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310 Nebraska Reports

STATE v. BRITT

Cite as 310 Neb. 69

State of Nebraska, appellee, v. 

Timothy J. Britt, appellant.

___ N.W.2d ___

Filed September 3, 2021. No. S-21-107.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo 

a determination that the defendant failed to allege sufficient facts to 

demonstrate a violation of his or her constitutional rights or that the 

record and files affirmatively show that the defendant is entitled to 

no relief.

2. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

3. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

4. ____: ____: ____. A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion contains factual 

allegations which, if proved, constitute an infringement of the defend

ant’s rights under the U.S. or Nebraska Constitution.

5. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not required 

to grant an evidentiary hearing.

6. Postconviction: Appeal and Error. When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate 

court must determine whether the petitioner has alleged facts that would 

support the claim and, if so, whether the files and records affirmatively 

show that he or she is entitled to no relief.

Nebraska Supreme Court Online Library

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

09/10/2021 12:08 AM CDT
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7. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and 

Error. To prevail on a claim of ineffective assistance of counsel under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), the defendant must show that his or her counsel’s perform

ance was deficient and that this deficient performance actually prejudiced the defendant’s defense. To show prejudice under the prejudice 

component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient perform

ance, the result of the proceeding would have been different. 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.

8. Effectiveness of Counsel: Proof. The two prongs of the ineffective 

assistance of counsel test under Strickland v. Washington, 466 U.S. 

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in 

either order.

9. Self-Incrimination: Juries: Rules of Evidence. Neb. Rev. Stat. 

§ 27-513(2) (Reissue 2016) makes it clear that courts must avoid having witnesses claim privilege in the presence of the jury whenever 

practicable.

10. Trial: Courts: Witnesses: Self-Incrimination. Absent extraordinary 

circumstances, trial courts should exercise their discretion to forbid 

parties from calling witnesses who, when called, will only invoke 

a privilege.

11. Witnesses: Impeachment: Prior Statements. Prior inconsistent statements of a witness are admissible as impeachment evidence.

12. Rules of Evidence: Prior Statements. Prior inconsistent statements of 

a witness are not admissible as substantive evidence, unless they are 

otherwise admissible under the Nebraska Evidence Rules.

13. Postconviction: Appeal and Error. In an appeal from the denial of 

postconviction relief, an appellate court will not consider for the first 

time on appeal claims that were not raised in the verified motion.

14. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

15. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal; absent such a record, as 

a general rule, the decision of the lower court as to those errors is to 

be affirmed.

16. Postconviction: Courts. The Nebraska Postconviction Act does not 

authorize the district court to grant postconviction relief without first 
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STATE v. BRITT

Cite as 310 Neb. 69

conducting an evidentiary hearing and making findings of fact and conclusions of law.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Timothy J. Britt, pro se.

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

Vincent for appellee.

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

Cassel, J.

I. INTRODUCTION

Timothy J. Britt appeals from a district court’s order—without an evidentiary hearing—overruling his motion for postconviction relief. Britt argues that he received ineffective assist

ance of counsel by his counsel’s failure to call impeachment 

witnesses. However, one witness’ testimony would have been 

inadmissible and there is not a reasonable probability that the 

other witnesses’ testimony would have altered the outcome of 

the case. Therefore, Britt cannot prove that he suffered prejudice. We affirm.

II. BACKGROUND

This is Britt’s third appearance before this court addressing the criminal case below—a first direct appeal, 1 a second 

direct appeal, 2 and now this appeal regarding postconviction 

relief. The factual background relating to Britt’s procedural 

history is set forth in more detail in our opinion involving 

Britt’s second direct appeal. 3 Here, we provide only a brief 

summary.

1 See State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

2 See State v. Britt, 305 Neb. 363, 940 N.W.2d 270 (2020).

3 See id.
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STATE v. BRITT

Cite as 310 Neb. 69

1. First Trial

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).

Britt’s charges resulted from the death 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 

attempted nighttime robbery. Each of them was shot multiple 

times and died from .40- and .22-caliber gunshot wounds. A 

.40-caliber gun was recovered at the scene.

The State contended that Anthony Davis and Britt were 

coconspirators who killed the three victims during Davis’ and 

Britt’s attempt to rob Avalos’ home. A jury found Britt guilty 

on all counts.

