State v. Britt, No. S–14–551.
| Court | Supreme Court of Nebraska |
| Writing for the Court | Wright, J. |
| Citation | 293 Neb. 381,881 N.W.2d 818 |
| Parties | State of Nebraska, appellee, v. Timothy J. Britt, Appellant. |
| Docket Number | No. S–14–551. |
| Decision Date | 22 April 2016 |
293 Neb. 381
881 N.W.2d 818
State of Nebraska, appellee,
v.
Timothy J. Britt, Appellant.
No. S–14–551.
Supreme Court of Nebraska.
Filed April 22, 2016.
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, L.L.P., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.
Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ., and Irwin and Bishop, Judges.
Wright, J.
I. NATURE OF CASE
Timothy J. Britt was convicted on three counts of first degree murder, three counts of use of a deadly weapon to commit a felony, and one count of possession of a deadly weapon by a prohibited person. These convictions were based in part upon the testimony of several witnesses as to statements made by an alleged coconspirator, Anthony Davis, after the murders. Britt appeals, arguing that the trial court erred in overruling his hearsay objections to these statements.
II. BACKGROUND
Britt's convictions arose out of the deaths of Miguel E. Avalos, Sr. (Miguel Sr.); Jose Avalos; and Miguel E. Avalos, Jr. (Miguel Jr.) Davis was convicted in a separate trial of three counts of first degree murder and three counts of use of a deadly weapon to commit a felony arising from the deaths of the same victims.1 At the time of Britt's trial, Davis was awaiting sentencing.
1. Attempted Robbery
In the early morning hours of July 9, 2012, Miguel Sr., Jose, and Miguel Jr. were shot and killed during an attempted robbery of their house near the intersection of Ninth and Bancroft Streets in Omaha, Nebraska. At the time of the robbery, Miguel Sr.'s oldest son was living in the basement of the house with his wife and infant child. This son heard the shots and hid with his family. He testified that he believed he heard more than one intruder.
Miguel Sr. was a known drug dealer. Before Miguel Sr.'s death, a confidential informant, Greg Logemann, told police about Miguel Sr.'s drug dealings. Logemann was also a drug dealer and was friends with Davis. Britt's brother, Mike Britt, was also a friend of Davis.
Logemann testified that in early July 2012, he and Davis began plans to rob Miguel Sr. In exchange for his testimony at trial, Logemann was granted limited use immunity and not charged with the murders. Logemann was charged with criminal conspiracy to commit robbery, a Class II felony.
Logemann stated he thought Miguel Sr. would “be an easy lick.” But there was no talk about killing anyone. The plan was that he would show Davis where Miguel Sr. lived and that Davis would then commit the robbery. Davis and Logemann agreed to split the profit from the robbery with “[w]hoever [Davis] took with him” to commit the robbery.
On the evening of July 8, 2012, Davis and Logemann put their plan into action. Davis got a ride from his friend, Crystal Branch, and her roommate, Charice Jones. Both Branch and Jones testified at trial, and both were granted immunity in exchange for their testimony. Branch, who was driving her van, and Jones picked up Davis at his apartment. Britt's brother, Mike, was there, and Branch, Jones, Davis, and Mike left the apartment to pick up Logemann. According to Jones, they dropped Mike off before picking up Logemann, and Britt joined them in the van at that time.
Logemann testified Britt was in the van when he was picked up. But according to Branch, Mike—not Britt—was with them when they picked up Logemann and drove by the house on Ninth and Bancroft Streets. Logemann's participation in the robbery was to “show [Davis] where to go later on.” Logemann, Branch, and Jones testified that, at Logemann's direction, they drove by a house in the area of Ninth
and Bancroft Streets, which Logemann identified as Miguel Sr.'s house.
