State v. Moody

311 Neb. 143

970 N.W.2d 770

STATE of Nebraska, appellee,

v.David J. MOODY, appellant.

No. S-21-303.

Supreme Court of Nebraska.

Filed March 11, 2022

Thomas C. Riley, Omaha, Douglas County Public Defender, and Jessica C. West, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

David J. Moody appeals the order of the district court for Douglas County which overruled his motion for absolute discharge wherein he alleged violations of his statutory and constitutional rights to speedy trial. Moody claims on appeal that the district court erred when it found that the continuances that the district court ordered resulted from the COVID-19 pandemic and were for "good cause" and, as a consequence, should be excluded from the calculation of the time for bringing him to trial. He contends that good cause was not shown and also that the evidence fails to show why his case was continued when other criminal trials were being held in the court. As explained below, we affirm in part, and in part dismiss.

STATEMENT OF FACTS

On May 15, 2020, the State filed an information charging Moody with domestic violence assault in the third degree, second offense, and strangulation, both Class IIIA felonies under Neb. Rev. Stat. §§ 28-323(1) and (4) and 28-310.01(1) and (2) (Reissue 2016). Three continuances were ordered. Below, we briefly describe the continuance orders and thereafter describe each one in detail. The trial was originally set for November 9, but the district court held a rescheduling hearing on November 6, and on November 10, the court entered an order continuing the trial until January 20, 2021. Trial did not commence on January 20; instead, the court set a rescheduling hearing for that date, and Moody requested that the hearing be moved to January 25. On January 25, the court held the rescheduling hearing and announced that it would continue the trial until March 17. The order for the second continuance was filed on February 2. On March 16, the court held a rescheduling hearing on its own motion and, at that hearing, stated that it would continue trial until April 14. The order for the third continuance was filed on March 18. At each of the rescheduling hearings, the court received into evidence an affidavit of the court's bailiff in which the bailiff stated, inter alia, that the next available jury trial date to set Moody's trial was the date to which the court continued the trial. In each of the three orders continuing the trial, the district court made a finding that the period of delay resulting from the continuance should be excluded in calculating the time for trial for good cause shown pursuant to Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016).

In the first continuance order, announced on November 6, 2020, and filed on November 10, the court cited an October 21 order issued by the presiding judge of the district court for Douglas County which stated that because of reasons related to the COVID-19 pandemic and the district court's efforts to mitigate the effects of the pandemic, the number of criminal jury trials held during the November 2020 term would be limited to 24, and that all other criminal cases scheduled for that month should be continued "for good cause pursuant to Neb. Rev. Stat. Sec. 29-1207(4)(f)" to the next available trial date for the assigned judge. The next available date for the judge in this case was January 20, 2021, and the court ordered this case to be scheduled for that date "as back-up." The court attached the presiding judge's October 21 order to its order, and the presiding judge's order stated, inter alia, that holding additional trials at that time "would be impossible due to the ongoing social distancing restrictions for the public," because there was not "space available to accommodate any additional jury trials while at the same time maintaining social distancing restrictions."

In the second continuance order, announced on January 25, 2021, and filed on February 2, the court cited a December 11, 2020, order issued by the presiding judge of the district court for Douglas County which ordered that for reasons related to the COVID-19 pandemic, all criminal cases scheduled for the January and February 2021 terms be continued "for good cause pursuant to Neb. Rev. Stat. Sec. 29-1207(4)(f)" to the next available trial date for the assigned judge. The next available trial date for the judge assigned to this case was March 17, and the court ordered this case to be scheduled for that date "as back-up." The court attached the presiding judge's December 11, 2020, order, and it stated, inter alia, that there had been a "resurgence of the COVID-19 pandemic within Douglas County, Nebraska" that was "more severe ... than it has been since its inception" and that "jury trials during this spike in the COVID-19 pandemic pose a clear and present danger to the members of the public, participants in the judicial process, Douglas County Sheriff Deputies, law enforcement officers, attorneys, court staff, Judges, and all potential jurors."

In the third continuance order, announced March 16, 2021, and filed March 18, the court cited a January 29 order issued by the presiding judge of the district court for Douglas County which ordered that for reasons related to the COVID-19 pandemic, a limited number of criminal cases should be scheduled for the March 2021 term and that all other criminal cases should be continued "for good cause pursuant to Neb. Rev. Stat. Sec. 29-1207(4)(f)" to the next available trial date for the assigned judge. The next available trial date for the judge assigned to this case was April 14, and the court ordered that this case be scheduled for that date. The court attached the presiding judge's January 29 order, which referred to the district court's "inability to safely call and retain an adequate cross-section of jurors" and stated that as a consequence, "the backlog of criminal and civil cases requesting jury trials has increased." The presiding judge's order listed the specific criminal cases that would take place in the district court during the March 2021 panel, and Moody's case was listed as one of several cases that would be on "[b]ack-up" to the one case that was to be held by the judge assigned to Moody's case.

Moody filed a motion to discharge on speedy trial grounds on March 31, 2021. He asserted violations of his statutory right to trial within 6 months under § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016) and of his right to a speedy trial under the federal and Nebraska Constitutions. In the motion, Moody stated that excluding 1 day attributed to a discovery motion he filed, he should have been brought to trial on or before November 16, 2020. Moody contended that the delays related to the continuances ordered by the court should not have been excluded. He generally contended that some criminal trials were held during the period in which his case had been continued, and he asserted that the court set forth no reason why the trial of his case in particular could not be held when others were being held.

At a hearing on the motion to discharge, the district court received evidence offered by the State, including the affidavit of the bailiff for the trial judge in this case. The bailiff stated in the affidavit, inter alia, that there had been "several months where jury trials were not empaneled, because of the pandemic" and that when jury trials resumed in March 2021, each judge "was allotted one day for a criminal jury trial to be empaneled for that month." The bailiff also stated that on the date in March 2021 assigned to the judge in this case, a jury was empaneled for a criminal case that "had been bound over in the district court since March 7, 2019." The bailiff also stated that the judge's "next allotted jury trial date is April 14, 2021," and that Moody's case was "scheduled as the primary case that day." The evidence offered by the State also included several orders of the district court, including the three orders of continuance. The court also took judicial notice of the files in this case. Moody offered into evidence the affidavit of an attorney who represented a defendant in a criminal jury trial that took place in March 2021; the State objected based on relevance, and the court sustained the objection.

In an order filed April 9, 2021, the court overruled Moody's motion to discharge. The court first agreed with Moody's calculation that the 1-day delay caused by Moody's discovery motion extended the speedy trial time to November 16, 2020, and it stated that the parties agreed that the original trial date of November 9 was within the statutory speedy trial dead-line. However, the court also found that there were additional excludable periods based on its three orders continuing the trial: first, until January 20, 2021, then to March 17, and then to April 14.

The court noted that in each of those orders, it had found that the delays caused by the continuances were excludable for good cause pursuant to § 29-1207(4)(f). The court rejected Moody's argument that the continuances were not shown to be for good cause. Moody had contended that "there [was] not enough evidence to establish why his case was not called before others or why more efforts could not have been made to get his case to trial despite there being a global pandemic." The court found that the evidence presented by the State and the evidence it considered by judicial notice answered Moody's concerns regarding efforts to bring his case to trial and the reasons it could not be scheduled for trial. The court reviewed evidence, notably the affidavit of the court's bailiff and the orders of the presiding judge. The court found that the evidence showed that "it was not possible to take this particular case to trial between November 2020 and April 2021,...