State v. Webb , 311 Neb. 694 ( 2022 )


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    07/15/2022 08:06 AM CDT
    - 694 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. WEBB
    Cite as 
    311 Neb. 694
    State of Nebraska, appellee,
    v. Yohan Webb, appellant.
    ___ N.W.2d ___
    Filed June 3, 2022.     No. S-21-356.
    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. Courts: Appeal and Error. Both the district court and a higher appel-
    late court generally review appeals from the county court for error
    appearing on the record.
    3. Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    4. Appeal and Error. An appellate court independently reviews questions
    of law in appeals from the county court.
    5. Speedy Trial. The statutory right to a speedy trial is set forth in 
    Neb. Rev. Stat. §§ 29-1207
     and 29-1208 (Reissue 2016).
    6. ____. To calculate the time for statutory speedy trial purposes, a court
    must exclude the day the complaint was filed, count forward 6 months,
    back up 1 day, and then add any time excluded under 
    Neb. Rev. Stat. § 29-1207
    (4) (Reissue 2016) to determine the last day the defendant can
    be tried.
    7. Speedy Trial: Proof. When calculating the time for speedy trial pur­
    poses, the State bears the burden to show, by a preponderance of the
    evidence, the applicability of one or more of the excluded time periods
    under 
    Neb. Rev. Stat. § 29-1207
    (4) (Reissue 2016).
    8. Statutes: Legislature: Intent. In construing a statute, a court must
    determine and give effect to the purpose and intent of the Legislature
    as ascertained from the entire language of the statute considered in its
    plain, ordinary, and popular sense.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. WEBB
    Cite as 
    311 Neb. 694
    9. Statutes: Words and Phrases. The word “including,” when used in a
    statute, introduces examples, not an exhaustive list.
    10. Constitutional Law: Speedy Trial: Final Orders. A pretrial order
    denying a motion for discharge on constitutional speedy trial grounds
    does not affect a substantial right in a special proceeding for purposes of
    
    Neb. Rev. Stat. § 25-1902
    (1)(b) (Cum. Supp. 2020).
    Appeal from the District Court for Lancaster County, Robert
    R. Otte, Judge, on appeal thereto from the County Court for
    Lancaster County, Matthew L. Acton, Judge. Judgment of
    District Court affirmed in part, and in part dismissed.
    Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Yohan Webb appeals from an order of the district court
    for Lancaster County, Nebraska, which affirmed the county
    court’s decision to overrule Webb’s motion for absolute dis-
    charge on statutory and constitutional speedy trial grounds. We
    affirm in part, and in part dismiss.
    BACKGROUND
    The State of Nebraska filed a criminal complaint against
    Webb on June 3, 2019, in the county court for Lancaster
    County. On August 5, Webb filed several pretrial motions,
    including a motion for disclosure of intention to use evidence
    of other crimes, wrongs, or acts; a motion for disclosure of
    intention to use evidence of prior convictions for impeach-
    ment; a motion to allow Webb to wear civilian clothing when
    in the presence of the jury; a request for a Jackson v. Denno 1
    1
    Jackson v. Denno, 
    378 U.S. 368
    , 
    84 S. Ct. 1774
    , 
    12 L. Ed. 2d 908
     (1964).
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. WEBB
    Cite as 
    311 Neb. 694
    hearing; a motion to remove Webb’s restraints when in the
    presence of the jury; a motion for sequestration of the wit-
    nesses; and a motion in limine. Webb’s filings did not include
    a notice of hearing and were not heard or ruled upon by
    the court.
    On August 9, 2019, Webb filed a motion for a competency
    evaluation. At a hearing held September 5, the court found
    Webb incompetent to stand trial and ordered him committed
    to a psychiatric hospital for appropriate treatment to remove
    the disability. On February 5, 2020, a doctor opined Webb
    was competent to stand trial. The court set a hearing regarding
    Webb’s competency for March 17, but the matter was con-
    tinued three times, until May 8, when the court found Webb
    competent to stand trial and scheduled the case for a jury trial
    during the court’s July 6 jury term.
