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                       CONCLUSION
   Respondent’s suspension from the practice of law is con-
tinued until January 1, 2014. Should respondent apply for
reinstatement, his application for reinstatement must dem-
onstrate that respondent has paid all delinquent dues to the
Nebraska State Bar Association; has completed at least 10
hours of continuing legal education, including 2 hours of
ethics or professional responsibility instruction, within 12
months immediately preceding the date of respondent’s appli-
cation; has reimbursed his client, Schlecht Construction, all
funds previously paid to respondent as fees; and has paid all
costs assessed against respondent herein. Respondent shall
comply with Neb. Ct. R. § 3-316, and upon failure to do so,
he shall be subject to punishment for contempt of this court.
Respondent is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2012) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60
days after the order imposing costs and expenses, if any, is
entered by the court.
                                    Judgment of suspension.



                      State of Nebraska, appellee, v.
                        Daniel Morgan, appellant.
                                    ___ N.W.2d ___

                      Filed September 20, 2013.      No. S-12-410.

 1.	 Appeal and Error. An alleged error must be both specifically assigned and spe-
     cifically argued in the brief of the party asserting the error to be considered by an
     appellate court.
 2.	 Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
     given by a trial court are correct is a question of law. When dispositive issues on
     appeal present questions of law, an appellate court has an obligation to reach an
     independent conclusion irrespective of the decision of the court below.
 3.	 Effectiveness of Counsel. A claim that defense counsel provided ineffective
     assistance presents a mixed question of law and fact, and, in particular, determi-
     nations regarding whether counsel was deficient and whether the defendant was
     prejudiced are questions of law.
                         Nebraska Advance Sheets
	                                STATE v. MORGAN	557
	                                Cite as 286 Neb. 556

 4.	 Jury Instructions. Whenever an applicable instruction may be taken from the
     Nebraska Jury Instructions, that instruction is the one which should usually be
     given to the jury in a criminal case.
 5.	 Homicide. The absence of a sudden quarrel is not an element of the crime of
     murder in the first degree.
 6.	 Jury Instructions: Proof: Appeal and Error. To establish reversible error from
     a court’s refusal to give a requested instruction, an appellant has the burden to
     show that (1) the tendered instruction is a correct statement of the law, (2) the
     tendered instruction is warranted by the evidence, and (3) the appellant was
     prejudiced by the court’s refusal to give the tendered instruction.
 7.	 Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
     order to raise the issue of ineffective assistance of trial counsel where appellate
     counsel is different from trial counsel, a defendant must raise on direct appeal
     any issue of ineffective assistance of trial counsel which is known to the defend­
     ant or is apparent from the record, or the issue will be procedurally barred on
     postconviction review.
 8.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
     fective 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 suf-
     ficient to adequately review the question.
 9.	 Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
     assistance of counsel claim will not be addressed on direct appeal if it requires an
     evidentiary hearing.
10.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
     of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
     L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance
     was deficient and that this deficient performance actually prejudiced his or
     her defense.
11.	 ____: ____. To show deficient performance, a defendant must show that coun-
     sel’s performance did not equal that of a lawyer with ordinary training and skill
     in criminal law in the area.
12.	 ____: ____. To show prejudice, the defendant must demonstrate reasonable prob-
     ability that but for counsel’s deficient performance, the result of the proceeding
     would have been different.
13.	 Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffec-
     tiveness analysis is viewed with a strong presumption that counsel’s actions were
     reasonable and that even if found unreasonable, the error justifies setting aside
     the judgment only if there was prejudice.
14.	 Effectiveness of Counsel: Proof. In an ineffective assistance of counsel claim,
     deficient performance and prejudice can be addressed in either order. If it is more
     appropriate to dispose of an ineffectiveness claim due to the lack of sufficient
     prejudice, that course should be followed.
15.	 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.
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  Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
  David S. MacDonald, Deputy Scotts Bluff County Public
Defender, for appellant.
  Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
  Cassel, J.
                      I. INTRODUCTION
   Escalating tensions culminated when Daniel Morgan shot
and killed Dominic Marquez outside of Marquez’ home dur-
ing an altercation. Following a jury trial, the district court
convicted Morgan of first degree murder and use of a fire-
arm to commit a felony. In this direct appeal, we first reject
Morgan’s challenges to the step jury instruction relating to
the charge of first degree murder and the court’s refusal to
give a “negative element of ‘sudden quarrel’” instruction. We
reason that (1) we have repeatedly upheld the use of a step
instruction, (2) the elements of first degree murder exclude
any reference to “sudden quarrel,” and (3) the jury’s presumed
adherence to the step instruction precludes any prejudice
regarding the rest of the instruction. We then turn to Morgan’s
four claims of ineffective assistance of counsel, finding the
record insufficient to address two of them and concluding the
others lack merit. Accordingly, we affirm the judgment of the
district court.
                      II. BACKGROUND
   Conflict arose between Morgan and Marquez over Megan
Mitchell, who began dating Morgan in July 2010 after an
earlier relationship with Marquez that resulted in the birth of
a child.
   On May 13, 2011, Morgan’s frustration with Marquez
came to a head. Morgan decided to go to Marquez’ house in
order to talk to Marquez and “kind of force the issue, either
convince him to back off . . . or see . . . if he was going to
                  Nebraska Advance Sheets
	                       STATE v. MORGAN	559
	                       Cite as 286 Neb. 556

