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Nebraska Supreme Court Advance Sheets

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STATE v. MALONE

Cite as 308 Neb. 929

State of Nebraska, appellee, v. 

Kevin W. Malone, appellant.

___ N.W.2d ___

Filed April 16, 2021. Nos. S-20-118, S-20-460.

1. Rules of the Supreme Court: Appeal and Error. Whether a party has 

complied with the requirements under the Nebraska Supreme Court 

rules of appellate procedure is determined de novo upon a review of 

the record.

2. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo a 

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record 

and files affirmatively show that the defendant is entitled to no relief.

3. Effectiveness of Counsel: Appeal and Error. Claims of ineffective 

assistance of counsel involve mixed questions of law and fact.

4. ____: ____. When reviewing claims of ineffective assistance of counsel, 

an appellate court reviews the factual findings of the lower court for 

clear error and the legal determinations de novo.

5. Records: Appeal and Error. An accurate bill of exceptions is essential 

to providing meaningful appellate review.

6. Evidence: Records: Appeal and Error. As the only proper vehicle for 

bringing evidence before an appellate court, a bill of exceptions imports 

absolute verity once it has been submitted on appeal.

7. Appeal and Error. A remand order generally terminates the present 

appeal’s pendency.

8. Rules of the Supreme Court: Records: Appeal and Error. There is 

only one proper procedure for amending a bill of exceptions, and it is 

set out in Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018).

9. Rules of the Supreme Court: Appeal and Error. Parties must strictly 

comply with the Nebraska Supreme Court rules of appellate procedure.

10. ____: ____. A case is eligible for submission at any time after the appellee’s brief has been filed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/02/2021 01:09 AM CDT
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11. Rules of the Supreme Court: Records: Appeal and Error. The terms 

of Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018) require that a motion to 

amend the bill of exceptions be filed in the district court and not in an 

appellate court.

12. Postconviction: Constitutional Law. Under the Nebraska Postconviction 

Act, a prisoner in custody may move to be released on the ground that 

there was such a denial or infringement of his or her constitutional rights 

as to render the judgment void or voidable.

13. Postconviction: Appeal and Error. Postconviction relief is a very narrow category of relief and is not intended to secure a routine review for 

any defendant dissatisfied with his or her sentence.

14. ____: ____. A motion for postconviction relief cannot be used to secure 

review of issues that were known to the defendant and which were or 

could have been litigated on direct appeal.

15. Postconviction: Proof. An evidentiary hearing on a motion for postconviction relief is not required if (1) the motion does not contain factual 

allegations of a violation or infringement of the prisoner’s constitutional 

rights, (2) the motion alleges only conclusions of fact or law, or (3) the 

record affirmatively shows that the prisoner is entitled to no relief.

16. Postconviction. In the absence of allegations that would render the 

judgment void or voidable, the proper course is to overrule a motion for 

postconviction relief without an evidentiary hearing for failure to state 

a claim.

17. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

18. Effectiveness of Counsel: Constitutional Law. Under Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

a criminal defendant’s rights under U.S. Const. amend. VI may be 

violated if he or she is afforded inadequate representation by his or 

her attorney.

19. Postconviction: Effectiveness of Counsel. Under Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

two steps of analysis are required to determine whether a defendant is 

entitled to postconviction relief based on a claim of ineffective assistance of counsel.

20. Effectiveness of Counsel: Proof: Appeal and Error. Although both 

elements under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), must be met for a meritorious claim of ineffective assistance of counsel, an appellate court may address them in 

either order.

21. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his or her 
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attorney’s performance was deficient, meaning it objectively did not 

equal that of a lawyer with ordinary training and skill in criminal law.

22. ____: ____. To prevail on a claim of ineffective assistance of counsel, 

the defendant must show that he or she suffered prejudice as a result of 

the attorney’s deficient performance.

23. Effectiveness of Counsel: Words and Phrases. Prejudice means a reasonable probability that but for the attorney’s deficient performance, the 

result of the proceeding would have been different.

24. Words and Phrases. A reasonable probability is a substantial probability sufficient to undermine confidence in the outcome.

25. Effectiveness of Counsel: Presumptions: Appeal and Error. An 

appellate court reviews claims of ineffective assistance of counsel with 

a strong presumption that counsel’s actions were reasonable.

26. Postconviction: Effectiveness of Counsel: Appeal and Error. Where 

a defendant was represented by the same attorney at trial and on direct 

appeal, the defendant is not procedurally barred from raising trial counsel’s ineffectiveness in a motion for postconviction relief.

27. Attorney and Client: Conflict of Interest: Words and Phrases. The 

phrase “conflict of interest” denotes a situation in which regard for one 

duty tends to lead to disregard of another or where a lawyer’s representation of one client is rendered less effective by reason of his or her 

representation of another client.

28. Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal 

and Error. When a defendant shows that an actual conflict of interest 

burdened his or her attorney’s representation and affected the lawyer’s 

performance, an appellate court applies a presumption of prejudice, 

because it is difficult to measure the precise effect on the defense of 

representation corrupted by conflicting interests.

29. Effectiveness of Counsel: Conflict of Interest: Words and Phrases.

The phrase “actual conflict of interest” encompasses any situation in 

which a defense counsel faces divided loyalties such that regard for one 

duty tends to lead to disregard of another.

30. Effectiveness of Counsel: Conflict of Interest. An actual conflict of 

interest is one that adversely affects counsel’s performance.

31. Effectiveness of Counsel: Conflict of Interest: Appeal and Error.

While there are several types of conflicts of interest that could arise, 

where the issue is that the client’s interests could conflict with the 

attorney’s personal interests, an appellate court deems it a personal interest conflict.

32. ____: ____: ____. A personal interest conflict is arguably the least consequential type of conflict that an appellate court recognizes, because 

when the attorney has a personal conflict, the attorney can still fulfill 
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his or her duty of loyalty to a client, although doing so may be to the 

detriment of the attorney’s personal interest.

33. Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal 

and Error. An appellate court generally does not apply a presumption of 

prejudice to personal interest conflicts unless the defendant shows that 

his or her defense counsel faced a situation in which conflicting loyalties pointed in opposite directions and that his or her counsel acted for 

the other client’s interests or the counsel’s own personal interests and 

against the defendant’s interests.

34. Right to Counsel: Conflict of Interest: Waiver. A defendant can waive 

his or her right to assistance of counsel unhindered by a conflict of interest, provided that the waiver is knowing and intelligent.

35. Right to Counsel: Waiver: Appeal and Error. There is no formalistic 

litany required to establish that a waiver was knowingly and intelligently made; instead, when considering whether a defendant voluntarily, 

knowingly, and intelligently waived his or her right to counsel, an 

appellate court reviews the totality of the circumstances appearing in 

the record.

36. Constitutional Law: Waiver: Records. A voluntary waiver, 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.

37. Constitutional Law: Waiver: Appeal and Error. In determining 

whether a defendant’s waiver of a statutory or constitutional right was 

voluntary, knowing, and intelligent, an appellate court applies a clearly 

erroneous standard of review.

38. Judgments: Appeal and Error. Under a clearly erroneous standard 

of review, an appellate court does not reweigh the evidence, but the 

appellate court decides the ultimate question independent of the trial 

court’s ruling.

39. Homicide: Motor Vehicles: Negligence. Contributory negligence is not 

a defense to the charge of motor vehicle homicide; rather, for purposes 

of a defendant’s liability, the issue is whether a defendant’s violation of 

the law was a contributing factor to the death.

40. Negligence: Proximate Cause. If a decedent’s negligence is the sole 

proximate cause of his death, then the decedent’s negligence is a defense.

41. ____: ____. Proximate causation refers to the basic requirement that 

there must be some direct relation between the injury asserted and the 

injurious conduct alleged.

42. Negligence: Proximate Cause: Words and Phrases. A “proximate 

cause” is a moving or effective cause or fault which, in the natural 

and continuous sequence, unbroken by an efficient intervening cause, 
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produces a death or injury and without which the death or injury would 

not have occurred.

