State v. Harris

• Decision Date: 25 September 2020
• Docket Number: Nos. S-19-130,S-19-133.,s. S-19-130
• Parties: STATE of Nebraska, appellant and cross-appellee, v. Jack E. HARRIS, appellee and cross-appellant.
• Court: Nebraska Supreme Court

307 Neb. 237

948 N.W.2d 736

STATE of Nebraska, appellant and cross-appellee,

v.Jack E. HARRIS, appellee and cross-appellant.

Nos. S-19-130

S-19-133.

Supreme Court of Nebraska.

Filed September 25, 2020

Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellant.

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

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Moore and Welch, Judges.

Papik, J. Two decades ago, following a jury trial, Jack E. Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. His convictions were affirmed on direct appeal. As is often the case in such matters, years of litigation followed, in which Harris filed many motions collaterally attacking his convictions and sentences. After we remanded for further proceedings in an appeal involving such collateral attacks in 2017, the district court granted Harris’ motion for new trial and, later, his motion for absolute discharge on speedy trial grounds. On the State's appeal from these orders, we conclude that the district court did not comply with our mandate in an earlier appeal and that its orders granting Harris a new trial and absolute discharge were thus void. Accordingly, we vacate those orders and remand the cause for further proceedings.

I. BACKGROUND

1. CONVICTION , EARLIER PROCEEDINGS , AND APPEALS BY HARRIS

In 2000, following a jury trial, Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life imprisonment on the murder conviction and 10 to 20 years’ imprisonment on the weapons conviction, to be served consecutively. We affirmed on direct appeal. See State v. Harris , 263 Neb. 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. 186, 871 N.W.2d 762 (2015) ( Harris IV ); and State v. Harris , 296 Neb. 317, 893 N.W.2d 440 (2017) ( Harris V ).

In Harris IV , we reversed the district court order that dismissed Harris’ second postconviction motion, which had been filed simultaneously with a new trial motion and a motion for writ of error coram nobis. Harris’ motions rested on allegations (1) that Howard "Homicide" Hicks, Harris’ accomplice and a key witness in Harris’ trial, disclosed to fellow inmate Terrell McClinton that Hicks had lied during his testimony and that Hicks alone, not Harris, had killed the victim; (2) that another witness, Curtis Allgood, generally corroborated McClinton's account and provided details placing Hicks near the crime scene at the time of the murder; and (3) that Harris was unaware of this information until McClinton's contact with Harris’ attorney in 2006 and was prevented from discovering the information earlier because of misconduct by the prosecutor and the State's witness.

The district court had earlier granted Harris leave to file a third amended postconviction motion raising claims similar to the second motion's and additional claims concerning the State's plea agreement with Hicks. Although the court, the parties, and the evidence gave indications that the third amended postconviction motion was addressed at the subsequent June 28, 2013, hearing, Harris had not filed it. At the hearing, the district court announced that the matter was before the court on the third amended motion for postconviction relief and took judicial notice of the bill of exceptions for Harris’ trial in 1999. The State did not assert that Harris had failed to file the third amended motion, but instead offered a copy of the motion and the court's docket entries showing that Harris had been given leave to file the motion. Harris presented evidence that was relevant only to his third amended motion for postconviction relief. Following the hearing, the district court's order expressly dismissed the second postconviction motion, and Harris appealed.

In Harris IV , we characterized the 2013 hearing as a hearing on the third amended postconviction motion. We held that "a court presented with a motion for postconviction relief which exists simultaneously with a motion seeking relief under another remedy must dismiss the postconviction motion without prejudice when the allegations, if true, would constitute grounds for relief under the other remedy sought." Harris IV , 292 Neb. at 191, 871 N.W.2d at 766. We determined that because the motion for new trial was time barred under the statute then in effect and because there was no possibility of obtaining relief through a writ of coram nobis, the district court erred in dismissing the motion for postconviction relief. See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded for consideration of "the postconviction motion" on the merits. Harris IV , 292 Neb. at 194, 871 N.W.2d at 768.

