State v. Harris

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292 Nebraska R eports
STATE v. HARRIS
Cite as 292 Neb. 186
State of Nebraska, appellee, v.
Jack E. H arris, appellant.
___ N.W.2d ___
Filed December 4, 2015. No. S-14-953.
1. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusion.
4. Postconviction: Election of Remedies. A remedy is cumulative when
it is created by statute and is in addition to another remedy which still
remains in force.
5. Judgments: Evidence: Appeal and Error. The purpose of a writ of
error coram nobis is to bring before the court rendering judgment mat-
ters of fact which, if known at the time the judgment was rendered,
would have prevented its rendition.
6. ____: ____: ____. A writ of error coram nobis reaches only matters of
fact unknown to the applicant at the time of judgment, not discoverable
through reasonable diligence, and which are of a nature that, if known
by the court, would have prevented entry of judgment.
7. Judgments: Appeal and Error. A writ of error coram nobis is not
available to correct errors of law.
8. Convictions: Proof: Appeal and Error. The burden of proof in a
proceeding to obtain a writ of error coram nobis is upon the applicant
claiming the error, and the alleged error of fact must be such as would
have prevented a conviction. It is not enough to show that it might have
caused a different result.
9. Testimony: Appeal and Error. A writ of error coram nobis cannot be
invoked on the ground that an important witness testified falsely about a
material issue in the case.
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STATE v. HARRIS
Cite as 292 Neb. 186
10. Final Orders: Appeal and Error. There are three types of final orders
that may be reviewed on appeal under the provisions of Neb. Rev. Stat.
§ 25-1902 (Reissue 2008): (1) an order which affects a substantial right
in an action and which in effect determines the action and prevents a
judgment, (2) an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right made on sum-
mary application in an action after judgment is rendered.
11. ____: ____. An order affects a substantial right if it affects the subject
matter of the litigation, such as diminishing a claim or defense that
was available to the appellant prior to the order from which he or she
is appealing.
Appeal from the District Court for Douglas County: William
B. Zastera, Judge. Reversed and remanded with directions.
Sarah P. Newell and James Mowbray, of Nebraska
Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Wright, Connolly, McCormack, Miller-Lerman, Cassel,
and Stacy, JJ.
Wright, J.
NATURE OF CASE
Jack E. Harris appeals the order of the district court which
dismissed his motion for postconviction relief without preju-
dice pursuant to Neb. Rev. Stat. § 29-3003 (Reissue 2008),
because it was filed simultaneously with a motion for new
trial and a motion for writ of error coram nobis. We reverse,
and remand the cause to the district court for consideration of
Harris’ postconviction motion on its merits.
SCOPE OF REVIEW
[1] Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law. State v. Thorpe, 290
Neb. 149, 858 N.W.2d 880 (2015).
[2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a
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STATE v. HARRIS
Cite as 292 Neb. 186
matter of law. State v. Meints, 291 Neb. 869, 869 N.W.2d
343 (2015).
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusion. State v. Thorpe, supra.
FACTS
Trial and Direct A ppeal
Harris was convicted by a jury in 1999 of first degree mur-
der and use of a deadly weapon to commit a felony in connec-
tion with the killing of Anthony Jones. He was sentenced to
life in prison for the murder conviction and to a consecutive
term of 10 to 20 years’ imprisonment for the weapon con-
viction. We affirmed Harris’ convictions and sentences on
direct appeal in State v. Harris, 263 Neb. 331, 640 N.W.2d
24 (2002).
First Postconviction Action
On June 3, 2002, Harris filed a pro se motion for post-
conviction relief and was appointed counsel. An evidentiary
hearing was granted as to some, but not all, of the issues
raised in Harris’ motion for postconviction relief. Harris filed
an interlocutory appeal, and we reversed the judgment and
remanded the cause for an evidentiary hearing on two addi-
tional claims. See State v. Harris, 267 Neb. 771, 677 N.W.2d
147 (2004). Following an evidentiary hearing in November
2005, the district court denied postconviction relief and Harris
timely appealed that denial to this court. In December 2006,
while the appeal was still pending, Harris filed a motion to stay
the appeal and remand to the district court for further proceed-
ings on grounds of newly discovered evidence. We overruled
the motion and, on July 27, 2007, affirmed the district court’s
denial of postconviction relief. See State v. Harris, 274 Neb.
40, 735 N.W.2d 774 (2007).
Present Postconviction Action
On January 17, 2008, Harris filed a second motion for
postconviction relief, along with a motion for new trial and a
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STATE v. HARRIS
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motion for writ of error coram nobis. All three motions con-
tained allegations regarding newly discovered evidence that
Howard “Homicide” Hicks, who was the primary witness for
the State, testified falsely at trial that it was Harris who shot
and killed Jones when, in fact, it was Hicks who acted alone
in committing the murder. In support of the motions, Harris
submitted an affidavit from Terrell McClinton, an inmate to
whom Hicks allegedly confessed to killing Jones. Harris also
submitted an affidavit from Curtis Allgood, a witness who
provided details placing Hicks near the crime scene at the
time of the murder and corroborated some of the informa-
tion provided by McClinton. The motions further alleged that
Harris was not aware of this information until McClinton
contacted Harris’ postconviction counsel in August 2006 and
that Harris was prevented from discovering the evidence
due to the misconduct of the prosecuting attorney and the
State’s witness.