    On July 1, 2020, Webb requested appointment of substitute
    counsel and filed numerous pretrial motions, like those filed on
    August 5, 2019. On July 9, 2020, the court sustained Webb’s
    motion for substitute counsel and continued trial to August 5.
    Also on July 9, Webb filed a motion for discovery which, to
    date, has not been ruled upon. On August 5, Webb moved for
    a continuance, which the court granted. That same day, the
    court set the matter for a pretrial conference to be heard on
    August 10 and a jury trial for the September jury term. Webb
    failed to appear for the pretrial conference, and a bench war-
    rant was issued for his arrest. Webb was arrested on October
    10. On October 24, Webb filed a motion for absolute discharge,
    alleging violations of his statutory and constitutional speedy
    trial rights.
    The county court issued an order overruling Webb’s motion,
    generally finding that Webb’s August 5, 2019, motions
    had stopped the speedy trial clock under 
    Neb. Rev. Stat. § 29-1207
    (4)(a) (Reissue 2016). Webb appealed, and the dis-
    trict court affirmed, agreeing with the county court that Webb’s
    August 5 motions had stopped the speedy trial clock. For
    completeness, the district court found there were additional
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. WEBB
    Cite as 
    311 Neb. 694
    time periods that would be excludable from the speedy trial
    calculation.
    Webb appeals.
    ASSIGNMENTS OF ERROR
    Webb assigns, restated and consolidated, that the district
    court erred in affirming the county court’s decision, because
    (1) the State did not meet its burden of proving that time
    periods were excludable under § 29-1207(4), (2) time attribut-
    able to Webb’s competency proceedings should not have been
    excluded, and (3) the length of delays in bringing the case to
    trial violated Webb’s constitutional speedy trial rights.
    STANDARD OF REVIEW
    [1-4] Generally, a trial court’s determination as to whether
    charges should be dismissed on speedy trial grounds is a fac-
    tual question which will be affirmed on appeal unless clearly
    erroneous. 2 Both the district court and a higher appellate
    court generally review appeals from the county court for error
    appearing on the record. 3 When reviewing a judgment for
    errors appearing on the record, an appellate court’s inquiry is
    whether the decision conforms to the law, is supported by com-
    petent evidence, and is neither arbitrary, capricious, nor unrea-
    sonable. 4 However, an appellate court independently reviews
    questions of law in appeals from the county court. 5
    ANALYSIS
    [5] Webb contends that he was entitled to discharge because
    the State violated his statutory right to a speedy trial. The
    statutory right to a speedy trial is set forth in § 29-1207 and
    2
    State v. Abernathy, 
    310 Neb. 880
    , 
    969 N.W.2d 871
     (2022); State v.
    Billingsley, 
    309 Neb. 616
    , 
    961 N.W.2d 539
     (2021).
    3
    State v. Collins, 
    307 Neb. 581
    , 
    950 N.W.2d 89
     (2020).
    4
    
    Id.
    5
    
    Id.
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    311 Nebraska Reports
    STATE v. WEBB
    Cite as 
    311 Neb. 694
    Neb. Rev. Stat. § 29-1208
     (Reissue 2016). 6 Under § 29-1207(1),
    “[e]very person indicted or informed against for any offense
    shall be brought to trial within six months, and such time shall
    be computed as provided in this section.” Section 29-1207(2)
    generally provides that the “six-month period shall commence
    to run from the date the indictment is returned or the informa-
    tion filed.” This court has held that Nebraska’s speedy trial
    statutes are applicable to prosecutions in county court which
    are commenced by the filing of a criminal complaint. 7 Certain
    periods of delay are excluded from the speedy trial calcula-
    tion. Section 29-1207(4)(a) excludes all time between the
    time of the filing of a defendant’s pre­trial motions and their
    final disposition.