When they drove by Miguel Sr.'s house, Branch and Jones were in the front seats listening to music and drinking beer. Davis, Logemann, and the third person (being either Britt or Mike) sat in one of the back bench seats. Logemann sat near Britt (or Mike) and Davis in the van while Logemann discussed the planned robbery with Davis. Logemann's testimony regarding the specific details of the discussion was unclear.
Logemann, Branch, and Jones testified that Jones drove Logemann back to his apartment. According to Branch, they next dropped off Mike and picked up Britt.
Branch and Jones testified that shortly after dropping off Logemann, Davis and Britt went to the house where Branch and Jones lived. Branch and Jones testified that they all drank alcohol. Jones ingested methamphetamine, and Branch smoked marijuana.
Branch and Jones testified that in the early morning hours of July 9, 2012, Davis asked them to drive him and Britt back to the area of Ninth and Bancroft Streets. Branch and Jones
agreed and testified that the van contained only Branch, Jones, Davis, and Britt.
Once at Ninth and Bancroft Streets, Britt asked for the keys to the van and directed Branch and Jones to get in the back seat, which they did. Branch and Jones testified that Davis and Britt then left the van. Branch and Jones sat in the back of the van drinking alcohol and playing on their cell phones. Davis returned after approximately 5 minutes. He silently got into the van and said nothing. About 5 minutes later, Britt returned to the van and drove them back to Branch's house.
Branch testified that Britt ran back to the van, wearing a bandanna over his face and gloves on his hands. Jones stated that she did not notice Britt wearing a bandanna and gloves, and believed that she would have noticed if Britt had been wearing such items upon his return. Jones did not say that Britt ran to the van. No one saw Davis or Britt with a weapon. Upon arrival Britt said, “[D]id you hear anything”?
Logemann testified that Branch and Jones knew about the robbery and, “[a]s far as I know,” they were “in on the cut of the action.” Branch and Jones stated they believed Davis was going to buy drugs from whoever lived in the house and believed they had driven by the first time because the dealer was not home. Jones thought Britt had asked for her keys before going into the house on Ninth and Bancroft Streets because she had been drinking.
2. Police Investigation
During this same general timeframe, officers from the Omaha Police Department received a 911 emergency dispatch call reporting a shooting at the Avalos house. Upon arriving at the house, the officers discovered an older male, later identified as Miguel Sr., and two teenage males, later identified as Jose and Miguel Jr., lying in pools of blood on the floor. Miguel Sr. was found in the dining room, Jose was in the hallway, and Miguel Jr. was in his bedroom. All three victims had suffered multiple gunshot wounds to the head and/or chest.
It was determined that the shots had been fired by at least two guns—one shooting .22–caliber bullets, and another shooting .40–caliber bullets. Spent shell casings from .40–caliber bullets were found in the living room, dining room, and bedrooms. Jose was pronounced dead at the scene; Miguel Sr. and Miguel Jr. were
taken to an Omaha hospital, where they subsequently died from their injuries.
The police confiscated various items from the house, including a .40–caliber semiautomatic handgun, methamphetamine, and over $5,000 in cash. The .40–caliber semiautomatic handgun was found on the floor in Miguel Sr.'s bedroom, which was in disarray. The DNA testing of the semiautomatic handgun was inconclusive as to Davis and Britt. They could neither be included nor excluded as having contributed DNA to the gun. The Avalos house was tested for fingerprints, but the only usable print recovered was that of Miguel Jr.
Logemann initially denied knowing anything about the murders. On July 20, 2012, Logemann told the police about the conspiracy to rob Miguel Sr., and the police thereafter contacted Branch and Jones. Initially, Branch and Jones were untruthful, but eventually reported to the police Davis' and Britt's movements on July 8 and 9.
The police also contacted Tiaotta Clairday, Davis' girlfriend, who provided information about Davis' and Britt's actions in the days following the murders. With Clairday's assistance, the police retrieved a .22–caliber revolver from a culvert near Ashland, Nebraska. Clairday reported that the gun came from Britt. Comparisons of the revolver to the .22–caliber bullets recovered during the autopsies were inconclusive. Logemann stated that before July 8, 2012, he had seen Davis with a .22–caliber revolver in the basement of Davis' apartment.
