State v. Moore

312 Neb. 263

978 N.W.2d 327

STATE of Nebraska, appellee,

v.Gregory MOORE, appellant.

No. S-21-755.

Supreme Court of Nebraska.

Filed August 19, 2022

Kelly S. Breen, Lincoln, of Nebraska Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.

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

Cassel, J.

INTRODUCTION

Gregory Moore appeals from the overruling of his motion for discharge based upon Nebraska's speedy trial statutes.¹ Moore contends the district court erred in excluding delay related to his competency proceedings in a different case and to his filing a motion to continue an arraignment. Because the court did not err in excluding delay due to Moore's incompetency to stand trial, we affirm.

BACKGROUND

INFORMATION AND PROCEDURAL HISTORY

This appeal originates from proceedings in the district court for Scotts Bluff County in case No. CR20-730. On December 16, 2020, the State filed an information charging Moore with second degree murder and use of a deadly weapon to commit a felony for events occurring on November 25. The information was filed on the same day that the same district court, in case No. CR20-249, an otherwise unrelated felony case, entered an order determining that Moore was incompetent to stand trial.

On December 17, 2020, Moore filed a motion to continue the arraignment set for the next day. The motion stated that within the next 2 weeks, Moore's counsel would file a written not guilty plea and waiver of appearance. The motion requested that the matter be set for a status hearing in February 2021.

On December 18, 2020, the court ordered that the written plea be filed within 2 weeks or Moore "shall appear for an arraignment on December 31." The court's order granting the continuance of the arraignment struck through proposed language stating "and defendant is ordered to appear on the ___ day of February, 2021 at ___ .m. for Status Hearing."

On December 23, 2020, Moore filed his written not guilty plea. He requested that the court schedule a status hearing within 60 days, but he did not send a proposed order for the court to sign. The court did not set a status hearing.

Nearly 6 months later, on June 15, 2021, the State moved for a status conference. The State attached to its motion a December 16, 2020, order in case No. CR20-249 which found Moore not competent to stand trial. According to the order, Moore was to be committed to the Lincoln Regional Center (LRC) for treatment to restore competency. The order further provided that the court would hold a review hearing to assess Moore's competency every 60 days until either the disability was removed or other disposition of Moore had been made. The court scheduled the status conference for a hearing on July 14.

At the beginning of the July 14, 2021, hearing, the court stated that it was holding status hearings in both cases Nos. CR20-249 and CR20-730. The court recited that Moore had been sent to the LRC for a determination of competency, that he had been evaluated, and that the court had received a July 1 report. According to the report, Moore remained incompetent to stand trial.

In case No. CR20-249, the court received as evidence the July 2021 report from the LRC. The court found that Moore was continuing to receive treatment at the LRC, noted the recommendation that Moore remain at the LRC "as he is still at this point not competent to stand trial," stated that it would continue to order his commitment to the LRC, and scheduled a review hearing for September 14.

Turning to case No. CR20-730, the State offered the same July 2021 report from the LRC. Moore's counsel lodged a relevancy objection, observing that competency proceedings had not been instituted in case No. CR20-730. According to Moore's counsel, Moore had maintained that he acted in self-defense at the time of the crimes charged in the instant case. Moore's counsel further stated that Moore understood the function of a trial and the duties of the judge, prosecutor, and jury. The court overruled the objection and received the report.

MOTION FOR DISCHARGE AND HEARING

Prior to the status hearing, on July 6, 2021, Moore filed a motion for discharge. In August, the court held an evidentiary hearing on the motion. Moore appeared by video from the LRC. The parties collectively offered six exhibits, which the court received.

One exhibit contained a certified copy of the file in case No. CR20-249. That exhibit showed that in April 2020, the State filed an information in Scotts Bluff County District Court charging Moore with terroristic threats, third degree assault, and use of a deadly weapon to commit a felony. Pursuant to Moore's suggestion of incompetency, the court ordered an evaluation and later set a competency hearing for December 15. The exhibit contained the court's December 16 order finding Moore incompetent to stand trial.

The court received into evidence a November 25, 2020, evaluation of Moore. The court had ordered the evaluation to address Moore's capacity to proceed to trial in case No. CR20-249. The evaluator opined:

Moore currently lacks the ability to understand the factual components of the legal proceedings, he does not presently maintain sufficient ability to apply that knowledge to his own case in a rational manner or meaningfully assist his attorney in his own defense as a result of his ongoing symptoms of mental illness.

(Emphasis in original.)

DISTRICT COURT'S ORDER

The court overruled Moore's motion for discharge. It excluded from the speedy trial calculation the time from December 17, 2020, through July 14, 2021, under § 29-1207(4)(b) and (f). The court stated that Moore requested a continuance but did not provide a written order approving the waiver, nor did Moore file anything asking that the waiver be approved. Thus, the court found that the delay resulted from "Moore's inaction to file the acceptance of waiver and/or failure to set a status hearing."

The court also excluded the time between December 17, 2020, through the date of its September 13, 2021, order under § 29-1207(4)(a) and (d). It determined that the State showed Moore was found to be incompetent to stand trial in case No. CR20-249. The court reasoned that because Moore had been found incompetent in that case, he could not "argue that he is competent to stand trial in this case." The court further stated that Moore's commitment to the LRC by the court's order in case No. CR20-249 made him "unavailable" in the instant case.

Moore filed a timely appeal. We granted the State's petition to bypass review by the Nebraska Court of Appeals.²

ASSIGNMENTS OF ERROR

Moore assigns, reordered, that the court erred in (1) "holding that the time delay herein was the result of other proceedings and unavailability of [Moore] caused by competency proceedings instituted in [case No. CR20-249]" and (2) "holding that the time delay herein was caused by [Moore's] filing of a motion to continue the arraignment set for December 18, 2020[,] and subsequently filing a written waiver of appearance and not guilty plea on December 23."

STANDARD OF REVIEW

Generally, 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.³

To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.⁴

ANALYSIS

SPEEDY TRIAL PRINCIPLES

The statutory right to a speedy trial is set forth in §§ 29-1207 and 29-1208.⁵ Under these statutes, criminal defendants must be brought to trial by a 6-month deadline, but certain periods of delay are excluded and thus can extend the deadline.⁶ If a defendant is not brought to trial by the 6-month speedy trial deadline, as extended by any excluded periods, he or she is entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.⁷

Periods excluded in computing the time for trial are identified in § 29-1207(4). When calculating the time for speedy trial purposes, the State bears the burden to show, by the greater weight of the evidence, that one or more of the excluded time periods under § 29-1207(4) are applicable.⁸ Pertinent to this appeal, the following periods are excludable:

(a) The period of delay resulting from other proceedings concerning the defendant, including, but not limited to, an examination and hearing on competency and the period during which he or she is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers and pleas in abatement, and motions for a change of venue; and the time consumed in the trial of other charges against the defendant;

(b) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his or her counsel. A defendant without counsel shall not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her right to a speedy trial and the effect of his or her consent. A defendant who has sought and obtained a continuance which is indefinite has an affirmative duty to end the continuance by giving notice of request for trial or the court can end the continuance by setting a trial date. When the court ends an indefinite continuance by setting a trial date, the excludable period resulting from the indefinite continuance ends on the date for which trial commences. A defendant is deemed to have waived his or her right to speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory six-month period;

....

(d) The period of delay

...