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State v. Cotton

Supreme Court of Nebraska

April 20, 2018

State of Nebraska, appellee,
v.
James Cotton, appellant.

         1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a motion to sever will not be reversed unless clear prejudice and an abuse of discretion are shown, and an appellate court will find such an abuse only where the denial caused the defendant substantial prejudice amounting to a miscarriage of justice.

         2. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. An appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.

         4. Trial: Joinder. There is no constitutional right to a separate trial.

         5. Trial: Joinder: Appeal and Error. An appellate court reviews a trial court's determination on the joinability of offenses, under Neb. Rev. Stat. § 29-2002(1) (Reissue 2016), de novo. However, a misjoinder of [299 Neb. 651] offenses is subject to a harmless error review and will not be reversed unless it resulted in prejudice.

         6. Trial: Joinder: Proof. A defendant opposing joinder of charges has the burden of proving prejudice.

         7. Trial: Joinder. Severe prejudice occurs when a defendant is deprived of an appreciable chance for an acquittal, a chance that the defendant would have had in a severed trial.

         8. ___: ___. Prejudice is not shown if evidence of one charge would have been admissible in a separate trial of another charge.

         9. Pretrial Procedure: Motions to Suppress. It is the intention of Neb. Rev. Stat. § 29-822 (Reissue 2016) that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute.

         10. Motions to Suppress: Search and Seizure: Waiver. Absent an exception, a failure to move for the suppression of evidence seized unlawfully waives the objection.

         11. Homicide: Convictions: Proof. Under Neb. Rev. Stat. § 28-303 (Supp. 2017), the three elements which the State must prove beyond a reasonable doubt to obtain a conviction for first degree murder are as follows: The defendant (1) killed another person, (2) did so purposely, and (3) did so with deliberate and premeditated malice.

         12. Homicide: Intent: Time: Proof. The premeditation element requires the State to prove that a defendant formed the intent to kill a victim without legal justification before doing so, but no particular length of time for premeditation is required. It is sufficient if an intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.

         13. Homicide: Intent: Time. Whether premeditation exists depends on numerous facts about how and what the defendant did prior to the actual killing which show he or she was engaged in activity directed toward the killing, that is, planning activity.

         14. Homicide: Intent: Juries. A question of premeditation is for the jury to decide.

         15. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         16. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. Such a claim may be resolved when the record on direct appeal is sufficient to either [299 Neb. 652] affirmatively prove or rebut the merits of the claim. The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel's actions could not be justified as a part of any plausible trial strategy.

         17. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal and Error. In the case of an argument presented for the purpose of avoiding procedural bar to a future postconviction proceeding, appellate counsel must present a claim with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court. A claim insufficiently stated is no different than a claim not stated at all.

         18. Effectiveness of Counsel: Proof. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         19. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

         20. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment to the U.S. Constitution provides that a criminal defendant has a right to have the assistance of counsel for his or her defense. An essential part of that right is the defendant's ability to select the counsel of his or her choice.

         21. Effectiveness of Counsel: Conflict of Interest. The right to effective assistance of counsel entitles the accused to his or her counsel's undivided loyalties, free from conflicting interests.

         22. Trial: Conflict of Interest. In the absence of an objection, the court has a duty to inquire into a potential conflict of interest only when the trial court knows or reasonably should know that a particular conflict exists.

         23. Right to Counsel: Conflict of Interest: Waiver. A defendant can waive his or her right to assistance of counsel unhindered by a conflict of interest, provided that the waiver is knowing and intelligent, but a court is not required to accept a defendant's waiver in all circumstances.

         24. Right to Counsel: Conflict of Interest: Presumptions. The right to counsel of choice is not absolute. A trial court must recognize a presumption in favor of a defendant's counsel of choice, but that [299 Neb. 653] presumption may be overcome by a demonstration of actual conflict or a showing of a serious potential for conflict.

         25. Effectiveness of Counsel: Conflict of Interest: Proof. A defendant who raised no objection at trial must show that an actual conflict of interest existed and that the conflict adversely affected his or her lawyer's performance. When an actual conflict exists, there is no need to show that the conflict resulted in actual prejudice to the defendant.

