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03/27/2020 09:06 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                   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 photo-
                    graphs. 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 estab-
                    lish 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 cumula-
                    tive 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.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        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 posses-
sion 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

   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 methamphet-
amine, 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. BRITT
                       Cite as 305 Neb. 363

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 call-
ing 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 mum-
bling, 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 down-
stairs. 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

appeared scared. They finished packing and went downstairs to
load the vehicle.
   Clairday, Davis, and Britt then drove to Logemann’s apart-
ment. 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 rec-
ognized 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 “try-
ing 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 sev-
eral 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

revolver was wrapped up in a tank top secured by a headband.
A crime laboratory technician testified about her understand-
ing 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 morn-
ing, 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 him-
self during their initial questioning. After his initial contact
with police, Logemann met with Davis in person at a loca-
tion 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 “uncomfort-
able,” 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

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 pos-
session 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 cocon-
spirators 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 revers-
ibly 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 mur-
der, 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 defini-
tion of a “habitual criminal” within the meaning of § 29-2221.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

With respect to each of the three first degree murder convic-
tions, 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 deci-
sion 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 deter-
mination 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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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                          STATE v. BRITT
                         Cite as 305 Neb. 363

photographs generally showing the bodies of the murder vic-
tims. 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 dan-
ger 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 pro-
duce gruesome photographs. State v. Stelly, 304 Neb. 33, 932
N.W.2d 857 (2019). However, if the State lays proper founda-
tion, 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 stabil-
      ity of the jury. A juror is not some kind of a dithering nin-
      compoop, 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

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 identifica-
tion, 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 pur-
poses 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 suggest-
ing 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 vic-
tims’ 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 pho-
tographs for a proper purpose and did not abuse its discretion
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

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 con-
tends, restated, that his right of confrontation was violated
because Davis, the alleged coconspirator, was not called to tes-
tify 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 pre-
served, Britt has directed us to no authority to the effect that
the district court had an independent obligation to call a wit-
ness or require the State to call a witness. Davis did not testify
at trial, and Britt had the opportunity to cross-examine the sev-
eral 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 circumstan-
tial 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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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. BRITT
                        Cite as 305 Neb. 363

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 wear-
ing 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.
