State of Minnesota, Respondent, vs. Daniel Glen Myers, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-1134

State of Minnesota,

Respondent,

vs.

Daniel James Windish,

Appellant.

Filed April 21, 1998

Affirmed

Foley, Judge**

Ramsey County District Court

File No. K2-96-561

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Janice Barker, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

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

FOLEY, Judge

Appellant challenges his terroristic threats conviction, claiming he was denied the right to a speedy trial. We affirm. FACTS

On February 15, 1996, appellant Daniel James Windish was charged with one felony count of terroristic threats, and subsequently arrested on March 7. He filed a speedy trial demand on April 19, and trial initially was set for May 16, 1996. The trial court granted appellant's request to try an unrelated felony theft charge before the terroristic threats charge, and to delay the terroristic threats trial through August due to scheduling conflicts with defense counsel.

On September 25, 1996, both parties were present and prepared for trial, but the judge took an unexpected medical leave and rescheduled trial for November 13, 1996. On that date, both parties were again present and prepared for trial but the case was reassigned to another judge.

On December 9, 1996, appellant was present and prepared for trial but the prosecutor was unavailable. The court granted a continuance. Appellant told the court that he was having difficulty keeping track of his witnesses and moved to dismiss the case, but made no explicit speedy trial demand.

On January 6, 1997, appellant was present and prepared for trial, but the state's primary witness was unavailable and the court's calendar was full. Appellant informed the court that he had lost a critical defense witness and feared losing others. Appellant then moved to dismiss for lack of a speedy trial, which the court denied.

On February 13, 1997, appellant again moved to dismiss for lack of a speedy trial, arguing that several defense witnesses were unavailable or could not be located. The court denied the motion to dismiss, but ordered trial to commence within 30 days.

A jury trial began on March 11, 1997. One year and four days (369 days) had passed since appellant was arrested. Appellant was found guilty of one felony count of terroristic threats, and sentenced to three years and five months in prison.

D E C I S I O N

All criminal defendants are afforded a constitutional right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6.

A defendant shall be tried as soon as possible after entry of a not guilty plea. 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. The time period shall not begin to run earlier than the date of the not guilty plea.

Minn. R. Crim. P. 11.10.

When a party alleges a violation of the constitutional right to a speedy trial, we "must review the record de novo to determine whether the trial court used the proper standards for evaluating good cause" for delay past the 60-day speedy trial period. State v. Genung, 481 N.W.2d 130, 133 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).

The United States Supreme Court has developed a balancing test to determine whether the accused has been denied his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972). Four factors are to be considered: (1) length of delay; (2) reason for delay; (3) the accused's assertion of the right; and (4) prejudice to the accused. Id.; see State v. Johnson, 498 N.W.2d 10, 15-16 (Minn. 1993) (Barker factors used to analyze speedy trial claim).

A. Length of Delay

The right to a speedy trial attaches "when a person is arrested and held to answer a criminal charge." State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). Delays that exceed the 60-day limit set forth in Minn. R. Crim. P. 11.10 raise the presumption that a violation [of the speedy trial right] has occurred and require * * * further inquiry to determine if there has been a violation of the defendant's right to speedy trial.

State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).

Here, appellant made his initial speedy trial demand 11 months before trial, which began more than 12 months after appellant was arrested. The 60-day presumptive period set forth in Minn. R. Crim. P. 11.10 was clearly violated. But while the cumulative delay (more than one year) is disturbing, an analysis of the reasons for this delay reveals that only a small portion of the total delay may fairly be attributed to the state.

B. Reason for Delay

"The reason for delay is closely related to the length of delay, and different weights should be assigned to different reasons." State v. Brooke, 381 N.W.2d 885, 888 (Minn. App. 1986). Delays caused by negligence or an overburdened judicial system cannot rest with the defendant. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Friberg, 435 N.W.2d at 513. However, such delays weigh less heavily against the state than a deliberate attempt by the prosecutor to delay trial. Jones, 392 N.W.2d at 235. There is no evidence of deliberate delay in this case, but there have been several court and state delays.

A large portion of the delay in this case may be attributed to appellant. There is no speedy trial violation when the overall delay is the result of defendant's actions. Johnson, 498 N.W.2d at 16. Appellant initially requested a delay to try pending charges, and trial was delayed for another three months because of defense counsel's scheduling conflicts. Unavailability of defense counsel constitutes "good cause" to delay trial. Aligah v. State, 394 N.W.2d 201, 205 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).

