State v. Brown

• Court: Nebraska Supreme Court
• Writing for the Court: KRIVOSHA; SHANAHAN
• Citation: State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (Neb. 1983)
• Decision Date: 17 June 1983
• Docket Number: No. 82-471,82-471
• Parties: STATE of Nebraska, Appellee, v. Dale A. BROWN, also known as Doobie Brown, Appellant.

Page 542

335 N.W.2d 542

214 Neb. 665

STATE of Nebraska, Appellee, v. Dale A. BROWN, also known as Doobie Brown, Appellant.

No. 82-471.

Supreme Court of Nebraska.

June 17, 1983.

Syllabus by the Court

1. Speedy Trial: Time. For computation of the time at which a defendant must be brought to trial in compliance with the "6-month rule" prescribed by Neb.Rev.Stat. § 29-1207 (Reissue 1979), the period pertaining to the final disposition of a pretrial motion for discovery is excluded in computing the date for trial.

2. Speedy Trial. An accused's constitutional right to a speedy trial is weighed in a "balancing test," according to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

3. Criminal Law: Pretrial Motions. Discovery in criminal cases, as authorized by Neb.Rev.Stat. §§ 29-1912 et seq. (Reissue 1979), is patterned on the Federal Rules of Criminal Procedure.

4. Criminal Law: Pretrial Motions. Upon a defendant's proper request through discovery procedure, the State must disclose information which is material to the preparation of a defense to the charge against the defendant.

5. Criminal Law: Pretrial Motions. Information obtainable by discovery procedure in criminal cases is material if the requested information may affect the outcome of the trial.

6. Criminal Law: Pretrial Motions. In order that the defendant receive a fair trial, requested and material information must be disclosed to the defendant.

Dennis R. Keefe, Lancaster County Public Defender, and Gerald L. Soucie, Deputy Public Defender, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Dale D. Brodkey, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

SHANAHAN, Justice.

Defendant, Dale A. Brown, was charged in the District Court for Lancaster County with robbery, found guilty by a jury, and sentenced to a term of 5 to 12 years in an institution under the jurisdiction of the Department of Correctional Services. We reverse and remand for a new trial.

In the early morning of April 25, 1981, Ellis Johnston unlocked and entered his trailer house near the Lincoln Gun Club. As Johnston walked down an unlighted hallway he was "hit in the head" and dropped to the floor. Johnston said he was beaten as he lay on the floor. Although he later lost consciousness, Johnston did recall two men in the darkened hallway at the time of the assault. When Johnston regained consciousness he discovered that a large sum of money was missing from his billfold, and he then called the Lincoln Police Department. After a preliminary investigation the police took Johnston to the hospital for medical attention for facial cuts, injury to his right hand, and a broken nose. Also, the police took photographs depicting Johnston's injuries. Johnston was not able to identify his assailants, and he gave the police inconsistent and vague descriptions of the assailants.

Dale Brown was charged with robbing Johnston and was arrested on June 24, 1981. The information charging Brown was filed in the District Court for Lancaster County on July 15, 1981, and on July 16 Brown filed a motion, pursuant to Neb.Rev.Stat. § 29-1912(1)(e) (Reissue 1979), seeking disclosure of "results and reports of physical or mental examinations, and of scientific tests." At arraignment on July 16 the court sustained Brown's motion for discovery. Brown filed an additional motion on July 16, i.e., to take the depositions of three witnesses named on the information. The court, on July 24, authorized those depositions of the prospective witnesses. On August 20 the State filed a "Response to Order for Discovery" and alleged that the State "knows of no results or reports of physical or mental examinations or scientific tests or experiments made in connection with this case." Brown was released on bond on September 1, 1981.

