State v. Sysel ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SYSEL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
PHILLIP J. SYSEL, APPELLANT.
Filed December 19, 2017. No. A-17-079.
Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.
Colleen M. Hassett, Deputy Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
MOORE, Chief Judge, and INBODY and BISHOP, Judges.
MOORE, Chief Judge.
INTRODUCTION
Phillip J. Sysel filed a motion to discharge in the district court for Sarpy County, alleging
violations of his speedy trial rights under both the interstate Agreement on Detainers Act (detainers
act) and Nebraska’s speedy trial act, as well as a violation of his constitutional right to a speedy
trial. The court denied Sysel’s motion, and Sysel appeals. Finding no error, we affirm.
BACKGROUND
On November 4, 2015, the State filed an information, charging Sysel with fourth offense
driving under the influence (DUI), a Class IIIA felony; felony driving during revocation period, a
Class IV felony; refusal to submit to a preliminary breath test, a Class V misdemeanor; refusal to
submit to a chemical test, a Class W misdemeanor; possession of an open alcoholic beverage
container, an infraction; and improper lane change, an infraction. Subsequently, on October 24,
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2016, the State file an amended information, changing the first count to DUI, fourth
offense/refusal, a Class IIA felony.
On November 9, 2015, Sysel was arraigned. Sysel appeared with his counsel and entered
pleas of not guilty. The district court scheduled a pretrial hearing for January 8, 2016, and warned
Sysel that if he did not appear at that time, a warrant would be issued for his arrest. The pretrial
hearing was continued on January 8 to February 19, and again on February 19 to March 25, both
continuances on Sysel’s motion. Sysel appeared with his attorney on both January 8 and February
19.
On March 25, 2016, Sysel did not appear for the pretrial hearing. Sysel’s attorney informed
the district court that Sysel was in custody in Pottawattamie County, Iowa “on new matters.”
Because Sysel had “a fairly high bond over there” and would not be available “until he bonds out,”
his counsel asked to continue the hearing. The State objected, asked that a capias issue, and also
asked that any bond in the Nebraska case be forfeited. The court granted the motion for a capias
and took the bond forfeiture under advisement.
On April 22, 2016, Sysel filed a pro se “Motion for speedy trial” in the district court. Sysel
asserted that he was currently incarcerated at the Iowa Medical and Classification Center in
Oakdale, Iowa, that on September 18, 2015, he “was charged by trial information,” and that he
“hereby demands to be brought to trial []within 180 days from the aforementioned date.” As further
explanation of “proceedings that require a speedy trial,” Sysel stated:
I was to have court on 3-21-16 to plead out on the [instant Nebraska] criminal case . . .
however I was incarcerated in the [Pottawattamie County] jail in Council Bluffs, Iowa in
which I was sentenced to a term not to exceed five (5) years on 4-5-16. My public defender
. . . of the Sarpy County public defender[’]s office told me to send this request to the clerk
of the district court to be able to move forward and have these charges resolved.
On May 2, 2016, the district court held a hearing on Sysel’s pro se motion. Sysel’s attorney
confirmed that Sysel was then incarcerated in the Iowa penal system, and the court received a copy
of a commitment order from the State of Iowa, showing Sysel’s incarceration for a term not to
exceed 5 years. In considering Sysel’s pro se motion in this case, the court treated the motion as a
request for speedy disposition under the detainers act, which “just -- starts the clock.” The State
and Sysel’s counsel both agreed with this assessment of the pro se motion. The court determined
that it was the State’s obligation to seek custody of Sysel under the detainers act.
On August 19, 2016, the State filed a copy of “Form VII” in the district court, showing its
response pursuant to the detainers act to the July 1 offer of temporary custody of Sysel by the
warden of Clarinda Correctional Facility in Clarinda, Iowa and reflecting the State’s “plan to send
our agents to the Clarinda Correctional Facility to bring [Sysel] to our jurisdiction [Sarpy County]
on 9/16/16.”
