State v. Rashad

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www.nebraska.gov/apps-courts-epub/
05/02/2023 12:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. RASHAD
Cite as 31 Neb. App. 779State of Nebraska, appellee, v.
Justin N. Rashad, appellant.
___ N.W.2d ___
Filed April 25, 2023. No. A-22-097.
1. Judgments: Speedy Trial: Appeal and Error. A trial court’s deter-
mination as to whether charges should be dismissed on speedy trial
grounds is a factual question that will be affirmed on appeal unless
clearly erroneous.
2. Judgments: Appeal and Error. Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party, resolving
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. 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.
4. Speedy Trial. If a defendant is not brought to trial before the running
of the time for trial as provided in Neb. Rev. Stat. § 29-1207 (Reissue
2016), and as extended by excluded periods, he or she shall be entitled
to an absolute discharge from the offense charged.
5. ____. To calculate the time for speedy trial purposes, a court must
exclude the day the complaint was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
6. Speedy Trial: Proof. The burden of proof is upon the State to show by
a preponderance of the evidence that one or more of the excluded time
periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are appli-
cable when the defendant is not tried within a 6-month period.
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Cite as 31 Neb. App. 7797. Good Cause: Words and Phrases. Good cause has been defined as a
substantial reason that affords a legal excuse.
8. Speedy Trial: Good Cause. The language of Neb. Rev. Stat.
§ 29-1207(4)(f) (Reissue 2016) simply requires that good cause be
shown for excluding from the speedy trial clock any other period of time
not specifically discussed in the other subsections of that statute.
9. ____: ____. 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.
10. Speedy Trial: Good Cause: Appeal and Error. When a trial court
relies on Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016) to exclude
time from the speedy trial calculation, the court must make specific
findings as to the good cause which resulted in the delay. An appel-
late court will give deference to such factual findings unless they are
clearly erroneous.
11. Constitutional Law: Speedy Trial. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires a case-
by-case analysis of the applicability of several factors, including the
length and reason for the delay.
12. Speedy Trial. Analyzing a defendant’s statutory speedy trial rights is
a relatively simple mathematical computation of whether the 6-month
speedy trial clock, as extended by statutorily excludable periods, has
expired prior to the commencement of trial.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Korey T. Taylor for appellant.
Douglas J. Peterson, Attorney General, Kimberly A. Klein,
and Erin E. Tangeman for appellee.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
Arterburn, Judge.
INTRODUCTION
Justin N. Rashad appeals an order of the district court
for Douglas County overruling his motion to discharge on
statutory speedy trial grounds. Rashad primarily argues that
the State failed to sufficiently demonstrate that good cause
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Cite as 31 Neb. App. 779existed to continue Rashad’s case past the statutory speedy
trial deadline. For the reasons set forth below, we affirm.
BACKGROUND
On April 12, 2021, the State filed an information charging
Rashad with first degree assault and use of a firearm to com-
mit a felony. The charges arose from an incident that occurred
in February in which Rashad’s father was shot. Initially, there
were conflicting reports about the identity of the shooter, but
Rashad was ultimately identified by his father. Rashad denied
he shot his father.
A warrant for Rashad’s arrest was issued on March 3, 2021.
Rashad was taken into custody on March 7, and a bond was
set. After the case was bound over to district court, Rashad
filed a motion for discovery on April 13. The motion was
granted 2 days later.
A pretrial conference began on May 24, 2021. However,
pursuant to a motion filed by Rashad, the district court contin-
ued the pretrial conference to June 22. At the June conference,
Rashad requested that a jury trial be scheduled for sometime
within the 6-month speedy trial period. Rashad also requested
a bond reduction. The district court suggested a trial date of
October 12. Defense counsel stated that he could be present, if
necessary, but that he had other obligations scheduled for that
same week. In response, the district court offered a trial date
of October 18. The deputy county attorney indicated that either
date worked for the State. The district court reduced Rashad’s
bond and set a jury trial for October 18.
On or about September 27, 2021, the district court informed
the attorneys for both parties that it had a homicide jury trial
scheduled to commence on October 13 and that as a result,
Rashad’s trial may have to be continued to a later jury term.
In an email to the district court, the State requested that a
hearing be set to schedule a new trial date. In a responsive
email, Rashad’s counsel objected to the continuance of the
jury trial, but ultimately indicated that he understood the
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Cite as 31 Neb. App. 779court’s position. Defense counsel also requested a hearing
date to make a record of the continuance and to set a new
trial date.
