State v. Harris

Decision Date20 October 2020
Docket NumberNo. A-19-973.,A-19-973.
PartiesSTATE OF NEBRASKA, APPELLEE, v. MARRICKIO D. HARRIS.
CourtNebraska Court of Appeals
MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: DARLA S. IDEUS, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and Timothy M. Eppler for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

MOORE, BISHOP and WELCH, Judges.

MOORE, Judge.

I. INTRODUCTION

Marrickio D. Harris appeals from his convictions in the district court for Lancaster County for possession with intent to deliver 10 to 27 grams of cocaine; possession with intent to deliver cocaine base; and possession of money used in violation of Neb. Rev. Stat. § 28-416 (Cum. Supp. 2018). Following his jury trial convictions, the court found him to be a habitual criminal. The court imposed sentences totaling 15 to 20 years' imprisonment. On appeal, Harris challenges the court's denial of his request to conduct his own defense, threat to revoke his bond, allowing the State to file an amended information, denial of a proposed jury instruction, and denial of his motion for new trial. He also asserts that he received ineffective assistance of trial counsel in various regards. For the reasons set forth herein, we affirm.

II. BACKGROUND
1. CHARGES

On December 6, 2018, the State filed an information in the district court, charging Harris with possession with intent to deliver 10 to 27 grams of cocaine in violation of § 28-416, a Class ID felony; possession with intent to deliver cocaine base in violation of § 28-416, a Class II felony; and possession of money used in violation of § 28-416, a Class IV felony. The charged crimes were alleged to have occurred on or about August 18, 2018.

2. PRETRIAL PROCEEDINGS
(a) Arraignment and Harris' Pro Se Motions

On December 12, 2018, Harris appeared pro se for an arraignment hearing. His standby counsel also appeared. (This case originated in county court before being bound over to district court; standby counsel was appointed during those proceedings). Harris informed the district court that he had represented himself in "the kangaroo court . . . the county court," where his motions kept "getting denied for some odd reason," and that "[t]hey forced an attorney on [him]." During the ensuing discussion, the court explained that standby counsel was appointed "for the benefit of the court primarily" and advised Harris of his right to assistance of counsel, while Harris insisted on his right and desire to represent himself. Further discussion between the court, Harris, his standby counsel, and the prosecutor, showed that Harris would be filing some motions to dismiss, and arraignment was continued to allow for those motions to be filed and heard.

On December 11, 2018, Harris filed a pro se motion to dismiss the case for lack of both personal and subject matter jurisdiction. In the motion, Harris referred to himself as "Flesh and Blood Human Being marrickio d harris," and he sought dismissal of the case because he did not have a contractual relationship with either the State or Lancaster County and because he "did not commit a law crime or damage any person or property" on the date in question. He also sought dismissal for failure to state a claim for relief. In support of his motion, he cited certain federal rules of civil procedure, the "common law head-of-state doctrine," and the "requirement of exhaustion of remedies in the Torture Victims Protection Act."

The district court heard Harris' motion to dismiss on January 16, 2019, and it denied his motion before proceeding with arraignment. During the arraignment portion of the hearing, Harris asked the court whether the case was a civil or criminal action, and the court told him that it was a criminal case. Harris then asked whether the court's "criminal jurisdiction" was based on "Admiralty or . . . military tribunal" jurisdiction. The court informed Harris that if he had a legal question he could talk to his standby counsel, but Harris insisted that he was in court to represent himself and that he was asking the court questions because he was "just trying to get an understanding."

At the district court's direction, the prosecutor read the charges and informed Harris of the possible penalties. When asked whether he understood the charges and possible penalties, Harris did not respond. Upon further inquiry by the court, Harris still declined to respond and stated, "I don't understand any of this, ma'am, until I'm getting my questions answered." The court expressed concern about Harris continuing to represent himself and asked whether he wouldreconsider being represented by counsel, given the "very serious charges" he was facing, but Harris declined. He also declined to enter a plea to the charges. Accordingly, the court noted that Harris was "standing mute" and entered pleas of not guilty on his behalf. Harris objected to the court doing so, asserting that the court was unlawfully "practicing law from the bench," and he continued to argue with the judge until the hearing adjourned.

