State v. Brown , 310 Neb. 224 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BROWN
Cite as 310 Neb. 224State of Nebraska, appellee, v.
Joshua J. Brown, appellant.
___ N.W.2d ___
Filed September 24, 2021. No. S-20-812.
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. Speedy Trial. 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 defend­
ant can be tried.
3. 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).
4. Speedy Trial: Good Cause: Words and Phrases. “Good cause,” for
purposes of Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), means a
substantial reason and one that affords a legal excuse.
5. Good Cause. Good cause is a factual question dealt with on a case-by-
case basis.
6. Good Cause: Proof. A district court’s good cause findings must be
supported by evidence in the record, and the State bears the burden of
establishing facts showing that good cause existed.
7. Speedy Trial: Good Cause: Motions for Continuance. When a trial
court’s sua sponte decision to delay trial implicates statutory speedy trial
rights, the exclusion of the period attributable to such delay is governed
by a showing on the record of good cause as described by Neb. Rev.
Stat. § 29-1207(4)(f) (Reissue 2016).
8. Speedy Trial: Good Cause. Evidence of good cause is properly pre-
sented at the hearing on the motion for absolute discharge and need not
be articulated at the time of the court’s sua sponte order delaying trial.
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STATE v. BROWN
Cite as 310 Neb. 2249. Speedy Trial: Good Cause: Appeal and Error. In determining whether
the trial court clearly erred in finding good cause after a hearing on a
motion for discharge, an appellate court looks not just to the evidence
presented at the hearing on the motion to discharge but to the whole of
the record.
10. Speedy Trial. The only timing requirement implicit in Neb. Rev. Stat.
§ 29-1207(4)(f) (Reissue 2016) is that the substantial reason affording a
legal excuse objectively existed at the time of the delay.
11. Speedy Trial: Good Cause. When a trial court relies on Neb. Rev. Stat.
§ 29-1207(4)(f) (Reissue 2016) to exclude time from the speedy trial
calculation, a general finding of “good cause” will not suffice. Instead,
the court must make specific findings as to the good cause which
resulted in the delay.
12. Constitutional Law: Speedy Trial. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires applica-
tion of a balancing test that involves consideration of four factors: (1)
the length of delay, (2) the reason for the delay, (3) the defendant’s
assertion of the right, and (4) prejudice to the defendant. None of these
four factors standing alone is a necessary or sufficient condition to the
finding of a deprivation of the right to speedy trial. Rather, the factors
are related and must be considered together with other circumstances as
may be relevant.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Robert G. Hays for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Joshua J. Brown appeals the order of the district court for
Lancaster County which overruled his motion for absolute
discharge wherein he alleged violations of his constitutional
and statutory rights to a speedy trial. Brown claims on appeal
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STATE v. BROWN
Cite as 310 Neb. 224that the district court erred when, inter alia, it concluded
that continuances ordered by the court in response to the
COVID-19 pandemic were for good cause and therefore should
be excluded from the calculation of the time for bringing him
to trial. We affirm the district court’s order which overruled
Brown’s motion for discharge.
STATEMENT OF FACTS
On October 31, 2019, the State filed an information charging
Brown with first degree assault, a Class II felony under Neb.
Rev. Stat. § 28-308 (Reissue 2016). On November 19, Brown
filed motions for discovery and to allow taking of depositions,
and the court sustained the motions on December 10.
The court originally set the trial for its February 3, 2020,
term. On January 29, the State filed a motion to continue the
trial. At a hearing on the motion, the State explained that the
reason for the request was that the State had recently learned
the alleged victim had moved out of state and additional time
was needed to arrange for her to be in Nebraska for the trial.
Brown objected and stated that he was ready for trial. The
court sustained the State’s motion over Brown’s objection and
continued trial to the April 6 term.
Brown filed several pretrial motions on March 18, 2020, and
requested a hearing to be held on March 23. However, Brown
withdrew the motions on March 23 because, in an order filed
that day, the district court continued the trial until the June
8 term.
