State v. Britt

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STATE v. BRITT
Cite as 293 Neb. 381
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
State of Nebraska, appellee, v.
Timothy J. Britt, appellant.
881 N.W.2d 818
Filed April 22, 2016. 	No. S-14-551.
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 circum-
stances 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 con-
spirators, 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 conspir-
acy—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 encom-
passed by the underlying conspiracy.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:27 AM CST

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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 vir-
tue 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 con-
spiracy indefinitely and concurrently extend indefinitely the time within
which hearsay declarations will bind coconspirators.
9. Conspiracy: Hearsay: Evidence. To exclude statements from the hear-
say prohibition under the theory that the declarant and the defendant
formed a separate coverup conspiracy, the preponderance of the evi-
dence 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 cocon-
spirator 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 hav-
ing 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

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Cite as 293 Neb. 381
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 admis-
sibility 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 con-
scious 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 state-
ments 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 com-
plicity, but that is exculpatory insofar as it places the major responsi-
bility 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.

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25. Verdicts: Juries: Appeal and Error. In a harmless error review, an
appellate court looks at the evidence upon which the jury rested its ver-
dict; 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 evi-
dence harmless.
27. Convictions: Evidence. Where evidence is cumulative and other com-
petent evidence supports the conviction, improper admission or exclu-
sion 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. Reversed and remanded.
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.
Wright, J.
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 com-
mit 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.

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STATE v. BRITT
Cite as 293 Neb. 381
II. BACKGROUND
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.1 At the time of Britt’s trial, Davis was await-
ing 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 rob-
bery 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 crimi-
nal 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.
1 See State v. Davis, 290 Neb. 826, 862 N.W.2d 731 (2015).

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Cite as 293 Neb. 381
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 dis-
cussed 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

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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.

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Cite as 293 Neb. 381
It was determined that the shots had been fired by at least
two guns—one shooting .22-caliber bullets, and another shoot-
ing .40-caliber bullets. Spent shell casings from .40-caliber
bullets were found in the living room, dining room, and bed-
rooms. Jose was pronounced dead at the scene; Miguel Sr. and
Miguel Jr. were taken to an Omaha hospital, where they subse-
quently died from their injuries.
The police confiscated various items from the house, includ-
ing a .40-caliber semiautomatic handgun, methamphetamine,
and over $5,000 in cash. The .40-caliber semiautomatic hand-
gun was found on the floor in Miguel Sr.’s bedroom, which
was in disarray. The DNA testing of the semiautomatic hand-
gun 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 mur-
ders. On July 20, 2012, Logemann told the police about the
conspiracy to rob Miguel Sr., and the police thereafter con-
tacted 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

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Jones lived. Branch, Jones, Clairday, and Logemann testified
about numerous statements made by Davis following the mur-
ders 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. Gutierrez2 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.
(a) Branch
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”;
2 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).

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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 meet-
ing 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 left the house.
Branch stated that she was not comfortable with Britt’s stay-
ing in the house.
(b) Jones
Jones’ testimony concerning the period of time after the
murders was similar to Branch’s. She said the day after the
murders, Davis “asked if we could get out of town” and offered
to “help come up with some money,” and he told her “it was
out of his hands, he was answering to somebody else.” Jones
admitted that Davis did not specifically mention Britt during
that conversation.
A couple of days after the murders, Davis and Britt returned
to the house where Branch and Jones lived. Britt spoke pri-
vately with Jones, asking her questions about her children, her
age, and the children’s father, which made Jones feel nervous.
Britt began staying with Jones in the basement, sleeping in her
bedroom. Jones described Britt as “scary” and stated that she
was nervous and scared while he was staying with her.
(c) Clairday
Clairday testified that when Davis asked her to come pick
him up in the early morning hours of July 9, 2012, he seemed
upset. He was talking low and fast. Clairday did not wish to

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pick Davis up, because doing so would violate the curfew that
was a condition of her probation. When Clairday insisted Davis
tell her what was going on, Davis told her that “something had
happened that shouldn’t have happened, and that some people
got hurt that shouldn’t have got hurt.” This statement was not
objected to, and is the only statement at issue that was made
before Britt obtained a standing hearsay objection.
Clairday testified that when she arrived at Branch and Jones’
house, Davis told her that “they had went to rob somebody, and
some things had happened that weren’t supposed to happen”
and that “some people got hurt that shouldn’t have got hurt.”
Clairday testified that she and Davis engaged in a heated argu-
ment, “mostly because he was at another woman’s house.”
Davis eventually explained that she had to give Britt a ride
also. Davis told Clairday that Britt had a gun. Clairday was not
enthusiastic about giving Britt a ride, but she relented. When
Britt entered her car, Clairday asked him if he had anything
he was not supposed to have. Britt responded by handing her
a revolver.
Clairday testified that she drove first to the apartment of her
friend, Larry Lautenschlager. The revolver was in her handbag,
and Clairday handed it to Lautenschlager and asked him to get
rid of it. She asked Lautenschlager for two changes of clothes
for Davis and Britt. Clairday denied noticing anything amiss
with the clothing either Davis or Britt wore.
Clairday said that while this was occurring, Davis was
standing by the door looking at her and “shaking his head,
like asking me what I was doing.” Then Davis asked to speak
with Clairday privately in the bathroom. Clairday testified that
in the bathroom, Davis was “rambling.” He appeared nervous,
scared, and “like he had the shakes.” Davis told Clairday that
“he wanted [Clairday] to stay by him, he didn’t want [her]
by [Britt],” and that “something happened.” Clairday helped
Davis change his clothes. When they exited the bathroom and
went outside, Clairday saw Britt burning a pair of gloves on
the grill.

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Davis, Britt, and Clairday left Lautenschlager’s apartment
and went to Clairday’s apartment. Britt stayed downstairs,
while Davis and Clairday went upstairs. Clairday testified that
she and Davis spoke about Davis’ leaving town. Davis was
scared and crying. Clairday “wasn’t understanding what he
was trying to tell me.” At some point during the conversation,
Britt called up the stairs and asked Davis “if he was losing
him.” After packing a bag for Davis, they all left and went to
Logemann’s apartment.
At Logemann’s apartment, Britt and Clairday stayed in the
car, while Davis went inside. Clairday testified that she asked
Britt what was going on, but Britt did not respond.
Clairday contacted an aunt in California to make arrange-
ments for Davis to stay with her. Davis and Clairday then
dropped off Britt. As Clairday’s conversation with Davis con-
tinued, Clairday testified that “[i]t had started dawning on me
what had happened. He was talking, he was just telling me how
much he loved me, and if I was going to leave him if he went
to jail.”
Clairday dropped Davis off at her apartment and went back
to Lautenschlager’s apartment to consume methamphetamine.
Lautenschlager had not yet disposed of the revolver, and she
became upset with Lautenschlager and took the revolver back.
Clairday returned to her apartment, she showed the gun to
Davis, and they argued.
Clairday left and eventually hid the gun in her car. When
Clairday returned, she lied to Davis and told him that she had
thrown the gun in the river. Clairday then took Davis to a
friend’s apartment.
After dropping off Davis, Clairday drove to a house in
Ashland where she had been living with another man, Eugene
Cates. Cates hid the revolver under his bed. A couple of days
later, Clairday moved back to the apartment she shared with
Davis; she was on probation, and her request to relocate to
Ashland was denied. Britt visited the apartment, and Clairday
testified that Davis and Britt spoke in “hush tones.” Clairday

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also testified that she once overheard Davis ask on the tele-
phone “where the other gun was.” Clairday did not specifically
identify to whom Davis was speaking.
Clairday continued to tell Davis that she had thrown the gun
in the river. Then Clairday went with Cates and Lautenschlager
and hid the gun in such a manner that neither Cates nor
Lautenschlager would know where she had hidden it.
Clairday testified that shortly before Davis was arrested,
“we had started talking a little bit about everything.” During
that time, Davis explained to her that
they had went to the house to rob somebody, and that
when they had gotten there, he was inside of a room going
through stuff and he heard gunshots. He ran out into the
hall, and [Britt] had met him in the hall. Somebody was
coming down the hall and they started shooting.
She also testified that she understood from these conversa-
tions that it was Britt, not Davis, who had started shooting
first. Clairday testified that Davis said that “[Britt] was trig-
ger happy.”
On redirect, Clairday admitted that she had told the police
Davis had said that while Davis was searching through one
of the rooms of the Avalos house, “[Britt] went pop, pop,
pop in the other room.” She eventually kicked Davis out of
her apartment.
(d) Logemann
Logemann testified that around 5 a.m. on July 9, 2012, he
received a text message from Davis informing him that “they
didn’t do the robbery because his girlfriend caught him with
some other women.” Davis texted Logemann later that day
stating, again, that nothing had happened.
After Logemann’s police contact asked him about the
murders, Logemann confronted Davis. Logemann testified
that on the afternoon of July 9, 2012, Davis finally explained
to him that “everything went wrong” and that “Cuz started
shooting.”

