on the joinability of offenses, under Neb. Rev.
    Stat. § 29-2002(1) (Reissue 2016), de novo. However, a misjoinder of
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    offenses is subject to a harmless error review and will not be reversed
    unless it resulted in prejudice.
    6.	 Trial: Joinder: Proof. A defendant opposing joinder of charges has the
    burden of proving prejudice.
    7.	 Trial: Joinder. Severe prejudice occurs when a defendant is deprived
    of an appreciable chance for an acquittal, a chance that the defendant
    would have had in a severed trial.
    8.	 ____: ____. Prejudice is not shown if evidence of one charge would
    have been admissible in a separate trial of another charge.
    9.	 Pretrial Procedure: Motions to Suppress. It is the intention of Neb.
    Rev. Stat. § 29-822 (Reissue 2016) that motions to suppress evidence
    are to be ruled on and finally determined before trial, unless the motion
    is within the exceptions contained in the statute.
    10.	 Motions to Suppress: Search and Seizure: Waiver. Absent an excep-
    tion, a failure to move for the suppression of evidence seized unlawfully
    waives the objection.
    11.	 Homicide: Convictions: Proof. Under Neb. Rev. Stat. § 28-303 (Supp.
    2017), the three elements which the State must prove beyond a reason-
    able doubt to obtain a conviction for first degree murder are as follows:
    The defendant (1) killed another person, (2) did so purposely, and (3)
    did so with deliberate and premeditated malice.
    12.	 Homicide: Intent: Time: Proof. The premeditation element requires
    the State to prove that a defendant formed the intent to kill a victim
    without legal justification before doing so, but no particular length of
    time for premeditation is required. It is sufficient if an intent to kill is
    formed before the act is committed and not simultaneously with the act
    that caused the death.
    13.	 Homicide: Intent: Time. Whether premeditation exists depends on
    numerous facts about how and what the defendant did prior to the actual
    killing which show he or she was engaged in activity directed toward the
    killing, that is, planning activity.
    14.	 Homicide: Intent: Juries. A question of premeditation is for the jury
    to decide.
    15.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant must raise on direct appeal any issue of trial counsel’s ineffective
    performance which is known to the defendant or is apparent from the
    record. Otherwise, the issue will be procedurally barred.
    16.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal
    does not necessarily mean that it can be resolved. Such a claim may
    be resolved when the record on direct appeal is sufficient to either
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    STATE v. COTTON
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    299 Neb. 650
    affirm­atively prove or rebut the merits of the claim. The record is suf-
    ficient if it establishes either that trial counsel’s performance was not
    deficient, that the appellant will not be able to establish prejudice, or
    that trial counsel’s actions could not be justified as a part of any plau-
    sible trial strategy.
    17.	   Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
    and Error. In the case of an argument presented for the purpose of
    avoiding procedural bar to a future postconviction proceeding, appellate
    counsel must present a claim with enough particularity for (1) an appel-
    late court to make a determination of whether the claim can be decided
    upon the trial record and (2) a district court later reviewing a petition
    for postconviction relief to be able to recognize whether the claim was
    brought before the appellate court. A claim insufficiently stated is no
    different than a claim not stated at all.
    18.	   Effectiveness of Counsel: Proof. To show that counsel’s performance
    was deficient, a defendant must show that counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in crimi-
    nal law.
    19.	   Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    20.	   Constitutional Law: Criminal Law: Right to Counsel. The Sixth
    Amendment to the U.S. Constitution provides that a criminal defendant
    has a right to have the assistance of counsel for his or her defense. An
    essential part of that right is the defendant’s ability to select the counsel
    of his or her choice.
    21.	   Effectiveness of Counsel: Conflict of Interest. The right to effective
    assistance of counsel entitles the accused to his or her counsel’s undi-
    vided loyalties, free from conflicting interests.
    22.	   Trial: Conflict of Interest. In the absence of an objection, the court
    has a duty to inquire into a potential conflict of interest only when
    the trial court knows or reasonably should know that a particular con-
    flict exists.
    23.	   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, but a court is
    not required to accept a defendant’s waiver in all circumstances.
    24.	   Right to Counsel: Conflict of Interest: Presumptions. The right
    to counsel of choice is not absolute. A trial court must recognize a
    presumption in favor of a defendant’s counsel of choice, but that
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    presumption may be overcome by a demonstration of actual conflict or
    a showing of a serious potential for conflict.
    25.	   Effectiveness of Counsel: Conflict of Interest: Proof. A defendant
    who raised no objection at trial must show that an actual conflict of
    interest existed and that the conflict adversely affected his or her law-
    yer’s performance. When an actual conflict exists, there is no need to
    show that the conflict resulted in actual prejudice to the defendant.
    26.	   Right to Counsel: Waiver: Appeal and Error. There is no formalistic
    litany required to establish that a waiver was knowingly and intel-
    ligently made; instead, when considering whether a defendant volun-
    tarily, knowingly, and intelligently waived his or her right to counsel,
    an appellate court reviews the totality of the circumstances appearing in
    the record.
    27.	   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.
    28.	   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.
    29.	   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.
    30.	   Constitutional Law: Right to Counsel: Attorneys at Law: Conflict
    of Interest. When determining whether or not to disqualify a defense
    counsel, the court must balance two Sixth Amendment rights: (1) the
    defendant’s right to be represented by counsel of choice and (2) his or
    her right to a defense conducted by an attorney who is free of conflicts
    of interest. The U.S. Supreme Court has also recognized an indepen-
    dent interest of the courts in ensuring that criminal trials are conducted
    within the ethical standards of the profession and that legal proceedings
    appear fair to all who observe them.
    31.	   Attorney and Client: Conflict of Interest. Whether a conflict of inter-
    est justifies the disqualification of defense counsel is a matter committed
    to the discretion of the trial court.
    32.	   Trial: Attorney and Client: Conflict of Interest. If a defense counsel
    acts or refrains from acting at trial in a manner that is inconsistent with
    the defendant’s interests based on the preceding sources of conflicts, the
    defense counsel actively represents conflicting interests.
    33.	   Conflict of Interest. The seriousness of any potential conflict of interest
    depends on its likelihood and dimensions.
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    34.	 Courts: Attorneys at Law: Conflict of Interest. When weighing the
    interests at stake, courts generally give substantial weight to defense
    counsel’s representations regarding conflicts of interest.
    35.	 Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A
    mistrial is properly granted in a criminal case where an event occurs
    during the course of trial that is of such a nature that its damaging effect
    cannot be removed by proper admonition or instruction to the jury and
    thus prevents a fair trial. The defendant must prove that the alleged error
    actually prejudiced him or her, rather than creating only the possibility
    of prejudice.
    36.	 Constitutional Law: Trial. A defendant has fundamental constitutional
    right to a fair trial.
    37.	 Attorney and Client: Trial: Testimony: Waiver. A defendant who has
    been fully informed of the constitutional right to testify may not acqui-
    esce in his or her counsel’s advice that he or she waive that right, and
    then later claim that he or she did not voluntarily waive such right.
    38.	 Trial: Prosecuting Attorneys: Motions for Mistrial: Proof. When
    considering a claim of prosecutorial misconduct, an appellate court first
    considers whether the prosecutor’s acts constitute misconduct and then
    considers whether the misconduct prejudiced the defendant’s right to
    a fair trial. Before it is necessary to grant a mistrial for prosecutorial
    misconduct, the defendant must show that a substantial miscarriage of
    justice has actually occurred.
    39.	 Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
    Error. A party who fails to make a timely motion for mistrial based
    on prosecutorial misconduct waives the right to assert on appeal that
    the court erred in not declaring a mistrial due to such prosecuto-
    rial misconduct.
    40.	 Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
    has not preserved a claim of prosecutorial misconduct for direct appeal,
    an appellate court will review the record only for plain error.
    41.	 Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
    to the contrary, it is presumed that a jury followed the instructions given
    in arriving at its verdict.
    42.	 Trial: Prosecuting Attorneys. Public prosecutors are charged with the
    duty to conduct criminal trials in such a manner that the accused may
    have a fair and impartial trial.
    43.	 Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
    ecutorial misconduct encompasses conduct that violates legal or ethical
    standards for various contexts because the conduct will or may under-
    mine a defendant’s right to a fair trial.
    44.	 Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or
    her argument on the evidence introduced at trial rather than on matters
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    not in evidence. When a prosecutor’s comments rest on reasonably
    drawn inferences from the evidence, he or she is permitted to present a
    spirited summation that a defense theory is illogical or unsupported by
    the evidence and to highlight the relative believability of witnesses for
    the State and the defense.
    45.	   Trial: Prosecuting Attorneys: Juries. A distinction exists between
    arguing that a defense strategy is intended to distract jurors from what
    the evidence shows, which is not misconduct, and arguing that a defense
    counsel is deceitful, which is misconduct.
    46.	   Trial: Prosecuting Attorneys. 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 pros-
    ecutor’s comments are expressions of the prosecutor’s personal beliefs
    rather than a summation of the evidence.
    47.	   Prosecuting Attorneys: Convictions: Juries. It is as much a prosecu-
    tor’s duty to refrain from improper methods calculated to produce a
    wrongful conviction as it is to use every legitimate means to bring about
    a just one. Because the average jury, in a greater or less degree, has con-
    fidence that these obligations, which so plainly rest upon the prosecuting
    attorney, will be faithfully observed, improper suggestions, insinuations,
    and especially, assertions of personal knowledge are apt to carry much
    weight against the accused when they should properly carry none.
    48.	   Trial: Prosecuting Attorneys: Appeal and Error. In determining
    whether a prosecutor’s improper conduct prejudiced the defendant’s
    right to a fair trial, an appellate court considers 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.
    Appeal from the District Court for Douglas County: Gary B.
    R andall, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, and
    Matthias J. Kraemer for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican,          C.J.,   Miller-Lerman,            Cassel,    Stacy,     and
    Funke, JJ.
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    STATE v. COTTON
    Cite as 
    299 Neb. 650
    Funke, J.
    This is James Cotton’s direct appeal of his jury convic-
    tions and sentences for first degree murder, use of a deadly
    weapon to commit a felony, possession of a deadly weapon by
    a prohibited person, and possession of a controlled substance.
    Cotton filed a timely appeal, and he proceeds with different
    counsel than at trial. We affirm his convictions.
    I. BACKGROUND
    On August 7, 2015, Cotton shot and killed Trevor Bare.
    During the evening prior to the shooting, Bare saw Cotton in
    the apartment immediately above his own. Because Cotton and
    Bare had a negative history together, Bare confronted Cotton
    and an argument ensued. After the initial altercation, Bare and
    his girlfriend, McKayla Burnette, left the apartment house. A
    couple of hours later, someone set a fire in the back of the
    truck owned by Travis Labno, the new tenant of the apartment
    immediately above Bare’s.
    Around 6:30 a.m. on August 7, 2015, Bare and Burnette
    returned to Bare’s apartment. Upon their return, Labno con-
    fronted Bare outside the house about the fire, while Cotton
    exited Labno’s apartment with a shotgun. After the argument
    between Labno and Bare ended, Cotton and Bare commenced
    an argument, which ended with Cotton’s shooting Bare. Bare
    died from his injuries.
    At the crime scene, police found a broken piece of fence
    wood on the ground, a spent shotgun casing, and a bloodstain
    on the ground approximately 6 to 10 feet from the porch. They
    also recovered a sawed-off shotgun in the bushes behind a
    nearby house, which shotgun was later identified as the mur-
    der weapon.
    A search warrant was obtained for Labno’s apartment.
    During the execution of the warrant, police discovered the fol-
    lowing: in the bathroom, marijuana on top of the toilet, a bag
    in the toilet bowl, and a glass pipe in the sink; in the kitchen,
    a broken “meth pipe or crack pipe”; and, in the northwest
    bedroom closet, two envelopes with Cotton’s name on them,
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    a medication bottle with Cotton’s name on it, an unlabeled
    medication bottle containing marijuana, a spoon, a syringe,
    and a tin that contained methamphetamine.
    The cause of Bare’s death was determined to be a shotgun
    wound to the abdomen. Autopsy results revealed that he had
    methamphetamine, amphetamine, and “THC” in his system.
    The autopsy also revealed the presence of fentanyl, which was
    administered to him after the shooting.
    At trial, Burnette testified that she and Bare saw Cotton
    as they were leaving their apartment at approximately mid-
    night on August 6, 2015. Burnette said Bare was angry about
    Cotton’s presence, so Bare approached Labno’s apartment and
    knocked on the door. Burnette stated that she waited about 10
    minutes before approaching Labno’s apartment to see what
    was happening. When she did, she heard Bare say that “[t]his
    is my block” and that Cotton could not stay there. Burnette
    testified that she grabbed Bare and pushed him back toward
    their car and that as they were leaving, Cotton called Bare
    a “pussy.”
    Burnette stated that after leaving the apartment, they went
    to Bare’s mother’s house where they used marijuana and meth-
    amphetamine. At around 6:30 a.m., Bare and Burnette returned
    to Bare’s apartment. When they got there, they saw Labno run
    into his apartment. While in the apartment, Burnette said she
    could hear Cotton and Labno talking and recognized Cotton’s
    voice from the earlier argument. She stated that she heard
    Cotton say, “‘I have a round in the gun and I’m going to use
    it.’” Burnette told Bare what she heard just before she heard
    the sound of footsteps upstairs running outside, at which point,
    Bare went outside as well.
    Burnette said that after hearing a “smack” outside, she went
    to the screen door to see what was happening. She testified that
    she saw Bare holding a piece of wood, Labno by the porch,
    and Cotton sitting in a chair on the porch behind Labno with
    a shotgun in his lap, which he was pointing at Bare. Burnette
    testified that Labno and Bare were arguing at first, but then the
    argument between them seemed to calm down. Burnette stated
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    that Cotton then stood up and started arguing with Bare, who
    still had the piece of wood in his hand. She stated that Bare
    stepped toward Cotton and said, “[I]f you’re going to hold the
    gun to me, then you better fucking shoot me,” at which point,
    Cotton shot Bare.
    Labno testified that on August 6, 2015, Cotton was helping
    him move into his new apartment and that Cotton was planning
    on staying with him for a while. According to Labno, Cotton
    woke him up during the night to tell him Bare and Burnette had
    set fire to his truck. After looking at the truck, Labno stated
    that he went back to bed. Cotton’s trial counsel, however,
    introduced Labno’s cell phone records, which showed that
