State v. Jennings
| Decision Date | 02 April 2021 |
| Docket Number | No. S-20-324.,S-20-324. |
| Citation | 957 N.W.2d 143,308 Neb. 835 |
| Parties | STATE of Nebraska, appellee, v. Douglas P. JENNINGS, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Mary M. Dvorak, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
In this appeal from the district court sitting as an appellate court, Douglas P. Jennings assigns error to the denial of his motion for absolute discharge. Jennings argues he was not tried within the statutory 6-month period under Neb. Rev. Stat. § 29-1207 (Reissue 2016), and he further argues the State failed to prove the delay was the result of any properly excluded period. The State's briefing offers no argument on the merits of Jennings’ speedy trial claim, and instead, it contends only that Jennings’ sole assignment of error is unreviewable. Because we find Jennings’ assignment of error is both reviewable and meritorious, we reverse the judgment of the district court and remand the cause with directions.
On August 17, 2018, the State filed a complaint in the county court for Douglas County, charging Jennings with the Class I misdemeanor of stalking, in violation of Neb. Rev. Stat. § 28-311.04 (Cum. Supp. 2020). The alleged victim was Jennings’ former girlfriend. Three days later, on August 20, the court issued a warrant for Jennings’ arrest.
More than 9 months later, on May 29, 2019, Jennings was arrested at his home in Omaha, Nebraska, as part of a misdemeanor warrant sweep conducted by the Omaha Police Department. At his arraignment the next day, Jennings entered a plea of not guilty, and the case was placed on the jury docket. Jennings was released on bond and ordered to appear on July 12 for a pretrial conference. Jennings appeared with counsel for the pretrial conference and moved to continue the matter. Thereafter, trial was continued several times on Jennings’ motions.
On August 30, 2019, Jennings filed a motion for absolute discharge on constitutional and statutory speedy trial grounds. His motion generally alleged the State's complaint was filed August 17, 2018, and by the time Jennings was arrested on the warrant, more than 9 months later, the 6-month speedy trial period under § 29-1207 had expired.
At the evidentiary hearing on Jennings’ motion, the State argued the period of delay between the filing of the complaint and Jennings’ arrest on the warrant was due solely to "the absence or the unavailability of the defendant" and thus was excludable under § 29-1207(4)(d). In opening remarks, the State advised it would call the officer who transported Jennings to jail to testify about "statements that [Jennings] made that would indicate that he was aware of the warrant and, in fact, had moved out of state in order ... to avoid that warrant."
The State called Sgt. Brent Kendall, who testified that while he was transporting Jennings to jail on May 29, 2019, Jennings made several statements. First, Jennings told Kendall that sometime in January 2019, a friend told him "he might be on [a] warrant list," so Jennings "checked for several weeks" but "wasn't sure if that was [a protection order] or if that was a warrant." Jennings said he wanted more information, so he emailed his former girlfriend, but Jennings did not "get into the details of the content of the email." Jennings did state, however, that he thought his former girlfriend " ‘dropped’ " the matter and it was "done."
Jennings also told Kendall that he traveled to Las Vegas, Nevada, "in the summer of 2018" and that when he returned to Omaha, he "found a note that he believed was from a process server." There was no evidence adduced about how long Jennings was in Las Vegas or about the content of the note Jennings found when he returned. On cross-examination, Kendall admitted that Jennings’ statements about finding a note from a process server suggested "there's some civil piece of paperwork that ... he needs to be served with."
Finally, Jennings told Kendall "he had spent approximately 10 months in Denver, Colorado," and was back in Omaha because "he had a storage unit with a classic car and some other property that he needed to tend to." On cross-examination, Kendall admitted he did not know when Jennings left for Colorado or whether he made trips back and forth between Denver and Omaha. Kendall also admitted that until the warrant sweep on May 29, 2019, he had not personally attempted to serve the warrant on Jennings. The State offered no evidence of prior attempts to serve Jennings’ warrant.
The county court overruled Jennings’ motion for discharge, reasoning:
[T]he statements from the defendant's mouth gives the trier of fact some pause.... [A]ccording to the officer [Jennings] spent 10 months in Denver. Whether he's trying to avoid it or not, it does show he was unavailable. Whether or not he believed it was a process server or he thought there was someone serving a warrant for a protection order or some other civil lawsuit rather than a criminal lawsuit, despite that, he was unavailable for, allegedly, at least a nine-month period between August of 2018 and May 2019. So, the [court] is going to deny your motion.
Jennings timely appealed the denial of his motion for absolute discharge, assigning the county court erred in finding the State had met its burden of proving an excludable period under § 29-1207(4). The district court affirmed.
Jennings now appeals from the district court's judgment. We moved the case to our docket on our own motion.
Because the phrasing of Jennings’ only assignment of error is an issue on appeal, we quote the assignment in full: "The county court erred in interpreting and applying the speedy trial statute, Neb. Rev. Stat. § 29-1207, in denying [Jennings’] motion to discharge, where the [S]tate failed to show that Jennings had notice of the pending charge or arrest warrant."
Generally, a 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.1
The State's appellate briefing does not address the merits of the lower courts’ speedy trial analysis or rulings. Instead, the State argues that Jennings’ sole assignment of error is unreviewable under our holding in State v. McGinn ,2 because the assignment refers to the county court's decision rather than the district court's judgment. We address the State's interpretation of McGinn as a threshold matter.
In McGinn , the defendant appealed his county court conviction for driving under the influence of alcohol. The district court, sitting as an intermediate appellate court, found the county court erred in admitting certain breath test results into evidence. But the district court ultimately affirmed the conviction, finding it was supported by other evidence in the record.3 On further appeal, the defendant assigned it was error for the district court to affirm the county court's conviction after finding the breath test was inadmissible. In response, the State argued the county court had correctly admitted the breath test. We understood this as an effort by the State to challenge the merits of the district court's determination that the county court erred in admitting the breath test.4 And since the State had not cross-appealed on that issue, we concluded it had not preserved the alleged error for appellate review, reasoning:
Post- McGinn , the State has regularly relied on language from that opinion to argue, in appeals from the district court sitting as an appellate court, that assignments of error which reference only the county court's ruling are unreviewable.6 Initially, the State's argument was viewed favorably in an unpublished opinion of the Nebraska Court of Appeals.7 But the State's interpretation of McGinn was expressly rejected by the Court of Appeals in the published opinion of State v. Keenan8 and in another unpublished opinion.9 We also reject the State's interpretation of McGinn .
The State contends that McGinn precludes appellate review whenever an assignment of error focuses on the county court's ruling rather than the district court's ruling. It supports this contention by pointing to language in McGinn stating that "the judgment of the district court vacates the judgment in the county court and thus only the district court's judgment is reviewable by this...
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