State v. Moore
| Decision Date | 19 August 2022 |
| Docket Number | S-21-755 |
| Citation | 312 Neb. 263 |
| Parties | State of Nebraska, appellee, v. Gregory Moore, appellant. |
| Court | Nebraska Supreme Court |
1. Judgments: Speedy Trial: Appeal and Error. 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.
2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.
3. Speedy Trial. The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
4.__ . Periods excluded in computing the time for trial are identified in Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
5.__. When calculating the time for speedy trial purposes, the State bears the burden to show, by the greater weight of the evidence, that one or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable.
6.__. Nothing in the text of Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 2016) requires that the "other proceedings concerning the defendant" occur in the case in which the defendant alleges a statutory speedy trial violation.
7.__. Broadly construed, Neb. Rev. Stat. § 29-1207(4)(a) (Reissue 2016) applies to proceedings in the pending case as well as to proceedings in other pending cases.
8. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed.
Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik and Freudenberg, JJ.
Gregory Moore appeals from the overruling of his motion for discharge based upon Nebraska's speedy trial statutes.[1]Moore contends the district court erred in excluding delay related to his competency proceedings in a different case and to his filing a motion to continue an arraignment. Because the court did not err in excluding delay due to Moore's incompetency to stand trial, we affirm.
Information and Procedural History This appeal originates from proceedings in the district court for Scotts Bluff County in case No. CR20-730. On December 16, 2020, the State filed an information charging Moore with second degree murder and use of a deadly weapon to commit a felony for events occurring on November 25. The information was filed on the same day that the same district court, in case No. CR20-249, an otherwise unrelated felony case, entered an order determining that Moore was incompetent to stand trial.
On December 17, 2020, Moore filed a motion to continue the arraignment set for the next day. The motion stated that within the next 2 weeks, Moore's counsel would file a written not guilty plea and waiver of appearance. The motion requested that the matter be set for a status hearing in February 2021.
On December 18, 2020, the court ordered that the written plea be filed within 2 weeks or Moore "shall appear for an arraignment on December 31." The court's order granting the continuance of the arraignment struck through proposed language stating "and defendant is ordered to appear on the__ day of February, 2021 at__ _.m. for Status Hearing."
On December 23, 2020, Moore filed his written not guilty plea. He requested that the court schedule a status hearing within 60 days, but he did not send a proposed order for the court to sign. The court did not set a status hearing.
Nearly 6 months later, on June 15, 2021, the State moved for a status conference. The State attached to its motion a December 16, 2020, order in case No. CR20-249 which found Moore not competent to stand trial. According to the order, Moore was to be committed to the Lincoln Regional Center (LRC) for treatment to restore competency. The order further provided that the court would hold a review hearing to assess Moore's competency every 60 days until either the disability was removed or other disposition of Moore had been made. The court scheduled the status conference for a hearing on July 14.
At the beginning of the July 14, 2021, hearing, the court stated that it was holding status hearings in both cases Nos. CR20-249 and CR20-730. The court recited that Moore had been sent to the LRC for a determination of competency, that he had been evaluated, and that the court had received a July 1 report. According to the report, Moore remained incompetent to stand trial.
In case No. CR20-249, the court received as evidence the July 2021 report from the LRC. The court found that Moore was continuing to receive treatment at the LRC, noted the recommendation that Moore remain at the LRC "as he is still at this point not competent to stand trial," stated that it would continue to order his commitment to the LRC, and scheduled a review hearing for September 14.
Turning to case No. CR20-730, the State offered the same July 2021 report from the LRC. Moore's counsel lodged a relevancy objection, observing that competency proceedings had not been instituted in case No. CR20-730. According to Moore's counsel, Moore had maintained that he acted in self-defense at the time of the crimes charged in the instant case. Moore's counsel further stated that Moore understood the function of a trial and the duties of the judge, prosecutor, and jury. The court overruled the objection and received the report.
Prior to the status hearing, on July 6, 2021, Moore filed a motion for discharge. In August, the court held an evidentiary hearing on the motion. Moore appeared by video from the LRC. The parties collectively offered six exhibits, which the court received.
One exhibit contained a certified copy of the file in case No. CR20-249. That exhibit showed that in April 2020, the State filed an information in Scotts Bluff County District Court charging Moore with terroristic threats, third degree assault, and use of a deadly weapon to commit a felony. Pursuant to Moore's suggestion of incompetency, the court ordered an evaluation and later set a competency hearing for December 15. The exhibit contained the court's December 16 order finding Moore incompetent to stand trial.
The court received into evidence a November 25, 2020, evaluation of Moore. The court had ordered the evaluation to address Moore's capacity to proceed to trial in case No. CR20-249. The evaluator opined:
Moore currently lacks the ability to understand the factual components of the legal proceedings, he does not presently maintain sufficient ability to apply that knowledge [312 Neb. 267] to his own case in a rational manner or meaningfully assist his attorney in his own defense as a result of his ongoing symptoms of mental illness.
(Emphasis in original.)
The court overruled Moore's motion for discharge. It excluded from the speedy trial calculation the time from December 17. 2020, through July 14, 2021, under § 29-1207(4)(b) and (f). The court stated that Moore requested a continuance but did not provide a written order approving the waiver, nor did Moore file anything asking that the waiver be approved. Thus, the court found that the delay resulted from "Moore's inaction to file the acceptance of waiver and/or failure to set a status hearing."
The court also excluded the time between December 17, 2020, through the date of its September 13, 2021, order under § 29-1207(4)(a) and (d). It determined that the State showed Moore was found to be incompetent to stand trial in case No. CR20-249. The court reasoned that because Moore had been found incompetent in that case, he could not "argue that he is competent to stand trial in this case." The court further stated that Moore's commitment to the LRC by the court's order in case No. CR20-249 made him "unavailable" in the instant case.
Moore filed a timely appeal. We granted the State's petition to bypass review by the Nebraska Court of Appeals.[2]
Moore assigns, reordered, that the court erred in (1) "holding that the time delay herein was the result of other proceedings and unavailability of [Moore] caused by competency proceedings instituted in [case No. CR20-249]" and (2)
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.[3]
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.[4]
The statutory right to a speedy trial is set forth in §§ 29-1207 and 29-1208.[5] Under these statutes criminal defendants must be brought to trial by a 6-month deadline, but certain periods of delay are excluded and thus can extend the deadline.[6] If a defendant is not brought to trial by the 6-month speedy trial deadline, as extended by any excluded periods, he or she is entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.[7]
Periods excluded in computing the...
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