    Labno’s cell phone made a number of calls around 4 a.m. from
    an area away from his apartment. Additionally, in a portion
    of Labno’s deposition testimony that was read into evidence,
    Labno invoked his right to remain silent in response to a ques-
    tion regarding whether he left his apartment and returned with
    a shotgun, after which the prosecutor said that “we’ll talk about
    immunity as it relates to the gun.”
    Labno further testified that as he was getting ready for
    work the next morning, he saw Bare and Burnette pull into the
    driveway in two vehicles, blocking his vehicle in the driveway.
    Labno stated that he yelled out to Cotton that Bare was back
    and then went out to confront Bare, who had a board in his
    hand. Labno told Bare to drop the board so they could fight,
    but Bare refused. Labno testified that he heard a “clack” after
    his argument had deescalated and turned around to see Cotton
    holding a shotgun. He stated that Cotton and Bare began argu-
    ing at that point, from a distance of about 6 to 8 feet apart, and
    that the argument then escalated and Cotton shot Bare. Labno
    testified that their argument lasted about 5 minutes and that
    Bare was acting “totally crazy” and did not seem like he was
    going to back down. Labno testified that he was not watching
    the fight and was unsure if Bare advanced at Cotton, but he
    stated that Bare did not charge him. However, he did state that
    just before the shooting, Bare said something like, “If you pull
    a gun, you better use it . . . .”
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    Cotton testified at trial and admitted that he shot Bare but
    claimed that he did so in self-defense. He alleged that Labno
    obtained the shotgun and brought it to the altercation with
    Bare. Cotton stated that he grabbed the shotgun only after Bare
    had hit him with a wooden board and was advancing at him
    again with the board.
    Cotton also testified that Bare and Bare’s mother used to
    live with him. However, issues arose because Bare and his
    mother were stealing things from Cotton and Bare was caus-
    ing problems in the neighborhood—yelling at children and
    flashing a gun in Cotton’s garage. Cotton evicted Bare and his
    mother, but Bare continued to drive through the neighborhood
    and would occasionally stop in front of Cotton’s house. Cotton
    eventually moved out of that residence and was staying in a
    hotel on August 6, 2015.
    Cotton stated that he stayed at Labno’s apartment that night
    at Labno’s request. Cotton also testified that at 2:30 a.m., Bare
    was knocking on Labno’s door, and that when Cotton answered
    the door, he told Bare to leave. When Bare refused to leave,
    Cotton said he got Labno and then went back to the bedroom.
    Cotton heard Bare tell Labno “this is my block” and that Labno
    slammed the door in Bare’s face. Cotton and Labno testified
    that Bare threatened Labno and told him, “I’ll be back, ask
    [Cotton] what I’ll do,” as he left with Burnette.
    Around 4 a.m., he saw a bright light outside and saw Bare
    and Burnette lighting Labno’s truck on fire. Cotton testified
    that Labno was not at his apartment at that time, so he went
    outside and put out the fire himself. Further, he stated that
    when Labno returned, Labno called his friend, Jeff Faye, and
    then left and returned with a shotgun.
    Cotton stated that later that morning while he was trying to
    sleep, Labno yelled out, “They’re here.” He said that Labno
    went and got the shotgun, “rack[ed] it,” and said, “There’s
    one in the chamber” and tried to hand the gun to Cotton.
    Cotton said he refused to take the gun and told Labno to “take
    care of your business like a man.” Labno said, “I’m going to
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    get the son of a bitch for doing this” and went outside with
    the shotgun.
    Cotton testified that Bare came to Labno’s front door and
    that a confrontation ensued. Cotton stated that he went out-
    side and tried to leave but could not because his vehicle was
    blocked in. He heard Bare yelling at Labno, and when he got
    to the side of the house, Labno had the shotgun in his left hand
    and Bare was holding a board. He stated that as the argument
    escalated, Bare swung the board at him in a “karate chop”
    motion. Cotton said the board hit him in the hand, jamming
    one of his fingers and giving him a splinter. Cotton said that he
    tried to leave to remove the splinter but that Bare said, “You
    ain’t going nowhere old mother-fucker, sit down in that chair
    or I’ll split your head,” at which point Labno pointed the shot-
    gun at Bare and told him to back up.
    Cotton stated that Bare was still in a rage after his argument
    with Labno ended and started yelling at Cotton about money
    that Bare thought Cotton owed him. He said that Bare came
    up toward the porch and told Cotton, “There’s a gun there, you
    punk mother-fucker, you better use it.” Then Bare started com-
    ing toward Cotton, so he grabbed the gun and shot Bare. He
    said that he tried to hit Bare in the legs and was not “aiming
    to kill the kid.”
    Matthew Krisel, a friend of Bare, testified that after the
    shooting, he got a telephone call about Bare’s death. Krisel
    immediately called Cotton to ask him what had happened, and
    Cotton asked Krisel to bring him some “dope,” which, accord-
    ing to Krisel, meant methamphetamine. Cotton also asked
    Krisel if he had heard that Cotton and Labno were “on the
    lamb because they shot a kid and he was in critical condi-
    tion.” Cotton told Krisel where he was, and Krisel relayed
    that location to police. The police apprehended Cotton at a
    nearby residence.
    During his trial testimony, Krisel acknowledged that he was
    testifying against Cotton pursuant to a proffer agreement with
    the State and was seeking leniency on his own charges in a
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    separate case. Cotton denied having a conversation with Krisel
    after the shooting and said that he never asked Krisel to bring
    him some “dope.”
    While Cotton was in jail, he made recorded telephone calls
    to Labno and Faye. During a call to Labno, on August 26,
    2015, Cotton asked Labno if he had received Cotton’s let-
    ters and asked Labno if he has “any violence on [his] record”
    because he was “just wonderin’ on something.” Labno testified
    that he thought Cotton was trying to set him up to take the
    gun charge.
    During the call to Faye, on August 28, 2015, Faye told
    Cotton that Labno was upset because it appeared Cotton wanted
    Labno to take the blame for having the shotgun. Cotton said he
    was “all wound up” and did not recall exactly what he said in
    his letters to Labno. Cotton said he was just trying to exonerate
    himself on the gun charge. Cotton also said, “I was out of my
    mind that day, I was in a heightened thing,” and told Faye that
    he would be testifying that he had acted in self-defense. Faye
    testified that he believed Cotton was using methamphetamine
    at the time of the incident.
    Cotton called two of his former neighbors as witnesses to
    testify about Bare’s conduct while living with Cotton. The first
    witness testified that Bare often acted like a tough guy, kind
    of like a “gangster,” and was abusive toward people he was
    with and was confrontational toward neighbors. The second
    witness stated that Bare was somewhat aggressive and that he
    had seen Bare with a sidearm. He said that Cotton had con-
    tacted him once about getting Bare out of his house. Both of
    Cotton’s former neighbors also testified that they were aware
    that Cotton used methamphetamine and other drugs while he
    lived in their neighborhood.
    At the close of the State’s case in chief, Cotton filed a
    motion to dismiss for lack of sufficient evidence, which was
    denied. After closing augments, Cotton renewed his motion to
    dismiss and requested a directed verdict for the defense, which
    was overruled.
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    The jury found Cotton guilty as charged on all four counts.
    Cotton filed a motion for new trial, which was denied. In
    October 2016, the court appointed Cotton new counsel from
    the Douglas County public defender’s office.
    In January 2017, Cotton was sentenced to life in prison on
    count I (first degree murder), 5 to 20 years’ imprisonment on
    count II (use of a deadly weapon to commit a felony), 3 to
    20 years’ imprisonment on count III (felon in possession of a
    deadly weapon), and 20 months’ to 2 years’ imprisonment on
    count IV (possession of a controlled substance). All four sen-
    tences were ordered to run consecutively. Cotton perfected a
    timely appeal.
    II. ASSIGNMENTS OF ERROR
    Cotton presents 11 assignments of error, restated and reor-
    dered, on appeal. He assigns that the court erred in (1) deny-
    ing his motion to sever count IV from the amended informa-
    tion, (2) admitting evidence obtained in a search that went
    beyond the scope of the warrant, (3) finding his conviction
    of first degree murder was supported by competent evidence,
    and (4) denying his motion for new trial based on prosecuto-
    rial misconduct.
    Cotton also assigns that his trial counsel was ineffective in
    (5) failing to withdraw due to a conflict of interest, (6) fail-
    ing to call Lindsey Redinbaugh as a witness, (7) failing to
    request a mistrial when Labno testified at trial after having
    been declared unavailable and had his deposition read into
    the record, (8) failing to object to improper questioning by
    the State and instances of prosecutorial misconduct during
    closing argument, (9) failing to cross-examine Dr. Erin Linde,
    and (10) offering the deposition of Faye at trial, as well as
    (11) issues raised by him during allocution at his sentenc-
    ing hearing.
    III. STANDARD OF REVIEW
    [1] A denial of a motion to sever will not be reversed unless
    clear prejudice and an abuse of discretion are shown, and an
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    appellate court will find such an abuse only where the denial
    caused the defendant substantial prejudice amounting to a mis-
    carriage of justice.1
    [2] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same:
    An appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, or reweigh the evidence;
    such matters are for the finder of fact. The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt.2
    [3] Whether a claim of ineffective assistance of trial coun-
    sel can be determined on direct appeal presents a question of
    law, which turns upon the sufficiency of the record to address
    the claim without an evidentiary hearing or whether the claim
    rests solely on the interpretation of a statute or constitutional
    requirement. We determine as a matter of law whether the
    record conclusively shows that (1) a defense counsel’s perfor-
    mance was deficient or (2) a defendant was or was not preju-
    diced by a defense counsel’s alleged deficient performance.3
    IV. ANALYSIS
    1. Motion to Sever Count IV and
    Court’s A dmission of Drug Evidence
    (a) Additional Facts
    About 1 month before trial, Cotton filed a motion to sup-
    press regarding physical evidence obtained from him during
    a police interview, the shotgun used to kill Bare, and any evi-
    dence of his use of the shotgun, which the court overruled.
    1
    State v. Henry, 
    292 Neb. 834
    , 
    875 N.W.2d 374
    (2016).
    2
    State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017).
    3
    State v. Burries, 
    297 Neb. 367
    , 
    900 N.W.2d 483
    (2017).
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    Four days before trial, the State filed an amended informa-
    tion adding count IV, possession of a controlled substance
    (methamphetamine). That same day, Cotton filed a motion in
    limine and sought to preclude the State from adducing any
    evidence regarding the methamphetamine found inside Labno’s
    apartment. Cotton’s motion alleged that there was no reli-
    able basis to conclude that the methamphetamine belonged to
    Cotton, so the introduction of that evidence would violate Neb.
    Evid. R. 104, 402, 403, and 404.
    At the hearing, the police officer who executed the search
    warrant testified that police had discovered, in the northwest
    bedroom closet, two envelopes with Cotton’s name on them
    and a medication bottle with Cotton’s name on it. Additionally,
    he stated that a tin containing methamphetamine was also
    found in that closet. The district court found there was prob-
    able cause to believe that Cotton committed the crime of
    possession of methamphetamine and bound over the charge
    for trial.
    Also at the hearing, Cotton moved to sever count IV, argu-
    ing that it would allow otherwise inadmissible evidence to be
    presented at trial. The court overruled both Cotton’s motion in
    limine, to exclude drug evidence, and his motion to sever.
    At trial, Cotton’s counsel objected to an officer’s testimony
    about the items recovered during the execution of the search
    warrant on Fourth Amendment grounds.
    (b) Cotton Was Not Prejudiced
    by Joinder of Count IV
    Cotton assigns that the court erred in overruling his motion
    to sever count IV from the amended information. He argues
    that count IV was not related or joinable to counts I, II, and
    III, because the murder and weapon charges were different
    in nature from the drug charge and could be proved without
    any reference to the drug charge. Cotton asserts that he was
    severely prejudiced by the joinder of count IV, because it
    permitted the State to admit propensity evidence of drug use
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    that the jury could not have otherwise considered to attack
    his character.
    [4] There is no constitutional right to a separate trial.4
    Instead, the joinder or separation of charges for trial is gov-
    erned by Neb. Rev. Stat. § 29-2002 (Reissue 2016), which
    states, in relevant part:
    (1) Two or more offenses may be charged in the same
    indictment, information, or complaint in a separate count
    for each offense if the offenses charged, whether felonies
    or misdemeanors, or both, are of the same or similar
    character or are based on the same act or transaction or
    on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan.
    ....
    (3) If it appears that a defendant or the state would
    be prejudiced by a joinder of offenses in an indictment,
    information, or complaint . . . the court may order an
    election for separate trials of counts, indictments, infor-
    mations, or complaints, grant a severance of defendants,
    or provide whatever other relief justice requires.
    Under § 29-2002, whether offenses were properly joined
    involves a two-stage analysis: (1) whether the offenses were
    related and joinable, under subsection (1), and (2) whether the
    joinder was prejudicial to the defendant, under subsection (3).5
    There is a strong presumption against severing properly joined
    counts under § 29-2002(3).6
    [5] We have stated that § 29-2002(1) is similar to the federal
    rule for joinder, found in Fed. R. Crim. P. 8(a) and (b); so,
    federal case law is instructive to our application § 29-2002(1).7
    Thus, we review a trial court’s determination on the joinability
    4
    State v. Stevens, 
    290 Neb. 460
    , 
    860 N.W.2d 717
    (2015).
    5
    See Henry, supra note 1.
    6
    State v. Knutson, 
    288 Neb. 823
    , 
    852 N.W.2d 307
    (2014).
    7
    See State v. Foster, 
    286 Neb. 826
    , 
    839 N.W.2d 783
    (2013).
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    of offenses, under § 29-2002(1), de novo.8 However, a misjoin-
    der of offenses is subject to a harmless error review and will
    not be reversed unless it resulted in prejudice.9
    [6] Accordingly, while subsections (1) and (3) of § 29-2002
    “present different questions, it is clear that there is no error
    under either [subsection] if joinder was not prejudicial.”10
    Therefore, a denial of a motion to sever will not be reversed
    unless clear prejudice and an abuse of discretion are shown,
    and an appellate court will find such an abuse only where the
    denial caused the defendant substantial prejudice amounting
    to a miscarriage of justice.11 A defendant opposing joinder of
    charges has the burden of proving prejudice.12
    [7,8] To prevail on a severance argument, a defendant
    must show compelling, specific, and actual prejudice from the
    court’s refusal to grant the motion to sever.13 Severe prejudice
    occurs when a defendant is deprived of an appreciable chance
    for an acquittal, a chance that the defendant would have had in
    a severed trial.14 However, prejudice is not shown if evidence
    of one charge would have been admissible in a separate trial
    of another charge.15
    Here, we need not consider whether count IV was properly
    joined with the other counts, because Cotton cannot show
    any prejudice from the joinder. At trial, Cotton presented
    self-defense as an affirmative defense. To successfully assert
    8
    See, U.S. v. Zimny, 
    873 F.3d 38
    (1st Cir. 2017); U.S. v. Litwok, 
    678 F.3d 208
    (2d Cir. 2012); U.S. v. Colonna, 
    360 F.3d 1169
    (10th Cir. 2004),
    overruled on other grounds, U.S. v. Little, 
    829 F.3d 1177
    (10th Cir. 2016).
    9
    See, e.g., Zimny, supra note 8.
    
