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STATE v. BRITT

Cite as 305 Neb. 363

State of Nebraska, appellee, v. 

Timothy J. Britt, appellant.

___ N.W.2d ___

Filed March 27, 2020. No. S-18-557.

1. Trial: Photographs. The admission of photographs of a gruesome 

nature rests largely with the discretion of the trial court, which must 

determine their relevancy and weigh their probative value against their 

prejudicial effect.

2. Trial: Photographs: Appeal and Error. An appellate court reviews the 

decision by a trial court to admit photographs of the victims’ bodies for 

abuse of discretion.

3. Constitutional Law: Witnesses: Appeal and Error. An appellate 

court reviews de novo a trial court’s determination of the protections 

afforded by the Confrontation Clause of the Sixth Amendment to the 

U.S. Constitution and article I, § 11, of the Nebraska Constitution and 

reviews the underlying factual determinations for clear error.

4. Homicide: Photographs. Gruesome crimes produce gruesome photographs. However, if the State lays proper foundation, photographs that 

illustrate or make clear a controverted issue in a homicide case are 

admissible, even if gruesome.

5. ____: ____. In a homicide prosecution, a court may admit into evidence 

photographs of a victim for identification, to show the condition of the 

body or the nature and extent of wounds and injuries to it, and to establish malice or intent.

6. Photographs: Rules of Evidence. Neb. Evid R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2016), does not require the State to have a separate 

purpose for every photograph, and it requires a court to prohibit cumulative evidence only if it “substantially” outweighs the probative value of 

the evidence.

7. Constitutional Law: Witnesses. The right of an accused to confront the 

witnesses against him or her is guaranteed by the Sixth Amendment to 

the U.S. Constitution and article I, § 11, of the Nebraska Constitution.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/29/2020 12:08 AM CDT
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Cite as 305 Neb. 363

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, 

L.L.P., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Timothy J. Britt, pro se.

Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop

and Arterburn, Judges.

Miller-Lerman, J.

NATURE OF CASE

Following this court’s reversal of his convictions in State v. 

Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), Timothy J. Britt 

was retried in Douglas County District Court and convicted 

of three counts of first degree murder, three counts of use of 

a deadly weapon to commit a felony, and one count of possession of a deadly weapon by a prohibited person. Britt appeals 

and claims that the district court erred when it admitted 

crime scene and autopsy photographs over his objection and 

violated the Confrontation Clause of the Sixth Amendment 

to the U.S. Constitution and article I, § 11, of the Nebraska 

Constitution when it allowed the State to present its case 

at trial without the testimony of a separately tried alleged 

coconspirator, Anthony Davis. We find no merit to Britt’s 

assignments of error and, accordingly, affirm his convictions 

and sentences.

STATEMENT OF FACTS

The charges in this case arise from the July 9, 2012, deaths 

of Miguel E. Avalos, Sr. (Avalos), and two of his sons, Jose 

Avalos and Miguel E. Avalos, Jr., in their Omaha, Nebraska, 

home during an apparent attempted robbery. Each of them was 

shot multiple times, and each died as a result of his wounds.
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Avalos’ oldest son, Francisco Avalos, was in the home in 

a downstairs bedroom with his wife and baby at the time 

the three victims were shot upstairs. He testified at trial that 

he woke up to the sound of gunshots. He locked the door to 

the bedroom, called the 911 emergency dispatch service, and 

while remaining on the telephone, heard more than one person 

come halfway down the stairs leading to the basement. He 

testified that a male voice unknown to him said “let’s go,” 

and he heard footsteps of multiple people running across the 

floor upstairs.

Police responded to Avalos’ home around 3:45 a.m. and 

observed signs of forced entry at one of the entrances to the 

residence. A section of the doorjamb on the door to the north 

side of the residence was missing, and its strike plate was 

found lying at the bottom of the basement stairs, along with a 

wood screw. A second wood screw was found lying on the tile 

in the entryway near the door.

Inside Avalos’ bedroom, police discovered methamphetamine, drug records, drug paraphernalia, over $5,000 in 

cash, and a defaced .40-caliber semiautomatic pistol. Several 

.40-caliber bullets were also recovered from various locations 

inside the residence. Bullets recovered from the victims’ bodies 

were consistent with .22- and .40-caliber firearms.

