State v. Fatica

• Court: Nebraska Supreme Court
• Writing for the Court: KRIVOSHA; SHANAHAN
• Citation: State v. Fatica, 214 Neb. 776, 336 N.W.2d 101 (Neb. 1983)
• Decision Date: 01 July 1983
• Docket Number: No. 82-614,82-614
• Parties: STATE of Nebraska, Appellee, v. Robert FATICA, Appellant.

Page 101

336 N.W.2d 101

214 Neb. 776

STATE of Nebraska, Appellee, v. Robert FATICA, Appellant.

No. 82-614.

Supreme Court of Nebraska.

July 1, 1983.

Syllabus by the Court

Speedy Trial: Depositions. The reasonable time used to obtain a deposition requested by a defendant in preparation for trial is excluded in computing the last day permissible for commencement of trial under Neb.Rev.Stat. § 29-1207(1) (Reissue 1979).

Berry, Anderson, Creager & Wittstruck, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Bernard L. Packett, Lincoln, for appellee.

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

SHANAHAN, Justice.

Robert Fatica was convicted of "Conspiracy to Commit Arson in the First Degree," Neb.Rev.Stat. §§ 28-202(1), 28-502(1) (Reissue 1979), and was sentenced to a term of 2 to 6 years in the Nebraska Penal and Correctional Complex. We affirm the judgment of the District Court.

The information charging Fatica was filed August 11, 1981, and alleged that Fatica with two others conspired to commit arson in the first degree, i.e., "to intentionally damage the building of the Nebraska Penitentiary trustee dormitory library ...." On August 13, 1981, Fatica was arraigned and trial was set for September 14. For some reason undisclosed by the record the trial set for September 14 was postponed. On October 26 Fatica filed a motion to take depositions, and the District Court authorized Fatica to obtain the depositions. The prospective deponents were later identified as James L. Kuticka and Michael Wittrock. Around December 9 the prosecutor visited with Fatica's attorney who indicated he still desired the depositions. Because the prosecuting attorney was on vacation from December 18 to January 4, 1982, depositions were not scheduled for that period. On January 4 the attorneys scheduled January 15 for the deposition of James L. Kuticka, a deputy state fire marshal. There was some "mixup," and Fatica's attorney canceled the Kuticka deposition scheduled for January 15. On January 18 the prosecutor tried unsuccessfully to schedule the depositions, and it was not until February 2 or 3 that the attorneys next scheduled the Kuticka deposition for February 12. That deposition was canceled by Fatica's attorney because a codefendant's attorney could not attend. From February 22 to March 3 the prosecutor was involved in another trial and was unavailable for depositions. At the prosecutor's request on March 20 the attorneys took Kuticka's deposition on March 25 at the public defender's office. Wittrock's deposition was taken March 26 at the office of Fatica's attorney. The following Monday, March 29, Fatica filed a motion to dismiss the information and claimed that he had been denied a speedy trial required by Neb.Rev.Stat. § 29-1207 (Reissue 1979). On March 29 the District Court overruled the motion to dismiss and set trial for May 3, 1982. In overruling Fatica's motion to dismiss, the trial judge found that the period involved in obtaining the depositions constituted "good cause" for the delay and excluded such time in computing the last day permissible for trial in compliance with § 29-1207. Fatica filed a motion for continuance on April 23. Trial was rescheduled and commenced on June 1. On June 10 the jury returned a verdict of guilty. The District Court overruled Fatica's motion for new trial and imposed sentence.

Fatica assigns only one error, namely, in determining the last day for trial to commence as required by § 29-1207, the District court improperly excluded the time used by Fatica to obtain depositions.

Section 29-1207, hereinafter called the "6-month rule," implements the practice and procedure assuring the constitutionally guaranteed speedy trial of a defendant and expedites the administration of criminal justice. The right to the "speedy trial" envisioned within Nebraska's "6-month rule," however, must coexist with the defendant's right to another constitutionally protected right, namely, the right to a fair trial. Contained within the concept of a fair trial is the defendant's opportunity to prepare a defense to the charge levied. Preparation of a defense often includes the discovery process afforded by Neb.Rev.Stat. §§ 29-1912 et seq. (Reissue 1979). Therefore, these statutes, § 29-1912 (discovery) and § 29-1207 ("6-month rule"), are neither mutually exclusive nor contradictory but, rather, allow a defendant the means to prepare a defense as well as to obtain a speedy trial. See Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

In the present case Fatica requested depositions of potential witnesses for the State. Throughout the protracted period prior to obtaining the depositions, Fatica expressed his need and desire for the depositions of Kuticka and Wittrock to prepare for trial. Although the State tried to schedule the depositions, Fatica for one reason or another caused postponement of the depositions. On March 29, while the reporter may have been transcribing the depositions requested by Fatica in October but obtained just the week before, Fatica was asking dismissal on account of delay in trial. The delay regarding the depositions was not attributable to any negligence or misconduct on the part of the State. As stated in 21A Am.Jur.2d Criminal Law § 659 (1981), delay attributable to acts, conduct, or condition of defendant: "An accused cannot generally take advantage of a delay in being brought to trial where he was responsible for the delay either by action or inaction."

The trial court ruled that the time involved in the discovery process initiated by Fatica constituted a delay "for good cause" under § 29-1207(4)(f), and, therefore the court excluded such time in...