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State of Nebraska, appellee, v.

Jack E. Harris, appell

___ N.W.2d ___

Filed April 7, 2017. No. S-16-283.

1. Postconviction: Evidence: Appeal and Error. In reviewing a trial 

court’s factual findings following an evidentiary hearing in a postconviction case, an appellate court will uphold those findings unless they 

are clearly erroneous.

2. Appeal and Error. An appellate court independently reviews questions 

of law decided by a lower court.

3. Constitutional Law. The determination of constitutional requirements 

presents a question of law.

4. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of counsel presents a mixed question of law and fact, 

an appellate court reviews the lower court’s factual findings for clear 

error but independently determines whether those facts show counsel’s 

performance was deficient and prejudiced the defendant.

5. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady 

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the 

prosecution has a duty to disclose all favorable evidence to a criminal 

defendant prior to trial.

6. Evidence: Impeachment: Words and Phrases. Favorable evidence 

includes both exculpatory and impeachment evidence.

7. Prosecuting Attorneys: Evidence: Due Process. Suppression by the 

prosecution of evidence favorable to an accused upon request violates 

due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

8. ____: ____: ____. The Due Process Clause requires the prosecution to 

disclose favorable material evidence even if a defense counsel did not 

request it.

9. Prosecuting Attorneys: Evidence: Due Process: Police Officers and 

Sheriffs. A prosecutor has a due process duty to learn of favorable 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/16/2017 01:13 AM CDT
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material evidence known to others acting on the government’s behalf 

in a case. Thus, the State’s duty to disclose favorable material evidence 

exists even if the evidence was known only to police investigators and 

not to the prosecutor.

10. Prosecuting Attorneys: Evidence: Verdicts. The prosecution’s undisclosed evidence must be material either to guilt or to punishment, and 

the prosecution’s suppression of favorable evidence violates a defendant’s due process right to a fair trial only if the suppressed evidence is 

sufficiently significant to undermine confidence in the verdict.

11. Prosecuting Attorneys: Evidence: Judgments: Words and Phrases. 

For all claims of prosecutorial suppression of favorable material evidence, the evidence is material only if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different.

12. Trial: Evidence. Under Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 

131 L. Ed. 2d 490 (1995), the touchstone of a reasonable probability 

of a different result is not a sufficiency of the evidence test and does 

not require a defendant to show that an acquittal was more likely than 

not with the suppressed evidence. Instead, the question is whether the 

defendant received a fair trial without the evidence.

13. Judgments: Evidence: Due Process. When the State has suppressed 

more than one item of favorable material evidence, a court must consider, in addition to the three primary components of a due process 

violation contemplated by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 

1194, 10 L. Ed. 2d 215 (1963), whether prejudice occurred from the 

suppressed evidence collectively, not simply on an item-by-item basis; 

that is, it must assess its cumulative effect on the fact finder in the light 

of other evidence.

14. Pretrial Procedure: Prosecuting Attorneys: Evidence: Words and 

Phrases. Whether a prosecutor’s failure to disclose evidence results in 

prejudice depends on whether the information sought is material to the 

preparation of the defense, meaning that there is a strong indication that 

such information will play an important role in uncovering admissible 

evidence, aiding preparation of witnesses, corroborating testimony, or 

assisting impeachment or rebuttal.

15. Trial: Evidence: Convictions: Presumptions. Brady v. Maryland, 373 

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), does not apply after 

a defendant has been convicted in a fair trial and the presumption of 

innocence no longer applies.

16. Prosecuting Attorneys: Evidence. A prosecutor has a duty to learn of 

favorable material evidence known to others acting on the government’s 

behalf in a case.
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Appeal from the District Court for Douglas County: William

B. Zastera, Judge. Affirmed in part, and in part reversed and

remanded for further proceedings.

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, Kel

Funke, J

Funke, 

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 Harr

Direct App

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.
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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 

Motion for Postconvictio

In 2004, we decided Harris’ first postconviction appeal.2

Harris contended that he was entitled to an evidentiary hearing 

1 See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).

2 See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
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on claims regarding the alleged nondisclosure of Cass’ police 

report. As stated above, Cass testified at trial that during a 

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 A

Motion for Postconvictio

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, 

3 See State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007).

4 Id. at 42, 735 N.W.2d at 777.
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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

for Postconviction 

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 2010, the court permitted 

Harris to file a third amended motion, which added allegations 

of newly discovered evidence that the prosecutor mispresented 

5 See State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).

6 Id. at 189, 871 N.W.2d at 765.
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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 

7 Harris, supra note 5.

8 See Neb. Rev. Stat. § 29-3003 (Reissue 2016).
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ruling on the merits presents the issues now currently before 

this court.