    [6,7] To calculate the time for statutory speedy trial pur-
    poses, “‘a court must exclude the day the complaint was filed,
    count forward 6 months, back up 1 day, and then add any time
    excluded under § 29-1207(4) to determine the last day the
    defendant can be tried.’” 8 The State bears the burden to show,
    by a preponderance of the evidence, the applicability of one
    or more of the excluded time periods under § 29-1207(4). 9 If
    a defendant is “not brought to trial before the running of the
    time for trial as provided for in section 29-1207, as extended
    by excluded periods, he or she shall be entitled to his or her
    absolute discharge from the offense charged.” 10
    The timeline in this matter is uncontroverted. The State
    filed a criminal complaint against Webb in county court on
    June 3, 2019. In county court, at the hearing on Webb’s motion
    for discharge, the court stated in oral findings that the origi-
    nal speedy trial deadline was December 3. As of August 2,
    6
    State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
     (2019).
    7
    State v. Chapman, 
    307 Neb. 443
    , 
    949 N.W.2d 490
     (2020).
    8
    
    Id. at 448
    , 949 N.W.2d at 493-94.
    9
    Billingsley, 
    supra note 2
    .
    10
    § 29-1208.
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    STATE v. WEBB
    Cite as 
    311 Neb. 694
    Webb’s trial was scheduled for the August 5 through 16 jury
    term. On August 5, Webb filed seven pretrial motions that
    remain pending. The court found, pursuant to § 29-1207(4)(a),
    that Webb’s pretrial motions stopped the speedy trial clock on
    August 5, meaning Webb had awaited trial for only 64 days.
    The court therefore overruled Webb’s motion for absolute
    discharge based on statutory speedy trial rights. Additionally,
    the court denied Webb’s motion based upon his constitutional
    speedy trial right.
    Webb appealed to the district court. Webb’s amended state-
    ments of errors asserted the county court erred in (1) overrul-
    ing his motion for discharge, (2) determining that the State met
    its burden of proof, and (3) applying the statutory grounds for
    excluding time under § 29-1207(4)(a). The district court con-
    cluded that Webb’s appeal “offer[ed] no authority and has no
    real argument disputing the County Court’s determination that
    the pretrial motions stopped the clock on August 5, 2019.” The
    district court agreed with the county court’s analysis that the
    August 5 pretrial motions stopped the speedy trial clock and
    affirmed the county court’s decision to overrule Webb’s motion
    for absolute discharge based on statutory and constitutional
    speedy trial rights.
    On appeal from the district court’s order to this court, Webb
    contends his August 5, 2019, motions should not be considered
    when calculating excludable time because the motions were
    not specifically enumerated in § 29-1207(4)(a) and because the
    motions did not cause any delay in bringing his case to trial.
    Section 29-1207(4)(a) provides:
    (4) The following periods shall be excluded in comput-
    ing the time for trial:
    (a) The period of delay resulting from other pro-
    ceedings concerning the defendant, including, but not
    limited to, an examination and hearing on competency
    and the period during which he or she is incompetent
    to stand trial; the time from filing until final disposition
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. WEBB
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    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; and the time consumed in
    the trial of other charges against the defendant.
    Webb’s argument that his August 5, 2019, motions did
    not cause any delay in bringing his case to trial is inapposite
    to our jurisprudence. Moreover, Webb candidly admitted in
    his brief that his argument has previously been rejected by
    this court.
    We have consistently held the plain terms of § 29-1207(4)(a)
    dictate the exclusion of all time between the filing of a defend­
    ant’s pretrial motion and the final disposition of such motion,
    regardless of the delay of disposition. 11 Additionally, we have
    recognized that under § 29-1207(4)(a), the period of delay
    is defined by the statute itself as the period between the fil-
    ing and final disposition of the pretrial motion. 12 Because a
    period of delay is generally synonymous with a period of time,
    excludable periods can result from delays in the progression
    of a criminal case regardless of whether the trial date was
    postponed or remained unchanged. 13 As such this argument is
    without merit.
    Webb’s argument that because his motions were not the same
    type of motions as those specifically listed in § 29-1207(4)(a),
    the motions do not qualify as pretrial motions for purposes of
    calculating excludable time, is also without merit.
