State v. Carrera

25 Neb.App. 650

911 N.W.2d 849

STATE of Nebraska, appellee,

v.Kim M. CARRERA, appellant.

No. A-17-098.

Court of Appeals of Nebraska.

Filed March 27, 2018

Joseph Kuehl, of Lefler, Kuehl & Burns, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Moore, Chief Judge, and Inbody and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

Kim M. Carrera appeals the Sarpy County District Court's order overruling her motion for absolute discharge, which alleged violations of her statutory and constitutional rights to a speedy trial. We affirm.

II. BACKGROUND

This case is somewhat complicated because there are three criminal charges involved. Two of the charges were initially filed as separate cases (Sarpy County District Court cases Nos. CR15-586 and CR15-631), but were dismissed. The 6-month speedy trial clock would have started to run on those two charges when filed, would have stopped when dismissed, and then would have restarted when refiled in the current case, which also has one new charge (Sarpy County District Court case No. CR15-851).

1. SARPY COUNTY DISTRICT COURT CASE NO . CR15-586

The State initially filed a criminal complaint in the county court for Sarpy County on August 31, 2015, charging Carrera with one count of second degree sexual assault of a protected individual, a Class IV felony, under Neb. Rev. Stat. § 28-322.04(2) and (4) (Reissue 2008). The complaint alleged that the victim was C.W. and that the incident occurred on August 27. (We note that Carrera's alleged offense occurred prior to August 30, 2015, the effective date of 2015 Neb. Laws, L.B. 605, which changed the classification of certain crimes and made certain amendments to Nebraska's sentencing laws.) On September 4, Carrera filed a waiver of preliminary hearing, and the case was bound over to district court on September 8.

On September 16, 2015, the State filed an information in the Sarpy County District Court charging Carrera with one count of second degree sexual assault of a protected individual, a Class IV felony, under § 28-322.04(2) and (4). The information alleged that the victim was C.W. and that the incident occurred on August 27.

Also on September 16, 2015, Carrera filed separate motions to take depositions and for discovery; the motion to take depositions included various witnesses, one of which was the alleged victim, C.W. Carrera's written motion for discovery was denied after a hearing on September 21; however, oral motions for discovery and to depose C.W. were granted (it is not clear whether the written motion to take depositions—which included individuals other than C.W.—was ever ruled on).

On October 26, 2015, Carrera filed separate motions to compel and to release property. These motions do not appear to have been resolved prior to the dismissal below.

On November 3, 2015, the State filed a motion to dismiss the case without prejudice. The district court filed its order of dismissal, without prejudice, on November 9.

2. SARPY COUNTY DISTRICT COURT CASE NO . CR15-631

On September 16, 2015, the State filed a "Direct Information" in the Sarpy County District Court charging Carrera with one count of child abuse, a Class IIIA felony, under Neb. Rev. Stat. § 28-707(1)(d) and (e) (Cum. Supp. 2014). The information alleged that the victim was C.W. and that the incident occurred on August 27. (Like Sarpy County District Court case No. CR15-586 summarized above, the date of this offense preceded the August 30, 2015, effective date of L.B. 605.)

On September 18, 2015, Carrera filed separate motions to take depositions and for discovery. These motions were not resolved prior to the dismissal below.

On September 21, 2015, upon motion by the State, the case was dismissed by the district court "due to it being a direct information"; the dismissal was without prejudice.

3. SARPY COUNTY DISTRICT COURT CASE NO . CR15-851— CASE ON APPEAL

After initially filing a criminal complaint and an amended criminal complaint in the county court for Sarpy County on October 27 and 28, 2015, the State filed a second amended criminal complaint on November 3, charging Carrera with the following: one count of tampering with physical evidence, a Class IV felony, under Neb. Rev. Stat. § 28-922 (Reissue 2016) (count I); one count of child abuse, a Class IIIA felony, under § 28-707(1)(d) and (e) (count II) (this is the same charge as was dismissed in Sarpy County District Court case No. CR15-631 above); and one count of second degree sexual abuse of a protected individual, a Class IV felony, under § 28-322.04(2) and (4) (count III) (this is the same charge as was dismissed in Sarpy County District Court case No. CR15-586 above). The State alleged that the victim was C.W. and that the incidents occurred between August 1 and 28 (all preceding the L.B. 605 effective date of August 30, 2015). On December 1, Carrera waived her right to a preliminary hearing and the case was bound over to district court.

