State v. Malone

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/16/2021 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MALONE
Cite as 308 Neb. 929
State of Nebraska, appellee, v.
Kevin W. Malone, appellant.
___ N.W.2d ___
Filed April 16, 2021. Nos. S-20-118, S-20-460.
1. Rules of the Supreme Court: Appeal and Error. Whether a party has
complied with the requirements under the Nebraska Supreme Court
rules of appellate procedure is determined de novo upon a review of
the record.
2. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
3. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
assistance of counsel involve mixed questions of law and fact.
4. ____: ____. When reviewing claims of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error and the legal determinations de novo.
5. Records: Appeal and Error. An accurate bill of exceptions is essential
to providing meaningful appellate review.
6. Evidence: Records: Appeal and Error. As the only proper vehicle for
bringing evidence before an appellate court, a bill of exceptions imports
absolute verity once it has been submitted on appeal.
7. Appeal and Error. A remand order generally terminates the present
appeal’s pendency.
8. Rules of the Supreme Court: Records: Appeal and Error. There is
only one proper procedure for amending a bill of exceptions, and it is
set out in Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018).
9. Rules of the Supreme Court: Appeal and Error. Parties must strictly
comply with the Nebraska Supreme Court rules of appellate procedure.
10. ____: ____. A case is eligible for submission at any time after the appel-
lee’s brief has been filed.
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11. Rules of the Supreme Court: Records: Appeal and Error. The terms
of Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018) require that a motion to
amend the bill of exceptions be filed in the district court and not in an
appellate court.
12. Postconviction: Constitutional Law. Under the Nebraska Postconviction
Act, a prisoner in custody may move to be released on the ground that
there was such a denial or infringement of his or her constitutional rights
as to render the judgment void or voidable.
13. Postconviction: Appeal and Error. Postconviction relief is a very nar-
row category of relief and is not intended to secure a routine review for
any defendant dissatisfied with his or her sentence.
14. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which were or
could have been litigated on direct appeal.
15. Postconviction: Proof. An evidentiary hearing on a motion for post­
conviction relief is not required if (1) the motion does not contain factual
allegations of a violation or infringement of the prisoner’s constitutional
rights, (2) the motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no relief.
16. Postconviction. In the absence of allegations that would render the
judgment void or voidable, the proper course is to overrule a motion for
postconviction relief without an evidentiary hearing for failure to state
a claim.
17. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
18. Effectiveness of Counsel: Constitutional Law. Under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
a criminal defendant’s rights under U.S. Const. amend. VI may be
violated if he or she is afforded inadequate representation by his or
her attorney.
19. Postconviction: Effectiveness of Counsel. Under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
two steps of analysis are required to determine whether a defendant is
entitled to postconviction relief based on a claim of ineffective assist­
ance of counsel.
20. Effectiveness of Counsel: Proof: Appeal and Error. Although both
elements under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), must be met for a meritorious claim of inef-
fective assistance of counsel, an appellate court may address them in
either order.
21. Effectiveness of Counsel: Proof. To prevail on a claim of ineffec-
tive assistance of counsel, a defendant must first show that his or her
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STATE v. MALONE
Cite as 308 Neb. 929
attorney’s performance was deficient, meaning it objectively did not
equal that of a lawyer with ordinary training and skill in criminal law.
22. ____: ____. To prevail on a claim of ineffective assistance of counsel,
the defendant must show that he or she suffered prejudice as a result of
the attorney’s deficient performance.
23. Effectiveness of Counsel: Words and Phrases. Prejudice means a rea-
sonable probability that but for the attorney’s deficient performance, the
result of the proceeding would have been different.
24. Words and Phrases. A reasonable probability is a substantial probabil-
ity sufficient to undermine confidence in the outcome.
25. Effectiveness of Counsel: Presumptions: Appeal and Error. An
appellate court reviews claims of ineffective assistance of counsel with
a strong presumption that counsel’s actions were reasonable.
26. Postconviction: Effectiveness of Counsel: Appeal and Error. Where
a defendant was represented by the same attorney at trial and on direct
appeal, the defendant is not procedurally barred from raising trial coun-
sel’s ineffectiveness in a motion for postconviction relief.
27. Attorney and Client: Conflict of Interest: Words and Phrases. The
phrase “conflict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another or where a lawyer’s repre-
sentation of one client is rendered less effective by reason of his or her
representation of another client.
28. Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal
and Error. When a defendant shows that an actual conflict of interest
burdened his or her attorney’s representation and affected the lawyer’s
performance, an appellate court applies a presumption of prejudice,
because it is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests.
29. Effectiveness of Counsel: Conflict of Interest: Words and Phrases.
The phrase “actual conflict of interest” encompasses any situation in
which a defense counsel faces divided loyalties such that regard for one
duty tends to lead to disregard of another.
30. Effectiveness of Counsel: Conflict of Interest. An actual conflict of
interest is one that adversely affects counsel’s performance.
31. Effectiveness of Counsel: Conflict of Interest: Appeal and Error.
While there are several types of conflicts of interest that could arise,
where the issue is that the client’s interests could conflict with the
attorney’s personal interests, an appellate court deems it a personal inter-
est conflict.
32. ____: ____: ____. A personal interest conflict is arguably the least con-
sequential type of conflict that an appellate court recognizes, because
when the attorney has a personal conflict, the attorney can still fulfill
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his or her duty of loyalty to a client, although doing so may be to the
detriment of the attorney’s personal interest.
33. Effectiveness of Counsel: Conflict of Interest: Presumptions: Appeal
and Error. An appellate court generally does not apply a presumption of
prejudice to personal interest conflicts unless the defendant shows that
his or her defense counsel faced a situation in which conflicting loyal-
ties pointed in opposite directions and that his or her counsel acted for
the other client’s interests or the counsel’s own personal interests and
against the defendant’s interests.
34. Right to Counsel: Conflict of Interest: Waiver. A defendant can waive
his or her right to assistance of counsel unhindered by a conflict of inter-
est, provided that the waiver is knowing and intelligent.
35. Right to Counsel: Waiver: Appeal and Error. There is no formalistic
litany required to establish that a waiver was knowingly and intelli-
gently made; instead, when considering whether a defendant voluntarily,
knowingly, and intelligently waived his or her right to counsel, an
appellate court reviews the totality of the circumstances appearing in
the record.
36. Constitutional Law: Waiver: Records. A voluntary waiver, 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.
37. Constitutional Law: Waiver: Appeal and Error. In determining
whether a defendant’s waiver of a statutory or constitutional right was
voluntary, knowing, and intelligent, an appellate court applies a clearly
erroneous standard of review.
38. Judgments: Appeal and Error. Under a clearly erroneous standard
of review, an appellate court does not reweigh the evidence, but the
appellate court decides the ultimate question independent of the trial
court’s ruling.
39. Homicide: Motor Vehicles: Negligence. Contributory negligence is not
a defense to the charge of motor vehicle homicide; rather, for purposes
of a defendant’s liability, the issue is whether a defendant’s violation of
the law was a contributing factor to the death.
40. Negligence: Proximate Cause. If a decedent’s negligence is the sole
proximate cause of his death, then the decedent’s negligence is a defense.
41. ____: ____. Proximate causation refers to the basic requirement that
there must be some direct relation between the injury asserted and the
injurious conduct alleged.
42. Negligence: Proximate Cause: Words and Phrases. A “proximate
cause” is a moving or effective cause or fault which, in the natural
and continuous sequence, unbroken by an efficient intervening cause,
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produces a death or injury and without which the death or injury would
not have occurred.
43. Criminal Law: Negligence: Proximate Cause: Words and Phrases.
Criminal conduct is a proximate cause of the event in question if the
event would not have occurred but for that conduct.
44. Negligence: Proximate Cause: Words and Phrases. Conduct is not a
proximate cause of an event if that event would have occurred without
such conduct.
45. Trial: Photographs. Because gruesome crimes produce gruesome
photo­graphs, the simple fact that a photograph is gruesome does not
make the photograph inadmissible as unduly prejudicial.
