State v. Kula
| Decision Date | 02 July 1998 |
| Docket Number | No. S-97-1059,S-97-1059 |
| Parties | STATE of Nebraska, Appellee, v. Edwin KULA, also known as Ed Kula, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.
2. Final Orders: Speedy Trial: Appeal and Error. Denial of a motion for absolute discharge based upon a violation of the accused's speedy trial rights is a final, appealable order.
3. Convictions: New Trial: Time: Appeal and Error. Under Neb.Rev.Stat. § 29-1207(1) and (3) (Reissue 1995), when a conviction is reversed on appeal and remanded for a new trial, the new trial must commence within 6 months from the mandate or remand, absent any excludable periods.
4. Constitutional Law: Statutes: Speedy Trial. An accused's right to a speedy trial as guaranteed by the Sixth Amendment to the U.S. Constitution and the statutory implementation of that right under Neb.Rev.Stat. § 29-1207 (Reissue 1995), exist independently of each other.
5. Constitutional Law: Speedy Trial: Presumptions. Determining whether an accused's constitutional right to a speedy trial has been violated requires consideration of four factors: (1) the length of delay, (2) the reason for the delay, (3) whether the defendant asserted his speedy trial rights, and (4) whether the defendant suffered possible prejudice. The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.
6. Constitutional Law: Trial: Convictions: New Trial: Time: Speedy Trial: Appeal and Error. When a criminal conviction is reversed because of trial error and remanded for new trial, the period between the defendant's arrest and first conviction should not be counted against the State in examining the delay incident to the second trial for purposes of speedy trial analysis under the Sixth Amendment to the U.S. Constitution, unless the trial error that necessitated the second trial occurred for the purpose of delay.
7. Double Jeopardy: Pleadings: Final Orders: Appeal and Error. A ruling denying a plea in bar on double jeopardy grounds is a final, appealable order because it is a special proceeding that affects a substantial right.
8. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
9. Constitutional Law: Double Jeopardy: Trial: Evidence: Convictions: New Trial. The Double Jeopardy Clause bars retrial when a conviction is reversed because the evidence was insufficient to sustain a verdict of guilty, but not when reversal is due to trial error.
10. Constitutional Law: Double Jeopardy. The double jeopardy clause of the Nebraska Constitution provides no greater protection than that of the U.S. Constitution.
11. Final Orders: Appeal and Error. The three types of final orders which may be reviewed on appeal under the provisions of Neb.Rev.Stat. § 25-1902 (Reissue 1995) are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.
12. Bail Bond: Habeas Corpus. The appropriate form of relief from denial of a motion to reduce bail claimed to be excessive is by habeas corpus.
Mark M. Sipple, of Sipple, Hansen, Emerson & Schumacher, Columbus, and Adam J. Sipple, Omaha, for appellant.
Charles W. Campbell and Vincent Valentino, Special Prosecutors, York, for appellee.
Following a jury trial in the district court for Platte County, Edwin Kula was convicted of first degree murder and use of a weapon to commit a felony in connection with the death of Jerry Carlson. On direct appeal, we reversed, and remanded for a new trial. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997). Following remand, Kula moved for dismissal of the charges based upon his contention that retrial would violate his right to a speedy trial. In addition, he filed a motion for leave to withdraw his not guilty plea and a plea in bar asserting that retrial would subject him to double jeopardy. Kula also moved for an order reducing the amount of his bond. He now appeals from orders of the district court denying each of these motions. We conclude that we lack jurisdiction to review the order of the district court with respect to Kula's bond. In all other respects, we affirm the judgment of the district court.
The facts and procedural history pertaining to Kula's first trial are summarized in detail in Kula, supra, and will not be repeated here except to the extent necessary to address the issues raised in this appeal.
On June 6, 1995, Kula was indicted on one count of first degree murder and one count of use of a firearm in the commission of a felony related to the shooting death of Carlson. Kula was convicted and, on direct appeal, we reversed, and remanded for a new trial based upon our determination that, because of repeated prejudicial discovery violations by the prosecution, the district court erred in not granting Kula's motion for a continuance during trial and his subsequent motion for a new trial. Our mandate in Kula, supra, was issued on May 21, 1997. On July 9, Kula filed (1) a motion to withdraw his plea of not guilty for purposes of entering a plea in bar; (2) a plea in bar, alleging that retrial would violate his constitutional guarantee against double jeopardy; and (3) a motion to dismiss, alleging that retrial would violate his statutory and constitutional rights to a speedy trial. On August 21, an evidentiary hearing was held. At the hearing, Lois Kula, Kula's sister-in-law, testified that prior to his incarceration, Kula was employed, lived with his wife and children, and owned certain personal possessions, but that while Kula was incarcerated, his wife filed for divorce, his son was removed from the home as a result of juvenile court proceedings, he lost his job and belongings, and he was worried and anxious about his children.
Restated, Kula contends in his assignments of error that the district court erred in (1) overruling his motion to dismiss on the grounds that his constitutional and statutory rights to a speedy trial had been violated, (2) denying his motion to withdraw his not guilty plea and thereby denying him the right to challenge his retrial on double jeopardy grounds, and (3) denying his motion for reduction of bond.
On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998); State v. Stubblefield, 249 Neb. 436, 543 N.W.2d 743 (1996); State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996).
Kula contends that the charges against him should be dismissed because he has been denied his constitutional and statutory rights to a speedy trial. The Sixth Amendment to the U.S. Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial...." In addition to the federal constitutional protections in this area, Nebraska has created a statutory speedy trial right, which generally provides that a person who has been indicted for a criminal offense must be brought to trial within 6 months of his indictment. Neb.Rev.Stat. § 29-1201 et seq. (Reissue 1995). Kula contends that because of prosecutorial misconduct, the time from the date of his arrest in June 1995 to the date of his motion to dismiss on July 9, 1997, should be considered in determining whether his speedy trial rights have been violated.
Initially, we address the State's contention that we lack jurisdiction to consider this issue because the denial of Kula's motion to dismiss was not a final, appealable order. In State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997), we held that the denial of a motion for absolute discharge based upon a violation of the accused's speedy trial rights was a final, appealable order. See, also, State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 1997). We are not persuaded by the State's argument that Gibbs was incorrectly decided and thus conclude that we have jurisdiction to determine whether the district court erred in denying Kula's motion to dismiss based upon an alleged denial of his right to a speedy trial.
Kula's statutory right to a speedy trial is defined by § 29-1207, which provides in part:
(1) Every person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided...
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