State v. Lee

• Decision Date: 17 February 1970
• Docket Number: No. 37345,37345
• Citation: 174 N.W.2d 344,185 Neb. 184
• Parties: STATE of Nebraska, Appellee, v. Edwin LEE, Appellant.
• Court: Nebraska Supreme Court

Page 344

174 N.W.2d 344

185 Neb. 184

STATE of Nebraska, Appellee, v. Edwin LEE, Appellant.

No. 37345.

Supreme Court of Nebraska.

Feb. 17, 1970.

Syllabus by the Court

1. The failure to bring a person charged with a criminal offense to trial, who has been held in jail pending trial, before the close of the second term of court following the filing of the charge is entitled to be discharged as a matter of right, pursuant to section 29--1202, R.R.S.1943, except where the delay is caused by the defendant.

2. Whether or not delay within the maximum limits fixed by the Legislature entitles the deffendant to a discharge, where the defendant has not contributed to the delay, is dependent on whether or not the time was fair and reasonable in the particular case.

3. What is a fair and reasonable time in each particular case is always in the discretion of the court. Except for an abuse of discretion, the order of the trial court denying a motion to discharge the defendant for unreasonable delay will not be disturbed on appeal.

4. The right of accused to discharge for failure to receive a speedy trial is a personal right which may be waived and it ordinarily is waived if accused fails to assert his right by making a demand for trial, or by failing to make some effort to secure a speedy trial.

5. Where there is no evidence of prejudice, or that the delay was caused by the prosecution, or that it was willful by court officials, or that a request or demand was made for a speedier trial by the defendant, the trial court does not abuse its discretion in denying a discharge.

Orville, L. Coady, Hebron, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

The defendant was charged in the district court for Thayer County with breaking and entering an automobile with intent to commit larceny and with breaking and entering a gasoline service station building on July 7, 1968, with intent to steal property of value, in separate counts of the same information. Defendant was found guilty by a jury on count two of the information on May 15, 1969. On May 29, 1969, defendant was sentenced to the Nebraska Penal and Correctional Complex for a period of 1 year at hard labor. The defendant has appealed, claiming that he was denied a speedy trial and that his motion for a discharge from custody made before and at the commencement of the trial should have been sustained. The foregoing presents the principal issue orally presented to this court.

The chronology of events from the date of defendant's arrest until the commencement of his trial in the district court is material to the issue raised. Defendant was arrested on July 7, 1968, and lodged in the Thayer County jail on July 8, 1968. On July 10, 1968, defendant appeared in county court and waived a preliminary hearing. His appearance bond was fixed at $1,500. On July 26, 1968, an information charging the offenses was filed in the district court. On August 2, 1968, defendant appeared in district court and requested court-appointed counsel. The county attorney objected to an appointment of counsel and the matter was continued to Autust 13, 1968, to permit the county attorney to reduce his objections to writing. On August 13, 1968, it was shown that defendant's parents were able to provide counsel but they declined to do so. The trial court thereupon refused to appoint counsel for defendant at state expense but did reduce his appearance bond to $1,000. On August 28, 1968, defendant was arraigned and he entered a plea of not guilty. Some indication was given that the trial would be had at the next jury term following the Bonebrake case as soon as the court could get to it, but not sooner than 3 weeks. Defendant for the first time filed a written application for the appointment of counsel and an affidavit in support thereof on February 6, 1969, in which he stated he had been held in jail continuously since July 7, 1968. At the regular call of the docket on February 19, 1969, the matter of the appointment of counsel for defendant was continued to March 7, 1969, at which time defendant's written application for the appointment of counsel was overruled but no trial date fixed. On April 2, 1969, counsel was appointed for defendant who promptly filed a motion to dismiss because of a denial of defendant's right to speedy trial. The motion was set for hearing on May 2, 1969, and the trial set to begin on May 15, 1969. The motion to dismiss was heard on May 6, 1969, and taken under advisement. Defendant's appearance bond was reduced to $500 and trial advanced to May 14, 1969. On May 13, 1969, the motion to dismiss was overruled. A motion to discharge defendant because of a denial of due process and the failure to appoint counsel prior to April 2, 1969, was filed the morning of the trial and it was overruled. Defendant again moved for a discharge for the failure of the State to afford due process and a speedy trial at the close of the State's evidence. The motion was overruled, the case submitted to the jury, and a verdict of guilty returned. An appearance bond was furnished on May 16, 1969. After the conviction and sentence of the defendant, cash in the sum of $500 in lieu of an appearance bond pending appeal was furnished.

