State v. Abernathy
| Decision Date | 11 February 2022 |
| Docket Number | No. S-21-016.,S-21-016. |
| Citation | 310 Neb. 880,969 N.W.2d 871 |
| Parties | STATE of Nebraska, appellee, v. Kyle S. ABERNATHY, appellant. |
| Court | Nebraska Supreme Court |
April O'Loughlin, Assistant Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Papik, J. Kyle S. Abernathy appeals an order of the district court overruling his motion for absolute discharge, which asserted violations of his constitutional and statutory rights to a speedy trial. See, U.S. Const. amend VI ; Neb. Const. art. I, § 11 ; Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016). Abernathy primarily argues that the district court erred by finding that continuances of trial in response to the COVID-19 pandemic were for good cause. For reasons we will explain, we affirm in part, and in part dismiss.
On September 10, 2019, Abernathy was charged by information with one count of first degree sexual assault. He thereafter made several pretrial motions.
One of Abernathy's pretrial motions was an oral motion to continue the trial made on October 22, 2019. The district court granted the request that day and set trial for January 22, 2020. On January 14, the district court, on its own motion, continued the trial to March 18.
On March 17, 2020, the district court, again acting on its own motion, continued the trial previously scheduled for March 18 to May 20. In its order continuing the trial, the district court made a number of observations regarding the COVID-19 pandemic. It observed that the spread of COVID-19 had begun to impact a variety of societal and governmental functions in Nebraska; that the President of the United States and the Governor of Nebraska had issued emergency proclamations; that the Chief Justice of the Nebraska Supreme Court had ordered the courts to continue to function but "placed restrictions on individuals that may have been exposed to the virus"; that the U.S. District Court of Nebraska had continued jury trials for the month of March 2020 in an order noting that "the gathering of jurors may be seen as contrary to the advice being given by public health officials, and that these health concerns would likely interfere with the ability to select a jury and with the jury's deliberations"; that a "Douglas County judge" had continued a jury trial to allow those potential jurors to adapt to the closing of schools and daycare facilities; that the district court had consulted with the local health department and, while there was no recommendation that the trial be continued, was advised that the situation was changing rapidly and that the recommendation could change in a few days; and that after this communication with local health authorities, there had been "additional restrictions from various officials regarding public gatherings." Based on these reasons, the district court stated that there was "good cause" for the continuance under § 29-1207(4)(f). The district court also stated that it was "willing to address any speedy trial matters, including the findings of this order, upon the motion of a party with appropriate notice given."
On the same day it entered the order continuing the trial, the district court held a hearing on a motion in limine filed by the State. During the hearing, the district court explained its decision to continue the trial. It also stated that if the parties wished to raise any issues regarding the continuance or "speedy trial factors," they could file a motion. Abernathy's counsel responded that she would read the order of continuance and then "file whatever motion needs to be filed."
The district court continued the trial again on April 17, 2020. The district court's order of continuance stated, "Given the current public health emergency due to the COVID-19 disease, the Court is continuing or canceling all in-person hearings and trials." It found that "the safety and health of the participants is good cause for continuance." Trial was scheduled for July 7 through 24, with specific dates to be determined later.
At a pretrial conference on June 16, 2020, both defense counsel and the State agreed to a trial date of September 8, and the district court issued an order setting trial. On August 13, the district court ordered the case to be called for a jury trial on September 9.
On August 31, 2020, Abernathy filed a motion for absolute discharge. He asserted that he was entitled to discharge because the State had violated his statutory and constitutional rights to a speedy trial. The district court held a hearing on the motion on September 29. It took judicial notice of the entire court file, and the State introduced transcripts of certain hearings held in the case.
Later that same day, the State filed what it styled as a "Motion to Establish Good Cause." The motion requested that the district court find that the time between March 16 and September 8, 2020, was excluded for purposes of the statutory speedy trial calculations, because there was "good cause" for such delay under § 29-1207(4)(f).