In the March 23, 2020, order, the court stated as the rea-
son for the continuance “current public safety concerns sur-
rounding the COVID-19 pandemic.” The court noted recent
declarations regarding the pandemic by the World Health
Organization, the Chief Justice of the Nebraska Supreme
Court, the Governor of Nebraska, the President of the United
States, and the mayor of the city of Lincoln. The court stated
that the State of Nebraska, Lancaster County, and the city of
Lincoln were or soon would be “experiencing a COVID-19
outbreak via community transmission.” The court further noted
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STATE v. BROWN
Cite as 310 Neb. 224that the Nebraska Department of Health and Human Services,
in accordance with guidelines issued by the federal Centers for
Disease Control and Prevention (CDC), advised that in order
to mitigate spread of the illness, social gatherings of groups
of 10 or more people should be avoided, social distancing of
6 feet should be practiced, and people should avoid congregat-
ing in enclosed spaces. The court stated that “[m]any people
have chronic medical conditions that make them especially
vulnerable to the severe consequences of COVID-19” and that
“[a]ll efforts should be utilized to mitigate the exposure and
spreading of the illness.” Based on these concerns, the court
found that pursuant to Neb. Rev. Stat. § 29-1207(4)(f) (Reissue
2016), “good cause” existed to continue the trial until the
June 8 term, and it stated that “[t]he period of time between
this order and [Brown’s] next court appearance shall not count
against the State of Nebraska in its duty to bring [Brown] to
trial within six months of the filing of the Information.” Brown
filed an objection to the continuance on March 26, and he fur-
ther objected to the court’s finding of good cause and its deter-
mination that the time would not count against the statutory 6
months for bringing him to trial. See § 29-1207(1).
On May 13, 2020, the court set Brown’s trial for June 8 and
ordered Brown to appear for a pretrial conference on May 29.
However, on May 29, the court entered an order continuing
the trial until the August 3 term. The court again cited “current
public safety concerns surrounding the COVID-19 pandemic”
as the reason for the continuance.
In the May 29, 2020, order the court stated that it had “been
carefully monitoring the ongoing local and national emergency
occasioned by the worldwide COVID-19 pandemic,” and it
noted that Nebraska had recently “led the nation in percent-
age growth in newly confirmed cases of COVID-19.” The
court cited statements by the Lincoln/Lancaster County Health
Department (Health Department) to the effect that the risk
of spread of COVID-19 was high and that the trajectories of
confirmed cases and of positive tests as a percentage of total
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Cite as 310 Neb. 224tests were both trending upward. The court also noted that
the Health Department cautioned that exposure to COVID-19
presented a substantial risk of death or serious long-term dis-
abilities to the general population and an increased risk to vul-
nerable members of the population.
The court stated that it had been in frequent consultation
with public health professionals to develop plans to return
to normal operations, including jury trials, while maintaining
public safety for building and court staff, litigants, attorneys,
witnesses, and jurors. The court also noted directed health
meas­ures issued by the Health Department that were not bind-
ing on the court but that were persuasive and provided excel-
lent guidance. The court noted that such measures continued
to impose a 10-person limit on gatherings and a requirement
of maintaining a 6-foot distance between persons gathering
in groups of less than 10. The court stated that the health and
safety of individuals in its courthouse was a “very high prior-
ity,” and it concluded that conducting a jury trial at the current
time and under the current circumstances would be inconsist­
ent with directed health measures and would jeopardize the
health and safety of individuals in the courtroom. As it had
done when ordering a continuance on March 23, 2020, the
court again found that pursuant to § 29-1207(4)(f), good cause
existed to continue the trial until the August 3 term, and it
stated that the period of delay would not count against the time
to bring Brown to trial within 6 months.
On July 31, 2020, Brown filed a motion for absolute dis-
charge on speedy trial grounds. Brown asserted violations of
his statutory right to trial within 6 months under § 29-1207
and Neb. Rev. Stat. § 29-1208 (Reissue 2016) and of his
constitutional right to a speedy trial under the federal and
Nebraska Constitutions. In the motion, Brown stated that 6
months following the filing of the information was May 1,
but he conceded that the time had been extended to May 27,
based on the discovery motions and other pretrial motions he
had filed. He stated that the time was extended 21 days for the
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STATE v. BROWN
Cite as 310 Neb. 224discovery motions filed November 19, 2019, and sustained on
December 10 and that the time was extended another 5 days
for the pretrial motions he filed on March 18, 2020, and with-
drew on March 23. However, Brown contended that no other
delays were caused by him and that there was no good cause
for delaying trial beyond May 27. He asserted that neither
the continuance granted by the court on the State’s motion to
continue trial to April 6 nor the two orders on the court’s own
motion continuing the trial to June 8 and later to August 3
extended the time for bringing the case to trial. In regard to the
continuances ordered on the court’s own motion based on pub-
lic health concerns related to the COVID-19 pandemic, Brown
noted administrative orders issued by the Chief Justice of the
Nebraska Supreme Court on April 6 and on June 30 which
stated, inter alia, that courts would continue to remain open
during the public health emergency declared as a result of the
COVID-19 pandemic.