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Logemann explained that he believed “Cuz” was a reference
to Britt. But Logemann admitted on cross-examination that he
had spoken to the police about a person named “Mike Jones,”
a man with whom Davis frequently associated and whom
people referred to as “Cuz.” This “Mike Jones” was appar-
ently not the same Mike who was Britt’s brother. Logemann
admitted that he did not know whether Britt was the person
that Logemann took with him to commit the robbery, because
he “wasn’t there.”
Several days after the murders, Davis and Britt visited
Logemann at his apartment. Logemann testified that Britt
asked him about pictures of his children on the refrigerator,
which made him feel nervous.
At some other point in time after the murders, Davis told
Logemann that “he was worried about DNA because a gun
got dropped.” Logemann admitted that Davis did not specify
whose DNA he was worried about or who dropped the gun.
4. Defense Witness Lautenschlager
Britt called only one witness in his defense. Lautenschlager
testified that he was friends with Clairday, but he denied that in
July 2012, she had given him a gun to hide.
5. Closing Arguments
(a) State
In closing arguments, the State described how Davis and
Britt had “used a couple of unwitting girls” who “weren’t
directly involved” and who likely did not hear any robbery
plan discussed in the van due to the loud music. The State
argued that Davis and Britt used Branch and Jones to get
them to the location of an attempted robbery that “went hor-
ribly wrong.”
After the State emphasized that a .40-caliber semiautomatic
handgun apparently used in the shootings was found at the
scene, it referenced Davis’ “co-conspirator statement” that
he was worried about DNA being found on a gun left at the

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scene. In the context of discussing the fact that .22-caliber
bullets were also used in the shooting, the State pointed
out that Britt had given Clairday a .22-caliber revolver. The
State described the positions of the bodies and the number of
wounds, then the State emphasized various other “co-conspir-
ator statements” made by Davis, including that “Cuz started
shooting” and that Davis had heard “pop, pop, pop” when he
was in another room.
The State described how the murders had “affected” Davis;
he was “freaking out and getting sick.” The State described that
for Davis, this was a “most dire of times in a situation where
you have just been part of what is the worse as he described
something that never should have happened.”
In that situation, Davis “calls the single most important
person that he can think of at the time to try to get away.”
The State characterized Clairday’s demand of the gun as “a
prepay” for the “cab” and stated that the scenario described
by Clairday was “not anything except what it is described.”
According to the State, Clairday kept the gun Britt handed her
in order to keep it away from him. The State further described
Clairday’s actions in hiding the gun as “trying to help someone
she loved.”
While at Clairday’s apartment, Britt was “concerned that
. . . Davis now is the person that’s going to come in and testify
because he can’t handle it because he’s breaking down because
of the tragedy and events that those two had performed.”
The State described that Britt “coldly and more calculat-
ingly starts thinking for himself.” Britt was “tracking Davis
from down the stairs.” The State clarified that Britt’s asking
Davis if he was still with him was not “innocent and innocu-
ous words.” Rather, “[t]he turn is taking place; . . . the people
who were the planner[s] are getting intimidated by this person
[Britt] who is just watching and staring.”
While Britt was “not talking directly about escape at that
point, he does end up in a position with the two girls where
he’s able to monitor them daily and regularly.” The State

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suggested that Britt deliberately tried to scare, intimidate,
and keep an eye on Branch, Jones, and Logemann, because
they were the only three people that linked Davis and Britt to
the murders.
The State explained that Logemann originally lied to the
police because he was worried about being implicated in a rob-
bery. The State noted that Logemann did not even understand
the concept of felony murder.
(b) Defense
The defense argued that Branch and Jones were part of the
conspiracy to rob Miguel Sr.—not Britt—and that they pos-
sibly went into the Avalos house rather than wait in the van.
The defense illustrated the contradictions between Branch’s
and Jones’ testimonies, and also the fact that Jones had three
unrelated robbery charges pending against her at the time of
Britt’s trial. The defense pointed out that there was no reason
for Logemann to lie about Branch’s and Jones’ knowledge of
the robbery.
The defense suggested that Davis’ friend, “Mike Jones,”
rather than Britt, may have been involved in the attempted rob-
bery and murders. Either way, the defense argued that Branch,
Jones, Logemann, and Davis wanted to shift the blame away
from themselves and onto Britt.
The defense asserted that Clairday would do whatever it
took to protect Davis. The defense argued that it would be
unbelievable that Britt would have handed Clairday his gun at
her request: “[S]ome lady, stranger just says you got something
for me? Yeah, sure, here’s the murder weapon, go ahead and
hang on to that, I’ll put my life in your hands.” The defense
argued that the gun belonged to Davis and was given to
Clairday by Davis. The defense also noted in this regard that
Lautenschlager denied that Clairday gave him a gun to get
rid of.
The defense pointed out that only Davis appeared concerned
with trying to get out of town and with checking whether

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Branch or Jones had incriminating evidence on their cell
phones. The defense suggested that this was because Britt had
no reason to hide.
The defense found it “[u]nbelievable” that Britt moved into
the house where Branch and Jones lived against their will,
noting that they could have called the police at any time. The
defense emphasized that there was no physical evidence link-
ing Britt to the crime, despite the fact that several physical
items were handled during the attempted robbery.
III. ASSIGNMENT OF ERROR
Britt assigns that the trial court erred by admitting hear-
say testimony under the coconspirator exception to the hear-
say rule.
IV. STANDARD OF REVIEW
[1] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hear-
say objection.3
V. ANALYSIS
We are asked to determine whether the trial court erred in
admitting Davis’ out-of-court statements to Logemann, Branch,
Jones, and Clairday in the weeks following the murders. Britt
asserts that the trial court erred in failing to grant his hearsay
objections to these statements.
The hearsay rule is premised on the theory that out-of-court
statements are subject to particular hazards.4 The declarant
could have misperceived events, be lying, or have a faulty
memory.5 The declarant’s statements could be taken out of
3 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
4 Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d
476 (1994).
5 Id.