Sysel appeared with his attorney for a pretrial hearing on September 19, 2016. The district
court asked for clarification with respect to speedy trial issues, stating:
[L]ooking at the file, I just want to make sure I’m clear on where we stand on speedy
trial. There is a handwritten request from [Sysel] that was filed back on April 22nd.
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However, it does not appear that he went through the actual channels that the
Detainers Act requires until later when we got the official request through Iowa.
....
And the form that was filed indicates that the formal request was July 1, 2016.
The court did not have a copy of the formal “request from Iowa” in its file, but it received a copy
of the request, which included the requisite certificate of offender status, as Exhibit 2. Exhibit 2
consists of 3 pages. The first page, a form containing the “OFFENDER’S NOTICE OF PLACE
OF IMPRISONMENT AND REQUEST FOR DISPOSITION OF INDICTMENTS,
INFORMATIONS OR COMPLAINTS,” was signed by Sysel on June 30, 2016. The remaining
pages contain the “CERTIFICATE OF OFFENDER STATUS” and “OFFER TO DELIVER
TEMPORARY CUSTODY” forms, which were signed by the warden of the Iowa facility on July
1. The court stated that either June 30 or July 1 would be the operative date for the start of the 180
day speedy trial period under the detainers act. The court scheduled trial for November 9, 2016.
On November 8, 2016, Sysel filed a motion for discharge in the district court, alleging that
his right to a speedy trial under the detainers act had been violated. He also alleged that his
constitutional right to speedy trial and his right to a speedy trial under Neb. Rev. Stat. §§ 29-1207and 29-1208 (Reissue 2016) had been violated.
On November 9, 2016, the date the case had been scheduled for a jury trial, the district
court granted the State’s request for a continuance and scheduled the hearing on Sysel’s motion
for discharge for November 14.
At the hearing on November 14, 2016, Sysel informed the district court that he intended to
reject a plea offer and proceed with his motion to discharge. The court then received various
exhibits, including a copy of the Iowa statutes on detainers; an affidavit of the prosecutor stating
that the official detainer forms dated July 1, 2016, were the “first documentation [her] office
received regarding [Sysel’s] request for final disposition,” which were received by the court and
forwarded to the prosecutor’s office “after that date;” a copy of Sysel’s April 2016 pro se motion
for disposition; and copies of the 3 detainer forms previously received. Sysel’s attorney argued
that either Sysel’s April 22 pro se motion or the court’s May 2 docket entry started the 180 day
clock and that at least 191 days had passed as of November 8, when Sysel filed his motion for
discharge. In response, the prosecutor argued that the clock began running when the formal
detainers act request was received, which was after July 1.
On January 6, 2017, the district court entered an order, denying Sysel’s motion for
discharge. In addressing Sysel’s claim under the detainers act, the court first acknowledged the
error it made in the docket entry following the May 2016 hearing, when it stated that Sysel’s April
2016 motion for speedy trial would be considered as a request for speedy disposition under the
detainers act. The court determined that this previous statement was in error because Sysel’s April
2016 motion did not comply with the statutory requirements of article III of the detainers act since
it did not contain the required certificate from the officials of the state where Sysel was
incarcerated. The court found that Sysel’s April 2016 motion complied with the first requirement
under article III to submit a written notice of the requested disposition, but that the 180 day speedy
trial period was not triggered until the certificate was received on July 1.
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The district court stated that because Sysel’s “proper request for disposition” under the
detainers act was received on July 1, 2016, the speedy trial clock began to run on July 2. The court
found that by “counting forward six months and backing up one day, the last day to bring [Sysel]
to trial without any excludable days, would have been be January 1, 2017.” The court found 130
days had run on the speedy trial clock when Sysel’s motion for discharge was filed on November
8, 2016, which tolled the clock, leaving 50 remaining days within which to bring him to trial under
the detainers act. Because Sysel’s right to speedy trial had not been violated under the detainers
act, the court denied his motion in that regard. The court also analyzed Sysel’s right to a speedy
trial under § 29-1207 and his constitutional right to a speedy trial, denying Sysel’s motion for
discharge on those grounds as well.