46. Trial: Homicide: Photographs. If the State lays proper foundation,
photographs that illustrate or make clear a controverted issue in a homi-
cide case are admissible, even if gruesome.
47. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), pro-
hibits the use of statements derived during custodial interrogation unless
the prosecution demonstrates the use of procedural safeguards that are
effective to secure the privilege against self-incrimination.
48. ____: ____: ____. The safeguards provided by Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play
whenever a person in custody is subjected to either express questioning
or its functional equivalent.
49. ____: ____: ____. Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), only that testimony obtained unlawfully
during custodial interrogation is subject to suppression.
50. Trial: Parties. Bifurcation of a trial is generally only appropriate where
separate proceedings will do justice, avoid prejudice, and further the
convenience of the parties and the court.
51. Trial. Whether claims should be bifurcated is generally within the dis-
cretion of the trial court.
52. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial, and prosecutors are not to inflame the
prejudices or excite the passions of the jury against the accused.
53. Trial: Prosecuting Attorneys: Appeal and Error. When considering
a claim of prosecutorial misconduct, an appellate court first considers
whether the prosecutor’s acts constitute misconduct.
54. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
conduct encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine a defend­
ant’s right to a fair trial.
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55. Trial: Prosecuting Attorneys. While a prosecutor should prosecute
with earnestness and vigor and may strike hard blows, he or she is not
at liberty to strike foul ones.
56. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
not mislead and unduly influence the jury is not misconduct.
57. Trial: Prosecuting Attorneys: Due Process. A prosecutor’s misconduct
that prejudices a defendant’s right to a fair trial violates due process.
58. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), pros-
ecutors owe a duty to disclose favorable evidence to criminal defendants
prior to trial.
59. Evidence: Impeachment: Words and Phrases. Favorable evidence
includes both exculpatory and impeachment evidence.
60. Prosecuting Attorneys: Evidence: Due Process. Suppression by the
prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prosecution.
61. Trial: Prosecuting Attorneys: Evidence. A prosecutor should not
express his or her personal belief or opinion as to the truth or falsity of
any testimony or evidence or the guilt of the defendant.
62. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
ences from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.
63. ____: ____. When a prosecutor’s comments rest on reasonably drawn
inferences from the evidence, the prosecutor is permitted to present a
spirited summation that a defense theory is illogical or unsupported by
the evidence and to highlight the relative believability of witnesses for
the State and the defense.
64. ____: ____. In cases where the prosecutor comments on the theory of
defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor
crosses the line into misconduct only if the prosecutor’s comments are
expressions of the prosecutor’s personal beliefs rather than a summation
of the evidence.
65. Trial: Prosecuting Attorneys: Juries. The danger of a prosecutor
expressing a personal opinion is that the jurors may infer the prosecutor
has access to information not in evidence and that with that inference
and the imprimatur of the government, the jury might rest a decision on
the government’s opinion rather than on its own view of the evidence.
Appeals from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
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STATE v. MALONE
Cite as 308 Neb. 929
Richard L. Boucher and Bradley H. Supernaw, of Boucher
Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Kevin W. Malone challenges his convictions and sentences,
alleging that at trial and on direct appeal he was provided
ineffective assistance of counsel and subjected to prosecuto-
rial misconduct. His motion seeking postconviction relief was
denied without an evidentiary hearing. Malone appealed.
With that appeal pending, Malone found what he thought
were three misstatements in the bill of exceptions. He filed an
application before the Nebraska Court of Appeals to remand
the cause for a hearing to determine whether to amend the bill
of exceptions. After a hearing, the district court denied relief.
Malone again appealed.
For the reasons stated herein, we find that the arguments
contained in Malone’s appeals are without merit. We affirm.
II. BACKGROUND
1. Convictions
In May 2017, Malone was tried by a jury on counts of motor
vehicle homicide, manslaughter, leaving the scene of a per-
sonal injury accident resulting in serious bodily injury or death,
and driving without an ignition interlock device. The charges
stemmed from a 2016 car-motorcycle collision in Omaha,
Nebraska. After Malone had run a red light, his car and Justin
Hart’s motorcycle collided, resulting in Hart’s death.
The jury found Malone guilty on all four counts. After
accepting the jury’s verdict, the district court sentenced Malone
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to a total of 40 to 50 years’ imprisonment and revoked his
driver’s license for 15 years. The Court of Appeals affirmed,
rejecting Malone’s claims of insufficient evidence and exces-
sive sentences. 1
2. Request for Writ of Mandamus
During his direct appeal, Malone found what he believed
were misstatements in the bill of exceptions. The court reporter
at Malone’s trial had certified that the bill of exceptions was
“correct and complete.” But, disputing this, Malone sent a
letter to the court reporter in April 2018, alleging that three
exchanges at trial between the prosecutor and him had been
omitted from the bill of exceptions. Malone requested that
the court reporter review the audio recording from trial to
verify whether these exchanges had indeed occurred. He also
requested access to the audio recording.
The court reporter responded with a letter, stating, “I have
listened to the entire cross-examination [at issue,] and the [b]ill
of [e]xceptions that you have is an accurate transcription of
what was said in court on that day.”
Malone next wrote to the district court judge who had
presided over his trial. In June 2018, that judge replied to
Malone’s letter by noting that she had “reviewed the record”
and determined Malone’s “claim that there is testimony miss-
ing . . . is unfounded.” The judge accordingly denied Malone’s
request to access the audio recording from trial because
Malone had already been “provided with the bill of exceptions
as requested.”
In January 2019, Malone filed a pro se “Complaint for Writ
of Mandamus” in the district court for Douglas County, seek-
ing to compel production of the audio recording from his trial.
That complaint was followed by pro se motions for a “Change
of Judge,” for “Audio Record per Public Records Law,” and
for “Discovery Evidence: Sound [R]ecordings.” Malone’s
1
See State v. Malone, 26 Neb. Ct. App. 121, 917 N.W.2d 164 (2018).
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complaint and motions were denied, and in October 2020, we
dismissed his appeal on jurisdictional grounds. 2
3. Motion for Postconviction Relief
In June 2019, with his mandamus action still pending,
Malone filed a verified motion for postconviction relief. After
having been represented by the same attorney at trial and on
direct appeal, Malone was represented by a new attorney in his
postconviction action.
In his motion, Malone argued that he had been deprived
of effective assistance of counsel at trial and on direct appeal
by his attorney’s allowance of a familial relationship with the
victim to affect the representation. He also contended counsel
had failed to offer evidence of Hart’s own negligence, failed to
effectively cross-examine witnesses, failed to move to suppress
certain evidence, and failed to move to bifurcate the trial. In an
amended motion, Malone added an allegation that his appel-
late counsel failed to raise prosecutorial misconduct. Malone
also claimed that he had been denied due process at trial by
the prosecutor’s withholding of exculpatory impeachment evi-
dence, use of false testimony, and commenting inappropriately.
Further, Malone alleged that “errors and omissions of the
[b]ill of [e]xceptions prevent[ed] a proper appeal and unduly
prejudice[d]” him.
In an order dated January 14, 2020, the district court over-
ruled Malone’s postconviction motion without an evidentiary
hearing. The court rejected Malone’s allegations of ineffec-
tive assistance of counsel because they were not pled with
specific facts or were affirmatively rebutted by the record.
Further, it found Malone’s claims of prosecutorial misconduct
“procedurally barred, because they could have been brought
on direct appeal.” Finally, because a “conclusory allegation
that the [b]ill of [e]xceptions is inaccurate would not be a
2
See State ex rel. Malone v. Baldonado-Bellamy, 307 Neb. 549, 950 N.W.2d
81 (2020).
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constitutional deprivation” capable of rendering Malone’s sen-
tences void or voidable, the court also denied that claim.
Malone timely perfected an appeal.
