State of Minnesota, Respondent, vs. Cesar de la Garza, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-877

 

State of Minnesota,

Respondent,

 

vs.

 

Cesar de la Garza,

Appellant.

 

Filed June 10, 2003

Affirmed Willis, Judge

 

Kandiyohi County District Court

File No. K3001015

 

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128; and

 

Boyd Beccue, Kandiyohi County Attorney, 316 SW Fourth Street, Willmar, MN 56201 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            A jury convicted appellant of one count of second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1 (1998).  On direct appeal, appellant argues that (1) his constitutional right to a speedy trial was violated and (2) he received ineffective assistance of counsel.  We affirm.

FACTS

            Appellant Cesar de la Garza and Jesus Garcia Guajardo worked together at the Windy Hills Recycling Center in New London.  In the spring of 2000, Guajardo told the owners that he suspected that de la Garza had been stealing from the center.  De la Garza was fired soon thereafter.

            On the evening of June 6, 2000, de la Garza went to Guajardo's trailer in Willmar, where he found Guajardo and a third man watching television.  The third man later testified that de la Garza angrily accused Guajardo of getting him fired and that de la Garza threatened to kill Guajardo.  The third man also testified that de la Garza pulled a knife from his pants and stabbed Guajardo twice in the chest before grabbing some cans of beer from Guajardo's refrigerator and leaving the trailer.  Guajardo died of his wounds minutes later.

            De la Garza was arrested on June 7 for the murder of Guajardo.  On June 9, the state charged him with one count of second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1 (1998), and a grand jury later indicted him on one count of first-degree murder, in violation of Minn. Stat. § 609.185(1) (1998).

On July 7, de la Garza made his first appearance in district court on the murder charges and stated that he wanted to represent himself.  But at his arraignment on July 13, de la Garza changed his mind and asked the district court to appoint an attorney from the public defender's office.  Also at the arraignment, de la Garza declined to enter a plea and asked the district court to schedule an omnibus hearing.

On September 19, de la Garza filed a "notice" in the district court stating that he wanted to dismiss his public defender; on September 29, the public defender's office sent a letter to the court stating that it was assigning a different public defender to de la Garza's case.  The second public defender asked the district court to reschedule the omnibus hearing from October 11 to December 29.  On November 30, de la Garza filed a certificate of representation stating that he would be represented by an attorney not associated with the public defender's office.

The Kandiyohi County Attorney had, in July 2000, filed a timely notice to remove the presiding district court judge.  But after he began representing de la Garza on November 30, de la Garza's attorney moved the district court to reassign the original judge.  The motion, to which the state did not object, was referred to the chief judge of the Eighth Judicial District, who granted de la Garza's motion.  The omnibus hearing was rescheduled for February 6, 2001, before the original judge.

            On February 6, the day of the omnibus hearing, de la Garza's attorney faxed to the district court a motion to suppress evidence gathered in searches of de la Garza's person, home, and property and to dismiss the charges for lack of probable cause.  At the hearing, de la Garza's attorney asked for and was given three weeks to prepare and submit a memorandum of law in support of the motion.  Also at the omnibus hearing, de la Garza's attorney stated that if the district court denied the motion to suppress, the attorney would "at that point" make a demand for trial within 60 days under Minn. R. Crim. P. 11.10.  The parties furthermore agreed to a trial date of April 30, 2001.  De la Garza's attorney submitted the memorandum within the three-week period, and the district court denied the motion to suppress on April 9.

            On April 20, de la Garza filed a motion to compel discovery and for a continuance.  The state maintained that it had complied with all of de la Garza's discovery requests but did not object to a continuance.  On April 23, the parties agreed to a new trial date of July 30.

            On July 24, the state served notice that it would offer at trial certain out-of-court statements made by the victim.  De la Garza brought a motion in limine asking the district court to exclude the statements.  On July 27, the district court concluded that the statements were inadmissible hearsay.  The state asked the district court to reconsider its ruling, and on July 30, the day the case was scheduled for trial, the district court held a hearing on the state's request.  At the July 30 hearing, the district court again ruled that the statements were inadmissible, the state announced that it would seek an interlocutory appeal, and de la Garza's attorney made a demand under Minn. R. Crim. P. 11.10 for trial within 60 days.  The state filed its notice of appeal on August 3.

            During the pendency of the appeal, de la Garza twice moved the district court for pretrial release on the ground that he had not been brought to trial within 60 days after the July 30 demand.  On both occasions, the district court refused to release de la Garza on his own recognizance but reduced bail and scheduled trial for January 28, 2002.  De la Garza was unable to post bail and remained in custody until his trial began.  This court affirmed the district court's order excluding the victim's out-of-court statements on January 8, 2002.