         26. Right to Counsel: Waiver: Appeal and Error. There is no formalistic litany required to establish that a waiver was knowingly and intelligently made; instead, when considering whether a defendant voluntarily, knowingly, and intelligently waived his or her right to counsel, an appellate court reviews the totality of the circumstances appearing in the record.

         27. Constitutional Law: Waiver: Records. A voluntary waiver, knowingly and intelligently made, must affirmatively appear from the record, before a court may conclude that a defendant has waived a right constitutionally guaranteed or granted by statute.

         28. Constitutional Law: Waiver: Appeal and Error. In determining whether a defendant's waiver of a statutory or constitutional right was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard of review.

         29. Judgments: Appeal and Error. Under a clearly erroneous standard of review, an appellate court does not reweigh the evidence, but the appellate court decides the ultimate question independent of the trial court's ruling.

         30. Constitutional Law: Right to Counsel: Attorneys at Law: Conflict of Interest. When determining whether or not to disqualify a defense counsel, the court must balance two Sixth Amendment rights: (1) the defendant's right to be represented by counsel of choice and (2) his or her right to a defense conducted by an attorney who is free of conflicts of interest. The U.S. Supreme Court has also recognized an independent interest of the courts in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.

         31. Attorney and Client: Conflict of Interest. Whether a conflict of interest justifies the disqualification of defense counsel is a matter committed to the discretion of the trial court.

         32. Trial: Attorney and Client: Conflict of Interest. If a defense counsel acts or refrains from acting at trial in a manner that is inconsistent with the defendant's interests based on the preceding sources of conflicts, the defense counsel actively represents conflicting interests.

         33. Conflict of Interest. The seriousness of any potential conflict of interest depends on its likelihood and dimensions.

         [299 Neb. 654] 34. Courts: Attorneys at Law: Conflict of Interest. When weighing the interests at stake, courts generally give substantial weight to defense counsel's representations regarding conflicts of interest.

         35. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice.

         36. Constitutional Law: Trial. A defendant has fundamental constitutional right to a fair trial.

         37. Attorney and Client: Trial: Testimony: Waiver. A defendant who has been fully informed of the constitutional right to testify may not acquiesce in his or her counsel's advice that he or she waive that right, and then later claim that he or she did not voluntarily waive such right.

         38. Trial: Prosecuting Attorneys: Motions for Mistrial: Proof. When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor's acts constitute misconduct and then considers whether the misconduct prejudiced the defendant's right to a fair trial. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

         39. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

         40. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, an appellate court will review the record only for plain error.

         41. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

         42. Trial: Prosecuting Attorneys. Public prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial.

         43. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.

         44. Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or her argument on the evidence introduced at trial rather than on matters [299 Neb. 655] not in evidence. When a prosecutor's comments rest on reasonably drawn inferences from the evidence, he or she is permitted to present a spirited summation that a defense theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and the defense.

         45. Trial: Prosecuting Attorneys: Juries. A distinction exists between arguing that a defense strategy is intended to distract jurors from what the evidence shows, which is not misconduct, and arguing that a defense counsel is deceitful, which is misconduct.

         46. Trial: Prosecuting Attorneys. In cases where the prosecutor comments on the theory of defense, the defendant's veracity, or the defendant's guilt, the prosecutor crosses the line into misconduct only if the prosecutor's comments are expressions of the prosecutor's personal beliefs rather than a summation of the evidence.

         47. Prosecuting Attorneys: Convictions: Juries. It is as much a prosecutor's duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Because the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed, improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

         48. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a prosecutor's improper conduct prejudiced the defendant's right to a fair trial, an appellate court considers the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.

          Appeal from the District Court for Douglas County: Gary B. Randall, Judge. 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.

         [299 Neb. 656] FUNKE, J.

         This is James Cotton's direct appeal of his jury convictions and sentences for first degree murder, use of a deadly weapon to commit a felony, possession of a deadly weapon by a prohibited person, and possession of a controlled substance. Cotton filed a timely appeal, and he proceeds with different counsel than at trial. We affirm his convictions.

