State v. Chase , 310 Neb. 160 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. CHASE
Cite as 310 Neb. 160State of Nebraska, appellee, v.
Amandah K. Chase, appellant.
___ N.W.2d ___
Filed September 17, 2021. No. S-20-789.
1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
determination as to whether charges should be dismissed on speedy
trial grounds is a factual question that will be affirmed on appeal unless
clearly erroneous.
2. Judgments: Appeal and Error. Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party, resolving
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Speedy Trial: Final Orders. The denial of a motion for discharge under
the speedy trial statutes is a final order under Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2020).
5. Speedy Trial: Appeal and Error. An appeal from the denial of a motion
for discharge under the speedy trial statutes presents a relatively simple
mathematical computation of whether the 6-month speedy trial clock, as
extended by statutorily excludable periods, has expired before the com-
mencement of trial and does not require any showing of prejudice.
6. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
7. Speedy Trial: Misdemeanors: Warrants: Arrests. For misdemeanor
offenses where an “intimate partner” is an element of the offense, the
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STATE v. CHASE
Cite as 310 Neb. 1606-month period within which an accused is to be brought to trial com-
mences the date the defendant is arrested on a complaint filed as part of
a warrant for arrest.
8. Speedy Trial: Proof. The burden of proof is upon the State to show by
a preponderance of the evidence that one or more of the excluded time
periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are appli-
cable when the defendant is not tried within 6 months.
9. Speedy Trial: Good Cause. Judicial delay, absent a showing by the
State of good cause, does not toll the speedy trial statute.
10. ____: ____. When a trial court relies on Neb. Rev. Stat. § 29-1207(4)(f )
(Reissue 2016) to exclude time from the speedy trial calculation, it
must make specific findings as to the good cause which resulted in
the delay.
11. Appeal and Error. Where an appellant’s brief contains conclusory
assertions unsupported by a coherent analytical argument, the appellant
fails to satisfy the requirement that the party asserting the alleged error
must both specifically assign and specifically argue it in the party’s ini-
tial brief.
12. Motions for Continuance: Waiver. The statutory requirements of Neb.
Rev. Stat. § 25-1148 (Reissue 2016) can be waived by a defendant’s
failure to timely object.
13. Motions for Continuance. A trial court’s sua sponte decisions to delay
trial are not governed by Neb. Rev. Stat. § 25-1148 (Reissue 2016).
14. Speedy Trial: Good Cause. Evidence of good cause is properly pre-
sented at the hearing on the motion for absolute discharge and need not
be articulated at the time of the court’s sua sponte order delaying trial.
15. Speedy Trial: Good Cause: Waiver. Without a motion for absolute
discharge under Neb. Rev. Stat. § 29-1208 (Reissue 2016), a defendant
waives the statutory right to a trial within 6 months and no evidentiary
showing of good cause is necessary at all.
16. Good Cause: Words and Phrases. Good cause is a substantial reason
that affords a legal excuse.
17. Speedy Trial: Good Cause: Appeal and Error. In determining whether
the trial court clearly erred in finding good cause after a hearing on a
motion for discharge, an appellate court looks not just to the evidence
presented at the hearing on the motion for discharge, but to the whole of
the record.
18. Speedy Trial. The only timing requirement implicit in Neb. Rev. Stat.
§ 29-1207(4)(f ) (Reissue 2016) is that the substantial reason affording a
legal excuse objectively existed at the time of the delay.
Appeal from the District Court for Douglas County, Gary
B. Randall, Judge, on appeal thereto from the County Court
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STATE v. CHASE
Cite as 310 Neb. 160for Douglas County, Sheryl L. Lohaus, Judge. Judgment of
District Court affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Rebekah S. Keller for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The defendant appeals from the district court sitting as
an appellate court, which affirmed the county court’s denial
of her motion for absolute discharge based on her statutory
right to a speedy trial. She asserts the county court’s failure
to articulate its reasoning at the time of its sua sponte contin­
uances of the trial date rendered untimely the evidence of good
cause ultimately adduced by the prosecution at the hearing on
her motion for discharge. The defendant argues that because
of the untimeliness of the reasoning and evidence supporting
good cause for the judicial delays, we must reverse the district
court’s determination that the county court did not clearly err
in finding the delays attributable to its sua sponte orders were
for good cause and therefore excludable. We disagree and
affirm the judgment of the district court.