The State contends that the three victims were killed by 

Davis and Britt during an attempted robbery. Avalos had 

been a known drug dealer. A plan to rob him originated 

with Greg Logemann, a drug dealer who resided in Council 

Bluffs, Iowa. Logemann testified for the State pursuant to 

several immunity agreements. Logemann was introduced 

to Avalos by Logemann’s brother-in-law, who was Avalos’ 

coworker. Logemann knew Avalos sold methamphetamine and, 

in mid-2012, approached Davis, a fellow drug dealer, about 

robbing Avalos. Logemann had known Davis for 20 years 

and had discussed robberies with him in the past. Logemann 

believed Avalos was an easy target and might have “[m]oney 

and dope.” Logemann advised Davis that the best time to rob 
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Avalos was between 4 and 5 a.m., because Avalos would likely 

be going to work. Logemann testified that he was not aware of 

any children living in Avalos’ home. Logemann did not intend 

to participate in the robbery, and he and Davis planned to 

divide the proceeds among themselves and others who would 

help execute the robbery.

On the night of July 8, 2012, Charice Jones, the roommate 

of Davis’ friend, Crystal Branch, drove Davis, Logemann, and 

Branch to the area of 9th and Bancroft Streets where Logemann 

identified Avalos’ home for Davis. A third male accompanied 

the group on this trip, and he was identified in the testimony as 

either Britt or another man named “Mike.”

Later that night, Branch, Jones, Davis, and Britt returned to 

Branch’s home where they remained for several hours using 

drugs and drinking alcohol. Britt was sitting on the couch 

“really quiet.” The group remained at the residence until Davis 

said it was time to go. Davis asked Jones to drive him, Britt, 

and Branch back to the area of Avalos’ home. According to 

Branch, Britt told Jones where to park down the street from 

Avalos’ home, took possession of Jones’ car keys, and told 

Branch and Jones to get in the back seat. Branch and Jones 

complied, and Davis and Britt walked north up 9th Street 

toward Avalos’ home. Branch and Jones testified that they 

assumed the two men were going to buy more drugs.

Branch claimed that about 5 minutes later, Davis returned to 

the front passenger seat of the vehicle without saying a word. 

Branch did not see any weapons in Davis’ possession. A few 

minutes after Davis returned, Britt came running back, entered 

the vehicle, and sat in the driver’s seat. According to Branch, 

Britt wore gloves and a bandanna over his face. Britt drove 

“[f]ast” and “straight back” to Branch’s home.

As soon as Davis, Britt, Branch, and Jones arrived at Branch’s 

home, Davis and Britt left the vehicle and walked to the end 

of the block to argue about something. After returning, Davis 

“looked sick” and went to the bathroom, where it “sounded 

like he was getting sick” according to Branch. Britt sat silently 
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on the couch in the living room. When Davis emerged from 

the bathroom, he asked Branch for her address because “[h]e 

was trying to find a ride.” At around 4 a.m., Davis began calling and sending text messages to his ex-girlfriend, Tiaotta 

Clairday. Branch testified that she spoke on a cell phone with 

an unknown woman to whom she provided directions to her 

home for Davis. An “older” gray or silver “Cutlass or Regal” 

pulled up, and Davis and Britt left together in it.

Clairday testified that she began receiving several messages 

from Davis around 4:30 a.m. Davis told Clairday in “hushed 

tones” that he needed her to pick him up. Clairday recalled 

that Davis sounded agitated and frustrated. When Clairday 

arrived in a borrowed Buick Regal, Davis entered the front 

seat. Clairday asked Davis why he had called her to pick him 

up. Davis stated that Britt needed to come along with them too, 

because Britt had a gun. Clairday had met Britt once before, 

but she did not know him and did not want him in her vehicle. 

She and Davis argued briefly before Britt entered the vehicle. 

Clairday questioned Britt, and Britt handed his .22-caliber 

revolver to Clairday.

Clairday stopped at a gas station and then proceeded to 

the apartment of her friend, Larry Lautenschlager, in Council 

Bluffs. At the apartment, Davis and Britt waited near the door 

as Clairday gave the .22-caliber revolver to Lautenschlager and 

asked him to get rid of it. Clairday also requested a change of 

clothing for both Davis and Britt, and then she took Davis to 

the bathroom to talk. Clairday testified that Davis was mumbling, appeared scared, and had apparently soiled himself. 

Clairday helped Davis change his clothes and noticed that he 

had blood on his shoe. After Clairday left the bathroom, she 

walked outside and observed Britt burning a pair of gloves on 

a grill.

Clairday transported Davis and Britt to Davis’ apartment. 

She accompanied Davis upstairs, while Britt remained downstairs. Davis wanted to leave town, so Clairday helped him 

pack a bag. She also continued to speak with Davis, who still 
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appeared scared. They finished packing and went downstairs to 

load the vehicle.