    10 U.S. v
    . Prigge, 
    830 F.3d 1094
    , 1098 (9th Cir. 2016), cert. denied ___ U.S.
    ___, 
    137 S. Ct. 697
    , 
    196 L. Ed. 2d 573
    (2017). See Foster, supra 7.
    11
    Henry, supra note 1.
    12
    
    Id. 13 Stevens,
    supra note 4.
    14
    Foster, supra note 7.
    15
    Stevens, supra note 4.
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    a claim of self-defense, one must have a reasonable and
    good faith belief in the necessity of using such force.16 Thus,
    whether Cotton was under the influence of alcohol or drugs
    at the time of the shooting was relevant to determining if
    he had a reasonable subjective belief that his use of force
    was necessary.
    Accordingly, the evidence of count IV would have been
    admissible at trial even if the count would have been severed
    from the amended information. Therefore, this assignment of
    error is without merit.
    (c) Cotton Waived Right to Object
    to Lawfulness of Seizure
    of Methamphetamine
    Cotton argues that the court erred in denying his motion
    to suppress, because the State exceeded the search warrant—
    limited to firearms, companion equipment, and ammunition—
    when it seized the methamphetamine from Labno’s apartment.
    The State contends that this assignment of error is not prop-
    erly before this court, because Cotton’s motion to suppress
    made no mention of methamphetamine or drug parapherna-
    lia and he never filed an additional motion to suppress or
    expanded his initial motion.
    Neb. Rev. Stat. § 29-822 (Reissue 2016) provides, in rel-
    evant part, the following:
    Any person aggrieved by an unlawful search and sei-
    zure may move for return of the property so seized and
    to suppress its use as evidence. The motion shall be filed
    in the district court where a felony is charged and may
    be made at any time after the information or indictment
    is filed, and must be filed at least ten days before trial
    or at the time of arraignment, whichever is the later,
    unless otherwise permitted by the court for good cause
    shown. . . . Unless claims of unlawful search and seizure
    16
    State v. Smith, 
    284 Neb. 636
    , 
    822 N.W.2d 401
    (2012).
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    are raised by motion before trial as herein provided,
    all objections to use of the property as evidence on the
    ground that it was obtained by an unlawful search and
    seizure shall be deemed waived; Provided, that the court
    may entertain such motions to suppress after the com-
    mencement of trial where the defendant is surprised by
    the possession of such evidence by the state, and also
    may in its discretion then entertain the motion where the
    defendant was not aware of the grounds for the motion
    before commencement of the trial.
    [9,10] A suppression hearing is preparatory, because it
    relates to auxiliary issues not immediately relevant to the ques-
    tion of guilt and is held in anticipation of certain evidence
    being introduced at a forthcoming trial.17 It is the intention of
    § 29-822 that motions to suppress evidence are to be ruled on
    and finally determined before trial, unless the motion is within
    the exceptions contained in the statute.18 Accordingly, absent
    an exception, a failure to move for the suppression of evidence
    seized unlawfully waives the objection.19
    As the State argues, Cotton’s motion to suppress did not
    make any mention of the methamphetamine or other drugs
    and drug paraphernalia seized during the search of Labno’s
    apartment. While Cotton would have had cause to file a new
    motion to suppress or amend his previous motion less than 10
    days prior to trial, as a response to the State’s amended infor-
    mation, he did not do so. Instead, he filed a motion in limine
    to exclude methamphetamine evidence on the basis of evi-
    dence rules 104, 402, 403, and 404—not Fourth Amendment
    grounds. While he did make a Fourth Amendment objection
    to the evidence at trial, he did not make a motion to sup-
    press and the court would have had no basis to apply the
    17
    State v. Piper, 
    289 Neb. 364
    , 
    855 N.W.2d 1
    (2014), citing Wayne R.
    LaFave et al., Criminal Procedure § 10.1 (5th ed. 2009).
    18
    Piper, supra note 17.
    19
    State v. Howell, 
    188 Neb. 687
    , 
    199 N.W.2d 21
    (1972).
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    statutory exception for surprise when the objection concerned
    the exact evidence which was the subject of Cotton’s motion
    in limine.
    We conclude that Cotton waived his right to object to the
    seizure’s lawfulness by failing to move for the suppression of
    the evidence. Thus, this assignment of error is without merit.
    2. Evidence Was Sufficient to
    Support Cotton’s Conviction
    Cotton argues that the evidence was insufficient as a mat-
    ter of law to support a guilty verdict of first degree murder,
    because the State failed to prove that he acted with deliberate
    or premediated malice. Instead, he argues that the evidence
    clearly shows that he acted instinctively in self-defense.
    The State argues that the jury was properly instructed on the
    elements of first degree murder, its burden, and Cotton’s claim
    of self-defense. It argues that while the evidence supporting
    the conviction was disputed, we must view it in the light most
    favorable to the State, and that matters of weight and credibil-
    ity are for the jury to decide.
    [11] Pursuant to Neb. Rev. Stat. § 28-303 (Supp. 2017), a
    person commits murder in the first degree if he or she kills
    another person purposely and with deliberate and premeditated
    malice. We have summarized the three elements which the
    State must prove beyond a reasonable doubt to obtain a con-
    viction for first degree murder as follows: The defendant (1)
    killed another person, (2) did so purposely, and (3) did so with
    deliberate and premeditated malice.20
    With respect to the element of “deliberate and premeditated
    malice,” under § 28-303, our cases commonly look to the facts
    showing the planning of a murder and the manner in which the
    murder was carried out.21 Specifically, the deliberation element
    means not suddenly or rashly, and requires the State to prove
    20
    State v. Escamilla, 
    291 Neb. 181
    , 
    864 N.W.2d 376
    (2015).
    21
    