         I. BACKGROUND

         On August 7, 2015, Cotton shot and killed Trevor Bare. During the evening prior to the shooting, Bare saw Cotton in the apartment immediately above his own. Because Cotton and Bare had a negative history together, Bare confronted Cotton and an argument ensued. After the initial altercation, Bare and his girlfriend, McKayla Burnette, left the apartment house. A couple of hours later, someone set a fire in the back of the truck owned by Travis Labno, the new tenant of the apartment immediately above Bare's.

         Around 6:30 a.m. on August 7, 2015, Bare and Burnette returned to Bare's apartment. Upon their return, Labno confronted Bare outside the house about the fire, while Cotton exited Labno's apartment with a shotgun. After the argument between Labno and Bare ended, Cotton and Bare commenced an argument, which ended with Cotton's shooting Bare. Bare died from his injuries.

         At the crime scene, police found a broken piece of fence wood on the ground, a spent shotgun casing, and a bloodstain on the ground approximately 6 to 10 feet from the porch. They also recovered a sawed-off shotgun in the bushes behind a nearby house, which shotgun was later identified as the murder weapon.

         A search warrant was obtained for Labno's apartment. During the execution of the warrant, police discovered the following: in the bathroom, marijuana on top of the toilet, a bag in the toilet bowl, and a glass pipe in the sink; in the kitchen, a broken "meth pipe or crack pipe"; and, in the northwest bedroom closet, two envelopes with Cotton's name on them, [299 Neb. 657] a medication bottle with Cotton's name on it, an unlabeled medication bottle containing marijuana, a spoon, a syringe, and a tin that contained methamphetamine.

         The cause of Bare's death was determined to be a shotgun wound to the abdomen. Autopsy results revealed that he had methamphetamine, amphetamine, and "THC" in his system. The autopsy also revealed the presence of fentanyl, which was administered to him after the shooting.

         At trial, Burnette testified that she and Bare saw Cotton as they were leaving their apartment at approximately midnight on August 6, 2015. Burnette said Bare was angry about Cotton's presence, so Bare approached Labno's apartment and knocked on the door. Burnette stated that she waited about 10 minutes before approaching Labno's apartment to see what was happening. When she did, she heard Bare say that "[t]his is my block" and that Cotton could not stay there. Burnette testified that she grabbed Bare and pushed him back toward their car and that as they were leaving, Cotton called Bare a "pussy."

         Burnette stated that after leaving the apartment, they went to Bare's mother's house where they used marijuana and methamphetamine. At around 6:30 a.m., Bare and Burnette returned to Bare's apartment. When they got there, they saw Labno run into his apartment. While in the apartment, Burnette said she could hear Cotton and Labno talking and recognized Cotton's voice from the earlier argument. She stated that she heard Cotton say, '"I have a round in the gun and I'm going to use it.'" Burnette told Bare what she heard just before she heard the sound of footsteps upstairs running outside, at which point, Bare went outside as well.

         Burnette said that after hearing a "smack" outside, she went to the screen door to see what was happening. She testified that she saw Bare holding a piece of wood, Labno by the porch, and Cotton sitting in a chair on the porch behind Labno with a shotgun in his lap, which he was pointing at Bare. Burnette testified that Labno and Bare were arguing at first, but then the argument between them seemed to calm down. Burnette stated [299 Neb. 658] that Cotton then stood up and started arguing with Bare, who still had the piece of wood in his hand. She stated that Bare stepped toward Cotton and said, "[I]f you're going to hold the gun to me, then you better fucking shoot me, " at which point, Cotton shot Bare.

         Labno testified that on August 6, 2015, Cotton was helping him move into his new apartment and that Cotton was planning on staying with him for a while. According to Labno, Cotton woke him up during the night to tell him Bare and Burnette had set fire to his truck. After looking at the truck, Labno stated that he went back to bed. Cotton's trial counsel, however, introduced Labno's cell phone records, which showed that Labno's cell phone made a number of calls around 4 a.m. from an area away from his apartment. Additionally, in a portion of Labno's deposition testimony that was read into evidence, Labno invoked his right to remain silent in response to a question regarding whether he left his apartment and returned with a shotgun, after which the prosecutor said that "we'll talk about immunity as it relates to the gun."

