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State v. Harris

Supreme Court of Nebraska

April 7, 2017

State of Nebraska, appellee,
Jack E. Harris, appellant.

         1. Postconviction: Evidence: Appeal and Error. In reviewing a trial court's factual findings following an evidentiary hearing in a postconviction case, an appellate court will uphold those findings unless they are clearly erroneous.

         2. Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         3. Constitutional Law. The determination of constitutional requirements presents a question of law.

         4. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of counsel presents a mixed question of law and fact, an appellate court reviews the lower court's factual findings for clear error but independently determines whether those facts show counsel's performance was deficient and prejudiced the defendant.

         5. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution has a duty to disclose all favorable evidence to a criminal defendant prior to trial.

         6. Evidence: Impeachment: Words and Phrases. Favorable evidence includes both exculpatory and impeachment evidence.

         7. Prosecuting Attorneys: Evidence: Due Process. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

         8. ___: ___: ___. The Due Process Clause requires the prosecution to disclose favorable material evidence even if a defense counsel did not request it.

         9. Prosecuting Attorneys: Evidence: Due Process: Police Officers and Sheriffs. A prosecutor has a due process duty to learn of favorable [296 Neb. 318] material evidence known to others acting on the government's behalf in a case. Thus, the State's duty to disclose favorable material evidence exists even if the evidence was known only to police investigators and not to the prosecutor.

         10. Prosecuting Attorneys: Evidence: Verdicts. The prosecution's undisclosed evidence must be material either to guilt or to punishment, and the prosecution's suppression of favorable evidence violates a defendant's due process right to a fair trial only if the suppressed evidence is sufficiently significant to undermine confidence in the verdict.

         11. Prosecuting Attorneys: Evidence: Judgments: Words and Phrases. For all claims of prosecutorial suppression of favorable material evidence, the evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

         12. Trial: Evidence. Under Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the touchstone of a reasonable probability of a different result is not a sufficiency of the evidence test and does not require a defendant to show that an acquittal was more likely than not with the suppressed evidence. Instead, the question is whether the defendant received a fair trial without the evidence.

         13. Judgments: Evidence: Due Process. When the State has suppressed more than one item of favorable material evidence, a court must consider, in addition to the three primary components of a due process violation contemplated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), whether prejudice occurred from the suppressed evidence collectively, not simply on an item-by-item basis; that is, it must assess its cumulative effect on the fact finder in the light of other evidence.

         14. Pretrial Procedure: Prosecuting Attorneys: Evidence: Words and Phrases. Whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.

         15. Trial: Evidence: Convictions: Presumptions. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), does not apply after a defendant has been convicted in a fair trial and the presumption of innocence no longer applies.

         16. Prosecuting Attorneys: Evidence. A prosecutor has a duty to learn of favorable material evidence known to others acting on the government's behalf in a case.

          [296 Neb. 319] Appeal from the District Court for Douglas County: William B. Zastera, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         I. NATURE OF CASE

         This is Jack E. Harris' appeal from the district court's order dated March 10, 2016, denying him postconviction relief following an evidentiary hearing held on June 28, 2013. The court failed to apply the correct standard to Harris' claim that the State suppressed evidence favorable to him at his 1999 murder trial. The court also failed to address Harris' claims concerning the State's plea agreement with Harris' accomplice. Accordingly, we affirm in part and in part reverse, and remand the cause for the court to resolve Harris' outstanding claims in a manner consistent with the standards set out in this opinion.


         1. Facts of Crime From Harris' Direct Appeal

         In 1999, Harris was convicted of first degree murder and use of a deadly weapon to commit a felony for the 1995 death of Anthony Jones, an Omaha drug dealer. Jones was found dead in his apartment; he had been shot in the head. Harris' alleged accomplice was Howard "Homicide" Hicks, whom Harris had met that summer through Corey Bass, a mutual acquaintance.