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    that the defendant considered the probable consequences of his
    act before committing it.22
    [12-14] The premeditation element requires the State to
    prove that a defendant formed the intent to kill a victim with-
    out legal justification before doing so, but no particular length
    of time for premeditation is required.23 It is sufficient if an
    intent to kill is formed before the act is committed and not
    simultaneously with the act that caused the death.24 The time
    required to establish premeditation may be of the shortest pos-
    sible duration and may be so short that it is instantaneous, and
    the design or purpose to kill may be formed upon premedita-
    tion and deliberation at any moment before the homicide is
    committed.25 Whether premeditation exists depends on numer-
    ous facts about how and what the defendant did prior to the
    actual killing which show he or she was engaged in activity
    directed toward the killing, that is, planning activity.26 A ques-
    tion of premeditation is for the jury to decide.27
    Burnette testified that after she and Bare returned to Bare’s
    apartment, she heard Cotton say, “‘I have a round in the gun
    and I’m going to use it.’” Then, she stated that when she
    looked outside during the altercation, she saw Bare holding
    a piece of wood, Labno by the porch, and Cotton sitting in
    a chair on the porch behind Labno with a shotgun pointed at
    Bare in his lap. While the altercation was between Labno and
    Bare initially, Burnette stated that Cotton became upset when
    their argument deescalated and that Cotton went into Labno’s
    apartment. She testified that when Cotton reemerged from the
    apartment, he placed himself in between Labno and Bare, still
    with the gun. Bare then stepped toward Cotton and said, “[I]f
    22
    State v. Braesch, 
    292 Neb. 930
    , 
    874 N.W.2d 874
    (2016).
    23
    
    Id. See, also,
    Escamilla, supra note 20.
    24
    Braesch, supra note 22.
    25
    Escamilla, supra note 20.
    26
    
    Id. 27 Id.
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    you’re going to hold the gun to me, then you better fucking
    shoot me,” at which point Cotton shot Bare.
    Cotton admitted to shooting Bare and to doing so purpose-
    fully. While Cotton presented a different version of events
    and claimed his actions were in self-defense, we must view
    the evidence in the light most favorable to the State. Based
    on Burnette’s testimony, there was sufficient evidence for a
    jury to conclude that Cotton went outside with the shotgun
    and injected himself into the argument between Labno and
    Bare with deliberate and premeditated malice to kill Bare.
    Therefore, this assignment of error is without merit.
    3. Ineffective Assistance
    of Counsel
    [15] When a defendant’s trial counsel is different from his or
    her counsel on direct appeal, the defendant must raise on direct
    appeal any issue of trial counsel’s ineffective performance
    which is known to the defendant or is apparent from the record.
    Otherwise, the issue will be procedurally barred.28
    [16] However, the fact that an ineffective assistance of
    counsel claim is raised on direct appeal does not necessarily
    mean that it can be resolved.29 Such a claim may be resolved
    when the record on direct appeal is sufficient to either affirm­
    atively prove or rebut the merits of the claim.30 The record is
    sufficient if it establishes either that trial counsel’s perform­
    ance was not deficient, that the appellant will not be able to
    establish prejudice, or that trial counsel’s actions could not be
    justified as a part of any plausible trial strategy.31
    [17] In the case of an argument presented for the purpose
    of avoiding procedural bar to a future postconviction pro-
    ceeding, appellate counsel must present a claim with enough
    28
    State v. Jedlicka, 
    297 Neb. 276
    , 
    900 N.W.2d 454
    (2017).
    29
    
    Id. 30 State
    v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    31
    See 
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    particularity for (1) an appellate court to make a determination
    of whether the claim can be decided upon the trial record and
    (2) a district court later reviewing a petition for postconviction
    relief to be able to recognize whether the claim was brought
    before the appellate court.32 A claim insufficiently stated is no
    different than a claim not stated at all.33
    [18,19] To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington,34 the defendant must
    show that his or her counsel’s performance was deficient and
    that this deficient performance actually prejudiced the defend­
    ant’s defense.35 To show deficient performance, a defendant
    must show that counsel’s performance did not equal that of a
    lawyer with ordinary training and skill in criminal law.36 To
    show prejudice, the defendant must demonstrate a reasonable
    probability that but for counsel’s deficient performance, the
    result of the proceeding would have been different.37 A reason-
    able probability is a probability sufficient to undermine con-
    fidence in the outcome.38 The two prongs of this test may be
    addressed in either order, and the entire ineffectiveness analy-
    sis should be viewed with a strong presumption that counsel’s
    actions were reasonable.39
    (a) Cotton Waived Right to Counsel
    Free of Conflict of Interest
    Cotton contends that his trial counsel was ineffective for
    failing to file a motion to withdraw, because his trial counsel
    32
    State v. Mendez-Osorio, supra note 2.
    33
    State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017).
    34
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984).
    35
    Burries, supra note 3.
    36
    State v. Duncan, 
    293 Neb. 359
    , 
    878 N.W.2d 363
    (2016).
    37
    See Burries, supra note 3.
    38
    State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017).
    39
    Jedlicka, supra note 28.
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    had a conflict of interest. He also asserts that his waiver of
    the conflict of interest was not effective, because it was not a
    signed writing and his trial counsel could not have given him
    detached advice when the conflict of interest was a personal
    conflict of Cotton’s trial counsel.
    The State argues that Cotton’s affirmative waiver of his
    trial counsel’s conflict of interest on the record was knowing
    and intelligent and that there was a strong presumption toward
    allowing Cotton to choose his own counsel, so the court did not
    err in accepting his waiver.
    [20] The Sixth Amendment to the U.S. Constitution provides
    that a criminal defendant has a right to have the assistance of
    counsel for his or her defense. An essential part of that right
    is the defendant’s ability to select the counsel of his or her
    choice.40 In general, defendants are free to employ counsel of
    their own choice and the courts are afforded little leeway in
    interfering with that choice.41 Accordingly, because disquali-
    fication of a criminal defendant’s chosen counsel raises prob-
    lems of a constitutional dimension, it is a harsh remedy that
    should be invoked infrequently.42
    The Sixth Amendment also recognizes a presumption in
    favor of the defendant’s chosen counsel.43 Among the reasons
    for this presumption are (1) a historic respect for the defend­
    ant’s autonomy in crafting a defense, (2) the strategic impor-
    tance of choice in ensuring vigorous advocacy, and (3) practi-
    cal considerations of costs to the defendant and the judicial
    system if counsel of choice were wrongly denied.44
    [21,22] But the right to effective assistance of counsel also
    entitles the accused to his or her counsel’s undivided loyalties,
    40
    State v. Kawa, 
    270 Neb. 992
    , 
    708 N.W.2d 662
    (2006), overruled on other
    grounds, Heckman v. Marchio, 
    296 Neb. 458
    , 
    894 N.W.2d 296
    (2017).
    41
    
    Id. 42 Id.
    43
    
    Id. 44 Id.
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    free from conflicting interests.45 In the absence of an objection,
    the court has a duty to inquire into a potential conflict of inter-
    est only when the trial court knows or reasonably should know
    that a particular conflict exists—which is not to be confused
    with a situation in which the trial court is aware of a vague,
    unspecified conflict of interest, such as that which inures in
    almost every instance of multiple representation.46
    [23,24] A defendant can waive his or her right to assist­
    ance of counsel unhindered by a conflict of interest, provided
    that the waiver is knowing and intelligent, but a court is not
    required to accept a defendant’s waiver in all circumstances.47
    The right to counsel of choice is not absolute. A trial court
    must recognize a presumption in favor of a defendant’s counsel
    of choice, but that presumption may be overcome by a dem-
    onstration of actual conflict or a showing of a serious poten-
    tial for conflict.48 Disqualification in such cases is necessary,
    because when a defendant is represented by an attorney who
    has an actual or potentially serious conflict, the defendant may
    be deprived of effective assistance of counsel.49
    [25] A defendant who raised no objection at trial must
    show that an actual conflict of interest existed and that the
    conflict adversely affected his or her lawyer’s performance.50
    When an actual conflict exists, there is no need to show that
    the conflict resulted in actual prejudice to the defendant. If
    the defendant shows that his or her defense counsel faced a
    situation in which conflicting loyalties pointed in opposite
    45
    State v. Edwards, 
    284 Neb. 382
    , 
    821 N.W.2d 680
    (2012).
    46
    State v. Aldaco, 
    271 Neb. 160
    , 
    710 N.W.2d 101
    (2006), citing Wood v.
    Georgia, 
    450 U.S. 261
    , 
    101 S. Ct. 1097
    , 
    67 L. Ed. 2d 220
    (1981), and
    Cuyler v. Sullivan, 
    446 U.S. 335
    , 
    100 S. Ct. 1708
    , 
    64 L. Ed. 2d 333
          (1980).
    47
    Kawa, supra note 40.
    48
    
