State v. Britt, 305 Neb. 363

July 9, 2012: three members of the Avalos family (Miguel Sr., Jose, and Miguel Jr.) were shot to death in their Omaha home during an apparent attempted robbery; autopsies showed fatal gunshot wounds to the head.
Evidence linked an alleged robbery plan to Greg Logemann; Anthony Davis and Timothy Britt were implicated as the perpetrators.
Witnesses placed Britt with Davis immediately before and after the shootings; Britt possessed a .22 revolver consistent with one type of weapon used and was seen burning gloves and otherwise attempting concealment.
Police recovered drug paraphernalia and spent .22- and .40-caliber casings; the State tied physical and circumstantial evidence to Britt.
Britt’s original convictions were reversed on appeal in 2016 because the trial court had admitted hearsay statements by Davis; Britt was retried, convicted on three counts of first-degree murder, three counts of use of a deadly weapon, and one count of possession of a deadly weapon by a prohibited person, and sentenced to consecutive lengthy terms.
On this appeal Britt argued (1) the district court abused its discretion by admitting gruesome crime-scene and autopsy photographs (Neb. Evid. R. 403) and (2) the Confrontation Clause was violated because alleged coconspirator Davis did not testify.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of crime-scene and autopsy photographs (Rule 403)	Photographs were probative to show body positions, wounds, spent casings, and to suggest multiple shooters; not unfairly prejudicial	Photographs were gruesome and cumulative; probative value was substantially outweighed by prejudice	Court affirmed: trial court did not abuse discretion; photos were properly admitted to show identification, condition of bodies, wounds, and to corroborate multiple-shooter evidence and link to Britt’s .22 revolver and concealment acts
Sixth Amendment confrontation (failure to call coconspirator Davis to testify)	State did not need to present Davis; other witnesses were cross-examined; sufficient circumstantial evidence tied Britt to the crimes	Britt argued his confrontation rights required Davis’ live testimony because evidence was largely circumstantial and Davis’ testimony could identify who was present	Court held no violation: Britt failed to show a right to compel the trial court or State to call Davis; sufficient nonhearsay evidence supported convictions

State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014) (photographs admissible in homicide if proper foundation and probative value outweighs prejudice)
State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016) (additional photographs of same type are not unfairly prejudicial)
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016) (prior reversal where trial court admitted hearsay statements by Davis)
State v. Davis, 290 Neb. 826, 862 N.W.2d 731 (2015) (related coconspirator proceedings)
State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019) (Confrontation Clause review is de novo; underlying facts reviewed for clear error)
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019) (acknowledging that gruesome crimes produce gruesome photographs)
People v. Long, 38 Cal. App. 3d 680, 113 Cal. Rptr. 530 (1974) (observing jurors’ capacity to fairly evaluate gruesome evidence)