After an evidentiary hearing—the evidence which we
describe in our analysis below—the district court, on November
9, 2020, overruled Brown’s motion for discharge and ordered
the case to be set for the next jury term. In its order, the court
agreed with Brown’s calculation that 6 months after October
31, 2019, was May 1, 2020, and that delays caused by Brown’s
discovery and pretrial motions extended the speedy trial time
by 26 days to May 27. However, the court also found that the
delay resulting from its March 23 and May 29 orders con-
tinuing trial based on public health concerns related to the
COVID-19 pandemic should extend the time for trial pursuant
to § 29-1207(4)(f), which requires exclusion for “[o]ther peri-
ods of delay not specifically enumerated in this section, but
only if the court finds that they are for good cause.”
The court reviewed the bases for its orders continuing the
trial, including the declarations of various officials in March
2020 and the directed health measures and other guidance
issued by the Health Department, the CDC, and the Nebraska
Department of Health and Human Services. The court took
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STATE v. BROWN
Cite as 310 Neb. 224judicial notice of general orders entered by the district court
for Lancaster County during the relevant time periods. The
court indicated that such general orders were entered after the
Nebraska Supreme Court entered an administrative order that
declared, inter alia, that courts “‘shall devise and implement
emergency preparedness plans to carry out mission essen-
tial functions.’”
The court also stated the following:
The novel coronavirus, COVID-19 is a virus that is
readily transmitted both directly and indirectly from one
individual to another and has been found to create a
risk of death to certain individuals or cause significant
health related issues. The sudden onset of the pandemic
left unanswered many questions regarding measures to
prevent its spread and the logistics regarding conducting
business in a public forum. Issues regarding personal pro-
tection equipment, adequate facilities and safety protocols
for the judiciary and the public had yet to be developed
or instituted within the 12 days of the declaration of the
pandemic and the commencement of the jury term.
As the pandemic spread, the impact was felt signifi-
cantly by the citizens of Lancaster County. The Court’s
order of May 29, 2020 highlights the community’s con-
cerns as expressed by the . . . Health Department. The
safety concern of all individuals involved in the jury trial
process was paramount. There was simply no courtroom
available to the bench that could accommodate 30 - 35
people to be adequately screened and socially distanced
for jury selection. Additionally, any offsite venue was not
adequately equipped with the appropriate technology and
presented security concerns for the Court, parties, staff
and jurors.
In considering the statutory factors, the court stated it
“strongly disagree[d]” with Brown’s argument that good cause
did not exist, reiterated its findings from the continuance
orders, and concluded that good cause existed pursuant to
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STATE v. BROWN
Cite as 310 Neb. 224§ 29-1207(4)(f). The court determined that the continuances
related to the COVID-19 pandemic extended the time for speedy
trial by a total of 100 days and that when combined with the
26-day extension generated by Brown’s motions, the 6-month
period was extended from May 1, 2020, until September 3.
Because these exclusions extended the time past July 31, when
Brown filed his motion for discharge, the court did not address
whether the delay resulting from the continuance ordered on
the State’s January 29 motion further extended the time. The
court concluded that Brown’s motion for discharge pursuant to
§§ 29-1207 and 29-1208 should be overruled.
The court also considered Brown’s constitutional right to a
speedy trial. The court cited precedent to the effect that analy-
sis of the constitutional right required a balancing of four fac-
tors: (1) the length of the delay, (2) the reason for the delay,
(3) the defendant’s assertion of the right, and (4) prejudice to
the defendant. The court further cited precedent to the effect
that “‘[t]he length of the delay is to some extent a triggering
mechanism’” and that “‘until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance.’” (Quoting Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).
The court noted that Brown had not been in custody through-
out the proceedings, and it concluded that under the circum-
stances, the length of delay caused by the pandemic and the
court’s ability to adjust to the pandemic was not presumptively
prejudicial. The court therefore concluded that Brown’s consti-
tutional right to a speedy trial under the federal and Nebraska
Constitutions had not been violated and that his motion for
discharge based on the constitutional right to a speedy trial
should be overruled.
