This opinion will be unpublished and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

C5-01-1496

 

State of Minnesota,
Respondent,

vs.

Dean Lawrence Brooks,
Appellant.

 

Filed July 9, 2002

Affirmed; motion granted in part

Peterson, Judge

 

Scott County District Court

File No. 9921743

 

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

 

Thomas J. Harbinson, Scott County Attorney, Neil G. Nelson, Chief Deputy County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center, 200 West Fourth Street, Shakopee, MN  55379 (for respondent)

 

Brian R. Huffman, F. Clayton Tyler, 331 Second Avenue South, Suite 230, Minneapolis, MN  55401 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order denying his petition for postconviction relief, appellant Dean Lawrence Brooks argues that his right to a speedy trial was violated.  We affirm.

FACTS

On November 7, 1997, Brooks was charged with second- and third-degree assault.  At an uncontested omnibus hearing on December 10, 1997, he pleaded not guilty, and on December 12, 1997, he demanded a speedy trial.  The trial had previously been set for December 17, 1997.  After Brooks failed to appear for trial on December 17, his counsel waived the speedy-trial demand.  During the next two years, Brooks missed additional court appearances; underwent several rule-20 competency evaluations; and participated in separate criminal proceedings in which he was convicted of murder and assault.  Brooks did not reassert his demand for a speedy trial during this time.

The trial on the November 1997 assault charges was scheduled to begin on December 18, 1999, but two days before trial, the state moved for a continuance because a primary witness could not be located.  The court denied the motion because it was not timely served, and dismissed the charges against appellant.

Six days later, on December 22, 1999, the state refiled its complaint against Brooks and appealed the district court’s decision to dismiss the original complaint.  The first appearance on the second complaint was set for January 21, 2000.  The state filed its brief with this court, and the district court rescheduled Brooks’s first appearance for February 1, 2000.  Because the February 1 date conflicted with the hearing on Brooks’s petition for postconviction relief on his murder conviction, the court rescheduled the first appearance for March 13, 2000.  The first appearance did not occur on March 13, and it was again rescheduled.

On March 14, 2000, Brooks filed a motion to dismiss the second complaint on the grounds that his right to a speedy trial had been denied.  Brooks finally made his first appearance on the second complaint on April 14, 2000.  On June 23, 2000, this court dismissed the state’s appeal of the dismissal of the first complaint. 

Brooks’s counsel sent a letter to the district court on July 19, 2000, requesting a trial date and a ruling on his motion to dismiss.  Counsel sent a second letter to the court on August 10, 2000, again requesting a trial date, and also demanding a speedy trial and memorializing a telephone conference with the state and the district court during which it was agreed that the trial would be scheduled within 60 days.  The trial was scheduled for September 28, 2000.  Brooks’s attorney requested a Rasmussen hearing and a competency evaluation.  At the beginning of the Rasmussen hearing on September 28, 2000, the court denied Brooks’s motion to dismiss.  A rule 20 competency evaluation was ordered, and following a hearing on October 2, 2000, the court concluded that Brooks was competent to proceed.  The trial was held on October 4, 2000. 

Brooks’s counsel did not call any witnesses or offer any evidence, did not conduct any cross-examination, and waived opening and closing arguments.  The court found Brooks guilty of both assault charges and sentenced him to 57 months to be served concurrently with the sentence imposed on his murder conviction.

D E C I S I O N

            A petition for postconviction relief is a collateral attack on a conviction, which carries a presumption of regularity.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000). 

The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.

 

Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (quotation and citation omitted).  The petitioner has the burden “to show that the postconviction court’s findings of fact and conclusions of law were the result of an abuse of discretion.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citation omitted).

Brooks argues that because he demanded a speedy trial on December 12, 1997, and his trial was not held until October 4, 2000, his right to a speedy trial was denied, and his conviction must be reversed.  Criminal defendants are entitled to a speedy trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  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; State v. Kasper, 411 N.W.2d 182, 184 (Minn. 1987).

To determine whether a delay has violated an accused’s right to a speedy trial, 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.  Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972).  None of the factors is determinative.  Id. at 533, 92 S. Ct. at 2193.  “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”  Id.

A.         Length of Delay

Brooks made his original demand for a speedy trial on December 12, 1997, and trial did not commence until October 4, 2000.  This three-year interval between demand and trial 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).