5. Proceedings on 

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 not part of the record before us. The only record 

before us is the evidence offered at the 2013 evidentiary hearing. Most of the facts that we set out below either are in the 

record from the 2013 postconviction hearing or come from our 

previous records and decisions in this case, which we judicially notice.9

As mentioned above, in Harris’ third amended motion, he 

added the allegation that “the prosecutor engaged in misconduct by misrepresenting or allowing Hicks to misrepresent 

the nature of the plea agreement at Harris’ trial.”10 Relatedly, 

Harris alleged that the prosecutor failed to disclose impeachment evidence regarding the State’s true plea agreement with 

Hicks. Harris contended that contrary to the prosecutor’s representations, the true plea agreement included the following 

terms: (1) The prosecutor would meet with Hicks’ attorney and 

the judge and make recommendations for lenient sentencing; 

(2) neither the prosecutor nor Hicks’ attorney would object 

to Harris’ waiver of a presentence investigation report, which 

would have alerted the judge that Paylor had identified Hicks 

as his shooter; (3) the prosecutor would make a statement 

9 See, e.g., State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).

10 Harris, supra note 5, 292 Neb. at 189, 871 N.W.2d at 765.
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regarding Hicks’ sincere remorse for his involvement in the 

case of Jones’ homicide; (4) the prosecutor would not object 

to Hicks’ attorney’s recommendations for sentencing nor object 

to certain illegal credit for time served on different charges; 

and (5) the prosecutor would advise the court that she had spoken to Jones’ family members and that they did not object to 

her recommendations.

However, in the court’s 2016 order denying relief, the court 

did not address Harris’ claims regarding Hicks’ plea agreement. 

Instead, the court’s order stated that Harris had filed a “second” motion for postconviction relief and addressed the claims 

raised in only that second motion.

The court specifically ruled upon Harris’ claims that the State 

suppressed information in the possession of Allgood before 

Harris’ trial and information in the possession of McClinton 

before Harris’ trial, direct appeal, or postconviction proceedings. To address Harris’ claims and the court’s rulings, we must 

provide more factual context.

6. Additional F

In 2006, McClinton wrote Harris’ postconviction attorney 

with information that he had obtained in prison about homicides in Omaha, including Jones’ homicide. McClinton wrote 

that Hicks had told him about killing Jones and walking to 

Allgood’s house afterward. McClinton refused to be transported to court for the 2013 evidentiary hearing, but the court 

received his 2007 affidavit into evidence.

In his affidavit, McClinton stated that for an unspecified 

period, he had worked for Bass, who was a major drug dealer 

in Douglas County. McClinton would “administer beatings” to 

people who owed Bass money or drugs. McClinton said that 

Hicks killed people for Bass and was referred to as “Homicide” 

because “he will leave you dead.” McClinton said that in 2001, 

he met with Hicks in Omaha and Hicks talked about some of 

Hicks’ crimes.
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McClinton’s affidavit further stated that Hicks told 

McClinton that despite his testimony at Harris’ trial, Hicks had 

shot Jones. Hicks said that he had waited outside Jones’ apartment door until Jones came home and then took Jones inside 

to rob him. Hicks said he shot Jones twice because his gun 

misfired. But Hicks could not find Jones’ drugs and needed 

to walk to a telephone booth to call Bass and ask where Jones 

kept them. Hicks put a vase in the doorway so he could get 

back inside. After Bass told Hicks where to look, he returned 

to Jones’ apartment and found the drugs. Then he walked to 

Allgood’s house, but Allgood kicked him out because he got 

mud on the floor.

Finally, McClinton’s affidavit stated that he “tried” to call 

the gang unit with this information in 2004, contacted a federal agent in 2005, and wrote the county attorney about it in 

June 2006.

McClinton’s information led Harris’ postconviction attorney 

to Allgood, who signed an affidavit in 2007. In that affidavit, 

Allgood stated that in 1995, he lived within blocks of Jones’ 

apartment. He said that he installed hydraulic suspensions on 

cars, that some of his customers were people involved in gangs 

and illegal drugs, and that it was not unusual for these customers to “‘hang out’” at his house. Allgood said that Bass, a 

“known street gangster” and major drug dealer, and Hicks were 

among the customers who would spend time at his house. He 

also knew Harris. He said that he would sometimes see Bass 

with Harris but would not see Hicks with Harris. Allgood said 

the following regarding August 22, 1995: It was a rainy day; 

Bass and another person were at Allgood’s house, and Harris 

was not there. Around 10:30 p.m., Hicks ran into Allgood’s 

kitchen without knocking and appeared very agitated. He was 

wearing dark clothes and had gloves in his back pocket. 

Allgood was upset because Hicks was tracking mud onto the 

floor. He overheard Hicks tell Bass that “‘it was handled.’” 

Hicks and Bass talked inside for about 15 minutes; then they 

went outside and left about 10 minutes later.
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At the 2013 hearing, Allgood testified that the night of 

Jones’ murder had stood out to him because he learned about 

the murder shortly afterward. He said that Hicks had burst into 

his kitchen like “he was just coming in to start a fight or something.” Allgood told Hicks to take his muddy boots outside, but 

Hicks insisted on talking to Bass. Hicks was erratic in speaking 

to Bass while they were in the kitchen, but when Allgood heard 

Hicks say that “[i]t was handled,” Bass seemed happy.