Brown appeals the order overruling his motion for discharge.
ASSIGNMENTS OF ERROR
Brown claims that the district court erred when it overruled
his motion for discharge because the continuances ordered
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STATE v. BROWN
Cite as 310 Neb. 224for reasons related to the COVID-19 pandemic were not shown
to be for good cause and therefore his statutory right to a
speedy trial was violated. Brown also claims that the delays
violated his federal and Nebraska constitutional rights to a
speedy trial.
STANDARD OF REVIEW
[1] 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. State v. Billingsley, 309 Neb. 616, 961 N.W.2d
539 (2021).
ANALYSIS
District Court Did Not Err When It Found Good Cause
for Pandemic-Related Continuances and When It
Concluded That Brown’s Statutory Right to
Speedy Trial Had Not Been Violated.
Brown first claims that the district court erred when it
rejected his argument that he was entitled to absolute dis-
charge because the State had violated his statutory right to
a speedy trial. He claims that the court erred when it found
that the continuances the court had previously ordered due to
the COVID-19 pandemic were issued for good cause under
§ 29-1207(4)(f). Brown contends that in the absence of evi-
dence offered by the State, the previous continuances based
solely on the court’s own statements regarding the pandemic
were erroneous. Given the evidence adduced at the hearing
on the motion for discharge, we determine that the findings of
good cause were not clearly erroneous at the time they were
issued. We therefore conclude that the court did not err when
it overruled Brown’s motion for discharge on statutory speedy
trial grounds.
The statutory right to a speedy trial is set forth in §§ 29-1207
and 29-1208. Section 29-1208 provides that if a defendant is
not brought to trial within the time provided for in § 29-1207,
as extended by excluded periods, the defendant will be
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Cite as 310 Neb. 224entitled to absolute discharge from the charged offense. 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 information filed.” Certain periods of delay
are excluded from the speedy trial calculation. As relevant to
this case, § 29-1207(4)(a) excludes all time between the time
of the filing of a defendant’s pretrial motions and their final
disposition; § 29-1207(4)(c) excludes certain periods of delay
“resulting from a continuance granted at the request of the
prosecuting attorney”; and § 29-1207(4)(f) provides that other
periods of delay not specifically enumerated in the statute may
be excluded in the speedy trial computation, “but only if the
court finds that they are for good cause.”
[2] As an initial matter, the State argues that both Brown and
the district court erred when—without regard to any exclud-
able periods—they calculated that the 6-month statutory period
would have ended on May 1, 2020. 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 § 29-1207(4) to
determine the last day the defendant can be tried.’” State v.
Billingsley, 309 Neb. 616, 620, 961 N.W.2d 539, 542 (2021).
The State asserts that using this formula, before adding any
excluded time, the last day for trial would have been April 30
rather than May 1. In effect, the State argues the district court
and Brown failed to “back up 1 day” from May 1 to April 30.
See brief for appellee at 16. We agree that the original 6-month
period would have run on April 30.
Brown and the State both agree with the exclusion of 26
days related to Brown’s motions. Adding that time brought the
last date for trial to May 26, 2020. Brown argues that no addi-
tional time was excludable and that therefore, the district court
should have sustained his motion for absolute discharge filed
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Cite as 310 Neb. 224on July 31. The district court, however, found that an addi-
tional period of 100 days was excludable for the good cause
continuances it ordered related to the COVID-19 pandemic.
The court determined that such exclusion extended the time
for bringing Brown to trial more than a month past July 31,
when Brown filed his motion for discharge. Brown argues that
the court erred when it found such delay excludable, because
the State did not meet its burden to show that the continuances
were for good cause under § 29-1207(4)(f).
[3-5] The State bears the burden to show, by a preponder-
ance of the evidence, the applicability of one or more of the
excluded time periods under § 29-1207(4). State v. Billingsley,
supra. “Good cause,” for purposes of § 29-1207(4)(f), is not
defined by statute, but we have found it fitting to apply the
meaning for “good cause” that we have used in other contexts,
which is that “good cause” means a substantial reason and one
that affords a legal excuse. See State v. Coomes, 309 Neb. 749,
962 N.W.2d 510 (2021). We have also recognized that good
cause is a factual question dealt with on a case-by-case basis.