          [296 Neb. 320] In December 1996, Bass was murdered. Officers who were investigating Bass' murder spoke to his brother, who had been incarcerated that year with Harris and a third inmate. Bass' brother told the officers that while Harris and he were incarcerated, Harris admitted that he and someone named "Homicide" had murdered Jones. The third inmate reported that Harris had told him Jones was killed because Jones recognized Harris while Harris was robbing him.

         In May 1997, officers arrested Hicks for Jones' murder. After his arrest, Hicks confessed to law enforcement that he and Harris had robbed Jones but that Harris had killed Jones.

         The State first tried Harris for Jones' murder in March 1999. The court declared a mistrial because the jury deadlocked. When the State retried Harris in July 1999, the jury found him guilty of first degree murder and use of a deadly weapon to commit a felony. Hicks, Bass' brother, and the third inmate, as well as another man, Robert Paylor, testified against Harris; Paylor also claimed that Harris had told him about Harris' involvement with Jones' murder. Leland Cass, an Omaha police officer, also testified at trial. He testified that while investigating Bass' murder, he interviewed Harris, and that during the interview, Harris had identified Hicks by the nickname "Homicide."[1]

         On direct appeal, we rejected Harris' claim that the State failed to disclose Cass' report about the interview with Harris. We held that the court did not abuse its discretion in concluding that Harris had failed to show that the prosecution did not provide him with Cass' report.

         2. Interlocutory Appeal of First Amended Motion for Postconviction Relief

         In 2004, we decided Harris' first postconviction appeal.[2]Harris contended that he was entitled to an evidentiary hearing [296 Neb. 321] on claims regarding the alleged nondisclosure of Cass' police report. As stated above, Cass testified at trial that during a 1996 police interview, Harris identified Hicks by the nickname "Homicide." Part of Harris' defense was that he did not know Hicks and that Hicks had lied when he said that he and Harris had robbed Jones together. The Cass report provided direct statements from Harris that he knew Hicks. We concluded that Harris was entitled to an evidentiary hearing on his claim that the prosecution had failed to disclose the Cass report and whether he was prejudiced by that misconduct if it occurred. Similarly, we held he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel related to the police report and remanded the matter for further proceedings. We rejected his remaining claims.

         3. Appeal of Judgment on First Amended Motion for Postconviction Relief

         On remand, Harris was granted leave to file a second amended motion for postconviction relief. In 2007, we considered Harris' appeal of the judgment on his first amended motion for postconviction relief[3] Harris again claimed that he was prejudiced by Cass' statement that he knew Hicks by the nickname "Homicide, " because this testimony forced Harris' trial counsel to abandon his defense that Harris did not know Hicks.

         We stated that it was "now undisputed that although the State agreed to provide Harris with a copy of all police reports, the State failed to provide Harris with a copy of the Cass report prior to trial."[4] But we noted that Harris' trial counsel did not move to continue the trial because of the late discovery of the Cass report, and Harris did not claim that the late disclosure impeded his attorney's ability to prepare a defense. We further stated that because Harris was present at the interview, [296 Neb. 322] he knew the report's contents. We concluded that he was not prejudiced by Cass' statement in the light of testimony from three other witnesses who stated that Harris had admitted to the crime.

         4. First Appeal of Second Motion for Postconviction Relief

         In 2008, Harris filed a second motion for postconviction relief, a motion for a new trial, and a motion for a writ of error coram nobis.[5] All three motions primarily rested on his claim that he had discovered new evidence that Hicks testified falsely at Harris' trial and that Hicks had acted alone in the murder. Harris submitted the affidavits of Terrell McClinton and Curtis Allgood in support of the motions. McClinton stated that Hicks had confessed to him that he killed Jones. Allgood "provided details placing Hicks near the crime scene at the time of the murder and corroborated some of the information provided by McClinton."[6] Harris alleged that he was unaware of this information until McClinton contacted Harris' attorney in 2006 and that he was prevented from discovering it because of misconduct by the prosecutor and the State's witness.