ASSIGNMENTS OF ERROR
Sysel asserts, restated and reordered, that the district court erred in failing to find that his
right to a speedy trial was violated under (1) the detainers act, (2) the Nebraska speedy trial statutes,
and (3) the state and federal constitutions.
STANDARD OF REVIEW
In a ruling on a motion to dismiss with prejudice based on alleged violations of the
interstate Agreement on Detainers, a trial court’s pretrial factual findings regarding the application
of provisions of the agreement will not be disturbed on appeal unless clearly wrong. State v. Rieger,
270 Neb. 904, 708 N.W.2d 630 (2006).
As a general rule, 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. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
Statutory interpretation presents a question of law, which an appellate court resolves
independently of the conclusion reached by the trial court. State v. Bridgeford, 298 Neb. 156, 903
N.W.2d 22 (2017).
ANALYSIS
Speedy Trial Under Detainers Act.
Sysel asserts that the district court erred when it “reversed” its prior order and subsequently
found that Sysel’s initial demand for disposition did not comply with the requirements of article
III of the detainers act. Brief for appellant at 9.
Nebraska is a contracting party to the interstate Agreement on Detainers Act, a
congressionally sanctioned interstate compact, codified in Nebraska as the Agreement on
Detainers at Neb. Rev. Stat. § 29-759 (Reissue 2016). State v. Rieger, supra. A detainer is a
notification filed with the institution in which an individual is serving a sentence, advising the
prisoner that he or she is wanted to face criminal charges pending in another jurisdiction. Id. In
order to avoid prolonged interference with rehabilitation programs, the interstate Agreement on
Detainers provides the procedure whereby persons who are imprisoned in one state or by the
United States, and who are also charged with crimes in another state or by the United States, can
be tried expeditiously for the pending charges while they are serving their current sentences. Id.-4-
Article III of the Agreement on Detainers, § 29-759, prescribes the procedure by which a prisoner
against whom a detainer has been lodged may demand a speedy disposition of outstanding charges.
State v. Rieger, supra. Upon receipt of a prisoner’s proper request for disposition of untried charges
under article III of the Agreement on Detainers, authorities in the state where a charge is pending
must bring the prisoner to trial within 180 days. State v. Rieger, supra. The 180-day trial limitation
under article III(a) of the Agreement on Detainers begins to run on the day a prisoner’s request for
disposition of untried charges is received by the prosecutor and court of jurisdiction. State v.
Rieger, supra. If an action is not brought to trial within the time periods authorized by articles III
and IV of the Agreement on Detainers, the action shall be dismissed with prejudice under article
V(c) of the agreement. State v. Rieger, supra.Under article III of the Agreement on Detainers, for a prisoner’s demand for disposition of
the charges to trigger the 180-day period, it must be made in the manner required by article III.
State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). Article III(a) establishes the two
requirements which must be met before the 180-day limit can be invoked: (1) written notice of the
requested disposition and (2) the requisite certificate of the officials of the incarcerating state. State
v. Reynolds, supra. See, also, State v. Nearhood, 2 Neb. App. 915, 518 N.W.2d 165 (1994)
(prisoner’s failure to include inmate status certificate with request for disposition rendered request
ineffective to trigger 180-day period).
Sysel admits that his demand for disposition of charges was not made in compliance with
article III of the Agreement on Detainers until July 1, 2016. He argues, however, that the district
court’s ruling on May 2, finding “his demand for disposition of charges complied with the
[detainers act,] was irreversible error.” Brief for appellant at 9. Sysel further argues that the court’s
subsequent January 6, 2017, order, entered 6 months after the original ruling, caused him
“irreparable damage” because his “entire defense revolved around timing.” Brief for appellant at
12. He asserts that he would have sought compliance with the detainers act sooner had he known
that his April 2016 motion was insufficient.