See id.[6-10] A district court’s good cause findings must be sup-
ported by evidence in the record, and the State bears the bur-
den of establishing facts showing that good cause existed. Id.When a trial court’s sua sponte decision to delay trial impli-
cates statutory speedy trial rights, the exclusion of the period
attributable to such delay is governed by a showing on the
record of good cause as described by § 29-1207(4)(f). State v.
Chase, ante p. 160, ___ N.W.2d ___ (2021). We have recently
explained that the evidence of good cause is properly presented
at the hearing on the motion for absolute discharge and need
not be articulated at the time of the court’s sua sponte order
delaying trial. Id. The burden under § 29-1207(4)(f) is simply
that there be “good cause.” State v. Chase, supra. In deter-
mining whether the trial court clearly erred in finding good
cause after a hearing on a motion for discharge, we look not
just to the evidence presented at the hearing on the motion to
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Cite as 310 Neb. 224discharge but to the whole of the record. Id. The only timing
requirement implicit in § 29-1207(4)(f) is that the substantial
reason affording a legal excuse objectively existed at the time
of the delay. State v. Chase, supra.
Brown argues that the court erred when it found good cause
for the continuances because the State presented no evidence to
support a finding of good cause. It is not clear whether Brown’s
argument focuses on the court’s finding of good cause follow-
ing the hearing on the motion for discharge or the court’s ini-
tial findings of good cause at the time it originally ordered the
continuances. We note in this regard that the State did not offer
evidence in support of the continuances at the time they were
ordered, because the continuances were ordered sua sponte by
the court and not granted on the State’s motion. However, the
State did present evidence at the hearing on Brown’s motion
to discharge, and therefore it would not be accurate to say that
the State presented no evidence with regard to good cause.
Regardless, as the standards set forth above make clear, the
proper time for the State to present evidence of good cause is
at the hearing on the motion for absolute discharge, and even
though it is necessary that the substantial reason affording a
legal excuse objectively existed at the time of the delay, good
cause need not be articulated at the time of the court’s sua
sponte order delaying trial. See State v. Chase, supra. Although
the district court in this case articulated its reasons for finding
good cause at the time it ordered the continuances, our review
of whether the State met its burden focuses on the evidence
presented to the court at the time of the hearing on the motion
for discharge and whether that evidence supported the court’s
finding that good cause existed at the time of the delays. In
doing so, we look not just to the evidence presented at the
hearing on the motion to discharge, but to the whole of the
record. See State v. Chase, supra.
[11] When a trial court relies on § 29-1207(4)(f) to exclude
time from the speedy trial calculation, we have said that a
general finding of “good cause” will not suffice. State v.
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Cite as 310 Neb. 224Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021). Instead, the
court must make specific findings as to the good cause which
resulted in the delay. Id. An appellate court will give deference
to such factual findings unless they are clearly erroneous. Id.At the hearing on the motion for discharge, the State pre-
sented evidence, including, inter alia, the court’s March 23
and May 29, 2020, continuance orders and newspaper articles
regarding restrictions imposed by the Lancaster County District
Court related to the pandemic. At the hearing, the court took
judicial notice of general orders issued by the Lancaster County
District Court related to the pandemic. In its order ruling on the
motion to discharge, the court took note of various other orders
and declarations of public officials and directives of health
agencies such as the Health Department and the CDC. Brown
presented evidence of the Nebraska Supreme Court orders in
April and June 2020 to the effect that judicial mission essential
functions shall be implemented.
The court’s order on the motion for discharge indicates that,
in addition to the evidence presented by the parties, the court
took judicial notice of certain facts to support the finding that
there existed good cause for the continuances when issued.
Neb. Rev. Stat. § 27-201 (Reissue 2016) allows a court to
take judicial notice of adjudicative facts. Section 27-201(2)
provides that “[a] judicially noticed fact must be one not
subject to reasonable dispute in that it is either (a) generally
known within the territorial jurisdiction of the trial court or
(b) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”
Section 27-201(3) provides that “[a] judge or court may take
judicial notice, whether requested or not.” Section 27-201(6)
provides that “[j]udicial notice may be taken at any stage of
the proceeding.”