Part of the delay may be attributed to the state. The September 1996 trial was continued due to the trial judge's medical leave. But medical leave is an acceptable reason to delay trial. See McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989) (trial court does not abuse discretion by delaying trial for good cause or where exigent circumstances, substantiated by record, justify delay). The November 1996 trial was delayed because the case was reassigned to another judge. Circumstances over which the prosecutor has no control constitute good cause for delay of trial, where the defendant suffers no unfair prejudice. Friberg, 435 N.W.2d at 513.

The December 1996 delay was caused by, and should weigh against, the state. That trial date was rescheduled because the prosecutor was unavailable due to a scheduling conflict. Unlike unavailability of defense counsel, prosecutorial unavailability does not constitute good cause for delay. See, e.g., Brooke, 381 N.W.2d at 888 (prosecutor's schedule conflict not valid reason for delay).

The January 1997 delay was caused by overcrowded courts and unavailability of the state's key witness. Unavailability of a key witness does not violate the defendant's constitutional right to a speedy trial where (1) the prosecutor has been diligent in attempting to locate the witness, and (2) the resultant delay is neither lengthy nor unfairly prejudicial to the defendant's rights. State v. Terry, 295 N.W.2d 95, 96 (Minn. 1980). The record shows that the prosecutor was diligent in attempting to ensure the witness's presence, and appellant was not prejudiced because his witnesses were available to testify. This delay should not weigh against the state.

C. Assertion of the Right

Whether a defendant has asserted his speedy trial right "is normally given 'strong evidentiary weight' in determining whether or not the right was unfairly denied." Johnson, 498 N.W.2d at 16 (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192). Delay caused by a defendant temporarily waives his speedy trial demand, which can only be revived by a reassertion of the demand. Id.

Here, appellant claims to have asserted his right to speedy trial four times throughout the proceedings. The initial demand for speedy trial occurred on April 19, 1996, but appellant then requested that another charge be tried before the terroristic threats charge, and trial was scheduled for late September. Appellant's own actions caused this delay and temporarily waived his initial speedy trial demand.

Appellant claims that he made another speedy trial demand on December 9, 1996, when his counsel told the court that he wanted to proceed immediately with trial, and explained that his defense witnesses were difficult to locate. But "[i]t is a simple matter for a defendant to make a specific demand for a speedy trial on the record." State v. Rachie, 427 N.W.2d 253, 257 (Minn. App. 1988), review denied (Minn. Sept. 20, 1988). Appellant's counsel made no specific demand for a speedy trial, and thus failed to adequately reassert appellant's prior speedy trial demand.

Appellant's next speedy trial demand was made on January 6, 1997. This assertion was sufficiently specific and forceful, but failed to promptly revive appellant's initial demand, which had been made eight months earlier. See, e.g., Johnson, 498 N.W.2d at 16 (prompt and forceful assertion of speedy trial demand key to court's evaluation of speedy trial claim).

Appellant's final assertion was made on February 13, 1997, when his counsel moved to dismiss for violation of the right to speedy trial. The fact that appellant persisted in asserting his right to a speedy trial is important. But appellant's repeated assertions of his speedy trial right are insufficient to overcome the fact that appellant caused several of the lengthy delays in this case. Thus, this factor does not favor appellant.

 D. Prejudice to Accused

Prejudice is assessed in light of the defendant's 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." Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

The first two interests are irrelevant here because appellant was already incarcerated for a prior conviction. Though appellant may have been prejudiced by the pretrial incarceration, that prejudice resulted from his own actions. See State v. Givens, 356 N.W.2d 58, 62 (Minn. App. 1984) (defendant's pretrial incarceration, although unfortunate, not "serious allegation of prejudice"), review denied (Minn. Jan. 2, 1985).

Appellant's defense may have been impaired to some degree by the repeated delays. The trial court was aware of appellant's difficulty in keeping track of witnesses for the December 1996 and January 1997 trials and was informed that appellant might have lost one witness. But at the February 1997 motion hearing, appellant stated that the lost witnesses were thought to have been found. At the March 1997 trial, appellant's counsel stated that he had located, and anticipated calling, two of the lost witnesses to testify. Because appellant found the witnesses and they were available to testify, no prejudice resulted from the delay.

Appellant's constitutional right to a speedy trial was not violated.

Affirmed.