State v. Britt, 090321 NESC, S-21-107

CourtSupreme Court of Nebraska
JudgeMiller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Heavican, C.J., and Freudenberg, J., not participating.
Writing for the CourtCASSEL, J.
PartiesState of Nebraska, appellee, v. Timothy J. Britt, appellant.
Docket NumberS-21-107

310 Neb. 69

State of Nebraska, appellee,

v.

Timothy J. Britt, appellant.

No. S-21-107

Supreme Court of Nebraska

September 3, 2021

1.

Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

2. Postconviction: Constitutional Law: Judgments. Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.

3. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

4. ___: ___: .A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the U.S. or Nebraska Constitution.

5. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

6. Postconviction: Appeal and Error. When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that would support the claim and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.

[310 Neb. 70] 7. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

8. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order.

9. Self-incrimination: Juries: Rules of Evidence. Neb. Rev. Stat. § 27-513(2) (Reissue 2016) makes it clear that courts must avoid having witnesses claim privilege in the presence of the jury whenever practicable.

10. Trial: Courts: Witnesses: Self-incrimination. Absent extraordinary circumstances, trial courts should exercise their discretion to forbid parties from calling witnesses who, when called, will only invoke a privilege.

11. Witnesses: Impeachment: Prior Statements. Prior inconsistent statements of a witness are admissible as impeachment evidence.

12. Rules of Evidence: Prior Statements. Prior inconsistent statements of a witness are not admissible as substantive evidence, unless they are otherwise admissible under the Nebraska Evidence Rules.

13. Postconviction: Appeal and Error. In an appeal from the denial of postconviction relief, an appellate court will not consider for the first time on appeal claims that were not raised in the verified motion.

14. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

15. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal; absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.

16. Postconviction: Courts. The Nebraska Postconviction Act does not authorize the district court to grant postconviction relief without first [310 Neb. 71] conducting an evidentiary hearing and making findings of fact and conclusions of law.

Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge.

Timothy J. Britt, pro se.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

CASSEL, J.

I. INTRODUCTION

Timothy J. Britt appeals from a district court's order-without an evidentiary hearing-overruling his motion for postconviction relief. Britt argues that he received ineffective assistance of counsel by his counsel's failure to call impeachment witnesses. However, one witness' testimony would have been inadmissible and there is not a reasonable probability that the other witnesses' testimony would have altered the outcome of the case. Therefore, Britt cannot prove that he suffered prejudice. We affirm.

II. BACKGROUND

This is Britt's third appearance before this court addressing the criminal case below-a first direct appeal, [1] a second direct appeal, 2 and now this appeal regarding postconviction relief. The factual background relating to Britt's procedural history is set forth in more detail in our opinion involving Britt's second direct appeal.3 Here, we provide only a brief summary.

[310 Neb. 72] 1. First Trial

The State charged Britt with three counts of first degree murder (Class IA felony), Neb. Rev. Stat. § 28-303(1) and (2) (Reissue 2008); three counts of use of a deadly weapon (gun) to commit a felony (Class IC felony), Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016); and one count of possession of a deadly weapon (gun) by a prohibited person (Class ID felony), Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Reissue 2016). The State also charged that Britt met the definition of a "habitual criminal" as described in Neb. Rev. Stat. § 29-2221 (Reissue 2016).

Britt's charges resulted from the death of Miguel E. Avalos, Sr. (Avalos), and two of his sons, Jose Avalos and Miguel E. Avalos, Jr., in their Omaha, Nebraska, home during an attempted nighttime robbery. Each of them was shot multiple times and died from .40- and .22-caliber gunshot wounds. A, 40-caliber gun was recovered at the scene.

The State contended that Anthony Davis and Britt were coconspirators who killed the three victims during Davis' and Britt's attempt to rob Avalos' home. A jury found Britt guilty on all counts.

Britt appealed. We ordered a new trial after we determined that the district court had reversibly erred when it admitted Davis' hearsay statements implicating Britt in the murders.4

2. Second Trial

The State retried Britt on the same charges, presenting essentially the same arguments, witnesses, and forensic evidence. While many witnesses identified Britt as participating in the robbery, an important witness was Tiaotta Clairday-Davis' off-and-on girlfriend who transported Britt and him after the robbery. Our opinion regarding Britt's direct appeal summarized Clairday's testimony5 We stated in part: [310 Neb. 73] Clairday testified that [on the night of the robbery] she began receiving several messages from Davis around 4:30 a.m. Davis told Clairday in "hushed tones" that he needed her to pick him up. Clairday recalled that Davis sounded agitated and frustrated. When Clairday arrived in a borrowed Buick Regal, Davis entered the front seat. Clairday asked Davis why he had called her to pick him up. Davis stated that Britt needed to come along with them too, because Britt had a gun. Clairday had met Britt once before, but she did not know him and did not want him in her vehicle. She and Davis argued briefly before Britt entered the vehicle. Clairday questioned Britt, and Britt handed his .22-caliber revolver to Clairday.

Clairday stopped at a gas station and then proceeded to the apartment of her friend, Larry Lautenschlager, in Council Bluffs. At the apartment, Davis and Britt waited near the door as Clairday gave the .22-caliber revolver to Lautenschlager and asked him to get rid of it. Clairday also requested a change of clothing for both Davis and Britt, and then she took Davis to the bathroom to talk. Clairday testified that Davis was mumbling, appeared scared, and had apparently soiled himself. Clairday helped Davis change his clothes and noticed that he had blood on his shoe. After Clairday left the bathroom, she walked outside and observed Britt burning a pair of gloves on a grill.

Clairday transported Davis and Britt to Davis' apartment. She accompanied Davis upstairs, while Britt remained downstairs. Davis wanted to leave town, so Clairday helped him pack a bag. She also continued to speak with Davis, who still appeared scared. They finished packing and went downstairs to load the vehicle.

Clairday, Davis, and Britt then drove to [Greg] Logemann's apartment. Davis went inside alone. Back in the vehicle, Clairday asked Britt what was wrong with Davis, but Britt did not respond. When Davis [310 Neb. 74] returned, Clairday drove to a restaurant in Council Bluffs. Thereafter, she drove to the apartments behind another restaurant and waited in the vehicle while Davis and Britt went inside. Davis returned alone. Clairday testified that...

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