State v. Britt, 310 Neb. 69

Timothy J. Britt was tried twice for the robbery and murders of three members of the Avalos family; a .40- and a .22-caliber gunshot wounds were involved and a .40-caliber gun was recovered at the scene.
After a first trial reversal for hearsay error, Britt was retried, convicted on all counts, found a habitual criminal, and sentenced to life plus additional terms.
At the second trial, key testimony came from Tiaotta Clairday, who described transporting Britt and coconspirator Anthony Davis after the killings, possession and disposal of a .22 revolver, and observed incriminating behavior.
Britt filed a pro se postconviction motion alleging ineffective assistance of trial counsel for failing to call impeachment witnesses (Davis, Melanie and Shawn Dvorak, and two Ashland officers).
The district court denied relief without an evidentiary hearing; Britt moved to appoint counsel and for a default judgment based on the State’s alleged late response, both of which were also denied.
On appeal, the Nebraska Supreme Court affirmed: it held Britt failed to show prejudice from counsel’s alleged omissions, declined to consider unbriefed or unraised claims, and rejected the default-judgment argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether postconviction relief was required based on ineffective assistance for not calling impeachment witnesses	Britt: counsel should have called Davis, the Dvoraks, and two Ashland officers to impeach Clairday and undermine the State’s case	State: Davis would invoke the Fifth and likely be barred; the Dvoraks’ testimony would be limited to impeachment and would not likely change the verdict; officers’ testimony was not raised below	No relief. Court found Davis’ testimony would be barred, Dvoraks’ impeachment unlikely to alter the outcome, and no reasonable probability of prejudice — no evidentiary hearing required
Whether the court erred by denying Britt’s motion to appoint counsel	Britt asserted the need for counsel to pursue postconviction claims	State defended the denial (and court record shows Britt failed to develop the argument on appeal)	Not addressed on the merits — assignment not argued in brief; appellate court declined to consider it
Whether the court should have entered a default judgment because the State missed a response deadline	Britt argued the State’s failure to timely respond warranted default and grant of relief	State and record: no proper basis to grant default; Postconviction Act requires evidentiary hearing and findings before relief	Rejected. Record lacks support for default; district court could not grant relief by default without a hearing

Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance test)
State v. Britt, 305 Neb. 363 (summarizes facts and issues from second direct appeal)
State v. Britt, 293 Neb. 381 (direct appeal reversing first trial for hearsay error)
State v. Clausen, 307 Neb. 968 (trial courts should avoid having witnesses claim privilege before the jury; may bar calling witnesses who would invoke Fifth)
State v. Rodriguez, 272 Neb. 930 (prior inconsistent statements admissible for impeachment only)
State v. Jim, 275 Neb. 481 (Postconviction Act requires evidentiary hearing and findings before relief)