735 N.W.2d 774 (Neb. 2007), S-06-062, State v. Harris

Docket NºS-06-062.
Citation735 N.W.2d 774, 274 Neb. 40
Opinion JudgeMcCormack, J.
Party NameSTATE of Nebraska, appellee and cross-appellant, v. Jack E. HARRIS, appellant and cross-appellee.
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 DateJuly 27, 2007
CourtSupreme Court of Nebraska

Page 774

735 N.W.2d 774 (Neb. 2007)

274 Neb. 40

STATE of Nebraska, appellee and cross-appellant,

v.

Jack E. HARRIS, appellant and cross-appellee.

No. S-06-062.

Supreme Court of Nebraska

July 27, 2007

Page 775

[Copyrighted Material Omitted]

Page 776

Syllabus by the Court

1. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the lower court's findings of fact will be upheld unless such findings are clearly erroneous.

2. Postconviction. Postconviction relief is a very narrow category of relief.

3. Postconviction: Constitutional Law: Proof. 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.

4. Postconviction: Proof: Appeal and Error. The appellant in a postconviction proceeding has the burden of alleging and proving that the claimed error is prejudicial.

5. Postconviction: Judgments: Proof: Appeal and Error. A court making the prejudice inquiry in a postconviction proceeding must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

6. Criminal Law: Effectiveness of Counsel: Conflict of Interest: Presumptions: Proof. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there is a limited presumption of prejudice if a criminal defendant can show (1) that his counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.

7. Criminal Law: Effectiveness of Counsel: Conflict of Interest. The possibility of conflict is insufficient to impugn a criminal conviction.

8. Postconviction: Effectiveness of Counsel: Conflict of Interest: Proof. In order to obtain relief in a postconviction action based upon the alleged conflict of interest of trial counsel, the defendant must show an actual, as opposed to an imputed, conflict of interest.

9. Judges: Recusal. While a defendant may be entitled to an impartial judge, a defendant does not have the right to have his or her case heard before any particular judge.

10. Judges: Recusal. A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court.

11. Judges. A judge must be careful not to appear to act in the dual capacity of judge and advocate.

Appeal from the District Court for Douglas County: Patricia A. Lamberty, Judge.

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.

Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ., and Hannon, Judge, Retired.

McCormack, J.

[274 Neb. 41] NATURE OF CASE

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

Page 777

Jones. We affirmed Harris' conviction in State v. Harris 1 (Harris I). After Harris I, Harris filed for postconviction relief. In State v. Harris 2 (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.

BACKGROUND

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 [274 Neb. 42] 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. Denno 3 hearing on the voluntariness of Harris' statement that he knew Hicks as "Homicide." Counsel also argued that the failure to disclose constituted a

Page 778

violation of Brady v. Maryland 4 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.

[274 Neb. 43] 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.

[274 Neb. 44] ASSIGNMENTS OF ERROR

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 statements 7 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

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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...

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16 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
    ...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. 186, 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296......
  • State v. Harris, 092520 NESC, S-19-130
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...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. 186, 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb. 317, 893 ......
  • 885 N.W.2d 540 (Neb. 2016), S-15-1032, State v. Dubray
    • United States
    • Nebraska Supreme Court of Nebraska
    • October 7, 2016
    ...618 (2014). [9] Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp. 2014). [10] § 29-3001(1). [11] State v. Harris, 274 Neb. 40, 45, 735 N.W.2d 774, 779 [12] See State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). [13] See, State v. Abdulkadir, 293 Neb.......
  • 762 N.W.2d 589 (Neb. 2009), S-08-712, State v. Watkins
    • United States
    • Nebraska Supreme Court of Nebraska
    • March 20, 2009
    ...Finding no error, we affirm the judgment of the district court denying postconviction relief. AFFIRMED. Notes: [1] State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 [2] State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008); State v. Smith, 269 Ne......
  • Request a trial to view additional results
16 cases
  • 948 N.W.2d 736 (Neb. 2020), S-19-130, State v. Harris
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...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. 186, 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296......
  • State v. Harris, 092520 NESC, S-19-130
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 25, 2020
    ...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. 186, 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb. 317, 893 ......
  • 885 N.W.2d 540 (Neb. 2016), S-15-1032, State v. Dubray
    • United States
    • Nebraska Supreme Court of Nebraska
    • October 7, 2016
    ...618 (2014). [9] Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp. 2014). [10] § 29-3001(1). [11] State v. Harris, 274 Neb. 40, 45, 735 N.W.2d 774, 779 [12] See State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). [13] See, State v. Abdulkadir, 293 Neb.......
  • 762 N.W.2d 589 (Neb. 2009), S-08-712, State v. Watkins
    • United States
    • Nebraska Supreme Court of Nebraska
    • March 20, 2009
    ...Finding no error, we affirm the judgment of the district court denying postconviction relief. AFFIRMED. Notes: [1] State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 [2] State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008); State v. Smith, 269 Ne......
  • Request a trial to view additional results

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