A hearing on the need for a continuance was held on October
26, 2021. At the time of this hearing, the homicide trial was
still pending before the court. The State asked the district court
to find good cause for a continuance of the jury trial. Rashad’s
counsel noted that Rashad was very concerned about his right
to a speedy trial and objected to the continuance. The follow-
ing colloquy was then had:
[Deputy county attorney:] Judge, we were previously
scheduled for trial last week on October 18th. We previ-
ously had a pretrial scheduled before that. During that
previously scheduled pretrial, which, Judge, I don’t have
the date in front of me, the Court let us know that our jury
trial schedule on the 18th would be continued because
the Court was in a jury trial, and I believe you still are
awaiting a verdict on your jury trial. So I guess today we
are asking — I’m asking the Court to continue the case
that was scheduled for the 18th, to continue that for good
cause, and if the Court wants me to put on more informa-
tion, I can certainly do that.
THE COURT: [Defense counsel]?
[Defense counsel:] Judge, I spoke with [the prosecutor].
I’m aware of his request as far as the Court and that the
Court did inform us — I do agree with him that the Court
informed us that the Court did not have the availability
to try our case last week because the Court had already
started a trial, I believe on the 13th, the Wednesday
before, and still remains in that trial right now.
I did speak to . . . Rashad at the jail. You know, he
is very concerned about his speedy trial, and in speak-
ing with him, you know, I explained to him what con-
tinuances are. So from that perspective, he was ready
for trial.
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Cite as 31 Neb. App. 779The Court knows — or I think the Court is aware that
I was in a trial last week, as well, so it was going to be
one of the two that went. But from . . . Rashad’s perspec-
tive, he would object to the continuance for speedy trial.
But, again, I do believe that the Court informed us that
the Court did not have availability and let us know that
ahead of the trial date, which got me into my other
trial as opposed to . . . Rashad’s trial. We submit it on
that basis.
The district court then inquired about the attorneys’ avail-
ability for the rescheduled jury trial. The State first requested
information about the court’s calendar as it related to schedul-
ing within the district. It was then determined that the judge
assigned to this case was among the judges within the district
whose jury trials were held in the last 2 weeks of each month.
In response, each party described his availability accordingly:
[Deputy county attorney:] Judge, my first availability
would be . . . the last two weeks of February, is my first
availability. And, frankly, Judge, I am wide open those
two weeks at the end of February, so whatever date the
Court wanted to put it on there, I could do. I don’t know
what [defense counsel’s] calendar looks like, but —
[Defense counsel:] You know, obviously, it would be
to the Court’s determination, but as far as the February
panel, this case was set within the speedy trial allotment.
I guess, in my opinion, I would assume that I would still
have, if we’re trying to do this as fast as possible, to have
a speedy trial that would be sometime in the November
time frame, where we’re adding 28 days to the origi-
nal Information date. So if we’ve got an April 12th or
so Information date, that takes us to October 12th, so a
good month, adding a month onto that, would be around
November the 15th.
I was in trial last week. That trial had been continued
on my client’s motion in order for us to get additional
information. I actually assisted him for two months, so
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Cite as 31 Neb. App. 779technically, he had longer speedy than . . . Rashad did at
that point in time, when the case here was done. So my
unavailability, I guess, was 100 percent once the other
case before the Court went, that [the Douglas County
public defender] was trying. Otherwise, this one would’ve
taken precedence, from a speedy trial perspective, for the
two cases that I had.
So February is going out rather far at this point in
time. My — If the Court is inclined to use a February
calendar, my February calendar at the moment — let me
double-check this — is pretty open. I have stuff that’s set
at the end of January. So if the Court’s trials in the last
part of January — I do have a case that’s been specially
set there for two weeks for a homicide case at that point
in time.
[Deputy county attorney:] [M]y thought is let’s get a
date where I know it works for you and I know it works
for me so that . . . Rashad’s not sitting — we don’t come
back and have the same situation again in February. I
mean, if you’re already set for January and February’s
the first availability, then I think that’s probably the way
to do it.
[Defense counsel:] I have availability in November if
the Court has availability in November.
THE COURT: We actually have a two-weeker [sic]
specially set [in November].