Clairday, Davis, and Britt then drove to Logemann’s apartment. Davis went inside alone. Back in the vehicle, Clairday 

asked Britt what was wrong with Davis, but Britt did not 

respond. When Davis returned, Clairday drove to a restaurant 

in Council Bluffs. Thereafter, she drove to the apartments 

behind another restaurant and waited in the vehicle while Davis 

and Britt went inside. Davis returned alone. Clairday testified 

that after this point, Davis appeared scared and was crying as 

he related to her why he had called her in the middle of the 

night and what had happened. Clairday then dropped Davis off 

at his apartment.

After Branch and Jones observed television news reports 

about the shootings the morning of July 9, 2012, Branch recognized the area of the crime and became concerned. Davis 

agreed to meet with Branch and Jones in Council Bluffs. After 

going to several different addresses given to them by Davis, 

they met with him later in the day on July 9. When they arrived 

at the final address, Davis sat in their vehicle and took their 

cell phones to search them and make sure they were not “trying to set him up.” Davis, Branch, and Jones discussed what 

Branch and Jones saw on the news, and then Davis returned 

their cell phones. Branch and Jones expressed concern for their 

safety, and Branch felt that she and her children needed to 

get out of town. Following this conversation, and without an 

invitation, Britt began living with Branch and Jones and went 

everywhere they went. He lived in the basement with Jones for 

“[p]robably a month or better.” The women never called police 

about their concerns.

A few days after the murders, Clairday drove out to the 

country near Ashland, Nebraska, where she disposed of several items, including the .22-caliber revolver. She asked 

Lautenschlager to drive her to a lake north of Ashland. Clairday 

exited the vehicle alone and, after waiting for Lautenschlager 

to drive out of sight, threw the revolver into a culvert. The 
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revolver was wrapped up in a tank top secured by a headband. 

A crime laboratory technician testified about her understanding to the effect that following Clairday’s arrest, she led law 

enforcement to the hiding place where officers recovered the 

revolver, which was rusty and dirty and had a grip that was 

wrapped in black electrical tape. Comparisons of the revolver 

to the .22-caliber bullets recovered from the victims were 

inconclusive.

Logemann also testified about his observations of Davis and 

Britt after the murders. At about 4:30 or 5 a.m. on the day of 

the shootings, he received either a call or text from Davis in 

which Davis “told [Logemann] he couldn’t do it because his 

girlfriend was tripping out on him.” Later that same morning, an Omaha police officer contacted Logemann and asked 

him what he might know about a robbery at 9th and Bancroft 

Streets. Logemann met with police and lied to cover for himself during their initial questioning. After his initial contact 

with police, Logemann met with Davis in person at a location between their homes; Davis’ girlfriend drove Davis to 

Logemann, picked Logemann up, and then Logemann and 

Davis discussed the robbery and what had happened.

Later that night, Britt accompanied Davis on an unexpected 

visit to Logemann’s apartment. Davis requested to borrow 

Logemann’s laptop computer, and Logemann loaned him a 

laptop computer. While in Logemann’s apartment, Britt asked 

Logemann about a picture of his children that was hanging on 

his refrigerator. The questions made Logemann “uncomfortable,” because he feared that Britt “might try to do something” 

to his children. Following this encounter with Davis and Britt, 

Logemann told Omaha police on July 20 and 24 and August 2 

or 3, 2012, what he knew about Davis, Britt, and the shootings 

at 9th and Bancroft Streets.

The coroner who performed autopsies on the three victims 

determined that each died due to gunshot wounds to the head. 

Several crime scene and autopsy photographs were introduced 

by the State and received in evidence over Britt’s objection.
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Procedural History.

The State charged Britt with three counts of first degree 

murder (Class IA felony), Neb. Rev. Stat. § 28-303(1) and 

(2) (Reissue 2008); three counts of use of a deadly weapon 

(gun) to commit a felony (Class IC felony), Neb. Rev. Stat. 

§ 28-1205(1)(a) and (c) (Reissue 2016); and one count of possession of a deadly weapon (gun) by a prohibited person (Class 

ID felony), Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Reissue 

2016). The State also charged that Britt met the definition of a 

“habitual criminal” as described in Neb. Rev. Stat. § 29-2221 

(Reissue 2016).

