This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota, City of Afton,





Mark R. Atkins,



Filed April 23, 2002


Hanson, Judge


Washington County District Court

File No. T4-00-11504


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


Thomas J. Radio, Jodi L. Johnson, Sean R. Simpson, Hinshaw & Culbertson, 222 South Ninth Street, Suite 3100, Minneapolis, MN 55402 (for respondent)


Lynne A. Torgerson, 12 South Sixth Street, Suite 1053, Plymouth Building, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N


Appellant seeks review of his conviction of fifth-degree domestic assault, arguing inter alia that he was denied the right to a speedy trial.  Because we conclude that waiting over a year for a trial on this misdemeanor charge was unreasonable, we reverse.



On May 5, 2000, appellant Mark Atkins had out-patient surgery.  While Atkins was in surgery, his wife found a receipt for the purchase of a Playboy magazine and became extremely upset, confronting him with the receipt while he was still in the hospital.  What followed was a series of arguments escalating to physical altercations that started during the drive home and ended several hours later at their home.  Atkins, claiming self-defense, testified that his wife hit him, punched him, sat on him, threatened his eye with a cigarette and threatened his life.  He also testified that he attempted to restrain her on several occasions, and admitted to slapping her face with an open hand.  He testified that he repeatedly asked her to leave him alone.

            Atkins’ wife testified that she was upset by finding the receipt for the magazine, but later attempted to initiate intimacy with him by crawling onto his lap as he lay on a mattress on the floor.  She testified that he rebuffed her advances and pushed her away.  She admitted to putting her lit cigarette within six inches of his face.  She also testified that appellant packed several bags and attempted to leave the house and that she followed him to his vehicle, asking him to stay.  They both went back into the house and the argument escalated further.  She testified that he threatened her with a belt and a cane.  She admitted to hitting him on his upper arms and testified that he hit her back.  She denied ever threatening to kill him.  She testified that he slapped her repeatedly and slammed her head against the wall.  Immediately following the last physical altercation, she left the house and drove to the police department.

            Atkins was charged with fifth-degree domestic assault on May 6, 2000.  His trial did not commence until May 14, 2001, over one year later.  The jury returned a guilty verdict for fifth-degree domestic assault.  Atkins was sentenced to 90 days in jail; 45 days of which were suspended.  This appeal followed.



Atkins raises numerous arguments to overturn his conviction, many of them frivolous.  The one argument that merits attention, however, is that his conviction should be reversed because his constitutional right to a speedy trial was violated.

Both the federal and state constitutions guarantee a defendant the right to a speedy trial.  U.S. Const. amends. VI and XIV; Minn. Const. amend. VI.  Minnesota has adopted the four-part balancing test for determining whether a particular defendant’s right to a speedy trial has been violated, as set forth in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972).  See State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker balancing test for speedy trial demands).  Minnesota courts balance (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right and (4) any prejudice to the defendant.  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). 

None of the factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial; rather they are related factors and must be considered together with relevant circumstances as may be relevant. 


Id.  (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2182)


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. 6.06.  Atkins initially filed his speedy trial demand on December 15, 2000, and his trial did not begin until May 14, 2001, which is about 150 days.  This delay raises a presumption that a violation has occurred.  Windish, 590 N.W.2d at 315-316.  “Where the length of the delay is ‘presumptively prejudicial’ there is a necessity for inquiry into the remaining factors of the test.”  Id. at 315 (quoting Barker, 407 U.S. at 530-31, 92 S. Ct. at 2182).

The second factor of the Barker test requires an examination of the reasons for the delay.  Windish, 590 N.W.2d at 316.  The record reveals that the initial period of delay, from the charge on May 6, 2000, to Atkins’ demand for trial on December 15, 2000, were largely Atkins’ responsibility.  A trial date was scheduled for August 14, 2000, but Atkins, initially appearing pro se, requested a continuance after he retained an attorney.  The trial was re-scheduled for October 9, 2000.  When the prosecution requested a continuance to October 23, 2000, due to witness conflicts, Atkins did not object.  Due to additional witness conflicts for both the state and Atkins, the trial date was continued to January 8, 2001.  Finally, Atkins retained new counsel in December 2000 and requested a continuance on December 6.  The state opposed the motion and it was denied.

The next period of delay, until February 1, 2001, was also largely the responsibility of Atkins.  While he filed his demand for a speedy trial on December 15, 2000, he also filed 24 motions at the same time.  Many of these motions were frivolous on their face, referring to generic issues that had no application to the facts of the case, and were without any supporting legal memoranda.  Atkins filed memoranda in support of some of his motions on January 3, 2001, leaving little time for the state to oppose or the district court to review them.  At the January 8, 2001, hearing, the district court ruled on many of the motions, but declined to make some of the evidentiary rulings in a hurried fashion and scheduled subsequent hearings and a new trial date.  A motion hearing was held on January 29, 2001, at which time Atkins requested the opportunity to present live testimony.  The district court ruled on these motions on February 1, 2001. 

While the court would have been justified in rejecting many of Atkins’ motions summarily, Atkins is in no position to fault the court for the delay occasioned by the motions that he presented and insisted on arguing.  See State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (stating that when the delay is due to the defendant’s own actions, there is no speedy trial violation).  However, the delay after February 1, 2001, was not primarily the responsibility of Atkins.  While some “loose ends” of one of Atkins’ motions remained after February 1, this was a motion in limine that did not prevent the scheduling of trial.  When the parties were before the court on that motion on March 1, 2001, the court directed the parties to agree upon a trial date and to conference the court on the call.  The state did not follow that directive, but attempted to unilaterally secure a trial date in June to accommodate conflicts in the prosecutor’s schedule.  Atkins objected to that date, reasserting his speedy trial demand, but the matter was still not scheduled to begin until May 14, 2001. 

We conclude that the reasons for this last delay of over 100 days, from February 1 to May 14, 2001, weigh primarily against the state.  The burden is on the state, not the defendant, to ensure speedy trials, and scheduling conflicts are not valid reasons for denying a defendant a speedy trial.  Windish, 590 N.W.2d at 316.  Compare McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989) (stating that good cause does not include calendar congestion unless exceptional circumstances exist);[1] with State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989) (stating “where calendar congestion is the reason for delay, it weighs less heavily against the state than would deliberate attempts to delay trial”) (citing Barker, 407 U.S. at 531, 92 S. Ct. at 2192)).

The third Barker factor is the assertion of the right to a speedy trial.  Windish, 590 N.W.2d at 317.  Here, Atkins made an express assertion of that right in a motion to the court, filed December 15, 2000, and he re-asserted his right to a speedy trial on March 5, 2002. 

A defendant’s assertion of his speedy trial right, then, 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 2192-2193.


The final prong of the Barker test requires us to determine whether Atkins suffered prejudice as a result of the delays.  See Windish, 590 N.W.2d at 318.  Three interests are examined when determining whether an appellant was prejudiced: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) prevention of the possibility that the defense will be impaired.  Id.  “A defendant does not have to affirmatively prove prejudice; rather, prejudice may be suggested by likely harm to a defendant’s case.”  Id. (citation omitted).  This factor does not weigh strongly for Atkins.  He was not incarcerated prior to trial, there was no evidence that the level of anxiety or concern was extraordinary, and he was unable to show direct harm or specific prejudice to his case.  But, given the emotional context of the case, there surely was some anxiety and concern caused by the delay.

Weighing all these factors, and being mindful that none is dispositive but must be considered together with other relevant circumstances, we conclude that appellant’s constitutional right to a speedy trial was violated.



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

[1] This was incorporated into the 1990 amendment to Minn. R. Crim. P. 6.06.