BACKGROUND
The underlying charges against Amandah K. Chase are two
counts of misdemeanor domestic violence assault in the third
degree in violation of Neb. Rev. Stat. § 28-323(4) (Reissue
2016). The charges were filed in county court on October 2,
2019. Chase was arrested on January 21, 2020. A probable
cause hearing was held that same date. The court set bond and
appointed Chase defense counsel.
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Cite as 310 Neb. 160March 13, 2020
A pretrial hearing was held on March 13, 2020, before Judge
Sheryl Lohaus, in which defense counsel asked to set a hear-
ing for “cleanup” and voir dire. The court set a hearing for
March 26.
March 26, 2020
At the hearing on March 26, 2020, again before Judge
Lohaus, defense counsel informed the court that Chase intended
to pursue a jury trial. The court scheduled a jury trial status
check for May 28. The journal entry provides, “Case continued
to 5/28/2020 at 10:30 AM on motion of Defense.”
May 28, 2020
The status check hearing on May 28, 2020, was held before
Judge Jeffrey Marcuzzo. Defense counsel informed the court
that Chase “is ready to set this for a jury trial.”
Defense counsel continued, “I’m not sure when Judge
Lohaus is setting hers or if she’s requiring another cleanup.”
Judge Marcuzzo stated that he was “not quite sure myself,” and
he continued matters for a couple of weeks, scheduling another
pretrial status check in front of Judge Lohaus so she could tell
Chase “how she intends on handling these matters.” Defense
counsel responded, “Okay.”
The journal entry stated, “Case continued to 6/11/2020 at
10:30 AM on motion of the Court.” It further stated, “Case
continued. Defendant asking to be set for trial at further hear-
ing. No objection by State’s Attorney.”
June 11, 2020
At the jury trial status check before Judge Lohaus on June
11, 2020, Chase reiterated her request for a jury trial and stated,
“I’m not sure when the Court is going to be able to schedule
those, but we’d like to have it set if possible.”
The court replied, “Probably September.” Defense coun-
sel responded, “Okay.” Discussion was had in which defense
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STATE v. CHASE
Cite as 310 Neb. 160counsel expressed willingness to be scheduled as a “backup”
in order to be tried as soon as possible. Judge Lohaus explained
that in such a case, the trial could end up being “bumped,”
because “we have other cases that have priority, which is dis-
trict court.” Defense counsel stated, “We’ll take what we can
get, Your Honor.”
The journal entry provided, “Case continued to 8/10/2020
. . . for Jury Trial.”
June 25, 2020
A journal entry reflects that another hearing was held on
June 25, 2020, but there is no bill of exceptions for that hear-
ing. The journal entry states, “Case continued to 8/03/2020 . . .
on motion of the Court . . . for Jury Trial - Voir Dire.”
Motion for Discharge and Hearing
The transcript contains a motion for absolute discharge
with a certificate of service dated July 27, 2020. The motion
claimed violations of Chase’s statutory and constitutional rights
to a speedy trial. The parties agreed that, absent tolling, the
6-month statutory period would have run on July 21, 2020.
At the hearing on the motion, the county court set forth that
the State carried the burden to show the periods of delay were
excludable. The State offered into evidence, and asked the
county court to take judicial notice of, 11 exhibits containing
administrative orders and other documents of the Nebraska
Supreme Court and Douglas County relating to the COVID-19
pandemic. Chase did not object to the exhibits, and they
were received.
The exhibits included an affidavit of the clerk of the dis-
trict court, who averred on March 17, 2020, that due to
the COVID-19 pandemic, he would be unable to notify and
impanel the required prospective jurors.
The exhibits also included an administrative order on
April 27, 2020, by Judge Shelly Stratman, the presiding dis-
trict court judge, continuing for good cause all jury trials
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Cite as 310 Neb. 160scheduled for the jury panels beginning June 8 through 22.
Judge Stratman explained that the court could not conduct jury
trials within the social distancing guidelines for protection of
the public during the pandemic. Even if the court could assem-
ble a willing venire, Judge Stratman explained, there was no
way to ensure a jury’s deliberations would be unaffected by
conflicting health and safety concerns.
The State argued the delays were all on the court’s own
motion for good cause due to the COVID-19 pandemic. But it
also pointed out that defense counsel did not object to the May
28 continuance, but instead responded “[o]kay” after the court
announced it would be continuing matters.