Sysel acknowledges the Nebraska Supreme Court’s findings in State v. Bol, 288 Neb. 144,
846 N.W.2d 241 (2014). In that case, the court upheld a district court’s order modifying an
enhancement order in a DUI case entered 4 days after the original order (modified order found 3
prior convictions, as opposed to 2). The court determined that the district court’s initial finding
that there were 2 prior convictions was “simply a finding of fact which, like other facts in the case,
would subsequently be considered by the court in imposing a sentence.” Id. at 160, 846 N.W.2d at
255. The Supreme Court went on to state, “Nothing prevents a court from changing a factual
finding while it still has jurisdiction over the case.” Id. The Supreme Court concluded that the
district court did not err in modifying its prior finding because the court realized its own error prior
to entry of final judgment while it still had jurisdiction and acted appropriately to correct that error.
In so holding, the court observed that “‘[j]udicial efficiency is served when any court . . . is given
the opportunity to reconsider its own rulings, either to supplement its reasoning or correct its own
mistakes.’” Id., citing State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
Sysel “challenges the blanket rule that ‘nothing’ prevents a court from changing a factual
finding while it has jurisdiction and urges this [c]ourt to find the protection of an accused’s rights
outweighs judicial efficiency.” Brief for appellant at 9-10. Sysel relies primarily on cases dealing
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with amendments to sentences after they have been pronounced. See State v. Cousins, 208 Neb.
245, 302 N.W.2d 731 (1981) (court’s attempt to correct inadvertent use of word “concurrent” when
it meant “consecutive” was ineffective). He also relies State v. Wacker, 268 Neb. 787, 688 N.W.2d
357 (2004), concerning the enforcement of a cooperation agreement. In that case, the defendant
relied on the agreement to his detriment and prejudice and was entitled to its enforcement.
The cases relied upon by Sysel are distinguishable because we are not dealing with a
modification of a final order of sentence or the failure to abide by a cooperation agreement. Here,
the district court made an incorrect finding with respect to the commencement of the speedy trial
clock under the detainers act, and it later acted appropriately to correct that finding while it still
had jurisdiction over the case. The court did not err in doing so. See State v. Bol, supra. Further,
we reject Sysel’s argument that he was prejudiced by the court’s correction to its finding of the
date the request for disposition was made. As we understand the argument, the prejudice claimed
by Sysel is that he relied upon the May 2, 2016, journal entry to time the filing of his motion for
discharge. However, it was Sysel’s failure to properly invoke the detainers act prior to July 1,
2016, that rendered his motion under the detainers act unsuccessful.
Neither party challenges the district court’s determination that the formal request for
disposition with the requisite certificate was received on July 1, 2016. Counting forward from July
1, only 130 days had passed when Sysel filed his motion for discharge on November 8. As we
discuss further below, unlike the 6 month calculation under the Nebraska speedy trial statutes, the
detainers act gives 180 days, making the actual last day for trial December 28, 2016, absent
excludable periods.
The district court did not err in denying Sysel’s motion with respect to speedy trial under
the detainers act.
Statutory Right to Speedy Trial.
Sysel asserts that the district court erred in finding Sysel’s statutory right to a speedy trial
was not violated. The State argues that once Sysel invoked the provisions of the detainers act, it is
those provisions rather than the provisions of §§ 29-1205 to 29-1209 that govern Sysel’s right to
a speedy trial. We agree.
A court may not apply Nebraska’s 6-month speedy trial rule under § 29-1207 to determine
whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers.
State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006) (applying provisions of detainers act rather
than Nebraska’s speedy trial statutes to calculate speedy trial time once provisions of detainers act
were triggered). Cf. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000) (statutory right of
in-state inmates to speedy trial on pending criminal charges in Nebraska is governed by Nebraska’s
disposition of untried charges statutes rather than §§ 29-1205 to 29-1209); State v. Soule, 221 Neb.