Britt appealed. We ordered a new trial after we determined 

that the district court had reversibly erred when it admitted 

Davis’ hearsay statements implicating Britt in the murders. 4

2. Second Trial

The State retried Britt on the same charges, presenting 

essentially the same arguments, witnesses, and forensic evidence. While many witnesses identified Britt as participating in 

the robbery, an important witness was Tiaotta Clairday—Davis’ 

off-and-on girlfriend who transported Britt and him after the 

robbery. Our opinion regarding Britt’s direct appeal summarized Clairday’s testimony. 5 We stated in part:

4 See Britt, supra note 1.

5 See Britt, supra note 2.
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Clairday testified that [on the night of the robbery] 

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 appeared scared. They finished packing and went downstairs to load the vehicle.

Clairday, Davis, and Britt then drove to [Greg] 

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 
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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.

. . . .

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 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. 6

The jury found Britt guilty of all charges. After the court 

found that Britt met the definition of a “habitual criminal” 

within the meaning of § 29-2221, it sentenced Britt to life 

imprisonment on the murder convictions and lengthy terms 

of imprisonment on the weapons convictions. Represented by 

his trial counsel, Britt unsuccessfully appealed his convictions 

and sentences. 7

3. Postconviction

Britt filed a timely pro se motion for postconviction relief. 8

Britt also moved for counsel to be appointed to represent 

6 Id. at 367-69, 940 N.W.2d at 274-75.

7 See Britt, supra note 2.

8 See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
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him. 9 Although not in the record, the State’s brief explains that 

after it failed to respond to the district court’s request for the 

State’s perspective on Britt’s motion for postconviction relief, 

Britt filed a “motion for default judgment.” 10

The district court overruled Britt’s motions without an evidentiary hearing. Britt filed a motion to reconsider, which the 

district court also overruled.

Britt then filed a timely appeal. On our own motion, we submitted the appeal without oral argument. 11

III. ASSIGNMENTS OF ERROR

Britt assigns, restated, that the court erred in overruling his 

(1) motion for postconviction relief without an evidentiary 

hearing, (2) motion to appoint counsel, and (3) motion for 

default judgment.

IV. STANDARD OF REVIEW

[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 12

V. ANALYSIS

1. Postconviction Principles

[2,3] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. 13

Thus, in a motion for postconviction relief, the defendant 

9 See § 29-3004.

10 Brief for appellee at 11.

11 See Neb. Ct. R. App. P. § 2-111(B)(1)(a) (rev. 2021).

12 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).

13 State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
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must allege facts which, if proved, constitute a denial or 

violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be 

void or voidable. 14

[4,5] A court must grant an evidentiary hearing to resolve the 

claims in a postconviction motion when the motion contains 

factual allegations which, if proved, constitute an infringement of the defendant’s rights under the U.S. or Nebraska 

Constitution. 15 If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the 

court is not required to grant an evidentiary hearing. 16

[6] When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must 

determine whether the petitioner has alleged facts that would 

support the claim and, if so, whether the files and records 

affirmatively show that he or she is entitled to no relief. 17

2. Motion for Postconviction Relief

First, Britt assigns that the court erred by overruling his 

motion for postconviction relief. Britt argues that he received 

ineffective assistance of counsel by his counsel’s failure to 

call impeachment witnesses. Britt asserts that his counsel 

should have called Davis, Melanie and Shawn Dvorak, and 

two Ashland, Nebraska, police officers as witnesses to impeach 

Clairday’s testimony. This is Britt’s first opportunity to assert 

ineffective assistance of counsel, because the same counsel 

represented Britt at trial and on direct appeal.

[7,8] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

 18 the defendant must 

14 See id.

15 See id.

16 Id.

17 State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).

18 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
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show that his or her counsel’s performance was deficient and 

that this deficient performance actually prejudiced the defend

ant’s defense. 19 To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate 

a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different. 20 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. 21 The two prongs of this test may be addressed in 

either order. 22

Britt has not shown the requisite probability. One witness’ 

testimony would have been inadmissible, and there is not a reasonable probability that the other witnesses’ testimony would 

have altered the outcome of the case. Each witness’ deficiencies will be addressed in turn.

(a) Davis

[9,10] Britt cannot prove that he suffered prejudice by 

his counsel’s failure to call Davis as a witness, because the 

court would not have allowed Davis to testify. At the time of 

Britt’s trial, Davis was challenging his own convictions that 

resulted from the attempted robbery. 23 If Britt had called Davis 

to testify, Davis would most likely have invoked his Fifth 

Amendment protections against self-incrimination. Neb. Rev. 