The district court granted an evidentiary hearing seemingly
limited to the postconviction motion, stating that “[b]ecause
the Court is granting [Harris’] motion for an evidentiary hear-
ing, his motions for new trial and writ of error coram nobis
will not be addressed.” Before the evidentiary hearing was
held, the entire Douglas County District Court bench recused
itself when the prosecutor of the case was appointed to the
bench. On August 27, 2009, a district court judge from Sarpy
County was appointed to preside over the matter.
On December 20, 2010, Harris was permitted to file a third
amended motion for postconviction relief, which added alle-
gations of newly discovered evidence relating to Hicks’ plea
deal, contending that the prosecutor engaged in misconduct by
misrepresenting or allowing Hicks to misrepresent the nature
of the plea agreement at Harris’ trial.
An evidentiary hearing on the third motion for postconvic-
tion relief was held in the district court on June 28, 2013.
During the hearing, the State argued that the postconviction
action must be dismissed pursuant to § 29-3003 because the
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STATE v. HARRIS
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motion for new trial and the motion for writ of error coram
nobis were still pending in the district court.
On October 16, 2014, the district court agreed with the
State and dismissed Harris’ postconviction motion pursuant to
§ 29-3003, without addressing the merits of his claims. It cited
the language of the statute and concluded:
[Harris’] simultaneous filing of a Motion for New Trial
and Writ of Error Coram Nobis constitutes an acknowl-
edgment that he had other remedies available to him
and that a postconviction motion was not the exclusive
remedy available to him as required by Neb. Rev. Stat.
§ 29-3003. Accordingly, this Court finds that it is not
necessary to address the claims asserted by [Harris] in his
postconviction motion, as it should be dismissed.
Harris timely appeals from that judgment.
ASSIGNMENTS OF ERROR
Harris assigns that the district court erred in dismissing his
motion for postconviction relief under § 29-3003, because
the remedies are mutually exclusive, not cumulative. He also
assigns that the district court’s judgment is not a final, appeal-
able order, because the remedies constitute separate causes
of action and the district court did not direct final entry
of judgment as required under Neb. Rev. Stat. § 25-1315
(Reissue 2008).
ANALYSIS
Dismissal of Postconviction Motion
Harris first assigns that the district court erred in dismissing
his motion for postconviction relief on the basis of § 29-3003,
which provides:
The remedy provided by sections 29-3001 to 29-3004
is cumulative and is not intended to be concurrent with
any other remedy existing in the courts of this state.
Any proceeding filed under the provisions of sections
29-3001 to 29-3004 which states facts which if true
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Cite as 292 Neb. 186
would constitute grounds for relief under another remedy
shall be dismissed without prejudice.
[4] A remedy is cumulative when it is created by statute and
is in addition to another remedy which still remains in force.
State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975). The
cumulative remedy may not be pursued simultaneously with
the previously existing remedy. Id.
Harris argues that the remedies sought in a motion for new
trial and a motion for writ of error coram nobis are not cumu-
lative to the postconviction remedy, because they are mutually
exclusive. But whether those remedies are mutually exclusive
is not important to our analysis. By virtue of § 29-3003, the
postconviction remedy is clearly a cumulative remedy that
may not be pursued concurrently with any other remedy exist-
ing under state law, including the remedies sought in a motion
for new trial and a motion for writ of error coram nobis. Thus,
the question we must consider is whether the allegations,
if true, under the above remedies would constitute grounds
for relief.
We agree with Harris that the district court erred when it
dismissed the postconviction action solely on the basis that
other motions for relief were pending. The question is not
whether the petitioner believes he is entitled to other remedies,
but, rather, whether the allegations, if true, would constitute
grounds for relief under the other remedies sought.
Accordingly, we hold 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. See § 29-3003. If the district court determines
the other remedy has no grounds for relief, the postconviction
motion is not procedurally barred under § 29-3003 and should
be considered on its merits.
Applying this framework and analyzing the other remedies
sought in the case at bar, we conclude that Harris’ motion for
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new trial and his motion for writ of error coram nobis provide
no grounds for relief.
Harris’ motion for new trial is based on the grounds set forth
in Neb. Rev. Stat. § 29-2101(1), (2), and (5) (Reissue 2008).
At the time Harris filed his motion, the applicable statute of
limitations was 10 days from the date of the verdict for claims
under subsections (1) and (2), and 3 years from the date of the
verdict for claims under subsection (5). See Neb. Rev. Stat.