    Id. 49 Id.
    50
    Edwards, supra note 45.
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    directions and that his or her counsel acted for the other cli-
    ent’s interests or the counsel’s own personal interests and
    against the defendant’s interests, prejudice is presumed.51 A
    conflict of interest must be actual, rather than speculative or
    hypothetical, before a court can overturn a conviction because
    of ineffective assistance of counsel.52
    Here, there was no motion to withdraw or motion to dis-
    qualify regarding Cotton’s trial counsel. Nevertheless, upon
    being informed by the State of Cotton’s trial counsel’s poten-
    tial ethical violations, the court fulfilled its duty to inquire
    into the potential conflict of interest. The issue was dis-
    cussed by the parties’ attorneys, and Cotton affirmatively
    waived the potential conflict of interests on the record. We
    first consider whether his waiver was effective. If Cotton’s
    consent was effective, we then consider whether the court
    abused its discretion in accepting Cotton’s waiver. If either
    of the preceding questions are answered in the negative, we
    must determine whether Cotton’s trial counsel had an actual
    conflict of interest that adversely affected his representation
    of Cotton.
    (i) Additional Facts
    Lindsey Redinbaugh is the mother of Labno’s children.
    Before trial, Cotton’s trial counsel identified Redinbaugh as a
    witness, who would testify that Labno procured the shotgun
    used to kill Bare. Redinbaugh was served a subpoena on July
    19, 2016, to appear and testify at Cotton’s trial.
    The State filed a motion in limine requesting to have
    Redinbaugh excluded as a witness or to allow the State to
    inquire on cross-examination regarding her employment with
    Cotton’s trial counsel. The State also requested that the court
    advise Cotton of the potential conflict of interest resulting from
    his trial counsel’s relationship with Redinbaugh.
    51
    See 
    id. 52 Id.
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    The State’s motion in limine alleged the following facts:
    Redinbaugh was hired by Cotton’s trial counsel on approxi-
    mately July 22, 2016; Redinbaugh and Cotton’s trial counsel
    had discussed Matthew Krisel’s statements to law enforce-
    ment; on July 29, while Krisel was being deposed by Cotton’s
    trial counsel, Redinbaugh sent Krisel two messages on social
    media accusing him of “‘snitching’” and discouraging him
    from doing so; Redinbaugh was arrested that day for wit-
    ness tampering, and her cell phone was seized; Cotton’s
    counsel informed a deputy Douglas County Attorney that
    Redinbaugh’s cell phone may contain attorney work product
    and that he intended to represent Redinbaugh on the tamper-
    ing charges.
    In the motion in limine, the State also expressed concerns
    that Cotton’s attorney may have aided Redinbaugh in witness
    tampering and either inappropriately discussed this case with
    Redinbaugh or allowed her access to case material, in viola-
    tion of discovery rules. Cotton’s trial counsel’s response to the
    motion in limine does not appear in the record.
    At the hearing on the motion, in Cotton’s presence, the
    State alleged that Cotton’s trial counsel had requested that
    the parties stipulate to not calling Redinbaugh as a witness
    and stated that “the concern or the appearance of it is, is that
    [Cotton’s trial counsel] is now getting out of calling a mate-
    rial witness on behalf [of Cotton] to save himself from any
    ethical problems.” Cotton’s trial counsel responded that he
    had informed the State he did not intend to call Redinbaugh
    at the deposition of Krisel based on trial strategy. Cotton’s
    trial counsel also stated that he had conferred with counsel for
    discipline and Cotton and that he and Cotton believed that it
    was in Cotton’s best interests for him to continue represent-
    ing Cotton.
    There were also two versions of a local newspaper article
    which concerned the situation between Cotton’s trial counsel
    and Redinbaugh entered into evidence. The record does not
    establish that Cotton read the articles.
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    The court then questioned Cotton about the motion. Upon
    the court’s inquiry, Cotton stated that he had read the State’s
    motion in limine, had discussed it with his trial counsel,
    had been able to ask his trial counsel any questions that he
    had about the motion in limine, had read his trial counsel’s
    response to the State’s motion in limine, and understood the
    potential ethics violations the State had raised concerning his
    attorney and their implications. Then, the following colloquy
    between the court and Cotton occurred: “THE COURT: Okay.
    Do you choose to go forward with [your trial counsel] as your
    counsel? [Cotton]: I do. THE COURT: All right. And do you
    wish to go to trial today? [Cotton]: Yes, sir.”
    (ii) Cotton’s Waiver Was Effective
    [26,27] A waiver is the voluntary and intentional relin-
    quishment of a known right, privilege, or claim, and may be
    demonstrated by or inferred from a person’s conduct.53 There
    is no formalistic litany required to establish that a waiver was
    knowingly and intelligently made; instead, when considering
    whether a defendant voluntarily, knowingly, and intelligently
    waived his or her right to counsel, we review the totality
    of the circumstances appearing in the record.54 A voluntary
    waiver, knowingly and intelligently made, must affirmatively
    appear from the record, before a court may conclude that a
    defend­ant has waived a right constitutionally guaranteed or
    granted by statute.55
    [28,29] In determining whether a defendant’s waiver of a
    statutory or constitutional right was voluntary, knowing, and
    intelligent, an appellate court applies a clearly erroneous stan-
    dard of review.56 Under a clearly erroneous standard of review,
    53
    State v. Qualls, 
    284 Neb. 929
    , 
    824 N.W.2d 362
    (2012).
    54
    See 
    id., citing State
    v. Figeroa, 
    278 Neb. 98
    , 
    767 N.W.2d 775
    (2009).
    55
    
    Id. 56 Id.
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    we do not reweigh the evidence, but we decide the ultimate
    question independent of the trial court’s ruling.57
    First, Cotton asserts that his waiver was per se ineffective,
    because it did not comply with Neb. Ct. R. of Prof. Cond.
    § 3-501.7(b)(4), which requires an attorney to obtain “informed
    consent, confirmed in writing” from a client when there is a
    concurrent conflict of interest.
    The Nebraska Rules of Professional Conduct govern
    the ethical duties and restrictions of attorneys in Nebraska.
    Conversely, a defendant’s right to counsel free of conflict-
    ing interests, and the waiver thereof, is governed by the state
    and federal Constitutions. Accordingly, while Cotton’s trial
    counsel’s alleged failure to obtain written consent may be rel-
    evant in disciplinary proceedings, it is not relevant to Cotton’s
    waiver before the court.
    Second, Cotton asserts that he could not effectively waive
    the conflict of interest, because his trial counsel’s conflict was
    personal, which prevented him from giving detached advice.
    Though it is conceivable that any advice from Cotton’s trial
    counsel to Cotton concerning the waiver was tainted with self-
    interest, the record contains an extensive dialogue between
    Cotton and the court. Cotton admitted that he had personally
    reviewed the State’s motion in limine and that he was in court
    during the hearing. Accordingly, Cotton was aware of the
    factual basis for the conflict of interest and the State’s con-
    cerns about the impact that Cotton’s trial counsel’s conflicts
    might have on his defense. Cotton also stated that he was able
    to ask his counsel any questions he had about the situation.
    While it is possible that Cotton’s trial counsel was not hon-
    est with Cotton, Cotton was aware of the situation and had
    reason to view his trial counsel’s statements with skepticism.
    Nevertheless, Cotton affirmatively stated on the record that he
    57
    See, State v. Pullens, 
    281 Neb. 828
    , 
    800 N.W.2d 202
    (2011); Jacob North
    Printing Co. v. Mosley, 
    279 Neb. 585
    , 
    779 N.W.2d 596
    (2010), overruled
    on other grounds, Heckman, supra note 40.
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    wished to proceed to trial with his counsel. Therefore, we hold
    that Cotton made a knowing and intelligent waiver of the con-
    flict of interest on the record.
    (iii) Court Did Not Abuse Its Discretion
    in Accepting Cotton’s Waiver
    [30,31] When determining whether or not to disqualify a
    defense counsel, the court must balance two Sixth Amendment
    rights: (1) the defendant’s right to be represented by counsel
    of choice and (2) his or her right to a defense conducted by
    an attorney who is free of conflicts of interest.58 The U.S.
    Supreme Court has also recognized an independent interest of
    the courts in ensuring that criminal trials are conducted within
    the ethical standards of the profession and that legal proceed-
    ings appear fair to all who observe them.59 Whether a conflict
    of interest justifies the disqualification of defense counsel is a
    matter committed to the discretion of the trial court.60
    Here, where Cotton effectively waived his right to proceed
    with counsel free of any conflicts of interest, we begin by
    considering whether his trial counsel had an actual conflict of
    interest or a showing of a serious potential for conflict, which
    would be required to overcome the presumption in favor of
    Cotton’s choice of counsel.
    [32] We have broadly defined the phrase “actual conflict” to
    include any situation in which a defense attorney faces divided
    loyalties such that regard for one duty tends to lead to disre-
    gard of another.61 An actual conflict may arise from concurrent
    representation, subsequent representation, or a personal con-
    flict held by counsel.62 Accordingly, if a defense counsel acts
    58
    State v. Ehlers, 
    262 Neb. 247
    , 
    631 N.W.2d 471
    (2001), overruled on other
    grounds, Heckman, supra note 40.
    59
    
    Id. 60 See
    State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
    (2013).
    61
    Edwards, supra note 45.
    62
    See, § 3-501.7; McGuire, supra note 60; Edwards, supra note 45.
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    or refrains from acting at trial in a manner that is inconsistent
    with the defendant’s interests based on the preceding sources
    of conflicts, the defense counsel actively represents conflict-
    ing interests.63
    [33,34] The seriousness of any potential conflict of inter-
    est depends on its likelihood and dimensions.64 When weigh-
    ing the interests at stake, courts generally give substantial
    weight to defense counsel’s representations regarding conflicts
    of interest.65
    Cotton’s trial counsel had disclosed that the reason for call-
    ing Redinbaugh as a witness was to support Cotton’s allega-
    tion that Labno, not himself, had acquired the shotgun used in
    the shooting and to attack Labno’s credibility, who claimed he
    had not procured the gun. While Labno’s testimony supported
    the State’s theory of the case, the testimony of the State’s pri-
    mary witness—Burnette—would have been wholly unaffected
    by the source of the gun used in the shooting. Accordingly, the
    evidence presented to the trial court did not support a conclu-
    sion that the failure to call Redinbaugh was per se an actual
    conflict of interest.
    However, the jury’s determination of whether or not Cotton
    acted in self-defense was based solely on the credibility of
    Cotton and the witnesses to the shooting. In a case dependent
    on witness credibility, any witness that could strengthen the
    defendant’s credibility and undermine a State witness’ cred-
    ibility could be in the defendant’s interest to call. Accordingly,
    Cotton’s trial counsel’s decision not to call Redinbaugh, in
    light of the ethical violations by Cotton’s trial counsel that the
    court determined she would be subject to cross-examination
    on, did support a conclusion that his actions represented a
    potential conflict of interest.
    63
    See Edwards, supra note 45.
    64
    Ehlers, supra note 58, citing Wheat v. United States, 
    486 U.S. 153
    , 108 S.
    Ct. 1692, 
    100 L. Ed. 2d 140
    (1988).
    65
    