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context or misunderstood.6 Because the statements were made
out of court, these dangers are not minimized by the oath,
the witness’ awareness of the gravity of the proceedings, the
jury’s ability to observe the witness’ demeanor, and cross-
examination.7 The exclusions and exceptions to the hearsay
rule recognize, however, that some kinds of out-of-court state-
ments are less subject to the particular hazards that the hearsay
prohibition protects against.8
[2] The State argues that most of Davis’ statements were
properly admitted under the coconspirator exclusion to the
hearsay rule. To the extent the statements do not meet the
criteria for the coconspirator exclusion, the State urges this
court to affirm their admission under the excited utterance and
against interest exceptions to the hearsay rule, which were
neither presented to nor determined by the trial court. We have
said that 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.9
1. Coconspirator Exclusion
[3] We turn first to the coconspirator exclusion. The cocon-
spirator exclusion, found in § 27-801(4), provides that “[a]
statement is not hearsay if . . . (b) The statement is offered
against a party and is . . . (v) a statement by a coconspirator
of a party during the course and in furtherance of the con-
spiracy.” Under this rule, a statement is excluded as nonhear-
say if it is more likely than not that (1) a conspiracy existed,
6 Id.
7 See id.
8 See id.
9 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

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(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.10
[4] The underlying theory of the coconspirator exclusion is
that because the conspirators are all partners in the commission
of the crime, they have a collective responsibility for the acts
and declarations of each other directed toward the accomplish-
ment of the common purpose.11 The declarant conspirator is
considered under such circumstances to be the agent of his or
her fellow conspirators, and the commonality of interests gives
some assurance that the statements are reliable.12
[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.13 Here, the central purpose
of the conspiracy between Davis, Britt, and Logemann was
to rob Miguel Sr. All the statements Britt objected to at trial
were made after that robbery had failed. There is no evidence
that after the robbery failed, Davis, Britt, and Logemann still
intended to carry it out.
(a) Majority Rule
[6,7] The federal courts and the overwhelming majority of
state courts reject any argument that postcrime concealment
is implicitly encompassed by the underlying conspiracy. The
10 See David F. Binder, Hearsay Handbook, 4th § 35:9 (2015-16 ed.). See,
also, Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed.
2d 144 (1987).
11 Annot., 4 A.L.R.3d 671, § 2[a] (1965).
12 See, e.g., Lutwak v. United States, 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed.
593 (1953); State v. Henry, supra note 9; Commonwealth v. Bongarzone,
390 Mass. 326, 455 N.E.2d 1183 (1983).
13 See Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed.
790 (1949).

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majority rule is that the agreement or understanding that forms
the conspiracy does not include an implied agreement that the
conspirators will try to avoid apprehension after the crime has
been committed.14 Therefore, absent an “express original agree-
ment among the conspirators to continue to act in concert in
order to cover up”15 or an independent “coverup conspiracy,”16
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.17
The U.S. Supreme Court has weighed in on this issue sev-
eral times, “consistently refus[ing] to broaden that very narrow
[coconspirator exclusion] to the traditional hearsay rule”18 and
specifically rejecting any argument that an implicit subsidiary
phase of a conspiracy continues after the central objectives
have succeeded or failed.19
The Court reasons that “acts of covering up can by them-
selves indicate nothing more than that the conspirators do not
wish to be apprehended—a concomitant, certainly, of every
crime since Cain attempted to conceal the murder of Abel from
the Lord.”20 Furthermore, implying a postcrime concealment
14 See, Binder, supra note 10, § 35:13 (and cases cited therein); G. Michael
Fenner, The Hearsay Rule 84-85 (2013) (and cases cited therein); 4
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:60
(4th ed. 2013) (and cases cited therein).
15 Grunewald v. United States, 353 U.S. 391, 404, 77 S. Ct. 963, 1 L. Ed. 2d
931 (1957).
16 See U.S. v. DiDomenico, 78 F.3d 294, 303-04 (7th Cir. 1996).
17 See, Binder, supra note 10, § 35:13 (and cases cited therein); Fenner,
supra note 14 (and cases cited therein); 4 Mueller & Kirkpatrick, supra
note 14 (and cases cited therein).
18 Wong Sun v. United States, 371 U.S. 471, 490, 83 S. Ct. 407, 9 L. Ed. 2d
441 (1963).
19 Id.; Grunewald v. United States, supra note 15; Lutwak v. United States,
supra note 12; Krulewitch v. United States, supra note 13.
20 Grunewald v. United States, supra note 15, 353 U.S. at 405-06.

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phase to conspiracies would unacceptably broaden the limits of
the exception:
It is difficult to see any logical limit to the “implied
conspiracy,” either as to duration or means, nor does
it appear that one could overcome the implication by
express and credible evidence that no such understanding
existed, nor any way in which an accused against whom
the presumption is once raised can terminate the imputed
agency of his associates to incriminate him. Conspirators,
long after the contemplated offense is complete, after
perhaps they have fallen out and become enemies, may
still incriminate each other by deliberately harmful, but
unsworn declarations, or unintentionally by casual con-
versations out of court.21
[8] In Grunewald v. United States,22 the Court summarized
that the “crucial teaching” of its case law was that
after the central criminal purposes of a conspiracy have
been attained, a subsidiary conspiracy to conceal may not
be implied from circumstantial evidence showing merely
that the conspiracy was kept a secret and that the conspir-
ators took care to cover up their crime in order to escape
detection and punishment.
“[E]very conspiracy is by its very nature secret” and extending
the conspiracy into the concealment phase by virtue merely of
“[a]cts 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 indefi-
nitely the time within which hearsay declarations will bind
co-conspirators.”23
21 Krulewitch v. United States, supra note 13, 336 U.S. at 456 (Jackson, J.,
concurring; Frankfurter and Murphy, JJ., join).
22 Grunewald v. United States, supra note 15, 353 U.S. at 401-02.
23 Id., 353 U.S. at 402.

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(b) Davis’ Statements Inadmissible
Under Majority Rule
The State all but concedes that under this majority rule,
none of Davis’ statements would be admissible under the
coconspirator exclusion to the hearsay rule. The record demon-
strates that the events following the murders were not part of
an explicit escape or concealment plan that was formed before
the murders. Rather, in the original plan, it was presumed that
Miguel Sr., being a drug dealer, would never report the rob-
bery. A conspiracy to commit a series of objectives as part of
an ongoing operation does not end until the entire sequence of
planned aims have failed or been achieved,24 and a conspiracy
to commit a robbery continues until the illegally obtained cash
has been divided among the conspirators.25 But there were no
proceeds to be distributed at the time Davis’ statements were
made, and there was no evidence that the original conspiracy
contemplated a series of crimes in which the attempted robbery
was but one part.
(c) Coverup Conspiracy
[9] The State instead argues that there was sufficient
evidence of an independent coverup conspiracy. To exclude
statements from the hearsay prohibition under such a theory,
the preponderance of the evidence must establish the sepa-
rate conspiracy to conceal without relying on the facts of
the original conspiracy to commit the underlying crime26
24 See, U.S. v. Moses, 148 F.3d 277 (3d Cir. 1998); U.S. v. DiDomenico,
supra note 16; United States v. Del Valle, 587 F.2d 699 (5th Cir. 1979).
25 See, U.S. v. Franklin, 415 F.3d 537 (6th Cir. 2005); United States v. Davis,
766 F.2d 1452 (10th Cir. 1985); United States v. Hickey, 596 F.2d 1082
(1st Cir. 1979); United States v. Knuckles, 581 F.2d 305 (2d Cir. 1978).
26 See, Fenner, supra note 14; Lutwak v. United States, supra note 12;
Krulewitch v. United States, supra note 13; Villafranca v. People, 194
Colo. 472, 573 P.2d 540 (1978); Wells v. State, 492 So. 2d 712 (Fla. App.
1986).

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and 	without 	relying 	entirely 	on 	the 	hearsay 	statements
themselves.27
[10] A separate conspiracy to conceal cannot be implied
from elements which will be present in virtually every con-
spiracy case, that is, secrecy plus overt acts of concealment
after the main objective has succeeded or failed.28 There must
instead be direct evidence showing an agreement among the
conspirators to continue to act in concert in order to cover up
the crimes, in addition to an overt act.29 The essence of the
crime of conspiracy is the agreement.30 Both Davis (the declar-
ant) and Britt (the party against whom the statement is offered)
must have agreed to be members of this alleged second cov-
erup conspiracy.
Leaving aside the fact that an independent coverup con-
spiracy was never found below, the record does not support
such a conspiracy. There was little evidence of an agreement
or understanding between any of the original conspirators
after the murders. The record indicates to the contrary that the
original conspirators, particularly Davis and Britt, had ceased
thinking or acting in concert. After the murders, Davis imme-
diately lied to Logemann, saying that they did not attempt
to carry out the robbery. Davis then urged Branch and Jones
to get away from Britt, acting contrary to Britt’s apparent
plan to either kill or shadow Branch and Jones in order to
ensure their silence. Davis made plans to escape to California
that did not include Britt. Britt worried that he was “losing”
Davis. Even the State described Britt during this period as
“thinking for himself.” The preponderance of the evidence
27 See State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). See, also,
Bourjaily v. United States, supra note 10.
28 See Grunewald v. United States, supra note 15.
29 See id.
30 See Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99, 87 L. Ed. 23
(1942).

