State v. Moody ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/20/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. MOODY
Cite as 311 Neb. 143State of Nebraska, appellee, v.
David J. Moody, appellant.
___ N.W.2d ___
Filed March 11, 2022. No. S-21-303.
1. Constitutional Law: Speedy Trial: Final Orders. A pretrial order
denying a motion for discharge on constitutional speedy trial grounds
does not affect a substantial right in a special proceeding for purposes of
Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020).
2. 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.
3. Speedy Trial: Proof. When calculating the time for speedy trial pur-
poses, the State bears the burden to show, by a preponderance of the
evidence, the applicability of one or more of the excluded time periods
under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
4. Speedy Trial: Good Cause: Words and Phrases. “Good cause,” for
purposes of Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016), means a
substantial reason and one that affords a legal excuse.
5. Good Cause: Proof. Good cause is a factual question dealt with on a
case-by-case basis. A trial court’s good cause findings must be supported
by evidence in the record, and the State bears the burden of establishing
facts showing that good cause existed.
6. Speedy Trial: Good Cause. When a trial court relies on Neb. Rev. Stat.
§ 29-1207(4)(f ) (Reissue 2016) to exclude time from the speedy trial
calculation, a general finding of “good cause” will not suffice. Instead,
the court must make specific findings as to the good cause which
resulted in the delay.
7. Speedy Trial: Good Cause: Appeal and Error. An appellate court
will give deference to a trial court’s factual findings as to good cause
under Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016) unless they are
clearly erroneous.
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STATE v. MOODY
Cite as 311 Neb. 1438. 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 trial court’s sua sponte order delay-
ing trial.
9. 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.
10. 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.
11. ____. To calculate the time for statutory 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.
12. Speedy Trial: Good Cause. When a court makes a finding of “good
cause” under Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), the court
is required to make specific findings as to the cause or causes of such
extensions and the period of extension attributable to such causes.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed in part, and in part dismissed.
Thomas C. Riley, Douglas County Public Defender, and
Jessica C. West for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
David J. Moody appeals the order of the district court
for Douglas County which overruled his motion for absolute
discharge wherein he alleged violations of his statutory and
constitutional rights to speedy trial. Moody claims on appeal
that the district court erred when it found that the continuances
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STATE v. MOODY
Cite as 311 Neb. 143that the district court ordered resulted from the COVID-19
pandemic and were for “good cause” and, as a consequence,
should be excluded from the calculation of the time for bring-
ing him to trial. He contends that good cause was not shown
and also that the evidence fails to show why his case was con-
tinued when other criminal trials were being held in the court.
As explained below, we affirm in part, and in part dismiss.
STATEMENT OF FACTS
On May 15, 2020, the State filed an information charging
Moody with domestic violence assault in the third degree, sec-
ond offense, and strangulation, both Class IIIA felonies under
Neb. Rev. Stat. §§ 28-323(1) and (4) and 28-310.01(1) and (2)
(Reissue 2016). Three continuances were ordered. Below, we
briefly describe the continuance orders and thereafter describe
each one in detail. The trial was originally set for November 9,
but the district court held a rescheduling hearing on November
6, and on November 10, the court entered an order contin­uing
the trial until January 20, 2021. Trial did not commence on
January 20; instead, the court set a rescheduling hearing for
that date, and Moody requested that the hearing be moved to
January 25. On January 25, the court held the rescheduling
hearing and announced that it would continue the trial until
March 17. The order for the second continuance was filed on
February 2. On March 16, the court held a rescheduling hear-
ing on its own motion and, at that hearing, stated that it would
continue trial until April 14. The order for the third continu-
ance was filed on March 18. At each of the rescheduling hear-
ings, the court received into evidence an affidavit of the court’s
bailiff in which the bailiff stated, inter alia, that the next avail-
able jury trial date to set Moody’s trial was the date to which
the court continued the trial. In each of the three orders contin­
uing the trial, the district court made a finding that the period
of delay resulting from the continuance should be excluded in
calculating the time for trial for good cause shown pursuant to
Neb. Rev. Stat. § 29-1207(4)(f ) (Reissue 2016).
