State v. Johnson

Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 747
Cite as 22 Neb. Ct. App. 747
State of Nebraska, appellee, v.
Scott A. Johnson, appellant.
___ N.W.2d ___
Filed February 10, 2015. No. A-14-085.
1. Judgments: Speedy Trial: Appeal and Error. 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.
2. Speedy Trial. Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2014) requires discharge
of a defendant whose case has not been tried within 6 months after the filing of
the information, unless the 6 months are extended by any period to be excluded
in computing the time for trial.
3. Speedy Trial: Pretrial Procedure. Neb. Rev. Stat. § 29-1207(4)(a) (Cum. Supp.
2014) specifically excludes from the speedy trial calculation the time from filing
until final disposition of pretrial motions of the defendant.
4. Courts: Speedy Trial: Pretrial Procedure. A court cannot table a motion and
thereby suspend a defendant’s rights where judicial delay without a showing of
good cause under Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2014) would oth-
erwise warrant discharge.
5. Speedy Trial: Good Cause. Where the excludable period properly falls under
Neb. Rev. Stat. § 29-1207(4)(a) (Cum. Supp. 2014) rather than the catchall provi-
sion of § 29-1207(4)(f), no showing of reasonableness or good cause is necessary
to exclude the delay.
6. Speedy Trial: Pretrial Procedure: Good Cause. Unlike the requirement in
Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2014) that any delay be for good
cause, conspicuously absent from § 29-1207(4)(a) is any limitation, restriction, or
qualification of the time which may be charged to the defendant as a result of the
defendant’s motions.
7. Speedy Trial: Pretrial Procedure. The plain terms of Neb. Rev. Stat.
§ 29-1207(4)(a) (Cum. Supp. 2014) exclude all time between the time of the fil-
ing of the defendant’s pretrial motions and their final disposition, regardless of
the promptness or reasonableness of the delay.
8. Courts: Constitutional Law: Speedy Trial: Appeal and Error. The Nebraska
Supreme Court has never recognized a right to interlocutory appeal solely con-
cerning the constitutional right to speedy trial.
9. Final Orders: Speedy Trial: Appeal and Error. An appeal from a final order—
as an order denying a nonfrivolous statutory speedy trial claim is—may raise
every issue presented by the order that is the subject of the appeal.
10. Constitutional Law: Judgments: Speedy Trial: Appeal and Error. The over-
ruling of a motion alleging the denial of a speedy trial based upon constitutional
grounds pendent to a nonfrivolous statutory claim may be reviewed upon appeal
from that order.
11. Constitutional Law: Speedy Trial. The constitutional right to a speedy trial is
guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11.
Decisions of the Nebraska Court of Appeals
748 22 NEBRASKA APPELLATE REPORTS
12. Constitutional Law: Statutes: Speedy Trial. The constitutional right to a
speedy trial and the statutory implementation of that right exist independently of
each other.
13. Constitutional Law: Speedy Trial. It is an unusual case in which the Sixth
Amendment has been violated when the time limits under the speedy trial act
have been met.
14. Speedy Trial: Words and Phrases. A speedy trial, generally, is one conducted
according to prevailing rules and proceedings of law, free from arbitrary, vexa-
tious, and oppressive delay.
15. Constitutional Law: Speedy Trial. The right to a speedy trial is generically
different from any of the other rights enshrined in the Constitution for the
protection of the accused, because it implicates both the rights of the accused
to be treated decently and fairly and societal interests in providing a speedy
trial that exist separately from, and sometimes in opposition to, the interests of
the accused.
16. Speedy Trial: Judgments: Pretrial Procedure. The right to a speedy trial is a
more vague concept than other procedural rights, and there is no fixed point at
which it can be determined how long is too long in a system where justice is to
be swift but deliberate.
17. Constitutional Law: Courts: Speedy Trial. The U.S. Supreme Court has devel-
oped a balancing test to determine whether a defendant’s constitutional right to a
speedy trial has been violated. This balancing test involves four factors: (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of
the right, and (4) prejudice to the defendant.
18. Constitutional Law: Speedy Trial. None of the four factors for determining
whether a defendant’s constitutional right to a speedy trial has been violated,
standing alone, is a necessary or sufficient condition to the finding of a depri-
vation of the right to a speedy trial; rather, the factors are related and must be
considered together with such other circumstances as may be relevant.
19. Constitutional Law: Criminal Law: Pretrial Procedure: Time. The Fifth
Amendment has only a limited role to play in protecting against oppressive delay
in the criminal context.
