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State v. Feldhacker3/11/2003
r 24, the State filed a continuance for the reason that the State's "chief witness" was unavailable due to training. Feldhacker did not object to the hearing being reset for December 4. Three of the pretrial discovery motions were decided on November 13, and the Jackson v. Denno hearing was had on December 4 as scheduled. At the conclusion of the hearing, the State asked for a continuance in order for an unavailable state trooper's affidavit to be received into evidence. Feldhacker stipulated to the continuance, and the final disposition of the hearing was filed on January 22, 2001.
Additionally, on April 10, 2001, Feldhacker made an oral motion to continue a status hearing scheduled for that day. The status hearing was held on April 24. Therefore, we find that there was sufficient reason for the 137 days of delay due to Feldhacker's pretrial discovery motions and motion to continue.
(c) Feldhacker's Assertion of Right
Feldhacker asserts that this third factor weighs strongly in his favor. Specifically, Feldhacker contends that prior to his pro se motion for absolute discharge on July 10, 2001, a trial date had not been set and no forward activity had occurred since April 25. We agree. Based on our statutory determination above, the State had 5 days to bring Feldhacker to trial, and a trial date had not been set. Therefore, this factor favors Feldhacker.
(d) Prejudice to Feldhacker
Thus, we turn to the final factor in the balancing test, prejudice to the defendant, which the authority suggests be looked at with particularity. State v. Alcaraz, 8 Neb. App. 215, 590 N.W.2d 414 (1999) (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). Feldhacker alleges that he has suffered extreme prejudice because (1) he was incarcerated since his arrest on July 29, 2000, until December 28, 2001, when he posted bond, and (2) he suffered anxiety, concern, and frustration while being incarcerated.
Prejudice should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. The U.S. Supreme Court has identified three such interests: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense will be impaired. Id. (citing Barker v. Wingo, supra). In the instant case, the record demonstrates that prejudice, if any, was minimal. There is nothing in the record which shows that Feldhacker's bond was set at an unreasonable amount, that he was deprived of any evidence, or that he suffered from anxiety or concern.
Based on the record, Feldhacker failed to show that he was prejudiced by the delay between late August 2000 and July 2001. There is no evidence that any key witness for the defense was ill or threatening to leave the state, that the memories of witnesses were fading, or that Feldhacker's defense was otherwise prejudiced by the delay. See id. When we weigh the four factors to determine whether there has been a denial of the constitutional right to a speedy trial, we find there has been no denial of Feldhacker's constitutional right to a speedy trial, particularly given the complete absence of prejudice. Therefore, Feldhacker was not deprived of his right to a speedy trial under the federal or state Constitution.
Affirmed as modified.
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