State v. Johnson

STATE OF NEBRASKA, APPELLEE, v. SCOTT A. JOHNSON, APPELLANT.

No. A-17-631.

NEBRASKA COURT OF APPEALS

May 8, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge. Affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

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

MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Following his conviction in the district court for Lancaster County for possession of methamphetamine, Scott A. Johnson appeals the denial of his motion to suppress and his motions for absolute discharge. Finding no error, we affirm.

II. BACKGROUND

This case arises out of a traffic stop of Johnson, which resulted in his arrest and conviction for possession of methamphetamine. This is the third time this case has come before us. See, State v. Johnson, 22 Neb. App. 747, 860 N.W.2d 222 (2015) (State v. Johnson I); State v. Johnson, No. A-15-1071, 2016 WL 3519924 (Neb. App. June 21, 2016) (selected for posting to court website) (State v. Johnson II).

1. CHARGES, MOTIONS TO SUPPRESS ANDDISCHARGE, AND FIRST APPEAL

As recited in State v. Johnson I:

On June 7, 2012, Johnson was charged by information with possession of a controlled substance [methamphetamine].

. . . .

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 overruling 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.

. . . .

On January 15, 2014, the district court entered an order overruling Johnson's motion for discharge.

22 Neb. App. at 749-50, 860 N.W.2d at 225-26.

Johnson appealed, and this court affirmed the district court's determination that Johnson's statutory right to speedy trial had not been violated. However, we determined that the court had not made the required findings with respect to Johnson's constitutional speedy trial claim, and we remanded for the court to consider the constitutional speedy trial issue. See State v. Johnson I, supra.

2. REMAND, SECOND MOTION TO DISCHARGE,AND SECOND APPEAL

Then, as recited in State v. Johnson II:

On remand, the district court issued an order finding Johnson had not been denied his constitutional right to a speedy trial. The order was dated April 17, 2015. Johnson did not appeal from the order on remand.

On May 28, 2015, Johnson filed a second motion for absolute discharge on both statutory and constitutional speedy trial grounds. Johnson's second motion for absolute discharge asserted the same time period violated his speedy trial rights as had his first motion for absolute discharge. The only difference between Johnson's first and second motions for absolute discharge was that the second motion alleged that the district court judge had informed Johnson's counsel, off the record, that she had forgotten to rule on Johnson's motion to suppress and that was the reason for the delay.

At a hearing on May 29, 2015, the district court judge who Johnson alleged had forgotten to rule on his motion recused herself. On July 29, 2015, a different judge determined that the entire judicial district should be recused from the case, and the case was reassigned to a judge from outside the district.

On September 15, 2015, Johnson filed a praecipe for witness subpoena for the judge who had initially presided over his case and who he alleged had forgotten to rule on his motion to suppress. After the subpoena was issued, the judge filed a motion to quash the subpoena. The judge asserted that she could not be compelled to testify as to the mental processes involved in her official acts as a judge.

The court held a hearing on the motion to quash the subpoena on October 16, 2015. On October 22, . . . the district court issued an order quashing the subpoena and overruling Johnson's motion for absolute discharge. In its order, the district court held that the issues presented in Johnson's second motion for absolute discharge 'ha[ve] been litigated and decided.' The court therefore dismissed Johnson's motion and quashed the subpoena for the judge who had presided over the motion to suppress.

Johnson appeal[ed] from the October 22, 2015, order denying his second motion for absolute discharge and quashing the subpoena.

2016 WL 3519924 at *1-2.

After determining that Johnson's second appeal concerned only the denial of his constitutional speedy trial claim and the quashing of the related subpoena, neither of which was a final, appealable order, we dismissed Johnson's second appeal for lack of jurisdiction. See id.

3. TRIAL, CONVICTION, AND SENTENCING

On February 3, 2017, a stipulated bench trial was held before the district court. Johnson renewed his previous motion to suppress and "motion for . . . a discharge . . . on the basis that his constitutional speedy trial rights have been violated and/or a motion for a discharge on the basis that the mandate wasn't followed correctly." The State offered copies of law enforcement incident reports and a Nebraska State Patrol crime laboratory report, which were received over Johnson's objections. The parties also stipulated that the deputy who initially stopped Johnson would testify consistently with the information contained in his reports, that the person testing the substance recovered from Johnson was qualified to do so and performed the testing consistently with the relevant testing protocol, and that all the events occurred in Lancaster County, Nebraska. The court advised Johnson of his right to choose whether to testify, and Johnson indicated his understanding and waived his right. The court took the matter under advisement and on March 8, found Johnson guilty of possession of methamphetamine. The court subsequently sentenced Johnson to 3 years' probation, and Johnson perfected the present appeal.

III. ASSIGNMENTS OF ERROR

Johnson asserts, restated, that the district court erred in (1) denying his motion to suppress and (2) denying both his December 2013 and his May 2015 motions for discharge on constitutional speedy trial grounds and quashing all subpoenas.

IV. STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Nunez,299 Neb. 340, 907 N.W.2d 913 (2018). Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination. State v. Nunez, supra.

The construction of a mandate issued by an appellate court presents a question of law on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

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).

V. ANALYSIS

1. MOTION TO SUPPRESS

(a) Evidence

At the suppression hearing, the State offered the testimony of Deputy Dennis Guthard of the Lancaster County Sheriff's Department. The record shows that on the evening of January 31, 2012, Guthard was monitoring traffic at the intersection of two gravel roads, Adams and 112th. Streets, in Lancaster County. After observing an eastbound pickup, which failed to stop at the stop sign at the intersection and did not use its turn signal before turning to go north, Guthard activated the overhead lights on his vehicle and initiated a traffic stop of the pickup. Guthard's vehicle was equipped with video and audio recording equipment, and a recording of the stop and Guthard's subsequent contact with the driver was received into evidence. Guthard made contact with the driver, whose driver's license identified him as Johnson. Johnson did not have vehicle registration or proof of insurance with him. Guthard was aware that these "were potentially jailable offenses," but he testified that he has never arrested anyone for failure to provide proof of insurance or vehicle registration.

Guthard described his initial observations of Johnson's demeanor. According to Guthard, Johnson was sweating, his forehead was wet, his hands were shaking, he was talkative, and he appeared nervous. Upon Guthard's inquiry, Johnson indicated that he was coming from "the Wal-Mart on 84th Street, north of Adams" and was driving to his girlfriend's house in Ashland. Guthard thought Johnson's response was "kind of strange" because Johnson did not appear to be traveling to Ashland by the most direct route. Guthard testified that "a very common way" to get to Ashland from that particular Wal-Mart would be to travel north on 84th Street to Highway 6, which are both paved roads, and then go east on Highway 6 to Ashland. Guthard questioned whether Johnson would have been able to reach Ashland via gravel roads from the location where Guthard stopped him. He agreed, however, that there is nothing illegal or inherently suspicious about driving on gravel roads.

Guthard inquired further about the reason for Johnson's route, and Johnson "rambled on a little bit and didn't really have a response." Johnson eventually responded that he "likes to take gravel roads." Based on Johnson's response and nervousness, Guthard was suspicious that "somethin...