20. Speedy Trial: Due Process: Proof. The due process claimant’s burden is a heavy
one, requiring a showing of both substantial actual prejudice resulting from the
trial delay and bad faith on the part of the government.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed in part, and in part
remanded with directions.
Matthew K. Kosmicki for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 749
Cite as 22 Neb. Ct. App. 747
Moore, Chief Judge, and Irwin and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
Scott A. Johnson appeals an order of the district court for
Lancaster County, Nebraska, denying his motion for absolute
discharge on speedy trial grounds. On appeal, Johnson argues
that the court erred in not granting relief on the basis of statu-
tory speedy trial rights and constitutional speedy trial rights.
We find no merit to Johnson’s assertion concerning his statu-
tory speedy trial claim. With respect to Johnson’s constitutional
speedy trial claim, we remand the matter with directions for
further consideration.
II. BACKGROUND
We initially note that there is no dispute in this case about
the number of days to be attributed to the various time peri-
ods since the information was filed against Johnson. Rather,
Johnson’s arguments are based entirely on assertions that the
time it took the district court to rule on a motion to suppress
constituted an inordinate and unreasonable delay and that
sometime during that delay, he was denied a speedy trial.
On June 7, 2012, Johnson was charged by information with
possession of a controlled substance.
On June 15, 2012, Johnson filed pretrial discovery motions.
The district court ruled on Johnson’s motions on June 19. The
court concluded that as a result of these pretrial motions, 4
days were properly excluded from the speedy trial calculation.
Johnson has not challenged this calculation.
On September 13, 2012, Johnson requested the case be con-
tinued from the October 2012 jury term to the December 2012
jury term. The court granted Johnson’s request and accepted
his waiver of speedy trial for that period. The district court
concluded that as a result of this request, 81 days were prop-
erly excluded from the speedy trial calculation. Johnson has
not challenged that calculation.
On November 1, 2012, Johnson moved to continue the case
to the February 2013 jury term. The court granted this request.
Decisions of the Nebraska Court of Appeals
750 22 NEBRASKA APPELLATE REPORTS
The district court concluded that as a result of this request, 95
additional days would be properly excluded from the speedy
trial calculation, but that 32 of those days overlapped the time
properly excluded because of the prior continuance; as a result,
the court concluded that 63 additional days were properly
excluded from the speedy trial calculation. Johnson has not
challenged that calculation.
On January 17, 2013, Johnson filed a motion to suppress.
The motion was heard on March 20, and the court took the
motion under advisement. The court entered an order overrul-
ing the motion to suppress on December 2.
On December 20, 2013, Johnson filed a motion for absolute
discharge. In the motion, Johnson specifically asserted that his
motion for discharge was based on his allegations that he had
been denied both his statutory and his constitutional rights to
speedy trial.
At the hearing on Johnson’s motion for discharge, the par-
ties presented argument and the State offered an exhibit dem-
onstrating the State’s calculation of excludable time periods.
There was no testimony presented, and there was no discus-
sion on the record concerning the reasons for the court’s delay
in ruling on Johnson’s motion to suppress from March until
December 2013. Johnson argued the court should find that
the court’s delay in ruling on the motion to suppress was an
inordinate and unreasonable delay and, based on the Nebraska
Supreme Court’s ruling in State v. Wilcox, 224 Neb. 138, 395
N.W.2d 772 (1986), that he was entitled to discharge.
On January 15, 2014, the district court entered an order
overruling Johnson’s motion for discharge. The court specifi-
cally distinguished the present case from State v. Wilcox, supra,
found that the entire time from Johnson’s filing of the motion
to suppress until the court’s ruling on the motion was properly
excludable as being attributed to a pretrial motion filed by the
defendant, and concluded that the statutory time for speedy
trial would not expire until March 2014. The court did not
mention Johnson’s assertion regarding his constitutional right
to speedy trial.
This appeal followed.
Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 751
Cite as 22 Neb. Ct. App. 747
III. ASSIGNMENT OF ERROR
On appeal, Johnson has assigned one error. He asserts that
the district court erred in overruling his motion for abso-
lute discharge.
IV. ANALYSIS
We initially note that there are no issues raised in this case
concerning the “counting” of particular days attributed to the
various pretrial filings and rulings. Rather, the primary argu-
ment in this appeal concerns whether the length of time it took
the court to rule on Johnson’s motion to suppress constituted
an inordinate or unreasonable delay such that, at some point
during that time, Johnson’s speedy trial rights were violated.