619, 379 N.W.2d 762 (1986) (applying Nebraska’s disposition of untried charges statutes to
speedy trial rights of in-state inmate rather than §§ 29-1205 to 29-1209; finding Nebraska’s
disposition of untried charges statutes more akin to provisions of detainers act). But see State v.
Steele, 261 Neb. 541, 624 N.W.2d 1 (2001) (once Nebraska’s speedy trial statutes have been
triggered by filing of indictment or information, statutory right to speedy trial of defendant under
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control of prosecuting authorities who knowingly extradite him or her to another state or to federal
authorities is governed by § 29-1207, not detainers act).
The Nebraska prosecuting authorities in this case did not extradite Sysel to Iowa. Once he
invoked the provisions of the detainers act, those provisions were what controlled his statutory
speedy trial rights. Thus, it is unnecessary for us to address Sysel’s arguments with respect to
§ 29-1207. An appellate court is not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454(2017).
Constitutional Right to Speedy Trial.
Sysel asserts that the district court erred in finding Sysel’s constitutional right to a speedy
trial was not violated.
The constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb.
Const. art. I, § 11; the constitutional right to a speedy trial and the statutory implementation of that
right exist independently of each other. State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013).
Determining whether a defendant’s constitutional right to a speedy trial has been violated requires
a balancing test in which the courts must approach each case on an ad hoc basis. State v.
Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016). This balancing test involves four
factors: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) prejudice to the defendant. Id. None of these four factors standing alone is a necessary or
sufficient condition to the finding of a deprivation of the right to speedy trial. Id. Rather, the factors
are related and must be considered together with other circumstances as may be relevant. Id.The first factor, which serves as a triggering mechanism, is the length of delay. Until there
is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance when determining whether constitutional speedy trial rights have
been violated. State v. Betancourt-Garcia, supra. Although the constitutional right to a speedy trial
and the statutory implementation of that right exist independently of each other, § 29-1207
provides a useful standard for assessing whether the length of the delay is unreasonable under the
U.S. and Nebraska Constitutions. See State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559(2005).
The district court did not discuss whether there was a presumptively prejudicial delay.
Rather, the court analyzed all four factors in reaching its decision that Sysel’s constitutional rights
were not violated. With regard to the length of delay, the court determined that the time between
the filing of the original information and Sysel’s motion for discharge was 369 days. The court
found that 255 of those days were attributable to the various pretrial continuances filed by Sysel
and his subsequent unavailability due to his incarceration in Iowa (period from January 8, 2016,
continuance of pretrial hearing until September 19 pretrial conference) and determined that this
factor did not weigh in Sysel’s favor.
Sysel argues that “at most, 115 [days] were attributable to [his] pretrial continuances”
(period from January 8 to May 2, 2016--the date of the court’s initial journal entry regarding the
detainers act) and that the State had the remaining 254 days to bring Sysel “who was readily
available in an Iowa prison,” to trial. Brief for appellant at 14. As we determined above, however,
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the 180-day period under the detainers act did not begin to run until July 1, and only 130 of those
days had elapsed when Sysel filed his motion for discharge. This factor does not favor Sysel.
The second factor, the reason for delay, also requires us to evaluate “whether the
government or the criminal defendant is more to blame.” Doggett v. United States, 505 U.S. 647,
651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). The primary burden to ensure that cases are
brought to trial lies with the courts and the prosecutors. State v. Schmader, supra. The district court
found that this factor weighs in favor of the State. We agree. Despite Sysel’s assertions to the
contrary, the record does not reflect any deliberate attempt by the State to delay the trial or hamper
the defense. As noted above, there were various delays attributable to motions for continuance
filed by Sysel, and his April 22, 2016, pro se motion was not an effective request for disposition
under the detainers act. Once the formal request for disposition under the detainers act was
received, the case proceeded. A pretrial hearing was held on September 19, and trial was scheduled
for November 9. This factor weighs in favor of the State.