Defense counsel argued that when a court continues trial on
its own motion, it must, at the time of the continuance, make
specific findings of good cause based on evidence adduced by
the State. She argued that it was too late for the State to prove
and the court to find good cause based only on evidence pre-
sented at the hearing on the motion for discharge.
In a journal entry on July 30, 2020, the county court found
that the continuances on March 26, May 28, and June 11 were
on the court’s own motion and that 96 days associated with
these continuances were excludable. The court elaborated that
the exhibits offered by the State at the hearing on the motion
for discharge proved by a preponderance of the evidence the
trial was delayed for good cause pursuant to Neb. Rev. Stat.
§ 29-1207(4)(f ) (Reissue 2016), because of a “nationwide
pandemic of Novel Coronavirus and COVID-19 disease.” The
court specifically noted the affidavit of the clerk of the district
court and Judge Stratman’s administrative order in support of
its finding.
Appeal to District Court
Chase appealed the July 30, 2020, order denying her statutory
right to a speedy trial to the district court. The court affirmed
the county court’s order denying the motion for discharge on
the ground that the judicial delays were for good cause.
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STATE v. CHASE
Cite as 310 Neb. 160ASSIGNMENT OF ERROR
Chase assigns that the district court erred in affirming the
order of the county court denying her motion for absolute dis-
charge under § 29-1207, because the State failed to meet its
burden to show that good cause existed sufficient to toll her
speedy trial rights.
STANDARD OF REVIEW
[1,2] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question that will be affirmed on appeal unless clearly
erroneous. 1 Under a clearly erroneous standard of review, an
appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party,
resolving evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence. 2
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 3
ANALYSIS
[4,5] This case presents an appeal from the denial of Chase’s
motion for discharge, which was affirmed by the district court.
The denial of a motion for discharge under the speedy trial
statutes is a final order under Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020). 4 An appeal therefrom presents a relatively sim-
ple mathematical computation of whether the 6-month speedy
trial clock, as extended by statutorily excludable periods,
1
State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
2
State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).
3
County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).
4
See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
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Cite as 310 Neb. 160has expired before the commencement of trial and does not
require any showing of prejudice. 5
[6-8] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward
6 months, back up 1 day, and then add any time excluded
under § 29-1207(4) to determine the last day the defendant
can be tried. 6 Although the speedy trial statutes expressly refer
to indictments and informations, we have held that they also
apply to prosecutions commenced by the filing of a complaint
in county court. 7 For misdemeanor offenses, such as this, where
an “intimate partner” is an element of the offense, the 6-month
period in which an accused is to be brought to trial commences
the date the defendant is arrested on a complaint filed as part
of a warrant for arrest. 8 The burden of proof is upon the State
to show by a preponderance of the evidence that one or more
of the excluded time periods under § 29-1207(4) are applicable
when the defendant is not tried within 6 months. 9
Section 29-1207(4)(b) designates as excluded in comput-
ing the time for trial “[t]he period of delay resulting from
a continuance granted at the request or with the consent of
the defendant or his or her counsel.” Section 29-1207(4)(c)
designates as excluded the period of delay resulting from a
continuance granted at the request of the prosecuting attorney
for two reasons. Those reasons, as set forth in the statute,
are as follows: (1) if the continuance is granted because of
the unavailability of evidence material to the State’s case,
when the prosecuting attorney has exercised due diligence
to obtain such evidence and there are reasonable grounds to
believe that such evidence will be available at the later date, 10
5
See id.
6
State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
7
See id.
8See State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).
9
See State v. Chapman, supra note 6.
10
§ 29-1207(4)(c)(i).
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Cite as 310 Neb. 160and (2) if the ­continuance is granted to allow the prosecut-
ing attorney additional time to prepare the State’s case and
additional time is justified because of the exceptional circum-
stances of the case. 11
[9,10] Section 29-1207(4) does not specifically describe a
“continuance” by the court’s own motion or judicial delay, but
§ 29-1207(4)(f ) presents a catchall that designates as excluded
in computing the time for trial “[o]ther periods of delay not
specifically enumerated in this section, but only if the court
finds that they are for good cause.” We have explained that
judicial delay, absent a showing by the State of good cause,
does not toll the speedy trial statute. 12 And when a trial court
relies on § 29-1207(4)(f ) to exclude time from the speedy trial
calculation, it must make specific findings as to the good cause
which resulted in the delay. 13
The county court specifically found that 96 days were
associated with continuances at the court’s own motion and
that those days were excludable for good cause pursuant to
§ 29-1207(4)(f ), because of a “nationwide pandemic of Novel
Coronavirus and COVID-19 disease.” An appellate court will
give deference to such factual findings unless they are clearly
erroneous. 14 Since the statutory 6-month period ran on July 21,
2020, and the motion for discharge was on July 27, we, like
the district court, will affirm the county court’s order denying
the motion if the record supports that the district court did not
clearly err in finding at least 7 days were excludable.