4. Motion to Amend Bill of Exceptions
After perfecting an appeal in his postconviction action,
Malone filed an application in the Nebraska Court of Appeals
“pursuant to Neb. Ct. R. App. P. §2-105(B)(5) [(rev. 2018),]”
for a “remand” to the district court, inter alia, “to correct the
bill of exceptions” and play an audio recording of Malone’s
testimony at trial.
The Court of Appeals granted Malone’s application, in part,
and ordered “pursuant to . . . § 2-105(B)(5) that a hearing shall
be held in the Douglas County District Court” to determine
whether to amend the bill of exceptions. However, the Court
of Appeals specified that “[the] case is not remanded to dis-
trict court.”
At an evidentiary hearing held in June 2020, Malone tes-
tified that three exchanges during the prosecutor’s cross-
examination of him were missing from the bill of exceptions.
In the first exchange, Malone recalled telling the prosecu-
tor that he had attempted mouth-to-mouth resuscitation on
Hart immediately after the collision. In the second exchange,
Malone recounted a dialogue about whether Malone’s car or
Hart’s motorcycle had initiated contact with the other, and
in the third exchange, Malone alleged that in response to his
explanation about why he had moved his car after the colli-
sion, the prosecutor had expressed skepticism. In addition to
Malone’s testimony that these three exchanges had occurred,
he offered supportive affidavits from three family members
who had been in attendance at trial, as well as from a private
investigator who averred that he had contacted several jurors
from trial, some of whom said they remembered the alleged
missing exchanges.
On June 12, 2020, the district court issued an order deny-
ing Malone’s motion to amend the bill of exceptions. The
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court held that “based on the . . . sworn affidavit of [its cur-
rent court reporter], there are no amendments to be made to
the [b]ill of [e]xceptions.” The current court reporter averred
that after having listened to the audio recording from Malone’s
trial, she believed the bill of exceptions was accurate.
Malone timely perfected a second appeal. The Court of
Appeals ordered Malone’s two appeals consolidated. We
granted bypass of the Court of Appeals’ review.
III. ASSIGNMENTS OF ERROR
Malone assigns 13 errors, which we consolidate and restate
as two: (1) The district court erred in denying his motion to
amend the bill of exceptions, and (2) the district court erred
in overruling his motion for postconviction relief without an
evidentiary hearing.
IV. STANDARD OF REVIEW
[1] Whether a party has complied with the requirements
under our rules of appellate procedure is determined de novo
upon a review of the record. 3
[2] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. 4
[3,4] Claims of ineffective assistance of counsel involve
mixed questions of law and fact. 5 When reviewing claims of
ineffective assistance of counsel, an appellate court reviews the
factual findings of the lower court for clear error and the legal
determinations de novo. 6
3
See State v. Catlin, ante p. 294, 953 N.W.2d 563 (2021).
4
State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).
5
See State v. Russell, ante p. 499, 954 N.W.2d 920 (2021).
6
See id.
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V. ANALYSIS
1. Bill of Exceptions
Malone’s first assignment of error concerns the veracity of
the bill of exceptions.
[5,6] An accurate bill of exceptions is essential to providing
meaningful appellate review. 7 As the only proper vehicle for
bringing evidence before an appellate court, 8 a bill of excep-
tions “imports absolute verity” once it has been submitted on
appeal. 9 As authorized by statute, 10 the various procedures for
compiling, certifying, and amending a bill of exceptions are
detailed in Neb. Ct. R. App. P. § 2-105 (rev. 2018). 11
After perfecting his first appeal, Malone filed an applica-
tion for the Court of Appeals to “remand” for a § 2-105(B)(5)
hearing to correct the bill of exceptions. The Court of Appeals
granted Malone’s application, in part, and ordered the dis-
trict court to hold a hearing “pursuant to . . . § 2-105(B)(5).”
Apparently in an attempt to avoid divesting itself of jurisdic-
tion over Malone’s appeal, the Court of Appeals clarified that
the “case is not remanded to [the] district court.”
Following what it termed a “hearing on the [m]andate from
the Nebraska Court of Appeals on . . . Malone’s [a]pplication
for [r]emand to [p]roceed in [d]istrict [c]ourt to [c]orrect the
[b]ill of [e]xceptions,” the district court held that “there are no
amendments to be made to the [b]ill of [e]xceptions.” Malone
assigns this was in error.
7
See, In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017); Hynes
v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013). See,
also, Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762 (1880).
8
See, State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020); Western
Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 N.W.2d 329
(2020).
9
See State v. Dyer, 245 Neb. 385, 404, 513 N.W.2d 316, 328 (1994).
Accord Wonderling v. Conley, 182 Neb. 446, 155 N.W.2d 349 (1967).
10
See Neb. Rev. Stat. § 25-1140 (Reissue 2016).
11
See Peterson v. Skiles, 173 Neb. 223, 113 N.W.2d 105 (1962) (citing
previous version of § 2-105).
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[7] As an initial matter, we question whether the Court
of Appeals had authority to grant Malone’s application for
remand without divesting itself of jurisdiction over the cause.
A remand order generally terminates the present appeal’s pend­
ency. 12 We see no authority cited to us permitting the Court of
Appeals to have remanded only a portion of the issues before it
while maintaining jurisdiction over the remaining issues.
[8,9] Indeed, the authority cited by Malone in his application
for remand did not allow for the procedure he requested. There
is only one proper procedure for amending a bill of exceptions,
and it is set out in § 2-105(B)(5). 13 We require strict compli-
ance with our rules of appellate procedure. 14
Under § 2-105(B)(5), parties in a case “may amend the bill
of exceptions by written agreement to be attached to the bill of
exceptions.” 15 In the case of disagreement between the parties,
the bill of exceptions can be amended upon a motion to the
district court:
Proposed amendments not agreed to by all the parties to
the case shall be heard and decided by the district court
after such notice as the court shall direct. The order of
the district court thereon shall be attached to the bill
of exceptions prior to the time the case is submitted to
the Supreme Court. Hearings with respect to proposed
amendments to a bill of exceptions may be held at cham-
bers anywhere in the state. 16
[10] In Millennium Laboratories v. Ward, 17 we inter-
preted the above language to find that so long as the proper
12
See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941
N.W.2d 145 (2020). Cf. Rohde v. Farmers Alliance Mut. Ins. Co., 244
Neb. 863, 509 N.W.2d 618 (1994).
13
See Dyer, supra note 9.
14
See Catlin, supra note 3. See, also, Hilligas v. Farr, 171 Neb. 105, 105
N.W.2d 578 (1960).
15
See Dyer, supra note 9.
16
§ 2-105(B)(5). See Dyer, supra note 9.
17
Millennium Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).
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procedure is followed, a district court may order the bill of
exceptions amended at any time before the case is submit-
ted for a decision by the appellate court. A case is “‘eli-
gible for submission at any time after the appellee’s brief has
been filed.’” 18
After the appeal in Millennium Laboratories had been
perfected, but before the case was submitted to this court,
the appellee moved in the district court to amend the bill of
exceptions. The district court held a § 2-105(B)(5) hearing
and sustained the appellee’s motion, ordering the clerk of
the district court to prepare and transmit an amended bill of
exceptions.
We found that such amended bill of exceptions, duly certi-
fied, had been properly made a part of the appellate record
pursuant to § 2-105(B)(5). 19 The proper procedure in moving to
amend the bill of exceptions had been followed. 20
We note that 2 months before we decided Millennium
Laboratories, we were presented with a similar scenario in
State v. Kays. 21 After perfecting an appeal, the appellant filed
an application with the Court of Appeals to remand to the
district court to correct the bill of exceptions. The Court of
Appeals granted the application and returned the matter to the
district court for a § 2-105(B)(5) hearing. We held, inter alia,
that the district court’s subsequent order declining to amend the
bill of exceptions was not plain error. 22
[11] But to the extent our decision in Kays can be read to
approve the underlying procedure used to amend the bill of
exceptions in that case and in the case at issue, that aspect
of the decision is overruled. The terms of § 2-105(B)(5)
18
Id. at 724, 857 N.W.2d at 310 (quoting Neb. Ct. R. App. P. § 2-111(A)
(rev. 2014)).