            Before de la Garza's jury trial began on January 28, his attorney moved the district court to dismiss the charges on the ground that de la Garza's Sixth Amendment right to a speedy trial had been violated.  The district court denied the motion, the trial began, and the jury ultimately found de la Garza guilty of second-degree murder.  The district court sentenced de la Garza to a term of 326 months in custody, with credit for the time he had served in jail since his arrest on June 7, 2000.  De la Garza appeals, arguing that his right to a speedy trial was violated and that he received ineffective assistance of counsel at trial.

D E C I S I O N

I.

            Both the federal and Minnesota constitutions guarantee the right to a speedy trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  Accordingly, the rules of criminal procedure provide that a

defendant shall be tried as soon as possible after entry of a plea other than guilty.  On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown * * * .  The time period shall not begin to run earlier than the date of the plea other than guilty.

 

Minn. R. Crim. P. 11.10.  Whether de la Garza's constitutional right to a speedy trial was violated is a question of law, which we review de novo.  See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998) (reviewing de novo constitutionality of a statute), review denied (Minn. Feb. 24, 1999).

To determine whether a delay constitutes a deprivation of the right to a speedy trial, we apply a balancing test, considering (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant.  Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2191-94 (1972); State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).

A.         Length of the delay

Delays of more than 60 days from the date of a Minn. R. Crim. P. 11.10 demand for trial raise a presumption that a violation of the right to a speedy trial has occurred, requiring this court to consider the other factors of the Barker test.  State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).

De la Garza argues that he made a demand for trial under Minn. R. Crim. P. 11.10 at the February 6 omnibus hearing.  The state argues that the 60-day period did not start to run until April 9, when the district court denied de la Garza's motion to suppress, because de la Garza's attorney said at the omnibus hearing that he would make the demand for trial if and when the district court denied the suppression motion.  Using either date, the length of the delay exceeds 60 days, and we must consider the other Barker factors.

B.         Reasons for the delay

            The Sixth Amendment right to a speedy trial attaches when a formal indictment is issued or when a person is held to answer a criminal charge.  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).  Thus, while a delay of more than 60 days after the Minn. R. Crim. P. 11.10 demand for trial triggers consideration of the other Barker factors, we consider the reasons for the entire post-charging delay to decide whether there was a violation of the right to a speedy trial.

            The state argues that the delay caused by rescheduling the omnibus hearing from October 11, 2000, to December 29 is attributable to de la Garza on the ground that de la Garza changed public defenders and his new public defender requested the rescheduling.  Delay caused by the defendant's frequent change of counsel is attributable to the defendant.  State v. Richards, 456 N.W.2d 260, 266 (Minn. 1990).  Here, de la Garza said at his first appearance in court that he wanted to represent himself, then said at his arraignment that he wanted the court to appoint a public defender, then notified the court that he wanted to dismiss the public defender, and finally accepted on November 30 the attorney who would represent him at trial.  We therefore conclude that the ten-week delay in scheduling the omnibus hearing is attributable to de la Garza because of his conduct with respect to counsel.

            The omnibus hearing that was supposed to take place on December 29 was again delayed until February 6, 2001.  De la Garza argues that this delay is attributable to the state's "improvident removal" of the district court judge.  A party may remove the presiding district court judge, providing it serves a timely notice of removal.  See Minn. R. Crim. P. 26.03, subd. 13(4).  Although the supreme court has reprimanded the Kandiyohi County Attorney for abuse of this privilege, see State v. Erickson, 589 N.W.2d 481, 484-85 (Minn. 1999), we are not persuaded that the delay caused by the removal and eventual reassignment of the presiding judge is attributable to the state.  The delay until February 6 would not have occurred but for de la Garza's motion to reassign the original judge.  Furthermore, de la Garza does not cite any evidence establishing that the filing of a notice to remove the judge was either done with intent to delay the trial or due to the state's negligence.  See Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (stating that a deliberate attempt to delay the trial weighs more heavily against the government than a "neutral" reason such as negligence).  Thus, we decline to conclude that the delay in the omnibus hearing from December 29 to February 6 is attributable to the state.

            The first delay of the trial itself occurred when de la Garza sought a continuance.  On February 6, 2001, before it had ruled on de la Garza's motion to suppress, the district court set a trial date of April 30, which was within 60 days after April 9, the effective date of de la Garza's demand for trial under Minn. R. Crim. P. 11.10.  On April 20, de la Garza moved for a continuance, and the trial was rescheduled for July 30.  De la Garza argues that this three-month delay is attributable to the state because of the state's failure to make medical and scientific evidence available to the defense.  But at the district court hearing on de la Garza's motion for the continuance, de la Garza's attorney stated that the defense would not be able to complete its own scientific tests before the start of trial and that it was not the state's "fault" that the tests could not be finished in time.  Thus, we conclude that the three-month delay is not attributable to the state.