43. Criminal Law: Negligence: Proximate Cause: Words and Phrases.

Criminal conduct is a proximate cause of the event in question if the 

event would not have occurred but for that conduct.

44. Negligence: Proximate Cause: Words and Phrases. Conduct is not a 

proximate cause of an event if that event would have occurred without 

such conduct.

45. Trial: Photographs. Because gruesome crimes produce gruesome 

photographs, the simple fact that a photograph is gruesome does not 

make the photograph inadmissible as unduly prejudicial.

46. Trial: Homicide: Photographs. If the State lays proper foundation, 

photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome.

47. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless 

the prosecution demonstrates the use of procedural safeguards that are 

effective to secure the privilege against self-incrimination.

48. ____: ____: ____. The safeguards provided by Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play 

whenever a person in custody is subjected to either express questioning 

or its functional equivalent.

49. ____: ____: ____. Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), only that testimony obtained unlawfully 

during custodial interrogation is subject to suppression.

50. Trial: Parties. Bifurcation of a trial is generally only appropriate where 

separate proceedings will do justice, avoid prejudice, and further the 

convenience of the parties and the court.

51. Trial. Whether claims should be bifurcated is generally within the discretion of the trial court.

52. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the 

duty to conduct criminal trials in such a manner that the accused may 

have a fair and impartial trial, and prosecutors are not to inflame the 

prejudices or excite the passions of the jury against the accused.

53. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct.

54. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial 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.
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55. Trial: Prosecuting Attorneys. While a prosecutor should prosecute 

with earnestness and vigor and may strike hard blows, he or she is not 

at liberty to strike foul ones.

56. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does 

not mislead and unduly influence the jury is not misconduct.

57. Trial: Prosecuting Attorneys: Due Process. A prosecutor’s misconduct 

that prejudices a defendant’s right to a fair trial violates due process.

58. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), prosecutors owe a duty to disclose favorable evidence to criminal defendants 

prior to trial.

59. Evidence: Impeachment: Words and Phrases. Favorable evidence 

includes both exculpatory and impeachment evidence.

60. Prosecuting Attorneys: Evidence: Due Process. Suppression by the 

prosecution of evidence favorable to an accused upon request violates 

due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

61. Trial: Prosecuting Attorneys: Evidence. A prosecutor should not 

express his or her personal belief or opinion as to the truth or falsity of 

any testimony or evidence or the guilt of the defendant.

62. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.

63. ____: ____. When a prosecutor’s comments rest on reasonably drawn 

inferences from the evidence, the prosecutor is permitted to present a 

spirited summation that a defense theory is illogical or unsupported by 

the evidence and to highlight the relative believability of witnesses for 

the State and the defense.

64. ____: ____. In cases where the prosecutor comments on the theory of 

defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor 

crosses the line into misconduct only if the prosecutor’s comments are 

expressions of the prosecutor’s personal beliefs rather than a summation 

of the evidence.

65. Trial: Prosecuting Attorneys: Juries. The danger of a prosecutor 

expressing a personal opinion is that the jurors may infer the prosecutor 

has access to information not in evidence and that with that inference 

and the imprimatur of the government, the jury might rest a decision on 

the government’s opinion rather than on its own view of the evidence.

Appeals from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.
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Richard L. Boucher and Bradley H. Supernaw, of Boucher 

Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Kevin W. Malone challenges his convictions and sentences, 

alleging that at trial and on direct appeal he was provided 

ineffective assistance of counsel and subjected to prosecutorial misconduct. His motion seeking postconviction relief was 

denied without an evidentiary hearing. Malone appealed.

With that appeal pending, Malone found what he thought 

were three misstatements in the bill of exceptions. He filed an 

application before the Nebraska Court of Appeals to remand 

the cause for a hearing to determine whether to amend the bill 

of exceptions. After a hearing, the district court denied relief. 

Malone again appealed.

For the reasons stated herein, we find that the arguments 

contained in Malone’s appeals are without merit. We affirm.

II. BACKGROUND

1. Convictions

In May 2017, Malone was tried by a jury on counts of motor 

vehicle homicide, manslaughter, leaving the scene of a personal injury accident resulting in serious bodily injury or death, 

and driving without an ignition interlock device. The charges 

stemmed from a 2016 car-motorcycle collision in Omaha, 

Nebraska. After Malone had run a red light, his car and Justin 

Hart’s motorcycle collided, resulting in Hart’s death.

The jury found Malone guilty on all four counts. After 

accepting the jury’s verdict, the district court sentenced Malone 
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to a total of 40 to 50 years’ imprisonment and revoked his 

driver’s license for 15 years. The Court of Appeals affirmed, 

rejecting Malone’s claims of insufficient evidence and excessive sentences. 1

2. Request for Writ of Mandamus

During his direct appeal, Malone found what he believed 

were misstatements in the bill of exceptions. The court reporter 

at Malone’s trial had certified that the bill of exceptions was 

“correct and complete.” But, disputing this, Malone sent a 

letter to the court reporter in April 2018, alleging that three 

exchanges at trial between the prosecutor and him had been 

omitted from the bill of exceptions. Malone requested that 

the court reporter review the audio recording from trial to 

verify whether these exchanges had indeed occurred. He also 

requested access to the audio recording.

The court reporter responded with a letter, stating, “I have 

listened to the entire cross-examination [at issue,] and the [b]ill 

of [e]xceptions that you have is an accurate transcription of 

what was said in court on that day.”

Malone next wrote to the district court judge who had 

presided over his trial. In June 2018, that judge replied to 

Malone’s letter by noting that she had “reviewed the record” 

and determined Malone’s “claim that there is testimony missing . . . is unfounded.” The judge accordingly denied Malone’s 

request to access the audio recording from trial because 

Malone had already been “provided with the bill of exceptions 

as requested.”

In January 2019, Malone filed a pro se “Complaint for Writ 

of Mandamus” in the district court for Douglas County, seeking to compel production of the audio recording from his trial. 

That complaint was followed by pro se motions for a “Change 

of Judge,” for “Audio Record per Public Records Law,” and 

for “Discovery Evidence: Sound [R]ecordings.” Malone’s 

1 See State v. Malone, 26 Neb. App. 121, 917 N.W.2d 164 (2018).
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complaint and motions were denied, and in October 2020, we 

dismissed his appeal on jurisdictional grounds. 2

3. Motion for Postconviction Relief

In June 2019, with his mandamus action still pending, 

Malone filed a verified motion for postconviction relief. After 

having been represented by the same attorney at trial and on 

direct appeal, Malone was represented by a new attorney in his 

postconviction action.

In his motion, Malone argued that he had been deprived 

of effective assistance of counsel at trial and on direct appeal 

by his attorney’s allowance of a familial relationship with the 

victim to affect the representation. He also contended counsel 

had failed to offer evidence of Hart’s own negligence, failed to 

effectively cross-examine witnesses, failed to move to suppress 

certain evidence, and failed to move to bifurcate the trial. In an 

amended motion, Malone added an allegation that his appellate counsel failed to raise prosecutorial misconduct. Malone 

also claimed that he had been denied due process at trial by 

the prosecutor’s withholding of exculpatory impeachment evidence, use of false testimony, and commenting inappropriately. 

Further, Malone alleged that “errors and omissions of the 

[b]ill of [e]xceptions prevent[ed] a proper appeal and unduly 

prejudice[d]” him.

In an order dated January 14, 2020, the district court overruled Malone’s postconviction motion without an evidentiary 

hearing. The court rejected Malone’s allegations of ineffective assistance of counsel because they were not pled with 

specific facts or were affirmatively rebutted by the record. 

Further, it found Malone’s claims of prosecutorial misconduct 

“procedurally barred, because they could have been brought 

on direct appeal.” Finally, because a “conclusory allegation 

that the [b]ill of [e]xceptions is inaccurate would not be a 

2 See State ex rel. Malone v. Baldonado-Bellamy, 307 Neb. 549, 950 N.W.2d 

81 (2020).
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constitutional deprivation” capable of rendering Malone’s sentences void or voidable, the court also denied that claim.