    On August 5, 2019, Webb filed a motion for disclosure of
    intention to use evidence of other crimes, wrongs, or acts;
    11
    State v. Washington, 
    269 Neb. 728
    , 
    695 N.W.2d 438
     (2005), citing State v.
    Covey, 
    267 Neb. 210
    , 
    673 N.W.2d 208
     (2004). See State v. Williams, 
    277 Neb. 133
    , 
    761 N.W.2d 514
     (2009).
    12
    Williams, 
    supra note 11
    .
    13
    State v. Coomes, 
    309 Neb. 749
    , 
    962 N.W.2d 510
     (2021). See, Lovvorn,
    
    supra note 6
    ; State v. Feldhacker, 
    267 Neb. 145
    , 
    672 N.W.2d 627
     (2004).
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    STATE v. WEBB
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    a motion for disclosure of intention to use evidence of prior
    convictions for impeachment; a motion to allow Webb to wear
    civilian clothing when in the presence of the jury; a request
    for a Jackson v. Denno hearing 14; a motion to remove Webb’s
    restraints when in the presence of the jury; a motion for seques-
    tration of the witnesses; and a motion in limine. Webb argues
    his August 5 motions are not governed by § 29-1207(4)(a),
    because they were not “motions to suppress evidence, motions
    to quash the indictment or information, demurrers and pleas
    in abatement, and motions for a change of venue.” Webb’s
    argument focuses on § 29-1207(4)(a)’s phrase “including,
    but not limited to” and argues that absent authority that the
    Legislature’s inclusion of the language “but not limited to” in
    reference to “other proceedings concerning the defendant” in
    contrast to its use of just the word “including” with respect to
    pretrial motions to the defendant shows an intent to establish
    an exclusive list of pretrial motions.
    [8,9] In construing a statute, a court must determine and
    give effect to the purpose and intent of the Legislature as
    ascertained from the entire language of the statute considered
    in its plain, ordinary, and popular sense. 15 This court has rec-
    ognized the conventional wisdom that the word “including”
    introduces examples, not an exhaustive list. 16 We have held
    that the word “include,” as used in a statute, connotes that the
    provided list of components is not exhaustive and that there are
    other items includable that are not specifically enumer­ated. 17
    14
    Jackson, supra note 1.
    15
    Ash Grove Cement Co. v. Nebraska Dept. of Rev., 
    306 Neb. 947
    , 
    947 N.W.2d 731
     (2020).
    16
    In re Interest of Seth C., 
    307 Neb. 862
    , 
    951 N.W.2d 135
     (2020), citing
    Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
    Legal Texts 132 (2012).
    17
    In re Interest of Seth C., supra note 16; State v. Jedlicka, 
    305 Neb. 52
    , 
    938 N.W.2d 854
     (2020); Stephens v. Stephens, 
    297 Neb. 188
    , 
    899 N.W.2d 582
    (2017), citing Samantar v. Yousuf, 
    560 U.S. 305
    , 
    130 S. Ct. 2278
    , 
    176 L. Ed. 2d 1047
     (2010).
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    STATE v. WEBB
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    311 Neb. 694
    The Legislature’s decision to pair the word “including” with
    a belt-and-suspenders phrase such as “but not limited to” does
    not alter the meaning of “including.” 18 “Including” indicates
    a nonexhaustive list, and adding “but not limited to” aids in
    emphasizing the nonexhaustive nature. 19 “‘Even though the
    word including itself means that the list is merely exemplary
    and not exhaustive, the courts have not invariably so held.
    So the longer, more explicit variations are necessary in the
    eyes of many drafters.’” 20 “Even so, the commonness of these
    belts-and-suspenders phrases does not lessen the exemplari-
    ness of include.” 21 Thus, based on the plain and ordinary
    meaning of the word “including,” under § 29-1207(4)(a), we
    reject Webb’s argument.
    We again hold that the pretrial motions listed under
    § 29-1207(4)(a) are provided as examples and are not intended
    to be an exhaustive list.
