State v. Mabior

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www.nebraska.gov/apps-courts-epub/
08/25/2023 09:09 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        314 Nebraska Reports
                                                   STATE V. MABIOR
                                                   Cite as 

                                        State of Nebraska, appellee, v.
                                        Mabior M. Mabior, appellant.
                                                     ___ N.W.2d ___

                                          Filed August 25, 2023.   No. S-22-574.

                 1. Appeal and Error. Consideration of plain error occurs at the discretion
                    of an appellate court.
                 2. ____. Plain error may be found on appeal when an error unasserted or
                    uncomplained of at trial, but plainly evident from the record, prejudi-
                    cially affects a litigant’s substantial right and, if uncorrected, would
                    result in damage to the integrity, reputation, and fairness of the judicial
                    process. Generally, an appellate court will find plain error only when a
                    miscarriage of justice would otherwise occur.
                 3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
                    fective assistance of counsel may be determined on direct appeal is a
                    question of law.
                 4. ____: ____. In reviewing claims of ineffective assistance of counsel on
                    direct appeal, an appellate court decides only whether the undisputed
                    facts contained within the record are sufficient to conclusively deter-
                    mine whether counsel did or did not provide effective assistance and
                    whether the defendant was or was not prejudiced by counsel’s alleged
                    deficient performance.
                 5. Effectiveness of Counsel: Records: Appeal and Error. The record is
                    sufficient to review a claim of ineffective assistance of counsel on direct
                    appeal if it establishes either that trial counsel’s performance was not
                    deficient, that the appellant will not be able to establish prejudice as a
                    matter of law, or that trial counsel’s actions could not be justified as a
                    part of any plausible trial strategy. Conversely, an ineffective assistance
                    of counsel claim will not be addressed on direct appeal if it requires an
                    evidentiary hearing.
                 6. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or
                    acts is not admissible to prove the character of a person in order to show
                    that he or she acted in conformity therewith.
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                    314 Nebraska Reports
                             STATE V. MABIOR
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 7. ____: ____. Neb. Evid. R. 404(2), 

(2) (Cum.
    Supp. 2022), does not apply to evidence of a defendant’s other
    crimes or bad acts if the evidence is inextricably intertwined with the
    charged crime.
 8. ____: ____. Inextricably intertwined evidence includes evidence that
    forms part of the factual setting of the crime and evidence that is so
    blended or connected to the charged crime that proof of the charged
    crime will necessarily require proof of the other crimes or bad acts.
    Evidence of other crimes or bad acts is also inextricably intertwined
    with the charged crime if the other crimes or bad acts are necessary for
    the prosecution to present a coherent picture of the charged crime.
 9. Evidence: Words and Phrases. To be relevant, evidence must be pro-
    bative and material. Evidence is probative if it has any tendency to make
    the existence of a fact more or less probable than it would be without the
    evidence. A fact is material if it is of consequence to the determination
    of the case.
10. Rules of Evidence. The fact that evidence is prejudicial is not enough
    to require exclusion under Neb. Evid. R. 403, 

    (Reissue 2016), because most, if not all, of the evidence a party offers is
    calculated to be prejudicial to the opposing party; it is only the evidence
    which has a tendency to suggest a decision on an improper basis that is
    unfairly prejudicial under rule 403.
11. 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.
12. 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.
13. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
    not mislead and unduly influence the jury is not misconduct.
14. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
    concludes that a prosecutor’s acts were misconduct, the court next
    considers whether the misconduct prejudiced the defendant’s right to a
    fair trial.
15. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
    prejudices a defendant’s right to a fair trial when the misconduct so
    infects the trial that the resulting conviction violates due process.
16. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
    prejudicial depends largely on the context of the trial as a whole.
17. Trial: Prosecuting Attorneys: Appeal and Error. In determining
    whether a prosecutor’s improper conduct prejudiced the defendant’s
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                               STATE V. MABIOR
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      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.
18.   Effectiveness of Counsel: Postconviction: Records: 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 in a subsequent postconviction proceeding.
19.   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. The determining factor is
      whether the record is sufficient to adequately review the question.
20.   Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
      assistance of counsel, the defendant must show that counsel’s perform­
      ance was deficient and that this deficient performance actually preju-
      diced his or her defense.
21.   ____: ____. To show that counsel’s performance was deficient, a defend­
      ant must show that counsel’s performance did not equal that of a lawyer
      with ordinary training and skill in criminal law.
22.   ____: ____. To show prejudice in a claim of ineffective assistance of
      counsel, the defendant must demonstrate a reasonable probability that
      but for counsel’s deficient performance, the result of the proceeding
      would have been different.
23.   Effectiveness of Counsel: Words and Phrases. A reasonable probabil-
      ity of prejudice from ineffective assistance of counsel is a probability
      sufficient to undermine confidence in the outcome.
24.   Search and Seizure: Warrantless Searches. Searches without a valid
      warrant are per se unreasonable, subject only to a few specifically estab-
      lished and well-delineated exceptions that must be strictly confined by
      their justifications.
25.   Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
      tive for failing to raise a meritless argument to the trial court.
26.   Constitutional Law: Miranda Rights: Self-Incrimination. The safe-
      guards of Miranda v. Arizona, 

, 

, 

 (1966), ensure that the individual’s right to choose between
      speech and silence remains unfettered throughout the interrogation proc­
      ess. If the suspect indicates that he or she wishes to remain silent or that
      he or she wants an attorney, the interrogation must cease.
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                     314 Nebraska Reports
                              STATE V. MABIOR
                              Cite as 

27. Confessions: Miranda Rights: Police Officers and Sheriffs. Before
    the police are under a duty to cease an interrogation, the suspect’s
    invocation of the right to cut off questioning must be unambiguous,
    unequivocal, or clear.
28. Trial: Rules of Evidence: Police Officers and Sheriffs: Evidence:
    Extrajudicial Statements. Statements by law enforcement officials on
    the veracity of the defendant or other witnesses, made within a recorded
    interview played for the jury at trial, are to be analyzed under the ordi-
    nary rules of evidence. Such commentary is not admissible to prove the
    truth of the matter asserted. However, it may be independently admis-
    sible for the purpose of providing necessary context to a defendant’s
    statements in the interview which are themselves admissible.
29. Hearsay: Words and Phrases. Hearsay is a statement, other than one
    made by the declarant while testifying at the trial or hearing, offered in
    evidence to prove the truth of the matter asserted.
30. Hearsay. An out-of-court statement is not hearsay if the proponent
    offers it for a purpose other than proving the truth of the matter asserted.
31. Trial: Evidence. The erroneous admission of evidence is generally
    harmless error and does not require reversal if the evidence is cumula-
    tive and other relevant evidence, properly admitted, supports the finding
    by the trier of fact.
32. Witnesses. The credibility of a witness is always relevant.
33. Sentences: Probation and Parole. A sentence of life imprisonment
    “without the possibility of parole” is erroneous, but not void.

  Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed as modified.
  Thomas C. Riley, Douglas County Public Defender, for
appellant.
   Michael T. Hilgers, Attorney General, and Stacy M. Foust
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Funke, J.
                   I. INTRODUCTION
  Mabior M. Mabior appeals his convictions in the district
court for Douglas County, Nebraska, for two counts of first
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                        STATE V. MABIOR
                        Cite as 

degree murder and two counts of use of a firearm to com-
mit a felony. Mabior’s appeal focuses on the discovery of an
extended magazine for a firearm and a receipt for an extended
magazine and statements made in his interviews with police.
Mabior also focuses on certain evidence admitted and on cer-
tain statements by the prosecution at trial, most notably includ-
ing those regarding the prior shooting of one of the victims.
Mabior’s trial counsel did not move to suppress evidence of
the extended magazine, the receipt, or Mabior’s statements.
With few exceptions, Mabior’s trial counsel also did not object
to the pertinent evidence and statements at trial or move for a
mistrial or for a new trial. Accordingly, Mabior alleges plain
error and ineffective assistance of trial counsel.
   We find the record insufficient to address several of Mabior’s
claims of ineffective assistance of trial counsel but otherwise
find no merit to his arguments on direct appeal. We agree
with the State that the district court plainly erred in sentencing
Mabior to “life without the possibility of parole,” also stated
as “[l]ife, with no parole,” on each of his convictions for first
degree murder and amend those sentences to life imprisonment
consistent with 

 and 28-303 (Cum.
Supp. 2022). We affirm Mabior’s convictions and his sentences
as modified.
                      II. BACKGROUND
   Loklok Thok and Doup Deng were shot and killed near the
intersection of 24th and Emmet Streets in Omaha, Nebraska,
shortly before 3 a.m. on March 27, 2021. Projectiles removed
from their bodies fit the characteristics of a 9-mm, .38-caliber,
or .357-caliber firearm. A .45-caliber projectile was found in
Thok’s clothing.
   At the scene, the Omaha Police Department (OPD) located
multiple 9-mm casings stamped “BLAZER 9mm LUGER” and
one .45-caliber casing stamped “SIG 45 AUTO.” All the 9-mm
casings were ultimately determined to have been fired from the
same firearm, but police never recovered the firearms used in
the shootings.
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                        STATE V. MABIOR
                        Cite as 