A third motion for discovery was filed by Brown on September 18. This motion was in four parts, namely: sought the written statements of those persons deposed pursuant to Brown's motion of July 16, asked for the description given to the police by Johnston regarding his assailants, inquired about plea agreements extended to any witnesses for the State, and demanded information regarding police informants who assisted in the surveillance of Brown while he was in jail. This motion lay dormant until October 26, when the existence of such motion was called to the attention of the trial judge during a meeting in chambers with counsel on other aspects of the proceedings. The judge ordered the State to provide Brown with Johnston's description of the assailants but took under advisement the three remaining parts of the motion. On October 26 Brown indicated readiness for trial, but the District Court allowed counsel 7 days to file briefs concerning those aspects of the motion which had been taken under advisement. Also, on October 26 the State supplied Brown with Johnston's description of his assailants. Possessing that description, Brown next filed a motion on November 20 to obtain the deposition of Officer Donald Wiles, a policeman to whom Johnston had described the assailants. By an order entered November 30 the court authorized the deposition of Wiles, which was taken on December 1. Brown never filed any brief concerning the parts of the motion which were taken under advisement, and that motion remained undisposed until December 28, when the court on its own overruled the balance of that motion which had been on file since September 18.

On February 18, 1982, Brown filed a motion to dismiss the proceedings, claiming denial of his right to a speedy trial and, further, claiming a right to dismissal of the proceedings because he had not been brought to trial within 6 months, as required by Neb.Rev.Stat. § 29-1207(1) (Reissue 1979). The motion to dismiss was heard on March 23, taken under advisement, and overruled on March 25. Trial commenced with the selection of a jury on March 29. On April 5 that jury returned a verdict of guilty. Brown filed two motions for new trial. In substance, the first motion for new trial claimed that Brown had been deprived of his right of speedy trial. The second motion alleged newly discovered evidence, inasmuch as Brown had learned from a presentence report that the police possessed information in April 1981 regarding the "results and reports" mentioned in Brown's motion for discovery filed on July 16, 1981. This information included an attempted hypnotic session involving Johnston, a telephonic conference between police and a psychologist who "advised" that the description of Johnston "would fit the description of a pathological liar," and a conference between an officer and a pathologist who expressed an opinion to the effect that Johnston's injuries were inflicted and sustained in a manner different from that described by Johnston. This second motion for new trial alleges that Brown was denied a fair trial because the State withheld information required to be disclosed under the Nebraska and U.S. Constitutions and under the discovery statutes concerning criminal cases.

Among Brown's assignments of error are: (1) The District Court's incorrect exclusion of certain time in determining the date by which Brown must have been brought to trial under the Nebraska "6-month rule"; (2) A denial of the constitutionally guaranteed right of speedy trial; and (3) A denial of a fair trial because the State failed to disclose material requested in a pretrial motion for discovery.

First, we consider whether Brown received a speedy trial in accordance with § 29-1207. Because the information against Brown was filed on July 15, 1981, the last day for commencement of trial was January 15, 1982, that is, assuming no time is excluded from such 6-month period pursuant to § 29-1207(4)(a). Cf. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).

All motions filed by Brown for discovery are pretrial motions, and, as such, "the time from filing until final disposition" must be excluded in computing the last day permissible for trial. There is nothing in the record indicating the nature of the information elicited from the deponents named on the information, but we surmise that Brown did use such information to prepare for trial or to formulate trial strategy. Consequently, the period of 9 days is excluded from computing the time for trial, namely, from the day Brown filed the motion on July 16 until the trial court authorized the depositions on July 24.

Further, when Brown obtained Johnston's description of his assailants in response to the motion of September 18, Brown embarked on additional discovery, namely, the deposition of Officer Donald Wiles, which the defense used at trial as an attack on Johnston's credibility and as an attempt to erode Johnston's description of his assailants. As matters developed at trial, identification of Brown as an assailant was based on circumstantial evidence. In the trial court's eyes, Brown's deposing Wiles on December 1, 1981, indicated that Brown was still relying upon his motion of September 18 to acquire further information in preparation for trial. Brown's reason for not pursuing the balance of the motion and any explanation for allowing that motion to lie dormant are matters of conjecture and questionable tactics. If Brown did not wish to pursue that motion, he should have immediately contacted the trial court and withdrawn the motion. Excluded from computing the time for trial is the period from filing the motion on September 18 until final disposition of such motion by the trial court by its own action on December 28, that is, 102 days.

Combining the two periods involving the motions for discovery, there are 111 days. Using the method set forth in State v. Jones, supra, and adding 111 days of exclusions, the last day for commencement of trial was May 6, 1982. Brown was brought to trial well within such 6-month limitation prescribed by §...