back down or start a fight.” Morgan sent Mitchell a text mes-
sage at 12:56 p.m. which stated, “‘I’m going for [Marquez],
that’s my only purpose now, just how it goes.’” At around
1 p.m., Morgan sent Mitchell another text message which
stated, “‘[Marquez’ child] won’t ever know him, I will take
that as a bonus.’”
   Morgan drove his Jeep Grand Cherokee to Marquez’ house.
As Marquez was leaving the house in his Chevrolet Avalanche,
he “ram[med] into” Morgan’s Jeep. Morgan grabbed a firearm
that was underneath his back seat, “chambered a round,” and
fired at Marquez’ Avalanche. Morgan testified that Marquez’
Avalanche was “under power” and next to Morgan’s Jeep
at the time Morgan began firing. When Marquez backed his
Avalanche into Morgan’s Jeep, the Jeep was pushed side-
ways and Morgan was unable to disengage his Jeep from the
Avalanche. Morgan emptied an entire clip while both vehicles
were moving. Morgan reloaded with a second clip and con-
tinued firing in an attempt to get Marquez to “back off.”
Morgan fired approximately 12 rounds of the second clip, but
he still was unable to disengage his Jeep from the Avalanche.
Morgan then got out, walked to the front of his Jeep, and fired
the remainder of the rounds at the Avalanche. At that point,
Marquez “let [Morgan] off enough” that Morgan could get
back in the Jeep and leave.
   Neighbors provided differing accounts of the sequence of
events. One neighbor testified he heard a noise that he thought
was the sound of firecrackers and then saw somebody shoot-
ing a gun out of a vehicle. He then heard a noise that sounded
like metal hitting metal and saw a person get out of the Jeep,
walk around to the front passenger side of the Jeep, and begin
shooting. A different neighbor testified that he heard a scraping
sound and then a series of pops. A third neighbor heard some
popping sounds outside and then heard the crash of two vehi-
cles. She testified that she saw Marquez’ vehicle backing out
of the driveway and “then the other vehicle like rammed in to
where the truck bed would be and like it was kind of pinned.”
She saw a man get out of the vehicle, go around to the front of
Marquez’ vehicle, raise his arm toward Marquez’ windshield,
and then she heard more popping sounds.
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   Morgan testified that all of the shots were fired after the
Avalanche hit his Jeep. He denied planning or intending to
kill Marquez. Rather, he testified that he fired the gun because
Marquez “rammed into [his Jeep] at full speed” and pre-
vented him from leaving. Morgan admitted that he fired toward
the driver’s seat, but he testified that he did not intend to
shoot Marquez in the head. Marquez died of multiple gunshot
wounds. His body had six gunshot wounds to the left side of
the forehead, neck, and chin.
   The jury returned a verdict finding Morgan guilty of first
degree murder and using a firearm to commit a felony. The
district court sentenced Morgan to life imprisonment for the
first degree murder conviction and a consecutive term of 17
to 34 years’ imprisonment for the use of a firearm conviction.
Morgan timely appeals.
                III. ASSIGNMENTS OF ERROR
   Morgan assigns that the district court erred in instructing
the jury by (1) refusing to give his requested instruction on
the negative element of “sudden quarrel” in the second degree
murder instruction; (2) giving a jury instruction that was con-
fusing and that “effectively instructed the jury to not consider”
the lesser-included offenses of second degree murder and
manslaughter; and (3) refusing to give his requested instruc-
tion on the constitutional right to defend self, family, home,
and others.
   [1] Morgan’s brief contains no argument directed toward the
last assignment of error regarding jury instructions. An alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered by
an appellate court.1 Because Morgan did not make an argument
specific to this alleged error, we do not consider it.
   Morgan also assigns that he was denied the effective assist­
ance of trial counsel by counsel’s failure to (1) retain ballistic
and accident reconstruction experts, (2) object to the jury’s
seeing Morgan in shackles, (3) object to the prosecutor’s refer-
ring to the events of the day as “murder,” and (4) object or