Allgood further testified that later, in 1996 or 1997, a plainclothes police officer, accompanied by another man, came 

to ask him questions about Jones’ homicide. Allgood did not 

know Jones but knew of him. He believed that Jones was also 

involved in illegal drug activities with Bass. Allgood could 

not remember the officer’s name but said that he identified 

himself as a police officer and took notes. The officer gave 

Allgood a “brief synopsis” of the homicide investigation and 

asked Allgood if he had ever seen Harris, Hicks, and Bass “all 

together around that time at [Allgood’s] house.” Allgood told 

the officer that he did not see them all together. But he specifically testified that he told the officer he “saw [Bass] and Hicks 

together that night.”

However, on cross-examination, the prosecutor asked 

Allgood the following questions, and Allgood gave the following answers:

Q. The information in your affidavit pertaining to when 

. . . Hicks came into your house that night in August of 

1995 —

A. Yes, sir.

Q. — did you tell the police officer about that?

A. No. Because he didn’t ask me that question.

Q. Did you tell anybody in law enforcement about 

that until you revealed it when [postconviction counsel’s] 

investigator came and talked to you?

A. No. I didn’t.

Q. Your wife? Anybody?

A. No.
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Allgood said that he did not tell the police investigator about 

the information in his affidavit because he had not put the facts 

all together and it would have hurt his business to talk about 

some things to police officers.

At the 2013 hearing, Harris offered evidence to show that his 

trial attorney did not receive any police reports about Allgood 

and that the prosecutor likely knew about him. Specifically, 

Harris presented evidence that on December 16, 1996, Officer 

W. Agnew wrote a “supplementary” police report for the investigation into the murder of Bass. In the report, Agnew stated 

that he had been asked to find out if Harris knew anything 

about Bass’ death. A box was drawn around text in which 

Agnew reported that in November 1996, Harris had traded 

in a “GMC Blazer [for a] Mercedes Benz.” The information 

was relevant because Hicks had testified that Harris owned 

a Blazer.

After the first day of Harris’ second trial, the prosecutor 

faxed six pages to Harris’ attorney: a cover sheet, an unfiled 

notice to seek endorsement of Agnew and Allgood as witnesses, and all four pages of Agnew’s supplemental report. But 

the original fax information at the top of Agnew’s supplemental report showed that his report was part of 29 pages that were 

faxed to the prosecutor on the morning of July 19, 1999. The 

prosecutor filed the notice to endorse Agnew and Allgood on 

July 20.

Harris’ attorney could not recall receiving Agnew’s report 

or speaking to the prosecutor about it. Agnew’s report did 

not mention Allgood’s name. But Harris’ attorney believed 

that because of the prosecutor’s notice to endorse Agnew and 

Allgood, he would have spoken to the prosecutor about these 

witnesses. However, he said that if the prosecutor had indicated 

that she would not call Allgood, he would not have worried 

about him. He stated that if he had known about the statements in Allgood’s 2007 affidavit, he would have investigated 

to determine whether Hicks “was with others or alone in terms 

of the story that he related in the first and second trials.” He 
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stated that this information would have undermined Hicks’ 

credibility and reinforced Harris’ alibi.

Harris testified that during his second trial, the prosecutor 

sat at the same table with the defense. He stated that he could 

see the prosecutor’s notice to endorse Agnew as a witness and 

that Agnew worked in the police department’s gang unit. Harris 

asked the prosecutor what Agnew would say, because Harris 

was not a gang member. The prosecutor asked Harris whether 

he had owned a “little Blazer,” because Hicks had said he did. 

Harris told the prosecutor that he had owned a “big Blazer,” 

and the prosecutor said she would not call anyone about the 

Blazer. When Harris asked what Allgood would say, the prosecutor responded that she was not going to use him. When 

Harris asked his attorney what Allgood would say, his attorney 

said he did not have any paperwork on Allgood.

In her 2011 deposition, the prosecutor testified that she could 

not recall why she had endorsed Agnew or Allgood. She said 

that in general, she would endorse a witness to “be on the safe 

side,” if she had gotten some information from a police report 

that caused her to think “maybe there might be something.” 

She also acknowledged the existence of a “gang intelligence 

unit” in the police department when she was a prosecutor. She 

said that as a prosecutor, she did not want to know about any 

of the unit’s collected information “that [she could not] tell the 

defense attorney,” and that the unit’s policy was not to tell her 

anything “unless it can be disclosed. . . . If they think it’s too 

sensitive, then [they] don’t tell [her].”

7. Court’s Orde

In its 2016 ruling on Harris’ motion for postconviction 

relief, the district court determined that Harris was not entitled to relief on his claims that (1) the prosecutor failed 

to disclose McClinton’s statements to Harris’ trial counsel, 

appellate counsel, or postconviction counsel and (2) if Harris’ 

trial counsel knew about McClinton’s information, counsel 

provided ineffective assistance in failing to call McClinton as 
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a witness. The court found that there was no evidence that the 

prosecutor or the defense attorney knew about McClinton’s 

existence: “Given that lack of knowledge, it would be impossible for either of them to know, suspect, look into or learn 

about the potentially exculpatory evidence [McClinton] 

recites in his letter to [Harris’ postconviction counsel] or in 

his affidavit.”