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does not establish that Davis and Britt conspired to cover up
the murders.
(d) Minority View
Alternative to its coverup conspiracy argument, the State
urges us to adopt the minority view that allows an implied con-
cealment phase to be considered a continuation of the under-
lying conspiracy. This position is recognized by only a small
minority of state courts.31
(i) State v. Gutierrez
We acknowledge that in State v. Gutierrez,32 we said it is
well established that statements made by a coconspirator in
furtherance of avoiding capture or punishment are made in
furtherance of the conspiracy within the meaning of § 27-801.
It is unclear what we meant by this broadly worded proposi-
tion. But we did not adopt in Gutierrez the minority view that
implicit plans of postcrime concealment constitute a continua-
tion of the original conspiracy.
When we made this statement in Gutierrez, we had already
held that the defendant’s general hearsay objection was insuf-
ficient to preserve the issue of whether the statements fell
under the coconspirator exclusion.33 Furthermore, we did not
specifically discuss in Gutierrez whether, at the time that the
31 See, Reed v. People, 156 Colo. 450, 402 P.2d 68 (1965); State v. Camacho,
282 Conn. 328, 924 A.2d 99 (2007); People v. Meagher, 70 Ill. App. 3d
597, 388 N.E.2d 801, 26 Ill. Dec. 800 (1979); State v. Kidd, 239 N.W.2d
860 (Iowa 1976); State v. Moody, 35 Kan. App. 2d 547, 132 P.3d 985
(2006); Com. v. Bright, 463 Mass. 421, 974 N.E.2d 1092 (2012); Com.
v. Cull, 540 Pa. 161, 656 A.2d 476 (1995); State v. Helmick, 201 W. Va.
163, 495 S.E.2d 262 (1997). See, also, Binder, supra note 10, § 35:13
(and cases cited therein); Fenner, supra note 14 (and cases cited therein);
4 Mueller & Kirkpatrick, supra note 14 (and cases cited therein).
32 State v. Gutierrez, supra note 2.
33 Id.

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relevant statements were made, the conspiracy was ongoing
such that the statements were made in the course of the con-
spiracy. The issue discussed was whether the statements were
in furtherance of the conspiracy.
Gutierrez is readily distinguishable, because the statements
in Gutierrez were the defendant’s statements, telling a fellow
drug dealer that the defendant’s drug business associate had
been involved in a murder and asking for shelter and advice.
This was, however, complicated by the fact that the coconspir-
ators were tried together. A codefendant objected to statements
made by the defendant to a participant in a marijuana distri-
bution operation in the participant’s apartment while seeking
refuge from the police and to a friend of the codefendant while
both were in jail. The defendant asked the friend why he had
“told” on the defendant. We concluded that the statement made
in jail did not implicate the codefendant in any way and that
its admission was at worst harmless error. The statement was
clearly admissible as to the defendant, and the codefendant
did not request a limiting instruction. Those statements were
admissible as statements by a party opponent.34 Furthermore,
as statements of the defendant, the statements did not raise
the concern articulated by the U.S. Supreme Court that con-
spirators would be able to incriminate each other by delib-
erately harmful, but unsworn declarations, or unintentionally
by casual conversations out of court, after the contemplated
offense is complete.35
We cited three cases in support of the proposition that state-
ments made by a coconspirator in furtherance of avoiding cap-
ture or punishment are made in furtherance of the conspiracy
within the meaning of § 27-801.36
34 See, e.g., State v. Henry, supra note 9.
35 See, Wong Sun v. United States, supra note 18; Grunewald v. United
States, supra note 15; Krulewitch v. United States, supra note 13.
36 See State v. Gutierrez, supra note 2.

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In the first case, U.S. v. Triplett,37 the court found admissible
statements of the defendant made while in jail, threatening to
kill a coconspirator if she testified against the defendant. With
no discussion of whether the statements were during the course
of an ongoing conspiracy, the court concluded these statements
were in furtherance of avoiding punishment and, therefore, in
furtherance of the conspiracy.38 But the statements were made
by a party opponent.
In the second case, U.S. v. Garcia,39 a conspiracy to pass
counterfeit money was still ongoing at the time of the state-
ments at issue and the only question was whether the state-
ments were in furtherance of that ongoing conspiracy. The
court held that statements designed to enlist the listener’s
assistance 	by 	preventing 	the 	listener 	from 	unintentionally
revealing the existence of the conspiracy were not merely nar-
ratives informing the listener of the counterfeit activities.40 The
court concluded that other statements to a security guard made
by the defendant’s son when confronted with the counterfeit
money were designed to delay or prevent arrest and thus to
allow the conspiracy to continue, and were, accordingly, also
in furtherance of the ongoing conspiracy.41
In the third case, United States v. Sears,42 the statements
were made after a robbery and while the defendant and his
coconspirators were at a friend’s house for the purposes of
showering, changing clothes, counting the proceeds of the rob-
bery, and disposing of their disguises. The stop was planned
in advance of the robbery, although the robbers did not expect
the friend and owner of the house to be home. When the
37 U.S. v. Triplett, 922 F.2d 1174 (5th Cir. 1991).
38 Id.
39 U.S. v. Garcia, 893 F.2d 188 (8th Cir. 1990).
40 See id.
41 Id.
42 United States v. Sears, 663 F.2d 896 (9th Cir. 1981).

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robbers discovered that the owner was home, the defendant
told the friend about the robbery in order to induce the friend
into allowing them to use her home to further their escape and
also in order to dissuade her from informing the police about
the robbery. The court held that these statements were in fur-
therance of the conspiracy. The court did not explicitly discuss
whether the conspiracy was still ongoing at the time the state-
ments were made.
We were correct in Gutierrez inasmuch as a statement made
in furtherance of avoiding capture or punishment is made in
furtherance of the conspiracy when the conspiracy is ongo-
ing at the time of the statement; i.e., if the central criminal
object or objects that the conspirators conspired to achieve are
still being pursued. In both Garcia and Sears, the originally
planned conspiracy was still ongoing at the time the state-
ments were made, either because the original conspiracy was
to commit a series of objectives or because the proceeds of
the robbery had not yet been divided.43 Also, in Sears, the
coverup was agreed upon as a part of the original plans for
the conspiracy.44
[11] But we disapprove of our statement in Gutierrez insofar
as we implied 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.45 Triplett is the only case of the three
cited in Gutierrez that involved statements after the originally
agreed-upon conspiracy ended, and it is seen as an anomaly.46
43 See, U.S. v. Moses, supra note 24; U.S. v. DiDomenico, supra note 16;
United States v. Del Valle, supra note 24.
44 See Grunewald v. United States, supra note 15.
45 See State v. Gutierrez, supra note 2, 272 Neb. at 1021, 726 N.W.2d at 567.
46 See Binder, supra note 10, § 35:13.

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And, like in Gutierrez, the statements at issue in Triplett were
made by the defendant and not by a coconspirator. Therefore,
the statements were admissible as statements by a party oppo-
nent and they did not raise the reliability concerns present for
statements by coconspirators after the success or failure of the
principal criminal purpose.
(ii) We Follow Federal Case Law
for Similar Rules
We decline the State’s invitation to follow the minority rule
in this case. We normally take guidance from federal cases
interpreting a federal rule with language similar to a Nebraska
rule.47 We see no reason to depart from our existing procedure
to deny admission of coconspirators’ statements after the object
of the conspiracy has ended. In fact, our legislative history
indicates a specific intent to have uniformity between our state
and the federal rules of evidence—particularly with regard to
“‘the position of the Supreme Court in denying admissibility
to statements made after the objective of the conspiracy have
either failed or been achieved.’”48
Moreover, we are persuaded by the U.S. Supreme Court’s
reasoning that the necessary commonality of interests between
conspirators is no longer present when the central purpose of
the conspiracy has succeeded or failed. Thus, statements made
after the central purpose of the conspiracy have succeeded or
failed lack the reliability that justifies the exclusion. And we
agree with the concern that implicitly extending conspiracies
into a concealment phase sets no logical limit on the dura-
tion or the means of former conspirators’ incrimination of one
another through out-of-court statements.
47 See State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
48 Neb. Supreme Ct. Comm. on Practice & Procedure, Proposed Nebraska
Rules of Evidence, rule 801 at 132 (1973).