         The district court agreed to grant Harris an evidentiary hearing, but stated that because it had done so, it would not address his motions for a new trial and a writ of error coram nobis. Before the evidentiary hearing, however, the district court bench for Douglas County recused itself when the prosecutor at Harris' trial was appointed to the bench. In August 2009, a Sarpy County judge was appointed to hear Harris' postconviction motion. In December 2010, the court permitted Harris to file a third amended motion, which added allegations of newly discovered evidence that the prosecutor mispresented [296 Neb. 323] or allowed Hicks to misrepresent the nature of Hicks' plea agreement during Harris' trial.[7]

         At the start of the evidentiary hearing in June 2013, the court announced that the "matter comes on for a full hearing on [Harris'] Third Amended Motion for Postconviction Relief." However, the record does not reflect that Harris filed the third amended motion for postconviction relief.

         After the hearing, the district judge dismissed Harris' postconviction motion without addressing the merits on the basis that Harris had the two other pending motions for relief, i.e., his motions for a new trial and a writ of error coram nobis. The court concluded that those motions did not show that postconviction relief was the sole remedy available to Harris as required under Nebraska's postconviction statutes.[8] Harris subsequently appealed that ruling.

         In December 2015, we held that when a district court is presented with simultaneous motions for postconviction relief and some other type of relief, the court must dismiss the postconviction motion without prejudice when the allegations, if true, would warrant relief through the alternative remedy that the defendant sought. But if the court determines that no other remedy is available and the postconviction motion is not procedurally barred under § 29-3003, the court must consider the motion on the merits.

         We concluded that Harris' motion for a new trial was not an available remedy because the motion was time barred. We also concluded that a writ of error coram nobis was not an available remedy for Harris' claim that a witness testified falsely. Because Harris could not obtain relief through the alternative remedies he sought, we held that the court erred in dismissing his motion for postconviction relief. We reversed the court's judgment and remanded the cause for the court to consider the merits of Harris' postconviction motion. The district court's [296 Neb. 324] ruling on the merits presents the issues now currently before this court.

5. Proceedings on Remand

         On remand from Harris' first appeal of his latest motion for postconviction relief, the district court did not conduct a new evidentiary hearing. Instead, the court considered the evidence presented at the 2013 evidentiary hearing.

         At the 2013 hearing, at Harris' request and with the State's consent, the court took judicial notice of the bill of exceptions for Harris' second trial in 1999. Nonetheless, in this appeal, the parties cite exhibit numbers referencing the bill of exceptions from Hicks' 1999 trial and quote excerpts from the trial, all of which are not part of the record before us. The only record before us is the evidence offered at the 2013 evidentiary hearing. Most of the facts that we set out below either are in the record from the 2013 postconviction hearing or come from our previous records and decisions in this case, which we judicially notice.[9]

         As mentioned above, in Harris' third amended motion, he added the allegation that "the prosecutor engaged in misconduct by misrepresenting or allowing Hicks to misrepresent the nature of the plea agreement at Harris' trial."[10] Relatedly, Harris alleged that the prosecutor failed to disclose impeachment evidence regarding the State's true plea agreement with Hicks. Harris contended that contrary to the prosecutor's representations, the true plea agreement included the following terms: (1) The prosecutor would meet with Hicks' attorney and the judge and make recommendations for lenient sentencing; (2) neither the prosecutor nor Hicks' attorney would object to Harris' waiver of a presentence investigation report, which would have alerted the judge that Paylor had identified Hicks as his shooter; (3) the prosecutor would make a statement [296 Neb. 325] regarding Hicks' sincere remorse for his involvement in the case of Jones' homicide; (4) the prosecutor would not object to Hicks' attorney's recommendations for sentencing nor object to certain illegal credit for time served on different charges; and (5) the prosecutor would advise the court that she had spoken to Jones' family members and that they did not object to her recommendations.

         However, in the court's 2016 order denying relief, the court did not address Harris' claims regarding Hicks' plea agreement. Instead, the court's order stated that Harris had filed a "second" motion for postconviction relief and addressed the claims raised in only that second motion.