   Police obtained a surveillance video from a school across
the street from the scene of the shootings. The cameras were
motion activated, and while there were three camera angles
that cover the area of the shooting, none was “specifically tar-
geted” to that spot. As relevant here, the video shows several
people at the intersection of 24th and Emmet Streets shortly
before 3 a.m. Seconds later, a person whom the parties agree
was wearing red or orange outerwear stood over a person
whom police later identified as Deng. Several flashes, similar
to gunfire, appeared between that person and Deng. Then, that
person bent over Deng. Thereafter, several persons ran toward
a dark-colored vehicle that began moving. The person wear-
ing red or orange outerwear was among those people, and the
vehicle slowed down or stopped to pick that person up. No
one else appeared to get into the vehicle after that person. The
dark-colored vehicle then left the scene, followed by an appar-
ently white vehicle.
   Police also located a gray Dodge Charger “connected with”
the residence where Thok, Deng, and Mabior attended a party
prior to the shootings. This vehicle was eventually searched
and found to contain a cell phone and wallet. The wallet held
an identification card and credit cards in Mabior’s name.
The cell phone contained a photograph of a receipt for the
purchase of an extended magazine for a 9-mm firearm by
Mabior’s girlfriend.
   Police sought to locate Mabior for questioning. One officer
surveilled a residence where it was believed that Mabior could
be. The officer observed a black Chevy Cruze pull up to the
residence and then leave shortly thereafter. The officer fol-
lowed that vehicle and eventually stopped it for a traffic viola-
tion. Mabior was a passenger in the vehicle, and there was an
extended magazine for a 9-mm firearm in a plastic bag on the
passenger floorboard where Mabior was sitting. The magazine
was ultimately determined to contain the same brand and cali-
ber of ammunition as found at the scene.
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                  314 Nebraska Reports
                        STATE V. MABIOR
                        Cite as 

   Mabior was handcuffed and transported to an Omaha police
station for an interview, which was recorded and later admit-
ted into evidence at trial. After being given a Miranda warning
and agreeing to speak with police, Mabior stated that Thok and
Deng tried to “start[] stuff” with him at the party and had tried
to fight him in the past. Mabior also stated that Thok was a
“troublemaker” who was shot in Dallas, Texas, in 2019 after
an incident with Mabior and Mabior’s cousin. According to
Mabior, his cousin fought Thok after Thok tried to hit Mabior;
approximately 15 minutes later, Thok was shot as he “got into
it” with other people.
   In the interview, Mabior gave inconsistent accounts of the
murders. Initially, he claimed that he left before the shoot-
ings. However, later, he variously stated that he was nearby
and heard gunshots, but did not know who shot the victims;
that he saw Goa Dat shoot the victims and leave the scene in a
white vehicle with Goa Dat and Goa Dat’s brother, Dilang Dat;
and that Mabior “touched the bodies” while looking for a cell
phone that he believed was stolen from him at the party.
   Mabior was released after the interview. However, several
hours later, police brought Mabior to the station for a second
interview, which was also recorded and later admitted into
evidence at trial. Mabior was again given a Miranda warning
and agreed to speak with police. Early in the second interview,
Mabior admitted that he confronted Thok in the street outside
the party for taking his cell phone but claimed that he “let it
be” before the victims were shot. Mabior also stated that he
was the only one to pat down the victims, that the vehicle—
which Mabior described as being white—had to stop so he
could get in, and that Goa Dat and Dilang Dat were already in
the vehicle when Mabior got in. In addition, Mabior stated that
he first saw the extended magazine in the Chevy Cruze on the
day of the traffic stop.
   Approximately 2 hours into the second interview, a detec-
tive stated that Mabior seemed comfortable talking about
some topics, but not others. Mabior then asked: “Know why
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                        STATE V. MABIOR
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I’m not comfortable? . . . You said I had a firearm. That made
me not want to talk no more.” Shortly thereafter, the detective
informed Mabior that he was “gonna have to talk” if he main-
tained that someone else killed Thok and Deng in his pres-
ence. The detective then asked Mabior what he was wearing
at the time of the shootings. Mabior later said: “No. I’m just
not talking anymore.” The detective asked why, and Mabior
said: “’Cause I be done. I’m done thinking about it. About
everything you’re saying.” Some 15 minutes later, Mabior
stated: “I just don’t wanna talk no more.” The detective asked
Mabior why he no longer wanted to talk and why he was
afraid to talk if he “didn’t do anything.” Mabior responded
that he was not afraid to talk, and the interview continued
from there.
   At the conclusion of the interview, officers placed Mabior
under arrest. The State subsequently charged him with two
counts of first degree murder and two counts of use of a fire-
arm to commit a felony. Mabior pled not guilty to the charges.

                1. Motion to Exclude Evidence
                   Regarding Prior Shooting
   Prior to trial, Mabior moved to preclude the State from intro-
ducing evidence or eliciting testimony regarding his involve-
ment in Thok’s prior shooting, because his involvement in that
crime was “propensity evidence” and “completely based on
speculation.” Mabior also argued that testimony about the prior
shooting was irrelevant and more prejudicial than probative.
   The State countered that people who attended the party
with Mabior and the victims reported that he and the victims
were arguing and attributed that argument to a “long-standing
beef between [them],” which encompassed the prior shooting.
The State argued that this “beef,” or feud, was motive for the
murders and that as such, the prior shooting was “inextricably
intertwined into the story.” The State also argued that there was
no need to hold a hearing regarding the evidence of the prior
shooting under Neb. Evid. R. 404, 

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                         STATE V. MABIOR
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(Cum. Supp. 2022), because it was not adducing evidence that
Mabior was the shooter.
   The district court overruled Mabior’s motion, reasoning that
the issue of whether to exclude evidence regarding the prior
shooting would be best addressed at trial. The district court
also found that a rule 404 hearing was unnecessary, because
the prior shooting is not being “directly attributed” to Mabior.
However, the district court cautioned that the State “need[ed]
to be careful” in presenting that evidence, including by ensur-
ing foundation and lack of hearsay.
               2. Pertinent Evidence at Trial
   A jury trial was held. In addition to the background facts
set forth above, the evidence at trial addressed other matters at
issue in Mabior’s appeal. That evidence is briefly summarized
below as it relates to Mabior’s assignments of error. Where rel-
evant, additional facts will be noted later in the opinion.
               (a) Narration of Surveillance Video
    The surveillance video described above was admitted into
evidence and also played in open court. Several OPD officials
testified regarding its contents. In one instance, a sergeant testi-
fied that Thok and Deng could be seen on the video at approxi-
mately 2:55 a.m. walking eastbound on Emmet Street from the
residence where the party was held. The sergeant then testified
that “[a person] wearing a red sweatshirt or sweater, later ID’d
as . . . Mabior, was seen following [them].”
    Mabior’s counsel objected that the sergeant’s testimony
was speculative. The district court then asked the prosecution
whether it “want[ed] to lay some foundation for that,” at which
point the prosecutor asked the sergeant, “Through the course
of the investigation, you then go back and start assigning iden-
tities to people based on the information you gather[]?” The
sergeant indicated that this was the practice and that he had
“received information” that “the person [seen] in that video
[was] likely Mabior.” Mabior’s trial counsel did not object to
this testimony.
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                     314 Nebraska Reports
                            STATE V. MABIOR
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               (b) Videos of Mabior’s Interviews
                          With Officers
   Recordings of Mabior’s interviews with law enforcement
were also admitted into evidence, and portions of them were
played in open court. The recordings contained multiple
instances where officers’ interviewing Mabior stated that they
believed he was lying about his involvement in the murders
and that, in fact, he was guilty of the murders. Mabior’s coun-
sel did not request a hearing under State v. Rocha 1 to exclude
law enforcement’s statements or a limiting instruction that
such statements are to be considered only for the permissible
purpose of providing context to the defendant’s statements in
the interview.
                  (c) Prior Shooting of Thok
   At trial, an OPD officer testified about the course of the
investigation. The officer stated that he first encountered
Mabior’s name when another officer informed him that Thok
had been shot before. Mabior’s counsel objected that the prior
shooting was the subject of a motion in limine and that the
State’s question called for “rumor and innuendo about some-
thing that happened elsewhere and [has] no connection to this
case.” The prosecution withdrew the question, but Mabior’s
counsel did not move to strike the answer, move for a mistrial,
or ask that the jury be instructed in any manner with respect
to the answer. Subsequently, Mabior’s counsel did not object
to similar evidence, including testimony that the families of
Thok and Deng “referenced” Mabior in connection with Thok’s
prior shooting.
             (d) Prosecution’s Use of Term “We”
   Multiple times during the trial, the prosecution used the
term “we” in referring to law enforcement or the investigation.
In one instance, after a detective indicated that a person was
considered a witness, not a subject, in the investigation, the
1
    State v. Rocha, 

