State v. Britt, 963 N.W.2d 533

Background

Britt was tried and convicted (second trial) for three counts of first-degree murder and related weapons charges stemming from the nighttime robbery and killings of Miguel Avalos Sr. and his two sons; a .40- and .22-caliber wounds were involved and a .40-caliber gun was recovered.
Key prosecution evidence included Tiaotta Clairday's testimony that she transported Anthony Davis and Britt after the killings, that Britt handed her a .22 revolver, and that she later disposed of that revolver (which was recovered).
Britt's first conviction was reversed for admission of Davis’s hearsay statements; he was retried, convicted again, and sentenced as a habitual criminal to life plus additional terms.
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); the district court denied relief without an evidentiary hearing.
On appeal Britt argued counsel should have called those witnesses to impeach Clairday; he also challenged denial of appointed counsel and sought a default judgment based on the State’s delayed response.
The Nebraska Supreme Court affirmed: it held Davis’ testimony would likely be barred (Fifth Amendment invocation), the Dvoraks would only provide impeachment (not substantive) evidence and would not create a reasonable probability of a different outcome, the Ashland officers’ claim was not raised below, and the Postconviction Act does not permit granting relief by default without an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to call Davis	Calling Davis would impeach Clairday and undermine State's account	Davis would invoke Fifth Amendment; court should bar calling a witness who will only claim privilege	Court: No prejudice; trial court would have barred Davis, so no viable claim
Ineffective assistance — failure to call Dvoraks	Dvoraks would testify Clairday said she picked up Davis alone and that he gave her the gun (prior inconsistent statement)	Their testimony would be only impeachment (hearsay for substantive use); jury already aware Clairday had motive/credibility problems	Court: No reasonable probability of different outcome; limited impeachment value insufficient
Ineffective assistance — failure to call Ashland police officers	Officers could corroborate Dvoraks and undermine Clairday	Claim not raised in verified postconviction motion	Court: Not considered on appeal; forfeited
Procedural — appointment of counsel & default judgment	Britt sought appointed counsel and argued State’s late response warranted default relief	Record lacked supporting material; Postconviction Act requires evidentiary hearing before relief	Court: Declined to address counsel assignment (unbriefed) and rejected default judgment theory

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
State v. Martinez, 302 Neb. 526 (2019) (postconviction relief standard and Strickland application)
State v. Privett, 303 Neb. 404 (2019) (standard for appellate review when district court denies postconviction relief without evidentiary hearing)
State v. Clausen, 307 Neb. 968 (2020) (courts should avoid having witnesses assert privilege in front of juries; barring witnesses who will only invoke privilege)
State v. Rodriguez, 272 Neb. 930 (2007) (prior inconsistent statements admissible for impeachment but not as substantive evidence)