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STATE v. MOODY
Cite as 311 Neb. 143In the first continuance order, announced on November 6,
2020, and filed on November 10, the court cited an October
21 order issued by the presiding judge of the district court for
Douglas County which stated that because of reasons related
to the COVID-19 pandemic and the district court’s efforts to
mitigate the effects of the pandemic, the number of criminal
jury trials held during the November 2020 term would be lim-
ited to 24, and that all other criminal cases scheduled for that
month should be continued “for good cause pursuant to Neb.
Rev. Stat. Sec. 29-1207(4)(f )” to the next available trial date
for the assigned judge. The next available date for the judge
in this case was January 20, 2021, and the court ordered this
case to be scheduled for that date “as back-up.” The court
attached the presiding judge’s October 21 order to its order,
and the presiding judge’s order stated, inter alia, that holding
additional trials at that time “would be impossible due to the
ongoing social distancing restrictions for the public,” because
there was not “space available to accommodate any additional
jury trials while at the same time maintaining social distanc-
ing restrictions.”
In the second continuance order, announced on January 25,
2021, and filed on February 2, the court cited a December 11,
2020, order issued by the presiding judge of the district court
for Douglas County which ordered that for reasons related to
the COVID-19 pandemic, all criminal cases scheduled for the
January and February 2021 terms be continued “for good cause
pursuant to Neb. Rev. Stat. Sec. 29-1207(4)(f )” to the next
available trial date for the assigned judge. The next available
trial date for the judge assigned to this case was March 17, and
the court ordered this case to be scheduled for that date “as
back-up.” The court attached the presiding judge’s December
11, 2020, order, and it stated, inter alia, that there had been
a “resurgence of the COVID-19 pandemic within Douglas
County, Nebraska” that was “more severe . . . than it has been
since its inception” and that “jury trials during this spike in
the COVID-19 pandemic pose a clear and present danger to
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STATE v. MOODY
Cite as 311 Neb. 143the members of the public, participants in the judicial process,
Douglas County Sheriff Deputies, law enforcement officers,
attorneys, court staff, Judges, and all potential jurors.”
In the third continuance order, announced March 16, 2021,
and filed March 18, the court cited a January 29 order issued
by the presiding judge of the district court for Douglas County
which ordered that for reasons related to the COVID-19 pan-
demic, a limited number of criminal cases should be scheduled
for the March 2021 term and that all other criminal cases should
be continued “for good cause pursuant to Neb. Rev. Stat. Sec.
29-1207(4)(f )” to the next available trial date for the assigned
judge. The next available trial date for the judge assigned to
this case was April 14, and the court ordered that this case
be scheduled for that date. The court attached the presiding
judge’s January 29 order, which referred to the district court’s
“inability to safely call and retain an adequate cross-section of
jurors” and stated that as a consequence, “the backlog of crimi-
nal and civil cases requesting jury trials has increased.” The
presiding judge’s order listed the specific criminal cases that
would take place in the district court during the March 2021
panel, and Moody’s case was listed as one of several cases that
would be on “[b]ack-up” to the one case that was to be held by
the judge assigned to Moody’s case.
Moody filed a motion to discharge on speedy trial grounds
on March 31, 2021. He asserted violations of his statutory right
to trial within 6 months under § 29-1207 and Neb. Rev. Stat.
§ 29-1208 (Reissue 2016) and of his right to a speedy trial
under the federal and Nebraska Constitutions. In the motion,
Moody stated that excluding 1 day attributed to a discovery
motion he filed, he should have been brought to trial on or
before November 16, 2020. Moody contended that the delays
related to the continuances ordered by the court should not
have been excluded. He generally contended that some crimi-
nal trials were held during the period in which his case had
been continued, and he asserted that the court set forth no
reason why the trial of his case in particular could not be held
when others were being held.