, 

 (2017).
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                        STATE V. MABIOR
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prosecutor asked: “But at the time, we’re executing a search
warrant on his house, is that right?” A forensic technician was
similarly asked whether an exhibit was one “we use . . . on a
regular basis when you come in and help us testify.” In addi-
tion, in closing arguments, the prosecutor stated, “The best
explanation my detectives can give” for the shootings is that it
was a dispute about a cell phone.
                  (e) Victims’ Text Messages
   An OPD sergeant testified about text messages exchanged
between Thok and Deng about the party. In the messages, Thok
essentially assured Deng that they would be “‘cool’” in going
to the party without firearms because, in the sergeant’s words,
“‘We ain’t hanging out with African bros.’ or ‘Africans bro.’”
Thok, Deng, and Mabior are all of Sudanese descent.
                     (f) Mabior’s Clothing on
                         Night of Shooting
   The detective who conducted Mabior’s first interview testi-
fied about what officers did after that interview. The detective’s
testimony included a statement that officers decided to bring
Mabior in for the second interview because after they released
him, a person who attended the party with Mabior informed
them that Mabior was wearing a red hoodie. This person testi-
fied at the trial but was not asked about Mabior’s clothing on
the night of the shootings.
                   (g) One Shooter Who Went
                    Through Victims’ Pockets
  The detective also testified that Dilang Dat told him there
was one shooter who went through the victims’ pockets. Dilang
Dat did not testify at the trial.
                (h) Witness’ Fear of Retaliation
  A key witness for the State was the person who drove
a black Honda Civic from the scene of the shooting. This
witness testified that after she left the party, her boyfriend,
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Dilang Dat, asked her to wait for him in the Honda Civic. She
stated that as she was waiting, she heard “multiple gunshots”
behind her and that “[it] all sounded like it was the same gun.”
She stated that she then looked back and saw several people
running toward her car, that Dilang Dat got in first, that Goa
Dat got in next, that Mabior got in after Goa Dat, and that no
one got in after Mabior. She also testified that after Mabior got
in, he “made a comment, like, ‘They’re gone, bro.’” The wit-
ness further testified that she did not recall what color clothing
Mabior was wearing but that regardless of what color he was
wearing, he was “the last person in [her] car.”
   In addition, the witness testified that she “worried about”
potential consequences or retaliation if she came forward.
She attributed her fear to her cultural background, because
“in [the] Sudanese community,” “snitching” is “very frowned
upon.” She stated that while she was not “threatened . . . in
any manner personally” or told not to talk to police, Goa Dat
and Dilang Dat “insinuated” or “led [her] to believe” that she
should not talk to police.

                    3. Closing Arguments
   In closing arguments, when discussing motive for the shoot-
ings, the prosecutor made the following statement:
      [Mabior] even tells us. He and [Thok] have had some
      beefs for a while. There’s a bullet in [Thok’s] rear end
      that was pulled out at his autopsy from a few years
      prior down in Dallas, Texas. [Mabior] was there, he tells
      [police] in his interview[,] “Yeah, we kind of got into
      it[]” and then about 15 minutes later, [Thok] gets shot a
      couple times.

             4. Jury Verdict and Sentencing
  The jury convicted Mabior of all four counts. Mabior was
subsequently sentenced to consecutive sentences of “life with-
out the possibility of parole,” also stated as “[l]ife, with no
parole,” on each count of first degree murder and 15 to 30
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years’ imprisonment on each count of use of a firearm to com-
mit a felony.
  Mabior timely appealed. The appeal was placed on our
docket because of the imposition of life imprisonment. 2
                III. ASSIGNMENTS OF ERROR
   Represented by different counsel on appeal, Mabior asserts
as plain error, restated and reordered, that (1) all references to
Thok’s prior shooting should have been excluded on relevancy
grounds or excluded under Neb. Evid. R. 403, 

 (Reissue 2016), or under rule 404; (2) the prosecution
committed misconduct by implying in closing arguments that
Mabior was “responsible” for the prior shooting; and (3) the
prosecution improperly aligned itself with law enforcement as
the same body by vouching for law enforcement’s credibility
and for the investigation. Mabior also assigns that he received
ineffective assistance of trial counsel.
   The State did not cross-appeal but asserts as plain error
that Mabior was sentenced to “life without the possibility of
parole,” also stated as “[l]ife, with no parole,” rather than life
imprisonment, for his convictions for first degree murder.
                 IV. STANDARD OF REVIEW
   [1,2] Consideration of plain error occurs at the discretion of
an appellate court. 3 Plain error may be found on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process. 4
Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur. 5
2
  See 

(1) (Cum. Supp. 2022).
3
  State v. Roth, 

, 

 (2022).
4
  In re Estate of Koetter, 

, 

 (2022).
5
  

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   [3-5] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 6
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 7 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 as a matter of law, or that trial coun-
sel’s actions could not be justified as a part of any plausible
trial strategy. 8 Conversely, an ineffective assistance of counsel
claim will not be addressed on direct appeal if it requires an
evidentiary hearing. 9

                         V. ANALYSIS
           1. Mabior’s Assertions of Plain Error
             (a) Admission of Evidence Regarding
                      Thok’s Prior Shooting
   Mabior asserts that the admission of “[a]ny and all refer-
ences” to Thok’s prior shooting was plain error. 10 Mabior
acknowledges that with one exception, he did not object to
that evidence at trial. However, he now argues that this evi-
dence was inadmissible under rule 404(2). He also includes in
his assignments of error that the evidence was irrelevant and
unfairly prejudicial. The State disagrees.
   [6,7] We begin with rule 404, because most of the parties’
arguments pertain to it. Under rule 404(2), evidence of other
6
   State v. Johnson, ante p. 20, 

 (2023).
7
   State v. Miranda, 

, 

 (2023).
 8
   See State v. Thomas, 

, 

 (2022).
 9
   

10
   Brief for appellant at 59.
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crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he or she acted in conformity
therewith. 11 However, rule 404(2) does not apply to evidence
of a defendant’s other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime. 12
   [8] Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime and evidence that
is so blended or connected to the charged crime that proof of
the charged crime will necessarily require proof of the other
crimes or bad acts. 13 Evidence of other crimes or bad acts is
also inextricably intertwined with the charged crime if the
other crimes or bad acts are necessary for the prosecution to
present a coherent picture of the charged crime. 14
   For example, in State v. Burries, 15 we rejected the defend­
ant’s argument that the district court erred in allowing the
admission of evidence of his prior assault on the victim under
rule 404(2) and as part of the res gestae of the crime. In so
doing, we observed that while the district court found that the
evidence of the prior assault was admissible under rule 404(2),
we did not need to consider that ruling, because the “assault
evidence was inextricably intertwined and not 404 evidence.” 16
We based that conclusion on the fact that the assault was
“part of the factual setting” of the subsequent murder, and the
record supported the district court’s conclusion that “evidence
of the assault was necessary to present a coherent picture of
the murder.” 17
11
   State v. Briggs, 

, 

 (2019).
12
   

13
   

14
   

15
   State v. Burries, 

, 

 (2017).
16
   

, 

.
17
   

, 

.
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   Similarly, in State v. Parnell, 18 we affirmed the defendant’s
convictions after finding that evidence of his prior threat
against one of the victims was inextricably intertwined with the
charged crimes. The defendant argued that the evidence should
have been excluded under rule 404(2). 19 We disagreed. 20 We
concluded that evidence of the prior threat was “necessary to
present a coherent picture of the shooting”; without that evi-
dence, it would have appeared to the jury that the defendant
randomly shot the victims. 21
   Here, as in Burries 22 and Parnell, the evidence of the prior
shooting was not used to establish that Mabior had a propen-
sity to shoot Thok and Deng. Instead, the evidence was used to
establish that there was a “long-standing beef” between Mabior
and Thok. As the State argues, evidence of that feud was neces-
sary to paint a coherent picture of the shootings for the jurors;
otherwise, they “would have been left with the impression that
Mabior shot and killed Thok over just a missing cell phone
when the reality was that tension had been building between
them for some time.” 23
   Because the evidence of Thok’s prior shooting was inextri-
cably intertwined with the present murders and thus was not
rule 404 evidence, there is no merit to Mabior’s argument that
the State’s admission at the hearing on the motion in limine
that Mabior’s cousin shot Thok in Dallas means that the
State cannot make the necessary showing under rule 404(3)
to introduce evidence of the prior shooting. Mabior is correct
that rule 404(3) requires the prosecution to prove by clear and
convincing evidence that the accused committed the crime,
wrong, or act in order for evidence of another crime, wrong,
18
   State v. Parnell, 