Malone timely perfected an appeal.

4. Motion to Amend Bill of Exceptions

After perfecting an appeal in his postconviction action, 

Malone filed an application in the Nebraska Court of Appeals 

“pursuant to Neb. Ct. R. App. P. §2-105(B)(5) [(rev. 2018),]” 

for a “remand” to the district court, inter alia, “to correct the 

bill of exceptions” and play an audio recording of Malone’s 

testimony at trial.

The Court of Appeals granted Malone’s application, in part, 

and ordered “pursuant to . . . § 2-105(B)(5) that a hearing shall 

be held in the Douglas County District Court” to determine 

whether to amend the bill of exceptions. However, the Court 

of Appeals specified that “[the] case is not remanded to district court.”

At an evidentiary hearing held in June 2020, Malone testified that three exchanges during the prosecutor’s crossexamination of him were missing from the bill of exceptions. 

In the first exchange, Malone recalled telling the prosecutor that he had attempted mouth-to-mouth resuscitation on 

Hart immediately after the collision. In the second exchange, 

Malone recounted a dialogue about whether Malone’s car or 

Hart’s motorcycle had initiated contact with the other, and 

in the third exchange, Malone alleged that in response to his 

explanation about why he had moved his car after the collision, the prosecutor had expressed skepticism. In addition to 

Malone’s testimony that these three exchanges had occurred, 

he offered supportive affidavits from three family members 

who had been in attendance at trial, as well as from a private 

investigator who averred that he had contacted several jurors 

from trial, some of whom said they remembered the alleged 

missing exchanges.

On June 12, 2020, the district court issued an order denying Malone’s motion to amend the bill of exceptions. The 
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court held that “based on the . . . sworn affidavit of [its current court reporter], there are no amendments to be made to 

the [b]ill of [e]xceptions.” The current court reporter averred 

that after having listened to the audio recording from Malone’s 

trial, she believed the bill of exceptions was accurate.

Malone timely perfected a second appeal. The Court of 

Appeals ordered Malone’s two appeals consolidated. We 

granted bypass of the Court of Appeals’ review.

III. ASSIGNMENTS OF ERROR

Malone assigns 13 errors, which we consolidate and restate 

as two: (1) The district court erred in denying his motion to 

amend the bill of exceptions, and (2) the district court erred 

in overruling his motion for postconviction relief without an 

evidentiary hearing.

IV. STANDARD OF REVIEW

[1] Whether a party has complied with the requirements 

under our rules of appellate procedure is determined de novo 

upon a review of the record. 3

[2] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 4

[3,4] Claims of ineffective assistance of counsel involve 

mixed questions of law and fact. 5 When reviewing claims of 

ineffective assistance of counsel, an appellate court reviews the 

factual findings of the lower court for clear error and the legal 

determinations de novo. 6

3 See State v. Catlin, ante p. 294, 953 N.W.2d 563 (2021).

4 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).

5 See State v. Russell, ante p. 499, 954 N.W.2d 920 (2021).

6 See id.
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V. ANALYSIS

1. Bill of Exceptions

Malone’s first assignment of error concerns the veracity of 

the bill of exceptions.

[5,6] An accurate bill of exceptions is essential to providing 

meaningful appellate review. 7 As the only proper vehicle for 

bringing evidence before an appellate court, 8 a bill of exceptions “imports absolute verity” once it has been submitted on 

appeal. 9 As authorized by statute, 10 the various procedures for 

compiling, certifying, and amending a bill of exceptions are 

detailed in Neb. Ct. R. App. P. § 2-105 (rev. 2018). 11

After perfecting his first appeal, Malone filed an application for the Court of Appeals to “remand” for a § 2-105(B)(5) 

hearing to correct the bill of exceptions. The Court of Appeals 

granted Malone’s application, in part, and ordered the district court to hold a hearing “pursuant to . . . § 2-105(B)(5).” 

Apparently in an attempt to avoid divesting itself of jurisdiction over Malone’s appeal, the Court of Appeals clarified that 

the “case is not remanded to [the] district court.”

Following what it termed a “hearing on the [m]andate from 

the Nebraska Court of Appeals on . . . Malone’s [a]pplication 

for [r]emand to [p]roceed in [d]istrict [c]ourt to [c]orrect the 

[b]ill of [e]xceptions,” the district court held that “there are no 

amendments to be made to the [b]ill of [e]xceptions.” Malone 

assigns this was in error.

7 See, In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017); Hynes 

v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013). See, 

also, Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762 (1880).

8 See, State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020); Western 

Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 N.W.2d 329 

(2020).

9 See State v. Dyer, 245 Neb. 385, 404, 513 N.W.2d 316, 328 (1994). 

Accord Wonderling v. Conley, 182 Neb. 446, 155 N.W.2d 349 (1967).

10 See Neb. Rev. Stat. § 25-1140 (Reissue 2016).

11 See Peterson v. Skiles, 173 Neb. 223, 113 N.W.2d 105 (1962) (citing 

previous version of § 2-105).
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[7] As an initial matter, we question whether the Court 

of Appeals had authority to grant Malone’s application for 

remand without divesting itself of jurisdiction over the cause. 

A remand order generally terminates the present appeal’s pendency. 12 We see no authority cited to us permitting the Court of 

Appeals to have remanded only a portion of the issues before it 

while maintaining jurisdiction over the remaining issues.

[8,9] Indeed, the authority cited by Malone in his application 

for remand did not allow for the procedure he requested. There 

is only one proper procedure for amending a bill of exceptions, 

and it is set out in § 2-105(B)(5). 13 We require strict compliance with our rules of appellate procedure. 14

Under § 2-105(B)(5), parties in a case “may amend the bill 

of exceptions by written agreement to be attached to the bill of 

exceptions.” 15 In the case of disagreement between the parties, 

the bill of exceptions can be amended upon a motion to the 

district court:

Proposed amendments not agreed to by all the parties to 

the case shall be heard and decided by the district court 

after such notice as the court shall direct. The order of 

the district court thereon shall be attached to the bill 

of exceptions prior to the time the case is submitted to 

the Supreme Court. Hearings with respect to proposed 

amendments to a bill of exceptions may be held at chambers anywhere in the state. 16

[10] In Millennium Laboratories v. Ward,

 17 we interpreted the above language to find that so long as the proper 

12 See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941 

N.W.2d 145 (2020). Cf. Rohde v. Farmers Alliance Mut. Ins. Co., 244 

Neb. 863, 509 N.W.2d 618 (1994).

13 See Dyer, supra note 9.

14 See Catlin, supra note 3. See, also, Hilligas v. Farr, 171 Neb. 105, 105 

N.W.2d 578 (1960).

15 See Dyer, supra note 9.

16 § 2-105(B)(5). See Dyer, supra note 9.

17 Millennium Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).
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procedure is followed, a district court may order the bill of 

exceptions amended at any time before the case is submitted for a decision by the appellate court. A case is “‘eligible for submission at any time after the appellee’s brief has 

been filed.’” 18

After the appeal in Millennium Laboratories had been 

perfected, but before the case was submitted to this court, 

the appellee moved in the district court to amend the bill of 

exceptions. The district court held a § 2-105(B)(5) hearing 

and sustained the appellee’s motion, ordering the clerk of 

the district court to prepare and transmit an amended bill of 

exceptions.

We found that such amended bill of exceptions, duly certified, had been properly made a part of the appellate record 

pursuant to § 2-105(B)(5). 19 The proper procedure in moving to 

amend the bill of exceptions had been followed. 20

We note that 2 months before we decided Millennium 

Laboratories, we were presented with a similar scenario in 

State v. Kays. 21 After perfecting an appeal, the appellant filed 

an application with the Court of Appeals to remand to the 

district court to correct the bill of exceptions. The Court of 

Appeals granted the application and returned the matter to the 

district court for a § 2-105(B)(5) hearing. We held, inter alia, 

that the district court’s subsequent order declining to amend the 

bill of exceptions was not plain error. 22

[11] But to the extent our decision in Kays can be read to 

approve the underlying procedure used to amend the bill of 

exceptions in that case and in the case at issue, that aspect 

of the decision is overruled. The terms of § 2-105(B)(5) 

18 Id. at 724, 857 N.W.2d at 310 (quoting Neb. Ct. R. App. P. § 2-111(A) 

(rev. 2014)).