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STATE v. MOODY
Cite as 311 Neb. 143At a hearing on the motion to discharge, the district court
received evidence offered by the State, including the affida-
vit of the bailiff for the trial judge in this case. The bailiff
stated in the affidavit, inter alia, that there had been “several
months where jury trials were not empaneled, because of the
pandemic” and that when jury trials resumed in March 2021,
each judge “was allotted one day for a criminal jury trial to
be empaneled for that month.” The bailiff also stated that on
the date in March 2021 assigned to the judge in this case, a
jury was empaneled for a criminal case that “had been bound
over in the district court since March 7, 2019.” The bailiff also
stated that the judge’s “next allotted jury trial date is April 14,
2021,” and that Moody’s case was “scheduled as the primary
case that day.” The evidence offered by the State also included
several orders of the district court, including the three orders
of continuance. The court also took judicial notice of the files
in this case. Moody offered into evidence the affidavit of an
attorney who represented a defendant in a criminal jury trial
that took place in March 2021; the State objected based on
relevance, and the court sustained the objection.
In an order filed April 9, 2021, the court overruled Moody’s
motion to discharge. The court first agreed with Moody’s cal-
culation that the 1-day delay caused by Moody’s discovery
motion extended the speedy trial time to November 16, 2020,
and it stated that the parties agreed that the original trial date
of November 9 was within the statutory speedy trial dead-
line. However, the court also found that there were additional
excludable periods based on its three orders continuing the
trial: first, until January 20, 2021, then to March 17, and then
to April 14.
The court noted that in each of those orders, it had found
that the delays caused by the continuances were excludable
for good cause pursuant to § 29-1207(4)(f ). The court rejected
Moody’s argument that the continuances were not shown to
be for good cause. Moody had contended that “there [was]
not enough evidence to establish why his case was not called
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STATE v. MOODY
Cite as 311 Neb. 143before others or why more efforts could not have been made
to get his case to trial despite there being a global pandemic.”
The court found that the evidence presented by the State and
the evidence it considered by judicial notice answered Moody’s
concerns regarding efforts to bring his case to trial and the
reasons it could not be scheduled for trial. The court reviewed
evidence, notably the affidavit of the court’s bailiff and the
orders of the presiding judge. The court found that the evi-
dence showed that “it was not possible to take this particular
case to trial between November 2020 and April 2021, because
of the COVID-19 pandemic.” The court stated that “the pre-
siding judge continued jury trials and this [c]ourt followed
those orders.” The court found that “the COVID-19 pandemic
is sufficient good cause to toll the speedy trial clock in this
case.” The court therefore found that under the speedy trial
statute, the period of delay caused by the three continuances
was excludable for good cause, and it concluded that Moody’s
motion for discharge based on statutory speedy trial rights
should be overruled.
The court also considered Moody’s constitutional right to
speedy trial. The court stated that at the hearing, Moody
focused on the statutory right and provided no argument or
authority to support a constitutional claim. Nevertheless,
the court considered factors set forth in case law regarding
the constitutional right, and it concluded that this was not the
“unusual case” in which there was no violation of the statutory
right to speedy trial but there was a constitutional speedy trial
violation. The court therefore overruled Moody’s motion to
discharge in its entirety.
Moody appeals the district court’s order which overruled his
motion for discharge.
ASSIGNMENTS OF ERROR
Moody claims that the district court erred when it overruled
his motion for discharge. Moody contends that the contin­
uances were not shown to be for good cause and that therefore,
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STATE v. MOODY
Cite as 311 Neb. 143his statutory right to speedy trial was violated. He further
claims that the court erred when it failed to make specific find-
ings as to the cause or causes of the extensions of his trial date
beyond 6 months and the period of extension attributable to
each of such causes.