, 

 (2016).
19
   

20
   

21
   

, 

.
22
   

.
23
   Brief for appellee at 24.
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or act to be admitted under rule 404(2). However, rule 404(3)
has no application here, because the evidence of the prior
shooting is not rule 404 evidence, as explained above.
   [9] Evidence of Thok’s prior shooting was also relevant
and not unfairly prejudicial. To be relevant, evidence must be
probative and material. 24 Evidence is probative if it has any
tendency to make the existence of a fact more or less probable
than it would be without the evidence. 25 A fact is material if it
is of consequence to the determination of the case. 26 Here, the
evidence was relevant for the reasons previously discussed to
present a coherent picture of the murders.
   [10] The same is true as to Mabior’s claim that evidence of
the prior shooting was unfairly prejudicial to him. The fact that
evidence is prejudicial is not enough to require exclusion under
rule 403, because most, if not all, of the evidence a party offers
is calculated to be prejudicial to the opposing party; it is only
the evidence which has a tendency to suggest a decision on
an improper basis that is unfairly prejudicial under rule 403. 27
That is not the case here. 28
   Accordingly, we find no plain error in the admission of evi-
dence regarding Thok’s prior shooting. As we have previously
explained, “[w]e are not inclined to readily find plain error in
testimony to which the opposing party did not object.” 29 Even
when a question or answer is arguably improper, sua sponte
action by the trial court may interfere with a party’s trial tactics
by bringing unwanted attention to the testimony. 30
24
   State v. Hernandez, 

, 

 (2018).
25
   

26
   

27
   State v. Williams, 

, 

 (2011).
28
   Cf. State v. Eona, 

, 

 (1995) (probative value
   of evidence of other drive-by shooting, in helping to establish motive, was
   not outweighed by danger of unfair prejudice).
29
   State v. Senteney, 

, 

 (2020).
30
   In re Estate of 

.
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                  (b) Prosecutorial Misconduct
                      in Closing Arguments
   Mabior also claims that the prosecution implied in closing
arguments that Mabior was “responsible” for Thok’s prior
shooting and that this implication was plain error. 31 Mabior
admits he did not move for a mistrial based on the prosecu-
tion’s statements. However, on direct appeal, he claims the
statements constituted prosecutorial misconduct, because the
prosecutor knew the statements were false. The State counters
that the prosecution’s statements were not improper, but, rather,
“accurately reflected” what Mabior himself told police about
the Dallas incident. 32
   [11-13] When considering a claim of prosecutorial miscon-
duct, an appellate court first considers whether the prosecutor’s
acts constitute misconduct. 33 As we have observed, “pros-
ecutorial misconduct” cannot be neatly defined but generally
encompasses conduct that violates legal or ethical standards
for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial. 34 A prosecutor’s con-
duct that does not mislead and unduly influence the jury is
not misconduct. 35
   [14,15] Then, if the appellate court concludes that a prosecu-
tor’s acts were misconduct, the court next considers whether
the misconduct prejudiced the defendant’s right to a fair trial. 36
Prosecutorial misconduct prejudices a defendant’s right to a
fair trial when the misconduct so infects the trial that the
resulting conviction violates due process. 37
31
   Brief for appellant at 27.
32
   Brief for appellee at 21.
33
   State v. Malone, 

, 

 (2021), modified on
   denial of rehearing 

, 

.
34
   

35
   

36
   State v. Figures, 

, 

 (2021).
37
   

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    Mabior points to the prosecutor’s statement that the long-
standing “beefs” between him and Thok were motive for the
shootings. The prosecutor then stated that Mabior was present
in Dallas when Thok was shot and told police that “‘we kind of
got into it[,]’ and then about 15 minutes later, [Thok] gets shot
a couple times.” Mabior claims that the “clear implication” of
this statement is that he was “responsible” for Thok’s prior
shooting. 38 Mabior also claims that the prosecution knew that
such an implication was false, because according to Mabior,
the State argued at the hearing on the motion in limine that
“the evidence they had from the Dallas police concerning the
[prior] shooting . . . did not implicate [him],” but, instead,
showed that Mabior’s cousin was the shooter. 39
    We do not view the prosecution’s closing arguments here
as constituting prosecutorial misconduct. On its face, the pros-
ecution’s statement indicates only that Thok’s prior shooting
occurred shortly after he and Mabior “‘got into it.’” The pros-
ecution did not state that Mabior shot Thok or caused Thok to
be shot.
    The prosecution’s closing remarks are also not inconsist­
ent with its argument at the hearing on Mabior’s motion in
limine. At that hearing, the State argued that evidence of the
prior shooting was “inextricably intertwined into the story. .
. . [W]e’re not alleging that Mabior . . . shot [Thok] down in
Dallas, but . . . there was an incident down there that led as a
motive to this homicide.” The prosecution’s statement about
motive in the closing arguments was not materially different,
insofar as it described the Dallas shooting as part of a long-
standing feud between Mabior and Thok, which was motive
for the murders.
    Mabior also maintains that the prosecution’s statements
“severely and unfairly prejudiced him.” 40 However, because
38
   Brief for appellant at 28.
39
   Id. at 27.
40
   Id. at 28.
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the prosecutor’s remarks about the prior shooting were not
improper, we need not address the second part of the pros-
ecutorial misconduct analysis, regarding whether a substantial
right was affected.
   In light of the foregoing, we find no plain error with
respect to the prosecution’s closing remarks about Thok’s
prior shooting.

                (c) Prosecution Vouching for Law
                   Enforcement and Investigation
   Finally, Mabior assigns as plain error that the prosecution
repeatedly “align[ed]” itself with law enforcement, thereby
vouching for law enforcement’s credibility and for the inves-
tigation. 41 Mabior admits that he did not object to the perti-
nent statements at trial or move for a mistrial or a new trial.
However, he claims that the statements constituted prosecuto-
rial misconduct. The State, in turn, argues that the statements
were not improper or, alternatively, did not prejudice Mabior’s
right to a fair trial.
   As explained above, in assessing allegations of prosecutorial
misconduct based on prosecutorial remarks, an appellate court
first determines whether the remarks were improper. 42 Then,
if the court concludes that the remarks were improper, it next
considers whether the remarks had a prejudicial effect on the
defendant’s right to a fair trial. 43
   [16,17] Whether prosecutorial misconduct is prejudicial
depends largely on the context of the trial as a whole. 44 In
determining whether a prosecutor’s improper conduct preju-
diced the defendant’s right to a fair trial, we consider the
following factors: (1) the degree to which the prosecutor’s
conduct or remarks tended to mislead or unduly influence
41
   Id. at 47.
42
   See Malone, supra note 33.
43
   See id.
44
   

.
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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. 45
   Mabior points to approximately 30 instances where the pros-
ecution used the term “we” when questioning OPD officials, as
well as one instance where the prosecution referred to “my
detectives” in closing arguments. We agree with the State that
in several of those instances, the term “we” apparently encom-
passed everyone in the courtroom, not just law enforcement.
We generally would not view such statements as constituting
prosecutorial misconduct, even if they are a questionable prac-
tice. However, other statements could have been construed to
suggest that the prosecution and law enforcement were jointly
involved in the investigation. For example, in one instance, the
prosecutor asked: “So we’re documenting this simply because
. . . we’re trying to preserve the scene the best we can. We
might not get another shot of it, right?” Other courts have
found that similar statements can “violate[] the principles upon
which both the rule against prosecutorial vouching and the
advocate-witness rule are based,” because they suggest that the
prosecutor has personal knowledge of events and serves as a
witness to them. 46 There is also the risk that the prestige and
prominence of the prosecutor’s office may unduly influence
the jury. 47
   However, even assuming without deciding that the state-
ments in this case implying the prosecution shared in the
investigation were improper, they did not prejudice Mabior’s
right to a fair trial when considered within the context of
the trial as a whole. The State apparently does not dispute
Mabior’s claims that the remarks were uninvited and that
45
   

46
   U.S. v. Edwards, 

 (9th Cir. 1998). See, also, U.S. v.
   Hermanek, 

 (9th Cir. 2002); U.S. v. Lizarraga-Cedano, 

 (9th Cir. 2006).
47
   Edwards, supra note 46.
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the district court provided no curative instruction. However,
Mabior did not request a curative instruction, and we are reluc-
tant to readily find plain error where the opposing party did not
object at trial, as we stated above. 48 Mabior also argues that
the remarks were extensive. But even if we were to agree that
approximately 30 usages of “we” and “my” over a 5-day trial
were extensive, 49 the remarks did not tend to mislead or unduly
prejudice the jury.
   The court properly instructed the jury that lawyers’ state-
ments and arguments are not evidence and that the jury alone
decides the credibility of witnesses. Similarly, in closing argu-
ments, the prosecution expressly included law enforcement
when discussing the instruction that the jury is the sole judge
of witnesses’ credibility and the weight to be given to their
testimony, stating:
      [T]he reason I think this is incredibly important is because
      we had several lay witnesses. We also had several wit-
      nesses who worked both for the [OPD] and for the crime
      lab. . . . You get to weigh and judge the credibility of each
      witness that’s up there. 50
   Also, strong evidence supported Mabior’s convictions.
Mabior argues that three of the instances of alleged vouch-
ing, in particular, involved the “most critical evidence,” the
“interpretation of [the] identi[t]ies of the individuals in the
surveillance video.” 51 We disagree. As the State observes,
the “primary evidence” 52 in this case was the surveillance
48
   See 

