State v. Moore , 312 Neb. 263 ( 2022 )

Nebraska Supreme Court Online Library
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MOORE
Cite as 312 Neb. 263State of Nebraska, appellee, v.
Gregory Moore, appellant.
___ N.W.2d ___
Filed August 19, 2022. No. S-21-755.
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 which will be affirmed on appeal unless
clearly erroneous.
2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the determi-
nation made by the court below.
3. Speedy Trial. The statutory right to a speedy trial is set forth in Neb.
Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
4. ____. Periods excluded in computing the time for trial are identified in
Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
5. ____. When calculating the time for speedy trial purposes, the State
bears the burden to show, by the greater weight of the evidence, that one
or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016) are applicable.
6. ____. Nothing in the text of Neb. Rev. Stat. § 29-1207(4)(a) (Reissue
2016) requires that the “other proceedings concerning the defendant”
occur in the case in which the defendant alleges a statutory speedy trial
violation.
7. ____. Broadly construed, Neb. Rev. Stat. § 29-1207(4)(a) (Reissue
2016) applies to proceedings in the pending case as well as to proceed-
ings in other pending cases.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
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STATE V. MOORE
Cite as 312 Neb. 263Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Kelly S. Breen, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Gregory Moore appeals from the overruling of his motion
for discharge based upon Nebraska’s speedy trial statutes. 1
Moore contends the district court erred in excluding delay
related to his competency proceedings in a different case and
to his filing a motion to continue an arraignment. Because the
court did not err in excluding delay due to Moore’s incompe-
tency to stand trial, we affirm.
BACKGROUND
Information and Procedural History
This appeal originates from proceedings in the district court
for Scotts Bluff County in case No. CR20-730. On December
16, 2020, the State filed an information charging Moore with
second degree murder and use of a deadly weapon to commit
a felony for events occurring on November 25. The informa-
tion was filed on the same day that the same district court,
in case No. CR20-249, an otherwise unrelated felony case,
entered an order determining that Moore was incompetent to
stand trial.
On December 17, 2020, Moore filed a motion to con-
tinue the arraignment set for the next day. The motion stated
1
See Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016).
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STATE V. MOORE
Cite as 312 Neb. 263that within the next 2 weeks, Moore’s counsel would file
a written not guilty plea and waiver of appearance. The
motion requested that the matter be set for a status hearing in
February 2021.
On December 18, 2020, the court ordered that the written
plea be filed within 2 weeks or Moore “shall appear for an
arraignment on December 31.” The court’s order granting the
continuance of the arraignment struck through proposed lan-
guage stating “and defendant is ordered to appear on the ___
day of February, 2021 at ____ _.m. for Status Hearing.”
On December 23, 2020, Moore filed his written not guilty
plea. He requested that the court schedule a status hearing
within 60 days, but he did not send a proposed order for the
court to sign. The court did not set a status hearing.
Nearly 6 months later, on June 15, 2021, the State moved
for a status conference. The State attached to its motion a
December 16, 2020, order in case No. CR20-249 which found
Moore not competent to stand trial. According to the order,
Moore was to be committed to the Lincoln Regional Center
(LRC) for treatment to restore competency. The order further
provided that the court would hold a review hearing to assess
Moore’s competency every 60 days until either the disability
was removed or other disposition of Moore had been made.
The court scheduled the status conference for a hearing on
July 14.
At the beginning of the July 14, 2021, hearing, the court
stated that it was holding status hearings in both cases Nos.
CR20-249 and CR20-730. The court recited that Moore had
been sent to the LRC for a determination of competency, that
he had been evaluated, and that the court had received a July
1 report. According to the report, Moore remained incompe-
tent to stand trial.
In case No. CR20-249, the court received as evidence the
July 2021 report from the LRC. The court found that Moore
was continuing to receive treatment at the LRC, noted the
recommendation that Moore remain at the LRC “as he is still
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STATE V. MOORE
Cite as 312 Neb. 263at this point not competent to stand trial,” stated that it would
continue to order his commitment to the LRC, and scheduled a
review hearing for September 14.