         Labno further testified that as he was getting ready for work the next morning, he saw Bare and Burnette pull into the driveway in two vehicles, blocking his vehicle in the driveway. Labno stated that he yelled out to Cotton that Bare was back and then went out to confront Bare, who had a board in his hand. Labno told Bare to drop the board so they could fight, but Bare refused. Labno testified that he heard a "clack" after his argument had deescalated and turned around to see Cotton holding a shotgun. He stated that Cotton and Bare began arguing at that point, from a distance of about 6 to 8 feet apart, and that the argument then escalated and Cotton shot Bare. Labno testified that their argument lasted about 5 minutes and that Bare was acting "totally crazy" and did not seem like he was going to back down. Labno testified that he was not watching the fight and was unsure if Bare advanced at Cotton, but he stated that Bare did not charge him. However, he did state that just before the shooting, Bare said something like, "If you pull a gun, you better use it . . . ."

         [299 Neb. 659] Cotton testified at trial and admitted that he shot Bare but claimed that he did so in self-defense. He alleged that Labno obtained the shotgun and brought it to the altercation with Bare. Cotton stated that he grabbed the shotgun only after Bare had hit him with a wooden board and was advancing at him again with the board.

         Cotton also testified that Bare and Bare's mother used to live with him. However, issues arose because Bare and his mother were stealing things from Cotton and Bare was causing problems in the neighborhood-yelling at children and flashing a gun in Cotton's garage. Cotton evicted Bare and his mother, but Bare continued to drive through the neighborhood and would occasionally stop in front of Cotton's house. Cotton eventually moved out of that residence and was staying in a hotel on August 6, 2015.

         Cotton stated that he stayed at Labno's apartment that night at Labno's request. Cotton also testified that at 2:30 a.m., Bare was knocking on Labno's door, and that when Cotton answered the door, he told Bare to leave. When Bare refused to leave, Cotton said he got Labno and then went back to the bedroom. Cotton heard Bare tell Labno "this is my block" and that Labno slammed the door in Bare's face. Cotton and Labno testified that Bare threatened Labno and told him, "I'll be back, ask [Cotton] what I'll do, " as he left with Burnette.

         Around 4 a.m., he saw a bright light outside and saw Bare and Burnette lighting Labno's truck on fire. Cotton testified that Labno was not at his apartment at that time, so he went outside and put out the fire himself. Further, he stated that when Labno returned, Labno called his friend, Jeff Faye, and then left and returned with a shotgun.

         Cotton stated that later that morning while he was trying to sleep, Labno yelled out, "They're here." He said that Labno went and got the shotgun, "rack[ed] it, " and said, "There's one in the chamber" and tried to hand the gun to Cotton. Cotton said he refused to take the gun and told Labno to "take care of your business like a man." Labno said, "I'm going to [299 Neb. 660] get the son of a bitch for doing this" and went outside with the shotgun.

         Cotton testified that Bare came to Labno's front door and that a confrontation ensued. Cotton stated that he went outside and tried to leave but could not because his vehicle was blocked in. He heard Bare yelling at Labno, and when he got to the side of the house, Labno had the shotgun in his left hand and Bare was holding a board. He stated that as the argument escalated, Bare swung the board at him in a "karate chop" motion. Cotton said the board hit him in the hand, jamming one of his fingers and giving him a splinter. Cotton said that he tried to leave to remove the splinter but that Bare said, "You ain't going nowhere old mother-fucker, sit down in that chair or I'll split your head, " at which point Labno pointed the shotgun at Bare and told him to back up.

         Cotton stated that Bare was still in a rage after his argument with Labno ended and started yelling at Cotton about money that Bare thought Cotton owed him. He said that Bare came up toward the porch and told Cotton, "There's a gun there, you punk mother-fucker, you better use it." Then Bare started coming toward Cotton, so he grabbed the gun and shot Bare. He said that he tried to hit Bare in the legs and was not "aiming to kill the kid."