The court also concluded that Harris was not entitled to relief 

on his claims that (1) the State failed to disclose Allgood’s 

statements to Harris and (2) if Harris’ trial attorney knew about 

Allgood’s statements, counsel provided ineffective assistance 

in failing to call Allgood as a witness:

The record does contain some evidence to indicate 

that the prosecutor knew about . . . Allgood’s physical 

existence and the possibility that he possessed at least 

some information that was of potential utility in [Harris’] 

original trial. However, there is no information contained 

within the record and evidence currently before this 

Court to indicate that at any time prior to and/or during 

[Harris’] trial did either the State . . . or defense counsel 

. . . know about any potential exculpatory information in 

. . . Allgood’s possession. More specifically, there is no 

evidence before this Court for it to make a determination that [the prosecutor] or [defense attorney] possessed 

even the slightest bit of information about the potentially 

exculpatory information contained within . . . Allgood’s 

affidavit . . . until it was brought to their attention as 

a result of the filing of this postconviction motion in 

January of 2008. Further, . . . Allgood’s testimony at the 

hearing held on June 28, 2013, corroborates the fact that 

he did not share, hint at, or in any other manner reveal 

the potentially exculpatory information contained in [his 

affidavit] with anyone, including representatives of the 

State, the defense or any members of law enforcement. 

. . . Accordingly, the Court finds that this contention is 

without merit.
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As stated, the court did not address Harris’ claims regarding 

Hicks’ plea agreement.

III. ASSIGNMENTS OF ERROR

Harris assigns that the court erred in overruling his third 

amended motion for postconviction relief for the following 

reasons: (1) Harris’ convictions were procured through prosecutorial misconduct, which violated his right to due process; 

(2) the court failed to address Harris’ claim that the prosecutor 

improperly misrepresented the nature of Hicks’ plea agreement; 

and (3) Harris’ trial counsel provided ineffective assistance.

IV. STANDARD OF REVIEW

[1-3] In reviewing a trial court’s factual findings following 

an evidentiary hearing in a postconviction case, an appellate 

court will uphold those findings unless they are clearly erroneous.11 We independently review questions of law decided by a 

lower court.12 The determination of constitutional requirements 

presents a question of law.13

[4] Likewise, when a claim of ineffective assistance of 

counsel presents a mixed question of law and fact, we review 

the lower court’s factual findings for clear error but independently determine whether those facts show counsel’s performance was deficient and prejudiced the defendant.14

V. ANALYSIS

Before addressing the parties’ specific arguments regarding 

Harris’ suppression of evidence claims, we set out the standards that guide our review of those claims.

11 See State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).

12 See, State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016); Saylor, 

supra note 11.

13 See, State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016); State v. 

Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014); State v. Boslau, 

258 Neb. 39, 601 N.W.2d 769 (1999).

14 See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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1. Prosecution’s Duty to Disclose Fa

Evidence and Standard of Mate

to Show Due Process Vi

[5-7] In Brady v. Maryland,

15 the U.S. Supreme Court held 

that the prosecution has a duty to disclose all favorable evidence to a criminal defendant prior to trial. Favorable evidence 

includes both exculpatory and impeachment evidence.16 The 

“suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence 

is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.”17

[8,9] Since deciding Brady, the U.S. Supreme Court has 

clarified that the Due Process Clause requires the prosecution to disclose favorable material evidence even if a defense 

counsel did not request it.18 Moreover, a prosecutor has a duty 

to learn of favorable material evidence known to others acting on the government’s behalf in a case.19 Thus, the State’s 

duty to disclose favorable material evidence exists even if the 

evidence was “‘known only to police investigators and not to 

the prosecutor.’”20

15 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 

Accord, e.g., State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016); State 

v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

16 See United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 

481 (1985), citing Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 

L. Ed. 2d 104 (1972). Accord, e.g., Jenkins, supra note 15; State v. Castor, 

257 Neb. 572, 599 N.W.2d 201 (1999).

17 Brady, supra note 15, 373 U.S. at 87.

18 Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 

(1999), citing United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. 

Ed. 2d 342 (1976). Accord, State v. Phillips, 286 Neb. 974, 840 N.W.2d 

500 (2013); State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).

19 Strickler, supra note 18, quoting Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 

1555, 131 L. Ed. 2d 490 (1995).