Turning to case No. CR20-730, the State offered the same
July 2021 report from the LRC. Moore’s counsel lodged a
relevancy objection, observing that competency proceedings
had not been instituted in case No. CR20-730. According
to Moore’s counsel, Moore had maintained that he acted in
self-defense at the time of the crimes charged in the instant
case. Moore’s counsel further stated that Moore understood
the function of a trial and the duties of the judge, prosecu-
tor, and jury. The court overruled the objection and received
the report.
Motion for Discharge and Hearing
Prior to the status hearing, on July 6, 2021, Moore filed a
motion for discharge. In August, the court held an evidentiary
hearing on the motion. Moore appeared by video from the
LRC. The parties collectively offered six exhibits, which the
court received.
One exhibit contained a certified copy of the file in case
No. CR20-249. That exhibit showed that in April 2020, the
State filed an information in Scotts Bluff County District Court
charging Moore with terroristic threats, third degree assault,
and use of a deadly weapon to commit a felony. Pursuant to
Moore’s suggestion of incompetency, the court ordered an
evaluation and later set a competency hearing for December
15. The exhibit contained the court’s December 16 order find-
ing Moore incompetent to stand trial.
The court received into evidence a November 25, 2020,
evaluation of Moore. The court had ordered the evaluation
to address Moore’s capacity to proceed to trial in case No.
CR20-249. The evaluator opined:
Moore currently lacks the ability to understand the factual
components of the legal proceedings, he does not pres-
ently maintain sufficient ability to apply that knowledge
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STATE V. MOORE
Cite as 312 Neb. 263to his own case in a rational manner or meaningfully
assist his attorney in his own defense as a result of his
ongoing symptoms of mental illness.
(Emphasis in original.)
District Court’s Order
The court overruled Moore’s motion for discharge. It excluded
from the speedy trial calculation the time from December 17,
2020, through July 14, 2021, under § 29-1207(4)(b) and (f).
The court stated that Moore requested a continuance but did
not provide a written order approving the waiver, nor did
Moore file anything asking that the waiver be approved. Thus,
the court found that the delay resulted from “Moore’s inac-
tion to file the acceptance of waiver and/or failure to set a
status hearing.”
The court also excluded the time between December 17,
2020, through the date of its September 13, 2021, order under
§ 29-1207(4)(a) and (d). It determined that the State showed
Moore was found to be incompetent to stand trial in case
No. CR20-249. The court reasoned that because Moore had
been found incompetent in that case, he could not “argue that
he is competent to stand trial in this case.” The court further
stated that Moore’s commitment to the LRC by the court’s
order in case No. CR20-249 made him “unavailable” in the
instant case.
Moore filed a timely appeal. We granted the State’s petition
to bypass review by the Nebraska Court of Appeals. 2
ASSIGNMENTS OF ERROR
Moore assigns, reordered, that the court erred in (1) “hold-
ing that the time delay herein was the result of other proceed-
ings and unavailability of [Moore] caused by competency
proceedings instituted in [case No. CR20-249]” and (2) “hold-
ing that the time delay herein was caused by [Moore’s] filing
2
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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STATE V. MOORE
Cite as 312 Neb. 263of a motion to continue the arraignment set for December 18,
2020[,] and subsequently filing a written waiver of appearance
and not guilty plea on December 23.”
STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 3
[2] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. 4
ANALYSIS
Speedy Trial Principles
[3] The statutory right to a speedy trial is set forth in
§§ 29-1207 and 29-1208. 5 Under these statutes, criminal
defendants must be brought to trial by a 6-month deadline,
but certain periods of delay are excluded and thus can extend
the deadline. 6 If a defendant is not brought to trial by the
6-month speedy trial deadline, as extended by any excluded
periods, he or she is entitled to absolute discharge from the
offense charged and for any other offense required by law to
be joined with that offense. 7
[4,5] Periods excluded in computing the time for trial are
identified in § 29-1207(4). When calculating the time for
speedy trial purposes, the State bears the burden to show, by
the greater weight of the evidence, that one or more of the
3
State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
4
Id.5
State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
6
Id.7
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STATE V. MOORE
Cite as 312 Neb. 263excluded time periods under § 29-1207(4) are applicable. 8
Pertinent to this appeal, the following periods are excludable:
(a) The period of delay resulting from other proceed-
ings concerning the defendant, including, but not limited
to, an examination and hearing on competency and the
period during which he or she is incompetent to stand
trial; the time from filing until final disposition of pretrial
motions of the defendant, including motions to suppress
evidence, motions to quash the indictment or informa-
tion, demurrers and pleas in abatement, and motions for
a change of venue; and the time consumed in the trial of
other charges against the defendant;
(b) The period of delay resulting from a continuance
granted at the request or with the consent of the defendant
or his or her counsel. A defendant without counsel shall
not be deemed to have consented to a continuance unless
he or she has been advised by the court of his or her right
to a speedy trial and the effect of his or her consent. A
defendant who has sought and obtained a continuance
which is indefinite has an affirmative duty to end the con-
tinuance by giving notice of request for trial or the court
can end the continuance by setting a trial date. When the
court ends an indefinite continuance by setting a trial
date, the excludable period resulting from the indefinite
continuance ends on the date for which trial commences.