19
See Millenium Laboratories, supra note 17.
20
See id.
21
State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
22
See id.
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require that a motion to amend the bill of exceptions be filed
in the district court and not in an appellate court.
Consequently, here we find that Malone failed to comply
with the procedure set forth in § 2-105(B)(5). He sought
to amend the bill of exceptions by filing an application for
remand in the Court of Appeals. Since his initial appeal had
been perfected at that time, but not yet submitted to the Court
of Appeals, Malone could have moved in the district court to
amend the bill of exceptions. 23
But he did not do so. We find no evidence in the appellate
record that Malone filed a motion to amend the bill of excep-
tions in the district court; his attempt to amend the bill of
exceptions was therefore improper. Because he failed to strictly
comply with our rule of appellate procedure for amending the
bill of exceptions, we do not consider the merits of his first
assignment of error.
2. Postconviction Relief
Malone next assigns that the district court erred in over-
ruling his motion for postconviction relief without an eviden-
tiary hearing.
[12-14] Under the Nebraska Postconviction Act, 24 a pris-
oner in custody may move to be released on the ground that
there was such a denial or infringement of his or her consti-
tutional rights as to render the judgment void or voidable. 25
Postconviction relief is a very narrow category of relief and
is not intended to secure a routine review for any defendant
dissatisfied with his or her sentence. 26 A motion for postcon-
viction relief cannot be used to secure review of issues that
23
See Millennium Laboratories, supra note 17.
24
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
25
§ 29-3001(1). See State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020).
26
See, Dalton, supra note 25; State v. Beehn, 303 Neb. 172, 927 N.W.2d 793
(2019).
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were known to the defendant and which were or could have
been litigated on direct appeal. 27
[15,16] Section 29-3001(2) entitles a prisoner to an eviden-
tiary hearing on his or her motion for postconviction relief,
unless “the motion and the files and records of the case show
to the satisfaction of the court that the prisoner is entitled to
no relief.” 28 An evidentiary hearing is not required if (1) the
motion does not contain factual allegations of a violation or
infringement of the prisoner’s constitutional rights, (2) the
motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no
relief. 29 In the absence of allegations that would render the
judgment void or voidable, the proper course is to overrule
the motion without an evidentiary hearing for failure to state
a claim. 30
The district court overruled Malone’s motion for postconvic-
tion relief without an evidentiary hearing. Malone assigns that
this was error.
Before we consider the arguments that Malone raises in sup-
port of this assignment of error, we note an argument he does
not preserve on appeal. Malone does not assign or specifically
argue that the alleged misstatements in the bill of exceptions,
discussed above, violated his constitutional rights. At oral
argument, Malone conceded that he was not raising such an
argument on appeal, but that his argument concerning the bill
of exceptions was limited to alleging that the district court had
erred under § 2-105(B)(5) of the appellate rules of practice in
declining to amend the bill of exceptions.
[17] An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
27
See Dalton, supra note 25. See, also, State v. Tyler, 301 Neb. 365, 918
N.W.2d 306 (2018).
28
See Parnell, supra note 4.
29
See id.
30
See Tyler, supra note 27. See, also, Parnell, supra note 4.
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error to be considered by an appellate court. 31 Because Malone
did not specifically assign and argue that the alleged mis-
statements in the bill of exceptions violated his constitutional
rights, we do not consider any such argument here.
(a) Claim of Ineffective
Assistance of Counsel
We begin our analysis of Malone’s postconviction motion by
considering his claim of ineffective assistance of counsel.
[18-20] Our ineffective assistance of counsel jurisprudence
stems from Strickland v. Washington, 32 which held that a crimi-
nal defendant’s rights under U.S. Const. amend. VI may be
violated if he or she is afforded inadequate representation by
his or her attorney. 33 Under Strickland, we apply a two-step
analysis for determining whether a defendant is entitled to
postconviction relief based on a claim of ineffective assistance
of counsel. 34 Although both elements must be met for a meri-
torious claim of ineffective assistance of counsel, an appellate
court may address them in either order. 35
[21-25] To prevail under Strickland, a defendant must first
show that his or her attorney’s performance was deficient,
meaning it objectively did not equal that of a lawyer with ordi-
nary training and skill in criminal law. 36 Second, the defend­
ant must show that he or she suffered prejudice as a result
of the attorney’s deficient performance. 37 Prejudice means
31
Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).
32
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
33
See Dalton, supra note 25.
34
See id. Accord Shinn v. Kayer, ___ U.S. ___, 141 S. Ct. 517, 208 L. Ed.
2d 353 (2020).
35
See State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
36
Id. See, also, Andrus v. Texas, ___ U.S. ___, 140 S. Ct. 1875, 207 L. Ed.
2d 335 (2020).
37
See Clausen, supra note 35.
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a reasonable probability that but for the attorney’s deficient
performance, the result of the proceeding would have been
different. 38 A reasonable probability is a substantial probabil-
ity sufficient to undermine confidence in the outcome. 39 We
review these two prongs with a strong presumption that coun-
sel’s actions were reasonable. 40
[26] Where, as here, the defendant was represented by the
same attorney at trial and on direct appeal, the defendant is not
procedurally barred from raising trial counsel’s ineffectiveness
in a motion for postconviction relief. 41
(i) Defense Counsel’s Familial
Relationship With Victim
Malone’s first allegation of ineffective assistance of counsel
is that his trial counsel’s personal familial relationship with
Hart amounted to an actual conflict of interest that adversely
affected the lawyer’s representation of Malone.
[27,28] The phrase “conflict of interest” denotes a situa-
tion in which regard for one duty tends to lead to disregard
of another or where a lawyer’s representation of one client is
rendered less effective by reason of his or her representation
of another client. 42 When a defendant shows that “‘an actual
conflict of interest’” burdened his or her attorney’s repre-
sentation and affected the lawyer’s performance, we apply a
“presumption of prejudice,” because it is difficult to measure
38
See Parnell, supra note 4.
39
State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). See, also, Shinn,
supra note 34.
40
See State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). Accord
Parnell, supra note 4.
41
See State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020), cert. denied
No. 20-6385, 2021 WL 231973 (U.S. Jan. 25, 2021). See, also, State v.
Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).
42
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013) (citing State v.
Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994)).
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the precise effect on the defense of representation corrupted by
conflicting interests. 43
According to Malone, his attorney was “a second, third, or
fourth cousin” to one of Hart’s parents. Malone asserts that it
was because of this actual conflict of interest that at trial the
attorney did not effectively cross-examine Matthew Kelly, the
Omaha police officer who arrived at the scene and arrested
Malone a short time later, or raise Hart’s own negligence as a
defense. For example, Malone notes that when explaining why
he did not wish to raise Hart’s own negligence as a defense, the
attorney allegedly stated it would “make . . . Hart look bad and
upset [Hart’s] family.” Malone thus urges this court to apply a
presumption of prejudice under Strickland based on his attor-
ney’s familial relationship with Hart.
a. Actual Conflict of Interest
As an initial matter, we are unpersuaded that the famil-
ial relationship between Malone’s attorney and the victim
amounted to an actual conflict of interest.
[29,30] We define an actual conflict of interest for Sixth
Amendment purposes broadly. The phrase “actual conflict
of interest” therefore encompasses any situation in which a
defense counsel faces divided loyalties such that regard for
one duty tends to lead to disregard of another. 44 An actual
conflict of interest is one that adversely affects counsel’s
performance. 45
[31] While there are several types of conflicts of interest
that could arise, where the issue is that the client’s interests
43
State v. Avina-Murillo, 301 Neb. 185, 197, 198, 917 N.W.2d 865, 875
(2018) (quoting Strickland, supra note 32). See, also, Cuyler v. Sullivan,
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
44
Avina-Murilla, supra note 43. Accord State v. Jackson, 275 Neb. 434, 747
N.W.2d 418 (2008).