[1] Moody also claims that the delays violated his federal
and state constitutional rights to speedy trial. As we recently
held in State v. Abernathy, 310 Neb. 880, 891, ___ N.W.2d
___, ___ (2022), “a pretrial order denying a motion for dis-
charge on constitutional speedy trial grounds does not affect a
substantial right in a special proceeding for purposes of [Neb.
Rev. Stat.] § 25-1902(1)(b) [(Cum. Supp. 2020)],” and there-
fore that issue is not reviewable in the interlocutory appeal
of an order overruling a motion for discharge on statutory
speedy trial grounds. We therefore lack appellate jurisdiction
to review Moody’s claim that he was entitled to absolute dis-
charge on constitutional speedy trial grounds, and we dismiss
that part of the appeal.
STANDARD OF REVIEW
[2] 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. State v. Brown, 310 Neb. 224, 964 N.W.2d
682 (2021).
ANALYSIS
Moody claims that the district court erred when it found
that the continuances ordered by the court were for good cause
under § 29-1207(4)(f ). He repeats the argument that he made
to the district court that there was no showing why his case
in particular could not have been tried when other trials were
being held during the months at issue. Moody also claims
that the court’s order overruling his motion for discharge did
not include specific findings as required by our holding in
State v. Alvarez, 189 Neb. 281, 292, 202 N.W.2d 604, 611
(1972), that when a court makes a finding of “good cause”
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STATE v. MOODY
Cite as 311 Neb. 143under § 29-1207(4)(f ), the court is “required to make specific
findings as to the cause or causes of such extensions and the
period of extension attributable to such causes.”
We first review standards regarding statutory speedy trial
rights and good cause for delays. Applying those standards,
we conclude that the court’s finding that the continuances
were for good cause was not clearly erroneous and that the
court’s order was sufficiently specific regarding the periods
of delay occasioned by its continuances and the causes of
such continuances.
Standards Governing Speedy
Trial and Good Cause.
The statutory right to a speedy trial is set forth in §§ 29-1207
and 29-1208. Section 29-1208 provides that if a defendant is
not brought to trial within the time provided for in § 29-1207,
as extended by excluded periods, the defendant will be enti-
tled to absolute discharge from the charged offense. Under
§ 29-1207(1), “[e]very person indicted or informed against
for any offense shall be brought to trial within six months,
and such time shall be computed as provided in this section.”
Section 29-1207(2) generally provides that the “six-month
period shall commence to run from the date the indictment is
returned or the information filed.” Certain periods of delay are
excluded from the speedy trial calculation. As relevant to this
case, § 29-1207(4)(f ) provides that other periods of delay not
specifically enumerated in the statute may be excluded in the
speedy trial computation, “but only if the court finds that they
are for good cause.”
[3-5] The State bears the burden to show, by a preponder-
ance of the evidence, the applicability of one or more of the
excluded time periods under § 29-1207(4). State v. Brown,
supra. “Good cause,” for purposes of § 29-1207(4)(f ), is not
defined by statute, but we have found it fitting to apply the
meaning for “good cause” that we have used in other contexts,
which is that “good cause” means a substantial reason and
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Cite as 311 Neb. 143one that affords a legal excuse. State v. Brown, supra. We have
also recognized that good cause is a factual question dealt
with on a case-by-case basis. Id. A district court’s good cause
findings must be supported by evidence in the record, and as
noted, the State bears the burden of establishing facts showing
that good cause existed. Id.[6,7] When a trial court relies on § 29-1207(4)(f ) to exclude
time from the speedy trial calculation, a general finding of
“good cause” will not suffice. State v. Brown, 310 Neb. 224,
964 N.W.2d 682 (2021). Instead, the court must make specific
findings as to the good cause which resulted in the delay. Id.An appellate court will give deference to such factual findings
unless they are clearly erroneous. Id.[8] In State v. Chase, 310 Neb. 160, 168, 964 N.W.2d 254,
261 (2021), we stated that a continuance by the court’s own
motion, or “judicial delay,” does not toll the speedy trial statute
“absent a showing by the State of good cause” and that “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.” The continuances in
Chase were ordered in response to the COVID-19 pandemic,
but the defendant did not specifically argue on appeal that the
evidence in the record pertaining to the COVID-19 pandemic
failed to provide good cause for the delays resulting from the
court’s sua sponte orders. Instead, the defendant’s challenge on
appeal was to the timing of the presentation of the evidence
supporting good cause and of the court’s articulation on the
record of the reasons the delays were for good cause. We held
that the evidence of good cause is properly presented 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. Chase, supra. We reasoned in Chase that “[w]ithout a
motion for absolute discharge under [§ 29-1208], a defendant
waives the statutory right to a trial within 6 months and no evi-
dentiary showing of good cause is necessary at all.” 310 Neb.