 1	
      State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
                        Nebraska Advance Sheets
	                              STATE v. MORGAN	561
	                              Cite as 286 Neb. 556

file a motion in limine to prevent evidence envelopes from
being published to the jury with the word “murder” displayed
on them.

                IV. STANDARD OF REVIEW
   [2] Whether jury instructions given by a trial court are cor-
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.2
   [3] A claim that defense counsel provided ineffective assist­
ance presents a mixed question of law and fact, and, in par-
ticular, determinations regarding whether counsel was defi-
cient and whether the defendant was prejudiced are questions
of law.3

                         V. ANALYSIS
                      1. Jury Instructions
   The step jury instruction given by the court, to which
Morgan objected, was similar to the language of pattern jury
instruction NJI2d Crim. 3.1. Consistent with NJI2d Crim. 3.1,
the instruction given by the court directed the jury to decide
whether the State had proved each element of first degree mur-
der beyond a reasonable doubt and, if so, “then you must find
the defendant guilty of first degree murder and stop.” But if the
jury found that the State had not proved the material elements
of first degree murder, the jury was instructed to proceed to
consider the elements of the lesser-included offenses of second
degree murder and manslaughter.
   [4] The district court did not err in using a step instruction
with language similar to a pattern jury instruction. Although
we have recently found deficiencies in the content of a step
instruction in the circumstances of a particular case,4 we
have consistently rejected challenges to the use of a step

 2	
      State v. Valverde, ante p. 280, ___ N.W.2d ___ (2013).
 3	
      State v. Pittman, 285 Neb. 314, 826 N.W.2d 862 (2013).
 4	
      See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
    Nebraska Advance Sheets
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­instruction.5 Whenever an applicable instruction may be taken
 from the Nebraska Jury Instructions, that instruction is the one
 which should usually be given to the jury in a criminal case.6
 The court did not err in utilizing a step instruction.
    [5] Morgan’s proposed jury instruction on the “negative
 element of ‘sudden quarrel’” has no place in an instruction
 on first degree murder. Under the relevant portion of Neb.
 Rev. Stat. § 28-303 (Reissue 2008), a person commits murder
 in the first degree if he or she kills another person purposely
 and with deliberate and premeditated malice. Thus, the three
 elements which the State must prove beyond a reasonable
 doubt to obtain a conviction for first degree murder are that
 the defendant (1) killed another person, (2) did so purposely,
 and (3) did so with deliberate and premeditated malice.7 The
 absence of a sudden quarrel is not an element of the crime of
 murder in the first degree. Because the absence of a sudden
 quarrel is not an element of the crime, the court did not err in
 refusing to include it as an element in the instruction given to
 the jury.
    [6] The district court’s refusal to give Morgan’s proposed
 jury instruction in the balance of the step instruction could
 not be reversible error, because Morgan suffered no prejudice.
 To establish reversible error from a court’s refusal to give a
 requested instruction, an appellant has the burden to show that
 (1) the tendered instruction is a correct statement of the law, (2)
 the tendered instruction is warranted by the evidence, and (3)
 the appellant was prejudiced by the court’s refusal to give the
 tendered instruction.8 Morgan’s proposed instruction included
 under second degree murder that he “did so intentionally, but
 without premeditation” and that he “did not do so as the result
 of a sudden quarrel.” But the jury did not need to consider the
 elements of second degree murder, because it concluded that
 the State had proved the elements of first degree murder. In