45
See Avina-Murilla, supra note 43. See, also, Mickens v. Taylor, 535 U.S.
162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
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could conflict with the attorney’s personal interests, we deem it
a personal interest conflict. 46 Malone raises a personal interest
conflict because he argues that his attorney’s personal interests,
by way of the familial relationship with Hart, prevented the
attorney from adequately defending Malone.
[32,33] A personal interest conflict is arguably the least con-
sequential type of conflict that we recognize, because “when
the attorney has a personal conflict, the attorney can still fulfill
his or her duty of loyalty to a client, although doing so may
be to the detriment of the attorney’s personal interest.” 47 We
generally do not apply a presumption of prejudice to personal
interest conflicts unless “‘the defendant shows that his or her
defense counsel faced a situation in which conflicting loyalties
pointed in opposite directions and that his or her counsel acted
for the other client’s interests or the counsel’s own personal
interests and against the defend­ant’s interests.’” 48
Although we have never before considered whether a famil-
ial relationship similar to the one presented here qualifies as an
actual conflict of interest, we have considered other personal
interest conflicts. In State v. Edwards, 49 we held that a defense
attorney’s friendship with a material prosecution witness did
not amount to an actual conflict of interest. This determina-
tion was because “[t]he record simply [did] not support a
finding that [the attorney] had such a loyalty to [the witness]
that would have tempted him at trial to act against [the defend­
ant’s] interests.” 50
46
See Avina-Murillo, supra note 43.
47
Id. at 198, 917 N.W.2d at 875.
48
Id. at 202, 917 N.W.2d at 877-78 (quoting State v. Cotton, 299 Neb. 650,
910 N.W.2d 102 (2018), disapproved on other grounds, Avina-Murillo,
supra note 43). See, also, State v. Edwards, 294 Neb. 1, 880 N.W.2d 642
(2016).
49
Edwards, supra note 48.
50
Id. at 22, 880 N.W.2d at 655.
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Likewise, in State v. Jackson, 51 no actual conflict of interest
was found where the defendant had alleged that the friendship
between his trial counsel and appellate counsel prevented the
appellate counsel from adequately raising the trial counsel’s
ineffectiveness. We held that because “[the defend­ant] fails
to point to evidence which might show that [trial counsel
and appellate counsel] had a personal relationship,” there is
nothing to suggest that appellate counsel had divided loyalties
that might have resulted in his adjusting his appeal strategy to
protect his friend. 52
In contrast, in State v. Armstrong, 53 we found an actual con-
flict of interest based on defense counsel’s declining to ask for
a continuance at trial. This determination was because defense
counsel feared that he would personally face criminal or ­ethical
sanctions. 54 As a result, we found that the defendant “faced
a situation in which conflicting loyalties pointed in opposite
directions,” and this accordingly raised a presumption of preju-
dice under Strickland. 55
Perhaps the best analogy to this case is State v.
­Avina-Murillo. 56 There, a conflict arose during trial when the
defense counsel and defendant were found to have eaten lunch
at a restaurant together with the victim and his family. The trial
court made a record of the incident, noting that no-contact and
sequestration orders had been in place prohibiting any contact
between the defense counsel and the victim’s family. Defense
counsel lied about the incident to the trial court, then declined
to call the victim’s family to testify at trial. We found that
51
Jackson, supra note 44.
52
Id. at 442, 747 N.W.2d at 430.
53
State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015), disapproved on
other grounds, Avina-Murillo, supra note 43.
54
See id.
55
Id. at 1016, 863 N.W.2d at 468.
56
Avina-Murillo, supra note 43.
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despite the defense counsel’s apparent personal interest con-
flict, it “[did] not rise to the level of demanding a presumption
of prejudice.” 57
Similarly, here, the alleged personal interest conflict is
based on a relationship between the defense counsel and the
victim’s family. Hart is apparently the son of “a second, third,
or fourth cousin” to Malone’s attorney. We note that other
jurisdictions have categorically found similarly distant degrees
of familial relationship insufficient to present an actual conflict
of interest, stating, for example, that “a familial relationship
more distant than the third degree of relationship shared by
defense counsel and the victim of a crime is insufficient to
present a conflict of interest so as to disqualify defense counsel
from representing the accused.” 58 We also note that pursuant to
our code of judicial ethics, a judge is not necessarily disquali-
fied from a case due to a familial relationship with the victim
unless the victim is at least a first cousin or equivalent degree
of relation to the victim. 59
Not only is Malone’s attorney at best a distant relative to
Hart, there is nothing in the record to suggest that the attorney
felt any loyalty to Hart or to Hart’s immediate family. The
attorney acknowledged that he had never met Hart and that
he did not expect the relationship “would affect [his] repre-
sentation of . . . Malone.” We see no basis for finding that the
attorney’s familial relationship led him to disregard his repre-
sentation of Malone.
Thus, to the extent Malone’s attorney had a personal interest
conflict in his representation at trial, we find that it was not an
actual conflict of interest that would give rise to a presumption
of prejudice under Strickland.
57
Id. at 203, 917 N.W.2d at 878.
58
See, e.g., State v. Vance, 207 W. Va. 640, 647, 535 S.E.2d 484, 491 (2000).
59
See Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(2). See, also,
Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589
(2019).
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b. Waiver
Moreover, we find that even if there had been an actual con-
flict of interest, Malone effectively waived such conflict.
[34-36] A defendant can waive his or her right to assistance
of counsel unhindered by a conflict of interest, provided that
the waiver is knowing and intelligent. 60 There is no formal­
istic 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 cir-
cumstances appearing in the record. 61 A voluntary waiver,
knowingly and intelligently made, must affirmatively appear
from the record, before a court may conclude that a defend­
ant has waived a right constitutionally guaranteed or granted
by statute. 62
[37,38] In determining whether a defendant’s waiver of
a statutory or constitutional right was voluntary, knowing,
and intelligent, an appellate court applies a clearly erroneous
standard of review. 63 Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence, but
the appellate court decides the ultimate question independent
of the trial court’s ruling. 64
According to Malone, the district court erred in accepting
his waiver of the defense counsel’s personal interest conflict
because the relinquishment in open court was not knowing and
intelligent. According to Malone, he had only been made aware
of the familial relationship between his attorney and Hart on
the day of the hearing. By stating that he had discussed the
conflict with Malone and Malone’s family, Malone claims that
60
Cotton, supra note 48.
61
Id.
62
Id.
63
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
64
Cotton, supra note 48.
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his attorney “misrepresented” their conversations. 65 Malone
claims that he “was stunned in court by the revelation” from
his attorney. 66
Although Malone may now claim that he was stunned
by his attorney’s revelation, the transcript from his hearing
indicates otherwise. After the attorney’s disclosure that he
was distantly related to the victim, Malone was asked by the
court whether he had any issue with his attorney’s continuing
representation of him. Malone responded, “No, ma’am,” that
he had no issue.
Even if, as Malone now alleges, it was not until the day
of the hearing that he learned of his attorney’s potential per-
sonal interest conflict, he effectively waived such conflict by
stating that he understood his attorney’s disclosure and still
had no issues. Malone raised no other issues pertaining to a
conflict of interest besides what he heard and agreed to in
open court.
It was therefore not clear error for the district court to con-
clude, based on this conversation, that Malone’s waiver was
knowing, intelligent, and voluntary. The district court did not
err in finding the personal interest conflict waived.
Malone’s argument that prejudice should be presumed based
on his defense attorney’s personal interest conflict is accord-
ingly without merit.
(ii) Failure to Raise Defense Based
on Hart’s Own Negligence
Malone’s next allegation of ineffective assistance of counsel
is based on his counsel’s failure to raise Hart’s own negligence
as a defense.
[39] Malone acknowledges that under longstanding prin-
ciple, “contributory negligence is not a defense to the charge
of motor vehicle homicide. . . . Rather, [for purposes of a
65
Brief for appellant at 33.
66
Id. at 34.
