640 N.W.2d 24 (Neb. 2002), S-00-686, State v. Harris

Docket NºS-00-686.
Citation640 N.W.2d 24, 263 Neb. 331
Opinion JudgeGerrard, J.
Party NameSTATE of Nebraska, Appellee, v. Jack E. HARRIS, Appellant.
AttorneyEmil M. Fabian and Barbara Thielen, of Fabian & Thielen, for appellant. Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.
Case DateMarch 08, 2002
CourtSupreme Court of Nebraska

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640 N.W.2d 24 (Neb. 2002)

263 Neb. 331

STATE of Nebraska, Appellee,

v.

Jack E. HARRIS, Appellant.

No. S-00-686.

Supreme Court of Nebraska

March 8, 2002.

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Syllabus by the Court

1. Motions to Suppress: Appeal and Error. Because Neb.Rev.Stat. § 29-115 (Cum.Supp.2000) commits the determination whether to entertain a motion to suppress made after the commencement of trial to the discretion of the trial court, an appellate court reviews such a determination[263 Neb. 335] for an abuse of discretion.

2. Motions for Mistrial: Appeal and Error. The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

5. Rules of Evidence: Other Acts. The admissibility of evidence under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), must be determined upon the facts of each case and is within the discretion of the trial court.

6. Confessions. To be admissible, a statement or confession of an accused must have been freely and voluntarily made.

7. Confessions: Due Process. The Due Process Clause of U.S. Const. amend. XIV and the due process clause of Neb. Const. art. I, § 3, preclude admissibility of an involuntary confession.

8. Confessions. A defendant objecting to the voluntariness of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his or her confession are actually and reliably determined.

9. Motions to Suppress. A person who is aggrieved by a statement taken from him or her which is claimed to be involuntary may move for suppression of that statement.

10. Motions to Suppress: Waiver. An objection to a statement which is claimed to be involuntary is waived if it is not raised by a motion prior to trial with the exception that a court may entertain such motions to suppress after the commencement of trial when the defendant is surprised by the introduction of such statements by the State.

11. Criminal Law: Pretrial Procedure. Upon a defendant's proper request through discovery procedure, the State must disclose information which is material

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to the preparation of a defense to the charge against the defendant.

12. Criminal Law: Pretrial Procedure. In order that the defendant receive a fair trial, requested and material information must be disclosed to the defendant.

13. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

14. Motions for Continuance: Evidence. When a continuance will cure the prejudice caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court.

15. Evidence: Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

16. Trial: Evidence: Appeal and Error. On appeal, the defendant may not assert a different ground for his or her objection to the admission of evidence than was offered to the trier of fact.

17. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.

18. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal.

19. Trial: Waiver. A party who fails to insist upon a ruling to a proffered objection waives that objection.

20. Trial: Evidence: Appeal and Error. A prerequisite to an appeal based upon error in the admission of evidence is a timely objection stating the grounds therefor, unless the grounds are apparent from the context.

21. Trial: Motions to Strike: Appeal and Error. The failure to make a timely and proper objection or motion to strike will ordinarily bar a party from later claiming error in the admission of testimony.

22. Trial: Rules of Evidence. A true objection does not wander among the Nebraska Evidence Rules in the hope of eventually ending its odyssey at the doorstep of a particular rule of evidence. In seeking to exclude evidence, counsel must adhere to a basic and straightforward approach: Tell the court the reason why the evidence is inadmissible.

23. Motions to Strike: Jury Instructions. Ordinarily, when an objection to or motion to strike improper evidence is sustained and the jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice.

Emil M. Fabian and Barbara Thielen, Omaha, of Fabian & Thielen, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

OPINION

GERRARD, Justice.

I. NATURE OF CASE

Jack E. Harris was convicted of murder in the first degree and use of a deadly weapon to commit a felony. The primary issues presented in this appeal are whether Harris was entitled to a hearing on the voluntariness of a statement he gave to police in an unrelated investigation, whether Harris was entitled to a mistrial based on prosecutorial misconduct, and whether

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the district court erroneously admitted evidence of Harris' prior bad acts. Because we find Harris' claims of reversible error to be without merit, we affirm judgment of district court.

II. BACKGROUND

During the summer of 1995, Harris sold a green convertible automobile to Anthony Jones, an Omaha drug dealer. During the same summer, Harris was introduced to Howard "Homicide" Hicks through a mutual acquaintance, Corey Bass. On August 23, 1995, Jones was found dead inside his apartment. The cause of death was a gunshot wound to the head.

In 1996, Harris was incarcerated in the Douglas County Correctional Facility, at the same time as Lee Warren and Tony Bass, Corey Bass' brother. On December 8, 1996, Corey Bass was murdered. Tony Bass assisted authorities in investigating Corey Bass' murder, and during that investigation, Tony Bass told police that while in jail, Harris told Tony Bass that Harris had been involved in the murder of Jones. According to Tony Bass, Harris said that Jones had been murdered by Harris and someone named "Homicide."