[11] Chase does not specifically argue that the evidence in
the record pertaining to the COVID-19 pandemic, entered into
evidence at the hearing on the motion for discharge, failed to
provide good cause for the delays resulting from the court’s
sua sponte orders. Chase’s challenge on appeal is instead to
11
§ 29-1207(4)(c)(ii).
12
State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000).
13
See State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).
14
See State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
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Cite as 310 Neb. 160the timing of the presentation of the evidence supporting good
cause and the lack of any articulation on the record by the
court concurrently with its orders as to why the court believed
at that time the delays were for good cause. While Chase
asserts in a conclusory fashion that the evidence was insuffi-
cient to meet the preponderance of the evidence standard, she
fails to elaborate on this assertion other than challenging the
timing of the presentation of the evidence. Where an appel-
lant’s brief contains conclusory assertions unsupported by a
coherent analytical argument, the appellant fails to satisfy the
requirement that the party asserting the alleged error must both
specifically assign and specifically argue it in the party’s ini-
tial brief. 15
Relying on State v. Vela-Montes 16 and statutory requirements
for applications for continuances by the parties to an action,
Chase asserts it was untimely for the prosecution to present the
evidence supporting good cause at the hearing on the motion
for absolute discharge. Chase also argues the county court’s
failure to articulate any reasoning at the time of the contin­
uances makes it impossible for the prosecution to support good
cause later.
In Vela-Montes, the prosecution had failed to support its
application for a continuance with a contemporaneous affidavit
as required by Neb. Rev. Stat. § 25-1148 (Reissue 2016). Neb.
Rev. Stat. § 29-1206 (Reissue 2016) provides that “[a]pplica-
tions for continuances shall be made in accordance with sec-
tion 25-1148”; § 25-1148, in turn, contemplates that a hearing
will be held on the application for a continuance and states
that “[w]henever application for continuance or adjournment is
made by a party or parties to any cause or proceeding pending
in the district court of any county, such application . . . shall
be supported by the affidavit or affidavits of person or persons
15
See Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
16
State v. Vela-Montes, 19 Neb. App. 378, 807 N.W.2d 544 (2011).
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Cite as 310 Neb. 160competent to testify as witnesses . . . .” The prosecution in
Velz-Montes had supported its application for a continuance
with only an unsworn statement to the court that one of the
victims was unavailable, and the trial court had granted the
continuance after overruling the defendant’s objection that it
was not supported. At the hearing on the defendant’s subse-
quent motion for absolute discharge, the State adduced the
testimony of the victim, whose unavailability had promoted
the motion to continue. The trial court overruled the defend­
ant’s objection that this testimony was untimely and denied the
motion for absolute discharge, rejecting the defendant’s argu-
ment that the period of delay could not be excluded from the
speedy trial calculation because the prosecution had failed to
support its application for continuance with a contemporane-
ous affidavit.
The Nebraska Court of Appeals affirmed the denial of abso-
lute discharge, concluding that the State’s failure to comply
with the dictates of § 25-1148 with respect to the timing of the
presentation of the evidence in support of its application for a
continuance deprived the defendant of a mere technical right,
which did not warrant reversal. 17 The Court of Appeals rejected
the defendant’s attempt “to bootstrap a substantial right to the
mere technical right actually affected” of the timing of the evi-
dentiary support for the applications for a continuance. 18 The
Court of Appeals explained that the trial court did not deprive
the defendant of a substantial right by receiving evidence to
support the prior continuance at the later hearing on the motion
for discharge for two reasons: (1) there was “precise conform­
ity” between the prosecution’s proffered justification at the
time of the motion for the continuance and the later evidence
presented by the prosecution at the hearing on the motion for
discharge and (2) the law generally permits courts to consider
evidence relevant to earlier proceedings, which is adduced
17
See id.
18
Id. at 386-87, 807 N.W.2d at 551.
