This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-563

 

State of Minnesota,

Appellant,

 

vs.

 

Robert Michael Heath,

Respondent.

 

Filed August 21, 2001

Reversed

Kalitowski, Judge

 

Hennepin County District Court

File No. 0093438

 

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

 

Jay M. Heffern, Minneapolis City Attorney, Steven E. Heng, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

 

Robert Michael Heath, 513 Sixth Avenue Southeast, Minneapolis, MN 55414 (pro se respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant State of Minnesota contends the district court erred in dismissing the complaint against respondent on the ground of a violation of respondent’s right to a speedy trial because respondent (1) was responsible for much of the delay; (2) did not vigorously assert his right; and (3) was not prejudiced.  We reverse.

D E C I S I O N

 

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, courts 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) (quotation omitted).  None of the factors is alone determinative; instead they are “related factors and must be considered together with such other circumstances as may be relevant.”  Id. (quotation omitted).  We review the district court’s decision for an abuse of discretion.  See State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).  Appellant argues that respondent was not denied his right to a speedy trial, and the district court’s decision must be reversed.  We agree.

The first factor to be analyzed is the length of the delay.  Windish, 590 N.W.2d at 315. In Minnesota, a delay of more than 60 days from the date of a demand for a speedy trial is presumptively prejudicial and requires further inquiry to determine whether there was good cause for the delay.  Friberg, 435 N.W.2d at 513.  Here, the five-month interval between respondent’s demand and trial triggers further speedy-trial analysis. 

 We next consider the reasons for the delay.  Windish, 590 N.W.2d at 316.  The courts and prosecutors bear the primary burden to ensure speedy trials.  Id.  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).  In addition, “delay attributable to [a defendant] does not weigh in his favor.”  Windish, 590 N.W.2d at 316 (citation omitted).

Here, the district court concluded the delay was inexcusable because the court system had created the majority of the delay.  We disagree.  Respondent demanded a speedy trial on October 10, 2000.  But respondent then filed a motion to dismiss in early November, which was heard on November 20 and decided in early December.  Trial was then set for December 18.  On that date respondent failed to show up, later alleging that he did not receive notice.  Subsequently trial was set for February 20, 2001, but continued first until March 1 to allow discovery by both sides and then until March 8 because a prosecution witness was not available.  A mistrial was declared on March 8 because the court did not have a court reporter.  Subsequently the court granted respondent’s March 21 motion to dismiss for failure to ensure a speedy trial.  Thus, on these facts we conclude that a majority of the delay was attributable either to good-faith continuances or to actions of respondent and therefore, this factor does not weigh in respondent’s favor. 

A defendant’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, although respondent initially asserted his right to a speedy trial, he took other actions that resulted in delay and acquiesced in at least two continuances.  Thus this factor does not weigh heavily in respondent’s favor. 

            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 an accused person while awaiting trial; and (3) impairment of the defense, such as by lost witnesses or faded memories.  Id.  The defendant is not required to affirmatively prove prejudice, 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. (citation omitted). 

            Here, respondent has not alleged that any witnesses were unavailable.  Respondent was not incarcerated at any time during these proceedings.  And he mentions only emotional not financial stress caused by the delay.  Although the district court noted that respondent was prejudiced because he had to “gear up” for trial nearly eight times, we find no support for this finding in the record.  There is no evidence that respondent was prepared for his scheduled trial on December 18 when he failed to show up for the hearing.  Nor was he prejudiced by the delay on February 20 when both parties agreed to a continuance for additional discovery.  Thus, it is only on March 1 and March 8 that respondent may have “geared up” when his trial was delayed until March 21 because of the unavailability of first a prosecution witness and then a court reporter.  On these facts we conclude the record does not support a finding of prejudice.

Viewing the record in the context of the speedy-trial factors, we conclude that respondent was not denied his right to a speedy trial and the district court abused its discretion in dismissing the complaint.

Finally, we note that respondent, by making the motion to dismiss the day the trial was to begin without notice to appellant, did not comply with Minn. R. Crim. P. 10.04.  Although our reversal rests on the substantive merits of a speedy-trial analysis, we agree with appellant that the district court should have provided appellant with time to respond to respondent’s noncompliant motion.

Reversed.