State v. Hayes

• Decision Date: 29 January 2002
• Docket Number: No. A-01-574.,A-01-574.
• Parties: STATE of Nebraska, Appellee, v. Vernon E. HAYES, Jr., Appellant.
• Court: Nebraska Court of Appeals

639 N.W.2d 418

10 Neb. App. 833

STATE of Nebraska, Appellee, v. Vernon E. HAYES, Jr., Appellant.

No. A-01-574.

Court of Appeals of Nebraska.

January 29, 2002.

Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger Brown, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, for appellee.

HANNON, SIEVERS, and MOORE, Judges.

SIEVERS, Judge.

Vernon E. Hayes, Jr., was charged with homicide by child abuse. He claims that judicial delay, a State's continuance, and an interlocutory appeal initiated by the State deprived him of his statutory and constitutional rights to a speedy trial. Hayes appeals from the order of the district court for Lancaster County which denied his motion to discharge on speedy trial grounds. We address the effect of the prosecution's interlocutory appeal of a trial court's order suppressing evidence on the speedy trial rights of a defendant, a matter of first impression.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 1998, Hayes was charged with homicide by child abuse, by an information filed in the district court for Lancaster County. He was arraigned on December 9, 1998, and his trial was set for February 22, 1999.

On January 7, 1999, Hayes filed motions to discover and to allow depositions. The court granted the motions. On March 26, Hayes filed a motion for a 60-day extension of time to take depositions. On April 1, in response to the motion, the court extended the deposition deadline to June 21, 20 days beyond Hayes' request. On June 8, 1999, Hayes filed a motion to suppress statements he had made during interrogation by the police. When the matter came on for hearing on August 9, the State requested a continuance because the particular prosecutor involved had been assigned to the case only 1 week before the hearing. The new prosecutor told the court that she needed the continuance because she had not had adequate time to prepare for the hearing and because an FBI agent, formerly with the Lincoln Police Department, had to be flown in to testify. The continuance was granted over Hayes' objection, and the court noted that it would determine later, if the need should arise, whether the time used by the State's continuance would be charged to the State. The hearing on Hayes' motion to suppress was continued to September 8. The hearing actually began on September 29, having been continued by the court from September 8. The judge's bailiff testified that the judge was unavailable on September 8 due to vacation. The bailiff testified that it would have been her practice to set the hearing for the next available date and that she "[p]robably" did so. However, the bailiff could not testify with absolute certainty that September 29 was in fact the next available date.

The evidence was not concluded on September 29, 1999, so the suppression hearing was scheduled to continue on October 14. But Hayes' counsel was ill, and the hearing was continued to November 19. The hearing was concluded on November 19. On May 9, 2000, the court sustained Hayes' motion to suppress.

The State appealed the court's decision to suppress Hayes' statements to a single judge of this court pursuant to Neb.Rev. Stat. § 29-824 (Cum.Supp.2000). See State v. Hayes, No. A-00-515, 2000 WL 1701666 (Neb.App. Nov.14, 2000) (not designated for permanent publication). The Honorable Everett O. Inbody affirmed the district court's judgment by an opinion released November 14, 2000. The mandate was issued on December 19. On December 21, the district court entered judgment on the mandate and allowed the State to endorse 19 additional witnesses.

On December 29, 2000, Hayes filed a motion to allow depositions of the new witnesses and a motion for change of venue. Hayes was also given leave at that time to reopen a previous rule 404 motion, see Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995), and the State was ordered to disclose any potential rule 404 evidence to Hayes. The motion to allow depositions was granted that day. The State made a motion on January 19, 2001, to endorse additional witnesses, and that motion was heard on January 22. The change of venue motion was also heard on January 22.

After disclosure from the State, the court determined that a rule 404 hearing was necessary with respect to three witnesses. A 2-day rule 404 hearing was scheduled for March 14, 2001, which continued on March 15, and ultimately was finished on March 22. The court ordered simultaneous written arguments to be submitted on April 6 and simultaneous written replies to be submitted on April 13. The judge's minutes indicate that an order was filed on the motion on May 15, but the order is not contained in the transcript.

