Summary
The Nebraska Supreme Court affirmed the denial of Keith P. Coomes’ motion for absolute discharge on statutory speedy-trial grounds. The court held that the order of proof did not constitute plain error, that the State could rely on evidence offered by the defendant to establish excludable time, and that the record supported excluding certain periods for continuances and good cause under Neb. Rev. Stat. § 29-1207(4).
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Practice areas
Questions Presented
- Whether the district court committed plain error by allowing Coomes to present evidence first at the absolute-discharge hearing.
- Whether the State could satisfy its burden to prove excludable speedy-trial time by relying on evidence offered by Coomes when the State offered no separate evidence.
- Whether the period from January 17 to April 7, 2020, was excludable for good cause under Neb. Rev. Stat. § 29-1207(4)(f).
- Whether the period from April 7 to May 12, 2020, was excludable under § 29-1207(4)(b) because defense counsel consented to the continuance.
- Whether the statutory speedy-trial deadline had expired when Coomes filed his motion for absolute discharge.
Holdings
- The trial court has discretion over the order of proof, and presenting evidence first does not itself shift the burden of proof or constitute reversible error absent prejudice. The record showed no plain error or prejudice from Coomes' counsel presenting evidence first.
- When the State bears the burden of proving excludable time under Neb. Rev. Stat. § 29-1207(4), it may rely on evidence offered by the defendant and received by the court; the State's failure to offer separate evidence does not necessarily require discharge.
- After a mistrial, the statutory speedy-trial period restarts on the date of the mistrial. The six-month period is measured in calendar months by excluding the filing or mistrial date, counting forward six months, and backing up one day before adding properly excludable periods.
- A period following the appointment of replacement counsel may be excluded for good cause under § 29-1207(4)(f) when the record contains specific findings and evidence showing that counsel reasonably needed time to prepare. The period from January 17 to February 11 was not supported by sufficient findings, but the period from February 11 to April 7 was properly excluded.
- For purposes of the speedy-trial calculation, there is no meaningful distinction between a period of time and a period of delay; an excludable period may arise from delay in the progression of a criminal case even if the trial date is not postponed.
- In an appeal from denial of absolute discharge, the State does not seek affirmative relief by arguing that additional periods not considered by the district court are properly excludable; therefore, a cross-appeal is not required for the appellate court to consider those periods.
- A continuance granted at the request of or with the consent of the defendant or defense counsel is excludable under § 29-1207(4)(b). The excludable period begins the day after the continuance is granted and includes the day on which the continuance ends.
Key quotations
“While it is somewhat puzzling that the State did not offer evidence, or at least join in the offer made by Coomes, we nevertheless hold the State was entitled to rely upon the evidence offered by Coomes, and received by the court, in meeting its burden of proving excludable time under § 29-1207(4).” (at 762)
“Moreover, 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.” (at 765-766)
“On this record, there is no clear error in the trial court’s determination that the circumstances provided a substantial reason affording a legal excuse for the delay and therefore supported a finding of good cause under § 29-1207(4)(f ) to exclude the period of delay from February 11 to April 7, 2020.” (at 769)
Factual background
The State charged Coomes with first-degree and third-degree assault in August 2018. After several defense continuances, the first trial ended in a mistrial on the first-degree assault charge on September 12, 2019, while the jury acquitted Coomes of third-degree assault. During retrial proceedings, additional delays occurred because of defense-requested continuances, the removal and replacement of Coomes' counsel, and a continuance consented to by defense counsel. Coomes moved for absolute discharge on August 10, 2020, arguing that the six-month statutory speedy-trial period had expired.
Procedural history
The district court denied Coomes' motion for absolute discharge, finding 163 excludable days and concluding that the retrial deadline had not expired. Coomes appealed, asserting that the court improperly shifted the burden of proof, relied on defense evidence despite the State's failure to present evidence, and improperly excluded time for good cause. The Nebraska Supreme Court affirmed, although it calculated 178 excludable days rather than the district court's 163 days.