In this regard, we note State v. Estrada Comacho, 309
Neb. 494, 960 N.W.2d 739 (2021), in which we addressed
a criminal defendant’s challenge based on the constitutional
right of confrontation to the trial court’s ruling which allowed
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Cite as 310 Neb. 224testimony via two-way video by a witness who had tested
­positive for COVID-19. We stated that in its analysis, the
trial court had “noted that the Nebraska Supreme Court had
issued orders and guidelines in response to the COVID-19
pandemic and effectively took judicial notice of such orders
and guidelines, as it could do.” State v. Estrada Comacho,
309 Neb. at 501, 960 N.W.2d at 747. In stating that the court
could take judicial notice of the orders and guidelines, we cited
to § 27-201(2) and (6), which state that a “judicially noticed
fact must be one not subject to reasonable dispute in that it is
. . . capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned . . . at
any stage of the proceeding.”
In this case, the court took judicial notice of various pro-
nouncements by public officials and directives issued by health
agencies. These contained adjudicative facts subject to judicial
notice under § 27-201(2) providing that “[a] judicially noticed
fact must be one not subject to reasonable dispute in that it is
either (a) generally known within the territorial jurisdiction of
the trial court or (b) capable of accurate and ready determina-
tion by resort to sources whose accuracy cannot reasonably
be questioned.” Facts related to the course and effects of the
COVID-19 pandemic relied on by the court were not subject
to reasonable dispute because such facts were set forth in
public pronouncements and directives which were “sources
whose accuracy cannot reasonably be questioned.” See id.
Furthermore, such facts were of the sort that were “generally
known within the territorial jurisdiction of the trial court.” See
id. We disagree with Brown’s assertion that these facts were
based only on the court’s personal knowledge. Although the
court may have had personal knowledge of the circumstances,
such knowledge was also generally known within the territo-
rial jurisdiction of the court. This case may be contrasted to a
case like State v. Torres, 28 Neb. App. 758, 948 N.W.2d 288(2020), wherein the Nebraska Court of Appeals determined it
was error for the court to take judicial notice of the court’s
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Cite as 310 Neb. 224bailiff’s typical procedures. Such procedures may have been
within the court’s personal knowledge, but such procedures
were not “generally known within the territorial jurisdiction of
the trial court.” See § 27-201(2). Relevant facts relied on by
the court in this case relating to the COVID-19 pandemic were
generally known in Lancaster County, which is the court’s ter-
ritorial jurisdiction.
Considering the evidence that was presented at the hearing
on the motion to discharge and the facts of which the district
court properly took judicial notice, we conclude that the dis-
trict court’s finding of good cause for the continuances when
made was not clearly erroneous. The circumstances entailed
by the pandemic were such that the court could find “‘good
cause’” in the sense of “‘“a substantial reason . . . that affords
a legal excuse.”’” See State v. Coomes, 309 Neb. 749, 765,
962 N.W.2d 510, 522 (2021). We note that our determination
in this respect considers the context of the COVID-19 pan-
demic circumstances and conditions that existed at the time the
continuances were ordered. See U.S. v. Olsen, 995 F.3d 683,
693 (9th Cir. 2021) (applying federal speedy trial act and its
exclusion of time for “ends of justice” and stating that “surely
a global pandemic . . . falls within such unique circumstances
to permit a court to temporarily suspend jury trials in the inter-
est of public health”). See, also, State v. Estrada Comacho,
309 Neb. 494, 515, 960 N.W.2d 739, 755 (2021) (in context of
constitutional right of confrontation, determining that “prevent-
ing the spread of COVID-19 was an important public policy”
and stating that “district court’s decision [to allow testimony
by two-way video] must be viewed in the context of the time
when the trial took place, which was July 2020”). We believe
that in the context and under the circumstances in which the
court ordered the continuances in March and May 2020, the
court’s finding that such continuances were for good cause is
not clearly erroneous.
For completeness, we note that the State also argues that
the court should have excluded the period of delay due to the
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However, the district court did not consider whether this time
was excludable, because exclusion of the delays related to
the good cause continuances occasioned by COVID-19 took
the time for trial more than 1 month past the July 31, 2020,
date on which Brown filed his motion for discharge. For
the same reason, we need not consider whether such time
was excludable.
Contrary to Brown’s assertion of error, we conclude that
the district court did not err when it found good cause for the
continuances related to the COVID-19 pandemic. We there-
fore conclude that the district court did not err when it over-
ruled Brown’s motion for discharge based on statutory speedy
trial grounds.
District Court Did Not Err When It Concluded Delays
Did Not Violate Brown’s Federal and Nebraska
Constitutional Rights to Speedy Trial.