20 Id., 527 U.S. at 280-81, quoting Kyles, supra note 19.
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[10] But the prosecution’s undisclosed evidence must be 

material either to guilt or to punishment, and the prosecution’s suppression of favorable evidence violates a defendant’s 

due process right to a fair trial only if the suppressed evidence is sufficiently significant to undermine confidence in 

the verdict.21

[11] In United States v. Bagley,

22 the Supreme Court held that 

the same standard of materiality applies to undisclosed favorable evidence whether a defense attorney made no request, a 

general request, or a specific request for it.23 The Court adopted 

the standard of materiality that it had relied on in Strickland 

v. Washington24 for all claims of prosecutorial suppression of 

favorable material evidence: “The evidence is material only if 

there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would 

have been different.”25

[12] Under Kyles v. Whitley,

26 the touchstone of a “‘reasonable probability’” of a different result is not a sufficiency of 

the evidence test and does not require a defendant to show that 

an acquittal was more likely than not with the suppressed evidence. Instead, the question is whether the defendant received 

a fair trial without the evidence:

A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the 

trial.”. . .

21 Brady, supra note 15; State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 

(2006), quoting Strickler, supra note 18.

22 Bagley, supra note 16.

23 See Lykens, supra note 21.

24 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). Accord Jackson, supra note 18.

25 Bagley, supra note 16, 473 U.S. at 682.

26 Kyles, supra note 19, 514 U.S. at 434.
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. . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should 

have been excluded, but by showing that the favorable 

evidence could reasonably be taken to put the whole case 

in such a different light as to undermine confidence in 

the verdict.27

Thus, if the Bagley standard of materiality is satisfied—i.e., 

the defendant shows that the prosecution’s failure to disclose 

favorable evidence prejudiced the defendant by undermining confidence in the outcome of the trial28—the suppression 

cannot be found harmless.29

As we have recognized,30 in Strickler v. Greene,

31 the 

Supreme Court set out the three primary components of 

a Brady violation. First, the “evidence at issue must be 

favorable to the accused, either because it is exculpatory, or because it is impeaching.”32 Second, the “evidence 

must have been suppressed by the State, either willfully or 

inadvertently.”33 Third, prejudice from the suppression “must 

have ensued.”34

[13] But when the State has suppressed more than one 

item of favorable material evidence, a court must also consider whether prejudice occurred from the suppressed evidence 

27 Id., 514 U.S. at 434-35 (citation omitted) (cited in Lykens, supra note 21). 

Accord Castor, supra note 16.

28 See Kyles, supra note 19. See, also, Strickler, supra note 18 (Souter, J., 

concurring in part, and in part dissenting; Kennedy, J., joins in part); 

Lykens, supra note 21, quoting 5 Wayne R. Lafave et al., Criminal 

Procedure § 24.3(b) (2d ed. Supp. 2006).

29 See Kyles, supra note 19. Accord Lykens, supra note 21.

30 See Lykens, supra note 21.

31 Strickler, supra note 18.

32 Id., 527 U.S. at 281-82.

33 Id., 527 U.S. at 282.

34 Id.
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collectively, not simply on an item-by-item basis; that is, it 

must assess its cumulative effect on the fact finder in the light 

of other evidence.35

[14] Under Neb. Rev. Stat. § 29-1912 (Reissue 2008), 

Nebraska’s primary discovery statute in criminal cases, whether 

a prosecutor’s failure to disclose evidence results in prejudice 

depends on whether the information sought is material to the 

preparation of the defense, meaning that there is a strong 

indication that such information will play an important role 

in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or 

rebuttal.36 Accordingly, we have analyzed whether a prosecutor failed to disclose material evidence under § 29-1912 

in an appeal from a postconviction proceeding,37 which is a 

remedy available only for violations of a defendant’s constitutional rights.38

Having set out the relevant standards for evaluating a 

defendant’s suppression claims, we turn to the parties’ arguments regarding Harris’ specific claims.

35 See, Kyles, supra note 19; Castor, supra note 16. Accord, e.g., Cone v. 

Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009); Banks 

v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004); 

Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011); Lambert v. Beard, 

633 F.3d 126 (3d Cir. 2011), vacated on other grounds and remanded 

for reconsideration, Wetzel v. Lambert, ___ U.S. ___, 132 S. Ct. 1195, 

182 L. Ed. 2d 35 (2012); Rocha v. Thaler, 619 F.3d 387 (5th Cir. 2010); 

Doan v. Carter, 548 F.3d 449 (6th Cir. 2008); Monroe v. Angelone, 

323 F.3d 286 (4th Cir. 2003); Boyette v. Lefevre, 246 F.3d 76 (2d 

Cir. 2001).

36 State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).

37 See Jackson, supra note 18.

38 See, Neb. Rev. Stat. § 29-3001 (Reissue 2016); State v. Starks, 294 Neb. 

361, 883 N.W.2d 310 (2016).
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2. State’s Duty to Disclose Favorable 

Did Not Apply to Information It 

From McClinton After Har

Convicted and Se

According to McClinton’s affidavit, 2004 was the first year 

that he “tried” to contact any law enforcement officers with 

information about Hicks’ confessing to killing Jones. Harris 

was convicted and sentenced in 1999. We decided his direct 

appeal in 2002 and his first postconviction appeal in 2004. 

