State v. Britt

305 Neb. 363

940 N.W.2d 270

STATE of Nebraska, appellee,

v.Timothy J. BRITT, appellant.

No. S-18-557.

Supreme Court of Nebraska.

Filed March 27, 2020

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.

Timothy J. Britt, pro se.

Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop and Arterburn, Judges.

Miller-Lerman, J.

NATURE OF CASE

Following this court’s reversal of his convictions in State v. Britt , 293 Neb. 381, 881 N.W.2d 818 (2016), Timothy J. Britt was retried in Douglas County District Court and convicted of 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. Britt appeals and claims that the district court erred when it admitted crime scene and autopsy photographs over his objection and violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution when it allowed the State to present its case at trial without the testimony of a separately tried alleged coconspirator, Anthony Davis. We find no merit to Britt’s assignments of error and, accordingly, affirm his convictions and sentences.

STATEMENT OF FACTS

The charges in this case arise from the July 9, 2012, deaths 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 apparent attempted robbery. Each of them was shot multiple times, and each died as a result of his wounds.

Avalos’ oldest son, Francisco Avalos, was in the home in a downstairs bedroom with his wife and baby at the time the three victims were shot upstairs. He testified at trial that he woke up to the sound of gunshots. He locked the door to the bedroom, called the 911 emergency dispatch service, and while remaining on the telephone, heard more than one person come halfway down the stairs leading to the basement. He testified that a male voice unknown to him said "let’s go," and he heard footsteps of multiple people running across the floor upstairs.

Police responded to Avalos’ home around 3:45 a.m. and observed signs of forced entry at one of the entrances to the residence. A section of the doorjamb on the door to the north side of the residence was missing, and its strike plate was found lying at the bottom of the basement stairs, along with a wood screw. A second wood screw was found lying on the tile in the entryway near the door.

Inside Avalos’ bedroom, police discovered methamphetamine, drug records, drug paraphernalia, over $5,000 in cash, and a defaced .40-caliber semiautomatic pistol. Several .40-caliber bullets were also recovered from various locations inside the residence. Bullets recovered from the victims’ bodies were consistent with .22- and .40-caliber firearms.

The State contends that the three victims were killed by Davis and Britt during an attempted robbery. Avalos had been a known drug dealer. A plan to rob him originated with Greg Logemann, a drug dealer who resided in Council Bluffs, Iowa. Logemann testified for the State pursuant to several immunity agreements. Logemann was introduced to Avalos by Logemann’s brother-in-law, who was Avalos’ coworker. Logemann knew Avalos sold methamphetamine and, in mid-2012, approached Davis, a fellow drug dealer, about robbing Avalos. Logemann had known Davis for 20 years and had discussed robberies with him in the past. Logemann believed Avalos was an easy target and might have "[m]oney and dope." Logemann advised Davis that the best time to rob Avalos was between 4 and 5 a.m., because Avalos would likely be going to work. Logemann testified that he was not aware of any children living in Avalos’ home. Logemann did not intend to participate in the robbery, and he and Davis planned to divide the proceeds among themselves and others who would help execute the robbery.

On the night of July 8, 2012, Charice Jones, the roommate of Davis’ friend, Crystal Branch, drove Davis, Logemann, and Branch to the area of 9th and Bancroft Streets where Logemann identified Avalos’ home for Davis. A third male accompanied the group on this trip, and he was identified in the testimony as either Britt or another man named "Mike."

Later that night, Branch, Jones, Davis, and Britt returned to Branch’s home where they remained for several hours using drugs and drinking alcohol. Britt was sitting on the couch "really quiet." The group remained at the residence until Davis said it was time to go. Davis asked Jones to drive him, Britt, and Branch back to the area of Avalos’ home. According to Branch, Britt told Jones where to park down the street from Avalos’ home, took possession of Jones’ car keys, and told Branch and Jones to get in the back seat. Branch and Jones complied, and Davis and Britt walked north up 9th Street toward Avalos’ home. Branch and Jones testified that they assumed the two men were going to buy more drugs.

Branch claimed that about 5 minutes later, Davis returned to the front passenger seat of the vehicle without saying a word. Branch did not see any weapons in Davis’ possession. A few minutes after Davis returned, Britt came running back, entered the vehicle, and sat in the driver’s seat. According to Branch, Britt wore gloves and a bandanna over his face. Britt drove "[f]ast" and "straight back" to Branch’s home.

As soon as Davis, Britt, Branch, and Jones arrived at Branch’s home, Davis and Britt left the vehicle and walked to the end of the block to argue about something. After returning, Davis "looked sick" and went to the bathroom, where it "sounded like he was getting sick" according to Branch. Britt sat silently on the couch in the living room. When Davis emerged from the bathroom, he asked Branch for her address because "[h]e was trying to find a ride." At around 4 a.m., Davis began calling and sending text messages to his ex-girlfriend, Tiaotta Clairday. Branch testified that she spoke on a cell phone with an unknown woman to whom she provided directions to her home for Davis. An "older" gray or silver "Cutlass or Regal" pulled up, and Davis and Britt left together in it.

Clairday testified that 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 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 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 after this point, Davis appeared scared and was crying as he related to her why he had called her in the middle of the night and what had happened. Clairday then dropped Davis off at his apartment.

After Branch and Jones observed television news reports about the shootings the morning of July 9, 2012, Branch recognized the area of the crime and became concerned. Davis agreed to meet with Branch and Jones in Council Bluffs. After going to several different addresses given to them by Davis, they met with him later in the day on July 9. When they arrived at the final address, Davis sat in their vehicle and took their cell phones to search them and make sure they were not "trying to set him up." Davis, Branch, and Jones discussed what Branch and Jones saw on the news, and then Davis returned their cell phones. Branch and Jones expressed concern for their safety, and Branch felt that she and her children needed to get out of town. Following this conversation, and without an invitation, Britt began living with Branch and Jones and went everywhere they went. He lived in the basement with Jones for "[p]robably a month or better." The women never called police about their concerns.

A few days after the murders, Clairday drove out to the country near Ashland, Nebraska, where she disposed of several items, including the .22-caliber revolver. She asked Lautenschlager to drive her to a lake north of Ashland. Clairday exited the vehicle alone and, after waiting for Lautenschlager to drive out of sight, threw the revolver into a culvert. The revolver was wrapped up in a tank top secured by a headband. A crime laboratory...