State v. Britt, 310 Neb. 69

Background

Britt was tried for the nighttime robbery-homicides of three members of the Avalos family; a .40 and a .22 cal. gunshot evidence were involved and Britt was charged with multiple counts including first-degree murder and weapons offenses.
First trial convictions were reversed on appeal because the court admitted hearsay statements implicating Britt; the State retried him and a jury again convicted Britt on all counts; he was sentenced as a habitual criminal.
At the second trial a key witness was Tiaotta Clairday, who testified about transporting Britt and coconspirator Anthony Davis after the murders and about disposal of a .22 revolver; Clairday conceded prior lies and a criminal history.
Britt filed a pro se postconviction motion alleging ineffective assistance of trial counsel for failing to call impeachment witnesses (Anthony Davis, Melanie and Shawn Dvorak, and two Ashland police officers); he also moved for appointed counsel and later sought a default judgment after the State’s delayed response.
The district court denied postconviction relief without an evidentiary hearing and denied his motions; Britt appealed, arguing the court should have held a hearing and should have appointed counsel or granted default judgment.

Issues

Issue	Plaintiff's Argument (Britt)	Defendant's Argument (State)	Held
Whether Britt's postconviction motion alleging ineffective assistance warranted an evidentiary hearing	Counsel was ineffective for failing to call impeachment witnesses; factual allegations justified a hearing	Records and files show no reasonable probability of prejudice; some proposed testimony would be inadmissible or immaterial	No evidentiary hearing: allegations, if proved, would not show prejudice sufficient to undermine confidence in the outcome
Whether counsel was ineffective for not calling Anthony Davis as a witness	Davis would have impeached Clairday and aided defense	Davis was pursuing his own appeal and would likely invoke the Fifth Amendment; courts should avoid calling witnesses who will only assert privilege	No prejudice—trial court would have barred calling Davis because he likely would invoke privilege
Whether counsel was ineffective for not calling Melanie and Shawn Dvorak	Dvoraks would testify Clairday said she picked up Davis alone and that Davis (not Britt) gave her the gun, impeaching Clairday	Their testimony is hearsay usable only to impeach (not substantive); Clairday already had credibility problems; testimony unlikely to change verdict	No prejudice—their testimony would be limited to impeachment and would not have created a reasonable probability of a different result
Whether the court erred in denying motion to appoint counsel and motion for default judgment	Britt sought appointed counsel and argued the State’s late response warranted default	Britt failed to brief the appointment claim; record lacks the default-judgment support; court cannot grant postconviction relief without a hearing	Appointment claim not considered (unbriefed); default judgment improper and unavailable because relief requires an evidentiary hearing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficiency and prejudice)
State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019) (postconviction relief available only for constitutional violations rendering judgment void or voidable)
State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019) (appellate review when district court denies postconviction relief without evidentiary hearing)
State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020) (courts should avoid having witnesses assert privilege before the jury; may forbid calling witnesses who will only invoke privilege)
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007) (prior inconsistent statements admissible for impeachment but not as substantive evidence)
State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008) (district court cannot grant postconviction relief without first conducting an evidentiary hearing and making findings)
State v. Britt, 305 Neb. 363, 940 N.W.2d 270 (2020) (prior direct-appeal opinion recounting Clairday’s testimony and affirming convictions)