State v. Britt

STATE OF NEBRASKA, APPELLEE, v. TIMOTHY J. BRITT, APPELLANT.

No. A-19-531.

NEBRASKA COURT OF APPEALS

May 26, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Affirmed.

Gregory A. Pivovar for appellant.

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

PIRTLE, BISHOP, and WELCH, Judges.

BISHOP, Judge.

I. INTRODUCTION

Following a jury trial, Timothy J. Britt was convicted of one of two counts of third degree assault on a corrections officer; he was found not guilty of the other count. The Douglas County District Court subsequently determined that Britt was a habitual criminal and sentenced him to 40 to 45 years' imprisonment. In this direct appeal, Britt argues the district court erred by overruling his motions to sever and for directed verdict, and by imposing an excessive sentence; he also claims his trial counsel was ineffective in several ways. We affirm.

II. BACKGROUND

The State filed an information on May 10, 2016, and amended informations on June 27 and November 8, charging Britt with two counts of third degree assault on an officer, emergency responder, or health care professional, each a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-931 (Reissue 2016). As amended, Britt was alleged in count I to have assaulted John McNeil on June 19, 2013, and in count II to have assaulted Daniel Widman on September 7. The State also alleged that Britt was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016).

On November 7, 2016, Britt filed a motion to sever the two counts. After a brief hearing, the district court denied Britt's motion, and the matter proceeded to trial that same day.

A jury trial was held on November 7 and 8, 2016. After the jury was selected and sworn in, but before opening statements were given, Britt renewed his motion to sever; his motion was denied. The parties stipulated that on June 19 and September 7, 2013, Britt was lawfully in custody at Douglas County Corrections (DCC) and he was being monitored and supervised by employee officers of DCC engaged in performing their official duties on both respective dates. A summary of the relevant evidence from trial follows.

McNeil testified that he is a DCC officer. On June 19, 2013, he was on duty working in the cell housing unit where Britt was housed. At approximately 9 p.m., McNeil observed Britt sitting at the end of a table without a shirt on, which was against the rules. McNeil repeatedly asked Britt to put a shirt on, but Britt refused. McNeil told Britt to gather his belongings so he could be "locked down" in another unit per DCC procedure. McNeil then called his supervisor and told him he "had one going to lockdown." McNeil subsequently received a phone call stating that Britt was to be locked down inside his own unit, and that Britt's cellmate would be moved to a different location. McNeil went to Britt's cell to inform Britt and his cellmate about what was going to happen. McNeil stated that Britt "came out asking to talk to the sergeant" and "he kind of tried to like push through me through the door." McNeil told Britt to stay in the room, and Britt went back into his cell, sat on his bunk, and "started rummaging through stuff." Next, Britt tried "pushing past" McNeil again, and wanted to talk to a sergeant. When McNeil put his arm up and told Britt that he was not going to talk to a sergeant, "that's when [Britt's] right hand came up towards [McNeil]"; McNeil believed Britt's hand hit his (McNeil's) arm. McNeil stated, "I hit the ground on my back right after that," and then Britt "tr[ied] to mount on top of me to start throwing blows down on top of me." McNeil was able to get ahold of Britt's head, "spin him around," and put him in a headlock until help arrived. Once the other officers arrived and got Britt under control, McNeil saw that Britt had socks wrapped around his hands. As a result of the incident, McNeil had pain, a scratch on his elbow, and he was bleeding from his neck. According to McNeil, the incident was reported to the Douglas County sheriff's office the next day. Angela Olson testified that she was the crime scene investigator from the Douglas County sheriff's office that went to DCC and photographed McNeil's injuries on June 20; the photographs were received into evidence. On cross-examination, McNeil acknowledged that the only punch he recalled was the one where Britt hit his elbow.

Widman testified that he is a DCC officer. On September 7, 2013, he was on duty working in the housing unit where Britt was housed. At approximately 9 p.m., he was doing his rounds for the unit and Britt asked for cleaning supplies. Widman got the supplies and took them to Britt's room. Widman stated, "[Britt] got up off his bunk and punched me in the face"; "they were closed fists strikes to my face." Widman had pain in his face and had blood running down his face. Widman's secondary officer stepped in and Britt was secured in his room. Widman was treated by the jail nurse and then went to the hospital where he was diagnosed with a broken nose and a deviated septum. He later saw an ear, nose, and throat specialist and had to have surgery.