19 See Millenium Laboratories, supra note 17.

20 See id.

21 State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).

22 See id.
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require that a motion to amend the bill of exceptions be filed 

in the district court and not in an appellate court.

Consequently, here we find that Malone failed to comply 

with the procedure set forth in § 2-105(B)(5). He sought 

to amend the bill of exceptions by filing an application for 

remand in the Court of Appeals. Since his initial appeal had 

been perfected at that time, but not yet submitted to the Court 

of Appeals, Malone could have moved in the district court to 

amend the bill of exceptions. 23

But he did not do so. We find no evidence in the appellate 

record that Malone filed a motion to amend the bill of exceptions in the district court; his attempt to amend the bill of 

exceptions was therefore improper. Because he failed to strictly 

comply with our rule of appellate procedure for amending the 

bill of exceptions, we do not consider the merits of his first 

assignment of error.

2. Postconviction Relief

Malone next assigns that the district court erred in overruling his motion for postconviction relief without an evidentiary hearing.

[12-14] Under the Nebraska Postconviction Act, 24 a prisoner in custody may move to be released on the ground that 

there was such a denial or infringement of his or her constitutional rights as to render the judgment void or voidable. 25

Postconviction relief is a very narrow category of relief and 

is not intended to secure a routine review for any defendant 

dissatisfied with his or her sentence. 26 A motion for postconviction relief cannot be used to secure review of issues that 

23 See Millennium Laboratories, supra note 17.

24 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

25 § 29-3001(1). See State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020).

26 See, Dalton, supra note 25; State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 

(2019).
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were known to the defendant and which were or could have 

been litigated on direct appeal. 27

[15,16] Section 29-3001(2) entitles a prisoner to an evidentiary hearing on his or her motion for postconviction relief, 

unless “the motion and the files and records of the case show 

to the satisfaction of the court that the prisoner is entitled to 

no relief.” 28 An evidentiary hearing is not required if (1) the 

motion does not contain factual allegations of a violation or 

infringement of the prisoner’s constitutional rights, (2) the 

motion alleges only conclusions of fact or law, or (3) the 

record affirmatively shows that the prisoner is entitled to no 

relief. 29 In the absence of allegations that would render the 

judgment void or voidable, the proper course is to overrule 

the motion without an evidentiary hearing for failure to state 

a claim. 30

The district court overruled Malone’s motion for postconviction relief without an evidentiary hearing. Malone assigns that 

this was error.

Before we consider the arguments that Malone raises in support of this assignment of error, we note an argument he does 

not preserve on appeal. Malone does not assign or specifically 

argue that the alleged misstatements in the bill of exceptions, 

discussed above, violated his constitutional rights. At oral 

argument, Malone conceded that he was not raising such an 

argument on appeal, but that his argument concerning the bill 

of exceptions was limited to alleging that the district court had 

erred under § 2-105(B)(5) of the appellate rules of practice in 

declining to amend the bill of exceptions.

[17] An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

27 See Dalton, supra note 25. See, also, State v. Tyler, 301 Neb. 365, 918 

N.W.2d 306 (2018).

28 See Parnell, supra note 4.

29 See id.

30 See Tyler, supra note 27. See, also, Parnell, supra note 4.
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error to be considered by an appellate court. 31 Because Malone 

did not specifically assign and argue that the alleged misstatements in the bill of exceptions violated his constitutional 

rights, we do not consider any such argument here.

(a) Claim of Ineffective 

Assistance of Counsel

We begin our analysis of Malone’s postconviction motion by 

considering his claim of ineffective assistance of counsel.

[18-20] Our ineffective assistance of counsel jurisprudence 

stems from Strickland v. Washington,

 32 which held that a criminal defendant’s rights under U.S. Const. amend. VI may be 

violated if he or she is afforded inadequate representation by 

his or her attorney. 33 Under Strickland, we apply a two-step 

analysis for determining whether a defendant is entitled to 

postconviction relief based on a claim of ineffective assistance 

of counsel. 34 Although both elements must be met for a meritorious claim of ineffective assistance of counsel, an appellate 

court may address them in either order. 35

[21-25] To prevail under Strickland, a defendant must first 

show that his or her attorney’s performance was deficient, 

meaning it objectively did not equal that of a lawyer with ordinary training and skill in criminal law. 36 Second, the defendant must show that he or she suffered prejudice as a result 

of the attorney’s deficient performance. 37 Prejudice means 

31 Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).

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

674 (1984).

33 See Dalton, supra note 25.

34 See id. Accord Shinn v. Kayer, ___ U.S. ___, 141 S. Ct. 517, 208 L. Ed. 

2d 353 (2020).

35 See State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).

36 Id. See, also, Andrus v. Texas, ___ U.S. ___, 140 S. Ct. 1875, 207 L. Ed. 

2d 335 (2020).

37 See Clausen, supra note 35.
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a reasonable probability that but for the attorney’s deficient 

performance, the result of the proceeding would have been 

different. 38 A reasonable probability is a substantial probability sufficient to undermine confidence in the outcome. 39 We 

review these two prongs with a strong presumption that counsel’s actions were reasonable. 40

[26] Where, as here, the defendant was represented by the 

same attorney at trial and on direct appeal, the defendant is not 

procedurally barred from raising trial counsel’s ineffectiveness 

in a motion for postconviction relief. 41

(i) Defense Counsel’s Familial 

Relationship With Victim

Malone’s first allegation of ineffective assistance of counsel 

is that his trial counsel’s personal familial relationship with 

Hart amounted to an actual conflict of interest that adversely 

affected the lawyer’s representation of Malone.

[27,28] The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard 

of another or where a lawyer’s representation of one client is 

rendered less effective by reason of his or her representation 

of another client. 42 When a defendant shows that “‘an actual 

conflict of interest’” burdened his or her attorney’s representation and affected the lawyer’s performance, we apply a 

“presumption of prejudice,” because it is difficult to measure 

38 See Parnell, supra note 4.

39 State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). See, also, Shinn, 

supra note 34.

40 See State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). Accord 

Parnell, supra note 4.

41 See State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020), cert. denied

No. 20-6385, 2021 WL 231973 (U.S. Jan. 25, 2021). See, also, State v. 

Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).

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

Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994)).
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the precise effect on the defense of representation corrupted by 

conflicting interests. 43

According to Malone, his attorney was “a second, third, or 

fourth cousin” to one of Hart’s parents. Malone asserts that it 

was because of this actual conflict of interest that at trial the 

attorney did not effectively cross-examine Matthew Kelly, the 

Omaha police officer who arrived at the scene and arrested 

Malone a short time later, or raise Hart’s own negligence as a 

defense. For example, Malone notes that when explaining why 

he did not wish to raise Hart’s own negligence as a defense, the 

attorney allegedly stated it would “make . . . Hart look bad and 

upset [Hart’s] family.” Malone thus urges this court to apply a 

presumption of prejudice under Strickland based on his attorney’s familial relationship with Hart.

a. Actual Conflict of Interest

As an initial matter, we are unpersuaded that the familial relationship between Malone’s attorney and the victim 

amounted to an actual conflict of interest.

[29,30] We define an actual conflict of interest for Sixth 

Amendment purposes broadly. The phrase “actual conflict 

of interest” therefore encompasses any situation in which a 

defense counsel faces divided loyalties such that regard for 

one duty tends to lead to disregard of another. 44 An actual 

conflict of interest is one that adversely affects counsel’s 

performance. 45

[31] While there are several types of conflicts of interest 

that could arise, where the issue is that the client’s interests 

43 State v. Avina-Murillo, 301 Neb. 185, 197, 198, 917 N.W.2d 865, 875 

(2018) (quoting Strickland, supra note 32). See, also, Cuyler v. Sullivan, 

446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

44 Avina-Murilla, supra note 43. Accord State v. Jackson, 275 Neb. 434, 747 

N.W.2d 418 (2008).