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defend­ant’s liability,] the issue is whether a defendant’s viola-
tion of the law was a contributing factor to the death.” 67
[40] Still, Malone cites State v. Ring 68 for the proposition
that if a decedent’s negligence is the sole proximate cause
of his death, then the decedent’s negligence is a defense. 69
According to Malone, Hart’s own negligence in “laying down”
his motorcycle when he saw Malone’s car approaching was
a “superseding and intervening cause of [Hart’s] injuries.” 70
Malone contends that his trial counsel should have argued that
by laying down his motorcycle, Hart had violated provisions
of Nebraska’s motorcycle operator manual. Malone alleges
that if his trial counsel would have raised this argument, a
traffic accident reconstructionist Malone had hired would have
testified that “Hart’s actions were ‘extremely dangerous’ and,
without . . . Hart’s own negligence, the collision never would
have occurred.” 71
[41-44] But Malone’s argument misconstrues the concept
of proximate causation as it relates to this record. Proximate
causation refers to the basic requirement that there must be
some direct relation between the injury asserted and the inju-
rious conduct alleged. 72 A “proximate cause” is a moving or
effective cause or fault which, in the natural and continuous
sequence, unbroken by an efficient intervening cause, pro-
duces a death or injury and without which the death or injury
67
State v. Brown, 258 Neb. 330, 340, 603 N.W.2d 419, 427 (1999) (citing
State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), disapproved on other
grounds, State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016); State v.
William, 231 Neb. 84, 435 N.W.2d 174 (1989); and State v. Rotella, 196
Neb. 741, 246 N.W.2d 74 (1976)).
68
Ring, supra note 67.
69
See, also, Brown, supra note 67; William, supra note 67; State v. Meints,
212 Neb. 410, 322 N.W.2d 809 (1982).
70
Brief for appellant at 24.
71
Id. at 23.
72
Irish, supra note 67.
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would not have occurred. 73 Criminal conduct is a proximate
cause of the event in question if the event would not have
occurred but for that conduct. 74 Conversely, conduct is not a
proximate cause of an event if that event would have occurred
without such conduct. 75
Here, it is clear that Hart’s action was not the sole proxi-
mate cause of the collision. Even if Hart was not acting with
due care when he laid down his motorcycle, that action was
defensive. It was Hart’s attempt to stop his motorcycle before
it collided with Malone’s car, which, after having run a red
light and pulling directly into the path of Hart’s motorcycle,
was rapidly approaching.
Laying down one’s motorcycle may seem a dangerous,
extraordinary maneuver if performed in isolation; however,
Hart’s action was not performed in isolation, but instead was
in response to an imminent, life-threatening danger precipitated
by Malone. In that situation, it was entirely foreseeable that
Hart would take defensive action to protect himself. Hart’s lay-
ing down his motorcycle was therefore not the sole proximate
cause of his own death.
Malone also asserts in his brief that Hart’s negligence “acted
as a superseding and intervening cause of [Hart’s] injuries.” 76
We acknowledge that we have made reference to independent
intervening causes in some of our prior cases where the alleged
negligence of the victim was at issue. 77 But it appears that lan-
guage was first used in cases in which the defendant alleged
that a third party had caused the victim’s death. 78 Because
the doctrine of efficient intervening cause focuses on whether
73
Id.
74
Id.
75
Id.
76
Brief for appellant at 24.
77
See, e.g., Ring, supra note 67.
78
See, Hoffman v. State, 162 Neb. 806, 77 N.W.2d 592 (1956); Birdsley v.
State, 161 Neb. 581, 74 N.W.2d 377 (1956).
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the acts of a third party broke a causal connection, 79 we believe
that doctrine has no role to play when, as here, it is contended
only that the victim’s negligence caused his or her death. In
such a case, a victim’s negligence cannot absolve the defendant
of a motor vehicle homicide charge unless the actions of the
victim were the sole proximate cause of the accident. 80
There is no merit to Malone’s contention regarding a defense
based on Hart’s action as the sole proximate cause of his own
death. As we stated in a similar context, “‘[t]his effort to shift
the blame for what occurred to the [decedent] by introducing an
argument based upon proximate cause does not impress us.’” 81
(iii) Failure of Adequate
Cross-Examination
Malone continues his ineffective assistance of counsel argu-
ment by next raising his trial counsel’s cross-examination of
Kelly, the Omaha police officer who had arrived at the scene
of the collision and arrested Malone.
Kelly testified at trial as to Malone’s impairment at the
time of the collision. Malone’s attorney cross-examined Kelly.
According to Malone, this cross-examination was inadequate
because it failed to raise Kelly’s “multiple contradictory state-
ments, statements of facts unsupported by any evidence or
testimony, and statements of his own subjective opinion unsup-
ported by any other evidence.” 82 If a “competent” cross-
examination would have been performed, Malone alleges that
his trial counsel could have impeached Kelly “and ma[de] it
clear to the jury that he was not a trustworthy witness worthy
of belief.” 83
79
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
80
See Brown, supra note 67.
81
William, supra note 67, 231 Neb. at 90, 435 N.W.2d at 178 (quoting State
v. Machmuller, 196 Neb. 734, 426 N.W.2d 69 (1976)).
82
Brief for appellant at 26.
83
Id.
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This allegation is without merit. Not only are Malone’s alle-
gations of factual misstatements in Kelly’s testimony largely
unfounded according to the appellate record, Malone does not
explain what he believes a “competent” trial counsel would
have said to further emphasize the alleged contradictions and
misstatements in Kelly’s testimony. 84
As such, Malone failed to allege sufficient facts to support
his allegation. 85 The district court thus did not err in rejecting
this argument.
(iv) Failure to Move to Suppress
Fourth, Malone contends that his trial counsel was ineffec-
tive for failing to file certain pretrial motions.
a. Autopsy Photograph
Malone first identifies autopsy photographs of Hart that
were introduced at trial, but that Malone claims were unduly
prejudicial and so should have been suppressed under Neb.
Rev. Stat. § 27-403 (Reissue 2016). Although Malone’s attor-
ney did not move prior to trial to suppress the photographs, he
did object at trial. Malone now argues his attorney was inef-
fective for not having had the photographs suppressed at trial
and not having adequately raised the issue on direct appeal.
According to Malone, his trial counsel “showed a lack of
preparation to support his objection [at trial]” 86 and “did not
raise the issue, leaving the prosecutor’s vague and inaccurate
argument unchallenged.” 87
[45,46] Even if his trial counsel and appellate counsel had
challenged the photographs in the manner Malone now sug-
gests, Malone has not shown that it would have changed the
outcome of his trial. As we observed recently, “gruesome
84
Cf. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
85
See Strickland, supra note 32.
86
Brief for appellant at 28.
87
Id. at 29.
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crimes produce gruesome photographs.” 88 The simple fact that
a photograph is gruesome does not make the photograph inad-
missible as unduly prejudicial. 89 If the State lays proper foun-
dation, photographs that illustrate or make clear a controverted
issue in a homicide case are admissible, even if gruesome. 90
Here, Malone does not dispute that the State laid a proper
foundation for the autopsy photographs, because they were
offered during the testimony of the coroner who examined
Hart. The autopsy photographs were offered during the coro-
ner’s testimony to aid the coroner in describing Hart’s injuries.
Among other things, the nature of these injuries were relevant
to the manner in which Hart had died. Malone challenged
whether he or Hart had collided with the other. Through the
coroner’s testimony and the autopsy photographs, the State
sought to show it was Malone who collided with Hart and not
the other way around.
The photographs were also relevant to other issues at trial,
such as the speed at which Hart had been traveling and whether
Hart attempted to avoid the collision. Malone has accordingly
failed to show that he was prejudiced, and his argument with
respect to these photographs is thus without merit.
b. Stephen Venteicher’s Testimony
Malone next challenges the testimony of Stephen Venteicher,
the other Omaha police officer who arrived at the scene of the
collision and aided in Malone’s arrest a short time later.