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    Nevertheless, we conclude that Cotton’s trial counsel’s
    potential conflict of interest was not a serious one. As men-
    tioned above, the State’s case rested primarily on the credibility
    of Burnette, not Labno. The trial court had no reason to believe
    that Redinbaugh would absolutely be called to testify at trial or
    that her testimony would have made a significant impact, espe-
    cially in light of the defense’s cell phone record evidence that
    also undermined Labno’s testimony that he did not leave his
    apartment during the early morning of August 7, 2015. Further,
    Cotton’s trial counsel stated that he had informed the State that
    Redinbaugh would not be called as a witness, based on trial
    strategy, before the issue of witness tampering arose, which the
    State did not dispute.
    Because of the substantial weight that Cotton’s trial counsel
    was entitled to on this testimony, the evidence presented to
    the court did not support a finding that Cotton’s trial counsel’s
    potential conflict of interest was serious. Accordingly, the pre-
    sumption in favor of Cotton’s right to choose his own counsel
    after waiving the conflict of interest could not be overcome.
    Therefore, the court did not abuse its discretion in accepting
    Cotton’s waiver of the conflict of interest. This assignment of
    error is without merit.
    (b) Cotton Cannot Show Prejudice From
    His Trial Counsel’s Decision Not to
    Call Redinbaugh as Witness
    Related to the preceding section, Cotton argues that his
    trial counsel was ineffective for failing to call Redinbaugh as
    a witness. Again, he alleges that she would have testified that
    Labno left his apartment prior to the shooting to procure the
    shotgun used to shoot Bare. He argues that he was prejudiced
    because the testimony would have supported his credibility and
    undermined Labno’s credibility, which was essential because
    his claim of self-defense hinged on who brought the shotgun
    into the apartment.
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    The State argues that the only material fact in dispute is
    whether Cotton acted in self-defense, and the fact of who
    brought the shotgun to the house had no bearing on that fact.
    As discussed above, while witness credibility was paramount
    to determining whether or not Cotton acted in self-defense,
    the State’s case rested primarily on Burnette’s testimony of
    the shooting, not Labno’s. As Cotton argues, his claim of
    self-defense is largely based on who brought the gun into the
    apartment during the dispute with Bare. However, as the State
    argues, whether Cotton or Labno procured the gun is largely
    irrelevant to who possessed the gun at the time of the shooting.
    Burnette’s testimony established that Cotton possessed the gun
    before any altercation with Bare began and maintained posses-
    sion of the gun until Cotton ultimately shot Bare.
    Accordingly, assuming without deciding that Cotton’s trial
    counsel’s decision to not have Redinbaugh provide the testi-
    mony Cotton alleges at trial was deficient, Cotton cannot prove
    a reasonable probability that the outcome of the proceedings
    would have been different if Redinbaugh had testified as
    alleged. Because Cotton cannot show that he was prejudiced by
    his trial counsel’s failure to call Redinbaugh as a witness, this
    assignment of error is without merit.
    (c) Cotton Waived Right to Request Mistrial
    Regarding Labno’s Testimony
    Cotton contends that his trial counsel was ineffective for
    failing to request a mistrial when Labno appeared at trial after
    being declared unavailable and having a portion of his depo-
    sition read into the record. He asserts that his trial counsel
    effectively admitted deficient performance on the record by
    expressing uncertainty on how to proceed. Cotton also asserts
    that his decision not to request a mistrial was invalid because
    of his trial counsel’s admission. He argues that he was preju-
    diced, because Labno’s testimony received undue influence by
    being presented to the jury twice and the State had the oppor-
    tunity to corroborate Labno’s deposition testimony.
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    The State argues that Cotton’s trial counsel’s performance
    was not defective but, instead, represented legitimate trial
    strategy. Further, it contends that Cotton cannot complain that
    his counsel did not request a mistrial, because Cotton con-
    sented to Labno’s testimony.
    (i) Additional Facts
    On the fourth day of trial, the State informed the court that
    it had subpoenaed Labno to testify but that he had failed to
    appear. Accordingly, it requested that Labno be declared an
    unavailable witness and asked that it be allowed to read his
    deposition into evidence.
    In support of the request, the State asked the court to
    take judicial notice of the subpoena issued to Labno; offered
    the court’s bench warrant for Labno, issued when he failed
    to appear on the first day of trial; and offered a copy of
    Labno’s criminal record file, showing that the Omaha Police
    Department’s homicide unit made two unsuccessful attempts
    to locate Labno pursuant to the court’s bench warrant. The
    attorney appointed to represent Labno in the case testified
    that he had spoken with Labno earlier that day and that Labno
    indicated he would be present to testify at trial. However, he
    stated that he had heard nothing further from Labno and was
    currently unable to reach him.
    The district court found that the State made a prima facie
    showing that Labno was unavailable and allowed the State
    to read Labno’s deposition into the record. Then, with seven
    pages of the deposition left, the State informed the court that
    it had just received a note indicating that Labno had arrived at
    the courthouse.
    The State proposed that Labno’s deposition be stricken with
    an accompanying instruction to the jury or, alternatively, that
    they continue with the deposition and not have Labno testify.
    However, the State ultimately decided to defer to the defense’s
    decision with how to proceed.
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    Cotton’s trial counsel initially indicated that he was unsure
    of the legal stance of the case at that point and was not sure
    how to proceed. Cotton’s trial counsel then reasoned that the
    two options were to allow Labno to be declared available and
    be permitted to testify or to move to strike Labno’s deposition
    testimony and move for a mistrial because the jury would not
    be able to disregard the deposition testimony. The court then
    determined that the State could proceed with Labno’s live tes-
    timony, without striking the deposition, and stated that it would
    not declare a mistrial, but told Cotton’s trial counsel that he
    could still object after conferring with Cotton.
    After conferring with Cotton, Cotton decided to proceed
    with calling Labno without objection. The court then ques-
    tioned Cotton further on whether he consented to proceeding
    without objection. Cotton stated that he had been in the court-
    room while the situation was discussed and then the situation
    was again relayed to him. At that point, the court presented
    Cotton with the following question: “Do you . . . want a mis-
    trial or do we want to keep going and allow . . . Labno to take
    the stand and start from the beginning?” Cotton stated that he
    understood the question, and then his trial counsel stated that
    they wished to proceed. Nothing in the record indicated that
    Cotton disagreed with his trial counsel’s final confirmation.
    The jury was brought back in, and the court informed it
    that Labno had just arrived to testify. The court informed the
    jury that Labno would now take the stand and that while the
    information might be repetitive, it was its job to decipher and
    deal with that information.
    (ii) Analysis
    [35] A mistrial is properly granted in a criminal case where
    an event occurs during the course of trial that is of such a
    nature that its damaging effect cannot be removed by proper
    admonition or instruction to the jury and thus prevents a
    fair trial.66 The defendant must prove that the alleged error
    66
    State v. McCurry, 
    296 Neb. 40
    , 
    891 N.W.2d 663
    (2017).
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    a­ ctually prejudiced him or her, rather than creating only the
    possibility of prejudice.67
    We reject Cotton’s assertion that his trial counsel’s state-
    ments on the record constituted an admission of deficient
    performance. While Cotton’s trial counsel initially expressed
    that he was unfamiliar with how to proceed in this novel situ-
    ation, the record shows that he had a clear grasp of the situa-
    tion and the basis for a mistrial. His statements on the record
    indicate that his decision of whether to proceed with Labno’s
    live testimony or move to strike Labno’s deposition testimony
    and request a mistrial was based on trial strategy, rather than
    deficient performance. Accordingly, the record is insufficient
    to determine whether such strategy itself amounted to a defi-
    cient performance.
    [36] Nevertheless, such an examination is unnecessary,
    because Cotton personally consented to proceeding with
    Labno’s live testimony. A defendant has a fundamental con-
    stitutional right to a fair trial.68 Accordingly, the principles
    required to waive such a right, as discussed above, apply with
    full force here. The record shows that Cotton admitted listen-
    ing to the full discussion of the situation and each attorney’s
    and the court’s proposition of how to proceed and the legal
    basis supporting the decision. He also had the opportunity to
    confer with his trial counsel on how to proceed. Even though
    his trial counsel may not have understood the exact basis for
    moving for a mistrial or to strike Labno’s deposition testi-
    mony, the record shows, as mentioned above, that his trial
    counsel understood the basis for a mistrial and that it was an
    option here.
    [37] Cotton stated affirmatively on the record that he under-
    stood that he was being asked whether he wanted a mistrial
    or to allow Labno to provide live testimony. While it was
    Cotton’s trial counsel who ultimately answered the question,
    as stated above, consent may be inferred by a defendant’s
    67
    
    Id. 68 See
    State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
    (2017).
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    actions.69 Based on the circumstances here, Cotton’s failure
    to protest his trial counsel’s consent to proceed with live tes-
    timony was effective to provide consent to his trial counsel’s
    statement. A defendant who has been fully informed of the
    constitutional right to testify may not acquiesce in his or her
    counsel’s advice that he or she waive that right, and then later
    claim that he or she did not voluntarily waive such right.70
    Therefore, this assignment of error is without merit.
    (d) Prosecutorial Misconduct
    [38] When considering a claim of prosecutorial misconduct,
    we first consider whether the prosecutor’s acts constitute mis-
    conduct.71 A prosecutor’s conduct that does not mislead and
    unduly influence the jury is not misconduct.72 But if we con-
    clude that a prosecutor’s acts were misconduct, we consider
    whether the misconduct prejudiced the defendant’s right to a
    fair trial.73 Prosecutorial misconduct prejudices a defendant’s
    right to a fair trial when the misconduct so infected the trial
    that the resulting conviction violates due process.74 Before it is
    necessary to grant a mistrial for prosecutorial misconduct, the
    defendant must show that a substantial miscarriage of justice
    has actually occurred.75
    (i) Prosecutor’s Statements Regarding
    Burnette’s Testimony in
    Closing Arguments
    Cotton argues that the court erred in denying his motion for
    new trial based on prosecutorial misconduct. Cotton contends
    69
    See Qualls, supra note 53.
    70
    See State v. Rhodes, 
    277 Neb. 316
    , 
    761 N.W.2d 907
    (2009).
    71
    See Johnson, supra note 68.
    72
    
    Id. 73 State
    v. Gonzales, 
    294 Neb. 627
    , 
    884 N.W.2d 102
    (2016).
    74
    