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(iii) Davis’ Statements Inadmissible
Even Under Minority Rule
Even if we were to consider adopting some variation of
the minority’s implied concealment phase, Davis’ statements
would not qualify as being in the course and furtherance of any
concealment phase of this conspiracy.
Courts that recognize an implied continuing conspiracy to
conceal appear to view the component elements of the cocon-
spirator exclusion more narrowly once the agreed-upon crime
has been committed, and they add temporal limits to the
concealment period.49 These minority courts are presumably
attempting to cordon the slippery slope of infinite time and
means for conspirators to incriminate each other through out-
of-court statements.50
Thus, under the minority view that recognizes an implied
concealment phase, the conspirators must actually be acting in
concert at the time of the coverup in order for the conspiracy to
be continuing.51 The presumption that the conspiracy continues
as to all its members until affirmative withdrawal52 apparently
no longer applies.
Also, for a statement made in the concealment phase to be
admissible, it must be in furtherance of concealment.53 The
statement must specifically continue the aims of concealing
49 See, Krulewitch v. United States, supra note 13 (and discussion therein);
Mares v. United States, 383 F.2d 805 (10th Cir. 1967); State v. Kidd,
supra note 31; State v. Rivenbark, 311 Md. 147, 533 A.2d 271 (1987) (and
discussion therein).
50 See, Grunewald v. United States, supra note 15; Krulewitch v. United
States, supra note 13 (Jackson, J., concurring; Frankfurter and Murphy,
JJ., join).
51 See, Mares v. United States, supra note 49; State v. Kidd, supra note 31.
52 See State v. Henry, supra note 9.
53 State v. Cornell, 314 Or. 673, 842 P.2d 394 (1992); State v. Helmick, supra
note 31.

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the conspiracy, such as eluding detection for, disposing of, or
protecting the fruits of the crime.54
[12] Finally, as under the majority rule, a conspirator recount-
ing 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.55 Such narrative statements are likely to be unreliable
and self-serving, because they result from premeditation and
design.56 This is especially true for statements that attempt to
shift blame after the central purpose of the conspiracy has suc-
ceeded or failed.57
We have already discussed that in the period after the mur-
ders, there was a notable lack of concert of action and meeting
of the minds. The State described Britt as coldly and calculat-
ingly “thinking for himself,” while Davis was “breaking down”
because of the “tragedy” that had occurred. Davis’ out-of-court
statements were all outside of Britt’s presence and contrary to
Britt’s desired strategy of concealment. In fact, Davis repeat-
edly urged Branch, Jones, and Clairday to get away from
Britt’s reach. During this time, Britt expressed concerns about
whether Britt was “losing him.”
Many of Davis’ statements, moreover, were mere narratives
of the crime. While some such statements could have been
deemed in furtherance of the conspiracy had they been made
during the traditional phase of the conspiracy,58 they warrant
special scrutiny in an alleged, implied concealment phase. The
54 Id.
55 State v. Gilmore, 151 Iowa 618, 132 N.W. 53 (1911).
56 State v. Warren, 242 Iowa 1176, 47 N.W.2d 221 (1951).
57 See, U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992); 4 A.L.R.3d, supra note
11, § 3 (and cases cited therein).
58 See, e.g., U.S. v. Phillips, 219 F.3d 404 (5th Cir. 2000); U.S. v. Monus, 128
F.3d 376 (6th Cir. 1997); U.S. v. Simmons, 923 F.2d 934 (2d Cir. 1991);
United States v. Ammar, 714 F.2d 238 (3d Cir. 1983). See, also, Fenner,
supra note 14, pp. 82-83.

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fact that all of the narrative statements made by Davis shifted
blame to Britt for the murders is antithetical to a finding that
they were in furtherance of an ongoing conspiracy between
Davis and Britt. These statements were more in keeping with
the “‘reality of the criminal process . . . that once partners in
a crime recognize that the “jig is up,” they tend to lose any
identity of interest and immediately become antagonists, rather
than accomplices.’”59
[13] Davis’ revelations of the crimes to Branch, Jones, and
Clairday did not further the aims of concealment insofar as
Davis revealed incriminating information that those women
would not have otherwise known.60 While the State asserts
on appeal that Branch and Jones were coconspirators, this
position is directly contrary to the position the State took at
trial, describing Branch and Jones as “a couple of unwitting
girls.” The State also points out that Clairday provided some
assistance to Davis by concealing the gun Britt gave to her
and that Branch and Jones may have been intimidated into
silence by Davis’ warnings to get away from Britt. But it does
not appear that Davis’ statements were for those purposes.
Where a conspirator is not seeking through his or her state-
ments to induce a listener to join the conspiracy, then the
listener’s subsequent role in the conspiracy does not retroac-
tively convert the statements into declarations in furtherance
of the conspiracy.61
[14] Whatever occurred as a result of Davis’ statements, the
statements appeared, from the testimony and under the State’s
theory of the case, to be in furtherance of Davis’ concern for
the women he was speaking to and Davis’ individually serv-
ing narrative that he was not morally culpable for the victims’
deaths. Statements that further a speaker’s own individual
59 Miller v. Miller, 784 F. Supp. 390, 395 (E.D. Mich. 1992).
60 See State v. Helmick, supra note 31.
61 See U.S. v. Fielding, 645 F.2d 719 (9th Cir. 1981).

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objective rather than the objective of a conspiracy are not made
in furtherance of the conspiracy.62
Thus, even under the minority rule, it would be difficult to
conclude that a concealment phase of the underlying conspir-
acy was ongoing at the time of Davis’ statements. And even if
such an ongoing concealment phase existed, Davis’ statements
would not be in furtherance of it.
(e) Conclusion
We find the majority rule persuasive. In any event, this is
not an appropriate case to consider straying from the majority
rule. We reject the State’s suggestion that there was enough
evidence to find an independent coverup conspiracy. Therefore,
we hold that the trial court erred in admitting Davis’ statements
under § 27-801(4)(b)(v).
2. Alternative Grounds for Ultimate
Correctness of Admission of Evidence
The State points out that we may affirm the ultimate cor-
rectness 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.63 The State thus urges
us to affirm the admission of Davis’ statements under alternate
hearsay exceptions not presented below.
[15,16] Having obtained a favorable ruling on the admis-
sion of the evidence under the coconspirator exclusion, the
State did not waive alternate theories of admissibility by
failing to raise them below.64 Nevertheless, alternate theories
of admissibility for a statement objected to as hearsay and
62 U.S. v. Salgado, 250 F.3d 438 (6th Cir. 2001).
63 See, U.S. v. Paulino, 13 F.3d 20 (1st Cir. 1994); U.S. v. Williams, 837 F.2d
1009 (11th Cir. 1988); United States v. Rosenstein, 474 F.2d 705 (2d Cir.
1973); State v. Henry, supra note 9; State v. Draganescu, supra note 3.
64 See State v. Henry, supra note 9.

