893 N.W.2d 440 (Neb. 2017), S-16-283, State v. Harris

Docket NºS-16-283
Citation893 N.W.2d 440, 296 Neb. 317
Opinion JudgeFunke, J.
Party NameSTATE OF NEBRASKA, APPELLEE, v. JACK E. HARRIS, APPELLANT
AttorneySarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Judge PanelWRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH, and FUNKE, JJ. HEAVICAN, C.J., not participating. Heavican, C.J., not participating.
Case DateApril 07, 2017
CourtSupreme Court of Nebraska

Page 440

893 N.W.2d 440 (Neb. 2017)

296 Neb. 317

STATE OF NEBRASKA, APPELLEE,

v.

JACK E. HARRIS, APPELLANT

No. S-16-283

Supreme Court of Nebraska

April 7, 2017

Page 441

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Appeal from the District Court for Douglas County: WILLIAM B. ZASTERA, Judge.

Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH, and FUNKE, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 445

[296 Neb. 319] Funke, J.

I. NATURE OF CASE

This is Jack E. Harris' appeal from the district court's order dated March 10, 2016, denying him postconviction relief following an evidentiary hearing held on June 28, 2013. The court failed to apply the correct standard to Harris' claim that the State suppressed evidence favorable to him at his 1999 murder trial. The court also failed to address Harris' claims concerning the State's plea agreement with Harris' accomplice. Accordingly, we affirm in part and in part reverse, and remand the cause for the court to resolve Harris' outstanding claims in a manner consistent with the standards set out in this opinion.

II. BACKGROUND

1.

Facts of Crime From Harris' Direct Appeal

In 1999, Harris was convicted of first degree murder and use of a deadly weapon to commit a felony for the 1995 death of Anthony Jones, an Omaha drug dealer. Jones was found dead in his apartment; he had been shot in the head. Harris' alleged accomplice was Howard " Homicide" Hicks, whom Harris had met that summer through Corey Bass, a mutual acquaintance.

[296 Neb. 320] In December 1996, Bass was murdered. Officers who were investigating Bass' murder spoke to his brother, who had been incarcerated that year with Harris and a third inmate. Bass' brother told the officers that while Harris and he were incarcerated, Harris admitted that he and someone named " Homicide" had murdered Jones. The third inmate reported that Harris had told him Jones was killed because Jones recognized Harris while Harris was robbing him.

In May 1997, officers arrested Hicks for Jones' murder. After his arrest, Hicks confessed to law enforcement that he and Harris had robbed Jones but that Harris had killed Jones.

The State first tried Harris for Jones' murder in March 1999. The court declared a mistrial because the jury deadlocked. When the State retried Harris in July 1999, the jury found him guilty of first degree murder and use of a deadly weapon to commit a felony. Hicks, Bass' brother, and the third inmate, as well as another man, Robert Paylor, testified against Harris; Paylor also claimed that Harris had told him about Harris' involvement with Jones' murder. Leland Cass, an Omaha police officer, also testified at trial. He testified that while investigating Bass' murder, he interviewed Harris, and that during the interview, Harris had identified Hicks by the nickname " Homicide." 1

On direct appeal, we rejected Harris' claim that the State failed to disclose Cass' report about the interview with Harris. We held that the court did not abuse its discretion in concluding that Harris had failed to show that the prosecution did not provide him with Cass' report.

2.

Interlocutory Appeal of First Amended Motion for Postconviction Relief

In 2004, we decided Harris' first postconviction appeal.2 Harris contended that he was entitled to an evidentiary hearing [296 Neb. 321] on claims regarding the alleged nondisclosure of Cass' police report. As stated above, Cass testified at trial that during a

Page 446

1996 police interview, Harris identified Hicks by the nickname " Homicide." Part of Harris' defense was that he did not know Hicks and that Hicks had lied when he said that he and Harris had robbed Jones together. The Cass report provided direct statements from Harris that he knew Hicks. We concluded that Harris was entitled to an evidentiary hearing on his claim that the prosecution had failed to disclose the Cass report and whether he was prejudiced by that misconduct if it occurred. Similarly, we held he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel related to the police report and remanded the matter for further proceedings. We rejected his remaining claims.

