677 N.W.2d 147 (Neb. 2004), S-03-384, State v. Harris

Docket NºS-03-384.
Citation677 N.W.2d 147, 267 Neb. 771
Opinion JudgeConnolly, J.
Party NameSTATE of Nebraska, appellee, v. Jack E. HARRIS, appellant.
AttorneyJames R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Case DateApril 09, 2004
CourtSupreme Court of Nebraska

Page 147

677 N.W.2d 147 (Neb. 2004)

267 Neb. 771

STATE of Nebraska, appellee,

v.

Jack E. HARRIS, appellant.

No. S-03-384.

Supreme Court of Nebraska

April 9, 2004

Page 148

Syllabus by the Court

1. Judgments: Jurisdiction: Appeal and Error. 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 conclusion independent of the lower court's decision.

2. post conviction: Judgments: Appeal and Error. Whether a claim raised in a post conviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate

Page 149

court reaches a conclusion independent of the lower court's ruling.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

4. post conviction: Final Orders. An order granting an evidentiary hearing on some issues and denying a hearing on others is a final order because a post conviction proceeding is a special proceeding.

5. post conviction: Constitutional Law: Proof. In a motion for post conviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

6. post conviction: Proof: Appeal and Error. The appellant in a post conviction proceeding has the burden of alleging and proving that the claimed error is prejudicial.

7. post conviction: Appeal and Error. A motion for post conviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal.

8. Trial: Appeal and Error. When an issue has not been raised or ruled on at the trial level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

9. Prosecutorial Misconduct: Case Disapproved: Appeal and Error. To the extent State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989), states that the issue of prosecutorial misconduct can be raised only on direct appeal, it is disapproved.

10. post conviction: Effectiveness of Counsel: Appeal and Error. When a defendant was represented both at trial and on direct appeal by lawyers employed by the same office, the defendant's first opportunity to assert ineffective assistance of trial counsel is in a motion for post conviction relief.

[267 Neb. 772] 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.

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

CONNOLLY, J.

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 post conviction 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.

I. BACKGROUND

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

Page 150

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' [267 Neb. 773] 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 [267 Neb. 774] 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

Page 151

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:

The district court was confronted with essentially a "he said, she said" scenario, as the prosecutor stated that Cass' police report regarding the December 10, 1996, interview had been provided to the defense, while defense counsel claimed that the defense had not received the report. Given the record before us, we have no basis to find that the district court abused its discretion in concluding that Harris' showing of surprise was insufficient, particularly given the court's greater familiarity with the course of the proceedings.

We are not in a position to question the veracity of either the prosecution or defense on their contradictory claims regarding the process of discovery. It is possible that the prosecution overlooked the police report of the December 10, 1996, interview and failed to provide it to the defense, and it is equally possible that the defense either misplaced or [267 Neb. 775] failed to appreciate the significance of the report once it was received. Given the absence of dispositive proof, we cannot conclude that the district court abused its discretion.

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...

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35 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
    ...331, 640 N.W.2d 24 (2002) (Harris I). Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004) (Harris II); State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007) (Harris III); State v. Harris, 292 Neb. ......
  • 685 N.W.2d 505 (Neb.App. 2004), A-02-854, Pioneer Chemical Co. v. City of North Platte
    • United States
    • Court of Appeals of Nebraska
    • August 17, 2004
    ...v. Lund-Ross Constructors Co., supra; Keef v. State, supra. Similarly, the Nebraska Supreme Court's recent decision in State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004), appears to be another case where § 25-1315 was not implicated because the trial proceeding involved multiple "the......
  • State v. Stelly, 031221 NESC, S-20-635
    • United States
    • Nebraska Supreme Court of Nebraska
    • March 12, 2021
    ...v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). [4] State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). [5] State v. Harris, 267 Neb. 771, 677 N.W.2d 147 [6] Neb. Rev. Stat. § 29-3001 (Reissue 2016). [7] See State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). [8......
  • 695 N.W.2d 440 (Neb.App. 2005), A-04-1262, State v. Smith
    • United States
    • Court of Appeals of Nebraska
    • May 3, 2005
    ...supply a record which supports his or her appeal. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002), reversed in part on other grounds 267 Neb. 771, 677 N.W.2d 147 (2004). Because the record is inadequate for us to determine the amount of extradition Page 446 included in the sum taxed as ......
  • Request a trial to view additional results
35 cases
  • 685 N.W.2d 505 (Neb.App. 2004), A-02-854, Pioneer Chemical Co. v. City of North Platte
    • United States
    • Nebraska Court of Appeals of Nebraska
    • August 17, 2004
    ...v. Lund-Ross Constructors Co., supra; Keef v. State, supra. Similarly, the Nebraska Supreme Court's recent decision in State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004), appears to be another case where § 25-1315 was not implicated because the trial proceeding involved multiple "the......
  • 948 N.W.2d 736 (Neb. 2020), S-19-130, State v. Harris
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...331, 640 N.W.2d 24 (2002) (Harris I). Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004) (Harris II); State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007) (Harris III); State v. Harris, 292 Neb. ......
  • 695 N.W.2d 440 (Neb.App. 2005), A-04-1262, State v. Smith
    • United States
    • Nebraska Court of Appeals of Nebraska
    • May 3, 2005
    ...supply a record which supports his or her appeal. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002), reversed in part on other grounds 267 Neb. 771, 677 N.W.2d 147 (2004). Because the record is inadequate for us to determine the amount of extradition expenses Page 446 included in the sum ......
  • State v. Stelly, 031221 NESC, S-20-635
    • United States
    • Nebraska Supreme Court of Nebraska
    • March 12, 2021
    ...v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). [4] State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). [5] State v. Harris, 267 Neb. 771, 677 N.W.2d 147 [6] Neb. Rev. Stat. § 29-3001 (Reissue 2016). [7] See State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). [8......
  • Request a trial to view additional results

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