         Matthew Krisel, a friend of Bare, testified that after the shooting, he got a telephone call about Bare's death. Krisel immediately called Cotton to ask him what had happened, and Cotton asked Krisel to bring him some "dope, " which, according to Krisel, meant methamphetamine. Cotton also asked Krisel if he had heard that Cotton and Labno were "on the lamb because they shot a kid and he was in critical condition." Cotton told Krisel where he was, and Krisel relayed that location to police. The police apprehended Cotton at a nearby residence.

         During his trial testimony, Krisel acknowledged that he was testifying against Cotton pursuant to a proffer agreement with the State and was seeking leniency on his own charges in a [299 Neb. 661] separate case. Cotton denied having a conversation with Krisel after the shooting and said that he never asked Krisel to bring him some "dope."

         While Cotton was in jail, he made recorded telephone calls to Labno and Faye. During a call to Labno, on August 26, 2015, Cotton asked Labno if he had received Cotton's letters and asked Labno if he has "any violence on [his] record'' because he was "just wonderin' on something." Labno testified that he thought Cotton was trying to set him up to take the gun charge.

         During the call to Faye, on August 28, 2015, Faye told Cotton that Labno was upset because it appeared Cotton wanted Labno to take the blame for having the shotgun. Cotton said he was "all wound up" and did not recall exactly what he said in his letters to Labno. Cotton said he was just trying to exonerate himself on the gun charge. Cotton also said, "I was out of my mind that day, I was in a heightened thing, " and told Faye that he would be testifying that he had acted in self-defense. Faye testified that he believed Cotton was using methamphetamine at the time of the incident.

         Cotton called two of his former neighbors as witnesses to testify about Bare's conduct while living with Cotton. The first witness testified that Bare often acted like a tough guy, kind of like a "gangster, " and was abusive toward people he was with and was confrontational toward neighbors. The second witness stated that Bare was somewhat aggressive and that he had seen Bare with a sidearm. He said that Cotton had contacted him once about getting Bare out of his house. Both of Cotton's former neighbors also testified that they were aware that Cotton used methamphetamine and other drugs while he lived in their neighborhood.

         At the close of the State's case in chief, Cotton filed a motion to dismiss for lack of sufficient evidence, which was denied. After closing augments, Cotton renewed his motion to dismiss and requested a directed verdict for the defense, which was overruled.

         [299 Neb. 662] The jury found Cotton guilty as charged on all four counts. Cotton filed a motion for new trial, which was denied. In October 2016, the court appointed Cotton new counsel from the Douglas County public defender's office.

         In January 2017, Cotton was sentenced to life in prison on count I (first degree murder), 5 to 20 years' imprisonment on count II (use of a deadly weapon to commit a felony), 3 to 20 years' imprisonment on count III (felon in possession of a deadly weapon), and 20 months' to 2 years' imprisonment on count IV (possession of a controlled substance). All four sentences were ordered to run consecutively. Cotton perfected a timely appeal.

         II. ASSIGNMENTS OF ERROR

         Cotton presents 11 assignments of error, restated and reordered, on appeal. He assigns that the court erred in (1) denying his motion to sever count IV from the amended information, (2) admitting evidence obtained in a search that went beyond the scope of the warrant, (3) finding his conviction of first degree murder was supported by competent evidence, and (4) denying his motion for new trial based on prosecuto-rial misconduct.

         Cotton also assigns that his trial counsel was ineffective in (5) failing to withdraw due to a conflict of interest, (6) failing to call Lindsey Redinbaugh as a witness, (7) failing to request a mistrial when Labno testified at trial after having been declared unavailable and had his deposition read into the record, (8) failing to object to improper questioning by the State and instances of prosecutorial misconduct during closing argument, (9) failing to cross-examine Dr. Erin Linde, and (10) offering the deposition of Faye at trial, as well as (11) issues raised by him during allocution at his sentencing hearing.