[47,48] Malone alleges that Venteicher’s testimony at trial
about his interactions with Malone during the arrest should
have been suppressed under Miranda v. Arizona. 91 Miranda
88
State v. Britt, 305 Neb. 363, 372, 940 N.W.2d 270, 277 (2020) (citing State
v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019)).
89
See Britt, supra note 88.
90
Id.
91
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
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prohibits the use of statements derived during custodial inter-
rogation unless the prosecution demonstrates the use of pro-
cedural safeguards that are effective to secure the privilege
against self-incrimination. 92 The Miranda safeguards come into
play whenever a person in custody is subjected to either
express questioning or its functional equivalent. 93
The interactions at issue occurred around the time
Venteicher apprehended Malone upon finding him a distance
from the collision site. After stopping Malone, Venteicher
pulled Malone out of his car, put him on the ground, and
handcuffed him. Then, before Venteicher read Miranda warn-
ings to Malone, Malone stated he had consumed “a few beers
earlier.” Venteicher testified that Malone made this statement,
and Malone argues his defense counsel should have objected
and moved to suppress the statement on grounds that it was
obtained in violation of Miranda.
[49] But as the State notes, even if Malone’s counsel
had moved to suppress Venteicher’s testimony on Miranda
grounds, only that testimony obtained during Venteicher’s
custodial interrogation would have been subject to suppres-
sion. 94 As indicated above, the only prejudicial testimony that
Malone alleges was wrongfully obtained during this custodial
interrogation was Malone’s assertion that he had consumed “a
few beers earlier.” This statement was also recounted at trial
by Kelly, and Malone has not raised a similar Miranda issue
with respect to Kelly’s testimony. Moreover, there was ample
other testimony and evidence offered at trial to support the
conclusion that Malone was under the influence of alcohol
or drugs at the time of the collision. Therefore, to the extent
Venteicher’s testimony was inadmissible under Miranda, it
was cumulative.
92
State v. Johnson, ante p. 331, 953 N.W.2d 772 (2021).
93
Id.
94
See, id.; State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
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Malone has not shown that he was prejudiced by any failure
of counsel in not moving to suppress Venteicher’s testimony.
c. Toxicology Report
Malone additionally identifies a toxicology report that he
alleges was offered in violation of Neb. Rev. Stat. § 60-6,201
(Reissue 2010).
After Malone was arrested, he voluntarily submitted a urine
sample to police for testing. The test results were included in
the police’s drug recognition examination and at trial. Kelly
and Venteicher testified that the results of Malone’s urinaly-
sis were consistent with the presence of alcohol and drugs in
Malone’s system. Malone contends that his trial counsel should
have moved to suppress the results of the urinalysis because its
results were not valid.
Section 60-6,201(3) states that “[t]o be considered valid,
tests of blood, breath, or urine made under section 60-6,197
. . . shall be performed according to methods approved by
the Department of Health and Human Services.” One such
Department of Health and Human Services (DHHS) rule states
that “[t]he presence of a drug shall mean any laboratory con-
firmatory test result, signal, or finding that shall be equal to or
greater than the cutoff level.” 95 In that same DHHS rule, cutoff
limits are prescribed for seven drugs: marijuana, cocaine, mor-
phine, codeine, phencyclidine, amphetamines, and metham-
phetamine. 96 “Cutoff level means the amount of drug detected
which determines the absence or presence of drug.” 97
Because the drugs found in Malone’s system—zolpidem,
diphenhydramine, citalopram-escitalopram, and 7-aminoclo­
nazepam—did not have prescribed cutoff limits, Malone claims
they were not legally present in his system and the results
95
177 Neb. Admin. Code, ch. 7, § 002.01 (2007).
96
Id.
97
Id., § 001.10.
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of the urinalysis were thus invalid under Neb. Rev. Stat.
§ 60-6,197 (Cum. Supp. 2020).
As the State notes, Malone has not cited any authority for
the proposition that all drugs must have cutoff limits pre-
scribed. Indeed, the DHHS rule Malone cites expressly only
prescribes cutoff limits for the seven drugs listed. 98 It does not
follow, then, that because those seven drugs have cutoff limits
prescribed, tests of all other drugs not listed are inherently
invalid and their results cannot be used at trial. A better read-
ing of the rule is that the seven drugs listed need to be tested
according to the cutoff limits prescribed and that testing for
other drugs simply does not have cutoff limits prescribed by
that particular DHHS rule.
Malone further contends that his urinalysis failed to com-
port with quality controls. He cites another DHHS rule, which
states that “[n]o test results shall be reported if a quality con-
trol sample result is outside of acceptable limits.” 99 Malone
then makes the following conclusory statement: “[T]here is no
indication that a quality control sample was tested and no indi-
cation of whether the quality control sample result was within
the acceptable limits.” 100
Malone’s argument here is unclear. It appears he is arguing
that his trial counsel should have objected to the urinalysis on
grounds that the test was not performed according to adequate
quality control. But he offers no evidence that a quality control
sample was not tested or that the quality control sample result
was not within acceptable limits. Malone has therefore failed to
meet his burden of showing that his counsel’s performance was
deficient. This argument is without merit.
(v) Failure to Move to Bifurcate
Malone’s final allegation of ineffective assistance of coun-
sel is that his trial counsel should have moved to bifurcate
98
See id., § 002.01.
99
Id., § 006.05D2.
100
Brief for appellant at 31.
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trial between the first three counts and the fourth count with
which he was charged.
The fourth charge was significant, Malone contends, because
it alleged that he had failed to use an ignition interlock device.
By allowing that charge to be combined at trial with the other
three charges, Malone alleges that he was forced to impliedly
concede to the jury that he had previously been convicted of
driving under the influence. The issue of whether Malone had
driven under the influence was relevant to the first charge,
motor vehicle homicide. 101 To prevent prejudice, Malone con-
tends that his trial counsel should have moved to bifurcate
trial between Malone’s fourth charge, failure to use an ignition
interlock device, and his other three charges.
The district court rejected Malone’s argument, reasoning
that Malone’s attorney had entered a stipulation preventing the
jury from hearing why Malone had been required to use an
ignition interlock device. Pursuant to that stipulation, neither
the State nor any witnesses testified about Malone’s previous
three convictions for driving under the influence. Still, Malone
contends that was not enough to avert prejudice and that the
fourth charge should have been tried wholly separately because
it “had no bearing on the other charges.” 102
[50,51] Even if Malone’s counsel would have moved to
bifurcate trial, it is questionable whether such motion would
have been granted. Bifurcation of a trial is generally only
appropriate where separate proceedings will do justice, avoid
prejudice, and further the convenience of the parties and the
court. 103 Whether claims should be bifurcated is generally
within the discretion of the trial court. 104
101
See, Neb. Rev. Stat. § 28-306(1) (Reissue 2016); State v. Valdez, 305 Neb.
441, 940 N.W.2d 840 (2020).
102
Brief for appellant at 32.
103
See Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810,
920 N.W.2d 268 (2018).
104
See, id.; Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394
(2009).
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Here, the four charges at issue all stemmed from the same
event. The convenience of the court and of at least one party,
the State, was best served by litigating the issues all at once.
As analyzed above, the parties made efforts to mitigate any
prejudicial effect from trying the fourth charge with the first
three. Malone has thus not shown that he was prejudiced by
his counsel’s failure to move to bifurcate his trial with respect
to the charge of driving without an ignition interlock device.
Malone has failed to show that the district court abused its
discretion in not bifurcating. This argument is without merit.
(b) Claim of Prosecutorial Misconduct
We turn to Malone’s argument that his constitutional rights
at trial were violated by prosecutorial misconduct. According
to Malone, the prosecutor engaged in misconduct by with-
holding exculpatory evidence, allowing false testimony, and
commenting inappropriately about Malone’s credibility as
a witness.
