State v. Harris
| Citation | 677 N.W.2d 147,267 Neb. 771 |
| Decision Date | 09 April 2004 |
| Docket Number | No. S-03-384.,S-03-384. |
| Parties | STATE of Nebraska, appellee, v. Jack E. HARRIS, appellant. |
| Court | Supreme Court of Nebraska |
James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Jack E. Harris appeals the district court's order denying him an evidentiary hearing on some of the issues he raised in a motion for postconviction relief. We determine that Harris is entitled to an evidentiary hearing regarding alleged prosecutorial misconduct concerning whether the prosecutor delivered a report to defense counsel. We also determine that Harris is entitled to a hearing about ineffective assistance of counsel concerning the report. We determine that he is not entitled to a hearing on the other issues raised. We affirm in part and in part reverse, and remand for further proceedings.
Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. We affirmed on appeal. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The following facts were described in Harris:
During the summer of 1995, Harris sold a green convertible automobile to Anthony Jones, an Omaha drug dealer. During the same summer, Harris was allegedly 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. Lee Warren and Tony Bass, Corey Bass' brother, were also inmates of the Douglas County Correctional Facility at that time. On December 8, 1996, Corey Bass was murdered. Tony Bass assisted authorities in investigating Corey Bass' murder. During that investigation, Tony Bass told police that while in jail, Harris told him 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 him about Jones' murder and had told him 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 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.
During trial, Leland Cass, an Omaha police detective, testified about an interview between himself and Harris in which Harris identified Hicks by the nickname "Homicide." Thus, Cass' testimony provided direct statements from Harris showing that he knew Hicks. On cross-examination, Cass stated that the information came from a December 10, 1996, interview report that he prepared (Cass report).
Harris objected to Cass' testimony and moved for a mistrial, arguing that he was entitled to a hearing on whether his statements were voluntary. At a hearing outside the presence of the jury, Harris presented evidence that the statements were made after he was promised they would not be used against him as part of a proffer agreement with the federal government and that the prosecutor was aware of that fact. Harris' attorney, who was not under oath, stated that he had not seen the Cass report before trial. According to Harris, part of his defense was that Harris and Hicks did not know each other and that Hicks was making up the story.
In response, the prosecutor, who also was not under oath, stated that she received two boxes of police reports and had a law clerk forward copies to defense counsel. The law clerk who made the copies did not testify. The prosecutor stated that she believed the Cass report had been given to the defense because she found it in a box that had been separated by the law clerk and copied.
The trial judge stated that he would not resolve a "he said, she said" discovery dispute. The court determined that Harris had not made a showing that he was not given the Cass report of December 10, 1996, and thus denied a hearing on whether the statements were voluntary because the motion was untimely. The court also disagreed with Harris' argument that his defense claimed that Hicks and Harris had never met.
Harris was convicted of murder in the first degree and use of a deadly weapon to commit a felony. He was sentenced to consecutive sentences of life imprisonment on the murder charge and 10 to 20 years' imprisonment on the weapons charge. Harris appealed, arguing in part that the district court erred by (1) failing to grant a hearing about whether the statements were voluntary, (2) failing to grant a mistrial for the prosecutor's violation of a discovery order, and (3) allowing evidence of other bad acts or crimes in violation on Neb.Rev.Stat. § 27-404(2) (Reissue 1995). Harris was represented by the same counsel at trial and on direct appeal.
On appeal, we determined that the court did not abuse its discretion in determining that Harris' motion for a hearing about his statement was untimely. In reaching this determination, we stated:
State v. Harris, 263 Neb. 331, 337, 640 N.W.2d 24, 32 (2002).
Addressing the alleged discovery violation, we stated that assuming, without deciding, that the Cass report was within the scope of the discovery order, the court did not abuse its discretion when it determined that Harris failed to show that the Cass report was not provided to defense counsel. We also stated that Harris failed to seek a continuance to cure any prejudice caused by the belated disclosure of evidence.
Concerning evidence of prior bad acts, we held that Harris' counsel either failed to object or did not properly object. In each case, however, we also stated that had an objection been properly preserved, it would have been without merit. See Harris, supra ().
Harris moved for postconviction relief. The court granted an evidentiary hearing on some of the issues raised in the motion. The court did not grant a hearing, however, on the following allegations: (1) Harris' convictions were obtained as the result of prosecutorial misconduct in violation of the Due Process Clauses of the U.S. and Nebraska Constitutions; (2) his counsel was ineffective when he failed to file motions to suppress the December 10, 1996, statements, failed to review the Cass report if it was received, and failed to obtain a proper discovery order if it was not received; (3) his appellate counsel was ineffective by failing to raise issues of prosecutorial misconduct and ineffective assistance of counsel, and by representing him both at trial and on appeal; (4) his counsel was ineffective when he failed to properly object to improper testimony under § 27-404.
The district court found that prosecutorial misconduct was an issue that could have been properly raised on direct appeal and would not be considered on postconviction. The court next found that any issues concerning the Cass report, including any failure of appellate counsel to raise the issue of prosecutorial misconduct on appeal, had been determined on direct appeal. In the alternative, the court concluded that whether Harris knew Hicks' nickname was innocuous and did not injure his defense. The court further determined that even if Harris' counsel had objected to testimony about prior bad acts, the objections would have been without merit. Finally, the court determined that Harris' counsel was not ineffective merely because the same counsel represented Harris both at trial and on appeal. Accordingly, the court denied an evidentiary hearing on those issues. The court granted a hearing on other issues raised in the postconviction motion. Harris appeals.
Harris assigns that the district court erred by denying an evidentiary hearing on (1) factual issues involving prosecutorial misconduct, (2) ineffective assistance of counsel for failure to properly move to suppress the Cass report and failure to properly object to inadmissible evidence, and (3) ineffective assistance of appellate counsel.
A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a...
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