at 172, 964 N.W.2d at 263.
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STATE v. MOODY
Cite as 311 Neb. 143[9,10] With regard to our review of a trial court’s finding
that a judicial delay was for good cause, we stated in Chase,
supra, that 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. 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. Chase, supra. In the present case, the
district court has assisted our review by making findings at the
time of each of the three continuances.
[11] To calculate the time for statutory speedy trial pur-
poses, “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.” Brown, 310 Neb. at 233, 964
N.W.2d at 689 (internal quotation marks omitted). Applying
this formula, the State and Moody agree that based on the
filing of the information on May 15, 2020, and the exclusion
of 1 day for Moody’s discovery motion, the last day for trial
in the absence of all good cause continuances would have
been November 16. Trial was originally set to begin prior to
that date, on November 9. However, the parties differ on how
much time, if any, should have been excluded from the statu-
tory speedy trial calculation for the delay caused by the court’s
continuance of the trial from November 9 to January 20, 2021,
then to March 17, and finally to April 14. We next consider
this disagreement.
District Court’s Finding That COVID-19 Pandemic
and Restrictions and Limitations Related
Thereto Established Good Cause for
the Delay of Moody’s Trial.
The district court in this case found that “the COVID-19
pandemic [was] sufficient good cause” and that therefore,
the entire period of delay pursuant to its three continuance
orders “constitute[d] an excludable period of delay pursuant to
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STATE v. MOODY
Cite as 311 Neb. 143§ 29-1207(4)(f ).” The court stated that the record in this case
was “replete with explanation that it was not possible to take
this particular case to trial between November 2020 and April
2021, because of the COVID-19 pandemic.” As explained
below, we agree with the court’s assessment of good cause;
its decision that the period of the continuances was excludable
was not clearly erroneous.
In State v. Brown, 310 Neb. 224, 964 N.W.2d 682 (2021),
the defendant challenged the district court’s finding that
delays occasioned by the COVID-19 pandemic were for good
cause for statutory speedy trial purposes. We concluded that
“[c]onsidering the evidence that was presented at the hearing
on the motion to discharge and the facts of which the district
court properly took judicial notice, . . . the district court’s
finding of good cause for the continuances when made was
not clearly erroneous.” Id. at 238, 964 N.W.2d at 692. We
reasoned that the circumstances entailed by the pandemic
were such that the court could find “good cause” in the sense
of “a substantial reason . . . that affords a legal excuse.” Id.
(internal quotation marks omitted). In support of our conclu-
sion in Brown, we cited U.S. v. Olsen, 995 F.3d 683, 693 (9th
Cir. 2021), in which the Court of Appeals for the Ninth Circuit
applied the federal Speedy Trial Act and its exclusion of time
for “ends of justice” and stated that “surely a global pandemic
. . . falls within such unique circumstances to permit a court to
temporarily suspend jury trials in the interest of public health.”
We note for completeness that the opinion in Olsen has now
been amended and superseded by the opinion in U.S. v. Olsen,
21 F.4th 1036 (9th Cir. 2022), in which petitions for panel
rehearing and rehearing en banc were denied. However, the
language we quoted from the original opinion remains in the
amended opinion.
