Opinion
No. A-11-126.
10-25-2011
STATE OF NEBRASKA, APPELLEE, v. ANA Y. BREDEMEIER, APPELLANT.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant. Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge. Affirmed as modified.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges.
SIEVERS, Judge.
Ana Y. Bredemeier was charged by information in the district court for Lancaster County on July 2, 2009, with two counts of theft and abuse of a vulnerable adult. On August 5, 2010, Bredemeier filed a motion to discharge, alleging that her statutory and constitutional rights to a speedy trial, as well as her constitutional right to due process of the law, were violated. The district court denied her motion, and she now appeals. We affirm the district court's denial of Bredemeier's motion to discharge, but we modify the court's determination regarding the time remaining in which the State must bring Bredemeier to trial. Pursuant to our authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), we have ordered this case submitted for decision without oral argument.
I. PROCEDURAL BACKGROUND
On July 2, 2009, the State filed an information in the district court charging Bredemeier with three counts, to-wit: (1) theft by unlawful taking, (2) theft by deception, and (3) abuse of a vulnerable adult. The information alleges that between approximately May 1, 2007, and March 28, 2008, Bredemeier took or exercised control over movable property with a value in excess of $1,500 belonging to the victim, with the intent to deprive her of said property. It further alleges that between May 1, 2007, and March 28, 2008, Bredemeier deceptively obtained the victim's property with a value in excess of $1,500. And finally, it alleges that on or about January 1 and March 28, 2008, Bredemeier knowingly or intentionally abused the victim, a vulnerable adult, by knowingly and intentionally causing her to be exploited.
The following is a timeline of the pretrial motions filed in this case, all filed by Bredemeier, and the rulings on such. As an aid to understanding the procedural and sequential background, we have assigned letter designations to certain motions.
• 7/8/09 Bredemeier files a motion for a bill of particulars.
• 7/30/09 Motion for a bill of particulars overruled.
• 8/19/09 Bredemeier files a motion for discovery.
• 9/1/09 Motion for discovery granted.
• 10/13/09 Bredemeier files a motion to suppress statements (motion A).
• 11/16/09 Bredemeier files a motion to suppress evidence; motion withdrawn March 10, 2010.
• 1/26/10 Bredemeier files a motion to admit hearsay of an unavailable witness; motion withdrawn March 10, 2010.
• 2/3/10 Bredemeier files an amended motion to suppress evidence (motion B).
• 2/3/10 Bredemeier files a motion to suppress statements due to a violation of the Vienna Convention on Consular Relations (motion C).
• 3/1/10 Bredemeier files an amended motion to admit hearsay of an unavailable witness; motion withdrawn March 10, 2010.
• 3/1/10 Bredemeier files a supplemental motion to admit hearsay of an unavailable witness (motion D).
Hearings were ultimately held on the four unresolved motions--motion A, motion B, motion C, and motion D--on December 16, 2009, and February 10 and March 10, 2010. At the March 10 hearing, Bredemeier requested that motion D be left open and not ruled upon. The State did not object, and the trial court has never ruled on such motion. On April 5, written arguments were received by the court and the three motions were taken under advisement. On July 23, the district court entered a 20-page order denying Bredemeier's three motions that had been submitted for decision. In accordance with Bredemeier's request, the court did not make a ruling on motion D, and such motion is currently still pending. The record reflects that trial was set for August 9.
On August 5, 2010, Bredemeier filed a motion to discharge, alleging that her statutory and constitutional rights to a speedy trial, and her constitutional right to due process of the law, were violated. A hearing on the motion to discharge was initially held on August 31. Evidence was adduced, and the parties were given time to submit written arguments. The matter was going to be taken under advisement "upon receipt of the last written argument." However, prior to the court's receipt of the State's brief, Bredemeier notified the court that she wished to present additional evidence. Bredemeier's counsel explained at an October 13 hearing that he wanted the court to take judicial notice of a bill of exceptions from a previous proceeding, which was not in the record. The State did not object, and the court allowed the additional evidence to be submitted at a hearing set for October 27. At the hearing on October 27, the additional evidence was offered and received and Bredemeier's motion to discharge was then taken under advisement.
On January 31, 2011, the court entered an 8-page order. With respect to the statutory speedy trial issue, the court analyzed the various periods of excludable time and made specific findings of each period of delay excludable under the speedy trial statute in conformity with State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009) (when ruling on statutory speedy trial claim, trial court shall make specific findings of each period of delay excludable under statute, in addition to findings regarding date and nature of proceedings, circumstances, or rulings which initiated and concluded each excludable period; number of days composing each excludable period; and number of days remaining in which defendant may be brought to trial after taking into consideration all excludable periods). The trial court calculated November 17, 2010, as the speedy trial deadline. Because Bredemeier filed the motion to discharge well before that date, on August 5, 2010, the court denied the motion to discharge under the speedy trial statute.