On December 10, 2015, the State filed an information in the Sarpy County District Court charging Carrera with each count as described above. The information alleged that C.W. was the victim in counts II and III and, as amended on December 14, alleged that the incidents giving rise to all three counts occurred between August 1 and 28.

On December 10, 2015, Carrera filed a motion for depositions, which was granted by the court on December 14. Also on December 14, the court filed an order setting the case for a jury trial on March 15, 2016.

On December 18, 2015, Carrera filed a motion for a bill of particulars. The motion was to be heard on December 28, but the court, on its own motion, continued the hearing to December 30. In an order filed on December 31, the court denied Carrera's request for a bill of particulars.

On January 12, 13, and 15, 2016, Carrera filed motions for depositions. All three motions for depositions were granted on January 25.

While the above motions for depositions were pending, Carrera filed two motions to suppress on January 20, 2016. One motion sought to suppress evidence obtained as a result of two searches of her home and/or her arrest, as well as any statements she made at the time of the incident, her arrest, or during the two searches. The other motion sought to suppress evidence obtained as a result of the search of C.W.'S telephone and residence; the State later objected to this motion based on Carrera's "lack of standing." The court set an evidentiary hearing for February 4.

On February 4, 2016, Carrera filed a motion to continue the hearing on her motion to suppress scheduled for that day. Carrera alleged that on February 3, the Honorable Max J. Kelch (the district court judge in Carrera's case) was appointed as a Nebraska Supreme Court justice; the parties and Judge Kelch's bailiff had a telephone conference wherein the parties were informed that the hearing would not take place as scheduled and that the matter would be heard by a visiting judge. During the telephone conference, "the [d]efense was asked to draw up" the motion to continue and defense counsel emphasized Carrera would not waive speedy trial and stood firm on her trial date set for March 15. On February 5, the district court (Judge Kelch) granted the motion to continue and ordered that the motions to suppress would be "set before Judge Zastera."

The trial docket case summary notes for February 9, 2016, state, "Case having been reassigned to the Honorable Wm. B. Zastera, Motion to Suppress now fixed for full hearing on April 28 ...." (Emphasis omitted.) But the summary notes for April 8 state that on the court's own motion, the "matter is now fixed for full hearing on the motion to suppress for April 22." And the summary notes for April 20 indicate that the "State's request for Continuance, over the vehement objection of [Carrera's] Counsel, is sustained. Matter now fixed for full hearing on Motion to Suppress on May 3 .... Hearing heretofore scheduled for April 22 ... cancelled." (Emphasis omitted.)

On April 27, 2016, Carrera filed a stipulated motion to unseal search warrants, which motion was signed by her attorney and the State. On May 2, the court ordered the search warrants unsealed for the purpose of evaluating Carrera's motion to suppress, "set for hearing on May 3." However, on May 3, the court, on its own motion, continued the motion to suppress hearing to May 10.

On May 10, 2016, the matter came before the court on Carrera's motion to suppress. However, at the start of the hearing, the State asked for a continuance and offered into evidence the affidavit of Det. James Munsey of the Bellevue Police Department, which affidavit stated he was unavailable for the hearing that day because he was appearing as a witness in another trial. The court asked the defense if they objected. Carrera's counsel responded, "I guess I wouldn't object to the affidavit being received by you. But then as long as the objection is noted by defense in terms of a continuance, that would be it from us." The court noted Carrera's objection, but found good cause for the continuance due to Detective Munsey appearing in another case. The matter was continued to June 17.

On June 17, 2016, the matter once again came before the court on the motion to suppress. However, Bellevue police officers Allison Evans and Roy Howell, two of the State's witnesses, were not available that day—Officer Evans was out of state on military leave until June 20 and Officer Howell was out of state on vacation until July 5. The State offered supporting affidavits regarding the officers' absences into evidence, and they were received without objection. The State intended to go forward without Officer Howell that day, but could not proceed without Officer Evans, who was the "primary contact officer." However, Carrera's counsel preferred to "have one day to do everything and not bifurcate it"; that was the court's preference as well. As a result, the matter was continued to August 2.

On July 28, 2016,...