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Cite as 310 Neb. 160during the hearing on the motion for discharge. 19 The Court
of Appeals said, however, that “had there been any significant
variance [between the prosecution’s proffered justification at
the time of the motion and the evidence later presented at the
hearing on the motion for discharge], we could not reach the
same conclusion” that the failure to comply with § 25-1148 did
not affect a substantial right. 20
Chase asserts that, unlike in Vela-Montes, a substantial
right was affected by the timing of the evidence in this case.
She explains there is a significant variance between the prof-
fered reason for the court’s sua sponte delay at the time of its
order and the evidence presented at the motion for discharge,
because the court proffered no reason for its delay at all.
Chase argues that because the county court failed to articulate
on the record any reasoning at the time of its sua sponte con-
tinuances of her trial, the evidence presented at the hearing
on the motion for discharge was an impermissible attempt to
“fabricate ‘good cause’ after the fact” 21 and improperly “put
words in the county court’s mouth.” 22 We find no merit to
these arguments.
[12,13] Chase did not object at the time of the continuances,
and the statutory requirements of § 25-1148 can be waived by a
defendant’s failure to timely object. 23 But more fundamentally,
a trial court’s sua sponte decisions to delay trial are not gov-
erned by § 25-1148. While judicial delays might be character-
ized as continuances by the court, they are not “[a]pplications
for continuances” as described by § 29-1206. (Emphasis sup-
pied.) They accordingly need not be in conformance with the
requirements of § 25-1148, which describes a hearing on the
19
Id. at 388, 807 N.W.2d at 551.
20
Id.
21
Brief for appellant at 12.
22
Id. at 13.
23
See, State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v.
Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).
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Cite as 310 Neb. 160application and the necessary form of support for applications
for continuances or adjournment “made by a party or parties.”
Chase’s reliance on Vela-Montes is therefore misplaced.
[14,15] When a trial court’s sua sponte decision to delay
trial implicates statutory speedy trial rights, the exclusion of
the period attributable to such delay is governed by a showing
on the record of good cause as described by § 29-1207(4)(f ).
Evidence of good cause is properly presented at the hearing
on the motion for absolute discharge and need not be articu-
lated at the time of the court’s sua sponte order delaying trial.
Without a motion for absolute discharge under Neb. Rev. Stat.
§ 29-1208 (Reissue 2016), a defendant waives the statutory
right to a trial within 6 months and no evidentiary showing of
good cause is necessary at all.
[16-18] Good cause is a substantial reason that affords a
legal excuse. 24 A showing of good cause is not an attempt to
put words in the trial court’s mouth, because there is no legal
principle that requires the good cause shown to be consistent
with the court’s prior, contemporaneous rationale. Indeed, we
have said that trial court’s articulation of its reasoning, includ-
ing its knowledge of docket congestion, is not competent evi-
dence to support a finding of good cause, 25 because, by statute,
the judge presiding at the trial may not testify as a witness. 26
The burden under § 29-1207(4)(f ) is simply that there be “good
cause.” In determining whether the trial court clearly erred in
finding good cause after a hearing on a motion for discharge,
we look not just to the evidence presented at the hearing on
the motion for discharge, but to the whole of the record. 27 The
only timing requirement implicit in § 29-1207(4)(f ) is that the
substantial reason affording a legal excuse objectively existed
at the time of the delay.
24
See State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
25
See, e.g., State v. Baird, supra note 12.
26
Neb. Rev. Stat. § 27-605 (Reissue 2016).
27
See State v. Soltis, 11 Neb. App. 61, 644 N.W.2d 160 (2002).
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Cite as 310 Neb. 160The State did not fabricate good cause that did not exist at
the time of the court’s sua sponte orders delaying trial. Rather,
at the hearing on the motion for discharge, the State presented
competent evidence that conditions relating to the COVID-19
pandemic were present at the time of the judicial delays. Chase
does not contest that those conditions provided good cause.
In summary, we find no merit to Chase’s argument on appeal
that she was deprived of her statutory right to a speedy trial
because the evidence supporting good cause for the judicial
delays was adduced at the hearing on the motion for discharge
and the court did not articulate its reasoning at the time those
delays were ordered. We need not determine whether Chase
consented to the court’s continuances on May 28 and June 11,
2020, by responding “[o]kay” to the court’s statements from
the bench about when trial could be scheduled.
CONCLUSION
We affirm the judgment of the district court, which affirmed
the order of the county court denying Chase’s motion for abso-
lute discharge.
Affirmed.
Heavican, C.J., not participating.