Brown next claims that the district court erred when it deter-
mined that the delays related to the COVID-19 pandemic did
not violate his federal and Nebraska constitutional rights to a
speedy trial. Applying a balancing test weighing the length of
the delay, the reason for the delay, the defendant’s assertion
of the right, and prejudice to the defendant, we conclude that
the district court did not err when it determined that Brown’s
federal and Nebraska constitutional rights to a speedy trial had
not been violated and when it rejected his motion to discharge
on constitutional speedy trial grounds.
[12] The constitutional right to a speedy trial is guaran-
teed by U.S. Const. amend. VI and Neb. Const. art. I, § 11.
Determining whether a defendant’s constitutional right to a
speedy trial has been violated requires application of a balanc-
ing test first articulated by the U.S. Supreme Court in Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101(1972). That test involves consideration of four factors: (1) the
length of delay, (2) the reason for the delay, (3) the defendant’s
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id.; State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
None of these four factors standing alone is a necessary or
sufficient condition to the finding of a deprivation of the right
to a speedy trial. State v. Betancourt-Garcia, 295 Neb. 170,
887 N.W.2d 296 (2016), abrogated on other grounds, State v.
Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). Rather, the
factors are related and must be considered together with other
circumstances as may be relevant. Id.Applying the balancing test, we determine that Brown’s
constitutional right to a speedy trial was not violated. First, the
length of delay does not support a determination that Brown’s
constitutional right to a speedy trial was violated. While the
constitutional right to a speedy trial and the statutory imple-
mentation of that right exist independently of each other, we
have recognized that § 29-1207 provides a useful standard for
assessing whether the length of a trial delay is unreasonable
under the U.S. and Nebraska Constitutions. State v. Lovvorn,
supra. We have observed that it is an unusual case in which the
constitutional right to a speedy trial has been violated when the
time limits under the speedy trial act have been met. See State
v. Lovvorn, supra. Brown filed his motion to discharge on July
31, 2020, which was 9 months after October 31, 2019, when
the information was filed. As we determined above, after add-
ing excluded time to the 6-month limit under the speedy trial
statute, time remained on the statutory speedy trial clock.
The reason for the delay also does not favor Brown’s argu-
ment. Regarding the reason for delay, the U.S. Supreme Court
distinguished between a “deliberate attempt to delay the trial
in order to hamper the defense” which “should be weighted
heavily against the government” and “a valid reason” for which
some delay is justified. Barker v. Wingo, 407 U.S. at 531. In
this case, there is no indication that the State was deliber-
ately attempting to delay the trial to hinder Brown’s defense.
Instead, the excluded times under the statutory speedy trial
were attributed to delays caused by pretrial motions filed by
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delays caused by the court’s sua sponte good cause contin­
uations for reasons related to the COVID-19 pandemic. For the
same reasons we determined above that the pandemic-related
delays were for “good cause” under the statutory analysis, we
also determine that the delays were for a “valid reason” for
purposes of the constitutional analysis.
With regard to the third Barker factor, i.e., defendant’s asser-
tion of the right, the State does not dispute that Brown asserted
his right to a speedy trial when he objected to the court’s first
continuance and when he filed his motion to discharge. This
factor favors Brown, but it must be weighed against the other
factors, which generally weigh against a finding that Brown’s
speedy trial rights were violated.
Regarding the final Barker factor, i.e., prejudice to the
defendant, the U.S. Supreme Court stated that the prejudice
factor is to be assessed “in the light of the interests of defend­
ants which the speedy trial right was designed to protect,” and
it set forth three such interests: “(i) to prevent oppressive pre-
trial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be
impaired.” 407 U.S. at 532. Brown does not identify how delay
in this case affected these interests, and the State notes that the
record indicates that Brown was not incarcerated at relevant
times prior to his filing the motion for discharge.
After weighing the four Barker factors, we conclude that
this is not the unusual case in which there was no statutory
speedy trial violation but there was a constitutional speedy trial
violation. Although we recognize that Brown asserted his right
to a speedy trial by objecting to the court’s first continuance,
the other factors weigh against a determination that Brown’s
constitutional right to a speedy trial was violated. We conclude
that the court did not err when it overruled Brown’s motion
for discharge based on the alleged violation of his federal and
Nebraska constitutional rights to a speedy trial.
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We conclude that neither Brown’s statutory nor his federal
or state constitutional right to a speedy trial was violated. We
therefore conclude that the district court did not err when it
overruled Brown’s motion for discharge, and we affirm the
district court’s order.
Affirmed.
Heavican, C.J., not participating.