    Id. 75 Id.
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    that the prosecutor’s statement in his rebuttal closing argu-
    ment—that Burnette did not testify that Bare was advancing
    toward Cotton when Cotton shot Bare—was improper, because
    the evidence showed otherwise. He also assigns error to his
    trial counsel’s failure to object to the prosecutor’s statement
    and his failure to request a mistrial, to the extent that his claim
    of prosecutorial misconduct is prejudiced. Cotton argues the
    prosecutor’s statement prejudiced him by mischaracterizing a
    material fact when the State’s case was not strong and by pre-
    venting his counsel from responding.
    The State admits that the statement was not entirely accurate
    but argues that it did not amount to misconduct, because the
    evidence adduced from Burnette was conflicting. It also argues
    that Cotton was not prejudiced, because his attorney rebutted
    a similar statement made by the prosecutor in the initial clos-
    ing argument, the prosecutor admitted in the rebuttal closing
    argument that he could be wrong about what Burnette said, and
    the jury was instructed that statements by the attorneys were
    not evidence.
    a. Additional Facts
    On direct examination, Burnette responded to a question by
    saying that “he” stepped forward and then Bare said, “If you’re
    going to shoot me — if you’re going to hold the gun to me,
    then you better fucking shoot me.” However, in that answer,
    Burnette had referred to both Cotton and Bare, which made it
    unclear as to who had stepped forward. Later in her direct tes-
    timony, Burnette responded, “No,” when asked, “Right before
    [Cotton] shot [Bare], did you see [Bare] make any motion or
    movement towards [Cotton]?” Then, on cross-examination,
    Burnette clarified that Bare did take a step toward Cotton a
    second or two before making his statement and that Bare was
    shot right after making the statement.
    During closing arguments, the parties made the following
    respective comments about Burnette’s testimony, regarding
    whether or not Bare had approached Cotton before being shot:
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    [State’s initial closing argument]: . . . But most impor-
    tantly, what does [Labno] tell you about the actions of
    . . . Bare? That . . . Bare did not advance at him. Never.
    Never advanced to . . . Cotton, which is consistent with
    [the testimony of] Burnette. . . .
    ....
    [Cotton’s closing argument]: [The prosecutor] says
    [Bare] didn’t move forward. But really, on cross, it was
    brought out that [Bare] did move forward. In fact — and
    that’s why I said even if you think everything [Burnette]
    did say was true, what [Burnette] said is that [Cotton]
    and [Bare] were about four to five feet from each other,
    well within striking distance. [Cotton] motioned, asked
    [Bare] to go into the apartment, and then [Bare] moved
    forward and said, If you have a gun you better use it, and
    that was all within one to two seconds of the shot.
    ....
    [State’s rebuttal argument]: . . . I completely disagree
    that . . . Burnette said [Bare] moved forward . . . . And
    if I’m wrong, I’m wrong. Labno didn’t say it. Burnette
    didn’t say that. But that’s your responsibility. Go back
    [and] look at your notes. That’s why you have them.
    b. Cotton Failed to Preserve Issue of
    Prosecutorial Misconduct and
    Prosecutor’s Statement Did
    Not Constitute Plain Error
    [39] One may not waive an error, gamble on a favorable
    result, and, upon obtaining an unfavorable result, assert the pre-
    viously waived error.76 Accordingly, a party who fails to make
    a timely motion for mistrial based on prosecutorial misconduct
    waives the right to assert on appeal that the court erred in not
    declaring a mistrial due to such prosecutorial misconduct.77
    76
    State v. Herrera, 
    289 Neb. 575
    , 
    856 N.W.2d 310
    (2014).
    77
    State v. Smith, 
    292 Neb. 434
    , 
    873 N.W.2d 169
    (2016).
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    While Cotton filed a motion for new trial after his conviction,
    he failed to preserve the issue of prosecutorial misconduct
    for appellate review, because he failed to object and make a
    timely motion for a mistrial.
    [40] When a defendant has not preserved a claim of prosecu-
    torial misconduct for direct appeal, we will review the record
    only for plain error.78 Plain error exists where there is an error,
    plainly evident from the record but not complained of at trial,
    which prejudicially affects a substantial right of a litigant and
    is of such a nature that to leave it uncorrected would cause a
    miscarriage of justice or result in damage to the integrity, repu-
    tation, and fairness of the judicial process.79
    Based on our discussion in the following section, we con-
    clude that the prosecutor’s statement did not amount to plain
    error, because Cotton was not prejudiced to the extent that
    leaving it uncorrected would amount to a miscarriage of jus-
    tice. Therefore, the trial court did not err in overruling Cotton’s
    motion for new trial based on prosecutorial misconduct.
    c. Cotton Cannot Show Prejudice by
    Trial Counsel’s Failure to Object
    to Prosecutor’s Statement
    Before considering whether Cotton’s trial counsel was defi-
    cient for failing to object to the prosecutor’s statement, which
    would require a determination as to whether the prosecutor’s
    statement amounted to prosecutorial misconduct, we consider
    whether Cotton was prejudiced by his trial counsel’s failure
    to object.
    As the State admits, the prosecutor’s statement did mischar-
    acterize the evidence adduced on cross-examination. However,
    directly after making the statement, the prosecutor admitted
    that he could potentially be wrong and that the members of
    the jury needed to refer to their notes to resolve the factual
    78
    State v. Dubray, 
    289 Neb. 208
    , 
    854 N.W.2d 584
    (2014).
    79
    State v. Robbins, 
    297 Neb. 503
    , 
    900 N.W.2d 745
    (2017).
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    dispute. Further, as the State acknowledged, this statement
    responded to Cotton’s trial counsel’s response to a similar con-
    tention that the prosecutor made in its initial closing argument.
    This back-and-forth highlighted the importance of this fact and
    allowed each side to argue its position to the jury. The court
    instructed the jury that “[i]t is your duty to decide what the
    facts are” and that “[s]tatements, arguments, and questions of
    the lawyers for the state and [Cotton]” are not evidence.
    [41] The purpose of jury instructions is to assure decisions
    that are consistent with the evidence and the law and to inform
    the jury clearly and succinctly of the role it is to play, the deci-
    sions it must make, and to assist and guide the jury in under-
    standing the case and considering testimony.80 Absent evidence
    to the contrary, it is presumed that a jury followed the instruc-
    tions given in arriving at its verdict.81
    We reject Cotton’s argument that the prosecutor’s statement
    went unanswered and had the effect of misleading the jury on
    a material fact. Instead, both sides were able to discuss the
    factual issue and the jury was instructed that the attorneys’
    statements were not evidence and that it was the jury’s duty
    to decide factual matters, which the jury presumably followed.
    Accordingly, we do not believe the prosecutor’s statement
    undermines the confidence in the jury’s decision. Therefore,
    this assignment of error is without merit.
    (ii) Prosecutor’s Statements About
    Credibility in Closing Argument
    Did Not Constitute Misconduct
    Cotton argues that his trial counsel provided ineffective
    assistance by failing to object to prosecutorial misconduct in
    the State’s closing argument regarding Cotton and his trial
    counsel’s credibility. He argues his trial counsel was defi-
    cient, because the prosecution’s characterization that Cotton
    80
    State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
    (2016).
    81
    State v. Lester, 
    295 Neb. 878
    , 
    898 N.W.2d 299
    (2017).
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    and his trial counsel had fabricated Cotton’s testimony was a
    personal opinion that amounted to misconduct. Cotton argues
    that he was prejudiced because the prosecutor’s statements are
    accorded weight by a jury and they undercut his theory of self-
    defense that relied on his credibility.
    The State argues that the statements were an acceptable
    attack on Cotton’s credibility.
    a. Additional Facts
    During his initial closing argument, the prosecutor began
    by discussing the jury instructions. Regarding jury instruction
    No. 22, he stated the following:
    Instruction No. 22, is the sole — you guys are the cred-
    ibility — or the sole judges of a witness’s credibility.
    The conduct and demeanor of the witness while testify-
    ing. Was . . . Burnette appropriate as she sat in this chair
    and told you what happened August 6th into August 7th,
    2015? Did it look like it was staged? Was it scripted?
    Okay? How about the sources of information, including
    the opportunity for seeing or knowing the things about
    which the witness testified. . . . [Y]ou know from the
    testimony through . . . Burnette and . . . Labno specifi-
    cally, they didn’t have this entire binder. They weren’t
    privy to everybody’s statements. They didn’t review
    depositions of every single witness, and they sure didn’t
    sit in and listen to every single witness the State put on
    when we presented our case. . . . And that’s important
    why? Because who has had everything from the day
    — from August of 2015, who has had everything? . . .
    Cotton has seen every single thing that I have. . . . How
    about the reasonableness or unreasonableness of the tes-
    timony of the witness? . . . Burnette, again, did it make
    sense? Was it corroborated by other evidence — physi-
    cal evidence? Was it corroborated, more importantly,
    by other witnesses? . . . Labno, or — or was it just so
    unbelievable . . . .
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    Then, while discussing Cotton’s testimony throughout his ini-
    tial closing argument, the prosecutor stated at three points that
    Cotton’s testimony seemed scripted. Cotton identified the first
    of these statements as prosecutorial misconduct. The statement,
    including the surroundings statements, is as follows:
    Keep in min[d], he’s had everything, everything the State
    has, for a year almost, to sit and review it. All the deposi-
    tions, police reports, videos of the interviews, and he sat
    through all of this. . . .
    ....
    . . . He sat through all of this trial with every single
    witness right there in that chair. When I sat here and
    listened to [Cotton’s] statement, I paid attention to his
    demeanor, and I hope you did, too. Because I thought it
    was unreasonable what he was talking about. It almost
    felt like it was a script. The defense attorney . . . : I know
    this is emotional for you right now, [Cotton] — and it
    was, Oh, cue the quivering lip. It was — there were times
    when [Cotton] would look at [his attorney] almost as like,
    What are you asking? Stay on script.
    Cotton’s trial counsel followed up on this during his closing
    argument with the ensuing statements:
    Now, on Friday we all saw . . . Cotton sit here. We saw
    him speak from his heart and tell his account. And you
    know what I think we saw is that that wasn’t scripted. I
    think what we saw is that was the opposite of scripted.
    I couldn’t — he didn’t want to just answer my ques-
    tions. What he wanted to do was elaborate and elaborate
    and elaborate. He wanted to fill in every detail that you
    didn’t have, even if it was inconsistent with some of the
    witnesses. I think it’s totally obvious that the last thing
    . . . Cotton did was think, What am I going to say, how
    I’m go to go tailor it to everyone, how am I going to
    convince people that I have a story that makes sense that
    fits just enough. I think you could see that’s not what he
    was doing.
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    ....
    . . . There’s no evidence that . . . Cotton had conspired
    to develop his script, besides the fact that he’s sitting here.
    Other people had reviewed their depositions, as well.
    ....
    . . . I don’t want you to listen to the county attorney
    trying to force it down your throats that . . . Cotton cannot
    be trusted for the sole reason that he sat here in the trial
    and heard other people testify.
    b. Analysis
    [42,43] Public prosecutors are charged with the duty to
    conduct criminal trials in such a manner that the accused may
    have a fair and impartial trial.82 Because prosecutors are held
    to a high standard for a wide range of duties, the term “pros-
    ecutorial misconduct” cannot be neatly defined.83 Generally,
    prosecutorial misconduct encompasses conduct that violates
    legal or ethical standards for various contexts because the
    conduct will or may undermine a defendant’s right to a fair
    trial.84 While a prosecutor should prosecute with earnestness
    and vigor and may strike hard blows, he is not at liberty to
    strike foul ones.85
    [44] A prosecutor must base his or her argument on the
    evidence introduced at trial rather than on matters not in evi-
    dence.86 When a prosecutor’s comments rest on reasonably
    drawn inferences from the evidence, he or she is permitted to
    present a spirited summation that a defense theory is illogical
    or unsupported by the evidence and to highlight the relative
    believability of witnesses for the State and the defense.87 These
    82
    Gonzales, supra note 73.
    83
    State v. Nolan, 
    292 Neb. 118
    , 
    870 N.W.2d 806
    (2015).
    84
    
    Id. 85 Gonzales,
    supra note 73.
    86
    Johnson, supra note 68.
    87
    Nolan, supra note 83.
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    types of comments are a major purpose of summation, and they
    are distinguishable from attacking a defense counsel’s personal
    character or stating a personal opinion about the character of a
    defendant or witness.88
    The State compares the prosecutor’s comments in closing to
    those in State v. Jacob89 and State v. Custer.90 In both Custer
    and Jacob, we reviewed comments by prosecutors to deter-
    mine if they had made improper statements on the defendants’
    invocation of their right to remain silent between the time they
    were arrested and trial.
    In Custer, we relied on our holding in Jacob by equating
    the statements in the case to those considered in Jacob. We
    summarized the relevant statements in Jacob, during closing
    arguments, as “before the defendant testified at trial, he ‘“had
    five years to think of his answers, five years to run through all
    of this. Five years to prepare”’ and that he had ‘“sat through
    this trial and heard every witness and every question.”’”91
    Further, we stated:
    We characterized the State’s remarks in Jacob as com-
    menting on the defendant’s credibility and as implying
    that “in evaluating the credibility of [the defendant’s] tes-
    timony, the jury should consider that [the defendant] had
    the benefit of first hearing all the witnesses’ testimony
    and had 5 years to prepare his testimony.”92
    In both cases, we concluded that the prosecutor’s state-
    ments commented only on the defendant’s credibility and
    were not an impermissible commentary on the defendant’s
    silence. Accordingly, the prosecutor’s comments in this
    case discussing Cotton’s access to the State’s evidence in
    88
    
    Id. 89 State
    v. Jacob, 
    253 Neb. 950
    , 
    574 N.W.2d 117
    (1998), abrogated on other
    grounds, Nolan, supra note 83.
    90
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).
    91
    
    Id. at 111,
    871 N.W.2d at 261, quoting Jacob, supra note 89.
    92
    
    Id., citing and
    quoting Jacob, supra note 89.
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    testifying were not misconduct, because they concerned only
    Cotton’s credibility.
    The prosecutor’s comments in this case, however, did not
    stop at merely attacking Cotton’s credibility based on his
    access to the State’s evidence. Instead, the prosecutor took his
    comments in closing one step further by stating that Cotton
    seemed to use his access to the State’s evidence to script his
    testimony and, further still, implying that Cotton’s trial counsel
    took part in the scripting.
    In State v. Barfield,93 we held that the prosecutor’s char-
    acterization of the defendant as a “‘monster’” and strong
    “insinuat[ion] that defense lawyers are all liars” constituted
    misconduct.94 We found such statements to be an impermis-
    sible personal expression of the defendant’s culpability and
    implication that it is the job of defense attorneys to mislead
    juries, which “‘denigrate[s] the legal profession in the eyes of
    the jury and, consequently, the public at large.’”95
    Then, in State v. Dubray,96 we also held a prosecutor’s state-
    ments to be misconduct when he “characterized defense coun-
    sel as ‘walking on the graves of these two people’ and arguing
    that the victims ‘deserved to die.’” We reasoned that these
    statements were not as bad as calling defense attorneys liars,
    as in Barfield, but were directed at defense counsel personally
    and not at his arguments.
    [45] However, in State v. Nolan,97 we differentiated a pros-
    ecutor’s statements from those in Barfield and Dubray by
    recognizing that “‘a distinction exists between arguing that
    a defense strategy is intended to distract jurors from what
    93
    State v. Barfield, 
    272 Neb. 502
    , 
    723 N.W.2d 303
    (2006), disapproved on
    other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
    (2007).
    94
    