3.

Appeal of Judgment on First Amended Motion for Postconviction Relief

On remand, Harris was granted leave to file a second amended motion for postconviction relief. In 2007, we considered Harris' appeal of the judgment on his first amended motion for postconviction relief.3 Harris again claimed that he was prejudiced by Cass' statement that he knew Hicks by the nickname " Homicide," because this testimony forced Harris' trial counsel to abandon his defense that Harris did not know Hicks.

We stated that it was " 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." 4 But we noted that Harris' trial counsel did not move to continue the trial because of the late discovery of the Cass report, and Harris did not claim that the late disclosure impeded his attorney's ability to prepare a defense. We further stated that because Harris was present at the interview, [296 Neb. 322] he knew the report's contents. We concluded that he was not prejudiced by Cass' statement in the light of testimony from three other witnesses who stated that Harris had admitted to the crime.

4.

First Appeal of Second Motion for Postconviction Relief

In 2008, Harris filed a second motion for postconviction relief, a motion for a new trial, and a motion for a writ of error coram nobis.5 All three motions primarily rested on his claim that he had discovered new evidence that Hicks testified falsely at Harris' trial and that Hicks had acted alone in the murder. Harris submitted the affidavits of Terrell McClinton and Curtis Allgood in support of the motions. McClinton stated that Hicks had confessed to him that he killed Jones. Allgood " provided details placing Hicks near the crime scene at the time of the murder and corroborated some of the information provided by McClinton." 6 Harris alleged that he was unaware of this information until McClinton contacted Harris' attorney in 2006 and that he was prevented from discovering it because of misconduct by the prosecutor and the State's witness.

The district court agreed to grant Harris an evidentiary hearing, but stated that because it had done so, it would not address his motions for a new trial and a writ of error coram nobis. Before the evidentiary hearing, however, the district court bench for Douglas County recused itself when the prosecutor at Harris' trial was appointed to the bench. In August 2009, a Sarpy County judge was appointed to hear Harris' postconviction motion. In December

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2010, the court permitted Harris to file a third amended motion, which added allegations of newly discovered evidence that the prosecutor mispresented [296 Neb. 323] or allowed Hicks to misrepresent the nature of Hicks' plea agreement during Harris' trial.7

At the start of the evidentiary hearing in June 2013, the court announced that the " matter comes on for a full hearing on [Harris'] Third Amended Motion for Postconviction Relief." However, the record does not reflect that Harris filed the third amended motion for postconviction relief.

After the hearing, the district judge dismissed Harris' postconviction motion without addressing the merits on the basis that Harris had the two other pending motions for relief, i.e., his motions for a new trial and a writ of error coram nobis. The court concluded that those motions did not show that postconviction relief was the sole remedy available to Harris as required under Nebraska's postconviction statutes.8 Harris subsequently appealed that ruling.

In December 2015, we held that when a district court is presented with simultaneous motions for postconviction relief and some other type of relief, the court must dismiss the postconviction motion without prejudice when the allegations, if true, would warrant relief through the alternative remedy that the defendant sought. But if the court determines that no other remedy is available and the postconviction motion is not procedurally barred under § 29-3003, the court must consider the motion on the merits.

We concluded that Harris' motion for a new trial was not an available remedy because the motion was time barred. We also concluded that a writ of error coram nobis was not an available remedy for Harris' claim that a witness testified falsely. Because Harris could not obtain relief through the alternative remedies he sought, we held that the court erred in dismissing his motion for postconviction relief. We reversed the court's judgment and remanded the cause for the court to consider the merits of Harris' postconviction motion. The district court's [296 Neb. 324] ruling on the merits presents the issues now currently before this court.

5.

Proceedings on Remand

On remand from Harris' first appeal of his latest motion for postconviction relief, the district court did not conduct a new evidentiary hearing. Instead, the court considered the evidence presented at the 2013 evidentiary hearing.

At the 2013 hearing, at Harris' request and with the State's consent, the court took judicial notice of the bill of exceptions for Harris' second trial in 1999. Nonetheless, in this appeal, the parties cite exhibit numbers referencing the bill of exceptions from Hicks' 1999 trial and quote excerpts from the trial, all of which are...

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