A defendant is deemed to have waived his or her right
to speedy trial when the period of delay resulting from a
continuance granted at the request of the defendant or his
or her counsel extends the trial date beyond the statutory
six-month period;
....
(d) The period of delay resulting from the absence or
unavailability of the defendant;
8
State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
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(f) Other periods of delay not specifically enumerated
in this section, but only if the court finds that they are for
good cause. 9
We consider the potential application of these subsections in
resolving whether the court erred in overruling Moore’s motion
for discharge.
Overruling of Motion for Discharge
The district court excluded two periods of delay in comput-
ing the time for trial. Each period began running on the day
following the filing of the information and remained running
when Moore filed his motion for discharge. We start with the
court’s finding pertaining to competency proceedings in case
No. CR20-249.
Moore argues that the court erred in finding that the delay
was both the result of other proceedings and unavailability
caused by competency proceedings, when those proceedings
were instituted in a different case. We disagree. As explained
below, the district court did not err in finding the delay exclud-
able under § 29-1207(4)(a).
Delays associated with competency are typically excluded
from the speedy trial clock. 10 When a person becomes men-
tally incompetent after committing an offense, Nebraska law
forbids trying the person for the offense until the disability
is removed. 11 Thus, it would be illogical to force the State to
bring an incompetent defendant to trial within 6 months when
the defendant could not be subjected to a criminal trial. The
twist in this case is that the competency proceedings and find-
ing of incompetency occurred in a different criminal case.
9
§ 29-1207(4).
10
See § 29-1207(4)(a).
11
See Neb. Rev. Stat. § 29-1822(1) (Cum. Supp. 2020). See, also, Cooper
v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996)
(criminal trial of incompetent defendant violates due process).
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STATE V. MOORE
Cite as 312 Neb. 263In considering whether time associated with competency
proceedings in a different case is excludable, we start with the
plain text of § 29-1207(4)(a). It provides that “delay resulting
from other proceedings concerning the defendant, including,
but not limited to, an examination and hearing on compe-
tency and the period during which he or she is incompetent
to stand trial” is an excludable period of time for speedy
trial purposes. 12
[6] Nothing in the text of § 29-1207(4)(a) requires that the
“other proceedings concerning the defendant” occur in the
case in which the defendant alleges a statutory speedy trial
violation. By including the clause “the time consumed in the
trial of other charges against the defendant,” § 29-1207(4)(a)
specifically contemplates excluding time due to proceedings in
a different case.
[7] Though not in the context of competency proceedings,
we have considered the impact of a delay related to a defend­
ant’s other criminal case on his or her speedy trial rights. In
State v. Blocher, 13 we affirmed the district court’s determina-
tion that time the defendant spent incarcerated in a different
county on different charges was properly attributable to her
under § 29-1207(4)(d). We observed that at least a portion of
the same period—time when the defendant was incarcerated in
the other county during the pendency of charges against her—
would be properly excluded under § 29-1207(4)(a). We stated,
“Broadly construed, § 29-1207(4)(a) applies to proceedings in
the pending case as well as to proceedings in other pending
cases . . . .” 14
Here, the State adduced evidence of Moore’s incompetency
to stand trial. The certified copy of the transcript in case No.
CR20-249, received during the hearing on the motion for
12
§ 29-1207(4)(a) (emphasis supplied).
13
State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020).
14
Id. at 881, 951 N.W.2d at 504.