The defendant was confined in the county jail from July 8, 1968, to May 16, 1969, a total of 313 days from the date of his arrest until an appearance bond was furnished. From his arrest until his arraignment in the district court on August 28, 1968, a period of 52 days, the case proceeded expeditiously and in the usual course. It is the period from his arraignment until his trial, a matter of 259 days, that affords the basis of the claim that defendant was not afforded a speedy trial as required by the Constitution.

This case was tried within the statutory limitation of two terms of court provided by statute in cases where the defendant is held in jail pending a trial on the offense charged. S. 29--1202, R.R.S.1943. No contention is made otherwise. Whether or not the defendant is entitled to be discharged for want of a speedy trial is therefore dependent upon all the facts and circumstances of the case. The prosecution at no time asked for any delay or contributed to any delay other than for time to file written objections to defendant's application for the appointment of an attorney at the state's expense on the ground that he was indigent which was granted and disposed of within 2 weeks. There no evidence in this record that defendant requested a more speedy trial although the defendant inquired of the court on August 28, 1968, when his case would come up for trial, to which inquiry the court replied that it could not be heard in less than 3 weeks but it would probably be in 4 or 5 weeks. The evidence is clear that the delay was not contributed to by either the prosecution or the defense.

On August 2, 1968, the defendant orally requested the appointment of counsel on the basis of indigency. No written motion was made nor was an affidavit of indigency filed. The county attorney made no objection to the form of the request, but objected solely on the ground that defendant was not indigent. We deem the form of the request to have been waived when the county attorney directed his objections to the question of indigency only. On the taking of evidence on August 13, 1968, the court evidently determined that defendant was not indigent for the reason that his parents were able to provide counsel for defendant's defense. Defendant testified on August 2, 1968, that he talked with his father who told him in effect that he got himself into the mess and that it was up to him to get himself out of it. The court, in denying the request, evidently concluded that indigency meant that defendant not alone was indigent but that any person to whom he is entitled to look for support must also be indigent. See, State v. Eberhardt, 179 Neb. 843, 140 N.W.2d 802; Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 A. 141; Ex Parte Mays, 152 Tex.Cr. 172, 212 S.W.2d 164.

On February 6, 1969, a written motion for the appointment of counsel at state expense was on file, accompanied by an affidavit of indigency. This was evidently done to comply with the conditions precedent to the appointment of counsel. There being no change of conditions, the motion was overruled on March 7, 1969. On April 2, 1969, the court in the interest of justice, as it stated, appointed counsel for the defendant. The matter of defendant's right to counsel involved the taking of evidence and a determination of the legal right thereto. Whether the court's conclusions were correct or erroneous, a matter which is unnecessary decide, is not material here except as they contributed to the delaying of the trial. Certainly time consumed in their determination is excluded time in determining the limitations of a speedy trial.

We take note of that fact that the trial judge in the instant case was a nonresident judge assigned by this court to hear the case because of the temporary disability of the local judge to hear the case. The record shows that from November 13, 1968, to April 14, 1969, nonresident district judges appeared and sat in the district court for Thayer County on 10 occasions. This is nothing more than an indication of the extent that the temporary disability of the local judge may have contributed to the delay of the trial in the instant case.

A defendant confined in jail pending his trial on criminal charges is entitled to be discharged solely because of lapse of time only when he is not tried before the end of the second term of court following the filing of the charge, pursuant to section 29--1202, R.R.S.1943. The foregoing statute supplements the constitutional guaranty of a speedy trial and fixes the maximum limits of time for trial where a...