This case is related to State v. Davis, 290 Neb. 826, 862 

N.W.2d 731 (2015). Davis and Britt were allegedly coconspirators who were tried separately for their involvement in 

the Avalos murders. Both defendants were convicted by their 

respective juries. However, on April 22, 2016, we filed our 

opinion in State v. Britt, 293 Neb. 381, 881 N.W.2d 818 

(2016), in which we found that the district court had reversibly erred when it admitted the hearsay statements of Davis 

which implicated Britt in the murders. Following our mandate, 

Britt was retried to a jury and found guilty on all counts as 

charged, as follows: (1) guilty as to count I, first degree murder, a Class IA felony; (2) guilty as to count II, use of a deadly 

weapon to commit a felony, a Class IC felony; (3) guilty as 

to count III, first degree murder, a Class IA felony; (4) guilty 

as to count IV, use of a deadly weapon to commit a felony, a 

Class IC felony; (5) guilty as to count V, first degree murder, 

a Class IA felony; (6) guilty as to count VI, use of a deadly 

weapon to commit a felony, a Class IC felony; (7) guilty as 

to count VII, possession of a deadly weapon by a prohibited 

person, a Class ID felony.

Sentencing.

Britt’s sentencing hearing was conducted on May 3, 2018, 

at which time the district court received evidence relative to 

enhancement. The district court found that Britt met the definition of a “habitual criminal” within the meaning of § 29-2221. 
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With respect to each of the three first degree murder convictions, Britt received a sentence of life imprisonment. For 

each of the three use of a deadly weapon (gun) to commit a 

felony convictions, Britt received a sentence of 40 to 45 years’ 

imprisonment. As to possession of a deadly weapon (gun) by a 

prohibited person, Britt received a sentence of 40 to 45 years’ 

imprisonment. The sentences for all convictions were ordered 

to be served consecutively to one another. Britt received 2,108 

days’ credit for time served toward his sentence for possession 

of a deadly weapon by a prohibited person.

Britt appeals.

ASSIGNMENTS OF ERROR

On appeal, Britt claims, summarized and restated, that the 

district court (1) erred when it admitted crime scene and 

autopsy photographs over his objection and (2) violated his 

right of confrontation by allowing the State to proceed at trial 

without calling Davis to testify.

STANDARDS OF REVIEW

[1,2] The admission of photographs of a gruesome nature 

rests largely with the discretion of the trial court, which must 

determine their relevancy and weigh their probative value 

against their prejudicial effect. State v. Dubray, 289 Neb. 208, 

854 N.W.2d 584 (2014). An appellate court reviews the decision by a trial court to admit photographs of the victims’ bodies 

for abuse of discretion. See id.

[3] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution and 

article I, § 11, of the Nebraska Constitution and reviews the 

underlying factual determinations for clear error. State v. Smith, 

302 Neb. 154, 922 N.W.2d 444 (2019).

ANALYSIS

Crime Scene and Autopsy Photographs.

Britt claims generally that the district court erred when, over 

his objection, it admitted numerous crime scene and autopsy 
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photographs generally showing the bodies of the murder victims. He specifically claims that such admission violated Neb. 

Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016). Rule 

403 provides, “Although relevant, evidence may be excluded 

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” We find no 

merit to this assignment of error.

Britt identifies 13 of the admitted photographs and argues 

their probative value was outweighed by their prejudicial 

nature. He focuses on their gruesome nature and also contends 

that many of the photographs are duplicative.

[4] We have often observed that gruesome crimes produce gruesome photographs. State v. Stelly, 304 Neb. 33, 932 

N.W.2d 857 (2019). However, if the State lays proper foundation, photographs that illustrate or make clear a controverted 

issue in a homicide case are admissible, even if gruesome. Id.; 

State v. Dubray, supra.

With respect to homicide cases, other authorities have noted, 

and we agree, that

murder is seldom pretty, and pictures, testimony and 

physical evidence in such a case are always unpleasant; 

and . . . many attorneys tend to underestimate the stability of the jury. A juror is not some kind of a dithering nincompoop, brought in from never-never land and exposed 

to the harsh realities of life for the first time in the jury 

box. There is nothing magic about being a member of the 

bench or bar which makes these individuals capable of 

dispassionately evaluating gruesome testimony which, it 

is often contended, will throw jurors into a paroxysm of 

hysteria. Jurors are our peers, often as well educated, as 

well balanced, as stable, as experienced in the realities of 

life as the holders of law degrees. The average juror is 

well able to stomach the unpleasantness of exposure to 

the facts of a murder without being unduly influenced.
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People v. Long, 38 Cal. App. 3d 680, 689, 113 Cal. Rptr. 530, 

536-37 (1974), disapproved on other grounds, People v. Ray, 

14 Cal. 3d 20, 533 P.2d 1017 (1975).

[5] The State is allowed to present a coherent picture of 

the facts of the crimes charged, and it may generally choose 

its evidence in so doing. State v. Dubray, 289 Neb. 208, 854 

N.W.2d 584 (2014). In a homicide prosecution, a court may 

admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and 

extent of wounds and injuries to it, and to establish malice or 

intent. Id.