    Furthermore, Nebraska appellate courts have held in
    numerous cases that pretrial motions not specifically enu-
    merated in § 29-1207(4)(a) still constitute excludable time. 22
    18
    See Timberlake v. Douglas County, 
    291 Neb. 387
    , 
    865 N.W.2d 788
     (2015),
    citing Black’s Law Dictionary 880 (10th ed. 2014).
    19
    See, U.S. v. Philip Morris USA Inc., 
    566 F.3d 1095
     (D.C. Cir. 2009); Spine
    Soc. v. Health Benefits Bd., 
    453 N.J. Super. 94
    , 
    180 A.3d 333
     (2018).
    20
    Scalia & Garner, supra note 16 at 133, quoting Garner’s Dictionary of
    Legal Usage 439-40 (3d ed. 2011) (emphasis in original).
    21
    Id. (emphasis in original).
    22
    See, State v. Smith, 
    286 Neb. 856
    , 
    839 N.W.2d 333
     (2013) (defendant’s
    pretrial motion to sever tolled speedy trial period); Williams, 
    supra note 11
    (discovery motion created excludable period for speedy trial calculation);
    State v. Baker, 
    264 Neb. 867
    , 
    652 N.W.2d 612
     (2002) (motion to discharge
    was excludable time); State v. Turner, 
    252 Neb. 620
    , 
    564 N.W.2d 231
    (1997) (motions for DNA testing and private investigator were excludable
    for speedy trial calculation); State v. Shipler, 
    17 Neb. App. 66
    , 
    758 N.W.2d 41
     (2008) (25 days attributable to defendant’s motion in limine
    were excludable); State v. Summage, No. A-19-1129, 
    2020 WL 6589973
    (Neb. App. Nov. 5, 2020) (motion for production of victim’s mental health
    records tolled speedy trial time).
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    STATE v. WEBB
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    We have also said that “‘[w]here a statute has been judicially
    construed and that construction has not evoked an amendment,
    it will be presumed that the Legislature has acquiesced in the
    court’s determination of the Legislature’s intent.’” 23 As such,
    we are not persuaded by Webb’s argument.
    The district court and the county court correctly found that
    § 29-1207(4)(a) applies to Webb’s August 5, 2019, motions and
    that Webb’s motions stopped the speedy trial clock on the date
    he filed them. Because the undisputed record shows the State
    carried its burden of showing an excludable time period under
    § 29-1207(4), we affirm the analysis and dispositions of the
    district court and the county court.
    Webb asserts further arguments regarding his statutory
    speedy trial rights. However, given our conclusion that Webb’s
    speedy trial clock stopped on August 5, 2019, and calculation
    that only 64 days have passed since the filing of the criminal
    complaint, we need not address Webb’s remaining arguments.
    An appellate court is not obligated to engage in an analysis
    that is not necessary to adjudicate the case and controversy
    before it. 24
    [10] Lastly, Webb contends lengthy delays in competency
    proceedings violated his constitutional speedy trial rights.
    “[T]he constitutional right to a speedy trial and the statu-
    tory implementation of that right exist independently of each
    other.” 25 As we recently held, a pretrial order denying a
    motion for discharge on constitutional speedy trial grounds
    does not affect a substantial right in a special proceeding for
    purposes of 
    Neb. Rev. Stat. § 25-1902
    (1)(b) (Cum. Supp.
    2020). 26 We lack appellate jurisdiction to review Webb’s
    23
    State v. Coble, 
    299 Neb. 434
    , 445, 
    908 N.W.2d 646
    , 655 (2018).
    24
    State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
     (2020).
    25
    State v. Brooks, 
    285 Neb. 640
    , 643, 
    828 N.W.2d 496
    , 499 (2013).
    26
    State v. Moody, ante p. 143, 
    970 N.W.2d 770
     (2022); Abernathy, 
    supra note 2
    .
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    claim that he was entitled to absolute discharge on constitu-
    tional speedy trial grounds. We therefore dismiss that aspect
    of Webb’s appeal.
    CONCLUSION
    For the reasons stated herein, we affirm in part, and in
    part dismiss.
    Affirmed in part, and in part dismissed.