The district court also rejected Bredemeier's constitutional claims. Its order recites that Bredemeier was arrested on May 13, 2009; charged in county court on May 15; and waived her right to a preliminary hearing on June 19, and that the pending information was filed on June 2. The court found, "Clearly, there was no delay in the state pursuing its action against [Bredemeier] once it decided to arrest her." The order further provides that since July 8, 2009, when Bredemeier filed her motion for a bill of particulars, 321 days of delay were attributable to her motions and the resolution thereof. The court found that the time for resolution of Bredemeier's motions was "not inordinate or unreasonable" and that Bredemeier's constitutional rights were not violated. The court denied Bredemeier's motion to discharge. Additional details will be provided in the discussion that follows as necessary. Bredemeier now appeals.
II. ASSIGNMENTS OF ERROR
Bredemeier alleges that the district court erred by failing to grant her motion to discharge because her statutory right to a speedy trial and her constitutional rights to a speedy trial and to due process of the law were violated.
III. STANDARD OF REVIEW
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. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
IV. ANALYSIS
1. STATUTORY SPEEDY TRIAL CLAIM
Under Neb. Rev. Stat. § 29-1207 (Reissue 2008), every person informed against for any offense shall be brought to trial within 6 months from the date the information is filed. The plain terms of § 29-1207 exclude all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. State v. Williams, supra. To calculate the time for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any excluded time to determine the last day the defendant can be tried. Id.
If a defendant is not brought to trial before the running of the time as provided for in § 29-1207, as extended by excludable periods, he or she shall be entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense. Neb. Rev. Stat. § 29-1208 (Reissue 2008). The burden of proof is upon the State to show that one or more of the excluded time periods under the speedy trial statute are applicable when the defendant is not tried within 6 months. State v. Williams, supra. To overcome a defendant's motion for discharge on speedy trial grounds, the State must prove the existence of an excludable period by a preponderance of the evidence. Id.
The State filed an information charging Bredemeier on July 2, 2009. In the absence of any excludable period, the 6-month timeframe in which the State was required to bring Bredemeier to trial would end on January 2, 2010.
(a) First Excludable Period
Bredemeier contends that no time should be excluded between the July 8, 2009, filing of her motion for a bill of particulars and the district court's file-stamped and signed order overruling that motion on July 30. First, she argues that a motion for a bill of particulars is not listed in § 29-1207(4)(a) as a type of motion that tolls the speedy trial clock. Section 29-1207(4)(a) provides:
(4) The following periods shall be excluded in computing the time for trial: (a) The period of delay resulting from other proceedings 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 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."Unlike the first clause of § 29-1207," Bredemeier asserts in her brief, "the second clause does not contain the catch-all type language of the first clause, i.e., 'including, but not limited to.'" Brief for appellant at 10. Thus, she contends, no time should be excluded for her motion for a bill of particulars.
We agree with the State that the specific motions mentioned in the second clause of § 29-1207(4)(a) are only examples of the types of motions to be included under that section. See, e.g., State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005) (motion for discovery); State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002) (motion for discharge). The second clause in § 29-1207(4)(a) is not an exhaustive list of all of a defendant's pretrial motions, the delay resulting from which should be excluded in computing time for trial, and Bredemeier's motion for a bill of particulars stops the running of the speedy trial clock.
Bredemeier also argues that the 22 days between the filing of the motion for a bill of particulars and the court's ruling on the motion should not be excluded because the motion should not have been overruled. Because the only final, appealable order that is before us is the ruling on the motion to discharge, we do not have jurisdiction to decide the merits of the trial court's ruling on the motion for a bill of particulars. See State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005) (statute of limitations question of whether prosecution was barred by time was not relevant to analysis of only final order over which court had jurisdiction--order overruling motion to discharge). Likewise, the trial court's ruling on the motion for a bill of particulars is not a final, appealable order, nor is it relevant to the determination of how much time is excludable. Thus, 22 days should be added to the speedy trial clock for the delay between July 8 and July 30, 2009.
(b) Second Excludable Period
The parties agree that an excludable time period results from Bredemeier's motion for discovery filed on August 19, 2009, and granted September 1. In her brief, Bredemeier agrees with the district court's computation that such period yields 14 excludable days. The State, on the other hand, points out that under State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009), the excludable period commences on the day immediately after the filing of the defendant's pretrial motion and ends on the date the motion is granted or denied. We agree with the State and find that only 13 days should be excluded for this period.
