State v. Harris, 294 Neb. 766

Background

In 2004 Michael E. Harris shot and killed Isice Jones. He pleaded guilty to possession of a deadly weapon by a prohibited person and was tried for murder and use of a deadly weapon; the jury convicted him of second degree murder and use of a deadly weapon.
Harris appealed; convictions and sentences were affirmed. He later filed a postconviction motion alleging over 20 instances of ineffective assistance of trial counsel and other errors.
The district court granted an evidentiary hearing, received depositions, and heard testimony from Harris, neighbors (Betty Woods and Lee Perry), trial counsel, and a law clerk. The court found Woods and Perry had not been interviewed by the defense team.
The district court concluded trial counsel’s failure to investigate Woods and Perry was deficient, but Harris was not prejudiced because their testimony would not likely have changed the verdict. The court denied the remaining claims, including failure to request a nonretreat instruction and alleged defects in the prior-felony stipulation during the plea.
Harris appealed, arguing (1) ineffective assistance for failing to interview/call Woods and Perry, (2) inadequate factual findings below, (3) ineffective assistance for not requesting a nonretreat instruction, and (4) ineffective assistance / plain error related to his guilty plea and counsel’s stipulation to a prior felony.

Issues

Issue	Plaintiff's Argument (Harris)	Defendant's Argument (State / Trial Court)	Held
1. Ineffective assistance for failure to interview/call Woods & Perry	Failure to investigate these witnesses prejudiced his self-defense claim; their testimony would support his version of events	Even if called, their testimony would not create a reasonable probability of a different outcome given other trial evidence (notably boys’ testimony and other witnesses)	No prejudice; counsel deficient in investigation but no Strickland prejudice shown — claim denied
2. Sufficiency of postconviction findings	District court failed to make specific findings on all 20+ claims; remand required for detailed findings	Court’s 11‑page order adequately summarized evidence and resolved the key contested claims; remand unnecessary	Findings were sufficient for appellate review; no remand
3. Failure to request privilege of nonretreat instruction	Counsel should have requested nonretreat instruction to prevent jury assuming Harris provoked or had to retreat	Statute’s nonretreat privilege applies only in dwelling/place of work; no evidence they were inside dwelling, so instruction was unwarranted	No ineffective assistance — instruction not warranted
4. Plea colloquy / counsel stipulating to prior felony & advising sentencing consequences	Counsel erred by stipulating to prior felony and failing to advise that a firearm enhancement would require consecutive sentencing; plain error in accepting plea	Counsel’s stipulation was not shown to be deficient; Harris was advised of range for the plea offense; mandatory consecutive-sentence advisement beyond the plea’s charge not required here	Claims meritless; no plain error; plea advisement adequate

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective assistance standard)
State v. Vanderpool, 286 Neb. 111 (applying Strickland standard in Nebraska)
State v. Golden, 226 Neb. 863 (failure to advise of mandatory consecutive sentence can render a plea involuntary)
State v. Poe, 292 Neb. 60 (standards for factfinding on postconviction hearings)
State v. Costanzo, 235 Neb. 126 (postconviction hearings require factual findings and conclusions to facilitate review)
State v. Irish, 223 Neb. 814 (plea advisement rule regarding reciting range of possible penalties)