         The court specifically ruled upon Harris' claims that the State suppressed information in the possession of Allgood before Harris' trial and information in the possession of McClinton before Harris' trial, direct appeal, or postconviction proceedings. To address Harris' claims and the court's rulings, we must provide more factual context.

         6. Additional Facts

         In 2006, McClinton wrote Harris' postconviction attorney with information that he had obtained in prison about homicides in Omaha, including Jones' homicide. McClinton wrote that Hicks had told him about killing Jones and walking to Allgood's house afterward. McClinton refused to be transported to court for the 2013 evidentiary hearing, but the court received his 2007 affidavit into evidence.

         In his affidavit, McClinton stated that for an unspecified period, he had worked for Bass, who was a major drug dealer in Douglas County. McClinton would "administer beatings" to people who owed Bass money or drugs. McClinton said that Hicks killed people for Bass and was referred to as "Homicide" because "he will leave you dead." McClinton said that in 2001, he met with Hicks in Omaha and Hicks talked about some of Hicks' crimes.

          [296 Neb. 326] McClinton's affidavit further stated that Hicks told McClinton that despite his testimony at Harris' trial, Hicks had shot Jones. Hicks said that he had waited outside Jones' apartment door until Jones came home and then took Jones inside to rob him. Hicks said he shot Jones twice because his gun misfired. But Hicks could not find Jones' drugs and needed to walk to a telephone booth to call Bass and ask where Jones kept them. Hicks put a vase in the doorway so he could get back inside. After Bass told Hicks where to look, he returned to Jones' apartment and found the drugs. Then he walked to Allgood's house, but Allgood kicked him out because he got mud on the floor.

         Finally, McClinton's affidavit stated that he "tried" to call the gang unit with this information in 2004, contacted a federal agent in 2005, and wrote the county attorney about it in June 2006.

         McClinton's information led Harris' postconviction attorney to Allgood, who signed an affidavit in 2007. In that affidavit, Allgood stated that in 1995, he lived within blocks of Jones' apartment. He said that he installed hydraulic suspensions on cars, that some of his customers were people involved in gangs and illegal drugs, and that it was not unusual for these customers to '"hang out'" at his house. Allgood said that Bass, a "known street gangster" and major drug dealer, and Hicks were among the customers who would spend time at his house. He also knew Harris. He said that he would sometimes see Bass with Harris but would not see Hicks with Harris. Allgood said the following regarding August 22, 1995: It was a rainy day; Bass and another person were at Allgood's house, and Harris was not there. Around 10:30 p.m., Hicks ran into Allgood's kitchen without knocking and appeared very agitated. He was wearing dark clothes and had gloves in his back pocket. Allgood was upset because Hicks was tracking mud onto the floor. He overheard Hicks tell Bass that '"it was handled.'" Hicks and Bass talked inside for about 15 minutes; then they went outside and left about 10 minutes later.

          [296 Neb. 327] At the 2013 hearing, Allgood testified that the night of Jones' murder had stood out to him because he learned about the murder shortly afterward. He said that Hicks had burst into his kitchen like "he was just coming in to start a fight or something." Allgood told Hicks to take his muddy boots outside, but Hicks insisted on talking to Bass. Hicks was erratic in speaking to Bass while they were in the kitchen, but when Allgood heard Hicks say that "[i]t was handled, " Bass seemed happy.

         Allgood further testified that later, in 1996 or 1997, a plainclothes police officer, accompanied by another man, came to ask him questions about Jones' homicide. Allgood did not know Jones but knew of him. He believed that Jones was also involved in illegal drug activities with Bass. Allgood could not remember the officer's name but said that he identified himself as a police officer and took notes. The officer gave Allgood a "brief synopsis" of the homicide investigation and asked Allgood if he had ever seen Harris, Hicks, and Bass "all together around that time at [Allgood's] house." Allgood told the officer that he did not see them all together. But he specifically testified that he told the officer he "saw [Bass] and Hicks together that night."

         However, on cross-examination, the prosecutor asked Allgood the following questions, and Allgood gave the following answers:

Q. The information in your affidavit pertaining to when . . . Hicks came into your house that ...

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