State v. Britt, No. S-14-551.

CourtSupreme Court of Nebraska
Writing for the CourtWRIGHT, J.
Decision Date22 April 2016
Docket NumberNo. S-14-551.


No. S-14-551.


April 22, 2016



Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Reversed and remanded.

Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, L.L.P., for appellant.

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

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1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination to admit evidence over a hearsay objection.

2. Trial: Evidence. Regardless of whether the proponent or the trial court articulated no theory or the wrong theory of admissibility, an appellate court may affirm the ultimate correctness of the trial court's admission of the evidence under any theory supported by the record, so long as both parties had a fair opportunity to develop the record and the circumstances otherwise would make it fair to do so.

3. Rules of Evidence: Conspiracy. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 2008), a statement is excluded as nonhearsay if it is more likely than not that (1) a conspiracy existed, (2) the declarant was a member of the conspiracy, (3) the party against whom the assertion is offered was a member of the conspiracy, (4) the assertion was made during the course of the conspiracy, and (5) the assertion was made in furtherance of the conspiracy.

4. Conspiracy. The declarant conspirator who partners with others in the commission of a crime is considered the agent of his or her fellow conspirators, and the commonality of interests gives some assurance that the statements are reliable.

5. ___. It is well established that a conspiracy is ongoing--such that statements are considered made during the course of the conspiracy--until the central purposes of the conspiracy have either failed or been achieved.

6. ___. The federal courts and the overwhelming majority of state courts reject any argument that postcrime concealment is implicitly encompassed by the underlying conspiracy.

7. Conspiracy: Hearsay: Rules of Evidence. Absent an express original agreement among the conspirators to continue to act in concert in order to cover up or an independent coverup conspiracy, assertions are not excluded from the hearsay rule when made after the central aim of the conspiracy has ended and while the conspirators were acting in concert to conceal their prior criminal activity.

8. Conspiracy: Hearsay: Time. Every conspiracy is by its very nature secret and extending the conspiracy into the concealment phase by virtue merely of acts of covering up, even though done in the context of a mutually understood need for secrecy, would extend the life of a conspiracy indefinitely and concurrently extend indefinitely the time within which hearsay declarations will bind coconspirators.

9. Conspiracy: Hearsay: Evidence. To exclude statements from the hearsay prohibition under the theory that the declarant and the defendant formed a separate coverup conspiracy, the preponderance of the evidence must establish the separate conspiracy to conceal without relying on the facts of the original conspiracy to commit the underlying crime and without relying entirely on the hearsay statements themselves.

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10. Conspiracy. A separate conspiracy to conceal cannot be implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment after the main objective has succeeded or failed.

11. Conspiracy: Rules of Evidence: Case Disapproved. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), is disapproved insofar as it implies it is "well established" that statements made by a coconspirator in furtherance of avoiding capture or punishment fall under the coconspirator exclusion when the coconspirator is simply attempting to avoid arrest, which is the inevitable course of action following the success or failure of the principal aims of any conspiracy.

12. Conspiracy. A conspirator recounting past transactions or events having no connection with what is being done in promotion of the common design cannot be assumed to represent those conspirators associated with him or her. Such narrative statements are likely to be unreliable and self-serving, because they result from premeditation and design.

13. ___. Where a conspirator is not seeking through his or her statements to induce a listener to join the conspiracy, then the listener's subsequent role in the conspiracy does not retroactively convert the statements into declarations in furtherance of the conspiracy.

14. ___. Statements that further a speaker's own individual objective rather than the objective of a conspiracy are not made in furtherance of the conspiracy.

15. Trial: Hearsay. Alternate theories of admissibility for a statement objected to as hearsay and admitted for the truth of the matter asserted are limited to theories under which the statement would be admissible for the truth of the matter asserted.

16. Trial: Evidence: Appeal and Error. The proponent of evidence who fails to present at trial alternative grounds for the admissibility of the evidence does so at his or her peril. If the record was inadequately developed to support foundation for alternate grounds or the opponent was not fairly given the opportunity to develop facts contrary to admissibility on the alternate grounds, then an appellate court will not affirm the ultimate correctness of the trial court's admission of the evidence under theories presented by the proponent for the first time on appeal.

17. Rules of Evidence: Hearsay. Excited utterances are an exception to the hearsay rule, because the spontaneity of excited utterances reduces the risk of inaccuracies inasmuch as the statements are not the result of a declarant's conscious effort to make them.

18. ___: ___. The justification for the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.

19. Trial: Witnesses: Appeal and Error. It would be inappropriate to attempt to ascertain the declarant's unavailability for the first time on appeal without evidence that the declarant was subpoenaed, that an actual claim of privilege was made, or that there was a ruling by the judge on the claimed privilege.

20. Confessions. While a self-inculpatory statement is more reliable under the theory that reasonable people do not make self-inculpatory statements unless they believe them to be true, the same cannot be said of a non-self-exculpatory statement.

21. Confessions: Presumptions. Statements of accomplices incriminating a defendant have traditionally been viewed with special suspicion and considered presumptively unreliable.

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22. Confessions. Whether a particular remark within a larger narrative is "truly self-inculpatory"--such that a reasonable person would make the statement only if believed to be true--is a fact-intensive inquiry requiring careful examination of all the circumstances surrounding the criminal activity involved.

23. ___. A statement that is in part inculpatory by admitting some complicity, but that is exculpatory insofar as it places the major responsibility on others, does not meet the test of trustworthiness and is thus inadmissible.

24. Criminal Law: Trial: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

25. Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error.

26. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of guilt can be considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless.

27. Convictions: Evidence. Where evidence is cumulative and other competent evidence supports the conviction, improper admission or exclusion of evidence may be harmless.

28. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

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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.


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...

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