Harris does not dispute the court’s finding that the prosecutor 

did not know McClinton even existed during Harris’ trial or 

sentencing. But Harris argues that this court should interpret 

Nebraska’s Constitution and postconviction statutes to require 

an ongoing duty for the State to disclose exculpatory information that it learns about after a defendant is convicted and sentenced. It relies on the U.S. Supreme Court’s 2009 decision in 

District Attorney’s Office for Third Judicial Dist. v. Osborne.

39

But Osborne does not support Harris’ argument.

Long before Osborne, in a 1976 civil rights case, the 

Supreme Court stated that at a trial, a prosecutor’s duty to disclose favorable evidence is enforced by due process requirements, but that after a trial has concluded, the prosecutor is 

bound by his or her ethical duties.40 Later, in a 1986 habeas 

case, the Court declined to decide whether Brady requires a 

prosecutor to disclose favorable evidence that the prosecutor does not learn about until after a defendant is convicted 

and sentenced.41 Since then, various federal courts have held 

that when state investigators or prosecuting officers know of 

39 District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 

129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009).

40 See Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 

(1976).

41 See Monroe v. Blackburn, 476 U.S. 1145, 106 S. Ct. 2261, 90 L. Ed. 2d 

706 (1986) (mem.) (Marshall, J., dissenting; Brennan, J., joins).
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favorable evidence before or during a defendant’s trial, the 

State’s duty to disclose the evidence continues to posttrial 

proceedings that are determinative of guilt or innocence.42

But in the absence of clear guidance, lower federal courts had 

been split on whether Brady requirements extend to favorable 

evidence that the prosecution does not learn about until after 

a trial is completed.43 In Osborne, the U.S. Supreme Court 

effectively resolved that split.

In Osborne, a state prisoner sued Alaska state officials in a 

civil rights action for violating his due process right to obtain 

biological evidence that was used to convict him of kidnapping 

and assault offenses. He wanted the evidence to perform DNA 

testing that was unavailable at the time of his trial. The Ninth 

Circuit extended a previous holding that the Brady disclosure 

requirements continue to posttrial proceedings based upon a 

fundamental fairness requirement that the State must come 

forward with any exculpatory evidence in its possession when 

a habeas petitioner needs it to make a colorable showing of 

actual innocence.44 The circuit court noted that the prisoner had 

a “potentially viable” state constitutional claim of “actual innocence,” and it relied on the “well-established assumption” that 

a similar claim arose under the federal Constitution and concluded that as a result, these potential claims extended some 

of the State’s Brady obligations of disclosure of favorable 

evidence to the postconviction context.45 However, the circuit 

court declined to set out a standard of materiality because it 

42 See, e.g., Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007); Smith v. Roberts, 

115 F.3d 818 (10th Cir. 1997).

43 Compare Tennison v. City and County of San Francisco, 570 F.3d 1078 

(9th Cir. 2009), and Smith, supra note 42, with U.S. v. Maldonado-Rivera, 

489 F.3d 60 (1st Cir. 2007), and U.S. v. Jones, 399 F.3d 640 (6th Cir. 

2005).

44 See Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992).

45 Osborne v. Dist. Atty’s Office for Third Judicial, 521 F.3d 1118, 1130-31 

(9th Cir. 2008), reversed on other grounds, Osborne, supra note 39.
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concluded the facts of the case were strong enough to warrant 

disclosure regardless of the standard.

[15] The U.S. Supreme Court reversed. It agreed that 

Alaska’s statute for newly discovered evidence had created a 

liberty interest for convicted individuals to prove their innocence and that a state-created right can sometimes “‘beget yet 

other rights to procedures essential to the realization of the parent right.’”46 But it concluded that the Ninth Circuit “went too 

far . . . in concluding that the Due Process Clause requires that 

certain familiar preconviction trial rights be extended to protect 

[the respondent’s] postconviction liberty interest.”47 The Court 

specifically held that Brady does not apply after a defendant 

has been convicted in a fair trial and the presumption of innocence no longer applies:

A criminal defendant proved guilty after a fair trial 

does not have the same liberty interests as a free man. 

At trial, the defendant is presumed innocent and may 

demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded 

a fair trial and convicted of the offense for which he 

was charged, the presumption of innocence disappears.” 

. . . “Given a valid conviction, the criminal defendant has 

been constitutionally deprived of his liberty.” . . .

The State accordingly has more flexibility in deciding 

what procedures are needed in the context of postconviction relief. “[W]hen a State chooses to offer help to those 

seeking relief from convictions,” due process does not 

“dictat[e] the exact form such assistance must assume.” 

. . . [The respondent’s] right to due process is not parallel 

to a trial right, but rather must be analyzed in light of the 

fact that he has already been found guilty at a fair trial, 

and has only a limited interest in postconviction relief. 

Brady is the wrong framework.

46 Osborne, supra note 39, 557 U.S. at 68.

47 Id.
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Instead, the question is whether consideration of [the 

respondent’s] claim within the framework of the State’s 

procedures for postconviction relief “offends some principle of justice so rooted in the traditions and conscience 

of our people as to be ranked as fundamental,” or “transgresses any recognized principle of fundamental fairness 

in operation.”48

The Court concluded that Alaska’s procedures were sufficient 

to vindicate its state-created right to show actual innocence 

without the need to extend the Brady disclosure requirements 

to postconviction actions.