The Court, based upon the record that has been made
regarding the continuances and the Court being in trial
and the availability of both counsel, this Court is going
to make a good cause finding that this trial that was
scheduled for October 18th, 2021, should be and hereby
is continued. And the trial setting that the Court has
available, based upon the Court’s trial calendar, where
you would be on the primary case and first up, would
be on Monday, February 14th, 2022. And this matter
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Cite as 31 Neb. App. 779will be set for trial on Monday, February 14th, 2022, at
9:00 a.m.
[Defense counsel:] I will mark that on my trial, Judge.
I just want to make sure the Court was clear. I know the
Court has something in November, but I had availability
in November and December because . . . Rashad still has
his speedy trial portion, where my case that’s specially set
in January does not have it.
After this discussion, the district court further reduced Rashad’s
bond. Rashad bonded out of jail later that same day.
On February 3, 2022, a hearing was held on motions filed.
During the hearing, Rashad’s counsel informed the court that
he was going to file a motion to discharge, because Rashad’s
statutory right to a speedy trial had been violated when the
district court continued the jury trial to February. Defense
counsel’s motion was not filed prior to the hearing; however,
the State did not object to proceeding and the court heard argu-
ments on the issue of Rashad’s statutory right to speedy trial.
Defense counsel argued that the court’s scheduling issues did
not constitute good cause for a continuance. Counsel reiterated
that he had informed the court that he was available for trial in
November, December, and January.
In response to defense counsel’s assertions, the State argued
that the court correctly found good cause to continue the
jury trial from October 2021 due to the court’s schedule.
Specifically, the State referenced other cases on the court’s
docket that had priority over Rashad’s case. The State indi-
cated its belief that the earliest available date for trial was
February 2022. In support of its argument, the State offered a
copy of the verbatim transcript from the October 26 schedul-
ing hearing into evidence. Defense counsel offered a copy of
the email exchange between counsel and the court discuss-
ing scheduling.
About an hour after the February 3, 2022, hearing, Rashad
filed a written motion to discharge with the court. The basis
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Cite as 31 Neb. App. 779of this motion was that Rashad’s statutory right to a speedy
trial had been violated as a result of the continuance of the
jury trial from October 2021 to February 2022.
In a written order filed on February 8, 2022, the district
court reiterated its previous finding that there was good cause
for the continuance of Rashad’s jury trial from October 2021
to February 2022 due to the court’s being in trial at the time
Rashad’s trial was scheduled to be heard and due to the
unavailability of the court, as well as both counsel. Since
the district court found there was good cause for the delay, it
overruled Rashad’s motion to discharge. Rashad then filed this
interlocutory appeal.
ASSIGNMENT OF ERROR
On appeal, Rashad asserts that the district court erred in
denying his motion for absolute discharge under Neb. Rev.
Stat. § 29-1207 (Reissue 2016). Specifically, Rashad argues
that the State failed to demonstrate by a preponderance of the
evidence that “good cause existed sufficient to toll Rashad’s
speedy trial rights.”
STANDARD OF REVIEW
[1-3] A trial court’s determination as to whether charges
should be dismissed on speedy trial grounds is a factual ques-
tion that will be affirmed on appeal unless clearly erroneous.
State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021). Under
a clearly erroneous standard of review, an appellate court does
not reweigh the evidence but considers the judgment in a light
most favorable to the successful party, resolving evidentiary
conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence. Id.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. State v. Moody,
311 Neb. 143, 970 N.W.2d 770 (2022).
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Cite as 31 Neb. App. 779ANALYSIS
Rashad’s argument on appeal is twofold. First, Rashad
argues that the State failed to sufficiently demonstrate that
there was good cause for the continuance of his October 18,
2021, jury trial. In the alternative, Rashad argues that even
if there was good cause for the initial continuance, the State
failed to prove by a preponderance of the evidence that good
cause existed to continue the trial past a November trial date.
In its brief, the State maintains that the district court properly
found that there was good cause to continue Rashad’s trial to
February 2022.
Under § 29-1207, a criminal defendant must be brought to
trial within 6 months of the filing of the information against
him or her. However, § 29-1207 also provides periods that
are excludable from this 6-month time limit. As is relevant in
this appeal, § 29-1207(4)(f) excludes from the 6-month speedy
trial period “[o]ther periods of delay not specifically enumer-
ated in this section, but only if the court finds that they are for
good cause.”
[4] If a defendant is not brought to trial before the running
of the time for trial as provided in § 29-1207, and as extended
by excluded periods, he or she shall be entitled to an absolute
discharge from the offense charged. State v. Coomes, 309 Neb.