45 See Avina-Murilla, supra note 43. See, also, Mickens v. Taylor, 535 U.S. 

162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
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could conflict with the attorney’s personal interests, we deem it 

a personal interest conflict. 46 Malone raises a personal interest 

conflict because he argues that his attorney’s personal interests, 

by way of the familial relationship with Hart, prevented the 

attorney from adequately defending Malone.

[32,33] A personal interest conflict is arguably the least consequential type of conflict that we recognize, because “when 

the attorney has a personal conflict, the attorney can still fulfill 

his or her duty of loyalty to a client, although doing so may 

be to the detriment of the attorney’s personal interest.” 47 We 

generally do not apply a presumption of prejudice to personal 

interest conflicts unless “‘the defendant shows that his or her 

defense counsel faced a situation in which conflicting loyalties 

pointed in opposite directions and that his or her counsel acted 

for the other client’s interests or the counsel’s own personal 

interests and against the defendant’s interests.’” 48

Although we have never before considered whether a familial relationship similar to the one presented here qualifies as an 

actual conflict of interest, we have considered other personal 

interest conflicts. In State v. Edwards,

 49 we held that a defense 

attorney’s friendship with a material prosecution witness did 

not amount to an actual conflict of interest. This determination was because “[t]he record simply [did] not support a 

finding that [the attorney] had such a loyalty to [the witness] 

that would have tempted him at trial to act against [the defendant’s] interests.” 50

46 See Avina-Murillo, supra note 43.

47 Id. at 198, 917 N.W.2d at 875.

48 Id. at 202, 917 N.W.2d at 877-78 (quoting State v. Cotton, 299 Neb. 650, 

910 N.W.2d 102 (2018), disapproved on other grounds, Avina-Murillo, 

supra note 43). See, also, State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 

(2016).

49 Edwards, supra note 48.

50 Id. at 22, 880 N.W.2d at 655.
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Likewise, in State v. Jackson,

 51 no actual conflict of interest 

was found where the defendant had alleged that the friendship 

between his trial counsel and appellate counsel prevented the 

appellate counsel from adequately raising the trial counsel’s 

ineffectiveness. We held that because “[the defendant] fails 

to point to evidence which might show that [trial counsel 

and appellate counsel] had a personal relationship,” there is 

nothing to suggest that appellate counsel had divided loyalties 

that might have resulted in his adjusting his appeal strategy to 

protect his friend. 52

In contrast, in State v. Armstrong,

 53 we found an actual conflict of interest based on defense counsel’s declining to ask for 

a continuance at trial. This determination was because defense 

counsel feared that he would personally face criminal or ethical 

sanctions. 54 As a result, we found that the defendant “faced 

a situation in which conflicting loyalties pointed in opposite 

directions,” and this accordingly raised a presumption of prejudice under Strickland.

 55

Perhaps the best analogy to this case is State v. 

Avina-Murillo.

 56 There, a conflict arose during trial when the 

defense counsel and defendant were found to have eaten lunch 

at a restaurant together with the victim and his family. The trial 

court made a record of the incident, noting that no-contact and 

sequestration orders had been in place prohibiting any contact 

between the defense counsel and the victim’s family. Defense 

counsel lied about the incident to the trial court, then declined 

to call the victim’s family to testify at trial. We found that 

51 Jackson, supra note 44.

52 Id. at 442, 747 N.W.2d at 430.

53 State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015), disapproved on 

other grounds, Avina-Murillo, supra note 43.

54 See id.

55 Id. at 1016, 863 N.W.2d at 468.

56 Avina-Murillo, supra note 43.
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despite the defense counsel’s apparent personal interest conflict, it “[did] not rise to the level of demanding a presumption 

of prejudice.” 57

Similarly, here, the alleged personal interest conflict is 

based on a relationship between the defense counsel and the 

victim’s family. Hart is apparently the son of “a second, third, 

or fourth cousin” to Malone’s attorney. We note that other 

jurisdictions have categorically found similarly distant degrees 

of familial relationship insufficient to present an actual conflict 

of interest, stating, for example, that “a familial relationship 

more distant than the third degree of relationship shared by 

defense counsel and the victim of a crime is insufficient to 

present a conflict of interest so as to disqualify defense counsel 

from representing the accused.” 58 We also note that pursuant to 

our code of judicial ethics, a judge is not necessarily disqualified from a case due to a familial relationship with the victim 

unless the victim is at least a first cousin or equivalent degree 

of relation to the victim. 59

Not only is Malone’s attorney at best a distant relative to 

Hart, there is nothing in the record to suggest that the attorney 

felt any loyalty to Hart or to Hart’s immediate family. The 

attorney acknowledged that he had never met Hart and that 

he did not expect the relationship “would affect [his] representation of . . . Malone.” We see no basis for finding that the 

attorney’s familial relationship led him to disregard his representation of Malone.

Thus, to the extent Malone’s attorney had a personal interest 

conflict in his representation at trial, we find that it was not an 

actual conflict of interest that would give rise to a presumption 

of prejudice under Strickland.

57 Id. at 203, 917 N.W.2d at 878.

58 See, e.g., State v. Vance, 207 W. Va. 640, 647, 535 S.E.2d 484, 491 (2000).

59 See Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(2). See, also, 

Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589 

(2019).
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b. Waiver

Moreover, we find that even if there had been an actual conflict of interest, Malone effectively waived such conflict.

[34-36] A defendant can waive his or her right to assistance 

of counsel unhindered by a conflict of interest, provided that 

the waiver is knowing and intelligent. 60 There is no 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. 61 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. 62

[37,38] In determining whether a defendant’s waiver of 

a statutory or constitutional right was voluntary, knowing, 

and intelligent, an appellate court applies a clearly erroneous 

standard of review. 63 Under a clearly erroneous standard of 

review, an appellate court does not reweigh the evidence, but 

the appellate court decides the ultimate question independent 

of the trial court’s ruling. 64

According to Malone, the district court erred in accepting 

his waiver of the defense counsel’s personal interest conflict 

because the relinquishment in open court was not knowing and 

intelligent. According to Malone, he had only been made aware 

of the familial relationship between his attorney and Hart on 

the day of the hearing. By stating that he had discussed the 

conflict with Malone and Malone’s family, Malone claims that 

60 Cotton, supra note 48.

61 Id.

62 Id.

63 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).

64 Cotton, supra note 48.
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his attorney “misrepresented” their conversations. 65 Malone 

claims that he “was stunned in court by the revelation” from 

his attorney. 66

Although Malone may now claim that he was stunned 

by his attorney’s revelation, the transcript from his hearing 

indicates otherwise. After the attorney’s disclosure that he 

was distantly related to the victim, Malone was asked by the 

court whether he had any issue with his attorney’s continuing 

representation of him. Malone responded, “No, ma’am,” that 

he had no issue.

Even if, as Malone now alleges, it was not until the day 

of the hearing that he learned of his attorney’s potential personal interest conflict, he effectively waived such conflict by 

stating that he understood his attorney’s disclosure and still 

had no issues. Malone raised no other issues pertaining to a 

conflict of interest besides what he heard and agreed to in 

open court.

It was therefore not clear error for the district court to conclude, based on this conversation, that Malone’s waiver was 

knowing, intelligent, and voluntary. The district court did not 

err in finding the personal interest conflict waived.

Malone’s argument that prejudice should be presumed based 

on his defense attorney’s personal interest conflict is accordingly without merit.

(ii) Failure to Raise Defense Based 

on Hart’s Own Negligence

Malone’s next allegation of ineffective assistance of counsel 

is based on his counsel’s failure to raise Hart’s own negligence 

as a defense.

