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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
State of Nebraska, appellee, v.
Timothy J. Britt, appellant.
___ N.W.2d ___
Filed September 3, 2021. No. S-21-107.
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 postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute 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 defend
ant’s rights under the U.S. or Nebraska Constitution.
5. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions 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 post-
conviction 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.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
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 perform
ance was deficient and that this deficient performance actually preju-
diced the defendant’s defense. To show prejudice under the prejudice
component of the Strickland test, the defendant must demonstrate a rea-
sonable probability that but for his or her counsel’s deficient perform
ance, the result of the proceeding would have been different. A reason-
able 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 hav-
ing 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 state-
ments 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 sup-
ply 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
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
conducting an evidentiary hearing and making findings of fact and con-
clusions of law.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
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—with-
out an evidentiary hearing—overruling his motion for postcon-
viction relief. Britt argues that he received ineffective assist
ance 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 preju-
dice. We affirm.
II. BACKGROUND
This is Britt’s third appearance before this court address-
ing 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.
1
See State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
2
See State v. Britt, 305 Neb. 363, 940 N.W.2d 270 (2020).
3
See id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
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 pos-
session 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 evi-
dence. 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 summa-
rized Clairday’s testimony. 5 We stated in part:
4
See Britt, supra note 1.
5
See Britt, supra note 2.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
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’ apart-
ment. 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 fin-
ished 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
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
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.
....
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
technician testified about her understanding to the effect
that following Clairday’s arrest, she led law enforce-
ment to the hiding place where officers recovered the
revolver, which was rusty and dirty and had a grip that
was wrapped in black electrical tape. 6
The jury found Britt guilty of all charges. After the court
found that Britt met the definition of a “habitual criminal”
within the meaning of § 29-2221, it sentenced Britt to life
imprisonment on the murder convictions and lengthy terms
of imprisonment on the weapons convictions. Represented by
his trial counsel, Britt unsuccessfully appealed his convictions
and sentences. 7
3. Postconviction
Britt filed a timely pro se motion for postconviction relief. 8
Britt also moved for counsel to be appointed to represent
6
Id. at 367-69, 940 N.W.2d at 274-75.
7
See Britt, supra note 2.
8
See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
him. 9 Although not in the record, the State’s brief explains that
after it failed to respond to the district court’s request for the
State’s perspective on Britt’s motion for postconviction relief,
Britt filed a “motion for default judgment.” 10
The district court overruled Britt’s motions without an evi-
dentiary hearing. Britt filed a motion to reconsider, which the
district court also overruled.
Britt then filed a timely appeal. On our own motion, we sub-
mitted the appeal without oral argument. 11
III. ASSIGNMENTS OF ERROR
Britt assigns, restated, that the court erred in overruling his
(1) motion for postconviction relief without an evidentiary
hearing, (2) motion to appoint counsel, and (3) motion for
default judgment.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively show that the defendant is entitled to no relief. 12
V. ANALYSIS
1. Postconviction Principles
[2,3] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her constitu-
tional rights such that the judgment was void or voidable. 13
Thus, in a motion for postconviction relief, the defendant
9
See § 29-3004.
10
Brief for appellee at 11.
11
See Neb. Ct. R. App. P. § 2-111(B)(1)(a) (rev. 2021).
12
State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).
13
State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
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. 14
[4,5] 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 infringe-
ment of the defendant’s rights under the U.S. or Nebraska
Constitution. 15 If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affir-
matively show that the defendant is entitled to no relief, the
court is not required to grant an evidentiary hearing. 16
[6] When a district court denies postconviction relief with-
out 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. 17
2. Motion for Postconviction Relief
First, Britt assigns that the court erred by overruling his
motion for postconviction relief. Britt argues that he received
ineffective assistance of counsel by his counsel’s failure to
call impeachment witnesses. Britt asserts that his counsel
should have called Davis, Melanie and Shawn Dvorak, and
two Ashland, Nebraska, police officers as witnesses to impeach
Clairday’s testimony. This is Britt’s first opportunity to assert
ineffective assistance of counsel, because the same counsel
represented Britt at trial and on direct appeal.
[7,8] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 18 the defendant must
14
See id.
15
See id.
16
Id.
17
State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).
18
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend
ant’s defense. 19 To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. 20 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. 21 The two prongs of this test may be addressed in
either order. 22
Britt has not shown the requisite probability. One witness’
testimony would have been inadmissible, and there is not a rea-
sonable probability that the other witnesses’ testimony would
have altered the outcome of the case. Each witness’ deficien-
cies will be addressed in turn.