         III. STANDARD OF REVIEW

         A denial of a motion to sever will not be reversed unless clear prejudice and an abuse of discretion are shown, and an [299 Neb. 663] appellate court will find such an abuse only where the denial caused the defendant substantial prejudice amounting to a miscarriage of justice.[1]

         In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[2]

         Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. We determine as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.[3]

         IV. ANALYSIS

         1. Motion to Sever Count IV and Court's Admission of Drug Evidence

         (a) Additional Facts

         About 1 month before trial, Cotton filed a motion to suppress regarding physical evidence obtained from him during a police interview, the shotgun used to kill Bare, and any evidence of his use of the shotgun, which the court overruled.

         [299 Neb. 664] Four days before trial, the State filed an amended information adding count IV, possession of a controlled substance (methamphetamine). That same day, Cotton filed a motion in limine and sought to preclude the State from adducing any evidence regarding the methamphetamine found inside Labno's apartment. Cotton's motion alleged that there was no reliable basis to conclude that the methamphetamine belonged to Cotton, so the introduction of that evidence would violate Neb. Evid. R. 104, 402, 403, and 404.

         At the hearing, the police officer who executed the search warrant testified that police had discovered, in the northwest bedroom closet, two envelopes with Cotton's name on them and a medication bottle with Cotton's name on it. Additionally, he stated that a tin containing methamphetamine was also found in that closet. The district court found there was probable cause to believe that Cotton committed the crime of possession of methamphetamine and bound over the charge for trial.

         Also at the hearing, Cotton moved to sever count IV, arguing that it would allow otherwise inadmissible evidence to be presented at trial. The court overruled both Cotton's motion in limine, to exclude drug evidence, and his motion to sever.

         At trial, Cotton's counsel objected to an officer's testimony about the items recovered during the execution of the search warrant on Fourth Amendment grounds.

         (b) Cotton Was Not Prejudiced by Joinder of Count IV

         Cotton assigns that the court erred in overruling his motion to sever count IV from the amended information. He argues that count IV was not related or joinable to counts I, II, and III, because the murder and weapon charges were different in nature from the drug charge and could be proved without any reference to the drug charge. Cotton asserts that he was severely prejudiced by the joinder of count IV, because it permitted the State to admit propensity evidence of drug use [299 Neb. 665] that the jury could not have otherwise considered to attack his character.

         There is no constitutional right to a separate trial.[4]Instead, the joinder or separation of charges for trial is governed by Neb. Rev. Stat. § 29-2002 (Reissue 2016), which states, in relevant part:

(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(3) If it appears that a defendant or the state would be prejudiced by a joinder of offenses in an indictment, information, or complaint . . . the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.

         Under § 29-2002, whether offenses were properly joined involves a two-stage analysis: (1) whether the offenses were related and joinable, under subsection (1), and (2) whether the joinder was prejudicial to the defendant, under subsection (3).[5]There is a strong presumption against severing properly joined counts under § 29-2002(3).[6]

         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 [299 Neb. 666] 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]

         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]

         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 [299 Neb. 667] a claim of self-defense, one must have a reasonable and good faith belief in the necessity of using such force.[16] Thus, whether Cotton was under the influence of alcohol or drugs at the time of the shooting was relevant to determining if he had a reasonable subjective belief that his use of force was necessary.

         Accordingly, the evidence of count IV would have been admissible at trial even if the count would have been severed from the amended information. Therefore, this assignment of error is without merit.

         (c) Cotton Waived Right to Object to Lawfulness of Seizure of Methamphetamine

         Cotton argues that the court erred in denying his motion to suppress, because the State exceeded the search warrant- limited to firearms, companion equipment, and ammunition- when it seized the methamphetamine from Labno's apartment. The State contends that this assignment of error is not properly before this court, because Cotton's motion to suppress made no mention of methamphetamine or drug paraphernalia and he never filed an additional motion to suppress or expanded his initial motion.

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

Any person aggrieved by an unlawful search and seizure may move for return of the property so seized and to suppress its use as evidence. The motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. . . . Unless claims of unlawful search and seizure [299 Neb. 668] are raised by motion before trial as herein provided, all objections to use of the property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived; Provided, that the court may entertain such motions to suppress after the commencement of trial where the defendant is surprised ...

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