Stat. § 27-513(2) (Reissue 2016) makes it clear that courts 

must avoid having witnesses claim privilege in the presence 

of the jury whenever practicable. 24 Consequently, “[a]bsent 

19 See Martinez, supra note 13.

20 Id.

21 Id.

22 Id.

23 See State v. Davis, 290 Neb. 826, 862 N.W.2d 731 (2015).

24 State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
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extraordinary circumstances, trial courts should exercise their 

discretion to forbid parties from calling witnesses who, when 

called, will only invoke a privilege.” 25

Here, the court would have barred Britt from calling Davis 

to testify. Therefore, Britt did not suffer prejudice by his counsel’s failure to call Davis as a witness.

(b) Dvoraks

Britt cannot show that he suffered prejudice by his counsel’s 

failure to call the Dvoraks to testify. Britt argues that his counsel should have called the Dvoraks as witnesses to impeach 

Clairday’s testimony that Britt handed her the gun when she 

picked up both Davis and him. In Britt’s motion for postconviction relief, he asserted that the Dvoraks would have testified 

that Clairday told them that “[she] picked up . . . Davis by 

himself [and] he gave her the weapon [and that she] never told 

the Dvoraks that . . . Davis [was] with anyone at the time that 

she pick[ed] him up.”

[11,12] Prior inconsistent statements of a witness are admissible as impeachment evidence. 26 However, prior inconsistent 

statements of a witness are not admissible as substantive evidence, unless they are otherwise admissible under the Nebraska 

Evidence Rules. 27

While the Dvoraks’ testimony regarding what Clairday 

told them would be hearsay, it would have been admissible 

for impeachment purposes as a prior inconsistent statement. 

However, Britt could not use the Dvoraks’ testimony as substantive evidence to prove that Clairday did not pick Britt up 

or that he did not hand her the gun. The testimony would have 

been solely limited to discrediting Clairday.

There is not a reasonable probability that the Dvoraks’ 

testimony would have altered the outcome of the case. Even 

25 See id. at 977-78, 951 N.W.2d at 778 (internal quotation marks omitted).

26 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

27 See id.
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without the Dvoraks’ testimony, the jury was keenly aware of 

Clairday’s behavior and propensity to lie. Clairday admitted to 

the jury that she was a convict and a former methamphetamine 

addict and that she had lied repeatedly to law enforcement. 

Therefore, Britt cannot prove that he suffered prejudice by his 

counsel’s failure to call the Dvoraks to testify.

(c) Ashland Police Officers

[13] While Britt assigns that his counsel should have called 

the two Ashland police officers who interviewed the Dvoraks 

to testify, Britt failed to present this argument in his motion 

for postconviction relief. In an appeal from the denial of postconviction relief, we will not consider for the first time on 

appeal claims that were not raised in the verified motion. 28

Consequently, we will not consider this argument.

3. Motion to Appoint Counsel

[14] Next, Britt assigns the court erred by overruling his 

motion to appoint counsel to represent him. However, Britt 

failed to provide an argument in his brief. An alleged error 

must be both specifically assigned and specifically argued 

in the brief of the party asserting the error to be considered 

by an appellate court. 29 Therefore, we decline to address this 

assignment.

4. Motion for Default Judgment

Finally, Britt assigns that the court erred by overruling his 

motion for default judgment. Britt argues that because the 

State failed to file a timely response to his motion for postconviction relief, the court should have awarded him a default 

judgment and granted his motion.

[15] The record is devoid of any reference to a default 

judgment motion. It is incumbent upon an appellant to supply 

28 State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).

29 State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
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a record which supports his or her appeal. 30 Absent such a 

record, as a general rule, the decision of the lower court as to 

those errors is to be affirmed. 31

[16] Even if we were to overlook the deficient record, we 

have explained that the Nebraska Postconviction Act does 

not authorize the district court to grant postconviction relief 

without first conducting an evidentiary hearing and making 

findings of fact and conclusions of law. 32 The court was not 

empowered to award a default judgment to Britt, and therefore, 

his assignment lacks merit.

V. CONCLUSION

Britt failed to assert a claim of ineffective assistance of 

counsel that warranted an evidentiary hearing. We decline to 

consider his other assignments of error. We affirm the order of 

the district court.

Affirmed.

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

30 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).

31 Id.

32 See State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).