749, 962 N.W.2d 510 (2021).
[5,6] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6
months, back up 1 day, and then add any time excluded under
§ 29-1207(4) to determine the last day the defendant can be
tried. State v. Chase, supra. The burden of proof is upon the
State to show by a preponderance of the evidence that one
or more of the excluded time periods under § 29-1207(4) are
applicable when the defendant is not tried within a 6-month
period. State v. Chase, supra.
The State filed an information charging Rashad on April
12, 2021. Applying the calculations to Rashad’s case, the
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Cite as 31 Neb. App. 779State had until October 12, 2021, to bring him to trial before
any excludable time is considered. Due to Rashad’s motion
for discovery and request to continue the pretrial conference,
a period of 31 days is excludable from the speedy trial period
under § 29-1207(4)(a) and (b). We note that Rashad does
not dispute that these 31 days are excludable. As a result of
this excluded time, the State had until November 12 to bring
Rashad to trial.
Rashad’s original trial date of October 18, 2021, was clearly
within the speedy trial period. However, Rashad’s trial was
then rescheduled to February 14, 2022, well beyond the expira-
tion of the previously applicable speedy trial period. We now
turn our discussion to whether there was an additional exclud-
able period that extended the speedy trial deadline to at least
February 14, 2022.
[7-10] Good cause has been defined as a “substantial rea-
son that affords a legal excuse.” State v. Chase, 310 Neb.
160, 172, 964 N.W.2d 254, 263 (2021). The language of
§ 29-1207(4)(f) simply requires that good cause be shown
for excluding from the speedy trial clock any other period of
time not specifically discussed in the other subsections of that
statute. See State v. Chase, supra. The only timing require-
ment implicit in § 29-1207(4)(f) is that the substantial reason
affording a legal excuse objectively existed at the time of
the delay. State v. Chase, supra. The appellate courts of this
state have previously recognized that docket congestion in
trial courts can constitute good cause for delay in speedy trial
calculations. See, State v. Sommer, 273 Neb. 587, 731 N.W.2d
566 (2007); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604(1972); State v. Ostermeier, 31 Neb. App. 322, 979 N.W.2d
546 (2022). The Nebraska Supreme Court has recognized
that good cause is a factual question dealt with on a case-
by-case basis. State v. Moody, 311 Neb. 143, 970 N.W.2d
770 (2022). When a trial court relies on § 29-1207(4)(f) to
exclude time from the speedy trial calculation, the court must
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Cite as 31 Neb. App. 779make specific findings as to the good cause which resulted
in the delay. State v. Moody, supra. An appellate court will
give deference to such factual findings unless they are clearly
erroneous. Id.The record in this case is thin. The district court found good
cause for a continuance of the October 18, 2021, trial date,
based on the court’s having another criminal jury trial with pri-
ority over Rashad’s case that lasted well beyond the scheduled
October 18 trial date. The court also considered its own docket,
as well as the schedules of both the State and defense counsel,
in determining that the next available date for the jury trial
was not until February 2022. The court specifically noted that
it already had a specially set 2-week criminal jury trial sched-
uled in November 2021. The court found that based on its own
schedule, as well as the attorneys’ schedules, the case should
be set on the first day it could be scheduled as the primary case
for trial, that being February 14, 2022.
Though there was no formal stipulation, based upon our
reading of the record, both the State and defense counsel
agreed to the fact that the court was overseeing a different
criminal trial at the time Rashad’s trial was set to begin. At
the October 26, 2021, scheduling hearing, Rashad’s counsel
acknowledged that
the Court did inform us — I do agree with him that the
Court informed us that the Court did not have the avail-
ability to try our case last week because the Court had
already started a trial, I believe on the 13th, the Wednesday
before, and still remains in that trial right now.
We give deference to the finding that the district court was
still presiding over another trial on October 18, 2021, when
Rashad’s trial was originally scheduled. Based on the acknowl-
edgment from both parties, we cannot find that this factual
finding is clearly erroneous. As such, we find that there was
good cause for the district court to continue Rashad’s trial from
October 18.
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Cite as 31 Neb. App. 779We now turn to the rescheduling of Rashad’s jury trial to
February 2022. After discussions with both parties, the district
court rescheduled Rashad’s trial to begin on February 14, 2022.
