State v. Bolton, 44222
| Decision Date | 26 February 1982 |
| Docket Number | No. 44222,44222 |
| Citation | 210 Neb. 694,316 N.W.2d 619 |
| Parties | STATE of Nebraska, Appellee, v. Len Robert BOLTON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Speedy Trial. The primary burden is upon the State to bring the accused person to trial within the time provided by law, and if he is not brought to trial within that time, he is entitled to an absolute discharge from the offense alleged in the absence of an express waiver or waiver as provided by statute.
2. Criminal Law: Speedy Trial. The State has the burden of proving that one or more of the excluded periods of time under subsection (4) of Neb.Rev.Stat. § 29-1207 (Reissue 1979) is applicable if the defendant is not tried within 6 months of the commencement of the criminal action.
3. Trial: Mental Incompetence. The test of mental competency to stand trial is whether the defendant has capacity to understand the nature and object of the proceedings against him; to comprehend his own condition in reference to such proceedings; and to make a rational defense.
4. Trial: Mental Incompetence. If facts are brought to the attention of the court which raise a doubt as to the sanity of the defendant, the question of competency should be determined at that time. The question of competency to stand trial is one of fact to be determined by the court and the means employed in resolving the question are discretionary with the court.
5. Evidence: Appeal and Error. In determining the sufficiency of evidence necessary to sustain a conviction, it is not the province of the Nebraska Supreme Court to resolve conflicts in the evidence, pass on credibility of the witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
The defendant-appellant, Len Robert Bolton, appeals from his conviction of one count of assault in the first degree and one count of assault in the second degree. We affirm.
The criminal charges brought against the defendant originate from an unprovoked assault he committed on James Minard and injury inflicted on Police Officer Irl Carmean on September 9, 1979. Minard stated that he was walking in the vicinity of 16th and Wirt Streets in Omaha, when he "brushed" into the defendant who was walking in the other direction. Minard felt a sharp pain in his chest and found that he had been stabbed in the region below his collarbone. Only after the assault did Minard see the knife that defendant was carrying, and he sought aid at a nearby residence.
Omaha police officers responded to the assault call and found the defendant still in the vicinity. They observed that he was carrying a boning knife. Bolton refused to put down the knife and he resisted the efforts of the police to disarm him. He was verbally abusive and invited the police to kill him. During this time, Officer Irl Carmean was seriously injured by defendant with a facial cut which extended from near his left ear down through his mouth. Bolton escaped into a nearby house where he was ultimately subdued and arrested.
An information charging the defendant with the assaults upon Minard and Carmean was filed on October 12, 1979. A poverty affidavit was filed by the defendant on October 25, 1979, and the Douglas County public defender's office was appointed to represent him. The defendant was arraigned and pled not guilty to the charges.
The record indicates that Bolton did not cooperate with his appointed counsel in seeking a psychiatric evaluation, and on February 15, 1980, defense counsel had the District Court issue a capias for defendant's arrest. On February 27, 1980, the defendant's family independently, and without notice to the court, filed a petition with the Douglas County Board of Mental Health seeking to have Bolton committed as a mentally ill dangerous person. On February 27, 1980, the defendant was picked up upon the mental health board order. No action was ever taken on the court's capias. On March 14, 1980, Bolton was adjudged to be a mentally ill dangerous person by the Douglas County Board of Mental Health and was committed to the Douglas County Hospital for treatment. Bolton was diagnosed to suffer from an antisocial personality disorder, possibly paranoid schizophrenia, and was transferred to the Lincoln Regional Center on March 24, 1980.
On December 18, 1980, in response to an inquiry by the Douglas County attorney's office, the superintendent of the Lincoln Regional Center sent a report to the District Court informing the court of the defendant's mental status, which included a number of staff notes. The note dated April 29, 1980, included an evaluation by Dr. Willis, a psychologist, that Bolton was then competent to stand trial. Thereafter, the court ordered Bolton returned to Omaha and, on December 30, 1980, a hearing was held at which time the defendant made a motion for discharge on the ground he was not given a timely trial as required by Neb.Rev.Stat. §§ 29-1207 and 29-1208 (Reissue 1979). The court denied the motion and appointed two psychiatrists to examine the defendant. On February 4, 1981, the reports of the psychiatrists were stipulated into evidence and the court found the defendant competent to stand trial.
Following a bench trial on February 25, 1981, Bolton was convicted of one count of assault in the first degree and of one count of assault in the second degree. On April 1, 1981, the trial court sentenced defendant to a term of 7 to 15 years on the first degree assault charge and to a term of 5 years on the second degree assault charge, said terms to be served concurrently.
Defendant alleges that the trial court erred in denying his motion for discharge on the ground he was not timely tried, and erred in finding that the defendant was legally sane at the time of the assaults in question.
We have held that § 29-1207 requires that every person charged with a criminal offense be brought to trial within 6 months after the filing of the information. State v. Stewart, 195 Neb. 90, 236 N.W.2d 834 (1975). That statute provides in pertinent part:
....
We have also held the primary burden is upon the State to bring the accused person to trial within the time provided by law, and if he is not brought to trial within that time, he is entitled to an absolute discharge from the offense alleged in the absence of an express waiver or waiver as provided by statute. State...
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State v. Johnson
...which raise doubts as to the sanity of the defendant, the question of competency should be determined at that time. State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982). Section 29-1823 provides the district court with the authority to determine competency when such issue is raised, and the......
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State v. Lamb, 81-851
...a defense must be shown to exist at the time of the offense. State v. Newson, 183 Neb. 750, 164 N.W.2d 211 (1969). See State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982). Defendant argues that his mental functions were impaired because of his long history of alcohol abuse, and his relatio......
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State v. Coomes
...3; State v. Richter , 240 Neb. 223, 481 N.W.2d 200 (1992) ; State v. Beck , 212 Neb. 701, 325 N.W.2d 148 (1982) ; State v. Bolton , 210 Neb. 694, 316 N.W.2d 619 (1982), disapproved on other grounds, State v. Tamayo , 280 Neb. 836, 791 N.W.2d 152 (2010).26 § 29-1208.27 Hernandez , supra note......
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...the State to see that an accused is brought to trial within the time prescribed by the Nebraska speedy trial act. See, State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982); State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982). To avoid a defendant's absolute discharge from an offense charged,......