[39] Malone acknowledges that under longstanding principle, “contributory negligence is not a defense to the charge 

of motor vehicle homicide. . . . Rather, [for purposes of a 

65 Brief for appellant at 33.

66 Id. at 34.
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defendant’s liability,] the issue is whether a defendant’s violation of the law was a contributing factor to the death.” 67

[40] Still, Malone cites State v. Ring 68 for the proposition 

that if a decedent’s negligence is the sole proximate cause 

of his death, then the decedent’s negligence is a defense. 69

According to Malone, Hart’s own negligence in “laying down” 

his motorcycle when he saw Malone’s car approaching was 

a “superseding and intervening cause of [Hart’s] injuries.” 70

Malone contends that his trial counsel should have argued that 

by laying down his motorcycle, Hart had violated provisions 

of Nebraska’s motorcycle operator manual. Malone alleges 

that if his trial counsel would have raised this argument, a 

traffic accident reconstructionist Malone had hired would have 

testified that “Hart’s actions were ‘extremely dangerous’ and, 

without . . . Hart’s own negligence, the collision never would 

have occurred.” 71

[41-44] But Malone’s argument misconstrues the concept 

of proximate causation as it relates to this record. Proximate 

causation refers to the basic requirement that there must be 

some direct relation between the injury asserted and the injurious conduct alleged. 72 A “proximate cause” is a moving or 

effective cause or fault which, in the natural and continuous 

sequence, unbroken by an efficient intervening cause, produces a death or injury and without which the death or injury 

67 State v. Brown, 258 Neb. 330, 340, 603 N.W.2d 419, 427 (1999) (citing 

State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), disapproved on other 

grounds, State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016); State v. 

William, 231 Neb. 84, 435 N.W.2d 174 (1989); and State v. Rotella, 196 

Neb. 741, 246 N.W.2d 74 (1976)).

68 Ring, supra note 67.

69 See, also, Brown, supra note 67; William, supra note 67; State v. Meints, 

212 Neb. 410, 322 N.W.2d 809 (1982).

70 Brief for appellant at 24.

71 Id. at 23.

72 Irish, supra note 67.
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would not have occurred. 73 Criminal conduct is a proximate 

cause of the event in question if the event would not have 

occurred but for that conduct. 74 Conversely, conduct is not a 

proximate cause of an event if that event would have occurred 

without such conduct. 75

Here, it is clear that Hart’s action was not the sole proximate cause of the collision. Even if Hart was not acting with 

due care when he laid down his motorcycle, that action was 

defensive. It was Hart’s attempt to stop his motorcycle before 

it collided with Malone’s car, which, after having run a red 

light and pulling directly into the path of Hart’s motorcycle, 

was rapidly approaching.

Laying down one’s motorcycle may seem a dangerous, 

extraordinary maneuver if performed in isolation; however, 

Hart’s action was not performed in isolation, but instead was 

in response to an imminent, life-threatening danger precipitated 

by Malone. In that situation, it was entirely foreseeable that 

Hart would take defensive action to protect himself. Hart’s laying down his motorcycle was therefore not the sole proximate 

cause of his own death.

Malone also asserts in his brief that Hart’s negligence “acted 

as a superseding and intervening cause of [Hart’s] injuries.” 76

We acknowledge that we have made reference to independent 

intervening causes in some of our prior cases where the alleged 

negligence of the victim was at issue. 77 But it appears that language was first used in cases in which the defendant alleged 

that a third party had caused the victim’s death. 78 Because 

the doctrine of efficient intervening cause focuses on whether 

73 Id.

74 Id.

75 Id.

76 Brief for appellant at 24.

77 See, e.g., Ring, supra note 67.

78 See, Hoffman v. State, 162 Neb. 806, 77 N.W.2d 592 (1956); Birdsley v. 

State, 161 Neb. 581, 74 N.W.2d 377 (1956).
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the acts of a third party broke a causal connection, 79 we believe 

that doctrine has no role to play when, as here, it is contended 

only that the victim’s negligence caused his or her death. In 

such a case, a victim’s negligence cannot absolve the defendant 

of a motor vehicle homicide charge unless the actions of the 

victim were the sole proximate cause of the accident. 80

There is no merit to Malone’s contention regarding a defense 

based on Hart’s action as the sole proximate cause of his own 

death. As we stated in a similar context, “‘[t]his effort to shift 

the blame for what occurred to the [decedent] by introducing an 

argument based upon proximate cause does not impress us.’” 81

(iii) Failure of Adequate 

Cross-Examination

Malone continues his ineffective assistance of counsel argument by next raising his trial counsel’s cross-examination of 

Kelly, the Omaha police officer who had arrived at the scene 

of the collision and arrested Malone.

Kelly testified at trial as to Malone’s impairment at the 

time of the collision. Malone’s attorney cross-examined Kelly. 

According to Malone, this cross-examination was inadequate 

because it failed to raise Kelly’s “multiple contradictory statements, statements of facts unsupported by any evidence or 

testimony, and statements of his own subjective opinion unsupported by any other evidence.” 82 If a “competent” crossexamination would have been performed, Malone alleges that 

his trial counsel could have impeached Kelly “and ma[de] it 

clear to the jury that he was not a trustworthy witness worthy 

of belief.” 83

79 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

80 See Brown, supra note 67.

81 William, supra note 67, 231 Neb. at 90, 435 N.W.2d at 178 (quoting State 

v. Machmuller, 196 Neb. 734, 426 N.W.2d 69 (1976)).

82 Brief for appellant at 26.

83 Id.
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This allegation is without merit. Not only are Malone’s allegations of factual misstatements in Kelly’s testimony largely 

unfounded according to the appellate record, Malone does not 

explain what he believes a “competent” trial counsel would 

have said to further emphasize the alleged contradictions and 

misstatements in Kelly’s testimony. 84

As such, Malone failed to allege sufficient facts to support 

his allegation. 85 The district court thus did not err in rejecting 

this argument.

(iv) Failure to Move to Suppress

Fourth, Malone contends that his trial counsel was ineffective for failing to file certain pretrial motions.

a. Autopsy Photograph

Malone first identifies autopsy photographs of Hart that 

were introduced at trial, but that Malone claims were unduly 

prejudicial and so should have been suppressed under Neb. 

Rev. Stat. § 27-403 (Reissue 2016). Although Malone’s attorney did not move prior to trial to suppress the photographs, he 

did object at trial. Malone now argues his attorney was ineffective for not having had the photographs suppressed at trial 

and not having adequately raised the issue on direct appeal. 

According to Malone, his trial counsel “showed a lack of 

preparation to support his objection [at trial]” 86 and “did not 

raise the issue, leaving the prosecutor’s vague and inaccurate 

argument unchallenged.” 87

[45,46] Even if his trial counsel and appellate counsel had 

challenged the photographs in the manner Malone now suggests, Malone has not shown that it would have changed the 

outcome of his trial. As we observed recently, “gruesome 

84 Cf. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).

85 See Strickland, supra note 32.

86 Brief for appellant at 28.

87 Id. at 29.
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crimes produce gruesome photographs.” 88 The simple fact that 

a photograph is gruesome does not make the photograph inadmissible as unduly prejudicial. 89 If the State lays proper foundation, photographs that illustrate or make clear a controverted 

issue in a homicide case are admissible, even if gruesome. 90

Here, Malone does not dispute that the State laid a proper 

foundation for the autopsy photographs, because they were 

offered during the testimony of the coroner who examined 

Hart. The autopsy photographs were offered during the coroner’s testimony to aid the coroner in describing Hart’s injuries. 

Among other things, the nature of these injuries were relevant 

to the manner in which Hart had died. Malone challenged 

whether he or Hart had collided with the other. Through the 

coroner’s testimony and the autopsy photographs, the State 

sought to show it was Malone who collided with Hart and not 

the other way around.

The photographs were also relevant to other issues at trial, 

such as the speed at which Hart had been traveling and whether 

Hart attempted to avoid the collision. Malone has accordingly 

failed to show that he was prejudiced, and his argument with 

respect to these photographs is thus without merit.

b. Stephen Venteicher’s Testimony

Malone next challenges the testimony of Stephen Venteicher, 

the other Omaha police officer who arrived at the scene of the 

collision and aided in Malone’s arrest a short time later.