            The second delay of the trial lasted five months and occurred when the state took an interlocutory appeal of the district court's order excluding out-of-court statements by the victim as inadmissible hearsay.  De la Garza argues that this delay was without justification and is thus attributable to the state.  To determine whether an interlocutory appeal by the state is justified, this court considers (1) the necessity of the appealed question to the state's case, (2) the seriousness of the charge facing the defendant, and (3) the strength of the state's position on the issue appealed.  State v. Helenbolt, 334 N.W.2d 400, 405 (Minn. 1983).

The first question is whether the matter appealed was of great importance to the state's case.  In deciding the state's appeal, this court noted that the state had two other witnesses establishing the same fact that the victim's statements were offered to prove and concluded that the state could not show, as a threshold issue, that the district court's ruling would have a critical impact on the outcome of the trial.  State v. De la Garza, No. C5-01-1305, 2002 WL 15677, at *1-*2 (Minn. App. Jan. 8, 2002).  Thus, the matter was not of great importance to the state's case.  The second question is whether the seriousness of the charge justified the delay during the pendency of the appeal.  This factor requires a weighing of the public's interest in bringing criminals to justice against the defendant's interest in being free from oppressive delay, and the supreme court has noted that murder charges might justify a delay of up to eight months caused by an appeal.  Helenbolt, 334 N.W.2d at 405.  Thus, the delay caused by the appeal was justified by the seriousness of the charge.  The third and final question concerns the strength of the state's position on appeal.  We have reviewed the record and conclude that the state made a colorable argument in the interlocutory appeal.  The third Helenbolt factor does not indicate that the appeal was unjustified, and after considering all three factors, we conclude that the delay caused by the appeal was justified.

            Thus, the reasons for the pretrial delay do not weigh in favor of concluding that de la Garza's right to a speedy trial was violated.

C.        Assertion of the right to a speedy trial

            Barker instructs courts "to look for any ‘action whatever'" to determine if a defendant has made a speedy-trial demand.  State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999) (quoting Barker, 407 U.S. at 534, 92 S. Ct. at 2194).  In light of this standard, de la Garza properly and repeatedly asserted his right to a speedy trial.  De la Garza effectively asserted his right on April 9, 2001, when the district court denied his motion to suppress, on July 30, 2001, when it became apparent that the trial would be delayed by the state's interlocutory appeal, and during his two motions for pretrial release during the pendency of the appeal.

D.        Prejudice

            The right to a speedy trial protects three interests:  (1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the accused, and (3) preventing the possibility that the defense will be impaired.  Id.  The third interest, impairment of the defense, is the most important.  Id.  A defendant does not have to affirmatively prove prejudice; rather, prejudice may be "suggested" by the likely harm to the defendant's case.  Id.

            De la Garza was in jail for more than a year and a half, from his arrest on June 7, 2000, to the day his trial began on February 28, 2002.  Thus, the first two factorspreventing oppressive pretrial incarceration and sparing the defendant undue anxietyare implicated here.  But we note that de la Garza received credit at sentencing for the time he had served in jail awaiting trial.  More importantly, de la Garza does not argue, and the record does not suggest, that his defense was impaired by the pretrial delay.  Thus, we decline to conclude that the final Barker factor weighs in de la Garza's favor.

            E.         Conclusion

            Although the length of the delay exceeded the 60-day limit of Minn. R. Crim. P. 11.10 and although de la Garza asserted his right to a speedy trial on several occasions, we conclude that the balance of the Barker factors indicates that his constitutional right to a speedy trial was not violated.

II.

            In a pro se supplemental brief, de la Garza asserts a claim of ineffective assistance of counsel.  De la Garza bases the claim on evidence that does not appear in the district court file forwarded to this court and that is outside of the record on appeal.  Thus, we decline to consider this claim.  See State v. Taylor, 650 N.W.2d 190, 204 n.12 (Minn. 2002) (stating that appellate court may not base its decision on matter outside the record on appeal).  But we note that the supreme court has stated that a direct appeal is "generally not the proper method of raising" a claim of ineffective assistance of counsel "because of the difficulty an appellate court has in determining the facts regarding the representation."  State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003) (citation omitted).  Accordingly, de la Garza's right to pursue such a claim in a petition for postconviction relief is preserved.  See id.

            Affirmed.