[1] 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. Hettle, 288 Neb. 288, 848 N.W.2d
582 (2014).
1. Statutory Speedy Trial Right
Johnson first asserts that his statutory right to speedy trial
under Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2014) was vio-
lated, because the more than 8 months that his motion to sup-
press was under advisement resulted in his not being brought
to trial within 6 months. His argument is premised upon, and
depends upon, a conclusion that the time that his motion was
pending is not entirely excluded from the speedy trial calcu-
lation because there was inordinate or unreasonable judicial
delay without good cause. We find no merit to Johnson’s asser-
tion and conclude that this time period was entirely excludable
as attributed to his pretrial motion to suppress.
[2,3] Section 29-1207 requires discharge of a defendant
whose case has not been tried within 6 months after the filing
of the information, unless the 6 months are extended by any
period to be excluded in computing the time for trial. State v.
Hettle, supra; State v. Turner, 252 Neb. 620, 564 N.W.2d 231
(1997). Section 29-1207(4)(a) specifically excludes from the
speedy trial calculation “the time from filing until final disposi-
tion of pretrial motions of the defendant.”
Decisions of the Nebraska Court of Appeals
752 22 NEBRASKA APPELLATE REPORTS
In this case, Johnson relies heavily on the outcome in State
v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986), as support
for his assertion that even though the period of time at issue
here involved the period of time it took the court to rule on his
pretrial motion to suppress, it was an unreasonable period of
time for such a ruling and constituted judicial delay without a
showing of good cause. In State v. Wilcox, supra, the Nebraska
Supreme Court held that a defendant was denied his right to a
speedy trial where a motion to suppress filed by the defendant
was not heard until 1 year 7 months 24 days after it was filed.
The motion was set for hearing a little over 1 month after it
was filed. However, the motion was not heard at that time
because the judge recused himself. Thereafter, the record indi-
cated no action in the case for 1 year 4 months 26 days, until
finally the substituted judge received the transcript and 16 days
later ruled on the motion.
[4] In State v. Wilcox, supra, the Nebraska Supreme Court
concluded that the defendant’s rights under § 29-1207 had
been violated. In addressing the time period after the substi-
tuted judge had been assigned to the case, the court stated
that a court cannot table a motion and thereby suspend a
defendant’s rights where judicial delay without a showing
of good cause under § 29-1207(4)(f) would otherwise war-
rant discharge.
[5] Since its ruling in State v. Wilcox, supra, the Nebraska
Supreme Court has clarified its ruling and consistently rejected
the argument that Johnson makes in this case, by draw-
ing a distinction between cases where the period of delay
properly falls under § 29-1207(4)(a) and cases where the
period of delay properly falls under the catchall provision
of § 29-1207(4)(f). See, State v. Covey, 267 Neb. 210, 673
N.W.2d 208 (2004); State v. Turner, supra; State v. Lafler,
225 Neb. 362, 405 N.W.2d 576 (1987), abrogated on other
grounds, State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554
(1990). In State v. Lafler, supra, the court clarified that where
the excludable period properly falls under § 29-1207(4)(a)
rather than the catchall provision of § 29-1207(4)(f), no show-
ing of reasonableness or good cause is necessary to exclude
the delay.
Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 753
Cite as 22 Neb. Ct. App. 747
The court explained that the delay in State v. Wilcox, 224
Neb. 138, 395 N.W.2d 772 (1986), was not based on one of
the specifically enumerated or described periods of delay
under § 29-1207(4)(a). State v. Lafler, supra. Rather, the delay
in State v. Wilcox, supra, in the court’s actually assigning and
hearing the defendant’s motion was attributable to judicial
neglect and fell under § 29-1207(4)(f), wherein other peri-
ods of delay not specifically enumerated are excludable, but
only if the court finds that they are for good cause. State v.
Lafler, supra.
[6,7] Unlike the requirement in § 29-1207(4)(f) that
any delay be for good cause, conspicuously absent from
§ 29-1207(4)(a) is any limitation, restriction, or qualification
of the time which may be charged to the defendant as a result
of the defend­ant’s motions. State v. Turner, 252 Neb. 620,
564 N.W.2d 231 (1997); State v. Lafler, supra. Rather, the
plain terms of § 29-1207(4)(a) exclude all time between the
time of the filing of the defendant’s pretrial motions and their
final disposition, regardless of the promptness or reasonable-
ness of the delay. State v. Turner, supra; State v. Lafler, supra.