In February 1997, police investigating Jones' murder spoke to Warren. Warren told police that Harris had spoken to Warren about Jones' murder and had told Warren that Jones was killed because he recognized Harris while Harris was robbing Jones.

In May 1997, police arrested Hicks for the murder of Jones. Hicks confessed and said that he and Harris had planned to rob Jones. Hicks said that Harris had killed Jones when Jones recognized Harris during the robbery.

Harris was charged by information with murder in the first degree and use of a deadly weapon to commit a felony. After Harris' first trial ended in a mistrial, Harris was retried. Tony Bass, Warren, and Hicks testified at trial substantially in accord with the statements described above, as did Robert Paylor, another witness who claimed that Harris told him about the murder of Jones. Further pertinent facts will be set forth below in more detail.

Harris was convicted, pursuant to jury verdicts, of murder in the first degree and use of a deadly weapon to commit a felony and was sentenced to life imprisonment on the murder charge and 10 to 20 years' imprisonment on the weapons charge, sentences to be served consecutively. Harris appeals.

III. ASSIGNMENTS OF ERROR

Harris assigns that the district court erred in (1) failing to allow Harris a voluntariness hearing; (2) refusing to grant Harris a mistrial based upon the State's failure to provide Harris' statement pursuant to court-ordered discovery; (3) allowing evidence of other bad acts or crimes in violation of Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), and its own prior order; and (4) failing to grant a mistrial based upon the admission of prior bad act evidence in violation of § 27-404 and its own prior order.

IV. STANDARD OF REVIEW

Because Neb.Rev.Stat. § 29-115 (Cum.Supp.2000) commits the determination whether to entertain a motion to suppress made after the commencement of trial to the discretion of the trial court, an appellate court reviews such a determination for an abuse of discretion. See State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

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State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002) .

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Davlin, supra. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. The admissibility of evidence under rule 404(2), § 27-404(2), must be determined upon the facts of each case and is within the discretion of the trial court. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

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42 practice notes
  • 948 N.W.2d 736 (Neb. 2020), S-19-130, State v. Harris
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...20 years' imprisonment on the weapons conviction, to be served consecutively. We affirmed on direct appeal. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002) (Harris Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771......
  • 875 N.W.2d 877 (Neb.App. 2016), A-14-1166, State v. McMillion
    • United States
    • Court of Appeals of Nebraska
    • March 1, 2016
    ...ground for his or her objection to the admission of evidence than was offered to the trier of [23 Neb.App. 717] fact. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The Supreme Court has specifically determined that an objection on the basis of insufficient foundation is a general obj......
  • 741 N.W.2d 713 (Neb.App. 2007), A-06-1297, State v. Sutton
    • United States
    • Court of Appeals of Nebraska
    • November 20, 2007
    ...admissibility of evidence is reviewed for an abuse of discretion. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The admissibility of evidence under rule 404(2) must be determined upon the facts of Page 720 case and is within the......
  • 659 N.W.2d 1 (Neb.Ct.App. 2003), A-02-288, State v. Soto
    • United States
    • Court of Appeals of Nebraska
    • April 1, 2003
    ...caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). Similarly, in civil cases, with regard to different discovery rules than are at issue here, when a party has not compli......
  • Request a trial to view additional results
42 cases
  • 948 N.W.2d 736 (Neb. 2020), S-19-130, State v. Harris
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...20 years' imprisonment on the weapons conviction, to be served consecutively. We affirmed on direct appeal. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002) (Harris Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771......
  • 875 N.W.2d 877 (Neb.App. 2016), A-14-1166, State v. McMillion
    • United States
    • Court of Appeals of Nebraska
    • March 1, 2016
    ...ground for his or her objection to the admission of evidence than was offered to the trier of [23 Neb.App. 717] fact. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The Supreme Court has specifically determined that an objection on the basis of insufficient foundation is a general obj......
  • 741 N.W.2d 713 (Neb.App. 2007), A-06-1297, State v. Sutton
    • United States
    • Court of Appeals of Nebraska
    • November 20, 2007
    ...admissibility of evidence is reviewed for an abuse of discretion. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The admissibility of evidence under rule 404(2) must be determined upon the facts of Page 720 case and is within the......
  • 659 N.W.2d 1 (Neb.Ct.App. 2003), A-02-288, State v. Soto
    • United States
    • Court of Appeals of Nebraska
    • April 1, 2003
    ...caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). Similarly, in civil cases, with regard to different discovery rules than are at issue here, when a party has not compli......
  • Request a trial to view additional results

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