.
49
   Cf. Hermanek, supra note 46, 

 (prosecutors’ use of
   “we” and related terms on at least 19 occasions during 3 days of closing
   argument was “not so numerous”).
50
   Cf. Lizarrago-Cedano, supra note 46, 

 (“government
   adequately set the record straight” in closing argument, where prosecutor
   stressed he was distinct from law enforcement).
51
   Brief for appellant at 49.
52
   Brief for appellee at 22.
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video showing the actual crimes; the testimony of the wit-
ness who drove the black Honda Civic from the scene of the
shootings that Mabior was the last person to get into that
vehicle after she heard gunshots and that she heard Mabior
say something like “‘They’re gone’”; the evidence of a long-
standing feud between Mabior and Thok; Mabior’s statements
in his interviews with law enforcement; and the casings found
at the scene that were of the same brand and caliber as the
ammunition in the extended magazine. None of that evidence
implicated law enforcement’s credibility. Instead, in many
of the instances where the prosecution used “we” or “my,”
including the three instances of particular concern to Mabior,
the prosecution was apparently attempting to explain to the
jury law enforcement procedures that do not “go to the heart
of” this case, such as putting up evidence markers and tak-
ing photographs. 53
   As such, we find no plain error with respect to the prosecu-
tion’s use of the terms “we” and “my” when referring to law
enforcement and the investigation.
              2. Mabior’s Claims of Ineffective
                 Assistance of Trial Counsel
   In addition to his assertions of plain error, Mabior claims,
restated and reordered, that trial counsel was ineffective in (1)
failing to move to suppress a photograph of a receipt for an
extended magazine that was found on Mabior’s cell phone;
(2) failing to move to suppress an extended magazine found
in a vehicle in which Mabior was a passenger; (3) failing to
move to suppress statements made in Mabior’s first interview
with law enforcement; (4) failing to move to suppress state-
ments made in Mabior’s second interview with law enforce-
ment after Mabior allegedly invoked his right to remain silent;
(5) failing to object to officers’ narration of the surveillance
53
     Hermanek, supra note 46, 289 F.3d at 1102. See, also, Lizarrago-Cedano,
     supra note 46 (usages of “we” and “us” not going to heart of case).
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video; (6) failing to object in order to request a hearing under
Rocha 54 and exclude statements about Mabior’s credibility and
guilt made by officers in the context of recorded interviews
with Mabior that were played for the jury at trial or admitted
into evidence; (7) failing to object to evidence that allegedly
implicated Mabior in Thok’s prior shooting; (8) failing to
object to the prosecution’s aligning itself with law enforce-
ment as the same body by vouching for law enforcement and
the investigation; (9) failing to object to an officer’s testimony
about text messages exchanged between Thok and Deng about
the party; (10) failing to object to an officer’s testimony that
an eyewitness told him Mabior was wearing a red hoodie on
the night of the shootings; (11) failing to object to an officer’s
testimony that Dilang Dat told him there was one shooter, who
went through the victims’ pockets; (12) failing to object to a
witness’ testimony that she was afraid to cooperate with police
and testify; and (13) failing to move for a mistrial based on
the prosecution’s alleged implication in closing arguments that
Mabior was “responsible” for Thok’s prior shooting.
   Before turning to these individual claims, some of which are
consolidated in the discussion below, we first review the well-
established legal framework governing claims of ineffective
assistance of counsel.
   [18,19] 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 perform­
ance which is known to the defendant or is apparent from
the record; otherwise, the issue will be procedurally barred
in a subsequent postconviction proceeding. 55 However, the
fact that an ineffective assistance of counsel claim is raised
on direct appeal does not necessarily mean that it can be
resolved. 56 The determining factor is whether the record is
54
   

.
55
   State v. Wheeler, ante p. 282, 

 (2023).
56
   

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sufficient to adequately review the question under the standard
previously noted. 57
   [20-23] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland v. Washington, 58 the defend­
ant must show that his or her counsel’s performance was defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense. 59 To show that counsel’s performance
was deficient, a defendant must show that counsel’s perform­
ance did not equal that of a lawyer with ordinary training and
skill in criminal law. 60 To show prejudice in a claim of inef-
fective assistance of counsel, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 61 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 62 A court may examine
performance and prejudice in any order and need not examine
both prongs if a defendant fails to demonstrate either. 63
            (a) Not Moving to Suppress Photograph
               of Receipt for Extended Magazine
   Mabior claims that his trial counsel was ineffective in fail-
ing to move to suppress the photograph of the receipt for an
extended magazine that was found on his cell phone. Mabior
claims that the search that resulted in the discovery of the
receipt was unlawful because “there is no indication from
the record that law enforcement . . . obtain[ed] a search war-
rant for [his] cell phone.” 64 The State, however, observes that
57
   

58
   Strickland v. Washington, 

, 

, 

   (1984).
59
   

.
60
   

61
   

62
   See State v. Lessley, 

, 

 (2022).
63
   See State v. Ellis, 

, 

 (2022).
64
   Brief for appellant at 63.
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there was testimony at trial that “law enforcement did get a
search warrant for Mabior’s phone.” 65
   [24] Searches without a valid warrant are per se unreason-
able, subject only to a few specifically established and well-
delineated exceptions that must be strictly confined by their
justifications. 66 Here, however, there was testimony that offi-
cers were executing a search warrant on the Dodge Charger
when they found Mabior’s cell phone and that they “did a
search warrant for the phone as well.” This testimony is not
contradicted by the testimony that Mabior cites from another
OPD detective that it is “standard procedure” in a homicide
investigation “to immediately collect all cell phones” and “[t]ry
to get as much information off of them as possible.” Mabior
seemingly suggests that the use of the word “immediately”
here implies that the searches are conducted without a warrant.
That inference does not necessarily follow from the officer’s
statement, though, and the same officer later testified that law
enforcement had a warrant to search the Dodge Charger where
the cell phone was found. Unlike this officer’s colleague,
she was not asked whether there was a warrant to search the
cell phone.
   [25] Because Mabior’s argument specifically concerned the
alleged lack of a warrant for the search, and because the record
indicates that law enforcement had warrants to search both the
Dodge Charger and the cell phone, his trial counsel did not
perform deficiently in failing to move to suppress the photo-
graph of the receipt for the extended magazine on the grounds
that the search was unlawful. Such a motion would have failed
because the argument is meritless. As a matter of law, counsel
cannot be ineffective for failing to raise a meritless argument
to the trial court. 67
65
   Brief for appellee at 58.
66
   State v. Vaughn, ante p. 167, 

 (2023).
67
   State v. Jaeger, 

, 

 (2022).
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   Accordingly, Mabior’s claim that his trial counsel was inef-
fective in failing to move to suppress the photograph of the
receipt for the purchase of an extended magazine fails.
        (b) Not Moving to Suppress Extended Magazine
               and Statements in First Interview
                     With Law Enforcement
   Mabior also claims that his trial counsel was ineffective in
failing to move to suppress an extended magazine found in the
Chevy Cruze in which he was a passenger, as well as state-
ments made in his first interview with law enforcement. Both
the discovery of the magazine and Mabior’s first interview
with law enforcement followed a traffic stop whose lawful-
ness Mabior apparently does not challenge. However, Mabior
claims that the traffic stop was unlawfully “prolonged ‘beyond
the time reasonably required to complete the mission of the
stop’” and that law enforcement lacked probable cause to
search the Chevy Cruze and arrest him. 68 Mabior apparently
views the record on appeal as sufficient to make a determina-
tion on this claim, while the State argues that the record is
insufficient. We agree with the State.
   The record on appeal shows that the vehicle in which
Mabior was a passenger was stopped for a traffic violation,
that the officer who stopped the vehicle smelled a “strong
odor of alcoholic beverage” on the driver, and that the officer
brought in a canine to sniff the vehicle for drugs. However,
the record provides few specifics about the facts and circum-
stances surrounding the prolongation of the traffic stop. Nor
does the record indicate any potential trial strategy utilized by
trial counsel in determining not to file a motion to suppress
the magazine or the statements in Mabior’s first interview
with law enforcement. In comparable circumstances, we have
found that the trial record was insufficient to determine the
merits of a claim on direct appeal that counsel was ineffective
68
     Brief for appellant at 38 (quoting State v. Thompson, 

,
     

 (2021)).
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for failing to file a motion to suppress. 69 We reach the same
conclusion here; the record is insufficient to address Mabior’s
claim that his trial counsel was ineffective in failing to move
to suppress the extended magazine and the statements in his
first interview with law enforcement.