Harris contends that Nebraska’s “postconviction procedures and new trial provisions are fundamentally inadequate 

to vindicate the substantive rights provided.”49 At the time 

of his conviction and sentencing, pursuant to Neb. Rev. Stat. 

§ 29-2103(4) (Reissue 1995), a motion for a new trial resting 

on newly discovered evidence had to be filed within 3 years of 

the defendant’s conviction.50

Since Harris’ conviction, the Legislature has amended 

Nebraska’s statutes dealing with motions for a new trial.51

Effective August 30, 2015, a motion for new trial resting 

on newly discovered evidence must be brought within 5 

years of the verdict, “unless the motion and supporting documents show the new evidence could not with reasonable 

diligence have been discovered and produced at trial and such 

evidence is so substantial that a different result may have 

occurred.”52

But even before the Legislature amended Nebraska’s statutes dealing with a motion for a new trial, this court had 

held open the possibility of postconviction relief for a strong 

48 Id., 557 U.S. at 68-69 (citations omitted).

49 Reply brief for appellant at 11-12.

50 Compare § 29-2103(4) (Reissue 2016).

51 See 2015 Neb. Laws, L.B. 245, §§ 1 and 2.

52 § 29-2103 (Reissue 2016).
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showing of actual innocence. We have explained that a prisoner’s claim that the State was incarcerating an innocent person who could no longer present newly discovered evidence 

would raise a potential due process violation.53 Osborne did 

not establish a new substantive right; the Court was merely 

evaluating whether a state’s procedures, specifically Alaska’s, 

were sufficient to “vindicate its state right to postconviction relief.”54

Harris does not claim that McClinton’s affidavit was sufficiently compelling to show his actual innocence in a postconviction proceeding.55 Nor does Harris claim that Nebraska’s 

procedures are inadequate to protect his statutory postconviction rights. Instead, he claims that Nebraska’s statutory rights 

are inadequate to support a purported right to have the State 

disclose any exculpatory information that it receives long after 

a case is closed.

After a case is closed, there may be ethical duties that 

require prosecutors to take action upon learning of evidence 

that creates a reasonable likelihood the defendant did not 

commit the crime.56 But Nebraska’s postconviction statutes 

provide relief only for constitutional violations that render a 

conviction void or voidable.57

Harris cites no authority to support his argument that the 

3-year time limitation for claims of newly discovered evidence violated a recognized principle of fundamental fairness. And his claim that he has a substantive right to have 

the State disclose exculpatory evidence that it learns about 

after a final judgment directly conflicts with the U.S. Supreme 

Court’s holding in Osborne that Brady does not apply to 

53 See, e.g., State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).

54 Osborne, supra note 39, 557 U.S. at 69.

55 See id.

56 See Model Rules of Prof. Conduct Rule 3.8(g) (ABA 2014).

57 State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015).
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postconviction proceedings.58 We conclude that the court did 

not err in denying Harris relief on his claim that the State 

failed to disclose information McClinton allegedly reported to 

law enforcement officers in 2004 or later.

3. Court Applied Wrong Stand

in Determining That St

Not Violate Duty to Disc

Information About Al

The district court concluded that Harris was not entitled to relief on his claims that the State failed to disclose 

Allgood’s statements to a police officer in 1996 or 1997. 

The court reasoned that the evidence failed to show that 

the prosecutor “possessed even the slightest bit of information about the potentially exculpatory information contained 

within . . . Allgood’s affidavit.” Additionally, the court found 

that Allgood’s testimony showed that he did not reveal any 

potentially exculpatory information with anyone, “including 

representatives of the State, the defense or any members of 

law enforcement.”

(a) Parties’ Contentions Regarding 

Allgood’s Statements

Harris argues that the evidence shows that the prosecutor’s 

practice was to allow law enforcement officers to dictate what 

information the prosecution would see on a case. Despite this 

practice, Harris contends that the prosecutor would not have 

endorsed Allgood as a witness without knowing something 

about his potential testimony and that the evidence strongly 

suggests the prosecutor received this information in the missing pages the police department faxed to the prosecutor on July 

19, 1999.

Harris also contends that Allgood’s statements to the officer who interviewed him about Jones’ homicide constituted 

58 See, Gavitt v. Born, 835 F.3d 623 (6th Cir. 2016); Whitlock v. Brueggemann, 

682 F.3d 567 (7th Cir. 2012).
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potentially exculpatory evidence and impeachment evidence. 

He argues that if his trial counsel had known about Allgood’s 

statements to the officer, he would have contacted him and 

learned about the rest of the story that was set out in Allgood’s 

affidavit. Harris further contends that Allgood’s statements to 

the officer would have corroborated Harris’ alibi defense and 

permitted him to impeach Hicks’ credibility. He argues that 

Allgood’s statements to the officer contradicted Hicks’ testimony that he and Harris drove around town together after robbing Jones.

