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Cite as 299 Neb. 650

State of Nebraska, appellee, v.

James Cotton, appellan

___ 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 elements 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 

Nebraska Supreme Court Online Library

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

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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 exception, 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 reasonable 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 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.

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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affirmatively prove or rebut the merits of the claim. The record is sufficient 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 plausible 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 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. 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 criminal law.

19. Effectiveness of Counsel: Proof: Words and Phrases. 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. 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 undivided 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 conflict 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 interest, 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 lawyer’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 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.

27. 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.

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 independent 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 interest 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 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.

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 prosecutorial 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, 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.

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 prosecutor’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 prosecutor’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 confidence 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.

Randall, Judge. Affirme

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, St

Funke, J
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Funke, 

This is James Cotton’s direct appeal of his jury convictions 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 confronted 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 murder weapon.

A search warrant was obtained for Labno’s apartment. 

During the execution of the warrant, police discovered the following: 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 midnight 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 methamphetamine. 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 question 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 arguing 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 causing 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 outside 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 shotgun 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 coming 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, according 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 condition.” 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 letters 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 contacted 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 sentences were ordered to run consecutively. Cotton perfected a 

timely appeal.

II. ASSIGNMENTS OF ERROR

Cotton presents 11 assignments of error, restated and reordered, on appeal. He assigns that the court erred in (1) denying his motion to sever count IV from the amended information, (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 prosecutorial misconduct.

Cotton also assigns that his trial counsel was ineffective in 

(5) failing to withdraw due to a conflict of interest, (6) failing 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 sentencing 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 miscarriage of justice.1

[2] 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 elements of the crime 

beyond a reasonable doubt.2

[3] 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. We determine 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.3

IV. ANALYSIS

1. Motion to Sever Cont

Court’s Admission of Drug E

(a) Additional Facts

About 1 month before trial, Cotton filed a motion to suppress regarding physical evidence obtained from him during 

a police interview, the shotgun used to kill Bare, and any evidence 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 information 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 reliable 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 probable 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, arguing 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 governed 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, informations, 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 misjoinder 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 properly before this court, because Cotton’s motion to suppress 

made no mention of methamphetamine or drug paraphernalia and he never filed an additional motion to suppress or 

expanded his initial motion.

Neb. Rev. Stat. § 29-822 (Reissue 2016) provides, in relevant part, the following:

Any person aggrieved by an unlawful search and seizure 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 commencement 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 question 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 information, he did not do so. Instead, he filed a motion in limine 

to exclude methamphetamine evidence on the basis of evidence 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 suppress 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 Suffici

Support Cotton’s Convi

Cotton argues that the evidence was insufficient as a matter 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 credibility 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 conviction 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 Id.
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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 without 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 possible duration and may be so short that it is instantaneous, and 

the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is 

committed.25 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.26 A question 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 purposefully. 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 Assi

of Counse

[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 affirmatively prove or rebut the merits of the claim.30 The record is 

sufficient 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 plausible trial strategy.31

[17] 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 

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 id.
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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 defendant’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 reasonable probability is a probability sufficient to undermine confidence in the outcome.38 The two prongs of this test may be 

addressed in either order, and the entire ineffectiveness analysis 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 disqualification of a criminal defendant’s chosen counsel raises problems 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 defendant’s autonomy in crafting a defense, (2) the strategic importance of choice in ensuring vigorous advocacy, and (3) practical 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 interest 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 assistance 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 demonstration of actual conflict or a showing of a serious potential 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 client’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 disqualify regarding Cotton’s trial counsel. Nevertheless, upon 

being informed by the State of Cotton’s trial counsel’s potential ethical violations, the court fulfilled its duty to inquire 

into the potential conflict of interest. The issue was discussed 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 approximately July 22, 2016; Redinbaugh and Cotton’s trial counsel 

had discussed Matthew Krisel’s statements to law enforcement; 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 witness 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 tampering 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 violation 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 material 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 representing 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 relinquishment 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 standard 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 conflicting 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 relevant 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 selfinterest, 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 concerns 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 honest 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 conflict 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 proceedings 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 disregard of another.61 An actual conflict may arise from concurrent 

representation, subsequent representation, or a personal conflict 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 conflicting interests.63