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STATE V. MOORE
Cite as 312 Neb. 263discharge, contained the district court’s December 16, 2020,
order finding that Moore was not competent to stand trial and
committing him to the LRC. It also included the court’s July
19, 2021, journal entry which stated that it reviewed the com-
petency report and which set case No. CR20-249 for a further
competency review hearing in September. Moreover, during
the July 14 status hearing, the court received in the instant case
the July 2021 report opining that Moore was not competent to
stand trial.
We are also mindful of the particular circumstances of this
case related to the incompetency finding. On the same day that
the State filed in the district court for Scotts Bluff County the
information against Moore in the instant case, the same district
court entered an order finding Moore to be incompetent in case
No. CR20-249. The record shows that the same judge handled
both of the criminal cases against Moore. While perhaps the
State could have taken additional steps to establish Moore’s
incompetency for purposes of the record in the instant case,
the court and counsel for both parties knew that the court
committed Moore to the LRC and that the court found Moore
incompetent to stand trial at or about the time the instant case
was bound over to district court.
Under the facts of this case, the State proved by the greater
weight of the evidence that time should be excluded under
§ 29-1207(4)(a). We conclude the court properly excluded
from the speedy trial clock the period of delay from December
17, 2020, through the time of the court’s September 13, 2021,
order due to Moore’s incompetency to stand trial.
[8] We need not resolve whether the district court prop-
erly determined that the same period of delay and that a
shorter period of delay were also excluded from the speedy
trial calculation. Moore challenges findings that the delay
from December 17, 2020, through September 13, 2021, was
excluded due to his “absence or unavailability” and that the
delay from December 17, 2020, through July 14, 2021, was
caused by Moore. But even if the court erred with respect to
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STATE V. MOORE
Cite as 312 Neb. 263either of those periods of delay, which we do not suggest or
imply, the same period was already properly excluded due to
Moore’s incompetency to stand trial. An appellate court is not
obligated to engage in an analysis that is not necessary to adju-
dicate the case and controversy before it. 15
CONCLUSION
The district court found Moore incompetent to stand trial
in a different case on or about the time that the State filed the
information in the instant case in the same court. We conclude
that the State proved by the greater weight of the evidence
that the period during which Moore was incompetent to stand
trial should be excluded in computing the time for trial in the
instant case. Accordingly, we find no error in the overruling
of Moore’s motion for discharge, and we affirm the district
court’s order.
Affirmed.
15
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128(2022).
Miller-Lerman, J., concurring.
I concur in the majority opinion of the court and write
separately only to address some confusion, the resolution of
which is not necessary to the rationale upon which this speedy
trial appeal is decided but could be impactful under a different
set of facts. The confusion arises as to when the district court
accepted Moore’s written plea of not guilty submitted under
Neb. Rev. Stat. § 29-4206 (Reissue 2016) and thus waived
arraignment and ended any continuances sought in relation
thereto. Specifically, I think it prudent to counsel trial courts
against being casual regarding the court’s duty to accept (or
reject) a written plea tendered under § 29-4206.
Section 29-4206(1) provides, inter alia, that “district courts
may accept a written . . . plea of not guilty.” In this case, on
December 18, 2020, the court ordered, inter alia, that a written
plea be filed within 2 weeks. On December 23, Moore filed a
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Cite as 312 Neb. 263written not guilty plea. In its September 13, 2021, order deny-
ing Moore’s motion for discharge, the district court stated,
inter alia, that although Moore filed his written not guilty plea,
after doing so, he “did nothing to gain approval of the District
Court” and that such delay is attributable to “Moore’s inac-
tion.” Although it may be the custom in trial courts to assume
the written not guilty plea has been accepted and only rejection
of written not guilty pleas are done in writing, I do not think
this custom is faithful to the statute and results in ambiguity,
and the absence of a ruling should not be chargeable against
the defendant.
Apart from circumstantial indications, we do not know when
Moore’s not guilty plea was accepted, and the answer does not
change the outcome under the facts and our resolution of this
case. However, and especially where written pleas are invited,
I would urge the trial courts to make a ruling under § 29-4206
on a date certain indicating when the written not guilty plea
was accepted—or perhaps rejected—so that the parties and
the trial court can incorporate such date in their speedy trial
calculations, which would be especially useful in another case
where the date matters.
Heavican, C.J., joins in this concurrence.