Clinton Skanes is a corporal with DCC. According to his testimony, Skanes and Widman were working in Britt's housing unit on September 7, 2013. Skanes said that around 9 p.m., Widman went to give cleaning products to Britt, and Britt "attacked" Widman. Skanes observed Britt attack Widman "with closed fists towards his face multiple times." Skanes called for assistance and then went over and pulled Britt away from Widman and secured Britt in his room. Skanes observed blood dripping down Widman's face and onto the floor, and Widman's nose appeared to be broken.

Ernest Black was a supervisor on duty at DCC on September 7, 2013. According to his testimony, at approximately 9 p.m., Black responded to a "code blue" in Britt's housing unit. When Black arrived, he observed Widman with a bloody nose that appeared to be broken. Widman reported being assaulted by Britt. Black escorted Widman to medical and then returned to the housing unit. Black spoke with Britt and asked if he needed medical attention; Britt responded in the affirmative stating he had a cut on his hand. Once Britt was in restraints, Black asked Britt what happened. According to Black, Britt said the officer had an attitude problem, but Britt would not comment on how the altercation started.

Debora Dellutri was a nurse in the DCC infirmary on September 7, 2013. She testified that Widman was brought into the infirmary that evening "bleeding profusely from his nose and spitting out blood." Dellutri treated Widman and then sent him to the hospital for facial x rays and a possible CT for a head injury. Dellutri also examined Britt that evening, and cleaned a gash on his right hand.

Dr. Amy Cutright is an emergency physician in the Emergency Medical Department at Nebraska Medicine. Dr. Cutright was on duty on September 7, 2013. She testified that she examined Widman that night and he had swelling over the nose, bruising around both of his eyes, and bleeding from the left side of his nose. Dr. Cutright said that a CT scan confirmed a nose bridge fracture, which "means that his nose bone was broken in several pieces and that several of the pieces had moved from their original orientation."

Mandy Reinart, a deputy with the Douglas County sheriff's office, testified that shortly after 9 p.m. on September 7, 2013, she responded to a call regarding an assault on a DCC officer. She initially went to the emergency room and met Widman to assess his injuries. After gathering information from Widman, Deputy Reinart went to DCC to gather information; she also had contact with Britt. Deputy Reinart had a crime scene investigator with her that took photographs of the scene and of Britt's face and hands; the photographs were received into evidence. Deputy Reinart observed a small cut on the knuckle of Britt's pinky finger.

Leonard Corbett was a sergeant on duty at DCC on September 8, 2013. At approximately 11 p.m. he went into Britt's room to take down window coverings after Britt refused to take them down. Corbett testified that Britt said, "'[W]hy don't you take everyone else's stuff not just mine. You're just mad because one of your boys got his ass kicked last night by me. And you could be next. We old score [sic] here.'"

After the State rested its case, Britt moved to dismiss "both counts, but more particularly Count 1 as it relate[d] to Correctional Officer McNeil," claiming there was insufficient evidence to go to the jury; his motion was overruled. Britt did not offer any evidence and rested his case.

On November 8, 2016, the jury found Britt guilty of count II, the third degree assault on DCC Officer Widman. However, the jury found Britt not guilty of count I, the third degree assault on DCC Officer McNeil. The district court entered judgment accordingly.

After a hearing on January 5, 2017, the district court concluded that Britt was a habitual criminal for purposes of his sentence on his November 8, 2016, conviction. The court then sentenced Britt to 40 to 45 years' imprisonment, with 626 days' credit for time served. The court's written orders were filed on January 6, 2017.

On March 15, 2017, Britt filed a pro se motion for postconviction relief alleging that his trial counsel failed to timely file a direct appeal. In an order filed on May 31, 2019, the district court granted Britt's motion and gave him 30 days to file a new direct appeal.

Britt timely filed his new direct appeal.

III. ASSIGNMENTS OF ERROR

Britt assigns that (1) the trial court erred by overruling his motion to sever, (2) the trial court erred by failing to grant a directed verdict, (3) he received an...