State v. Brown
| Decision Date | 24 September 2021 |
| Docket Number | No. S-20-812.,S-20-812. |
| Citation | 310 Neb. 224,964 N.W.2d 682 |
| Parties | STATE of Nebraska, appellee, v. Joshua J. BROWN, appellant. |
| Court | Nebraska Supreme Court |
Joseph D. Nigro, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Joshua J. Brown appeals the order of the district court for Lancaster County which overruled his motion for absolute discharge wherein he alleged violations of his constitutional and statutory rights to a speedy trial. Brown claims on appeal that the district court erred when, inter alia, it concluded that continuances ordered by the court in response to the COVID-19 pandemic were for good cause and therefore should be excluded from the calculation of the time for bringing him to trial. We affirm the district court's order which overruled Brown's motion for discharge.
On October 31, 2019, the State filed an information charging Brown with first degree assault, a Class II felony under Neb. Rev. Stat. § 28-308 (Reissue 2016). On November 19, Brown filed motions for discovery and to allow taking of depositions, and the court sustained the motions on December 10.
The court originally set the trial for its February 3, 2020, term. On January 29, the State filed a motion to continue the trial. At a hearing on the motion, the State explained that the reason for the request was that the State had recently learned the alleged victim had moved out of state and additional time was needed to arrange for her to be in Nebraska for the trial. Brown objected and stated that he was ready for trial. The court sustained the State's motion over Brown's objection and continued trial to the April 6 term.
Brown filed several pretrial motions on March 18, 2020, and requested a hearing to be held on March 23. However, Brown withdrew the motions on March 23 because, in an order filed that day, the district court continued the trial until the June 8 term.
In the March 23, 2020, order, the court stated as the reason for the continuance "current public safety concerns surrounding the COVID-19 pandemic." The court noted recent declarations regarding the pandemic by the World Health Organization, the Chief Justice of the Nebraska Supreme Court, the Governor of Nebraska, the President of the United States, and the mayor of the city of Lincoln. The court stated that the State of Nebraska, Lancaster County, and the city of Lincoln were or soon would be "experiencing a COVID-19 outbreak via community transmission." The court further noted that the Nebraska Department of Health and Human Services, in accordance with guidelines issued by the federal Centers for Disease Control and Prevention (CDC), advised that in order to mitigate spread of the illness, social gatherings of groups of 10 or more people should be avoided, social distancing of 6 feet should be practiced, and people should avoid congregating in enclosed spaces. The court stated that "[m]any people have chronic medical conditions that make them especially vulnerable to the severe consequences of COVID-19" and that "[a]ll efforts should be utilized to mitigate the exposure and spreading of the illness." Based on these concerns, the court found that pursuant to Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), "good cause" existed to continue the trial until the June 8 term, and it stated that "[t]he period of time between this order and [Brown's] next court appearance shall not count against the State of Nebraska in its duty to bring [Brown] to trial within six months of the filing of the Information." Brown filed an objection to the continuance on March 26, and he further objected to the court's finding of good cause and its determination that the time would not count against the statutory 6 months for bringing him to trial. See § 29-1207(1).
On May 13, 2020, the court set Brown's trial for June 8 and ordered Brown to appear for a pretrial conference on May 29. However, on May 29, the court entered an order continuing the trial until the August 3 term. The court again cited "current public safety concerns surrounding the COVID-19 pandemic" as the reason for the continuance.
In the May 29, 2020, order the court stated that it had "been carefully monitoring the ongoing local and national emergency occasioned by the worldwide COVID-19 pandemic," and it noted that Nebraska had recently "led the nation in percentage growth in newly confirmed cases of COVID-19." The court cited statements by the Lincoln/Lancaster County Health Department (Health Department) to the effect that the risk of spread of COVID-19 was high and that the trajectories of confirmed cases and of positive tests as a percentage of total tests were both trending upward. The court also noted that the Health Department cautioned that exposure to COVID-19 presented a substantial risk of death or serious long-term disabilities to the general population and an increased risk to vulnerable members of the population.
The court stated that it had been in frequent consultation with public health professionals to develop plans to return to normal operations, including jury trials, while maintaining public safety for building and court staff, litigants, attorneys, witnesses, and jurors. The court also noted directed health measures issued by the Health Department that were not binding on the court but that were persuasive and provided excellent guidance. The court noted that such measures continued to impose a 10-person limit on gatherings and a requirement of maintaining a 6-foot distance between persons gathering in groups of less than 10. The court stated that the health and safety of individuals in its courthouse was a "very high priority," and it concluded that conducting a jury trial at the current time and under the current circumstances would be inconsistent with directed health measures and would jeopardize the health and safety of individuals in the courtroom. As it had done when ordering a continuance on March 23, 2020, the court again found that pursuant to § 29-1207(4)(f), good cause existed to continue the trial until the August 3 term, and it stated that the period of delay would not count against the time to bring Brown to trial within 6 months.
On July 31, 2020, Brown filed a motion for absolute discharge on speedy trial grounds. Brown 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 constitutional right to a speedy trial under the federal and Nebraska Constitutions. In the motion, Brown stated that 6 months following the filing of the information was May 1, but he conceded that the time had been extended to May 27, based on the discovery motions and other pretrial motions he had filed. He stated that the time was extended 21 days for the discovery motions filed November 19, 2019, and sustained on December 10 and that the time was extended another 5 days for the pretrial motions he filed on March 18, 2020, and withdrew on March 23. However, Brown contended that no other delays were caused by him and that there was no good cause for delaying trial beyond May 27. He asserted that neither the continuance granted by the court on the State's motion to continue trial to April 6 nor the two orders on the court's own motion continuing the trial to June 8 and later to August 3 extended the time for bringing the case to trial. In regard to the continuances ordered on the court's own motion based on public health concerns related to the COVID-19 pandemic, Brown noted administrative orders issued by the Chief Justice of the Nebraska Supreme Court on April 6 and on June 30 which stated, inter alia, that courts would continue to remain open during the public health emergency declared as a result of the COVID-19 pandemic.
After an evidentiary hearing—the evidence which we describe in our analysis below—the district court, on November 9, 2020, overruled Brown's motion for discharge and ordered the case to be set for the next jury term. In its order, the court agreed with Brown's calculation that 6 months after October 31, 2019, was May 1, 2020, and that delays caused by Brown's discovery and pretrial motions extended the speedy trial time by 26 days to May 27. However, the court also found that the delay resulting from its March 23 and May 29 orders continuing trial based on public health concerns related to the COVID-19 pandemic should extend the time for trial pursuant to § 29-1207(4)(f), which requires exclusion for "[o]ther periods of delay not specifically enumerated in this section, but only if the court finds that they are for good cause."
The court reviewed the bases for its orders continuing the trial, including the declarations of various officials in March 2020 and the directed health measures and other guidance issued by the Health Department, the CDC, and the Nebraska Department of Health and Human Services. The court took judicial notice of general orders entered by the district court for Lancaster County during the relevant time periods. The court indicated that such general orders were entered after the Nebraska Supreme Court entered an administrative order that declared, inter alia, that courts " ‘shall devise and implement emergency preparedness plans to carry out mission essential functions.’ "
The court also stated the following:
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