Q. Mc. Plastic Machinery, Inc., Respondent, vs. Donna L. Hartmann, Appellant.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C5-99-184

State of Minnesota,
Respondent,
 
v.

 
Steven Lynn Pitts,
Appellant.

 Filed November 23, 1999
 Affirmed
Amundson, Judge

Hennepin County District Court
File No. 98030399

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

 
Amy J. Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

 U N P U B L I S H E D   O P I N I O N

 AMUNDSON, Judge

Appellant argues that the district court violated his right to a speedy trial by granting a continuance to enable the state to obtain DNA test results prior to trial. We affirm.

 FACTS

 Appellant Steven Lynn Pitts was convicted of two counts of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subds. 1(b), (e)(i), 2 (1998), for the sexual assault of his 14-year-old stepdaughter, A.R. on March 25, 1998. Following Pitts's arrest, police seized his clothing and collected biological samples. Police also took two blankets, a black scarf, a bed-liner, a pillowcase, a piece of insulation with attached hair fibers, and a pair of shorts found between the two beds, from A.R.'s bedroom. Biological samples were taken from A.R. and her clothing was turned over to the police for testing.

All evidence was submitted to the Bureau of Criminal Apprehension (BCA). At trial, BCA forensic scientist James Dougherty testified that he found a sufficient quantity of semen for DNA testing on A.R.'s vaginal and perineal swabs as well as two separate spots on the blue blanket taken from A.R.'s bedroom. Dougherty testified that the DNA profile for the sperm cell fractions matched Pitts's DNA profile, and that the probability of a random match was 1 in 507 million.

The BCA issued a preliminary report indicating that the items submitted on March 31 tested positive for human semen, and that DNA typing could be performed upon submission of a blood sample from A.R. A blood sample was obtained from A.R. and submitted to the BCA. Immediately after receiving the BCA's preliminary report, the state filed a motion for a continuance, to enable it to obtain the results of the DNA testing prior to trial. The district court declined to rule on the state's motion, finding it premature as insufficient information had been presented regarding the BCA's time frame and consequent length of a potential continuance. The hearing was continued for one week to enable the state to provide information as to the date of availability of the DNA results and to show the necessity for DNA evidence.

At the continued hearing on July 1, the state submitted an affidavit and attachments stating that DNA testing would be completed by August 17. The state argued that the test results were critical to its case because Pitts alleged another individual had committed the acts charged; therefore, the DNA test results would either exonerate or implicate him. The district court concluded that the prosecutor had done everything expeditiously, however, based on the BCA's initial two-month delay in discovering the presence of testable semen, which it characterized as "inexcusable," it denied the state's motion for a continuance and set the case on standby for trial on July 16. The state requested the court to stay its order pending the state's decision on whether to appeal the denial. The district court granted the state's request, but no appeal was filed.

On July 16, the state argued its motion for a continuance before a second district court judge. The state presented the additional information from BCA forensic scientist Dougherty that the two-month turn-around time for completing initial examinations on submitted evidence was normal. Dougherty had also provided information that the restriction fragment length polymorphism testing takes another six to eight weeks to complete. As of July 16, three probes had been completed, all indicating that Pitts could not be excluded. The second court concluded that the state had made the required showing of good cause and granted the motion for a continuance.

Pitts's trial began 119 days after his initial speedy trial demand. Pitts appeals.

 D E C I S I O N

  Both the United States and the Minnesota Constitutions guarantee a defendant's right to a speedy trial. U.S. Const. amend. VI, XIV, Minn. Const. art. I, § 6. When reviewing a claimed violation of the right to a speedy trial, this court will affirm the district court's ruling absent an abuse of discretion. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989). The supreme court has held that the district court does not abuse its discretion by delaying a trial beyond the 60-day speedy trial limit where the record supports a finding of good cause. McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989). This court must review the record de novo to determine whether the district court used the proper standards in evaluating good cause. Id. at 120.

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), the United States Supreme Court refused to establish an arbitrary time limit for determining whether the right to a speedy trial has been violated and instead developed a balancing test for reviewing such claims. Id. at 529-30, 92 S. Ct. at 2191-92. Similarly, the Minnesota Rules of Criminal Procedure do not set an arbitrary time limit for speedy trial violations that require dismissal of a case. Minn. R. Crim. P. 11.10.[1]

The Barker Court directed district courts to balance the factors of (1) length of delay, (2) reason for delay, (3) assertion of the right to a speedy trial, and (4) prejudice to the defendant. Id. at 530-32, 92 S. Ct. at 2192-93; see also State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker test for speedy trial demands). However, none of the factors independently is

either a necessary or sufficient condition to the finding of deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.

Barker, 407 U.S. at 533, 92 S. Ct. at 2193.

