1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination to admit evidence over a hearsay objection.
2.Trial: Evidence. Regardless of whether the proponent or the trial court articulated no theory or the wrong theory of admissibility, an appellate court may affirm the ultimate correctness of the trial court's admission of the evidence under any theory supported by the record, so long as both parties had a fair opportunity to develop the record and the circumstances otherwise would make it fair to do so.
3.Rules of Evidence: Conspiracy. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 2008), a statement is excluded as nonhearsay if it is more likely than not that (1) a conspiracy existed, (2) the declarant was a member of the conspiracy, (3) the party against whom the assertion is offered was a member of the conspiracy, (4) the assertion was made during the course of the conspiracy, and (5) the assertion was made in furtherance of the conspiracy.
4.Conspiracy. The declarant conspirator who partners with others in the commission of a crime is considered the agent of his or her fellow conspirators, and the commonality of interests gives some assurance that the statements are reliable.
5.. It is well established that a conspiracy is ongoing--such that statements are considered made during the course of the conspiracy--until the central purposes of the conspiracy have either failed or been achieved.
6.. The federal courts and the overwhelming majority of state courts reject any argument that postcrime concealment is implicitly encompassed by the underlying conspiracy.
7.Conspiracy: Hearsay: Rules of Evidence. Absent an express original agreement among the conspirators to continue to act in concert in order to cover up or an independent coverup conspiracy, assertions are not excluded from the hearsay rule when made after the central aim of the conspiracy has ended and while the conspirators were acting in concert to conceal their prior criminal activity.
8.Conspiracy: Hearsay: Time. Every conspiracy is by its very nature secret and extending the conspiracy into the concealment phase by virtue merely of acts of covering up, even though done in the context of a mutually understood need for secrecy, would extend the life of a conspiracy indefinitely and concurrently extend indefinitely the time within which hearsay declarations will bind coconspirators.
9.Conspiracy: Hearsay: Evidence. To exclude statements from the hearsay prohibition under the theory that the declarant and the defendant formed a separate coverup conspiracy, the preponderance of the evidence must establish the separate conspiracy to conceal without relying on the facts of the original conspiracy to commit the underlying crime and without relying entirely on the hearsay statements themselves.
10.Conspiracy. A separate conspiracy to conceal cannot be implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment after the main objective has succeeded or failed.
11.Conspiracy: Rules of Evidence: Case Disapproved. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), is disapproved insofar as it implies it is "well established" that statements made by a coconspirator in furtherance of avoiding capture or punishment fall under the coconspirator exclusion when the coconspirator is simply attempting to avoid arrest, which is the inevitable course of action following the success or failure of the principal aims of any conspiracy.
12.Conspiracy. A conspirator recounting past transactions or events having no connection with what is being done in promotion of the common design cannot be assumed to represent those conspirators associated with him or her. Such narrative statements are likely to be unreliable and self-serving, because they result from premeditation and design.
13.. Where a conspirator is not seeking through his or her statements to induce a listener to join the conspiracy, then the listener's subsequent role in the conspiracy does not retroactively convert the statements into declarations in furtherance of the conspiracy.
14.. Statements that further a speaker's own individual objective rather than the objective of a conspiracy are not made in furtherance of the conspiracy.
15.Trial: Hearsay. Alternate theories of admissibility for a statement objected to as hearsay and admitted for the truth of the matter asserted are limited to theories under which the statement would be admissible for the truth of the matter asserted.
16.Trial: Evidence: Appeal and Error. The proponent of evidence who fails to present at trial alternative grounds for the admissibility of the evidence does so at his or her peril. If the record was inadequately developed to support foundation for alternate grounds or the opponent was not fairly given the opportunity to develop facts contrary to admissibility on the alternate grounds, then an appellate court will not affirm the ultimate correctness of the trial court's admission of the evidence under theories presented by the proponent for the first time on appeal.
17. Rules of Evidence: Hearsay. Excited utterances are an exception to the hearsay rule, because the spontaneity of excited utterances reduces the risk of inaccuracies inasmuch as the statements are not the result of a declarant's conscious effort to make them.
18.: . The justification for the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.
19.Trial: Witnesses: Appeal and Error. It would be inappropriate to attempt to ascertain the declarant's unavailability for the first time on appeal without evidence that the declarant was subpoenaed, that an actual claim of privilege was made, or that there was a ruling by the judge on the claimed privilege.
20. Confessions. While a self-inculpatory statement is more reliable under the theory that reasonable people do not make self-inculpatory statements unless they believe them to be true, the same cannot be said of a non-self-exculpatory statement.
21. Confessions: Presumptions. Statements of accomplices incriminating a defendant have traditionally been viewed with special suspicion and considered presumptively unreliable.
22. Confessions. Whether a particular remark within a larger narrative is "truly self-inculpatory"--such that a reasonable person would make the statement only if believed to be true--is a fact-intensive inquiry requiring careful examination of all the circumstances surrounding the criminal activity involved.