         (c) Not Moving to Suppress Certain Statements
                 in Mabior’s Second Interview
                    With Law Enforcement
   Mabior similarly claims that his trial counsel was ineffective
in failing to move to suppress certain statements made in his
second interview with law enforcement. Mabior claims that he
invoked his right to remain silent part way through the second
interview and that officers violated his rights under Miranda
v. Arizona 70 by continuing to question him after that. The
State disagrees.
   [26,27] The safeguards of Miranda ensure that the indi-
vidual’s right to choose between speech and silence remains
unfettered throughout the interrogation process. 71 If the sus-
pect indicates that he or she wishes to remain silent or that
he or she wants an attorney, the interrogation must cease. 72
However, before the police are under a duty to cease the
interrogation, the suspect’s invocation of the right to cut
off questioning must be “‘“unambiguous,” “unequivocal,” or
“clear,”’” such that a reasonable police officer under the
circumstances would understand the statement as an invoca-
tion of the Miranda right to remain silent. 73 “If the suspect’s
statement is not an ‘“unambiguous or unequivocal”’ assertion
69
   See, e.g., State v. Chairez, 

, 

 (2019)
   (collecting cases).
70
   Miranda v. Arizona, 

, 

, 

   (1966).
71
   State v. Johnson, 

, 

 (2021).
72
   

73
   State v. Clifton, 

, 

 (2017).
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of the right to remain silent, then there is nothing to ‘“scru-
pulously honor”’ and the officers have no obligation to stop
questioning.” 74
   Mabior was given a Miranda warning at the start of the
second interview, and the parties apparently agree that the
statements in question were made within the context of a “cus-
todial interrogation” for purposes of Miranda. 75 They disagree
over whether Mabior’s statement, “I just don’t wanna talk no
more,” invoked his right to remain silent. Mabior argues that
his statement invoked his right to remain silent under State v.
Perkins, 76 wherein we contrasted a defendant’s mere silence
when questioned with an express statement indicating a wish
to end questioning, such as “‘I don’t want to talk to you.’”
Mabior argues that his words were essentially equivalent to
those we quoted in Perkins as invoking the right to remain
silent. The State, in turn, cites State v. Rogers, 77 with the
apparent implication Mabior’s statement indicated either that
he had finished his colloquy of events or that he desired to
avoid speaking about particular topics.
   We need not decide this issue, however, because even if
we assume without deciding that Mabior invoked his right
to remain silent and his trial counsel was deficient in failing
to move to suppress the subsequent statements, the record
establishes that Mabior cannot show that he was prejudiced
thereby. This is because, as the State observes, “Mabior
said nothing of consequence” 78 after saying, “I just don’t
wanna talk no more.” Before making the statement allegedly
74
   

75
   Cf. 

, ante at 182, 989 N.W.2d at 393 (“‘custodial
   interrogation’” occurs when questioning is initiated by law enforcement
   after person is taken into custody or otherwise deprived of freedom of
   action in significant way).
76
   State v. Perkins, 

, 

 (1985).
77
   State v. Rogers, 

, 

 (2009).
78
   Brief for appellee at 57.
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                                  STATE V. MABIOR
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invoking his right to remain silent, he had already stated that
he confronted Thok in the street outside the party for taking
his cell phone, that only he patted down the victims, and that
the vehicle in which he left the scene of the shootings had to
stop so that he could get in and that Goa Dat and Dilang Dat
were already in the vehicle when he got in. Also, contrary to
Mabior’s assertion, he made “his initial admission” 79 that he
knew the magazine was in the Chevy Cruze before saying, “I
just don’t wanna talk no more.”
   As to the officers’ statements during the second interview,
which Mabior claims included “some of the most egregious
statements” 80 that he was lying and was guilty, the record also
establishes that even if trial counsel was deficient in failing to
seek their exclusion, Mabior cannot show that he was preju-
diced thereby, as we explain below.
   As a result, Mabior’s claim that his trial counsel was inef-
fective in failing to move to suppress certain statements made
in his second interview with law enforcement fails.

           (d) Failing to Object to Officers’ Narration
                      of Surveillance Video
   Mabior further claims that his trial counsel was ineffective
in failing to object to officers’ testimony at trial interpreting
the surveillance video and, in particular, their identification
of persons shown on the video. He claims that the officers’
statements were inadmissible under the best evidence rule, as
expressed in Neb. Evid. R. 1002, 

(Reissue 2016). Alternatively, he claims that the officers’
statements were inadmissible under Neb. Evid. R. 602 and
701, 

 and 27-701 (Reissue 2016).
The State again disagrees, citing cases from other juris-
dictions that have allowed “narration testimony,” at least
79
     Brief for appellant at 57.
80
     

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under rule 701, so long as the narration does not “bleed[]
into interpretation.” 81
   We need not resolve this question, because even if we
assume without deciding that the officers’ narration of the sur-
veillance video was inadmissible and Mabior’s trial counsel
was deficient in failing to object, the record establishes that
Mabior cannot show that he was prejudiced thereby. A copy
of the video without narration was admitted into evidence,
along with a modified version of the video played at trial.
Also, officers made clear that the identifications were not
based on the video alone, describing the persons involved as
“later identified” as Thok or Deng or “believed to be” Mabior,
among other things. Further, the person who drove the black
Honda Civic from the scene of the shootings testified that
Mabior was the last person to get into that vehicle. As the
State argues, the “obvious deduction” from her testimony, in
combination with the surveillance video, was that Mabior shot
the victims. 82
   As such, Mabior’s claim that his trial counsel was ineffec-
tive in failing to object to officers’ narration of the surveillance
video fails.
         (e) Failing to Request Hearing Under Rocha
           and Seek to Exclude Statements Made by
              Officers During Mabior’s Interviews
   Mabior further claims that his trial counsel was ineffec-
tive in failing to request a hearing under Rocha 83 and seek
to exclude statements about Mabior’s credibility and guilt
made by officers in the context of recorded interviews with
Mabior played for the jury at trial or admitted into evidence.
Mabior claims that the officers’ statements were irrelevant,
improper opinion evidence, not probative for the purpose of
81
   Brief for appellee at 59.
82
   Id. at 60.
83
   

.
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providing context for Mabior’s statements, and more prejudi-
cial than probative. The State counters that the officers’ state-
ments were admissible under Rocha to provide context for
Mabior’s statements in the interviews.
   [28] In Rocha, we held as a matter of first impression that
statements by law enforcement officials on the veracity of the
defendant or other witnesses, made within a recorded interview
played for the jury at trial, are to be analyzed under the ordi-
nary rules of evidence. 84 Such commentary is not admissible
to prove the truth of the matter asserted. 85 However, it may be
independently admissible for the purpose of providing neces-
sary context to a defendant’s statements in the interview which
are themselves admissible. 86
   To determine whether a statement by a law enforcement
official in a recorded interview is relevant for purposes of
providing context to a defendant’s statement, we first con-
sider whether the defendant’s statement itself is relevant,
whether it makes a material fact more or less probable. 87 If the
defend­ant’s statement is itself relevant, then we must consider
whether the law enforcement statement is relevant to provide
context to the defendant’s statement. 88 To do this, we consider
whether the defendant’s statement would be any less probative
in the absence of the law enforcement statement. 89 If the law
enforcement statement does not make the defendant’s state-
ment any more probative, it is not relevant. 90
   We agree with the State that the detective’s statement in
Mabior’s first interview that Mabior and another witness had
84
   

85
   

86
   

87
   See 

88
   

89
   

90
   

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different stories did not implicate Rocha, because the detective
did not comment on Mabior’s credibility.
   As to the detectives’ other statements, even assuming with-
out deciding that Mabior’s trial counsel was deficient in failing
to request a hearing under Rocha and seek to exclude these
statements, the record establishes that Mabior cannot show
that he was prejudiced thereby. The evidence in question was
cumulative of other evidence of Mabior’s credibility and guilt.
Even if the officers’ statements that Mabior was lying had been
excluded, there would still have been evidence of Mabior’s
inconsistent versions of his involvement in the shootings. Also,
the jury could compare Mabior’s versions of events to the sur-
veillance video and the testimony of the witness who drove the
black Honda Civic from the scene when assessing Mabior’s
credibility. Similarly, as to guilt, there were Mabior’s own
statements in his interviews with law enforcement, the surveil-
lance video, the evidence regarding the extended magazine,
and the testimony of the witness who drove the black Honda
Civic from the scene.
   Accordingly, Mabior’s claim that his trial counsel was
ineffective in failing to request a hearing under Rocha and
seek to exclude statements made by officers during his inter-
views fails.
   Mabior also claims that if the jury was allowed to hear
some or all of law enforcement’s statements, those statements
should have been accompanied by a limiting instruction. In
Rocha, we stated that upon request, the defendant is entitled
to a limiting instruction that such statements are to be con-
sidered only for the permissible purpose of providing context
to the defendant’s statements in the interview. 91 However,
Mabior did not specifically assign that his trial counsel
was ineffective in failing to request a limiting instruction
under Rocha; instead, he assigned that his trial counsel was
91
     