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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.65 And the proponent of evi-
dence 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 evi-
dence under theories presented by the proponent for the first
time on appeal.66
(a) Excited Utterances
[17,18] The State’s first proposed alternate theory is that
Davis’ statements made to Clairday within 24 hours of the
shootings were excited utterances. 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.67 The justification for the excited utter-
ance exception is that circumstances may produce a condition
of excitement which temporarily stills the capacity for reflec-
tion and produces utterances free of conscious fabrication.68
For a statement to be an excited utterance, the following
criteria must be met: (1) There must be a startling event; (2)
the statement must relate to the event; and (3) the declarant
must make the statement while under the stress of the event.
The true test is not when the exclamation was made, but
whether, under all the circumstances, the declarant was still
65 See, United States v. Rosenstein, supra note 63; State v. Henry, supra
note 9.
66 See State v. Henry, supra note 9.
67 See State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993).
68 See State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

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speaking under the stress of nervous excitement and shock
caused by the event.69 Excited utterances are one of many enu-
merated exceptions to the hearsay rule for which the unavail-
ability of the declarant is immaterial.70
The only statements at issue under this alternate theory
are the statements that “they had went to rob somebody, and
some things had happened that weren’t supposed to happen”;
that “some people got hurt that shouldn’t have got hurt”; that
Davis “wanted [Clairday] to stay by him, he didn’t want [her]
by [Britt]”; and that “something happened.” We find that the
record does not demonstrate Davis made these statements
while under a condition of excitement that temporarily stilled
his capacity for reflection and produced utterances free of con-
scious fabrication.71
The first statement was made when Clairday picked Davis
up from the house where Branch and Jones lived. There was
little testimony regarding Davis’ emotional state other than that
he had spoken rapidly earlier on the telephone. The testimony
indicates that Davis and Clairday were engaged in an argument
around the time of the statement, mostly about the fact that
Davis was at another woman’s apartment. There is little indica-
tion that Davis was speaking with spontaneity and under the
stress of nervous excitement and shock.
The remaining statements were made at Lautenschlager’s
apartment 	after 	Davis 	observed 	Clairday 	speaking 	with
Lautenschlager about getting rid of the gun that Britt handed
her. Clairday described that Davis was standing by the door,
“shaking his head, like asking me what I was doing.” Davis
then asked Clairday to step into the bathroom with him in order
to speak privately, which is when the statements were made.
The fact that Davis asked to speak with Clairday privately,
69 Id.
70 See Neb. Rev. Stat. § 27-803 (Reissue 2008).
71 See State v. Hale, supra note 68.

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as well as the statements themselves, indicate Davis’ con-
scious reflection.
While Clairday testified that Davis appeared nervous, scared,
and “like he had the shakes” when he made these statements
at Lautenschlager’s apartment, manifestations of stress and
physical condition are not dispositive.72 Besides, it would be
unfair to rely too heavily upon testimony concerning Davis’
physical manifestations of stress when Britt was not on notice
at trial that an excited utterance exception was being litigated.
The witnesses could have been questioned in more depth about
Davis’ mental state and his physical manifestations of distress,
and we cannot speculate as to what additional testimony would
have been adduced.
(b) Statements Against Interest
The State also argues that the admissibility of Davis’ state-
ments should be affirmed on the alternate theory that they were
statements against interest. Though the State’s argument is not
entirely clear, it appears the State believes this exception appli-
cable to all of Davis’ statement.
Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008), provides that
if the declarant is unavailable as a witness, the following is not
excluded by the hearsay rule: “A statement which was at the
time of its making . . . so far tended to subject [the declarant]
to civil or criminal liability . . . that a reasonable man in his
position would not have made the statement unless he believed
it to be true.”
Unavailability as a witness is defined by the statute as
including situations in which the declarant (1) “[i]s exempted
by ruling of the judge on the ground of privilege from tes-
tifying concerning the subject matter of his statement,” (2)
“[p]ersists in refusing to testify concerning the subject mat-
ter of his statement despite an order of the judge to do so,”
(3) “[t]estifies to lack of memory of the subject matter of his
72 See id.

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statement,” (4) “[i]s unable to be present or to testify at the
hearing because of death or then existing physical or mental
illness or infirmity,” or (5) “[i]s absent from the hearing and
the proponent of his statement has been unable to procure his
attendance by process or other reasonable means.”73
The against interest exception is “of quite recent vintage”
insofar as it encompasses confessions of an accomplice, which
incriminate a criminal defendant.74 Common law admitted
statements against the declarant’s pecuniary or proprietary
interests but refused to extend the exception to statements
against penal interests.75 And before Congress’ adoption of Fed.
Evid. R. 804(b)(3), the U.S. Supreme Court rejected a penal
interests exception.76 While most courts allow accomplice
statements under the against interest exception, the exception
is viewed narrowly.77
(i) Unavailability
We turn first to the element of unavailability. Because the
State never presented the against interest exception below as a
theory of admissibility for Davis’ out-of-court statements, the
trial court never determined that Davis was unavailable. The
State argues that this is not an impediment to affirming the
admission of Davis’ statements, because a finding that Davis
was unavailable was “inevitable.”78 The State describes as
“virtually nonexistent” any possibility that Davis would have
73 § 27-804(1)(a) through (e).
74 Lilly v. Virginia, 527 U.S. 116, 130, 119 S. Ct. 1887, 144 L. Ed. 2d 117
(1999).
75 See John P. Cronan, Do Statements Against Interests Exist? A Critique
of the Reliability of Federal Rule of Evidence 804(b)(3) and a Proposed
Reformulation, 33 Seton Hall L. Rev. 1 (2002).
76 Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820
(1913).
77 See Williamson v. United States, supra note 4.
78 Brief for appellant at 30.

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agreed to testify.79 Relying on the record in State v. Davis,80
the State notes that Davis’ sentencing was pending for his own
convictions at the time of Britt’s trial. The State also asserts
without citation to the record that Davis was not voluntarily
cooperating in Britt’s prosecution.
The State does not specify under which grounds it would
have been “inevitable” that the trial court would have found
Davis unavailable, but presumably the State relies on the first
statutory ground for unavailability: unavailability based on
privilege. By referring to the fact that sentencing for Davis’
convictions was still pending, the State references the weight
of authority that permits a witness whose conviction has not
been finalized on direct appeal to invoke the privilege against
self-incrimination and to refuse to testify about the subject
matter which formed the basis of his conviction.81
The State presents no particular authority for its asser-
tion that we can assume for the first time on appeal that the
declarant would have been deemed unavailable had the against
interest exception been presented below. In other words, the
State presents no authority holding that it is fair to affirm the
79 Id.
80 State v. Davis, supra note 1.
81 See, Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed.
2d 424 (1999); Ottomano v. United States, 468 F.2d 269 (1st Cir. 1972);
State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980); People v. Lopez,
110 Cal. App. 3d 1010, 168 Cal. Rptr. 378 (1980) (superseded by statute
as stated in People v. Gibbs, 145 Cal. App. 3d 794, 193 Cal. Rptr. 681
(1983)); People v. Villa, 671 P.2d 971 (Colo. App. 1983); Landeverde v.
State, 769 So. 2d 457 (Fla. App. 2000); Landenberger v. State, 519 So. 2d
712 (Fla. App. 1988); State v. Linscott, 521 A.2d 701 (Me. 1987); Ellison
v. State, 310 Md. 244, 528 A.2d 1271 (1987); People v Robertson, 87
Mich. App. 109, 273 N.W.2d 501 (1978); State v. Pearsall, 38 N.C. App.
600, 248 S.E.2d 436 (1978); State v. Crislip, 110 N.M. 412, 796 P.2d 1108
(N.M. App. 1990), overruled on other grounds, Santillanes v. State, 115
N.M. 215, 849 P.2d 358 (1993); State v. Sutterfield, 45 Or. App. 145, 607
P.2d 789 (1980); Davis v. State, 501 S.W.2d 629 (Tex. Crim. App. 1973);
State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995).