23. . A statement that is in part inculpatory by admitting some complicity, but that is exculpatory insofar as it places the major responsibility on others, does not meet the test of trustworthiness and is thus inadmissible.
24.Criminal Law: Trial: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
25.Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error.
26.Verdicts: Evidence: Appeal and Error. Overwhelming evidence of guilt can be considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless.
27. Convictions: Evidence. Where evidence is cumulative and other competent evidence supports the conviction, improper admission or exclusion of evidence may be harmless.
28.Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge.
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.
Wright, Connolly, McCormack, Miller-Lerman, and Cassel, JJ., and Irwin and Bishop, Judges.
I. NATURE OF CASE
Timothy J. Britt was convicted on 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. These convictions were based in part upon the testimony of several witnesses as to statements made by an alleged coconspirator, Anthony Davis, after the murders. Britt appeals, arguing that the trial court erred in overruling his hearsay objections to these statements.
Britt's convictions arose out of the deaths of Miguel E. Avalos, Sr. (Miguel Sr.); Jose Avalos; and Miguel E. Avalos, Jr. (Miguel Jr.) Davis was convicted in a separate trial of three counts of first degree murder and three counts of use of a deadly weapon to commit a felony arising from the deaths of the same victims. At the time of Britt's trial, Davis was awaiting sentencing.
1. Attempted Robbery
In the early morning hours of July 9, 2012, Miguel Sr., Jose, and Miguel Jr. were shot and killed during an attempted robbery of their house near the intersection of Ninth and Bancroft Streets in Omaha, Nebraska. At the time of the robbery, Miguel Sr.'s oldest son was living in the basement of the house with his wife and infant child. This son heard the shots and hid with his family. He testified that he believed he heard more than one intruder.
Miguel Sr. was a known drug dealer. Before Miguel Sr.'s death, a confidential informant, Greg Logemann, told police about Miguel Sr.'s drug dealings. Logemann was also a drug dealer and was friends with Davis. Britt's brother, Mike Britt, was also a friend of Davis.
Logemann testified that in early July 2012, he and Davis began plans to rob Miguel Sr. In exchange for his testimony at trial, Logemann was granted limited use immunity and not charged with the murders. Logemann was charged with criminal conspiracy to commit robbery, a Class II felony.
Logemann stated he thought Miguel Sr. would "be an easy lick." But there was no talk about killing anyone. The plan was that he would show Davis where Miguel Sr. lived and that Davis would then commit the robbery. Davis and Logemann agreed to split the profit from the robbery with "[w]hoever [Davis] took with him" to commit the robbery.
On the evening of July 8, 2012, Davis and Logemann put their plan into action. Davis got a ride from his friend, Crystal Branch, and her roommate, Charice Jones. Both Branch and Jones testified at trial, and both were granted immunity in exchange for their testimony. Branch, who was driving her van, and Jones picked up Davis at his apartment. Britt's brother, Mike, was there, and Branch, Jones, Davis, and Mike left the apartment to pick up Logemann. According to Jones, they dropped Mike off before picking up Logemann, and Britt joined them in the van at that time.
Logemann testified Britt was in the van when he was picked up. But according to Branch, Mike--not Britt--was with them when they picked up Logemann and drove by the house on Ninth and Bancroft Streets. Logemann's participation in the robbery was to "show [Davis] where to go later on." Logemann, Branch, and Jones testified that, at Logemann's direction, they drove by a house in the area of Ninth and Bancroft Streets, which Logemann identified as Miguel Sr.'s house.
When they drove by Miguel Sr.'s house, Branch and Jones were in the front seats listening to music and drinking beer. Davis, Logemann, and the third person (being either Britt or Mike) sat in one of the back bench seats. Logemann sat near Britt (or Mike) and Davis in the van while Logemann discussed the planned robbery with Davis. Logemann's testimony regarding the specific details of the discussion was unclear.
Logemann, Branch, and Jones testified that Jones drove Logemann back to his apartment. According to Branch, they next dropped off Mike and picked up Britt.
Branch and Jones testified that shortly after dropping off Logemann, Davis and Britt went to the house where Branch and Jones lived. Branch and Jones testified that they all drank alcohol. Jones ingested methamphetamine, and Branch smoked marijuana.
Branch and Jones testified that in the early morning hours of July 9, 2012, Davis asked them to drive him and Britt back to the area of Ninth and Bancroft Streets. Branch and Jones agreed and testified that the van contained only Branch, Jones, Davis, and Britt.
Once at Ninth and Bancroft Streets, Britt asked for the keys to the van and directed Branch and Jones to get in the back seat, which they did. Branch and Jones testified that Davis and Britt then left the van. Branch and Jones sat in the back of the van drinking alcohol and playing on their cell phones. Davis returned after approximately 5 minutes. He silently got into the van and said nothing. About 5 minutes later, Britt returned to the van and drove them back to Branch's house.
