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State 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 defendant can be tried.

3. Speedy Trial: Proof. When calculating the time for speedy trial purposes, 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-bycase 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/19/2021 01:08 AM CST
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9. 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 application 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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that 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 reason for the continuance “current public safety concerns surrounding 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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that 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 congregating 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 further objected to the court’s finding of good cause and its determination 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 percentage 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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tests 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 disabilities to the general population and an increased risk to vulnerable 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 binding on the court but that were persuasive and provided excellent 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 priority,” and it concluded that conducting a jury trial at the current 

time and under the current circumstances would be inconsistent 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 discharge 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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discovery 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 withdrew 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 public 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 continuing 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 periods 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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judicial 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 essential 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 protection 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 significantly by the citizens of Lancaster County. The Court’s 

order of May 29, 2020 highlights the community’s concerns 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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§ 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 analysis of the constitutional right required a balancing of four factors: (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 throughout the proceedings, and it concluded that under the circumstances, 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 constitutional 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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for 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 factual 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 discharge 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 evidence 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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entitled 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 excludable 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 additional time was excludable and that therefore, the district court 

should have sustained his motion for absolute discharge filed 
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on July 31. The district court, however, found that an additional 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 preponderance 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 supported by evidence in the record, and the State bears the burden of establishing facts showing that good cause existed. Id.

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 § 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 determining 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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discharge 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 following the hearing on the motion for discharge or the court’s initial 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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Coomes, 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 presented 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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testimony 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 pronouncements 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 determination 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 territorial 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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bailiff’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 territorial 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 district 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 pandemic 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 interest 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 “preventing 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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continuance granted on the State’s January 29, 2020, motion. 

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 therefore conclude that the district court did not err when it overruled 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 determined 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 guaranteed 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 balancing 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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assertion of the right, and (4) prejudice to the defendant. See, 

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 implementation 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 adding 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 argument. 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 deliberately 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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Brown, which clearly do not weigh against the State, and to 

delays caused by the court’s sua sponte good cause continuations 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 assertion 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 defendants which the speedy trial right was designed to protect,” and 

it set forth three such interests: “(i) to prevent oppressive pretrial 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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CONCLUSION

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.