[47,48] Malone alleges that Venteicher’s testimony at trial 

about his interactions with Malone during the arrest should 

have been suppressed under Miranda v. Arizona.

 91 Miranda

88 State v. Britt, 305 Neb. 363, 372, 940 N.W.2d 270, 277 (2020) (citing State 

v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019)).

89 See Britt, supra note 88.

90 Id.

91 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
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prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege 

against self-incrimination. 92 The Miranda safeguards come into 

play whenever a person in custody is subjected to either 

express questioning or its functional equivalent. 93

The interactions at issue occurred around the time 

Venteicher apprehended Malone upon finding him a distance 

from the collision site. After stopping Malone, Venteicher 

pulled Malone out of his car, put him on the ground, and 

handcuffed him. Then, before Venteicher read Miranda warnings to Malone, Malone stated he had consumed “a few beers 

earlier.” Venteicher testified that Malone made this statement, 

and Malone argues his defense counsel should have objected 

and moved to suppress the statement on grounds that it was 

obtained in violation of Miranda.

[49] But as the State notes, even if Malone’s counsel 

had moved to suppress Venteicher’s testimony on Miranda

grounds, only that testimony obtained during Venteicher’s 

custodial interrogation would have been subject to suppression. 94 As indicated above, the only prejudicial testimony that 

Malone alleges was wrongfully obtained during this custodial 

interrogation was Malone’s assertion that he had consumed “a 

few beers earlier.” This statement was also recounted at trial 

by Kelly, and Malone has not raised a similar Miranda issue 

with respect to Kelly’s testimony. Moreover, there was ample 

other testimony and evidence offered at trial to support the 

conclusion that Malone was under the influence of alcohol 

or drugs at the time of the collision. Therefore, to the extent 

Venteicher’s testimony was inadmissible under Miranda, it 

was cumulative.

92 State v. Johnson, ante p. 331, 953 N.W.2d 772 (2021).

93 Id.

94 See, id.; State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
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Malone has not shown that he was prejudiced by any failure 

of counsel in not moving to suppress Venteicher’s testimony.

c. Toxicology Report

Malone additionally identifies a toxicology report that he 

alleges was offered in violation of Neb. Rev. Stat. § 60-6,201 

(Reissue 2010).

After Malone was arrested, he voluntarily submitted a urine 

sample to police for testing. The test results were included in 

the police’s drug recognition examination and at trial. Kelly 

and Venteicher testified that the results of Malone’s urinalysis were consistent with the presence of alcohol and drugs in 

Malone’s system. Malone contends that his trial counsel should 

have moved to suppress the results of the urinalysis because its 

results were not valid.

Section 60-6,201(3) states that “[t]o be considered valid, 

tests of blood, breath, or urine made under section 60-6,197 

. . . shall be performed according to methods approved by 

the Department of Health and Human Services.” One such 

Department of Health and Human Services (DHHS) rule states 

that “[t]he presence of a drug shall mean any laboratory confirmatory test result, signal, or finding that shall be equal to or 

greater than the cutoff level.” 95 In that same DHHS rule, cutoff 

limits are prescribed for seven drugs: marijuana, cocaine, morphine, codeine, phencyclidine, amphetamines, and methamphetamine. 96 “Cutoff level means the amount of drug detected 

which determines the absence or presence of drug.” 97

Because the drugs found in Malone’s system—zolpidem, 

diphenhydramine, citalopram-escitalopram, and 7-aminoclonazepam—did not have prescribed cutoff limits, Malone claims 

they were not legally present in his system and the results 

95 177 Neb. Admin. Code, ch. 7, § 002.01 (2007).

96 Id.

97 Id., § 001.10.
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of the urinalysis were thus invalid under Neb. Rev. Stat. 

§ 60-6,197 (Cum. Supp. 2020).

As the State notes, Malone has not cited any authority for 

the proposition that all drugs must have cutoff limits prescribed. Indeed, the DHHS rule Malone cites expressly only 

prescribes cutoff limits for the seven drugs listed. 98 It does not 

follow, then, that because those seven drugs have cutoff limits 

prescribed, tests of all other drugs not listed are inherently 

invalid and their results cannot be used at trial. A better reading of the rule is that the seven drugs listed need to be tested 

according to the cutoff limits prescribed and that testing for 

other drugs simply does not have cutoff limits prescribed by 

that particular DHHS rule.

Malone further contends that his urinalysis failed to comport with quality controls. He cites another DHHS rule, which 

states that “[n]o test results shall be reported if a quality control sample result is outside of acceptable limits.” 99 Malone 

then makes the following conclusory statement: “[T]here is no 

indication that a quality control sample was tested and no indication of whether the quality control sample result was within 

the acceptable limits.” 100

Malone’s argument here is unclear. It appears he is arguing 

that his trial counsel should have objected to the urinalysis on 

grounds that the test was not performed according to adequate 

quality control. But he offers no evidence that a quality control 

sample was not tested or that the quality control sample result 

was not within acceptable limits. Malone has therefore failed to 

meet his burden of showing that his counsel’s performance was 

deficient. This argument is without merit.

(v) Failure to Move to Bifurcate

Malone’s final allegation of ineffective assistance of counsel is that his trial counsel should have moved to bifurcate 

98 See id., § 002.01.

99 Id., § 006.05D2.

100Brief for appellant at 31.
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trial between the first three counts and the fourth count with 

which he was charged.

The fourth charge was significant, Malone contends, because 

it alleged that he had failed to use an ignition interlock device. 

By allowing that charge to be combined at trial with the other 

three charges, Malone alleges that he was forced to impliedly 

concede to the jury that he had previously been convicted of 

driving under the influence. The issue of whether Malone had 

driven under the influence was relevant to the first charge, 

motor vehicle homicide. 101 To prevent prejudice, Malone contends that his trial counsel should have moved to bifurcate 

trial between Malone’s fourth charge, failure to use an ignition 

interlock device, and his other three charges.

The district court rejected Malone’s argument, reasoning 

that Malone’s attorney had entered a stipulation preventing the 

jury from hearing why Malone had been required to use an 

ignition interlock device. Pursuant to that stipulation, neither 

the State nor any witnesses testified about Malone’s previous 

three convictions for driving under the influence. Still, Malone 

contends that was not enough to avert prejudice and that the 

fourth charge should have been tried wholly separately because 

it “had no bearing on the other charges.” 102

[50,51] Even if Malone’s counsel would have moved to 

bifurcate trial, it is questionable whether such motion would 

have been granted. Bifurcation of a trial is generally only 

appropriate where separate proceedings will do justice, avoid 

prejudice, and further the convenience of the parties and the 

court. 103 Whether claims should be bifurcated is generally 

within the discretion of the trial court. 104

101 See, Neb. Rev. Stat. § 28-306(1) (Reissue 2016); State v. Valdez, 305 Neb. 

441, 940 N.W.2d 840 (2020).

102Brief for appellant at 32.

103 See Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 

920 N.W.2d 268 (2018).

104 See, id.; Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 

(2009).
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Here, the four charges at issue all stemmed from the same 

event. The convenience of the court and of at least one party, 

the State, was best served by litigating the issues all at once. 

As analyzed above, the parties made efforts to mitigate any 

prejudicial effect from trying the fourth charge with the first 

three. Malone has thus not shown that he was prejudiced by 

his counsel’s failure to move to bifurcate his trial with respect 

to the charge of driving without an ignition interlock device. 

Malone has failed to show that the district court abused its 

discretion in not bifurcating. This argument is without merit.

(b) Claim of Prosecutorial Misconduct

We turn to Malone’s argument that his constitutional rights 

at trial were violated by prosecutorial misconduct. According 

to Malone, the prosecutor engaged in misconduct by withholding exculpatory evidence, allowing false testimony, and 

commenting inappropriately about Malone’s credibility as 

a witness.