The State contends that Allgood’s statements to the officer—

i.e., that he did not see Hicks, Harris, and Bass together the 

night of the murder, but did see Hicks and Bass together—did 

not constitute evidence favorable to Harris because they were 

neither exculpatory nor impeaching. It argues that even if 

Harris’ trial counsel had investigated and learned that Hicks 

was at Allgood’s house the night of the murder, that evidence 

shows at most that Harris was not there when Hicks was or that 

Hicks was also involved in the murder of Jones. But it would 

not show that Harris was not involved.

(b) Resolution

[16] 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’ 
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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 Bass. 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.59 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.

4. Record Is Unclear as t

Motion for Postconvictio

Court Considere

As previously explained, on January 17, 2008, Harris filed 

a “Second Verified Motion for Postconviction Relief.” In that 

motion, Harris raised the issue of prosecutorial misconduct for 

failing to disclose potentially exculpatory information within 

the possession of Allgood and McClinton.

On November 13, 2010, Harris filed a “Motion for Leave 

to File Third Amended Motion for Postconviction Relief.” 

In that motion, Harris alleged that the motion was identical to his second motion except that it raised two claims 

involving Hicks’ plea agreement: (1) The prosecutor failed 

to disclose the true plea agreement, and (2) the prosecutor 

59 See id. Accord, e.g., Canales v. Stephens, 765 F.3d 551 (5th Cir. 2014).
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misrepresented or allowed Hicks to misrepresent the nature 

of his plea agreement. On December 16, the district court 

granted the motion for leave and allowed Harris to file a third 

amended motion for postconviction relief. As mentioned previously, the record reflects that Harris failed to file his third 

amended postconviction motion after the court gave him leave 

to do so.

At the commencement of the evidentiary hearing in 2013, 

the district court announced that the matter was before the 

court on the third amended motion for postconviction relief. 

When the court announced that it was hearing Harris’ third 

amended motion, the State did not assert that Harris had failed 

to file the motion. Instead, the State offered a copy of Harris’ 

third amended motion and the court’s docket entries, which 

showed that the court had given Harris leave to file it.

After clarifying the record, the prosecutor stated that the 

State had not found a record of Harris’ most recent motion. 

But the State did not contend that Harris’ claims regarding 

Hicks’ plea agreement were beyond the scope of the pleadings. 

Instead, it argued that the court should dismiss Harris’ postconviction motion under § 29-3003 because the record failed to 

show that the court had ever dismissed his motions for a new 

trial and a writ of error coram nobis.

The record further reflects that Harris presented certain 

evidence that was relevant only to his claims about Hicks’ 

plea agreement. He questioned his trial attorney about Hicks’ 

shooting of Paylor and Hicks’ plea agreement in regard to 

Jones. He submitted exhibits that showed the State’s original 

information charging Hicks with assault, its amended information charging Hicks’ with robbery, Hicks’ 2011 deposition, 

Hicks’ sentencing hearing, and the court’s order sentencing 

Hicks. The State’s only objection to this evidence was that 

the claim was procedurally barred—not that it was beyond the 

scope of the pleadings. The court allowed the State to have a 

continuing objection regarding its procedural bar argument, 

but overruled the objection. At no point did the State argue 
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that Harris’ evidence was irrelevant to the pleading properly 

before the court.

However, when the district court issued its order on the 

merits, the court referenced only that the matter came on for 

a full hearing on Harris’ “Motion for Postconviction Relief.” 

Further, the order addressed Harris’ claims for prosecutorial 

misconduct only for failing to disclose potentially exculpatory 

information within the possession of Allgood and McClinton. 

The order was silent as to Harris’ claims regarding Hicks’ 

plea agreement.

As a result, we 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.

5. Harris’ New Claim of Ineffe

Assistance Is Procedurally

In Harris’ second motion for postconviction relief, he 

alleged that if his trial attorneys knew about Allgood and his 

contacts with Hicks or about the statements that Hicks made 

to McClinton, then they provided ineffective assistance in 

failing to call Allgood and McClinton as witnesses. The court 

found that Harris’ attorney did not know about information 

that Allgood or McClinton possessed. That finding was not 

clearly wrong, and Harris does not argue otherwise. Instead, 

he argues that his attorney was ineffective in failing to investigate the significance of Allgood after the prosecutor endorsed 

him as a witness and then stated that she would not call him 

to testify. This claim was available to Harris when he tendered 
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his third amended motion, but he did not raise it. It is now 

procedurally barred.60

VI. CONCLUSION

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 

trial evidence. Finally, the court erred in failing to accurately 

set forth which motion for postconviction relief it intended 

to address.

If the court concludes that the State suppressed material 

evidence regarding Allgood’s statements to police or Hicks’ 

plea agreement, it must evaluate the materiality of that suppression cumulatively. That is, the prejudicial effect of any new 

suppression must be considered cumulatively with the State’s 

known suppression of the Cass report.

 Affirmed in part, and in part revers

remanded for further proceedin

Heavican, C.J., not participati

60 State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).