 5	
      See, e.g., State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012); State
      v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
 6	
      State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
 7	
      Id.
 8	
      State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).
                        Nebraska Advance Sheets
	                             STATE v. MORGAN	563
	                             Cite as 286 Neb. 556

State v. Alarcon-Chavez,9 we concluded that a step instruction
could not have been prejudicial, because the jury convicted the
defendant of first degree murder; thus, the jury did not reach
the differences between second degree murder and manslaugh-
ter upon a sudden quarrel. We reach the same conclusion in
the case before us. Because the jury convicted Morgan of first
degree murder, the jury properly did not proceed to consider
the elements of second degree murder. Thus, Morgan was not
prejudiced and his substantial rights were not affected by the
remainder of the step instruction. Although at oral argument
the State suggested that we should nonetheless opine on the
correctness of the second degree murder instruction, we find
it unnecessary to do so in resolving the case before us and
decline the State’s invitation.
                    2. Claims of Ineffective
                     Assistance of Counsel
   [7] Because different attorneys represented Morgan at trial
and on direct appeal, he must now assert any known or appar-
ent claims of ineffective assistance of counsel. Under Nebraska
law, in order to raise the issue of ineffective assistance of trial
counsel where appellate counsel is different from trial counsel,
a defendant must raise on direct appeal any issue of ineffective
assistance of trial counsel which is known to the defendant
or is apparent from the record, or the issue will be procedur-
ally barred on postconviction review.10 Morgan raises four
instances of alleged ineffective assistance of counsel, which
we discuss below.
   [8,9] 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.11 An
ineffective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing.12 As

 9	
      State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
10	
      State v. Watt, supra note 6.
11	
      Id.
12	
      Id.
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discussed below, the record is not sufficient to address two of
Morgan’s claims.
   [10-14] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,13 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.14
To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law in the area.15 To
show prejudice, the defendant must demonstrate reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.16 The entire
ineffectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found
unreasonable, the error justifies setting aside the judgment only
if there was prejudice.17 Deficient performance and prejudice
can be addressed in either order. If it is more appropriate to
dispose of an ineffectiveness claim due to the lack of sufficient
prejudice, that course should be followed.18
   We now address each claim of ineffectiveness raised by
Morgan.

                 (a) Failure to Retain Experts
   Morgan asserts that counsel performed deficiently by failing
to retain an expert who could have provided a scientific basis
for Morgan’s explanation of events, i.e., the firing of certain
shots, where the shots originated, and the sequence of events.
He argues that an accident reconstructionist and a ballistics
expert could have explained certain matters to support the
defense theory. The parties agree—as do we—that the record

13	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
14	
      State v. Watt, supra note 6.
15	
      Id.
16	
      Id.
17	
      Id.
18	
      Id.
                          Nebraska Advance Sheets
	                                  STATE v. MORGAN	565
	                                  Cite as 286 Neb. 556

is insufficient to review this claim. We make no comment
whether Morgan’s allegations regarding this claim would be
sufficient to require an evidentiary hearing in the context of a
motion for postconviction relief. We simply decline to reach
this claim on direct appeal, because the record is insufficient
to do so.
                (b) Failure to Object to Shackles
   Prior to trial, the district court ordered that Morgan “shall
appear at all times in the presence of prospective jurors in
civilian clothing and without shackles.” Morgan argues that
his counsel performed deficiently by failing to object to the
jury’s seeing Morgan brought to court every day in shackles.
The record contains no information regarding any circum-
stances where the jury may have seen Morgan in shackles.
Once again, we make no comment on the sufficiency of the
allegation in the context of a motion for postconviction relief.
We agree with the parties that the record is insufficient to
review this claim on direct appeal. Accordingly, we do not
reach it.
                    (c) Failure to Object to
                      “Murder” Reference
   During the State’s cross-examination of Morgan, the pros-
ecutor asked the following question: “And you maintained that
relationship from that point until May 13th, the time of the
murder?” Defense counsel did not object. Morgan argues, “In
such a context it was presumptuous, inflammatory[,] and con-
clusory and invaded the province of the jury to decide if it was
[m]urder, [m]anslaughter, or self defense.”19
   [15] Morgan cannot establish prejudice by counsel’s failure
to object, because the jury was instructed that statements or
questions by the attorneys are not evidence. Instruction No. 1
stated in part that “what the attorneys say is not evidence.”
Instruction No. 5 provided a list of things that are not evi-
dence, the first of which was “[s]tatements, arguments, and
questions of the lawyers for the parties in this case.” Absent