The district court initially rejected this argument as procedurally barred. Malone then amended his motion to add an 

allegation that his appellate counsel had been ineffective for 

failing to raise the claims of prosecutorial misconduct on direct 

appeal. The district court again rejected Malone’s claim, reasoning that even if not procedurally barred, the claim failed to 

“set forth the facts and applicable law to establish an objection 

based on any of these prosecutorial [misconduct] claims would 

. . . have been successful.” We agree.

[52,53] Prosecutors are charged with the duty to conduct 

criminal trials in such a manner that the accused may have 

a fair and impartial trial, and prosecutors are not to inflame 

the prejudices or excite the passions of the jury against the 

accused. 105 When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s 

acts constitute misconduct. 106

105 State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).

106 State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
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[54-57] Prosecutorial misconduct encompasses conduct that 

violates legal or ethical standards for various contexts because 

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

trial. 107 While a prosecutor should prosecute with “‘earnestness and vigor’” and “‘may strike hard blows, he [or she] is 

not at liberty to strike foul ones.’” 108 A prosecutor’s conduct 

that does not mislead and unduly influence the jury is not 

misconduct. 109 But a prosecutor’s misconduct that prejudices a 

defendant’s right to a fair trial violates due process. 110

(i) Withheld Evidence

Malone’s first allegation of prosecutorial misconduct is that 

the prosecutor withheld exculpatory and impeachment evidence from him at trial.

[58-60] Under Brady v. Maryland,

 111 prosecutors owe a duty 

to disclose favorable evidence to criminal defendants prior 

to trial. 112 Favorable evidence includes both exculpatory and 

impeachment evidence. 113 The “‘suppression by the prosecution of evidence favorable to an accused upon request violates 

due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution.’” 114

107 See Price, supra note 105.

108 State v. Gonzales, 294 Neb. 627, 645, 884 N.W.2d 102, 117 (2016) 

(quoting Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 

1314 (1935)).

109Price, supra note 105.

110 See Gonzales, supra note 108. See, also, Cotton, supra note 48.

111 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

112 See State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).

113 Id. See, also, United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. 

Ed. 2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 92 S. Ct. 

763, 31 L. Ed. 2d 104 (1972)).

114 Harris, supra note 112, 296 Neb. at 332, 893 N.W.2d at 452 (quoting 

Brady, supra note 111).
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Citing Brady, Malone alleges that two pieces of evidence 

were wrongfully withheld by the prosecutor: a cruiser camera video of Kelly’s interactions while apprehending Malone 

and blood-stained clothing that Malone had worn at the time 

of the collision. Malone alleges that “[b]y withholding the 

cruiser video and blood stained clothing, the State deprived . . . 

Malone of strong evidence to impeach . . . Kelly and to defend 

against the false allegations of the prosecuting attorneys that he 

did not attempt to render assistance to [Hart].” 115

Malone’s argument distorts the record. As the State notes, it 

does not appear that either the video or blood-stained clothing 

were withheld from Malone at trial. Indeed, one of Malone’s 

trial experts referenced the video in one of his reports, thus 

suggesting that it had been provided to him by Malone prior to 

trial. Nor was Malone’s blood-stained clothing withheld from 

him, for his defense counsel referenced it during his opening statement. Multiple witnesses for the defense, including 

Malone, also referenced it during their testimony.

Malone’s argument here is unsupported by the record. His 

defense counsel was not deficient under Strickland for declining to raise it.

(ii) Misstated Evidence

Malone’s second allegation of prosecutorial misconduct is 

that the prosecutor misstated the evidence offered at trial.

Specifically, Malone alleges that the prosecutor stated 

falsely on four occasions that Malone had pulled directly into 

the intersection and that Hart had thus been left with no chance 

to avert the collision. We do not find these statements by the 

prosecutor to be misrepresentations of the record, considering 

that several witnesses did in fact testify that Hart lacked time 

to avert the collision.

Malone also argues that the prosecutor falsely characterized 

Malone’s response after the collision. While the prosecutor 

115Brief for appellant at 36.
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stated that Malone did not render aid to Hart after the collision 

and instead began picking up his car’s parts from the road to 

conceal his identity, Malone claims these statements were inaccurate. He additionally raises what he characterizes as inaccuracies in the testimony of certain of the State’s witnesses. He 

contends that they testified falsely that Malone had run from 

his car after the collision.

Again, the record does not support Malone’s argument. As 

the prosecutor indicated, it does not appear that Malone effectively rendered aid to Hart after the collision. It is true that 

some witnesses testified that Malone attempted to resuscitate 

Hart, but those witnesses generally agreed that the attempts 

had been unhelpful because of Hart’s dire condition and 

Malone’s apparent unfamiliarity with how to perform resuscitation. Other witnesses stated that Malone had rendered no 

aid at all. Therefore, the prosecutor’s statements that Malone 

did not render aid were not misstatements of the evidence 

at trial.

Further, Malone offers no facts to rebut the prosecutor’s 

statement that Malone began picking up his car’s parts from 

the road soon after the collision in what appeared to be an 

attempt to conceal his identity. Because Malone’s argument 

here is again unsupported by the record, the argument fails.

(iii) Comments About Malone’s Credibility

Malone’s third allegation of prosecutorial misconduct is 

that at trial, the prosecutor commented inappropriately about 

Malone’s credibility as a witness.

[61-64] As Malone notes, this court has recognized that a 

prosecutor should not express his or her personal belief or 

opinion as to the truth or falsity of any testimony or evidence 

or the guilt of the defendant. 116 However, a prosecutor is 

entitled to draw inferences from the evidence in presenting his 

116 See Price, supra note 105.
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or her case, and such inferences generally do not amount to 

prosecutorial misconduct. 117

“[W]hen a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, the prosecutor is 

permitted to present a spirited summation that a defense 

theory is illogical or unsupported by the evidence and to 

highlight the relative believability of witnesses for the 

State and the defense. Thus, in cases where the prosecutor comments on the theory of defense, the defendant’s 

veracity, or the defendant’s guilt, the prosecutor crosses 

the line into misconduct only if the prosecutor’s comments are expressions of the prosecutor’s personal beliefs 

rather than a summation of the evidence.” 118

[65] The danger of a prosecutor expressing a personal opinion is that the jurors may infer the prosecutor has access to 

information not in evidence and that with that inference and 

the imprimatur of the government, the jury might rest a decision on the government’s opinion rather than on its own view 

of the evidence. 119

Malone’s argument here is without merit. He points to the 

statements discussed above that he alleges were wrongfully 

omitted from the bill of exceptions. Because those statements 

are not in the appellate record, we do not consider them. A bill 

of exceptions is the only vehicle for bringing evidence before 

an appellate court, and evidence which is not made a part of 

the bill of exceptions may not be considered. 120

The only remaining argument that Malone raises is the prosecutor’s statements, during closing, that Malone had “weave[d] 

a story” and that his testimony was “ridiculous.” However, 

these appear to be “reasonably drawn inferences from the 

117 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

118 Price, supra note 105, 306 Neb. at 55, 944 N.W.2d at 293 (quoting 

Gonzales, supra note 108).

119 Price, supra note 105.

120 See, Ferrin, supra note 8; Western Ethanol Co., supra note 8.
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evidence” presented at trial, and not statements about the prosecutor’s beliefs in the case. 121 They did not amount to prosecutorial misconduct.

The touchstone of a due process analysis in a case of alleged 

prosecutorial misconduct is the fairness of trial. 122 Because the 

prosecutor’s conduct in this case did not deprive Malone of a 

fair trial, we cannot say that it amounted to prosecutorial misconduct. We therefore cannot say that Malone’s trial counsel 

and appellate counsel were deficient for failing to raise the 

prosecutor’s conduct at trial.

VI. CONCLUSION

For the reasons stated above, we reject Malone’s argument 

concerning the bill of exceptions. We further find that the district court did not err in finding Malone was not entitled to an 

evidentiary hearing on his claims of ineffective assistance of 

counsel and prosecutorial misconduct. We accordingly affirm 

the district court’s orders in this case.

Affirmed.

121 See Price, supra note 105, 306 Neb. at 55, 944 N.W.2d at 293 (quoting 

Gonzales, supra note 108).

122Gonzales, supra note 108.