Our opinion in Brown provides precedent that as a gen-
eral matter, the COVID-19 pandemic and the public health
interests related thereto may provide good cause. However,
in Brown, we were careful to state that our determination in
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Cite as 311 Neb. 143that case that good cause was shown “considers the context
of the COVID-19 pandemic circumstances and conditions that
existed at the time the continuances were ordered.” 310 Neb. at
238, 964 N.W.2d at 692. Brown involved continuances ordered
between March and August 2020, and our determination in
Brown was based on the specific context and circumstances in
existence at those times.
The present case involves continuances ordered at a later
time, specifically between November 2020 and April 2021,
when the record shows that circumstances and conditions of the
pandemic were different. In Brown, the continuances occurred
in a time when the court was holding no trials, and during part
of the period of delay in this case, the district court for Douglas
County was holding no trials. However, during at least part of
the time when continuances were ordered in this case, the court
had resumed holding a limited number of trials.
At the hearing on the motion for discharge in this case,
the court took judicial notice of the files in this case and it
also received evidence offered by the State which included
affidavits of the court’s bailiff and orders filed by the court
and by the presiding judge of the district court. The court’s
contin­uance orders in this case were prompted by the presid-
ing judge’s orders that required judges of this district court
to limit the number of criminal jury trials and to continue all
other trials that required a jury. The presiding judge’s orders
described the specific context and circumstances at the time
of the delays, noting factors such as “ongoing social distanc-
ing restrictions,” lack of space to accommodate multiple jury
trials while adhering to such restrictions, a “resurgence of the
COVID-19 pandemic” that was “more severe” than earlier
times, the “inability to safely call and retain an adequate cross-
section of jurors,” and the resulting “backlog of criminal and
civil cases requesting jury trials.”
The record in this case provides sufficient evidence regard-
ing the context and circumstances that were in existence at
the specific periods that the continuances were ordered in
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Cite as 311 Neb. 143this case for reasons relating to the COVID-19 pandemic, the
related public health concerns and restrictions, and the effect
of the pandemic and related restrictions on the district court’s
ability to hold jury trials. We discuss the evidence regarding
the court’s backlog in greater detail below. At this point, we
note that the record shows that docket congestion had been cre-
ated by the pandemic, that this judge was permitted to try only
a limited number of jury cases, and that the judge was directed
to proceed to trial on a criminal case that had been pending
significantly longer than Moody’s. Given the facts and circum-
stances, Moody’s claim that his specific case should have gone
to trial fails. The State was not obligated to show that conven-
ing a jury trial would have been literally impossible. See U.S.
v. Olsen, 21 F.4th 1036 (9th Cir. 2022). The State’s showing
was sufficient, and good cause was demonstrated.
We determine that based on the evidence before it at the
time of Moody’s motion for discharge, the district court did
not clearly err when it found that the COVID-19 pandemic,
the public health concerns related thereto, and the restrictions
on the district court’s ability to carry out jury trials at the
specific times of the continuances in this case provided good
cause not to bring this specific case to trial.
District Court’s Findings in Its Order Regarding
Cause of Continuances and Period of Delay
Attributable to Such Continuances
Were Sufficiently Specific.
[12] Moody also claims that the district court’s order was not
adequately specific. He cites State v. Alvarez, 189 Neb. 281,
292, 202 N.W.2d 604, 611 (1972), in which we held that when
a court makes a finding of “good cause” under 29-1207(4)(f ),
the court is “required to make specific findings as to the cause
or causes of such extensions and the period of extension attrib-
utable to such causes.” With regard to specific findings as
to the cause or causes, we determine that the district court’s
order was specific that the causes of the delays were the
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Cite as 311 Neb. 143COVID-19 pandemic and the restrictions related thereto that
limited the district court’s ability to carry out jury trials.
Moody argues that the findings were not specific enough to
his particular case, because the court did not make findings why
his specific case could not be brought to trial when other cases
were being tried. We note, however, that the district court’s
order was specific in setting forth the orders of the presiding
judge that prompted each of the continuances of Moody’s trial.