(c) Third Excludable Period
With respect to the remaining motions, the district court excluded the time period between the filing of the initial motion to suppress on October 13, 2009, and the final ruling on that motion on July 23, 2010, calculating an excludable period of 283 days. The necessary background is as follows: Between October 13, 2009, and March 1, 2010, Bredemeier filed a motion to suppress statements (10/13/09); a motion to suppress evidence (11/16/09); a motion to admit hearsay of an unavailable witness (1/26/10); an amended motion to suppress statements (2/3/10); an amended motion to suppress statements due to a Vienna Convention violation (2/3/10); an amended motion to admit hearsay of an unavailable witness (3/1/10); and a supplemental motion to admit hearsay of an unavailable witness (3/1/10). Hearings on the various motions were held on December 16, 2009, and February 10 and March 10, 2010. Written arguments were received by the court on April 5, 2010, and the matters were taken under advisement. The district court entered its order disposing of three of Bredemeier's undetermined motions (motion A, motion B, and motion C), including her initial motion to suppress, on July 23, 2010. Her supplemental motion to admit hearsay of an unavailable witness, motion D, remained pending and undetermined per her request.
Bredemeier argues that the excludable period should have ended on April 5, 2010, when the district court made a journal entry indicating that Bredemeier's motions had been briefed and submitted for decision, and not on July 23, 2010, when the court entered its order. She claims that, under State v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986), the delay from April 6 to July 23 should be attributable to the State because such was inordinate and unreasonable. But in a case decided after State v. Wilcox, supra, the Nebraska Supreme Court held that the plain terms of the speedy trial statute exclude all of the time between the time of the filing of the defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. See State v. Covey, 267 Neb. 210, 673 N.W.2d 208 (2004). The period of delay is defined by the statute itself as the period between the filing and final disposition of the pretrial motion. Id; § 29-1207(4)(a). Accordingly, there is no question that the period of time between the filing of Bredemeier's October 13, 2009, motion to suppress, motion A, and the final ruling on that motion on July 23, 2010, should be excluded—which equals 283 excludable days.
However, after the July 23, 2010, ruling, Bredemeier's supplemental motion to admit hearsay evidence from an unavailable witness, motion D, was still pending per Bredemeier's request. The district court noted such in a footnote to its July 23 order. Pursuant to § 29-1207(4)(a), the time from filing until final disposition of a pretrial motion of the defendant should be excluded in computing time for trial. Because one of Bredemeier's pretrial motions had still not been disposed of when she filed her motion for discharge on August 5, 2010, the period of excludable time should extend through that date. Thus, an additional 13 days should be added to the district court's 283-day calculation for this third excludable period.
(d) Final Calculation
In sum, there are a total of 331 excludable days--22 days for Bredemeier's motion for a bill of particulars, 13 days for her discovery motion, 283 days for her suppression motion, and an additional 13 days for her pending supplemental motion to admit hearsay of an unavailable witness that never was finally disposed of before she filed her motion for discharge. Adding the 331 excludable days to the original January 2, 2010, deadline, the State had until November 29, 2010, to bring Bredemeier to trial. She filed her motion to discharge on August 5, 2010, when there were 116 days remaining on the speedy trial clock. Although the district court's determination that November 17, 2010, was the last day the State could bring Bredemeier to trial was incorrect, we simply modify the district court's decision to clarify that when the motion to discharge was filed, there were 116 days remaining on the speedy trial clock and the last day to bring her to trial was then November 29, 2010. There is no merit to Bredemeier's claim that her statutory speedy trial right was violated.
2. CONSTITUTIONAL SPEEDY TRIAL CLAIM
Bredemeier also contends that she was denied her constitutional rights to a speedy trial and to due process of the law "by virtue of both the State's delay in prosecuting the case once it was filed [against her] and the delay before the State brought the criminal charge against her." Brief for appellant at 14. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis; this balancing test involves four factors: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006). 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. Id.
The length of delay between the filing of the information on July 2, 2009, and the filing of Bredemeier's motion to discharge on August 5, 2010, is a total of 399 days, i.e., 1 year, 1 month, and 3 days. For the reasons expressed above, 331 of those days are attributable to Bredemeier's pretrial motions, which she and her counsel decided to file. Bredemeier presented myriad issues to the district court via her various motions. She moved the court to suppress allegedly involuntary pretrial admissions or statements she made in motion A. In motion B, she requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), to determine whether false statements were knowingly and intentionally, or with reckless disregard for the truth, included by the affiant in the search warrant affidavit thus necessitating suppression of evidence. And, in motion C, she moved the court to determine whether any of her pretrial admissions or statements were inadmissible due to an alleged violation of the Vienna Convention on Consular Relations. The district court resolved those and other issues in a 20-page order that comprehensively detailed the basis for its rulings. The district court made a finding that "[t]he resolution of the multiple issues raised by [Bredemeier's] motions after being under advisement for 109 days was neither inordinate nor unreasonable." While having a matter under advisement for 109 days before a decision could be seen is a rather lengthy period of time, the matters under submission were not uncomplicated, and the trial court took the time to fully explain its reasoning in its detailed findings and order. Thus, the first two factors, length of delay and reason for delay, weigh in favor of the State. Bredemeier's arguments to the contrary are unpersuasive.