Nebraska’s statute is similar to the federal Speedy Trial Act of
1974, 18 U.S.C. § 3161 et seq. (2012), and the U.S. Supreme
Court in Henderson v. United States, 476 U.S. 321, 106 S. Ct.
1871, 90 L. Ed. 2d 299 (1986), stated that the plain terms of
the act excluded all time between the filing and the hearing on
a motion whether or not the hearing had been promptly held
and that the period of delay was not required to be reason-
able. See, State v. Turner, supra; State v. Lafler, supra. The
Nebraska Legislature could have drafted Nebraska’s statutes
to apply a reasonable time requirement to § 29-1207(4)(a), but
did not.
The defendants in State v. Turner, supra, and in State v.
Lafler, supra, made arguments similar to the one set forth by
Johnson in this case, asserting that periods of time attributed
to their pretrial motions should be considered inordinate or
unreasonable delay and require a showing of good cause to sat-
isfy speedy trial rights. The Nebraska Supreme Court rejected
that argument in both cases, and we similarly reject it here.
The record demonstrates that Johnson’s motion was heard and
Decisions of the Nebraska Court of Appeals
754 22 NEBRASKA APPELLATE REPORTS
taken under advisement, and there is nothing to suggest any
kind of judicial neglect comparable to that in State v. Wilcox,
supra. As such, the district court correctly concluded that the
entire time attributed to the motion to suppress was properly
excluded, and the court was not clearly erroneous in so hold-
ing. This assigned error is without merit.
2. Constitutional Speedy Trial Right
Johnson next asserts that the district court erred in not find-
ing that his constitutional right to a speedy trial was violated.
The court did not make any findings on this issue or resolve
the issue, and we conclude that the matter must be remanded
for further consideration.
We initially note that the State asserts on appeal that a
defendant is not entitled to appeal from a pretrial ruling deny-
ing relief based on constitutional speedy trial rights. The State
argues: “The U.S. Supreme Court has expressly held that no
interlocutory appeal lies from a denial of relief based upon
the constitutional rights to speedy trial.” Brief for appellee
at 3, citing United States v. MacDonald, 435 U.S. 850, 98 S.
Ct. 1547, 56 L. Ed. 2d 18 (1978). The State asserts that the
Nebraska Supreme Court has never recognized a right to inter-
locutory appeal solely concerning the constitutional right to
speedy trial. We find the authority upon which the State bases
its argument in this case to be distinguishable, because the fac-
tual scenario at hand does not involve an interlocutory appeal
based solely on an alleged constitutional violation of a right to
speedy trial.
In United States v. MacDonald, supra, the U.S. Supreme
Court did reverse a lower court decision and remand the matter
on the basis of concluding that a defendant was not entitled to
a pretrial appeal on speedy trial grounds. In that case, however,
the defendant had sought relief solely on the basis of his Sixth
Amendment right to a speedy trial and there was no statutory
claim also at issue.
[8] In State v. Wilson, 15 Neb. Ct. App. 212, 724 N.W.2d 99
(2006), this court was faced with an appeal from the denial
of a motion to discharge on the basis of both statutory and
constitutional speedy trial rights. We found the defendant’s
Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 755
Cite as 22 Neb. Ct. App. 747
statutory claim to be frivolous, and we declined to address the
constitutional claim on the basis that the constitutional claim,
in the absence of a nonfrivolous statutory claim, was not a
final, appealable order. Id. In so finding, we recognized the
U.S. Supreme Court’s holding in United States v. MacDonald,
supra. As the State notes in its brief in this case, we stated in
State v. Wilson, 15 Neb. Ct. App. at 221, 724 N.W.2d at 107, that
“the Nebraska Supreme Court has never recognized a right to
interlocutory appeal solely concerning the constitutional right
to speedy trial.”
[9,10] The State’s reliance on this authority, however, is
unpersuasive in this case because the appeal herein is clearly
not solely concerning the constitutional right to speedy trial.
As discussed significantly above, this case involves both a
nonfrivolous statutory claim and a constitutional claim. In
State v. Wilson, supra, we also noted that an appeal from
a final order—as an order denying a nonfrivolous statutory
speedy trial claim is—may raise every issue presented by the
order that is the subject of the appeal. Thus, the overruling of
a motion alleging the denial of a speedy trial based upon con-
stitutional grounds pendent to a nonfrivolous statutory claim
may be reviewed upon appeal from that order. Id. See, State v.
Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014); State v. Brooks,
285 Neb. 640, 828 N.W.2d 496 (2013).
[11-13] The constitutional right to a speedy trial is guaran-
teed by U.S. Const. amend. VI and Neb. Const. art. I, § 11.