The evidence in this case shows that during part of the period
of delay, there were no trials being held in the district court. At
other times during that period, only a limited number of jury
trials were being held and all other cases, including Moody’s,
were required to be continued.
The presiding judge’s order with regard to March 2021
shows that the specific judge assigned to this case was limited
to holding only one criminal jury trial and that several other
cases, including Moody’s, were in “back-up” status. The affi-
davit of the bailiff also provided evidence that the one case
that was heard by the judge in March 2021 had been pend-
ing in the district court since March 2019 as compared to the
information against Moody which was filed on May 15, 2020.
We think that the district court’s order was adequately specific
that Moody’s case was being continued because of restrictions
required by the pandemic and by the presiding judge’s orders
permitting only a limited number of specified jury trials to be
held, while other trials, including Moody’s, were required to
be continued in order to comply with restrictions in the limited
space available.
Moody also argues the order was not sufficiently specific
regarding the period of delay attributable to the finding of
good cause. He argues the court was not specific in identify-
ing the period of delay, including the number of days excluded
and the last date for which trial could be held for Moody. As
a general matter, we require a more explicit calculation of
the speedy trial period to aid our appellate review than that
which was provided by the court in this case. However, the
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period that was excluded was sufficient to extend the last date
for trial past March 31, 2021, when Moody filed his motion
for discharge.
The court found that “it was not possible to take this par-
ticular case to trial between November 2020 and April 2021,
because of the COVID-19 pandemic.” The court also found
that the delay caused by “the continuance of the November
9, 2020 trial date,” the “continuance of the January 20, 2021
trial date,” and the “continuance of the March 17, 2021 trial
date” constituted an excludable period of delay pursuant to
§ 29-1207(4)(f ). As we stated earlier, under State v. Chase,
310 Neb. 160, 964 N.W.2d 254 (2021), we review a finding
of good cause based on evidence presented at the hearing on
a motion for absolute discharge and the whole of the record at
that time. Therefore, the district court’s finding that the period
of delay was excludable was made from the perspective of the
record as it existed at the time of the motion for absolute dis-
charge. From that vantage, the court found that the period of
delay included the entire time from November 9, 2020, the first
date set for trial, and April 14, 2021, the date set for trial in the
last of the continuances.
For completeness, we note that the court stated that the first
continuance began on November 9, 2020, the date the trial was
originally scheduled. Moody asserts that the excluded period
should not start until November 10, when the court filed its
order, and in contrast, the State asserts that the excludable
period should start on November 6, which was the date of
the hearing at which the court announced it would order the
continuance. We need not resolve the “correct day-one issue”
because it is of no consequence in this case.
Moody filed his motion for discharge on March 31, 2021.
The excludable period of delay related to the continuances
began before November 16, 2020, which otherwise would have
been the last day for trial, and continued to April 14, 2021,
the date set for trial in the last continuance. Because the last
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period of exclusion was of sufficient duration that the last date
for trial was no earlier than April 14. Therefore, when Moody
filed his motion for discharge on March 31, the statutory time
for speedy trial had not ended. We therefore determine that the
district court’s order was sufficiently specific regarding the
period of delay, and on appeal, it is clear that the motion
for discharge was filed before the last day for trial under the
speedy trial statute.
CONCLUSION
The district court’s order was sufficiently specific regarding
the causes of the delay and the period of delay, and the court’s
finding that Moody’s case should not be dismissed on statutory
speedy trial grounds was not clearly erroneous. We therefore
determine that the district court did not err when it overruled
Moody’s motion for discharge based on statutory speedy trial
grounds, and we affirm the district court’s order in this respect.
We lack appellate jurisdiction to review Moody’s claim that he
was entitled to absolute discharge on constitutional speedy trial
grounds, and we therefore dismiss that part of the appeal.
Affirmed in part, and in part dismissed.