§ 29-2103(3) and (4) (Reissue 2008). The verdicts Harris is
challenging were entered on July 27, 1999. His motion for new
trial was filed on January 17, 2008. On its face, Harris’ motion
for new trial is barred by the applicable statute of limitations
and there is no possibility of relief.
[5-8] We also conclude that there is no possibility of Harris’
obtaining relief through his motion for writ of error coram
nobis. The purpose of a writ of error coram nobis is to bring
before the court rendering judgment matters of fact which, if
known at the time the judgment was rendered, would have
prevented its rendition. State v. Sandoval, 288 Neb. 754, 851
N.W.2d 656 (2014). The writ reaches only matters of fact
unknown to the applicant at the time of judgment, not discov-
erable through reasonable diligence, and which are of a nature
that, if known by the court, would have prevented entry of
judgment. Id. The writ is not available to correct errors of law.
Id. The burden of proof in a proceeding to obtain a writ of
error coram nobis is upon the applicant claiming the error, and
the alleged error of fact must be such as would have prevented
a conviction. It is not enough to show that it might have caused
a different result. State v. Hessler, 288 Neb. 670, 850 N.W.2d
777 (2014).
Here, the affidavits from McClinton and Allgood are state-
ments which imply that Hicks testified falsely against Harris
at Harris’ trial. McClinton stated that he knew Hicks and
that it was Hicks’ job to kill people for a drug dealer named
“Corey Bass.” McClinton said that during a conversation
with Hicks in 2001, Hicks told him that Hicks was the per-
son who shot Jones and described to McClinton the details
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of the killing, including the fact that he walked to Allgood’s
house afterward.
Allgood stated that at approximately 10:30 p.m. on August
22, 1995, he was at home having a conversation with Bass
when Hicks hurriedly entered Allgood’s home through the
back door without knocking. Allgood overheard Hicks telling
Bass that “‘it was handled.’” According to Allgood, Hicks was
normally “very laid back,” but that night, he was very agitated.
About a week later, Allgood learned that Jones had been mur-
dered in his apartment, which was just around the corner from
Allgood’s home.
[9] Assuming these allegations are true, Harris would not
be entitled to a writ of error coram nobis. The writ of error
coram nobis cannot be invoked on the ground that an impor-
tant witness testified falsely about a material issue in the case.
See, State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003),
superseded by statute on other grounds, State v. Huggins, 291
Neb. 443, 866 N.W.2d 80 (2015); Parker v. State, 178 Neb.
1, 131 N.W.2d 678 (1964); Hawk v. State, 151 Neb. 717, 39
N.W.2d 561 (1949). Thus, we conclude that Harris’ motion for
writ of error coram nobis, on its face, provides no possibility
of relief.
Because Harris has no possibility of obtaining relief through
the motion for new trial and the motion for writ of error coram
nobis that were filed simultaneously with the postconviction
action, the district court erred in dismissing the postconviction
action under § 29-3003. We therefore remand the cause to the
district court for consideration of the postconviction motion
on its merits.
Finality of Order
In his second assignment of error, Harris argues that the
district court’s judgment is not a final, appealable order, even
though he is the one who appealed from it. He argues that the
dismissal of his postconviction motion is not a final, appeal-
able order, because there were two other claims for relief
presented in this action and the district court did not expressly
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STATE v. HARRIS
Cite as 292 Neb. 186
determine that there was no just reason for delay or expressly
direct the entry of final judgment as to this claim, as required
under § 25-1315(1).
[10] There are three types of final orders that may be
reviewed on appeal under the provisions of Neb. Rev. Stat.
§ 25-1902 (Reissue 2008): (1) an order which affects a sub-
stantial right in an action and which in effect determines the
action and prevents a judgment, (2) an order affecting a sub-
stantial right made during a special proceeding, and (3) an
order affecting a substantial right made on summary applica-
tion in an action after judgment is rendered. State v. Jackson,
291 Neb. 908, 870 N.W.2d 133 (2015). We have previously
held that postconviction actions are special proceedings within
the context of § 25-1902. See State v. Silvers, 255 Neb. 702,
587 N.W.2d 325 (1998).
[11] An order affects a substantial right if it affects the
subject matter of the litigation, such as diminishing a claim or
defense that was available to the appellant prior to the order
from which he or she is appealing. State v. Jackson, supra. The
order in the present case affected a substantial right of Harris.
It concluded that his postconviction motion was procedurally
barred under § 29-3003 and dismissed his action entirely, albeit
without prejudice. Because the district court’s order affected a
substantial right and was made in a special proceeding, it is
final and appealable under § 25-1902.
CONCLUSION
The district court erred in dismissing Harris’ motion for
postconviction relief pursuant to § 29-3003. We reverse the
district court’s judgment and remand the cause to the dis-
trict court for consideration of the postconviction motion on
its merits.
R eversed and remanded with directions.
Heavican, C.J., not participating.