On remand, the district court did not conduct a new evidentiary hearing but considered the evidence presented at the 2013 evidentiary hearing. It denied postconviction relief, but given the matters addressed at the 2013 hearing, it was unclear whether the district court's order disposed of the second postconviction motion or the third amended postconviction motion involving similar and additional claims. The court's order, signed on March 3, 2016, referred to the "[s]econd" motion for postconviction relief and addressed claims raised only in the second motion. It stated that "[t]he matter came on for full evidentiary hearing on June 28, 2013." The court did not address Harris’ claims regarding Hicks’ plea agreement raised only in the third amended postconviction motion, but specifically ruled on his claims that the State suppressed information possessed by Allgood before Harris’ trial and by McClinton before Harris’ trial, direct appeal, or postconviction proceedings. Harris appealed, which led to our decision in Harris V .

In Harris V , we examined the record from the 2013 postconviction hearing and took judicial notice of our previous records and decisions in Harris’ case. We determined that the district court properly denied relief on Harris’ claim that the State suppressed evidence of McClinton's statements in his affidavit, but that it failed to apply the correct standard to Harris’ claim that the State suppressed Allgood's statements at Harris’ 1999 murder trial and failed to address Harris’ claims from the third amended postconviction motion concerning the State's plea agreement with Hicks. We affirmed in part, and in part reversed and remanded for further proceedings to clarify which postconviction motion the court intended to rule on in the March 2016 order and, if necessary, to enter an order to dispense with all of Harris’ claims for relief:

The court's reasoning that no suppression occurred because the prosecutor did not know about Allgood's statements to investigators was incorrect. Under both federal and state law, the prosecutor had a duty to learn of favorable material evidence known to others acting on the government's behalf in the case. Thus, the State's duty to disclose favorable material evidence existed even if the evidence was known only to police investigators and not to the prosecutor.

Further, the court's summary conclusion that Allgood's statements were not exculpatory did not comply with the applicable standards for evaluating Harris’ claims. Favorable evidence includes both exculpatory and impeachment evidence.

Harris alleged in his motion that Allgood's statements would have corroborated his alibi defense and contradicted Hicks’ testimony that he left the murder scene with Harris and drove around with him, disposing of evidence and distributing the money. Harris also alleged that he would have cross-examined Hicks about his contacts with [Corey] Bass[, an alleged drug dealer for whom McClinton said Hicks killed people]. His trial attorney stated that knowing whether Hicks "was with others or alone in terms of the story that he related" may have undermined Hicks’ credibility and reinforced Harris’ alibi.

The court did not consider whether Allgood's statements to the officer would have impeached Hicks’ credibility. Nor did the court explain why it concluded that Allgood's statements were not "potentially exculpatory information."

As explained, we do not have the bill of exceptions from Harris’ trial. Whether the State suppressed material exculpatory information by not disclosing Allgood's statements must be evaluated in the light of the trial evidence. The court's summary conclusion does not satisfy that requirement. Accordingly, we remand the cause for further clarification as to whether Allgood's statements were not exculpatory or would not have impeached Hicks’ credibility.

....

[W]e cannot determine from the record whether the district court intentionally or erroneously failed to rule on Harris’ claims regarding Hicks’ plea agreement. Though an argument can be made that the parties consented to try all of the claims set forth in Harris’ third amended motion for postconviction relief, making such determination would be needlessly speculative. The better course is for this matter to be remanded to the district court for clarification as to which motion the court intended to rule on and, if necessary, the entry of an order which dispenses with all of Harris’ claims for relief.

....

We conclude that the court properly denied relief on Harris’ claim that the State suppressed evidence of McClinton's statements in his affidavit. We conclude that the court applied the wrong standards in denying Harris relief on his claim that the State suppressed Allgood's statements to police by focusing only on the prosecutor's knowledge of Allgood's statements, by failing to consider whether Allgood's statements would have impeached Hicks’ credibility, and by failing to examine whether Allgood's statements were material in the light of the

...