3. Period During Which Davis and Britt Avoided Apprehension
Britt was not apprehended until July 25, 2012. Before his apprehension, Britt stayed at the house where Branch and
Jones lived. Branch, Jones, Clairday, and Logemann testified about numerous statements made by Davis following the murders and preceding Britt's arrest. Davis did not testify at trial.
Over Britt's hearsay objection, the trial court admitted Davis' statements as nonhearsay statements by a coconspirator under Neb.Rev.Stat. § 27–801(4)(b)(v) (Reissue 2008). The court apparently relied on State v. Gutierrez2 for the proposition that the conspiracy does continue during the period of concealment after the principal aims of a conspiracy. The court did not find that Davis and Britt had formed a new coverup conspiracy.
(a) Branch
Branch testified that at approximately 4 a.m., she, Jones, Davis, and Britt arrived back at the house she shared with Jones. She witnessed Davis and Britt having an argument half a block from the house and before Davis and Britt came inside.
Once in the house, Davis went to the bathroom and appeared to be sick. Britt sat on the couch and was silent. When Davis reemerged from the bathroom, he said he was trying to find a ride to get home. Eventually, Clairday arrived to pick up Davis and Britt, and they left.
A couple of hours later, Branch saw on the news reports of a triple homicide near Ninth and...
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State v. Graham, SC 20447
...and neither party, on appeal, disputes the trial court's finding that Moye was unavailable. [2] The defendant relies on State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), a case decided by the Nebraska Supreme Court, in support of his argument that Moye's statement should not have been ad......
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State v. Burries, No. S-15-1008.
...282 Neb. 500, 805 N.W.2d 290 (2011).90 Neb. Rev. Stat. § 27-803(1) (Reissue 2016).91 See, e.g., Smith , supra note 62.92 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).93 Id.94 Id.95 See State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).96 Id.97 Britt , supra note 92.98 Hale , supra no......
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State v. Clifton, No. S-15-1167.
...State v. Johnson , supra note 16.21 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), disapproved on other grounds, State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).22 Jacox v. Pegler , supra note 19, 266 Neb. at 418, 665 N.W.2d at 614 (quoting Batson v. Kentucky , supra note 1).2......
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State v. Jennings, No. S-18-1186.
...35.48 See U.S. v. Sells , supra note 36, 463 F.3d at 1152.49 State v. Thompson , supra note 9.50 Id. 51 Id. 52 Id. 53 State v. Britt , 293 Neb. 381, 881 N.W.2d 818...
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State v. Graham, SC 20447
...and neither party, on appeal, disputes the trial court's finding that Moye was unavailable. [2] The defendant relies on State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), a case decided by the Nebraska Supreme Court, in support of his argument that Moye's statement should not have been ad......
-
State v. Burries, No. S-15-1008.
...282 Neb. 500, 805 N.W.2d 290 (2011).90 Neb. Rev. Stat. § 27-803(1) (Reissue 2016).91 See, e.g., Smith , supra note 62.92 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).93 Id.94 Id.95 See State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).96 Id.97 Britt , supra note 92.98 Hale , supra no......
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State v. Clifton, No. S-15-1167.
...State v. Johnson , supra note 16.21 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), disapproved on other grounds, State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).22 Jacox v. Pegler , supra note 19, 266 Neb. at 418, 665 N.W.2d at 614 (quoting Batson v. Kentucky , supra note 1).2......
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State v. Jennings, No. S-18-1186.
...35.48 See U.S. v. Sells , supra note 36, 463 F.3d at 1152.49 State v. Thompson , supra note 9.50 Id. 51 Id. 52 Id. 53 State v. Britt , 293 Neb. 381, 881 N.W.2d 818...