 I. Length of delay

The length of delay serves as a "triggering mechanism" which determines if further review is necessary. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Where the length of the delay is "presumptively prejudicial," a court must inquire into the remaining factors of the test. Id. at 530-32, 92 S. Ct. at 2191-92. In Minnesota, delays greater than 60 days after a speedy-trial demand has been made are "presumptively prejudicial and require further inquiry to determine whether there was good cause for the delay." Friberg, 435 N.W.2d at 512.

The state does not dispute that Pitts's trial was delayed more than the 60 days from demand provided for in Minn. R. Crim. P. 11.10. Pitts filed his original speedy trial demand at his probable cause hearing on April 29, and his trial began August 24, 119 days later. This delay raises a presumption that a violation has occurred. Friberg, 435 N.W.2d at 513. Therefore, the remaining three Barker factors must be considered.

II. Reason for delay

The second Barker factor requires an inquiry into the reasons for the delay. Barker, 407 U.S. at 531, 92 S. Ct. 2192. The state and the court bear the burden of ensuring speedy trials. Id. at 529, 92 S. Ct. at 2191, State v. Rachie, 427 N.W.2d 253, 255 (Minn. App. 1988), review denied (Minn. Sept 20, 1988). The delay in this case was completely attributable to the state.

Pitts argues that following the first court's denial of the state's motion for a continuance, it was an abuse of discretion for the second court to reconsider the motion and grant the continuance. The first court's denial was based on the prejudice to Pitts caused by the two-month initial BCA review of the evidence. But this court has held a reasonable delay in prosecution to obtain DNA test results to be "good cause," where the reason for delay was outside the state's control, the DNA evidence was essential to the state's case, and the defendant failed to prove that he would suffer "legally recognizable prejudice" due to the trial delay. State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990). Here, as in Stroud, the state acted promptly in submitting the samples for testing. Although the first court was correct that both the prosecution and the BCA are "the State of Minnesota," the second court recognized that the BCA testing center was an independent agency outside the prosecution's control.

Pitts also argues that the state's need for DNA evidence was not comparable with the need in Stroud, where identity was in issue. However, the state correctly predicted that Pitts would rely on a defense that another had committed the acts charged. Consequently, DNA evidence that would either incriminate or exonerate Pitts was critical to the state's case.

We conclude that the state's motion for a continuance to obtain the results of DNA testing was supported by good cause. Consequently, the "reason for delay" prong does not weigh in Pitts's favor.

III. Assertion of right

Assertion of the right to a speedy trial "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). In weighing this factor, the force and frequency of the demand must be considered. Friberg, 435 N.W.2d at 515. Here, Pitts first asserted his right to a speedy trial at the probable cause hearing on April 29 and the assertion was forcefully restated at the June 23 and July 16 hearings on the state's motion for a continuance. Pitts was tried 119 days after his first assertion of the right; therefore this factor weighs in favor of his claim that he was denied his right to a speedy trial. See State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999) (trial 116 days after assertion of right weighs slightly in favor of defendant).

IV. Prejudice

The final prong of the Barker test requires this court to determine whether Pitts suffered prejudice as a result of the delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The Court has identified three interests that are protected by the right to a speedy trial: (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 factor, impairment of a defendant's defense, has been deemed most serious. Friberg, 435 N.W.2d at 515.

Pitts alleges that despite repeated requests for reduction of bail or release, he remained incarcerated prior to trial. However, the record indicates that Pitts's continued incarceration was due both to the seriousness of the offense charged and to his prior criminal history. See Stroud, 459 N.W.2d 335 (pretrial incarceration may be unfortunate, but is not a serious allegation of prejudice). Pitts also contends that he lived under a cloud of suspicion and anxiety while awaiting trial. He has given only a conclusory statement that the continuance caused him to suffer stress, anxiety, and inconvenience; such a claim is insufficient to show serious prejudice for purposes of a speedy trial claim. See Friberg, 435 N.W.2d at 515 (finding no prejudice where appellants failed to show evidence of greater inconvenience than that experienced by anyone who is involved in a trial), State v. Reese, 446 N.W.2d 173, 179 (Minn. App. 1989) (finding that anxiety suffered while waiting for trial is insufficient to show prejudice), review denied (Minn. Nov. 15, 1989).

Pitts also argues that his ability to prepare an effective defense was severely prejudiced by the delay because the DNA test results were conclusive in implicating him. This argument misses the point. It was the state's understanding as early as July 1 that Pitts was alleging as a defense that another man was responsible. Therefore, the evidence was material to the state's case; had the DNA testing eliminated Pitts, the evidence would have been equally material to his defense. Because Pitts has failed to demonstrate legally recognizable prejudice as required by Barker, this final factor weighs against his claim.

After carefully balancing the Barker factors, we conclude that the delay caused by the continuance did not result in a violation of Pitts's right to a speedy trial.

Affirmed.

[1] Instead, Minn. R. Crim. P. 11.10 provides 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 upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period.