Rashad argues that the State did not sufficiently demonstrate
that there was good cause to continue the jury trial beyond
November 12, 2021, the expiration of his speedy trial calcula-
tion. The State counters that the February 14, 2022, date was
part of the court’s good cause finding and that the only timing
requirement delineated within § 29-1207(4)(f) is that the good
cause existed at the time of the delay.
Within the district, the court presiding over Rashad’s case
was assigned to the “B panel,” meaning that the court’s jury
trials were to take place during the last 2 weeks of every
month. Even if the court had been available in November
2021, it is most likely that Rashad’s trial still would have
been scheduled outside of the speedy trial deadline. Assuming
without deciding that the State would have to make a separate
offer of proof of good cause to take Rashad beyond his origi-
nal speedy trial date, we hold that good cause was present in
this case. As discussed in more detail below, the court made a
determination that good cause was present due to the unavail-
ability of the court, as well as counsel for both parties. After
much discussion, it was determined that February 14, 2022,
was the earliest available date for all parties involved. We find
that based on the court’s schedule only, good cause existed at
the time the continuance was granted to continue trial beyond
the November speedy trial deadline.
[11,12] We pause here to discuss the difference between
a statutory and constitutional right to a speedy trial. The
Supreme Court recently discussed this difference in State v.
Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022), hold-
ing that unlike statutory speedy trial determinations, con-
stitutional speedy trial determinations are not immediately
appealable. First, the court noted that it has long been acknowl-
edged that the constitutional right to a speedy trial and the
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Cite as 31 Neb. App. 779statutory implementation of that right exist independently of
each other. Id. The court then continued its analysis, saying,
Moreover, those independent rights are subject to very
different modes of analysis, with the statutory speedy
trial right analyzed as essentially a math problem with no
requirement of prejudice, see State v. Gnanaprakasam,
[310 Neb.] 519, 967 N.W.2d 89 (2021), while the ques-
tion of whether the constitutional right has been violated
is determined through the application of a multifactor
balancing test in which prejudice to the defendant is one
of the factors, see State v. Brown, [310 Neb.] 224, 964
N.W.2d 682 (2021). We recognize that we have said that
the statutory speedy trial deadline “provides a useful stan-
dard for assessing” one of the factors in that multifactor
balancing test.
State v. Abernathy, 310 Neb. at 894, 969 N.W.2d at 881.
Determining whether a defendant’s constitutional right to a
speedy trial has been violated requires a case-by-case analysis
of the applicability of several factors, including the length of
and reason for the delay. See State v. Brooks, 285 Neb. 640,
828 N.W.2d 496 (2013). In contrast, analyzing a defendant’s
statutory speedy trial rights is a relatively simple mathemati-
cal computation of whether the 6-month speedy trial clock, as
extended by statutorily excludable periods, has expired prior to
the commencement of trial. State v. Lintz, 298 Neb. 103, 902
N.W.2d 683 (2017). However, when ruling on a motion to dis-
charge, the court is required to make specific findings regard-
ing the statutorily excludable periods. Id.Given this difference, we will not consider prejudice to
Rashad, length of the continuance, or reason for delay in our
statutory analysis. Instead, we limit our review to whether the
court clearly erred in making specific findings of good cause
for Rashad’s case to be continued to February 14, 2022.
The district court’s finding of good cause was based first
on the fact that the court was in trial and second on the
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Cite as 31 Neb. App. 779availability of the court and the parties. Again, we look to the
record from the October 26, 2021, hearing that was admitted
into evidence. Defense counsel indicated he was available for
trial in November, but the State indicated that its first avail-
ability was in February 2022. Rashad’s counsel pointed out
that he was concerned that February was “going out rather far.”
However, the court already had a trial scheduled in November
2021 that took priority over Rashad’s case. Rashad’s counsel
also indicated that he was scheduled for a 2-week homicide
trial in January 2022 in another court. There was no discus-
sion about December. Given the multiple conflicts present, the
court chose to avoid future continuances by setting the trial for
February 14, 2022, a date when Rashad’s trial would receive
top priority. After reviewing the whole record, we cannot say
that the court’s finding was clearly erroneous.
