State v. Harris
| Decision Date | 27 July 2007 |
| Docket Number | No. S-06-062.,S-06-062. |
| Citation | 274 Neb. 40,735 N.W.2d 774 |
| Parties | STATE of Nebraska, appellee and cross-appellant, v. Jack E. HARRIS, appellant and cross-appellee. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
After a trial by jury, Jack E. Harris was convicted of first degree murder and use of a deadly weapon to commit a felony in connection with the killing of Anthony Jones. We affirmed Harris' conviction in State v. Harris1 (Harris I). After Harris I, Harris filed for postconviction relief. In State v. Harris2 (Harris II), we reversed the collateral order of the postconviction court which summarily denied postconviction relief on certain claims, and we remanded the cause for an evidentiary hearing. After an evidentiary hearing, the postconviction court denied Harris' motion for postconviction relief. Harris now appeals from that judgment.
The facts surrounding Harris' trial and conviction are fully set forth in Harris I and Harris II, and are repeated here only as relevant. The principal evidence against Harris at trial was the confession of his accomplice, Howard "Homicide" Hicks, and the testimony of three inmates at the jail where Harris was incarcerated that Harris admitted to killing Jones with the assistance of someone named "Homicide."
An Omaha police detective, Leland Cass, also testified at the trial. Cass described an interview with one of the inmate witnesses during which the inmate first revealed that Harris had admitted to Jones' murder. The State pointed out that the report of the inmate interview did not identify Hicks by his given name, but referred to "Homicide," and foundation was laid to establish that "Homicide" and Hicks were the same person. The State then asked: "And at any point in time, Detective, were you able to establish whether or not this defendant Jack Harris knew Howard Hicks as Homicide?" Cass answered, without objection, that he did. Cass did not otherwise elaborate on this statement, but instead went on to testify as to his interview with another of the inmate witnesses.
Upon inquiry during cross-examination, Harris' attorney discovered from Cass that the statement that Harris knew Hicks as "Homicide" was contained in a police report authored by Cass (the Cass report). It is 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.
The report detailed Harris' statements during an interview with Omaha police officers and the Federal Bureau of Investigation in an unrelated drug trafficking investigation. Harris' statements during the interview were made pursuant to a proffer agreement with the U.S. Attorney's office which stated that Harris' statements during the interview would not be used against him.
The Cass report details that Harris was able to name a number of people involved in drug trafficking, including Hicks. Harris identified Hicks by the nickname "Homicide." Harris did not discuss, in that interview, the Jones murder or any information directly relating to that murder.
Based on the prior nondisclosure and alleged inadmissibility of the report, Harris' counsel argued that he was entitled to a Jackson v. Denno3 hearing on the voluntariness of Harris' statement that he knew Hicks as "Homicide." Counsel also argued that the failure to disclose constituted a violation of Brady v. Maryland4 and that the statement was inadmissible because of the proffer agreement, although he later said he had "misspoke" with regard to the allegation of a Brady violation. Counsel moved for a mistrial. Counsel stated that had he been informed of the statement earlier, he would have filed a motion to suppress. Counsel did not move for a continuance.
The court denied Harris' motions. The court did, however, express its concern that the statement had been obtained after the proffer agreement. Therefore, despite the court's conclusion that the statement was "innocuous," the court offered Harris the option of either having Cass' testimony stricken from the record or cross-examining Cass on the issue.
Harris chose to cross-examine Cass. On cross-examination, Harris elicited testimony from Cass that Harris had never indicated to Cass that Harris knew Hicks personally. Rather, Harris indicated only that he had heard of Hicks by his nickname. Cass testified that he did not know how Harris had learned Hicks' nickname, and Cass did not have any personal knowledge that Harris was actually acquainted with Hicks.
In the direct appeal of his convictions and sentences, Harris raised the failure of the trial court to conduct a Jackson v. Denno hearing on the voluntariness of his statement that he knew Hicks as "Homicide," but we held that the court had not abused its discretion, in the absence of dispositive proof as to whether the prosecution actually failed to provide Harris with the Cass report.5
Thereafter, Harris filed a postconviction motion alleging, among other matters, violations of his constitutional rights because of the late disclosure of the Cass report and the jury's having heard the statement that Harris knew Hicks as "Homicide." The postconviction judge granted an evidentiary hearing on some of the issues presented by Harris' postconviction petition, but denied a hearing on others. In an interlocutory appeal, we reversed the postconviction court's denial of an evidentiary hearing on the issue of prosecutorial misconduct relating to the late disclosure of the Cass report.6 On remand, a full evidentiary hearing was held and the court ultimately denied postconviction relief. Harris now appeals the postconviction court's order.
Further facts will be set forth below, as necessary to our analysis.
Harris assigns that the trial court erred (1) when the trial judge granted the State's motion for recusal based solely on his comments regarding our decision in Harris I; (2) in failing to grant postconviction relief on the basis that Harris had been denied his right to a Jackson v. Denno hearing on the admissibility of his statement in the Cass report and on the grounds that his statements were used against him at trial to negate an essential point of the defense, in violation of Harris' statutory right to move for suppression of involuntary statements7 and the 5th, 6th, and 14th Amendments to the U.S. Constitution; (3) in failing to grant postconviction relief based on prosecutorial misconduct in failing to disclose the Cass report in violation of the Due Process Clause of the 14th Amendment and the decision in Brady v. Maryland and its progeny; (4) in failing to grant postconviction relief based on a conflict of interest created by George Thompson, who was an associate at the law firm of Fabian & Thielen, where Harris' trial attorney, Emil M. Fabian, worked, leaving the Fabian & Thielen law firm and joining the Douglas County Attorney's office in violation of the 6th and 14th Amendments; and (5) in failing to grant postconviction relief based on the fact that during the representation of Harris by Fabian & Thielen, one of Fabian's associates left that firm and joined the Douglas County Attorney's office in violation of the Nebraska "bright line" rule.
The State cross-appeals, asserting that the postconviction court erred in permitting Harris to amend his postconviction motion to include the conflict of interest claim because such amendment exceeded the order of remand in Harris II. Harris moves for summary dismissal of the State's cross-appeal.
On appeal from a proceeding for postconviction relief, the lower court's findings of fact will be upheld unless such findings are clearly erroneous.8
We first address Harris' assignments of error relating to the Cass report. Harris argues that because of the State's prosecutorial misconduct in failing to disclose the Cass report in a timely manner, the jury was allowed to hear testimony as to Harris' inadmissible prejudicial statement that he knew Hicks by his nickname "Homicide." Harris explains that this statement should have been suppressed before being heard by the jury, but because Harris was unaware of the report, he could not make a timely motion to suppress. Harris asserts that his due process rights under the 14th Amendment to the U.S. Constitution were thus violated. He also asserts his Fifth Amendment rights were violated, apparently in reference to the privilege against self-incrimination. We note that although Harris' amended petition for postconviction relief made several allegations of ineffective assistance of trial counsel, Harris does not assign or argue in this appeal that the postconviction court erred in denying these ineffective assistance claims.
Postconviction relief is a very narrow category of relief.9 In a motion for postconviction 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.10 The appellant in a postconviction proceeding has the burden of alleging and proving that the claimed error is prejudicial.11
Harris argues that his constitutional rights were violated, rendering his conviction void or voidable, by invoking the principles (1) requiring a voluntariness hearing under Jackson v. Denno, (2) prohibiting nondisclosure of exculpatory evidence under Brady v. Maryland, and (3) prohibiting late disclosure of material evidence under Neb.Rev.Stat. § 29-1912 (Reissue 1995). The question of whether a constitutional error has occurred may...
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