Filed March 17, 1998.
Appeal from the District Court, Hennepin County, File No. 97012398.
Hubert H. Humphrey III, Attorney General, and
Paul D. Baertschi, Assistant Maple Grove City Attorney, (for respondent)
Harlan M. Goulett, Allan Hart Caplan Associates, (for appellant)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
In this appeal from convictions and sentence for fifth-degree misdemeanor assault and disorderly conduct appellant Berry Willis argues that his right to a speedy trial was violated. We affirm.
Willis was charged in a complaint filed on January 31, 1997, which alleged that Willis attempted to "go after" his ex-girlfriend in the parking lot outside a Maple Grove bar, resisted attempts by several bouncers to restrain him, and punched one of the bouncers in the face.
According to the computer printout logging the scheduling of the case, Willis did not appear at his scheduled first appearance on February 12, 1997. He appeared at a rescheduled first appearance on February 20, pleaded not guilty, and demanded a jury trial. On March 6, 1997, Willis appeared with a public defender and was found eligible for public defender representation. The public defender asked that the arraignment be continued for two or three weeks, then asked for a continued pretrial. The trial court continued the matter one week, with Willis being out of custody.
At the March 13 hearing, after some difficulty in locating Willis, the matter was continued to that afternoon. There was no further hearing, however, until April 10, when the prosecutor and defense counsel agreed to a two-week continuance to gather evidence from other witnesses.
Two weeks later, at an April 24 preliminary hearing, the court denied Willis's motion to appoint a different public defender, denied his motion to dismiss, and ordered that there be no further continuances. Willis entered a demand for a speedy trial. On May 1, a preliminary conference was held. On May 22, Willis objected to a continuance of the June 17 jury trial date, and the trial court maintained the trial date. On June 10, apparently a jury trial setting, the matter was continued due to the unavailability of a witness. Defense counsel later stated, in arguing at trial for a dismissal, that a prosecution witness was unavailable.
Two problems arose on June 17: (1) no Maple Grove jury trials could be held at the Brookdale Courthouse facility, and (2) the prosecuting attorney had a family emergency. The condition of the prosecutor's father, who had been hospitalized with lymphoma, was deteriorating rapidly. Defense counsel stated that he did not object to continuing the trial.
The trial started on July 9 with the pretrial Rasmussen hearing. The trial court denied Willis's motion to dismiss for a violation of his right to a speedy trial. The jury was sworn on July 10, and returned its verdict on July 15. Willis was sentenced to 60 days in jail, with all but five days stayed, and was placed on probation for one year with requirements that he take anger management and chemical dependency classes.
Minn.R.Crim.P. 11.10 provides that a defendant shall be tried within 60 days after his demand for a speedy trial unless good cause is shown for the delay. Because the rule allows a delay for good cause, the 60-day limit is not absolute. McIntosh v. Davis , 441 N.W.2d 115, 119 (Minn. 1989).
Willis made a demand for a speedy trial on April 24, 1997. His trial began on July 9, the 76th day after the speedy trial demand. In denying Willis's motion to dismiss, the trial court stated:
This Court takes the matter of a speedy trial very, very seriously, but when all is said and done, there has to be * * * a line drawn somewhere, and since there wasn't an objection and since there is no apparent prejudice to the defendant since he's apparently been out of custody at all times that this matter has been in court, * * * I don't see a basis for not having this matter heard on the merits, so I'm going to deny the motion.
Four factors are relevant in determining whether the constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether there was any prejudice to the defendant. State v. Friberg , 435 N.W.2d 509, 512 (Minn. 1989) (citing Barker v. Wingo , 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93 (1972)). In this case, the total delay, some of which was attributable to the unavailability of a prosecution witness and some to the prosecutor's family emergency, was only 16 days beyond the 60-day limit.
Willis correctly states that he need not affirmatively demonstrate prejudice. See Moore v. Arizona , 414 U.S. 25, 26, 94 S.Ct. 188, 189 (1973) (citing Barker v. Wingo , 407 U.S. at 533, 92 S.Ct. at 2193) (affirmative showing of prejudice not required to show violation of constitutional right to speedy trial). But this simply follows from the Supreme Court's identification in Barker of a four-factor test, in which none of the factors is "a necessary or sufficient condition." Barker , 407 U.S. at 533, 92 S.Ct. at 2193. It does not mean that prejudice will be presumed unless the state shows that Willis was in part responsible for the delay.
In this case, where the three other Barker factors weigh so strongly against Willis, only an affirmative showing of prejudice could make an adequate case for a speedy trial violation. This is not a case like Moore v. Arizona , 414 U.S. at 25, 94 S.Ct. at 189, where a 28-month delay followed the speedy trial demand, nor a case where some other Barker factor carries so much weight that prejudice is irrelevant.
First, the length of the delay is minimal, certainly not enough to create a presumption of prejudice. See Aligah v. State , 394 N.W.2d 201, 205 (Minn.App. 1986) (delay of 19 days past 60-day period was "slight" delay not sufficient by itself to show denial of speedy trial), review denied (Minn. Nov. 17, 1986); cf. State v. Sap , 408 N.W.2d 638, 640 (Minn.App. 1987) (10-month delay considered presumptively prejudicial).
Second, the reasons for the delay, the unavailability of a prosecution witness, the error in scheduling, and the prosecutor's family emergency, do not weigh heavily against the state. See Friberg , 435 N.W.2d at 514 (scheduling delay caused by calendar congestion not within prosecutor's control should not weigh heavily against state); State v. Reese , 446 N.W.2d 173, 179 (Minn.App. 1989) (delays based on witness availability are legitimate where not extreme or prejudicial), review denied (Minn. Nov. 15, 1989). Willis focuses on the "clerical error" in scheduling trial for June 17, a week when no Maple Grove trials were being held at Brookdale. Although this error may not constitute "good cause" for delay, it does not weigh heavily in favor of a speedy trial violation, and the trial could not have occurred anyway on June 17 due to the prosecutor's family emergency, a "good cause" that Willis does not contest.
Third, Willis demanded a speedy trial on April 24, more than two months after his first appearance. At least two of the delays before the demand was made were requested or agreed to by defense counsel. Willis's delayed demand for a speedy trial does not weigh strongly in favor of his speedy trial claim. See Friberg , 435 N.W.2d at 515 (defendants who made speedy trial demand two months after not guilty plea and then made minimal attempts to enforce it did not show serious prejudice). Although the defense-initiated (or stipulated) delays occurring before the speedy trial demand do not count as reasons for the speedy trial delay, the tardiness of his demand weighs against Willis.
Willis has not shown any prejudice. He claims that he lost a job opportunity due to the delay, but this claim of prejudice is not attributable to the delay in the trial, for two reasons. First, it was the pendency of the criminal charges that allegedly prejudiced Willis. An earlier trial would not have alleviated this prejudice unless Willis had been acquitted. Second, Willis claimed to have lost the job on May 15, which was well before the 60-day period had run. The 16-day delay from June 24 until July 9 had no effect on the job opportunity.