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admission of evidence under a hearsay exception for which
unavailability must be shown, when the evidence was admitted
under an exclusion or an exception for which unavailability
is irrelevant.
We have found only one case affirming admission of evi-
dence under the against interest exception that was erroneously
admitted under an exception for which unavailability is irrel-
evant. In that case, unavailability was based on the undisputed
evidence that the declarant had been murdered.82 But in State
v. Stuit,83 the Montana Supreme Court found it inappropriate to
entertain for the first time on appeal the question of a declar-
ant’s unavailability due to lack of memory. And we can find
no support for the proposition that it would be appropriate to
affirm the correctness of the trial court’s admission of hearsay
by determining for the first time on appeal that the declarant
was unavailable due to a claim of privilege.
In fact, when the lower court has been presented with and
has determined such unavailability, it has been held that a trial
court cannot rely simply on the State’s assurances of unavail-
ability.84 Nor can the court rely on the declarant’s invocation of
the privilege against self-incrimination and the failure to call
the declarant to testify as a result.85 Instead, before a declarant
may be excused as unavailable based on a claim of privilege,
the declarant must appear at trial, assert the privilege, and
have that assertion approved by the trial judge.86 In addition,
the witness must be exempted from testifying by a ruling of
the court.87
82 U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
83 State v. Stuit, 277 Mont. 227, 921 P.2d 866 (1996).
84 Fenner, supra note 14, pp. 220-23.
85 Id.
86 See, United States v. Udey, 748 F.2d 1231 (8th Cir. 1984); Marshall v.
Com., 60 S.W.3d 513 (Ky. 2001); Fenner, supra note 14, pp. 220-23.
Compare State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).
87 Fenner, supra note 14, pp. 220-23.

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In United States v. Udey,88 the Eighth Circuit Court of
Appeals accordingly refused to find error in the exclusion
of hearsay purportedly admissible under the against interest
exception when there was no claim of privilege, nor a ruling
by the court below. The court observed that the definition of
unavailability due to privilege plainly requires a “ruling of the
court.”89 The court further pointed out that the advisory com-
mittee notes to the federal rule strictly state that “‘a ruling by
the judge is required, which clearly implies that an actual claim
of privilege must be made.’”90
In United States v. Fernandez-Roque,91 the Fifth Circuit
Court of Appeals similarly affirmed the inadmissibility of
hearsay because the proponent failed to sustain his burden to
show that the declarant was unavailable as a component of
the against interest exception. The court noted that the propo-
nent had failed to create a record of his efforts to produce the
declarant as a witness, because there was no evidence that the
declarant was subpoenaed, or any request of the judge for a
ruling on unavailability on account of privilege or for an order
to testify.92
The court in Fernandez-Roque explained that “[t]here was
thus no opportunity for the trial court to evaluate [the declar-
ant’s] alleged refusal to testify and propensity to invoke the
[F]ifth [A]mendment, or to ascertain whether some type of
immunity was available to [the declarant] from the effects
of his possible incrimination by his testimony.”93 The court
refused to speculate on appeal as to the factual merits of the
proponent’s claim that the declarant was unavailable when
88 United States v. Udey, supra note 86.
89 Id. at 1243.
90 Id.
91 United States v. Fernandez-Roque, 703 F.2d 808 (5th Cir. 1983).
92 Id.
93 Id. at 813.

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the issue of unavailability was never brought into the “ambit
of the ‘discretion of the trial court to accept or reject coun-
sel’s representations’ concerning [the declarant’s] privilege or
refusal to testify.”94
[19] We hold that it would be inappropriate to attempt to
ascertain Davis’ unavailability for the first time on appeal,
especially under the record before us. There is no evidence that
Davis was subpoenaed, that an actual claim of privilege was
made, or that there was a ruling by the judge on the claimed
privilege. Thus, the record was insufficiently developed for this
court to affirm the admission of Davis’ statements under an
exception that was never presented below. We therefore cannot
accept the State’s invitation to affirm the alleged correctness of
the admission of Davis’ statements under the State’s alternate
theory that the statements fell under the against interest excep-
tion to the hearsay rule.
(ii) Against Interest
Even if we were to somehow overlook the absence of the
requisite showing of unavailability, we observe that under
§ 27-804(2)(c), many of Davis’ statements did not “so far
tend[] to subject [Davis] to civil or criminal liability” that a
reasonable person in Davis’ position would not have made
them lest believing them to be true.
In State v. Phillips,95 we adopted the U.S. Supreme Court’s
narrow interpretation of “statement” to refer to only the spe-
cific declaration or remark incriminating the speaker and not
more broadly to the entire narrative portion of the speaker’s
confession.
[20] In Williamson v. United States,96 the U.S. Supreme
Court explained that while a self-inculpatory statement is more
reliable under the theory that reasonable people do not make
94 Id.
95 State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
96 Williamson v. United States, supra note 4.

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self-inculpatory statements unless they believe them to be true,
the same cannot be said of a non-self-exculpatory statement.
“One of the most effective ways to lie is to mix falsehood
with truth, especially truth that seems particularly persuasive
because of its self-inculpatory nature.”97
[21] The Court has noted further in this context that state-
ments of accomplices incriminating a defendant have tradi-
tionally been viewed with special suspicion and considered
presumptively unreliable.98 Such statements are not ordinarily
unambiguously adverse to the penal interest of the declarant.99
As we said in Phillips, “while there is no clear motivation
to lie about a fact that could expose one to criminal liability,
there is clear motivation to lie about something that lessens
one’s culpability.”100 This motivation exists even if a reason-
able person in the accomplice’s position would believe that
lessening culpability will have only a mitigating effect on
sentencing—as opposed to exculpating the accomplice of the
underlying crime.101
[22,23] Whether a particular remark within a larger narra-
tive 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.102
When considering statements of a mixed nature, one court has
described the question as being whether the statement has a
net exculpatory versus net inculpatory effect.103 A statement
97 Id., 512 U.S. at 599-600.
98 Lilly v. Virginia, supra note 74.
99 See id.
100 State v. Phillips, supra note 95, 286 Neb. at 993, 840 N.W.2d at 517.
101 Williamson v. United States, supra note 4.
102 Id., 512 U.S. at 604.
103 See People v. Duarte, 24 Cal. 4th 603, 12 P.3d 1110 (2000). See, also, e.g.,
United States v. Lilley, 581 F.2d 182 (8th Cir. 1978).

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that is in part inculpatory by admitting some complicity, but
that is exculpatory insofar as it places the major responsibil-
ity on others, does not meet the test of trustworthiness and is
thus inadmissible.104
We find that Davis’ statements to Branch that she and her
children were in jeopardy, to Clairday that he did not want her
by Britt and wanted her to stay by him, and to Jones that it was
out of his hands, were not self-inculpatory at all. These state-
ments implicated Britt as dangerous and as having criminal
intentions with regard to Branch, Jones, and Clairday, but did
not subject Davis to criminal liability.
We find that Davis’ statements to Branch that “Britt had
brought a gun to the situation, and that that was never supposed
to have went down like that”; to Logemann that “everything
went wrong” because “Cuz started shooting”; and to Jones that
“some things had happened that weren’t supposed to happen,”
that “some people got hurt that shouldn’t have got hurt,” that
“[Britt] was trigger happy,” and that “[Britt] went pop, pop,
pop in the other room” were attempts to shift blame to Britt.
These statements, while partially inculpatory in the sense that
they revealed Davis participated in a plan to rob Miguel Sr., are
not sufficiently against Davis’ penal interests that a reasonable
person in Davis’ position would not have made them unless
believing they were true.
These statements were not directly designed to curry favor
with the authorities insofar as they were made to acquaintances,
but they had a net exculpatory effect such that they were not
“truly self-inculpatory.”105 Through these statements, Davis
shifted blame to Britt for the fact that a robbery turned into
a triple homicide. Particularly with regard to the statements
104 Id.
105 See, Williamson v. United States, supra note 4, 512 U.S. at 603. Accord
U.S. v. Smalls, 605 F.3d 765 (10th Cir. 2010). See, also, United States v.
Lang, 589 F.2d 92 (2d Cir. 1978); United States v. Bagley, 537 F.2d 162
(5th Cir. 1976).