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ineffective in failing to request a hearing and seek to exclude
officers’ statements. 92

                (f) Failing to Object to Evidence
                         of Prior Shooting
   Mabior further asserts that his trial counsel was ineffec-
tive in failing to object to the “testimony of [the] State’s
witnesses that contained out of court statements implicating”
him in Thok’s prior shooting. 93 Mabior assigns that these
statements are hearsay and irrelevant and that they violate the
Confrontation Clause. The State takes a different view and also
observes that Mabior did not specifically argue that the state-
ments were irrelevant when discussing this claim of ineffective
assistance of trial counsel in his brief on appeal.
   [29,30] Hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. 94
Hearsay is not admissible unless otherwise provided for in
the Nebraska Evidence Rules or elsewhere. 95 However, by
definition, an out-of-court statement is not hearsay if the
proponent offers it for a purpose other than proving the truth
of the matter asserted. 96 Thus, statements are not hearsay to
the extent that they are offered for context and coherence of
other admissible statements, and not for “‘the truth or the
truth of the matter asserted.’” 97 Similarly, statements are not
hearsay if the proponent offers them to show their impact
92
   

 (alleged error must be both specifically assigned
   and specifically argued in brief of party asserting error to be considered by
   appellate court).
93
   Brief for appellant at 58.
94
   

.
95
   

96
   

97
   Id. at 188, 989 N.W.2d at 396 (quoting State v. Wood, 

, 

 (2021)).
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on the listener, and the listener’s knowledge, belief, response,
or state of mind after hearing the statements is relevant to an
issue in the case. 98
   The record establishes that Mabior’s counsel was not defi-
cient in not objecting to the statements regarding Thok’s prior
shooting on hearsay and Confrontation Clause grounds, because
these statements were not hearsay. The statements in question
were not offered to prove that Mabior was “responsible” for
Thok’s prior shooting. 99 Instead, as the State argues, they
were offered for context and for their effect on the listener.
Specifically, they were offered to explain why law enforcement
identified Mabior as a suspect. The statements also raised no
Confrontation Clause issues, because they were not hearsay. 100
Even if the statements were testimonial, as Mabior argues,
the Confrontation Clause does not “bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.” 101
   As to relevancy, the State is correct that while Mabior spe-
cifically assigned that his trial counsel was ineffective in fail-
ing to object to these statements on the grounds that they were
irrelevant, he did not specifically argue that in his brief. An
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be
considered by an appellate court. 102
   Therefore, Mabior’s claim that his trial counsel was inef-
fective in failing to object to evidence of Thok’s prior shoot-
ing fails.
98
    

99
    See brief for appellant at 29.
100
    

, ante at 190, 989 N.W.2d at 397 (“‘[a] statement
    that is not hearsay raises no Confrontation Clause concerns’”) (quoting
    Barrett v. Acevedo, 

 (8th Cir. 1999) (en banc)).
101
    Crawford v. Washington, 

, 60 n.9, 

, 

 (2004).
102
    

.
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              (g) Failing to Object to Prosecution’s
                “Vouching” for Law Enforcement
   Mabior also assigns that his trial counsel was ineffective in
failing to object or to move for a mistrial or for a new trial in
response to the prosecution’s repeatedly aligning itself with
law enforcement, thereby vouching for law enforcement’s cred-
ibility and for the investigation. Mabior argues that this was
prosecutorial misconduct. The State disagrees.
   For the reasons previously discussed, the record establishes
that Mabior’s counsel did not perform deficiently in failing to
object to the prosecution’s use of “we” and “my” when refer-
ring to law enforcement and the investigation, because this
was not prosecutorial misconduct. However, even assuming
that the statements were prosecutorial misconduct and that
Mabior’s counsel was deficient in failing to object or move for
a mistrial or for a new trial, the record establishes that Mabior
cannot show that he was prejudiced thereby. Mabior claims
that the evidence against him was “largely circumstantial,
relying heavily upon law enforcement to provide significance
to the minimal evidence presented.” 103 However, as was previ-
ously explained, the primary evidence against Mabior was the
surveillance video showing the actual crimes; the testimony
of the witness who drove the black Honda Civic from the
scene of the shootings that Mabior was the last person to get
into that vehicle after she heard gunshots and that she heard
Mabior say something like “‘They’re gone’”; the evidence
of a longstanding feud between Mabior and Thok; Mabior’s
statements in his interviews with law enforcement; and the
casings found at the scene that were of the same brand and
caliber as the ammunition in the extended magazine. None of
that evidence implicated the prosecution’s statements allegedly
vouching for the credibility of law enforcement or the inves-
tigation. As such, Mabior’s claim that his trial counsel was
ineffective in failing to object or move for a mistrial or for a
103
      Brief for appellant at 50.
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new trial based on the prosecution’s alleged vouching for law
enforcement fails.

                (h) Failing to Object to Testimony
                   About Victims’ Text Messages
   Mabior similarly claims that his trial counsel was inef-
fective in failing to object to testimony by an OPD sergeant
about text messages that Thok and Deng exchanged about the
party. The substance of the messages was that Thok and Deng
would be “‘cool’” in attending the party without firearms,
because, in the sergeant’s words, “‘We ain’t hanging out with
African bros.’ or ‘Africans bro.’” Mabior claims that the
sergeant’s statements about the text messages were hearsay
because they were offered to prove that Thok and Deng went
to the party unarmed and that they “needed firearms to protect
themselves from Africans.” 104 Mabior is of African descent.
The State apparently does not contest that the statements
were hearsay.
   [31] However, even assuming that Mabior’s trial counsel
was deficient in failing to object to the sergeant’s testimony
about the victims’ text messages, the record establishes that
Mabior cannot show that he was prejudiced thereby. The ser-
geant’s testimony that the victims were unarmed was cumula-
tive of other evidence. There was testimony from at least six
separate witnesses that no firearms were found at the scene of
the shootings or on Thok’s and Deng’s persons. The erroneous
admission of evidence is generally harmless error and does
not require reversal if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding by
the trier of fact. 105
   Similarly, as to whether the victims “needed firearms
to protect themselves from Africans,” 106 we agree with the
104
    Id. at 56.
105
    State v. Hood, 

, 

 (2018).
106
    Brief for appellant at 56.
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State that the statements were “too broad to implicate Mabior
as the shooter.” 107 There was uncontroverted testimony at
trial that “all the individuals involved are from the Sudanese
community.”
   Thus, Mabior’s claim that his trial counsel was ineffective
in failing to object to testimony about the victims’ text mes-
sages fails.
                (i) Failing to Object to Testimony
                     About Mabior’s Clothing
   Mabior also asserts that his trial counsel was ineffective in
failing to object to testimony by an OPD detective that a per-
son who attended the party told him Mabior was wearing a red
hoodie that night. Mabior claims that this statement was hear-
say, introduced to prove he was the “person in red” who can be
seen shooting one of the victims on the surveillance video. 108
Mabior similarly claims that the statement was testimonial and
implicated his rights under the Confrontation Clause. The per-
son who made this statement to the detective testified at trial
but was not asked about Mabior’s clothing. The State counters
that the statement is not hearsay.
   The record establishes that Mabior’s counsel was not defi-
cient in failing to object to the detective’s testimony about
the red hoodie on hearsay and Confrontation Clause grounds,
because the statement was not hearsay. The testimony in ques-
tion was part of the detective’s description of his actions after
Mabior’s first interview. Mabior was released at the end of that
interview. However, the detective explained that after Mabior’s
release, an “[i]nterview was conducted with another witness”
that prompted officers to contact Mabior again. The prosecu-
tor then asked the detective, “Why did you go and make con-
tact with . . . Mabior after interviewing [this other witness]?”
The detective stated: “[The witness] was able to tell us that
[Mabior] was wearing a red hoodie that night.”
107
      Brief for appellee at 52.
108
      Brief for appellant at 35.
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   The context here makes clear that the statement about the
red hoodie was introduced to show its effect on the listener and
not to prove that Mabior was the “person in red” depicted in
the surveillance video. 109 As explained above, statements are
not hearsay if the proponent offers them to show their impact
on the listener, and the listener’s knowledge, belief, response,
or state of mind after hearing the statement is relevant to an
issue in the case. 110 Such was the case here. The statement
was introduced to show the detective’s response to it; after
learning that Mabior was wearing a red hoodie on the night of
the shooting, officers arranged for him to be brought in for a
second interview.
   Insofar as the statement was not hearsay, it “‘raises no
Confrontation Clause concerns,’” 111 as explained above.
   Therefore, Mabior’s claim that his trial counsel was ineffec-
tive in failing to object to the detective’s statement that a wit-
ness told him Mabior was wearing a red hoodie fails.
            (j) Failing to Object to Testimony That
               There Was One Shooter Who Went
                    Through Victims’ Pockets
   Mabior likewise asserts that his trial counsel was ineffective
in not objecting on hearsay and Confrontation Clause grounds
to the detective’s testimony that Dilang Dat told him there was
one shooter who went through the victims’ pockets. Dilang
Dat did not testify at the trial. The State apparently does not
dispute that the testimony was hearsay and violated Mabior’s
rights under the Confrontation Clause, but the State argues that
Mabior cannot show he was prejudiced thereby.
   We agree with the State. Even assuming that Mabior’s trial
counsel was deficient in failing to object to the detective’s
109
    See 