(a) Davis
[9,10] Britt cannot prove that he suffered prejudice by
his counsel’s failure to call Davis as a witness, because the
court would not have allowed Davis to testify. At the time of
Britt’s trial, Davis was challenging his own convictions that
resulted from the attempted robbery. 23 If Britt had called Davis
to testify, Davis would most likely have invoked his Fifth
Amendment protections against self-incrimination. 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. 24 Consequently, “[a]bsent
19
See Martinez, supra note 13.
20
Id.
21
Id.
22
Id.
23
See State v. Davis, 290 Neb. 826, 862 N.W.2d 731 (2015).
24
State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
extraordinary circumstances, trial courts should exercise their
discretion to forbid parties from calling witnesses who, when
called, will only invoke a privilege.” 25
Here, the court would have barred Britt from calling Davis
to testify. Therefore, Britt did not suffer prejudice by his coun-
sel’s failure to call Davis as a witness.
(b) Dvoraks
Britt cannot show that he suffered prejudice by his counsel’s
failure to call the Dvoraks to testify. Britt argues that his coun-
sel should have called the Dvoraks as witnesses to impeach
Clairday’s testimony that Britt handed her the gun when she
picked up both Davis and him. In Britt’s motion for postcon-
viction relief, he asserted that the Dvoraks would have testified
that Clairday told them that “[she] picked up . . . Davis by
himself [and] he gave her the weapon [and that she] never told
the Dvoraks that . . . Davis [was] with anyone at the time that
she pick[ed] him up.”
[11,12] Prior inconsistent statements of a witness are admis-
sible as impeachment evidence. 26 However, prior inconsistent
statements of a witness are not admissible as substantive evi-
dence, unless they are otherwise admissible under the Nebraska
Evidence Rules. 27
While the Dvoraks’ testimony regarding what Clairday
told them would be hearsay, it would have been admissible
for impeachment purposes as a prior inconsistent statement.
However, Britt could not use the Dvoraks’ testimony as sub-
stantive evidence to prove that Clairday did not pick Britt up
or that he did not hand her the gun. The testimony would have
been solely limited to discrediting Clairday.
There is not a reasonable probability that the Dvoraks’
testimony would have altered the outcome of the case. Even
25
See id. at 977-78, 951 N.W.2d at 778 (internal quotation marks omitted).
26
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
27
See id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
without the Dvoraks’ testimony, the jury was keenly aware of
Clairday’s behavior and propensity to lie. Clairday admitted to
the jury that she was a convict and a former methamphetamine
addict and that she had lied repeatedly to law enforcement.
Therefore, Britt cannot prove that he suffered prejudice by his
counsel’s failure to call the Dvoraks to testify.
(c) Ashland Police Officers
[13] While Britt assigns that his counsel should have called
the two Ashland police officers who interviewed the Dvoraks
to testify, Britt failed to present this argument in his motion
for postconviction relief. In an appeal from the denial of post-
conviction relief, we will not consider for the first time on
appeal claims that were not raised in the verified motion. 28
Consequently, we will not consider this argument.
3. Motion to Appoint Counsel
[14] Next, Britt assigns the court erred by overruling his
motion to appoint counsel to represent him. However, Britt
failed to provide an argument in his brief. 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. 29 Therefore, we decline to address this
assignment.
4. Motion for Default Judgment
Finally, Britt assigns that the court erred by overruling his
motion for default judgment. Britt argues that because the
State failed to file a timely response to his motion for post-
conviction relief, the court should have awarded him a default
judgment and granted his motion.
[15] The record is devoid of any reference to a default
judgment motion. It is incumbent upon an appellant to supply
28
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
29
State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
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310 Nebraska Reports
STATE v. BRITT
Cite as 310 Neb. 69
a record which supports his or her appeal. 30 Absent such a
record, as a general rule, the decision of the lower court as to
those errors is to be affirmed. 31
[16] Even if we were to overlook the deficient record, we
have explained that the Nebraska Postconviction Act does
not authorize the district court to grant postconviction relief
without first conducting an evidentiary hearing and making
findings of fact and conclusions of law. 32 The court was not
empowered to award a default judgment to Britt, and therefore,
his assignment lacks merit.
V. CONCLUSION
Britt failed to assert a claim of ineffective assistance of
counsel that warranted an evidentiary hearing. We decline to
consider his other assignments of error. We affirm the order of
the district court.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.
30
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
31
Id.
32
See State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).