In State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308(2003), this court concluded that oral statements made by
the prosecutor could serve as the factual basis for a motion
to continue. In reaching this conclusion, we emphasized that
both parties were present and represented by counsel and
that defense counsel did not question the procedure used. Id.We further reasoned that even though the prosecutor was not
under oath at the time, he was speaking of facts within his
knowledge, and that it would have been simple for either party
to request that the judge swear the prosecutor. Id. Here, simi-
larly, the court relied on the oral statements of the prosecutor
and defense attorney as they related to scheduling. Defense
counsel was present for this discussion and did not question
the process or the facts at the time of this discussion. Though
the evidence presented was thin, the court reasonably relied
on the statements and knowledge of the prosecutor in making
its findings. In the written order overruling the motion to dis-
charge, the district court made the requisite specific findings
of good cause due to the schedules of the court and both par-
ties. Because specific good cause was found for the October
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Cite as 31 Neb. App. 7792021 continuance, we affirm the district court’s order overrul-
ing Rashad’s motion for discharge.
CONCLUSION
We find that the district court did not err in finding that
good cause existed to continue Rashad’s case. We therefore
affirm the district court’s order denying Rashad’s motion
for discharge.
Affirmed.
Welch, Judge, dissenting.
I respectfully dissent from the majority’s conclusion that
Rashad’s statutory speedy trial rights were not violated on this
record. The critical dates governing Rashad’s claim for dis-
charge are not in dispute. The information was filed by the
State on April 12, 2021, and after adding 31 days for delays
attributable to Rashad, the revised speedy trial deadline was
November 12. Mindful of that deadline, the trial court sched-
uled Rashad’s trial for October 18. The trial did not take place
on that date for reasons first explained during a hearing held
on October 26. At that hearing, the State made an oral motion
for continuance. No exhibits were offered or received at that
hearing. Instead, the State orally indicated that the court com-
municated with counsel prior to the date of the scheduled
trial that it was unavailable because the court was in another
jury trial. Although both counsel acknowledged the court’s
communication, neither counsel nor the district court judge
provided any detail as to why the other trial took precedence
over this one. Instead, the court simply granted the State’s
oral motion to continue and commenced a discussion gov-
erning a rescheduling of the trial. Defense counsel made the
court aware of the November speedy trial deadline, objected
to the continuance, and requested that the trial be set in
November. The court indicated that it had another trial set in
November and eventually set the trial in February 2022 due
to the court’s and the State’s conflicts in November 2021
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Cite as 31 Neb. App. 779and both counsel’s conflicts in January 2022, without discus-
sion concerning December 2021.
During the motion for discharge hearing, the State offered
the transcript from the October 26, 2021, hearing on the motion
to continue and defense counsel offered an email exchange
between counsel and the court bailiff on scheduling. The only
clarity provided by those emails was that the first written com-
munication about the court’s notice of the conflict took place
on September 27, where counsel for the State sought a hearing
date to present a motion governing the continuance of the trial.
None of the evidence offered and received provided any indi-
cation as to what that trial was, when it was scheduled, why
the other trial took precedence over Rashad’s trial, or why the
trial could not have been held before the speedy trial deadline.
In fact, the only additional information governing the nature of
the conflict came from the court’s order denying the motion for
discharge, where the court indicated the following:
On September 27, 2021, the Court notified counsel for the
parties that the Court had a homicide trial scheduled for
October 13, 2021[,] that was anticipated to go through the
week of October 18, 2021, which would make the Court
unavailable to start [Rashad’s] trial on October 18, 2021.
As a result of this notification, the State then requested a
hearing so that [Rashad’s] October 18, 2021[,] trial could
be continued.
As the Nebraska Supreme Court stated in State v. Sommer,
273 Neb. 587, 591, 731 N.W.2d 566, 570 (2007):
We have stated that docket congestion can be a “good
cause” for delay in speedy trial calculations. In State v.
Alvarez, [189 Neb. 281, 202 N.W.2d 604 (1972),] we
found that the Legislature intended to include docket
congestion in excusable delays and to exclude peri-
ods attributable thereto from the statutory 6-month
period. We have also held that the substantial preponder-
ance of the evidence must support a court’s finding of
good cause.
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Cite as 31 Neb. App. 779More specifically, in examining the speedy trial statute in
State v. Alvarez, 189 Neb. 281, 290, 202 N.W.2d 604, 610
(1972), as it relates to good cause in connection with docket
congestion, the Nebraska Supreme Court explained:
Most delays in civil cases are attributable to the parties
themselves. More often than not the defendant in a crimi-
nal case is not anxious for a speedy trial. The Legislature
has recognized by enactment of the statutes in question
the social desirability for a variety of reasons of bring-
ing the accused to trial at an early date. The mandate of
the statute must therefore be followed and such things as
improper or inefficient docket management, scheduling
of trials, or failure to use available procedures such as
obtaining an available judge from another district cannot
be deemed “good cause.”