On May 3, 2001, Hayes filed a motion to discharge on speedy trial grounds. The court denied Hayes' motion for change of venue on May 11. The motion to discharge was heard on May 8, and it was also denied on May 11. Hayes appeals.

II. ASSIGNMENT OF ERROR

Hayes claims that the district court erred in overruling his motion for absolute discharge on speedy trial grounds under the speedy trial act, Neb.Rev.Stat. §§ 29-1207 through 29-1209 (Reissue 1995), as well as under the Nebraska and U.S. Constitutions.

III. STANDARD OF REVIEW

As a general rule, the trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999); State v. Miller, 9 Neb. App. 617, 616 N.W.2d 75 (2000).

Constitutional interpretation and interpretation of a statute present questions of law. See, State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999); Father Flanagan's Boys Home v. Dept. of Soc. Servs., 255 Neb. 303, 583 N.W.2d 774 (1998). In connection with questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).

IV. ANALYSIS

1. STATUTORY SPEEDY TRIAL

The purpose of Nebraska's speedy trial act is protection of an accused from a criminal charge pending for an undue length of time. State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991).

Section 29-1207(1) and (2) provides that "[e]very person ... informed against... shall be brought to trial within six months" and that the "six-month period shall commence to run from the date ... the information [is] filed." However, Neb. Rev.Stat. § 29-1607 (Reissue 1995) provides that "[n]o information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor...."

The Nebraska Supreme Court held in State v. Boslau, supra, that these two statutes, read together, mandate that when an information is filed directly in the district court, the 6 month speedy trial clock begins to run when the district court finds probable cause at a preliminary hearing or when the defendant waives the preliminary hearing. State v. Thompson, 10 Neb.App. 69, 624 N.W.2d 657 (2001).

The information against Hayes was filed in the district court, but there is no indication in the record that a preliminary hearing ever took place. Nor is there a waiver of the preliminary hearing in our record. Therefore, we calculate the time in which to try Hayes from the date of the information, as did the district court. This is the date most favorable to Hayes.

Speedy trial time is calculated by excluding the date the information was filed, counting forward 6 months, backing up 1 day, and then adding the excludable time periods to that date. See, State v. Sumstine, supra; State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981); State v. Borland, 3 Neb.App. 758, 532 N.W.2d 338 (1995). The information against Hayes was filed on December 4, 1998, making May 4, 1999, the latest permissible trial date, before the addition of excludable time periods. Hayes filed his motion for discharge on May 3, 2001, some 30 months after the information was filed.

To avoid the defendant's absolute discharge from the offense charged, the State, by a preponderance of the evidence, must prove the existence of a period of time which is authorized to be excluded in computing the time for commencement of the defendant's trial in accordance with the speedy trial act. §§ 29-1207(4) and 29-1208; State v. Sumstine, supra. Section 29-1207(4)(a) provides that in computing the time for trial, we exclude "the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers and pleas in abatement and motions for a change of venue."

(a) State's Continuance While Hayes' Motion to Suppress Was Pending

The trial court excluded the entire period from June 8, 1999, the date on which Hayes filed his motion to suppress, until May 9, 2000, the date on which the trial court ruled on the motion. It did not, however, specifically discuss the continuance given to the State within that timeframe. Hayes therefore argues that "[t]he District Court did not specifically find good cause for the continuance requested by the State on August 9, 1999, as none existed, and the time from August 9, 1999, to September 29, 1999, should not be excluded in calculating speedy trial time." Brief for appellant at 18.

Section 29-1207(4)(a) specifically excludes "the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence." The trial court was not required to do a good cause analysis with respect to the continuance requested by the State on August 9, 1999, because it occurred within an already running excludable period occasioned by Hayes' motion to suppress. A time period absolutely excluded by § 29-1207(4)(a) does not implicate § 29-1207(4)(f) (delays not specifically enumerated within statute may be excluded only for good cause). See State v. Turner...