With respect to the third factor from State v. Sims, supra, the defendant's assertion of the right, it is clear that a defendant has some responsibility for asserting his or her right to a speedy trial. See State v. Wilson, 16 Neb. App. 878, 754 N.W.2d 780 (2008). The only action which Bredemeier took that could be seen as an assertion of her right to a speedy trial was to file her motion for discharge on August 5, 2010, approximately 14 months after the filing of the information and only 4 days prior to trial. See Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (filing of motion to dismiss may be assertion of rights). In Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court stated: "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Because of her multiple motions raising complex issues, and her request that the court not decide one of such motions, it is difficult to find any assertion of the speedy trial right until immediately before trial. Therefore, we find that this factor also weighs in favor of the State.
The fourth factor, prejudice to the defendant, was analyzed in Barker v. Wingo, supra, and the Court explained that there are three aspects to consider: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the defendant, and (3) limiting the possibility that the defense will be impaired by dimming memories and loss of exculpatory evidence. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006). Of these three aspects, the third is considered most important because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Id.
Bredemeier's argument relative to prejudice focuses on alleged oppressive pretrial incarceration and impairment of her defense due to the victim's dimming memory. Bredemeier asserts that she has been incarcerated for nearly 1 year, 3 months and that such is attributable to the State, as well as to the trial court's improperly overruling her various pretrial motions. For the same reasons as those discussed throughout this opinion, the periods of delay in this case are wholly attributable to Bredemeier's motions, not to the prosecution. And, Bredemeier concedes in her brief that the correctness of the trial court's ruling on her motions is not before this court--although that concession is inconsistent with her claim above (that we rejected) that we should not exclude time for her motion for a bill of particulars because the ruling was incorrect. Thus, the period of time she has been incarcerated prior to trial is due to her own acts and therefore cannot be characterized as oppressive. She has not been prejudiced on that ground.
Bredemeier also asserts that she is prejudiced by the delay in bringing her to trial due to the likely impairment of the memory of the victim. The argument seems to have the implicit premise that the victim has exculpatory evidence that could be lost by the passage of time. But that is merely conjecture, and, in any event, there are obviously ways for Bredemeier to preserve the victim's knowledge and testimony during the pendency of the multiple tolling motions filed by Bredemeier—which she had availed herself of by taking the victim's deposition. And, in the final analysis, the delay in bringing Bredemeier to trial is traceable to the many tolling pretrial motions she filed. It makes no sense for us to find prejudice to Bredemeier as a result of her own actions. Her claim of a denial of her constitutional right to a speedy trial is without merit.
We read Bredemeier's due process argument to be that she was prejudiced by the State's delay in bringing criminal charges against her. In her brief, she asserts that the victim "made it perfectly clear to law enforcement during its investigation that [Bredemeier] had not taken advantage of her." Brief for appellant at 18. She claims that the victim was back in the United States in mid-June of 2008, but the State waited until "nearly a year later in May of 2009" to pursue charges against her. Id. at 18-19. She contends, "Whether intended or not, the State's delay in charging [Bredemeier] will have a profound effect on her ability to present the testimony of the alleged victim, who was nearly 92 years old by the time [Bredemeier] was compelled to assert her speedy trial right." Id. at 19.
The record reveals that the victim was reported missing on March 5, 2008, and was located in Mexico with Bredemeier sometime that same month. A criminal investigation involving Bredemeier's relationship with the victim was conducted between March 2008 and May 2009. Bredemeier was arrested on May 13, 2009, and she was first charged in county court only 2 days thereafter, on May 15. She waived her right to a preliminary hearing on June 19, and an information was filed on June 2, charging her in district court. Based on this timeframe, we agree with the district court that there was clearly no delay in the State's pursuing its action against her. Bredemeier does not have a due process right to be charged within a particular timeframe after a criminal investigation focused on her begins, other than what derives from the applicable statutes of limitations on prosecution for the alleged crimes. And, in any event, Bredemeier fails to articulate the way in which she could have possibly been prejudiced, aside from the unavailing arguments we discussed in the preceding paragraph. Accordingly, we find no merit to either of Bredemeier's constitutional claims.
v. CONCLUSION
Based on the foregoing, we conclude that the district court properly denied Bredemeier's motion for a discharge. However, because we find that the district court's determination regarding the amount of time left on the speedy trial clock was incorrect, we modify the court's order in that regard as explained above. The speedy trial clock under the speedy trial statute remains tolled until a motion to discharge is finally resolved, including during an appeal until action taken on the appellate court's mandate. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010). Thus, there are 116 days remaining on Bredemeier's speedy trial clock once the district court takes action on our mandate.
AFFIRMED AS MODIFIED.