State v. Hettle, supra. The constitutional right to a speedy trial
and the statutory implementation of that right exist indepen-
dently of each other. Id. Nevertheless, § 29-1207 provides a
useful standard for assessing whether the length of a trial delay
is unreasonable under the U.S. and Nebraska Constitutions.
State v. Hettle, supra. It is an unusual case in which the Sixth
Amendment has been violated when the time limits under the
speedy trial act have been met. State v. Hettle, supra.
[14-16] A speedy trial, generally, is one conducted accord-
ing to prevailing rules and proceedings of law, free from
arbitrary, vexatious, and oppressive delay. Id. But the right is
generically different from any of the other rights enshrined in
the Constitution for the protection of the accused, because it
Decisions of the Nebraska Court of Appeals
756 22 NEBRASKA APPELLATE REPORTS
implicates both the rights of the accused to be treated decently
and fairly and societal interests in providing a speedy trial
that exist separately from, and sometimes in opposition to, the
interests of the accused. See id. In addition, deprivation of the
right may sometimes work to the benefit of the accused. Id.
The right is a more vague concept than other procedural rights,
and there is no fixed point at which it can be determined how
long is too long in a system where justice is to be swift but
deliberate. Id.
[17,18] The U.S. Supreme Court has developed a balancing
test to determine whether a defendant’s constitutional right
to a speedy trial has been violated. See Barker v. Wingo, 407
U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). This bal-
ancing test involves four factors: (1) the length of the delay,
(2) the reason for the delay, (3) the defendant’s assertion of
the right, and (4) prejudice to the defendant. State v. Hettle,
supra. None of these four factors, standing alone, is a neces-
sary or sufficient condition to the finding of a deprivation of
the right to a speedy trial; rather, the factors are related and
must be considered together with such other circumstances as
may be relevant. State v. Tucker, 259 Neb. 225, 609 N.W.2d
306 (2000).
In this case, Johnson clearly raised his constitutional speedy
trial right as a basis for his motion for absolute discharge.
Nonetheless, the order of the district court denying the motion
for discharge does not include any mention of the constitu-
tional right, does not include any consideration of the four
factors that must be balanced, and does not include any kind
of factual findings about such considerations as the reason
for the delay or the potential prejudice to Johnson as the
defendant. Without any findings to review, it is impossible
for this court to determine whether the district court was
clearly erroneous.
During oral argument in this case, both counsel for Johnson
and counsel for the State agreed that without any findings
from the district court on this issue, there is no way for this
court to properly perform its appellate function of review, and
both agreed that if we concluded that the constitutional claim
is properly before us in this appeal, then the matter would
Decisions of the Nebraska Court of Appeals
STATE v. JOHNSON 757
Cite as 22 Neb. Ct. App. 747
need to be remanded for the district court to make findings
concerning the factors set forth above. See State v. Vasquez,
16 Neb. Ct. App. 406, 744 N.W.2d 500 (2008) (when trial court’s
findings are incomplete, appellate court must remand for fur-
ther consideration).
Because Johnson properly raised his claim asserting viola-
tion of his constitutional right to speedy trial and because the
district court failed to address the issue and make appropri-
ate findings concerning the factors set forth above, we must
remand the matter to the district court for further consideration
and findings.
3. Due P rocess Assertions
Finally, Johnson argues that the court erred in not finding a
violation of his due process rights. It is not apparent what due
process rights Johnson was asserting in this case, beyond his
rights to speedy trial already discussed above.
[19,20] The Nebraska Supreme Court has noted that the
Fifth Amendment has only a limited role to play in protect-
ing against oppressive delay in the criminal context. State v.
Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014). It is the measure
against which prearrest or preindictment delay is scrutinized.
Id. In State v. Hettle, supra, the court noted that it was aware of
no case in which the Fifth Amendment was applied to a claim
for delay in bringing an accused to trial after arrest or indict-
ment. Moreover, the due process claimant’s burden is a heavy
one, requiring a showing of both substantial actual prejudice
resulting from the delay and bad faith on the part of the gov-
ernment. State v. Hettle, supra.
In this case, Johnson has not demonstrated any violation of
due process rights. This assertion on appeal is without merit.
V. CONCLUSION
We find no merit to Johnson’s assertion concerning his
statutory speedy trial claim. With respect to his constitutional
speedy trial claim, we remand the matter with directions for
further consideration.
Affirmed in part, and in part
remanded with directions.