Branch testified that Britt ran back to the van, wearing a bandanna over his face and gloves on his hands. Jones stated that she did not notice Britt wearing a bandanna and gloves, and believed that she would have noticed if Britt had been wearing such items upon his return. Jones did not say that Britt ran to the van. No one saw Davis or Britt with a weapon. Upon arrival Britt said, "[D]id you hear anything"?
Logemann testified that Branch and Jones knew about the robbery and, "[a]s far as I know, " they were "in on the cut of the action." Branch and Jones stated they believed Davis was going to buy drugs from whoever lived in the house and believed they had driven by the first time because the dealer was not home. Jones thought Britt had asked for her keys before going into the house on Ninth and Bancroft Streets because she had been drinking.
2. Police Investigation
During this same general timeframe, officers from the Omaha Police Department received a 911 emergency dispatch call reporting a shooting at the Avalos house. Upon arriving at the house, the officers discovered an older male, later identified as Miguel Sr., and two teenage males, later identified as Jose and Miguel Jr., lying in pools of blood on the floor. Miguel Sr. was found in the dining room, Jose was in the hallway, and Miguel Jr. was in his bedroom. All three victims had suffered multiple gunshot wounds to the head and/or chest.
It was determined that the shots had been fired by at least two guns--one shooting .22-caliber bullets, and another shooting .40-caliber bullets. Spent shell casings from .40-caliber bullets were found in the living room, dining room, and bedrooms. Jose was pronounced dead at the scene; Miguel Sr. and Miguel Jr. were taken to an Omaha hospital, where they subsequently died from their injuries.
The police confiscated various items from the house, including a .40-caliber semiautomatic handgun, methamphetamine, and over $5, 000 in cash. The .40-caliber semiautomatic handgun was found on the floor in Miguel Sr.'s bedroom, which was in disarray. The DNA testing of the semiautomatic handgun was inconclusive as to Davis and Britt. They could neither be included nor excluded as having contributed DNA to the gun. The Avalos house was tested for fingerprints, but the only usable print recovered was that of Miguel Jr.
Logemann initially denied knowing anything about the murders. On July 20, 2012, Logemann told the police about the conspiracy to rob Miguel Sr., and the police thereafter contacted Branch and Jones. Initially, Branch and Jones were untruthful, but eventually reported to the police Davis' and Britt's movements on July 8 and 9.
The police also contacted Tiaotta Clairday, Davis' girlfriend, who provided information about Davis' and Britt's actions in the days following the murders. With Clairday's assistance, the police retrieved a .22-caliber revolver from a culvert near Ashland, Nebraska. Clairday reported that the gun came from Britt. Comparisons of the revolver to the .22-caliber bullets recovered during the autopsies were inconclusive. Logemann stated that before July 8, 2012, he had seen Davis with a .22-caliber revolver in the basement of Davis' apartment.
3. Period During Which Davis and Britt Avoided Apprehension
Britt was not apprehended until July 25, 2012. Before his apprehension, Britt stayed at the house where Branch and Jones lived. Branch, Jones, Clairday, and Logemann testified about numerous statements made by Davis following the murders and preceding Britt's arrest. Davis did not testify at trial.
Over Britt's hearsay objection, the trial court admitted Davis' statements as nonhearsay statements by a coconspirator under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 2008). The court apparently relied on State v. Gutierrez for the proposition that the conspiracy does continue during the period of concealment after the principal aims of a conspiracy. The court did not find that Davis and Britt had formed a new coverup conspiracy.
Branch testified that at approximately 4 a.m., she, Jones, Davis, and Britt arrived back at the house she shared with Jones. She witnessed Davis and Britt having an argument half a block from the house and before Davis and Britt came inside.
Once in the house, Davis went to the bathroom and appeared to be sick. Britt sat on the couch and was silent. When Davis reemerged from the bathroom, he said he was trying to find a ride to get home. Eventually, Clairday arrived to pick up Davis and Britt, and they left.
A couple of hours later, Branch saw on the news reports of a triple homicide near Ninth and Bancroft Streets. Branch contacted Davis and made arrangements to meet with Davis that afternoon. When Branch, Jones, and Davis met, Davis confiscated Jones' and Branch's cell phones to see who they had been texting.
Branch testified that at that time, Davis told her she "needed to get out of town" and asked how much money she had. When Branch asked Davis what he had gotten himself into, Davis responded that "he had to answer to other people, and he thought [Branch] and [her] kids' safety was in jeopardy"; that "he had to answer to higher-ups now"; that he "just wanted [Branch] and [her] kids out of town"; and that he "would deal with the rest later." Branch understood from the statements that Britt intended to kill her and Jones.
Branch further testified that Davis told her during that meeting that "Britt had brought a gun to the situation, and that that was never supposed to have went down like that." Branch said Davis told them to go home and wait for his telephone call.
Later that evening, Davis and Britt visited Branch and Jones at their home. Davis eventually left, but Britt stayed. He began living in the basement with Jones and her two children until he was arrested. Branch testified that she did not have much contact with Britt when she was in the house, but that Britt went with her and Jones any time they ...