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
Appeal and Error. An appellate court
independently reviews questions of law decided by a lower
Constitutional Law. The determination of
constitutional requirements presents a question of law.
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
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.
Evidence: Impeachment: Words and Phrases.
Favorable evidence includes both exculpatory and impeachment
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 Due Process Clause requires the prosecution to
disclose favorable material evidence even if a defense
counsel did not request it.
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.
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.
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.
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.
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.
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
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
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
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.
P. Newell, of Nebraska Commission on Public Advocacy, for
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
NATURE OF CASE
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.
Facts of Crime From Harris' Direct Appeal
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
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.
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.
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
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.
Interlocutory Appeal of First Amended Motion for
2004, we decided Harris' first postconviction
appeal.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
Appeal of Judgment on First Amended Motion for Postconviction
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 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.
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." 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.
First Appeal of Second Motion for Postconviction Relief
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. 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." 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.
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'
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
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. Harris subsequently appealed that ruling.
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.
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
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.
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
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." 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.
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
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
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.
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'
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.
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.
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.
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.
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."
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 ...