Under the third factor, we consider “whether in due course the defendant asserted his right
to a speedy trial.” State v. Betancourt-Garcia, 295 Neb. 170, 188, 887 N.W.2d 296, 311 (2016).
There is some responsibility upon a defendant to assert his right to a speedy trial, but this is not to
say that a defendant has a duty to bring himself to trial or to demand a trial. State v. Wilson, 16
Neb. App. 878, 754 N.W.2d 780 (2008). Sysel’s pro se motion in April 2016 did not contain the
requisite certificate required to implicate the detainers act. The formal request with certificate was
not received until July 1. Sysel then filed his motion for discharge on November 8. The district
court found that this factor weighed in favor of the State. Sysel argues that he “vigorously” asserted
his right to a speedy trial. Brief for appellant at 16. While not a vigorous assertion of his rights,
Sysel did assert his right to a speedy trial in due course. This factor weighs slightly in Sysel’s
favor.
The final factor considers whether the defendant suffered any prejudice from the delay. See
State v. Betancourt-Garcia, supra. A showing of actual prejudice to a defendant alleging violation
of constitutional speedy trial rights is required if the government exercised reasonable diligence in
pursuing the defendant. Id. In analyzing the prejudice factor of the four-factor test to determine
whether constitutional speedy trial rights have been violated, the U.S. Supreme Court in Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), enumerated three aspects: (1)
preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the defendant,
and (3) limiting the possibility that the defense will be impaired by dimming memories and loss
of exculpatory evidence. The third is most important “because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Id., 407 U.S. at 532.
Sysel argues that after being incarcerated in Iowa, where he is serving a 5 year sentence,
he “desperately begged for a speedy trial” in his April 2016 pro se motion filed in this case. Sysel
argues that this was his attempt to prevent the Nebraska case from lingering. He also states that he
“knew if he was brought to trial and found guilty that he could be sentenced concurrently to his
prison sentence.” Brief for appellant at 17. Sysel’s arguments do not demonstrate oppressive
pretrial incarceration stemming from the Nebraska charge.
Next, Sysel argues that the delay weighed heavily on him and that while incarcerated (in
Iowa), he was “left to ponder this case and its effect on his current status and future,” which
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prompted him to be diligent in requesting a speedy disposition. Beyond Sysel’s assertion that the
delay weighed heavily on him, his arguments do not demonstrate anxiety and concern beyond that
inherent in every criminal case. While there may be some degree of anxiety and concern in every
criminal case, anxiety or concern by itself does not establish prejudice where the defendant neither
asserts nor shows that the delay weighed particularly heavily on him in specific instances. State v.
Wilson, supra.
Finally, Sysel argues that his defense will be impaired by the delay. He notes that the
present appeal is interlocutory, and he argues that if there are suppression issues, those will have
been dealt with prior to trial, causing more delay. He also argues that witnesses may not be
available or able to recall certain details. The State argues that delay due to any potential
suppression issues should not be attributable to the State. The State also argues that issues of
witness unavailability or inability to recall detail is as likely to work against the State as against
Sysel. The State also observes that due to the nature of the charges against Sysel, most of the
witnesses will be police officers or county employees and that any police officer witnesses may be
able to refresh their memories with police reports.
The record fails to support any prejudice to Sysel from the delay. This factor favors the
State.
Upon weighing the totality of the circumstances and the four factors of the balancing test,
we conclude that Sysel’s right to a speedy trial under U.S. Const. amend. VI and Neb. Const. art.
I, § 11, was not violated. The district court did not err in denying his motion for discharge in this
regard.
CONCLUSION
The district court did not err in denying Sysel’s motion for discharge.
AFFIRMED.
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