    Id. at 512,
    514, 723 N.W.2d at 313
    , 314.
    95
    
    Id. at 514,
    723 N.W.2d at 314, quoting U.S. v. Linn, 
    31 F.3d 987
    (10th Cir.
    1994).
    96
    Dubray, supra note 
    78, 289 Neb. at 228
    , 854 N.W.2d at 605.
    97
    Nolan, supra note 
    83, 292 Neb. at 135
    , 870 N.W.2d at 822.
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    the evidence shows, which is not misconduct, and arguing
    that a defense counsel is deceitful, which is misconduct.’”
    There, we held that a prosecutor’s “statements during closing
    arguments that the defense counsel was going to use ‘smoke
    screens and mirrors’ to point out inconsistencies in the evi-
    dence” were not improper, because they were distracting
    rather than deceitful.98
    Here, in the context of the prosecutor’s entire closing argu-
    ment and Cotton’s trial counsel’s response, the prosecutor’s
    references to Cotton’s testimony as being “scripted” appears
    to be more of an imprecise substitute for lacking genuineness
    than an implication of perjury.
    The prosecutor began by asking the jury to remember each
    witness’ conduct and demeanor while testifying and con-
    sider if Burnette’s testimony appeared “scripted” or “staged.”
    Then the prosecutor juxtaposed Cotton’s level of access to
    testimony and evidence in the case to that of the State’s wit-
    nesses to highlight the differences in inconsistencies—asking
    the jury to consider whether witnesses’ statements contained
    inconsistencies but were supported by other evidence or,
    instead, neatly explained away inconsistencies without cor-
    roboration. Throughout the rest of the closing, the prosecu-
    tor’s references to Cotton’s testimony being “scripted” also
    appear in the context of asking the jury to consider whether
    Cotton’s emotions seemed genuine or his answers fit the facts
    too perfectly.
    Cotton’s trial counsel attempted to rebut the prosecutor’s
    statements that Cotton’s testimony was “scripted” by stating,
    instead, that Cotton spoke “from his heart” and did not “tailor”
    his testimony to be consistent with other witnesses. He also
    argued that Cotton was not any less reliable than other wit-
    nesses solely because he had access to testimony, because they
    could review their own depositions to ensure their statements
    were consistent.
    98
    
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    While we recognize that the portion identified by Cotton
    could be viewed differently in another context and advise
    prosecutors to exercise precision, the prosecutor’s statements,
    here, were a permissible spirited summation that Cotton’s
    knowledge of the case could have allowed him to explain away
    inconsistencies and allowed his attorney to ask questions that
    presented him the opportunity to do so—not an implication of
    perjury. Thus, the prosecutor’s statements concerning Cotton’s
    testimony being “scripted” did not amount to misconduct that
    would support this assignment of ineffective assistance of
    counsel for failing to object.
    [46] The more concerning statement made by the pros-
    ecutor is when he stated, in reference to Cotton’s testimony,
    “I thought it was unreasonable what [Cotton] was talking
    about.” The Nebraska Rules of Professional Conduct state
    that a lawyer shall not, in trial, “state a personal opinion as to
    . . . the credibility of a witness . . . or the guilt or innocence
    of an accused.”99 In cases where the prosecutor comments
    on the theory of defense, the defendant’s veracity, or the
    defendant’s guilt, the prosecutor crosses the line into mis-
    conduct only if the prosecutor’s comments are expressions of
    the prosecutor’s personal beliefs rather than a summation of
    the evidence.100
    In this instance, the prosecutor’s comment appears to be
    stating his personal opinion as to the credibility of Cotton’s
    testimony. As a result, the comment would be improper.
    [47] Again, however, if we conclude that a prosecutor’s acts
    were misconduct, we must determine whether the statement
    complained of was unfairly prejudicial. It is as much a pros-
    ecutor’s duty to refrain from improper methods calculated to
    produce a wrongful conviction as it is to use every legitimate
    means to bring about a just one.101
    99
    Neb. Ct. R. of Prof. Cond. § 3-503.4(e).
    100
    Gonzales, supra note 73.
    101
    McSwine, supra note 80.
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    Because the “average jury, in a greater or less degree,
    has confidence that these obligations, which so plainly
    rest upon the prosecuting attorney, will be faithfully
    observed,” “improper suggestions, insinuations and, espe-
    cially, assertions of personal knowledge are apt to carry
    much weight against the accused when they should prop-
    erly carry none.”102
    Nevertheless, whether prosecutorial misconduct is prejudicial
    depends largely on the context of the trial as a whole.103
    [48] In determining whether a prosecutor’s improper 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.104
    Here, the prosecutor’s personal opinion, based on the nature
    of his position, certainly carried some weight with the jury.
    However, the prosecutor’s comment was made within a broad
    discussion about the credibility of Cotton’s testimony, rather
    than as a punctuated stand-alone declaration. Further, the pros-
    ecutor did not state that he believed Cotton was being untruth-
    ful and he did not call Cotton a liar. Thus, the weight that we
    accord to the comment is minimal. Also weighing in favor of
    finding prejudice are the facts that Cotton’s trial counsel did
    not invite the error and that no specific curative instruction
    was provided. The general instructions that the attorney’s state-
    ments were not evidence and that the jury is the sole judge of
    credibility, however, do substantially negate the impact of the
    related factor.
    102
    
    Id. at 584,
    873 N.W.2d at 418.
    103
    McSwine, supra note 80.
    104
    
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    On the other hand, the prosecutor’s comment occurred only
    once in his closing argument and did not inundate the trial.
    Also, the evidence of Cotton’s guilt was substantial. Cotton
    admitted that he shot and killed Bare. Burnette testified that
    she heard Cotton state that he had a round in the gun and was
    going to use it and that when Bare said, “[I]f you’re going to
    hold the gun to me, then you better fucking shoot me,” Cotton
    shot Bare. Labno testified that he was unsure if Bare advanced
    at Cotton, but he stated that Bare did not charge him and that
    just before the shooting, Bare said something like, “If you pull
    a gun, you better use it . . . .”
    Because the statement was not exceedingly prejudicial or
    pervasive and the weight of the evidence supported the convic-
    tions, we find that the prosecutor’s comment did not deprive
    Cotton of his right to a fair trial. Therefore, this assignment of
    error is without merit.
    (iii) Cotton Cannot Show Prejudice From
    Trial Counsel’s Failure to Object
    to Prosecutor’s Asking Burnette
    Whether Bare Had Children
    Cotton argues that his trial counsel was ineffective for fail-
    ing to object to the prosecutor’s asking Burnette if Bare had
    children. He argues that such questions were misconduct,
    because they were irrelevant to the case and served only to
    garner sympathy for the victim and excite the jurors’ pas-
    sions against him, which prejudiced him by harming his self-
    defense case.
    The State argues that regardless of whether Cotton’s counsel
    should have objected to the questions or whether the ques-
    tions were improper, Cotton cannot show prejudice, because
    the testimony about Bare’s having children was cumulative of
    Cotton’s own testimony.
    We agree with the State that Cotton cannot show any preju-
    dice from the prosecutor’s questions when Cotton also testi-
    fied that Bare had three children. The evidence that Cotton
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    complains of was properly before the jury, so he cannot show
    that cumulative evidence of the same fact created a reasonable
    probability of a different outcome.105 Therefore, this assign-
    ment of error is without merit.
    (e) Trial Counsel’s Decision to Introduce
    Faye’s Deposition Cannot Be
    Resolved on Direct Appeal
    Cotton argues that his trial counsel’s performance was defi-
    cient for entering Faye’s deposition into evidence, because it
    included harmful evidence that would otherwise have been
    inadmissible.
    The State argues that Cotton’s trial counsel’s performance
    was not deficient, because the deposition included beneficial
    testimony, and that Cotton cannot show prejudice, because the
    harmful testimony he identified was cumulative.
    The decision of whether to call a witness, or present a wit-
    ness’ deposition, is a matter of trial strategy. When the ineffec-
    tive assistance of counsel at issue could involve trial strategy,
    we have generally found a trial record reviewed on direct
    appeal to be insufficient for adequate review, because it does
    not tell us the reasons defense counsel tried the case in a par-
    ticular manner.106 In this matter, we, too, find this assignment
    of error cannot be resolved on direct appeal; however, Cotton
    has made sufficient allegations of deficient conduct.
    (f) Cotton Cannot Show Prejudice
    From Trial Counsel’s Failure to
    Cross-Examine Dr. Erin Linde
    Cotton argues that his trial counsel’s performance was
    deficient, because he did not cross-examine Dr. Erin Linde,
    the forensic pathologist who performed the autopsy on Bare,
    about the methamphetamine, amphetamine, “THC,” and fen-
    tanyl found in Bare’s blood. He argues that he was prejudiced
    105
    See State v. Reichert, 
    242 Neb. 33
    , 
    492 N.W.2d 874
    (1992).
    106
    See State v. Rocha, 
    286 Neb. 256
    , 
    836 N.W.2d 774
    (2013).
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    because his trial counsel’s decision to not cross-examine
    Dr. Linde removed an opportunity to remind the jury of
    these facts.
    Cotton’s trial counsel elicited testimony from Burnette that
    she witnessed Bare injecting methamphetamine after they
    returned to Bare’s mother’s house on the morning of the shoot-
    ing. On direct examination, Dr. Linde testified that as a result
    of Bare’s blood transfusion after the shooting, she was able to
    test only Bare’s heart for controlled substances and that the
    amount of drugs a person has taken or when they were taken
    cannot be determined by testing in the heart.
    Cotton does not allege that his trial counsel could have elic-
    ited any additional, beneficial facts from Dr. Linde. Cotton’s
    trial counsel’s decision to not have Dr. Linde merely reiterate
    her testimony that Bare tested positive for certain controlled
    substances does not create a reasonable probability that the
    outcome of the proceedings would have been different, espe-
    cially when his trial counsel did elicit stronger testimony on
    the subject from another witness. Therefore, this assignment of
    error is without merit.
    (g) Additional Claims of Ineffective
    Assistance of Counsel
    Cotton argues that his trial counsel was ineffective on four
    additional bases: (1) allowing an unlicensed attorney to par-
    ticipate in the trial and engage in the practice of law; (2) not
    having trial counsel’s mother, a licensed attorney, sit second
    chair as trial counsel promised; (3) ineffectively selecting
    a jury; and (4) ineffectively failing to discover exculpatory
    evidence. Cotton further argues that while such claims cannot
    be resolved on the current record, he has sufficiently alleged
    deficient conduct.
    The State agrees that the first two claims cannot be resolved
    on the present record, but that Cotton has made sufficient
    allegations of deficient conduct. However, the State argues
    that the second two claims were not raised with sufficient
    particularity.
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    At the sentencing hearing, Cotton stated that his trial counsel
    had promised him that the fees he paid to his trial counsel were
    to retain both his trial counsel and his trial counsel’s mother, a
    licensed attorney, to be present at his trial. Cotton stated further
    that his trial counsel’s mother was present at his initial meeting
    with his trial counsel. Cotton also stated that rather than his
    trial counsel’s mother appearing at his trial, another individual,
    who was not a licensed attorney, sat second chair at his trial
    and participated in jury selection.
    We agree with the parties that Cotton has stated his claims
    of ineffective assistance of counsel—regarding an unlicensed
    attorney participating in voir dire and his trial counsel’s mother
    not sitting second chair at trial—with enough particularity to
    allege deficient conduct and for us to determine that an eviden-
    tiary hearing would be required to resolve the claims.
    However, Cotton does not identify with specificity how his
    trial counsel was ineffective in selecting a jury or what excul-
    patory evidence he failed to discover. Such broad assertions are
    not sufficient to allege deficient conduct.107
    V. CONCLUSION
    Cotton’s claim that there was insufficient evidence to sup-
    port the verdicts is without merit. None of Cotton’s claims of
    trial court error have merit. Cotton’s motion for new trial for
    prosecutorial misconduct was properly denied. Any claim of
    ineffective assistance of counsel is either affirmatively dis-
    proved by the record, not sufficiently presented for our review,
    or not able to be reviewed on the record before us. Accordingly,
    Cotton’s convictions are affirmed.
    A ffirmed.
    Wright and K elch, JJ., not participating.
    107
    See State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014).