110
    

 (officer’s testimony about Amtrak employee’s
    statement that luggage belonged to defendant not hearsay because it was
    offered for context and coherence and to show impact on officer).
111
    Id. at 190, 989 N.W.2d at 397.
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testimony that there was one shooter who went through the
victims’ pockets, the record establishes that Mabior cannot
show that he was prejudiced thereby, because the detective’s
testimony was cumulative of other testimony.
   As to there being one shooter, the record shows that all eight
of the 9-mm casings recovered at the scene were fired from
the same firearm. These casings were of the same caliber and
brand as the ammunition contained in the extended magazine
found on the passenger-side floorboard of the Chevy Cruze
in which Mabior was a passenger. Mabior’s cell phone also
contained a photograph of a receipt for the purchase of an
extended magazine for a 9-mm firearm by his girlfriend. In
addition, the person who drove the black Honda Civic from
the scene of the shootings testified that she heard multiple gun-
shots while waiting in the vehicle, “all [of which] sounded like
it was the same gun.”
   Similarly, as to the shooter’s going through the victims’
pockets, Mabior himself stated in his second interview with law
enforcement, before making the statements allegedly invoking
his right to remain silent, that he patted down the victims and
that no one else patted down the victims. The surveillance
video also shows a person bending over Deng’s body, appar-
ently looking for something.
   Accordingly, Mabior’s claim that his trial counsel was inef-
fective in failing to object to the detective’s testimony that an
eyewitness said there was one shooter who went through the
victims’ pockets fails.

               (k) Failing to Object to Testimony
                    About Fear of Retaliation
   Mabior also asserts that his trial counsel was ineffective in
failing to object on relevance and rule 403 grounds to a wit-
ness’ testimony about her fear of retaliation if she came for-
ward. The State counters that the evidence was relevant and not
unfairly prejudicial.
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   We agree with the State that the record establishes trial
counsel did not perform deficiently in failing to object on rele-
vance and rule 403 grounds. Mabior cites State v. Iromuanya 112
for the proposition that, in his words, “when a witness is
threatened or intimidated by the defendant, the witness[’] tes-
timony about being fearful of coming forward is admissible to
show ‘consciousness of guilt.’” 113 He maintains that under this
standard, testimony about the witness’ fear of coming forward
in this case was “clearly inadmissible” to show his conscious-
ness of guilt, because there was no evidence he threatened
or intimidated the witness or caused her to be threatened or
intimidated. 114
   However, our discussion of relevance in Iromuanya was not
limited to evidence of the defendant’s consciousness of guilt.
Instead, we found that the fact that the witness was afraid of
the defendant’s friends was separately relevant to the “issue of
[the witness’] credibility,” as well as to the “jury’s evaluation
of which of [the witness’] versions of events to believe.” 115
   [32] The evidence of the witness’ fear in this case is rele-
vant for the same reasons as in Iromuanya. The credibility of a
witness is always relevant, as Nebraska and other courts have
found. 116 However, in this case, in particular, the prosecution
may have anticipated questions about the witness’ credibility
and opted to address them on direct examination, including
through questions about her fear of potential consequences
112
    State v. Iromuanya, 

, 

 (2006).
113
    Brief for appellant at 54.
114
    Id. at 55.
115
    

, 

, 

.
116
    See, e.g., In re Interest of Kyle O., 

, 

    (2005); State v. Eldred, 

, 

 (1997).
    See, also, Saxton v. Commonwealth, No. 2021-SC-0353-MR, 

 (Ky. Dec. 15, 2022); Margerum v. People, 

 (Colo.
    2019); Jones v. State, 

, 

 (2002); Mills v.
    Grotheer, 

 (Okla. 1998); Smith v. State, 

, 

 (1974).
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or retaliation if she came forward. 117 The witness here had
charges pending against her related to the shootings and, like
the witness in Iromuanya, changed her version of events over
time. Mabior is correct that the witness never stated that he
threatened her or caused her to be threatened. However, the
fact that the fear was caused by third parties, not Mabior, does
not necessarily make testimony about the witness’ fear irrel-
evant as to the witness’ credibility and which of her versions
of events to believe. 118 The witness in Iromuanya did not tes-
tify that she was afraid of the defendant specifically; rather,
she testified that she was afraid that “somebody, ‘maybe
some of [the defendant’s] friends,’ would do something
to her.” 119
   Here, the witness testified that while she was not “threat-
ened . . . in any manner personally” or told not to talk to
police, her boyfriend, Dilang Dat, and his brother, Goa Dat,
“insinuated” or “led [her] to believe” that she should not talk
to police. She also testified that Dilang Dat was friends with
Mabior. This testimony apparently underlies Mabior’s argu-
ment that the witness’ testimony was unfairly prejudicial to
him because the “clear implication of this line of testimony
[was] to insinuate” that he, through his friends, attempted to
intimidate and prevent the witness from talking to police or
testifying. 120 We disagree. Based on the witness’ testimony, it
was equally plausible, as the State suggests, that Goa Dat and
Dilang Dat wanted her to keep silent for their own reasons.
The witness expressly testified that their suggestions that she
keep quiet made her feel like they “were hiding something” or
“had some involvement.”
117
    See, e.g., United States v. LeFevour, 

 (7th Cir. 1986).
118
    See, e.g., People v. Mendoza, 

, 

, 

 (2011) (evidence of third party threat may bear
    on credibility of witness, whether or not threat is “directly linked” to
    defendant).
119
    

, 

, 

.
120
    Brief for appellant at 54.
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   As such, Mabior’s claim that his trial counsel was ineffec-
tive in failing to object to testimony about a witness’ fear of
retaliation if she came forward is meritless.

              (l) Failing to Move for Mistrial Based
                  on Implication That Mabior Was
                 “Responsible” for Prior Shooting
   Finally, Mabior argues that his trial counsel was ineffective
in failing to move for a mistrial based on the prosecutor’s mis-
conduct in implying that he was “responsible” for Thok’s prior
shooting. 121 The record refutes this contention. For the reasons
previously explained, the prosecutor’s statements about the
prior shooting were not misconduct. As such, Mabior’s claim
that his trial counsel was ineffective for failing to move for a
mistrial on this basis fails.

             3. State’s Assertion of Plain Error
   [33] The State asserts that the district court committed
plain error in sentencing Mabior to “life without the possibil-
ity of parole,” also stated as “[l]ife, with no parole,” for each
conviction of first degree murder. We agree that the district
court committed plain error here. Mabior was convicted of
two Class IA felonies. 122 Under § 28-105, a Class IA felony
is punishable by life imprisonment, but that statute does not
authorize a sentence of life imprisonment without the possi-
bility of parole. 123 Therefore, a sentence of life imprisonment
“without the possibility of parole” is erroneous, but not void. 124
We therefore modify the sentencing order to reflect a sentence
of life imprisonment for each of Mabior’s convictions for first
degree murder.
121
    Id. at 29.
122
    § 28-303.
123
    State v. Custer, 

, 

 (2015).
124
    

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                      VI. CONCLUSION
   For the reasons stated herein, the record on direct appeal is
insufficient to address several of Mabior’s ineffective assist­
ance of counsel claims on direct appeal. Otherwise, finding
no merit to the arguments raised, we affirm Mabior’s convic-
tions and sentences as modified to correct plain error in the
sentences for his convictions for first degree murder. The
sentencing order shall be modified to state that Mabior is
sentenced to life imprisonment for each conviction for first
degree murder.
                                       Affirmed as modified.
   Cassel, J., concurring.
   Although I join the court’s opinion in full, I write separately
to address the issue of the prosecution’s vouching for law
enforcement’s credibility and for the investigation.
   Here, the vouching issue is presented solely as an issue of
plain error. Bearing in mind that an appellate court will gener-
ally find plain error “only when a miscarriage of justice would
otherwise occur,” 1 I have considerable doubt that vouching
could ever rise to that level. 2 But in a proper case, where a
prosecutor insists on engaging in such conduct and proper
objections are made, reversal could be appropriate.
   Heavican, C.J., and Miller-Lerman, J., join.
1
    State v. Childs, 

, 

 (2021).
2
    See, e.g., State v. McSwine, 

, 

 (2016) (find-
    ing that even if prosecutor’s statements were misconduct, statements were
    not prejudicial and certainly did not amount to plain error).