This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Charles Edward Gist,



Filed May 1, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 99040124


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


Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of attempted second-degree murder, claiming (1) he was denied his constitutional right to a speedy trial; and (2) the district court committed reversible error in admitting impeachment and Spreigl evidence.  Appellant also raises additional issues in his pro se supplemental brief.  We affirm. 



            Under the United States and Minnesota Constitutions, and the Minnesota Rules of Criminal Procedure, criminal defendants are entitled to a speedy trial.  See U.S. Const. amend. VI; Minn. Const. art. I, § 6; Minn. R. Crim. P. 11.10.  In Minnesota, a defendant must be tried within 60 days of demanding a trial unless good cause is shown for the delay.  Minn. R. Crim. P. 11.10.

In order to determine whether a delay has violated an accused’s right to a speedy disposition, we consider (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  A single factor is not determinative, instead the factors “must be considered together with such other circumstances as may be relevant.”  Id. (quotation omitted).  Appellant argues that because he demanded a speedy trial on May 26, 1999, and his trial did not begin until January 24, 2000, his conviction must be reversed.  We disagree.

The first factor we analyze is the length of the delay.  Windish, 590 N.W.2d at 315.  The eight-month interval between demand and trial in this case triggers further speedy trial analysis.  See State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986) (finding seven-month delay presumptively prejudicial, requiring consideration of the other factors).

Next we consider the reasons for the delay.  Windish, 590 N.W.2d at 316.  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).  A delay to obtain DNA test results meets the good cause standard when 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).  In addition, delay attributable to a defendant does not weigh in the defendant’s favor.  Windish, 590 N.W.2d at 316.    

Here, the district court authorized an initial trial date past the 60-day limit to enable the state to obtain DNA evidence necessary to establish identity.  Additional delay was attributable to appellant because he elected to contest the use of a new DNA testing method.  Two Frye hearing dates to contest this evidence were rescheduled because appellant’s attorney and the prosecutor were in trial.  Subsequently appellant informed the court that he was no longer contesting the DNA results, and both parties agreed on a January 24, 2000, trial date.  Thus, we conclude the entire delay was attributable either to good faith continuances or appellant’s conduct. 

Appellant’s assertion, or lack of assertion, of his right to a speedy trial is the third factor in the balancing analysis.  Windish, 590 N.W.2d at 317.  This analysis includes looking at a defendant’s decision to seek delay.  Id. at 318.  A failure to assert the speedy trial right is not a waiver, but rather is part of the balancing analysis.  Id. at 317 n.2.  Here, appellant initially asserted his right to a speedy trial, but chose to delay the trial to contest DNA evidence.  When appellant finally decided not to contest the DNA test, he reasserted his right to a speedy trial but agreed to the January 24, 2000, trial date. 

            The final factor in the balancing analysis is whether appellant suffered prejudice as a result of the delay.  Id. at 318.  This court looks to three indicators of prejudice:  (1) oppressive pretrial incarceration; (2) anxiety and concern suffered by accused while awaiting trial; and (3) impairment of the defense, such as lost witnesses or faded memories.  Id.  Appellant is not required to affirmatively prove prejudice, but rather, prejudice can be suggested by “likely harm” to his case.  Id.  (citation omitted).  The third consideration, impairment of a defendant’s defense, is the most serious.  Id. Availability of witnesses at an earlier date, followed by unavailability of witnesses at the time of the delayed trial, may indicate a defendant was prejudiced by delays.  Id. at 319.  Pretrial incarceration alone does not show prejudice.  Stroud, 459 N.W.2d at 335.

            Here, appellant alleged that his defense was impaired because his incarceration made him unable to meet with his first attorney.  But appellant eventually fired this attorney and obtained different counsel.  Moreover, appellant has not alleged that any witnesses were unavailable or that other prejudice resulted from the delay.  Looking at these facts in the context of the speedy trial factors, we conclude that appellant was not denied his right to a speedy trial.


            Appellant argues that the cumulative effect of the district court’s improper admission of Spreigl and impeachment evidence constitutes reversible error.  We disagree. 

A.        Impeachment

Appellant contends that the state’s impeachment of his testimony with two prior assault convictions constituted reversible error.  A district court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are less than ten years old, punishable by imprisonment in excess of one year, and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a).  To determine whether the probative value outweighs the prejudicial effect, the court should consider:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.


Ihnot, 575 N.W.2d at 586 (quotation omitted). 

Appellant’s prior convictions were within the ten-year time limit and had legitimate impeachment value.  Even if the prior assault crimes shared elements that are arguably more similar to the attempted second-degree murder charge, this similarity does not preclude admissibility.  State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).  Additionally, “impeachment by prior crime aids the [trier of fact] by allowing it to see the whole person and thus to judge better the truth of [the defendant’s] testimony.”  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted).  Because appellant’s testimony was the primary evidence supporting his self-defense theory, his credibility was a central issue in the case.  Although the district court could have found the prior convictions inadmissible, we conclude it did not abuse its discretion by admitting the evidence.

B.        Spreigl

Appellant contends that the admission of evidence concerning a heated argument and pushing incident with his brother-in-law on the same evening as the crime charged was improperly admitted Spreigl evidence.  We disagree.  In State v. Spreigl, the supreme court authorized the admission of bad acts that were part of the same “immediate episode” as the crime charged.  State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965).  The evidence of appellant’s argument and pushing confrontation with his brother-in-law was not Spreigl evidence because it involves the same immediate episode as the crime charged.

When the evidence is part of the immediate episode, the district court must still weigh the prejudicial effect against the probative value.  State v. Townsend, 546 N.W.2d 292, 296-97 (Minn. 1996).  Here, the evidence was admitted for the proper purpose of showing that appellant was easily angered on the night of the offense.  Moreover, it was unlikely the evidence was used for an improper purpose because this was a bench trial. See Irwin v. State, 400 N.W.2d 783, 786(Minn. App. 1987) (affirming a postconviction court’s analysis that effect of Spreigl evidence was less prejudicial because it was admitted at a bench trial), review denied (Minn. Mar. 25, 1987).  We conclude the district court did not abuse its discretion in admitting the evidence.  

Finally even if the district court erred by admitting the impeachment and “immediate episode” evidence, the error was not prejudicial.  An error in admitting evidence is prejudicial where the reviewing court determines there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  Here, there are no findings of fact or other indications that the exchange between appellant and his brother-in-law or the impeachment offenses affected the court’s finding of guilt.  The district court based its decision on the witnesses who viewed the crime and appellant’s portrayal of the assault.  We conclude that appellant was not prejudiced by the admission of this evidence.


Finally, appellant submitted a pro se brief in which he claims that the prosecutor committed misconduct, his confrontation clause rights were violated, and the prosecutor committed two discovery violations.  We have carefully reviewed appellant’s claims and find them to be without merit.  Appellant also argues that his attorneys were ineffective in representing him.  But even if appellant’s allegations regarding his attorneys are true, appellant has not met his burden of showing that he was prejudiced as a result.  See State v. Jones, 392 N.W.2d 224, 236-37 (Minn. 1986) (holding that Jones failed to demonstrate prejudice due to alleged ineffective assistance of counsel).