The district court initially rejected this argument as proce-
durally barred. Malone then amended his motion to add an
allegation that his appellate counsel had been ineffective for
failing to raise the claims of prosecutorial misconduct on direct
appeal. The district court again rejected Malone’s claim, rea-
soning that even if not procedurally barred, the claim failed to
“set forth the facts and applicable law to establish an objection
based on any of these prosecutorial [misconduct] claims would
. . . have been successful.” We agree.
[52,53] Prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have
a fair and impartial trial, and prosecutors are not to inflame
the prejudices or excite the passions of the jury against the
accused. 105 When considering a claim of prosecutorial miscon-
duct, an appellate court first considers whether the prosecutor’s
acts constitute misconduct. 106
105
State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
106
State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
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[54-57] Prosecutorial misconduct encompasses conduct that
violates legal or ethical standards for various contexts because
the conduct will or may undermine a defendant’s right to a fair
trial. 107 While a prosecutor should prosecute with “‘earnest-
ness and vigor’” and “‘may strike hard blows, he [or she] is
not at liberty to strike foul ones.’” 108 A prosecutor’s conduct
that does not mislead and unduly influence the jury is not
misconduct. 109 But a prosecutor’s misconduct that prejudices a
defendant’s right to a fair trial violates due process. 110
(i) Withheld Evidence
Malone’s first allegation of prosecutorial misconduct is that
the prosecutor withheld exculpatory and impeachment evi-
dence from him at trial.
[58-60] Under Brady v. Maryland, 111 prosecutors owe a duty
to disclose favorable evidence to criminal defendants prior
to trial. 112 Favorable evidence includes both exculpatory and
impeachment evidence. 113 The “‘suppression by the prosecu-
tion of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.’” 114
107
See Price, supra note 105.
108
State v. Gonzales, 294 Neb. 627, 645, 884 N.W.2d 102, 117 (2016)
(quoting Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed.
1314 (1935)).
109
Price, supra note 105.
110
See Gonzales, supra note 108. See, also, Cotton, supra note 48.
111
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
112
See State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
113
Id. See, also, United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L.
Ed. 2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 92 S. Ct.
763, 31 L. Ed. 2d 104 (1972)).
114
Harris, supra note 112, 296 Neb. at 332, 893 N.W.2d at 452 (quoting
Brady, supra note 111).
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Citing Brady, Malone alleges that two pieces of evidence
were wrongfully withheld by the prosecutor: a cruiser cam-
era video of Kelly’s interactions while apprehending Malone
and blood-stained clothing that Malone had worn at the time
of the collision. Malone alleges that “[b]y withholding the
cruiser video and blood stained clothing, the State deprived . . .
Malone of strong evidence to impeach . . . Kelly and to defend
against the false allegations of the prosecuting attorneys that he
did not attempt to render assistance to [Hart].” 115
Malone’s argument distorts the record. As the State notes, it
does not appear that either the video or blood-stained clothing
were withheld from Malone at trial. Indeed, one of Malone’s
trial experts referenced the video in one of his reports, thus
suggesting that it had been provided to him by Malone prior to
trial. Nor was Malone’s blood-stained clothing withheld from
him, for his defense counsel referenced it during his open-
ing statement. Multiple witnesses for the defense, including
Malone, also referenced it during their testimony.
Malone’s argument here is unsupported by the record. His
defense counsel was not deficient under Strickland for declin-
ing to raise it.
(ii) Misstated Evidence
Malone’s second allegation of prosecutorial misconduct is
that the prosecutor misstated the evidence offered at trial.
Specifically, Malone alleges that the prosecutor stated
falsely on four occasions that Malone had pulled directly into
the intersection and that Hart had thus been left with no chance
to avert the collision. We do not find these statements by the
prosecutor to be misrepresentations of the record, considering
that several witnesses did in fact testify that Hart lacked time
to avert the collision.
Malone also argues that the prosecutor falsely characterized
Malone’s response after the collision. While the prosecutor
115
Brief for appellant at 36.
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stated that Malone did not render aid to Hart after the collision
and instead began picking up his car’s parts from the road to
conceal his identity, Malone claims these statements were inac-
curate. He additionally raises what he characterizes as inaccu-
racies in the testimony of certain of the State’s witnesses. He
contends that they testified falsely that Malone had run from
his car after the collision.
Again, the record does not support Malone’s argument. As
the prosecutor indicated, it does not appear that Malone effec-
tively rendered aid to Hart after the collision. It is true that
some witnesses testified that Malone attempted to resuscitate
Hart, but those witnesses generally agreed that the attempts
had been unhelpful because of Hart’s dire condition and
Malone’s apparent unfamiliarity with how to perform resus-
citation. Other witnesses stated that Malone had rendered no
aid at all. Therefore, the prosecutor’s statements that Malone
did not render aid were not misstatements of the evidence
at trial.
Further, Malone offers no facts to rebut the prosecutor’s
statement that Malone began picking up his car’s parts from
the road soon after the collision in what appeared to be an
attempt to conceal his identity. Because Malone’s argument
here is again unsupported by the record, the argument fails.
(iii) Comments About Malone’s Credibility
Malone’s third allegation of prosecutorial misconduct is
that at trial, the prosecutor commented inappropriately about
Malone’s credibility as a witness.
[61-64] As Malone notes, this court has recognized that a
prosecutor should not express his or her personal belief or
opinion as to the truth or falsity of any testimony or evidence
or the guilt of the defendant. 116 However, a prosecutor is
entitled to draw inferences from the evidence in presenting his
116
See Price, supra note 105.
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or her case, and such inferences generally do not amount to
prosecutorial misconduct. 117
“[W]hen a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, the prosecutor is
permitted to present a spirited summation that a defense
theory is illogical or unsupported by the evidence and to
highlight the relative believability of witnesses for the
State and the defense. Thus, in cases where the prosecu-
tor comments on the theory of defense, the defend­ant’s
veracity, or the defendant’s guilt, the prosecutor crosses
the line into misconduct only if the prosecutor’s com-
ments are expressions of the prosecutor’s personal beliefs
rather than a summation of the evidence.” 118
[65] The danger of a prosecutor expressing a personal opin-
ion is that the jurors may infer the prosecutor has access to
information not in evidence and that with that inference and
the imprimatur of the government, the jury might rest a deci-
sion on the government’s opinion rather than on its own view
of the evidence. 119
Malone’s argument here is without merit. He points to the
statements discussed above that he alleges were wrongfully
omitted from the bill of exceptions. Because those statements
are not in the appellate record, we do not consider them. A bill
of exceptions is the only vehicle for bringing evidence before
an appellate court, and evidence which is not made a part of
the bill of exceptions may not be considered. 120
The only remaining argument that Malone raises is the pros-
ecutor’s statements, during closing, that Malone had “weave[d]
a story” and that his testimony was “ridiculous.” However,
these appear to be “reasonably drawn inferences from the
117
State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).
118
Price, supra note 105, 306 Neb. at 55, 944 N.W.2d at 293 (quoting
Gonzales, supra note 108).
119
Price, supra note 105.
120
See, Ferrin, supra note 8; Western Ethanol Co., supra note 8.
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evidence” presented at trial, and not statements about the pros-
ecutor’s beliefs in the case. 121 They did not amount to prosecu-
torial misconduct.
The touchstone of a due process analysis in a case of alleged
prosecutorial misconduct is the fairness of trial. 122 Because the
prosecutor’s conduct in this case did not deprive Malone of a
fair trial, we cannot say that it amounted to prosecutorial mis-
conduct. We therefore cannot say that Malone’s trial counsel
and appellate counsel were deficient for failing to raise the
prosecutor’s conduct at trial.
VI. CONCLUSION
For the reasons stated above, we reject Malone’s argument
concerning the bill of exceptions. We further find that the dis-
trict court did not err in finding Malone was not entitled to an
evidentiary hearing on his claims of ineffective assistance of
counsel and prosecutorial misconduct. We accordingly affirm
the district court’s orders in this case.
Affirmed.
121
See Price, supra note 105, 306 Neb. at 55, 944 N.W.2d at 293 (quoting
Gonzales, supra note 108).
122
Gonzales, supra note 108.