19	
      Brief for appellant at 27.
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566	286 NEBRASKA REPORTS



evidence to the contrary, it is presumed that a jury followed
the instructions given in arriving at its verdict.20 Because we
must presume that the jury followed the instructions and did
not treat counsel’s fleeting reference to “murder” as evidence,
Morgan cannot demonstrate a reasonable probability that the
result of the proceeding would have been different if counsel
had objected.
           (d) Failure to Prevent Evidence Envelopes
               From Being Published With Word
                       “Murder” Displayed
   Morgan contends that counsel was ineffective in failing
to file a motion in limine or to object at trial to prevent the
evidence envelopes for certain exhibits from being published
to the jury with the word “murder” printed on them. Morgan
contends that “[i]t amounted to [a] repetitive drum beat by the
police of ‘Murder,’ ‘Murder,’ ‘Murder.’ Twenty nine times.”21
   Again, Morgan cannot demonstrate a reasonable probability
that the result of the proceeding would have been different if
counsel had filed a motion in limine or objected. The evidence
envelopes were marked with a description of the contents, loca-
tion where the evidence was found, the investigator or investi-
gators who recovered the evidence, Morgan’s name, Marquez’
name, and the word “murder.” Law enforcement officers used
“murder” in a general sense to refer to an unlawful killing that
they were investigating rather than in a technical or legal sense.
And the jury was instructed in part: “The fact that the state has
brought these charges is not evidence of anything. The charges
are simply an accusation, nothing more.” Further, the jury was
instructed that it could return one of four verdicts: guilty of
first degree murder, guilty of second degree murder, guilty of
manslaughter, or not guilty. Again, we presume that the jury
followed the instructions given by the court.22 Like the charges
brought by the State, law enforcement’s placement of the word
“murder” on its evidence envelopes during its investigation is

20	
      State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
21	
      Brief for appellant at 27.
22	
      See State v. Sandoval, supra note 20.
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	                                STATE v. MUHANNAD	567
	                                 Cite as 286 Neb. 567

not evidence of anything. We conclude that Morgan has not
established prejudice by counsel’s failure to object or to other-
wise keep the evidence envelopes from being published to the
jury with the word “murder” on them.
                       VI. CONCLUSION
   We conclude that there was no prejudicial error in the dis-
trict court’s giving of the step jury instruction or in its refusal
to give Morgan’s proposed instruction. We further conclude
that two of Morgan’s claims of ineffective assistance of coun-
sel are without merit, but that the record is insufficient to
review the other two claims.
                                                       Affirmed.


                      State of Nebraska, appellee, v.
                       Wa’il Muhannad, appellant.
                                     ___ N.W.2d ___

                       Filed September 20, 2013.      No. S-13-042.

 1.	 Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent: Appeal and
      Error. While the denial of a plea in bar generally involves a question of law, an
      appellate court reviews under a clearly erroneous standard a finding concerning
      the presence or absence of prosecutorial intent to provoke the defendant into
      moving for a mistrial.
 2.	 Double Jeopardy. Traditionally, the Double Jeopardy Clause has been viewed
      as safeguarding three interests of defendants: (1) the interest in being free from
      successive prosecutions, (2) the interest in the finality of judgments, and (3) the
      interest in having the trial completed in front of the first tribunal.
 3.	 Constitutional Law: Double Jeopardy. The constitutional protection against
      double jeopardy does not mean that every time a defendant is put to trial before
      a competent tribunal, the defendant is entitled to go free if the trial fails to end in
      a final judgment.
  4.	 ____: ____. Balanced against a defendant’s interests in having a trial completed
      in front of the first tribunal is society’s right to one full and fair opportunity to
      prove the defendant’s guilt.
  5.	 ____: ____. When society is deprived of its right to attempt to prove a defend­
      ant’s guilt in a single prosecution because of a trial error, the interests of soci-
      ety in vindicating its laws generally outweigh the double jeopardy interests of
      the defendant.
 6.	 Double Jeopardy: Motions for Mistrial. It is the general rule that where a court
      grants a mistrial upon a defendant’s motion, the Double Jeopardy Clause does not
      bar a retrial.
