State v. Coomes
| Citation | 962 N.W.2d 510,309 Neb. 749 |
| Decision Date | 23 July 2021 |
| Docket Number | No. S-20-720.,S-20-720. |
| Parties | STATE of Nebraska, appellee, v. Keith P. COOMES, appellant. |
| Court | Supreme Court of Nebraska |
Amy L. Patras, North Platte, and Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, Patras & Watson, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.
Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Stacy, J. Keith P. Coomes appeals from the district court's denial of his motion for absolute discharge. Among other things, Coomes argues the court impermissibly shifted the burden of proof during the hearing on his motion, and he argues the court erred in finding "good cause" under Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016) to exclude a period of time immediately following the appointment of replacement defense counsel. Although our speedy trial calculations differ somewhat from the trial court's calculations, we agree that Coomes’ statutory speedy trial rights were not violated and therefore affirm.
On August 9, 2018, the State filed an information in the district court for Dawes County, charging Coomes with assault in the first degree (a Class II felony) and assault in the third degree (a Class I misdemeanor). Coomes retained attorney Jon Worthman to represent him.
After several continuances agreed to by the defense, the matter came on for jury trial on September 12, 2019. The jury found Coomes not guilty on the third degree assault charge, but could not reach a unanimous verdict on the other charge. The court therefore accepted the jury's verdict on the third degree assault charge, and it declared a mistrial on the first degree assault charge. Later the same day, the court set the matter for a status hearing on October 22 to address whether the State would seek retrial on the charge of first degree assault.
At the status hearing on October 22, 2019, defense counsel appeared without Coomes and moved to continue the hearing, advising that Coomes had been seriously injured in a motorcycle accident and required surgery. The court granted the motion and continued the matter to December 10.
At the December 2019 hearing, defense counsel again appeared without Coomes and requested another continuance, representing that Coomes was still recovering and unable to leave his home. The continuance was granted and a status conference was set for January 7, 2020.
At the January 7, 2020, hearing, defense counsel again appeared without Coomes and moved to continue because his client "still [couldn't] travel." The court granted the motion and continued the matter for a pretrial hearing on January 17.
No one disputes that the period of delay from October 22, 2019, to January 17, 2020, was attributable to Coomes for purposes of the speedy trial calculation.
The pretrial hearing set for January 17, 2020, did not occur. Instead, the district court entered an order stating: The order did not provide a reason for the sua sponte removal of Coomes’ retained counsel, but in a later order, the court stated that Worthman had been arrested.1
At the status hearing on February 11, 2020, Coomes appeared without counsel. On the record, the court informed Coomes that Worthman was "no longer practicing" law and asked Coomes what he wanted to do about counsel moving forward. Coomes indicated he would like the court to consider appointing counsel in this case, as well as in an unrelated criminal case he had pending. After obtaining information on Coomes’ financial situation, the court stated:
Later that same day, the prosecutor and the public defender appeared before the court, and the public defender made an oral motion to withdraw based on a conflict of interest. The court granted the motion and appointed attorney Andrew Pope to represent Coomes.
At the status hearing on March 10, 2020, Coomes was present with his appointed counsel, Pope. The court asked Pope whether he had been able to review the file and "get caught up." Counsel replied, "I haven't, Your Honor." He explained, "I just today had a chance to speak with Mr. Coomes" and had just filed motions for discovery and for preparation of the transcript from the original trial. When asked by the court whether he would be ready for a pretrial hearing soon, Coomes’ counsel replied, "Once I get discovery and have a chance to go through that, which I don't think it would be too much of an issue, I could get things moving towards pretrial." With the agreement of the parties, the court set another status hearing for April 7, with the expectation that a pretrial date would be set at that hearing.
Our record shows the pretrial motions mentioned by Coomes’ counsel during the status hearing were filed on March 10, 2020, and a journal entry dated April 3, 2020, shows the motions were granted.
At the status hearing on April 7, 2020, Coomes appeared by telephone and his counsel appeared via video conference. The State moved to continue for another status hearing "a month down the road," explaining it had provided the requested discovery in the case to be retried, but had not yet provided the requested discovery in Coomes’ other pending criminal case. Coomes’ counsel responded, "Judge, that's fine with me," and the court continued the matter for another status hearing on May 12.
The status hearing on May 12, 2020, was held via video conference. Coomes did not appear for the hearing, and the court's attempts to reach Coomes using the number provided by defense counsel were unsuccessful. The hearing proceeded without objection, and defense counsel advised the court he had spoken with Coomes the day before the hearing and Coomes wanted to get the case "scheduled for retrial." The court set a pretrial hearing for June 9 and advised defense counsel that no change of plea would be accepted after the pretrial.
At the June 9, 2020, pretrial, all counsel were present and Coomes appeared via telephone. After discussing counsel's availability, the court proposed setting retrial for August 17 and 18 and using space at the local high school or college to allow for social distancing of the jury. After both counsel indicated they were available on those dates, the court asked Coomes directly, "Does that work for you Mr. Coomes?" Coomes replied, "Yes, it does." The court then set retrial for August 17 and 18.
On August 10, 2020, Coomes filed a motion for absolute discharge on statutory speedy trial grounds. One week later, the court held a hearing on the motion and the following colloquy occurred:
After hearing argument, the court took the matter under advisement. In an order entered September 28, 2020, the district court recited the applicable law, including that it was the State's burden to prove the applicability of any excludable periods under § 29-1207(4). The court then overruled Coomes’ motion for absolute discharge, reasoning:
Coomes timely appealed, and we moved this case to our docket on our own motion.
Coomes assigns five errors, which we consolidate and restate into three. He assigns the district court erred in (1) requiring him to produce his evidence in...
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State v. Space
... ... Exception ... overruled ... ... Freudenberg, J., dissenting ... I ... respectfully dissent from the majority opinion based upon the ... reasoning in my concurring opinions in State v ... Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021), and ... State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022) ... Through judicial construction, this court has improperly ... created a statutory speedy trial scheme that is unsupported ... by the language of the relevant statutes. The majority ... ...
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State v. Space, S-21-837.
...J., dissenting.I respectfully dissent from the majority opinion based upon the reasoning in my concurring opinions in State v. Coomes , 309 Neb. 749, 962 N.W.2d 510 (2021), and State v. Bixby , 311 Neb. 110, 971 N.W.2d 120 (2022). Through judicial construction, this court has improperly cre......
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State v. Webb
...210, 673 N.W.2d 208 (2004). See State v. Williams , 277 Neb. 133, 761 N.W.2d 514 (2009).12 Williams, supra note 11.13 State v. Coomes , 309 Neb. 749, 962 N.W.2d 510 (2021). See, Lovvorn, supra note 6 ; State v. Feldhacker , 267 Neb. 145, 672 N.W.2d 627 (2004).14 Jackson, supra note 1.15 Ash......
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State v. Brown
...in other contexts, which is that "good cause" means a substantial reason and one that affords a legal excuse. See State v. Coomes , 309 Neb. 749, 962 N.W.2d 510 (2021). We have also recognized that good cause is a factual question dealt with on a case-by-case basis. See id. A district court......