A hearing was held on the State's motion. At the hearing, the State offered evidence, which included (1) a March 13, 2020, proclamation by the Governor of Nebraska declaring a state of emergency within the State of Nebraska due to COVID-19; (2) a press release from the Governor dated March 17, 2020, reminding Nebraskans about the new guidelines from the Centers for Disease Control and Prevention to limit gatherings to 10 people or less; (3) an order dated March 18, 2020, from the judicial district's presiding judge excusing jurors from service for the next 30 days because of the public health emergency caused by COVID-19; (4) an order extending the aforementioned order through May 31; (5) another order extending the aforementioned order through the end of June 2020 for the district court jury panel; and (6) the district court's sua sponte orders of continuance in this case. Attached to the presiding judge's initial order excusing jurors from jury service were affidavits from the Sarpy County jury commissioner and the clerks of the district courts of Sarpy County and Cass County stating that impaneling the required number of prospective jurors would violate public gathering limits set forth by the Centers for Disease Control and Prevention and other entities.
Abernathy objected to the State's offer of evidence, claiming that the district court lacked "jurisdiction to reopen the record." Abernathy argued that once he filed his motion for discharge, the district court could not receive evidence offered to support a finding of "good cause" under § 29-1207(4)(f). The district court took under advisement the question of whether it could receive the State's evidence for purposes of Abernathy's motion for discharge.
The district court ultimately overruled Abernathy's motion for discharge in a written order. The district court found that Abernathy's pretrial motions and request for a continuance resulted in 170 excluded days. The district court also found an additional period of excluded time between March 18 and July 1, 2020. The district court rejected Abernathy's argument that it lacked jurisdiction to consider the evidence the State offered regarding the COVID-19 pandemic and received it for purposes of the motion for discharge. It then relied on that evidence to find that it "was effectively precluded from holding jury trials" from the entry of the continuance on March 18 through July 1 and such delay was thus for "good cause" under § 29-1207(4)(f). Accounting for the number of excluded days, the district court found that the State had until December 18 to bring Abernathy to trial and that Abernathy was not entitled to discharge.
The district court also found no merit to Abernathy's argument that his constitutional speedy trial rights were violated.
Abernathy appealed.
Abernathy assigns several errors, but they can be consolidated and restated as two: (1) that the district court erred by finding his statutory speedy trial rights were not violated and (2) that the district court erred by finding that his constitutional speedy trial rights were not violated.
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. State v. Lovvorn , 303 Neb. 844, 932 N.W.2d 64 (2019).
A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides. Mutual of Omaha Bank v. Watson , 301 Neb. 833, 920 N.W.2d 284 (2018).
Abernathy contends that he was entitled to discharge because the State violated his statutory right to a speedy trial. The statutory right to a speedy trial is set forth in §§ 29-1207 and 29-1208. State v. Vela-Montes , 287 Neb. 679, 844 N.W.2d 286 (2014). 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. See Lovvorn, supra . Relevant to this appeal, § 29-1207(4)(f) provides that periods of delay not specifically enumerated in the statute may be excluded, "but only if the court finds that they are for good cause." 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. See Lovvorn, supra.
Abernathy's appeal is focused on the district court's determination that the period of time between March 18 and July 1, 2020, was a period of delay for good cause under §...
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...in Alvarez as described herein. For the foregoing reason, I respectfully dissent.1 Brief for appellant at 8.2 State v. Abernathy , 310 Neb. 880, 969 N.W.2d 871 (2022).3 State v. Chase , 310 Neb. 160, 964 N.W.2d 254 (2021).4 See Abernathy, supra note 2.5 Id.6 State v. Coomes , 309 Neb. 749, ......
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State v. Franklin
... ... pretrial order denying a motion for absolute discharge on ... constitutional speedy trial grounds does not affect a ... substantial right during a special proceeding and is not an ... immediately appealable final order. See State v ... Abernathy , 310 Neb. 880, 969 N.W.2d 871 (2022). A notice ... of appeal shall be filed within 30 days of entry of judgment, ... decree, or final order. See Neb. Rev. Stat. § 25-1912 ... (Cum. Supp. 2020) ... Notably, ... as previously mentioned, the district ... ...
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State v. Franklin
... ... pretrial order denying a motion for absolute discharge on ... constitutional speedy trial grounds does not affect a ... substantial right during a special proceeding and is not an ... immediately appealable final order. See State v ... Abernathy , 310 Neb. 880, 969 N.W.2d 871 (2022). A notice ... of appeal shall be filed within 30 days of entry of judgment, ... decree, or final order. See Neb. Rev. Stat. § 25-1912 ... (Cum. Supp. 2020) ... Notably, ... as previously mentioned, the district ... ...