Summary
The Nebraska Supreme Court affirmed the denial, without an evidentiary hearing, of Timothy J. Britt’s motion for postconviction relief. The court held that Britt failed to show prejudice under Strickland v. Washington based on counsel’s failure to call proposed impeachment witnesses, including a witness who would likely have invoked the privilege against self-incrimination and witnesses whose testimony would have been limited to impeachment. The court declined to consider unpreserved or inadequately argued claims concerning additional witnesses, appointment of counsel, and default judgment.
Topics
Practice areas
Questions Presented
- Whether the district court erred by denying Britt's motion for postconviction relief without an evidentiary hearing on his claim that counsel was ineffective for failing to call impeachment witnesses.
- Whether the district court erred by denying Britt's motion to appoint counsel when Britt did not specifically argue that assignment in his brief.
- Whether the district court erred by denying Britt's motion for default judgment based on the State's alleged failure to respond timely to the postconviction motion.
Holdings
- Britt was not entitled to postconviction relief or an evidentiary hearing because Davis would most likely have invoked his Fifth Amendment privilege and the trial court would have barred Britt from calling him solely to invoke that privilege; therefore, counsel's failure to call Davis did not prejudice Britt.
- Britt failed to establish prejudice from counsel's failure to call the Dvoraks because their proposed testimony would have been admissible only to impeach Clairday, not as substantive evidence, and there was no reasonable probability that it would have altered the verdict.
- The court would not consider the claim because Britt did not raise it in his verified postconviction motion.
- The court declined to address the assignment because Britt assigned the alleged error but failed to specifically argue it in his brief.
- Britt was not entitled to a default judgment because the record did not support his claim and the Nebraska Postconviction Act does not authorize granting postconviction relief without an evidentiary hearing and findings of fact and conclusions of law.
Key quotations
“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.” (77)
“Absent extraordinary circumstances, trial courts should exercise their discretion to forbid parties from calling witnesses who, when called, will only invoke a privilege.” (78)
Factual background
Britt was convicted after a second trial arising from the fatal shooting of three members of the Avalos family during an attempted nighttime robbery in Omaha. The State's case included testimony from Tiaotta Clairday, who said she transported Britt and Anthony Davis after the robbery and observed or handled conduct connected to the crime. In his postconviction motion, Britt claimed trial counsel was ineffective for failing to call Anthony Davis, Melanie and Shawn Dvorak, and two Ashland police officers to impeach Clairday. The court concluded that Davis would likely have invoked the Fifth Amendment, the Dvoraks' proposed testimony could be used only for impeachment and would not likely have changed the outcome, and the police-officer claim was not raised in the verified motion.
Procedural history
Britt was convicted after a second trial of three counts of first degree murder, three counts of using a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person, and received life imprisonment on the murder convictions plus lengthy terms on the weapons convictions. His convictions and sentences were affirmed on direct appeal. He then filed a pro se postconviction motion alleging ineffective assistance based on counsel's failure to call impeachment witnesses; the district court denied the motion and related motions without an evidentiary hearing. The Nebraska Supreme Court affirmed.