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made to Logemann, a reasonable person in Davis’ position
could be motivated to lie and shift the blame to Britt as the
person responsible for the “easy lick” going awry, causing
complications that were never part of the original plan. Davis
also appeared generally less culpable through these statements
to Branch, Jones, and Clairday, possibly in an attempt to garner
their sympathy. And even if we assume a reasonable person in
Davis’ position would be familiar with the concept of felony
murder, such person would believe that if any of these state-
ments shifting blame were reported to the authorities, he would
have a greater chance of striking a plea bargain and of receiv-
ing a lesser punishment for his crimes.
We need not examine the incriminating nature of the remain-
der of Davis’ statements that were entered into evidence at trial
over Britt’s hearsay objection. At least some, such as Davis’
statements to Clairday that “they” went to the house to rob
somebody and that “they started shooting,” appear sufficiently
self-inculpatory to qualify under the against interest exception.
But the very statements the State relied upon most heavily at
trial to paint Britt as the most morally culpable coconspirator
do not qualify as truly self-inculpatory. Suffice it to say that
even if we could determine for the first time on appeal that
Davis was unavailable, the result of this appeal would not
be different.
3. Harmless Error
[24] The trial court erred in admitting Davis’ hearsay state-
ments. In a jury trial of a criminal case, an erroneous eviden-
tial ruling results in prejudice to a defendant unless the State
demonstrates that the error was harmless beyond a reason-
able doubt.106 We consider whether the erroneous admission
of evidence is harmless beyond a reasonable doubt so that
convictions are not set aside “for small errors or defects that
106 See, State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015); State v.
Hughes, supra note 67.

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have little, if any, likelihood of having changed the result of
the trial.”107
[25] 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.108 In conducting this analysis, we
look to the entire record and view the erroneously admitted
evidence relative to the rest of the untainted, relevant evi-
dence of guilt.109
[26,27] Overwhelming evidence of guilt can be considered
in determining whether the verdict rendered was surely unat-
tributable to the error, but overwhelming evidence of guilt
is not alone sufficient to find the erroneous admission of
evidence harmless.110 We have also said that where evidence
is cumulative and other competent evidence supports the con-
viction, improper admission or exclusion of evidence may be
harmless.111 Cumulative evidence tends to prove the same point
of which other evidence has been offered; testimony lending
credibility to a crucial witness’ testimony will not necessarily
be considered cumulative simply because another witness testi-
fies similarly, however.112
While the untainted, relevant evidence without the inadmis-
sible hearsay presented a “reasonably strong ‘circumstantial
web of evidence’”113 against Britt, such evidence was not
107 Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967).
108 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
109 See State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).
110 See id.
111 See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).
112 See, id.; State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).
113 See Chapman v. California, supra note 107, 386 U.S. at 25.

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overwhelming. And that circumstantial web of evidence rested
entirely on the credibility of witnesses who were all impli-
cated in the crime and granted immunity for their testimony.
Moreover, there was no physical evidence directly connecting
Britt to the murders and Britt made no admissions.
Without Davis’ inadmissible statements, the evidence con-
cerning Britt’s guilt consisted of the following: Logemann tes-
tified that he conspired with Davis to rob Miguel Sr. and that
the money would be split with whomever Davis took with him
to commit the robbery. Logemann testified that Britt was in the
van when he showed Davis where Miguel Sr. lived and when
Logemann and Davis discussed the planned robbery. This left
the implication that Britt was the person Davis would take
with him to commit the robbery. Jones, in constrast, testified
that Britt was not in the van at that time.
Branch and Jones testified that Britt went into the Avalos
house with Davis, with the understanding that they were going
to buy drugs. When they returned, Branch said Britt asked if
she had heard anything. Branch also testified that Britt ran
back to the van wearing a bandanna over his face and gloves
on his hands, but this was contradicted by Jones. At no point
did Branch and Jones see either Davis or Britt with a weapon.
The approximate time that Branch and Jones said they went to
the Avalos house was the same approximate time that Miguel
Sr.’s oldest son reported to the police that he heard intruders
in the house.
Davis and Britt argued. Later, Davis was sick. Clairday
picked Davis and Britt up, and Britt handed her a .22-caliber
revolver when asked if he was carrying a gun. Davis was nerv-
ous and scared, and Britt at one point asked Davis “if he was
losing him.” Without objection, Clairday testified that Davis
told her obliquely that “some things had happened that weren’t
supposed to happen” and that “some people got hurt that
shouldn’t have got hurt.”
Clairday testified that she saw Britt burning gloves when
they were at Lautenschlager’s apartment. Once, in the days

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Cite as 293 Neb. 381
after the murders, she heard Davis and Britt converse in
“hush tones.”
At Clairday’s direction, the .22-caliber revolver that Britt
allegedly handed her was recovered by the police. There was
no definitive forensic evidence connecting the gun to Britt or
the murders, but .22-caliber bullets were used in the shootings.
Britt stayed in the basement with Jones until his arrest, and
he was with Branch and Jones wherever they went. Jones and
Logemann both testified that Britt made them nervous when
he asked them personal questions, and Jones described Britt
as “scary.”
Relative to the above untainted, relevant evidence of guilt,
the inadmissible hearsay statements were both numerous and
significant. The State presented to the jury the following inad-
missible hearsay statements by Davis:
Davis told Branch and Jones they needed to get out of town,
because he “had to answer to other people,” “it was out of his
hands,” and their safety was in jeopardy. Davis told Clairday
he did not want her near Britt.
Davis explained that “Britt had brought a gun to the situ-
ation, and that that was never supposed to have went down
like that”; that “they had went to rob somebody, and some
things had happened that weren’t supposed to happen”; and
that “[Britt] was trigger happy.” Davis said that while he
was searching through one of the rooms of the Avalos house,
“[Britt] went pop, pop, pop in the other room.” Davis said that
“everything went wrong” and that “[Britt] started shooting.”
Finally, Davis described in detail that
they had went to the house to rob somebody, and that
when they had gotten there, he was inside of a room going
through stuff and he heard gunshots. He ran out into the
hall, and [Britt] had met him in the hall. Somebody was
coming down the hall and they started shooting.
Davis was heard asking over the telephone “where the other
gun was.” Davis was “worried about DNA because a gun
got dropped.”

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The State relied heavily on these inadmissible hearsay state-
ments in its closing argument. The statements provided the
most direct eyewitness account of what occurred inside the
Avalos house on the morning of the murders. The State also
used these statements to place the bulk of the moral, if not
legal, culpability upon Britt for the robbery’s having gone so
“horribly wrong.”
Finally, the State relied upon these statements to connect
Britt to the murder weapons. The State attempted to illustrate
how the positions of the bodies and the number of shots fired
from which weapons corresponded with Davis’ narration of
how the shootings took place. They also connected Davis’
statements concerning a gun that was left at the scene and
his worry about DNA being found on it with the fact that
a gun apparently used in the murders was, in fact, found at
the scene. Without these statements describing in detail how
Britt started shooting and how Davis was concerned about
where one of the guns was and whether DNA was on it, the
only evidence connecting the presumed murder weapons to
Britt were the facts that Britt handed Clairday a .22-caliber
revolver later that day and that .22-caliber bullets were used
in the shootings.
The State does not actually attempt to argue that the admis-
sion of all the hearsay statements we have deemed inadmis-
sible would be harmless. The State’s harmless error analysis
instead relied on the assumption that most of these statements
were admissible and that only a few statements were inadmis-
sible and would be cumulative to the admissible statements.
The State does not argue, and we cannot find, that the inad-
missible hearsay statements, numbering over 30 in total, are
cumulative to the one properly admitted hearsay statement that
“something” had happened that should not have happened and
that “some people” were hurt who should not have been hurt.
Nor are they cumulative to the other admissible circumstan-
tial evidence.

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Cite as 293 Neb. 381
Britt’s connection to the crimes is much clearer with the
inadmissible hearsay statements than without those statements.
The weight of the erroneously admitted evidence relative to the
rest of the untainted, relevant evidence of guilt is significant.
Therefore, we cannot conclude that the guilty verdict rendered
in this trial was surely unattributable to the erroneous admis-
sion of Davis’ inadmissible hearsay statements.
[28] We find that the admission of Davis’ hearsay statements
was reversible 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.114 Because the evidence
presented at trial was sufficient to support the verdict against
Britt, we conclude that double jeopardy does not preclude a
remand for a new trial.
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment and
remand the cause for a new trial consistent with this opinion.
Reversed and remanded.
Heavican, C.J., not participating.
114 State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).