On March 5, 2019, Harris filed a motion to withdraw plea, alleging that the district court had unlawfully practiced law from the bench by entering a plea of not guilty on his behalf. Harris asked that his plea be withdrawn and that he "be allowed to make [his] own plea once [he] know[s] the nature and cause of the case pending against [him]." He also filed two additional motions to dismiss for lack of jurisdiction. One of these motions to dismiss alleged that the court lacked jurisdiction to proceed against him under "Admiralty Jurisdiction as a Military Tribunal under Article 1 Section 8 Clause 17 of the U.S. constitution" because there was "no valid International Maritime contract in dispute." In the other motion to dismiss, Harris alleged that the court lacked "Common Law Jurisdiction" over him because he "did not commit a common law crime" or "damage any person or property." The certificates of service for these motions noted that they were signed by Harris, and identified him as "Flesh and Blood Human Being."

The district court heard Harris' three motions on March 6, 2019. This hearing proceeded much as the previous hearing with Harris insisting that the court answer his questions with respect to jurisdiction and the court informing him that it could not provide legal advice but that his standby counsel could answer such questions. At one point, Harris stated:

I . . . just want the questions to be answered. I put it towards the right people. I filed the paperwork. No one seems to answer me. Everyone seems to keep going over the fact of the questions I need answered before I can continue to do any type of things with this case.
Other than that, I'm lost. I don't know anything. I don't understand why I'm here and why -- because I'm here under duress, under stress. I'm here by force. I was told that if I didn't come here I would be arrested. That's why I'm actually here.

The district court again stated that it would not provide Harris with legal advice and then overruled his motions to dismiss and the motion to withdraw plea and set the case for a jury trial. Harris objected to the court doing so and continued to argue that the court lacked jurisdiction. In doing so, he stated, among other things:

I'm . . . in a business place, where people conduct business. I haven't forced any contract. I haven't entered in any contract. And I'm also here under . . . I'm also here without prejudice purswayant [sic] to UCC 1-308, which also means [] on record I reserve my rights to not to be compelled to perform under any contract, commercial agreement or bankruptcy that I did not enter knowingly, voluntarily and intentally [sic].
And further most I do not and will not accept the liability of the compelled benefit of any unrevealed contract or commercial agreement or bankruptcy.

After the court acknowledged that Harris had "made [his] record," it ordered him to appear for trial on April 3, 2019, and informed him that discovery materials would be available to him at thecounty attorney's office. Harris continued to argue with the court about the need for answers to his jurisdictional questions until the hearing was adjourned.

Harris filed the same three motions (seeking to withdraw plea and alleging lack of jurisdiction) again on March 26, 2019, and the court addressed the refiled motions on April 3 prior to the start of the scheduled jury trial. In support of his motions, Harris presented similar arguments as before. He argued that the district court had entered a plea of not guilty without his consent, that he "never formed a contract with you guys," and that he had never been provided an answer as to "what kind of criminal tort" was at issue. At one point, he stated, "I don't know anything about this. You are forcing things right now that I don't know anything about. I'm not prepared because I don't know what jurisdiction I'm under. You refused to tell me."

Given Harris' stated confusion, the district court again expressed grave concern about Harris' decision to represent himself. Harris expressed dissatisfaction with communications from his standby counsel, and the court explained that standby counsel was to assist if Harris had questions but was not obligated to contact Harris if Harris did not reach out to him. The court again advised Harris of his right to counsel and asked if he was waiving that right. Harris responded, "I'm not waiving no rights I'm given," and asserted his right to represent himself. The court agreed that Harris had the right to do so and stated, "I'm asking you if that's the choice you are making." Rather than answering the court's question, Harris stated, "No ma'am. I would not -- or I can not [sic] answer a question I don't know the...

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