[33,34] The seriousness of any potential conflict of interest depends on its likelihood and dimensions.64 When weighing 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 calling Redinbaugh as a witness was to support Cotton’s allegation 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 primary 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 conclusion 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’ credibility 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 Id.
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Nevertheless, we conclude that Cotton’s trial counsel’s 

potential conflict of interest was not a serious one. As mentioned 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, especially 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 presumption 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 possession 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 testimony 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 deposition 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 prejudiced, because Labno’s testimony received undue influence by 

being presented to the jury twice and the State had the opportunity 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 consented 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 testimony, 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 questioned Cotton further on whether he consented to proceeding 

without objection. Cotton stated that he had been in the courtroom 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 mistrial 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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actually prejudiced him or her, rather than creating only the 

possibility of prejudice.67

We reject Cotton’s assertion that his trial counsel’s statements 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 situation, the record shows that he had a clear grasp of the situation 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 deficient performance.

[36] Nevertheless, such an examination is unnecessary, 

because Cotton personally consented to proceeding with 

Labno’s live testimony. A defendant has a fundamental constitutional 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 listening 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 testimony, 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 understood 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 testimony 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 misconduct.71 A prosecutor’s conduct that does not mislead and 

unduly influence the jury is not misconduct.72 But if we conclude 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 argument—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 preventing 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 closing 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 testimony, 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 importantly, 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 previously 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 prosecutorial 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, reputation, and fairness of the judicial process.79

Based on our discussion in the following section, we conclude 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 justice. 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 deficient 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 mischaracterize 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 contention 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 decisions it must make, and to assist and guide the jury in understanding the case and considering testimony.80 Absent evidence 

to the contrary, it is presumed that a jury followed the instructions 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 deficient, 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 selfdefense 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 credibility — or the sole judges of a witness’s credibility. 

The conduct and demeanor of the witness while testifying. 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 specifically, 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 testimony of the witness? . . . Burnette, again, did it make 

sense? Was it corroborated by other evidence — physical 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 initial 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 depositions, 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 questions. 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 “prosecutorial 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 evidence.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 determine 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 commenting on the defendant’s credibility and as implying 

that “in evaluating the credibility of [the defendant’s] testimony, 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 statements 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 characterization 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 impermissible 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 statements to be misconduct when he “characterized defense counsel 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 prosecutor’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 evidence” were not improper, because they were distracting 

rather than deceitful.98

Here, in the context of the prosecutor’s entire closing argument 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 consider 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 witnesses 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 corroboration. Throughout the rest of the closing, the prosecutor’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 witnesses solely because he had access to testimony, because they 

could review their own depositions to ensure their statements 

were consistent.

98 Id.
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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 prosecutor 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 misconduct 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 prosecutor’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).

100Gonzales, 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, especially, assertions of personal knowledge are apt to carry 

much weight against the accused when they should properly 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 conduct 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 prosecutor did not state that he believed Cotton was being untruthful 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 statements 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 Id.
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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 convictions, 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 failing 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’ passions against him, which prejudiced him by harming his selfdefense case.

The State argues that regardless of whether Cotton’s counsel 

should have objected to the questions or whether the questions 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 prejudice from the prosecutor’s questions when Cotton also testified 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 assignment 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 deficient 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 witness’ deposition, is a matter of trial strategy. When the ineffective 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 particular 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 fentanyl 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 shooting. 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 elicited 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, especially 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 participate 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 evidentiary 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 exculpatory 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 support 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 disproved 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.

Affirmed

Wright and Kelch, JJ., not participati

107 See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).