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

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