In State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000), the
Nebraska Supreme Court reversed, and remanded with instruc-
tions to discharge the defendant for a violation of the speedy
trial statutes due to the State’s failure to offer into evidence
anything to substantiate the difficulties the court was having
with scheduling, relying solely on statements made during
the hearing by the court. But see State v. Roundtree, 11 Neb.
App. 628, 658 N.W.2d 308 (2003) (court concluded that oral
statements made by prosecutor could serve as factual basis for
motion to continue).
Following a hearing on Rashad’s motion for discharge, the
court found as follows:
“The Court, based upon the record that has been made
regarding the continuances and the Court being in trial
and the availability of both counsel, the Court is going
to make a good cause finding that this trial that was
scheduled for October 18, 2021, should be and hereby is
continued. And the trial setting that the Court has avail-
able, based upon the Court’s trial calendar, where you
would be the primary case and first up, would be on
Monday, February 14th, 2022. And this matter will be
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Cite as 31 Neb. App. 779set for trial on Monday, February 14, 2022[,] at 9:00
a.m.” . . .
. . . Thus, the Court . . . found that [Rashad] was to be
tried by November 12, 2021. That the Court was unavail-
able to try [Rashad’s] case due to the Court already
having a two[-]week jury trial scheduled. That the next
available time that the Court and counsel for the parties
were available for trial was February 14, 2022. Based
upon the circumstances, the Court finds that good cause
exists for the continuance of [Rashad’s] trial to February
14, 2022.
In State v. Brown, 310 Neb. 224, 234-36, 964 N.W.2d 682,
690-91 (2021), the Nebraska Supreme Court held:
A district 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. .
. . When a trial court’s sua sponte decision to delay trial
implicates statutory speedy trial rights, the exclusion of
the period attributable to such delay is governed by a
showing on the record of good cause as described by
§ 29-1207(4)(f). State v. Chase, [310 Neb.] 160, [964]
N.W.2d [254] (2021). We have recently explained 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. Id. The burden under § 29-1207(4)(f) is
simply that there be “good cause.” State v. Chase, supra.
In determining whether the trial court clearly erred in
finding good cause after a hearing on a motion for dis-
charge, we look not just to the evidence presented at the
hearing on the motion to discharge but to the whole of
the record. Id. 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.
State v. Chase, supra.
....
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Cite as 31 Neb. App. 779When a trial court relies on § 29-1207(4)(f) to exclude
time from the speedy trial calculation, we have said
that a general finding of “good cause” will not suffice.
State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (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.Assuming without deciding that the prosecution’s state-
ments at the continuance hearing held on October 26, 2021,
constituted a factual basis for the court’s consideration of the
State’s motion to continue the trial for good cause, I respect-
fully disagree that the contents of those oral statements or
the subsequent exhibits offered at the discharge hearing sup-
ported a good cause finding to continue the trial. Although
counsel for the State relied upon the court’s indication prior
to the commencement of either trial that the court canceled
Rashad’s trial due to another scheduled trial that was expected
to extend beyond October 18, there was no indication from
the court, counsel, or other evidence presented at the hearing
as to the nature of the other trial, when it was scheduled, why
that particular trial took precedence over Rashad’s trial, or
any substantive indication as to why Rashad’s trial could not
have been scheduled prior to the November 12 speedy trial
deadline. Based upon this minimal record, the court’s specific
findings were that good cause existed because of a previously
scheduled trial. We are to give deference to those findings
unless clearly erroneous. I give deference to the finding that
the other trial existed. The issue lies in there being no indica-
tion as to why that trial was scheduled ahead of Rashad’s trial
or why the trial could not have been otherwise accommodated.
Congestion can most certainly support a good cause basis for a
continuance. However, in my review of precedent on the sub-
ject, there must be some basis articulated within the record for
the reason for that congestion other than the simple indication
that prior to either trial commencing, another trial had been
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Cite as 31 Neb. App. 779scheduled that was expected to extend beyond the commence-
ment date of Rashad’s previously scheduled trial. The major-
ity acknowledges that the evidence offered in support of the
State’s motion to continue was thin. On this record, I conclude
it is too thin in relation to the State’s burden, and I respectfully
dissent from my colleagues.