With respect to the crime scene and autopsy photographs 

challenged on appeal, the State has proffered a variety of purposes for their probative value. We agree with the State that 

the photographs show the positions of the bodies and wounds 

from several positions and were for the purpose of suggesting multiple shooters were present, corroborating testimony 

from Francisco Avalos that he heard footsteps of more than 

one shooter and countering Britt’s suggestion that he was not 

involved in the shootings. The photographs also show the victims’ wounds and spent shell casings. The State was able to 

use these photographs to connect the crimes to a .22-caliber 

revolver owned by Britt and featured in the alleged coverup of 

the crimes. The autopsy photographs document the manner and 

cause of the victims’ deaths.

[6] Although several photographs depict similar scenes from 

different angles as compared to other photographs in evidence, 

the general rule is that when a court admits photographs for a 

proper purpose, additional photographs of the same type are 

not unfairly prejudicial. State v. Jenkins, 294 Neb. 684, 884 

N.W.2d 429 (2016). Rule 403 does not require the State to 

have a separate purpose for every photograph, and it requires a 

court to prohibit cumulative evidence only if it “substantially” 

outweighs the probative value of the evidence. State v. Dubray, 

supra. We determine that the district court admitted the photographs for a proper purpose and did not abuse its discretion 
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when it concluded that the photographs of the crime scene and 

autopsy were not unfairly prejudicial.

Right to Confront Davis.

[7] Britt, acting pro se, also claims that the district “court 

violated the confrontation clause when it did not call . . . Davis 

to the stand.” Pro se supplemental brief for appellant at 12. The 

right of an accused to confront the witnesses against him or her 

is guaranteed by the Sixth Amendment to the U.S. Constitution 

and article I, § 11, of the Nebraska Constitution. Britt contends, restated, that his right of confrontation was violated 

because Davis, the alleged coconspirator, was not called to testify about who he was with during the timeframe during which 

the murders were committed. Britt contends that this testimony 

was necessary to protect his rights because the State’s evidence 

was limited to individuals who did not claim to have directly 

witnessed the murders.

Britt did not present a confrontation claim to the district 

court. We note that regardless of whether this claim was preserved, Britt has directed us to no authority to the effect that 

the district court had an independent obligation to call a witness or require the State to call a witness. Davis did not testify 

at trial, and Britt had the opportunity to cross-examine the several witnesses against him at trial. We have not been directed 

to, and we are unaware of, a separate proposition of law that 

would apply in this case to support Britt’s contention that the 

trial court should have independently required Davis to testify. 

And to the contrary, we have previously concluded that hearsay 

testimony from Davis was not admissible. State v. Britt, 293 

Neb. 381, 881 N.W.2d 818 (2016).

As noted above, a major component of Britt’s argument on 

appeal is that the evidence against him was merely circumstantial and that this presented a confrontation issue without Davis’ 

testimony. To the extent that Britt contends the evidence was 

insufficient to support his convictions or, in the absence of 

Davis’ testimony, his Sixth Amendment rights were violated, 

we disagree. Testimony collectively showed that at least two 
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people were inside Avalos’ home at the time of the murders; 

Britt was the only person with Davis immediately before and 

after the murders; Britt possessed a .22-caliber revolver, which 

was consistent with one of the two types of firearms used to 

commit the murders; and Britt was seen performing acts of 

concealment, including burning a pair of gloves he was wearing after the murders. The evidence presented by the State 

from other witnesses’ personal observations, without direct 

testimony from Davis, was that Britt was Davis’ accomplice. 

This assignment of error is without merit.

CONCLUSION

We determine that the admission of photographs of the 

crime scene and autopsy were not unfairly prejudicial and 

that the district court did not have an independent duty to call 

coconspirator Davis to testify. Accordingly, we affirm Britt’s 

convictions and sentences for three counts of first degree 

murder, three counts of use of a deadly weapon to commit a 

felony, and one count of possession of a deadly weapon by a 

prohibited person.

Affirmed.

Heavican, C.J., and Freudenberg, J., not participating.