B.         Reasons for Delay

Brooks concedes that he was primarily responsible for the delays that occurred until January 1999.  “[W]hen the overall delay in bringing a case to trial is the result of the defendant’s actions, there is no speedy-trial violation.”  State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).  Therefore, we will only address delays that occurred after January 1999.  Brooks argues that, except for one rule 20 evaluation, all of the delays after January 1999 can be attributed to the court and the state. 

The only delay that Brooks addresses that occurred after January 1999 is what he describes as the main delay caused by the prosecutor’s failure to dismiss its unnecessary appeal of the dismissal of the first complaint.  This delay did not occur until December 1999 when the state filed the appeal. 

Brooks argues that while the appeal was pending, prosecution of the second complaint did not move forward.  He contends that 

[t]he only logic behind the prosecutor’s dual track approach was to delay proceedings while they attempted to locate the victim and compel his appearance at trial in Minnesota.

 

But Brooks’s petition for postconviction relief alleged no facts to support this claim.  See Minn Stat. § 590.02, subd. 1(1) (2000) (petition in postconviction proceeding shall contain “statement of the facts and the grounds upon which the petition is based”); State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (postconviction court’s decision is reviewed for abuse of discretion, and appellant bears the burden of showing that the court abused that discretion). 

C.        Assertion of Right to Speedy Trial

A defendant who fails to demand a speedy trial does not forever waive his right to do so.  State v. Windish, 590 N.W.2d 311, 317 n.2 (Minn. 1999).  Instead, “‘the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.’”  Id. (quoting Barker, 407 U.S. at 528, 92 S. Ct. 2191).  Also, “[a]ssertion of the right to a speedy trial need not be formal or technical.”  Id. at 317.  We look “for any ‘action whatever * * * that could be construed as the assertion of the speedy trial right.’”  Id. (omission in original) (quoting Barker, 407 U.S. at 534, 92 S. Ct. at 2194).

But the strength of a demand is likely to reflect the seriousness of the deprivation of the right to a speedy trial.  Barker, 407 U.S. at  531, 92 S. Ct. at 2192.

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned.  The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences.  The more serious the deprivation, the more likely a defendant is to complain.  The 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.  We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

 

Id. at 531-32, 92 S. Ct. at 2192-93; see also Johnson, 498 N.W.2d at 16 (stating that “prompt” and “forceful” speedy trial assertions “are key to a court’s evaluation of a speedy trial claim”).

Brooks initially demanded a speedy trial in December 1997.  However, after making the demand, Brooks failed to appear for the scheduled trial. 

[D]elay occasioned by the defendant himself often is deemed a temporary waiver of his speedy trial demand, which can only be revived when the defendant reasserts his speedy trial right.

 

Johnson, 498 N.W.2d at 16.

There is no evidence that Brooks reasserted his speedy-trial right at any time before March 13, 2000.  During a hearing on the state’s motion for a continuance in December 1999, Brooks’s counsel mentioned his right to have the case heard and stated on the record that Brooks had not waived his right to a speedy trial.  But counsel did not demand a speedy trial.  After that, a speedy trial was not mentioned again until March 13 when Brooks filed his motion to dismiss for lack of a speedy trial.   

Brooks argues that he also demanded a speedy trial in letters to the district court.  But his July 19, 2000, letter merely requested a decision on his motion to dismiss and did not demand a speedy trial, and his July 26, 2000, letter was never sent to the district court and was not included in the record until September 27, 2000, when it was included as an attachment to an affidavit.  In an August 10, 2000, letter Brooks demanded a speedy trial, and the trial was held within 60 days after August 10, 2000.

Brooks has not shown that the postconviction court abused its discretion when it concluded that he never “made a formal request for a speedy trial in any of the proceedings which took place in conjunction with [the refiled assault charges],” or when it concluded that “[Brooks’s] efforts in demanding a speedy trial on the assault charges were minimal.” 

D.        Prejudice

This court looks to three indicators of prejudice: (1) oppressive pretrial incarceration; (2) anxiety and concern suffered by the accused while awaiting trial; and (3) impairment of the defense, such as by lost witnesses or faded memories.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193.  Brooks is not required to affirmatively prove prejudice.  Doggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686, 2692 (1992) (citing Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189 (1973).  Rather, prejudice can be suggested by “likely harm” to his case.  Windish, 590 N.W.2d at 318 (citing Moore, 414 U.S. at 26-27, 94 S. Ct. at 190). 

On November 12, 1998, Brooks pleaded guilty to a charge of second-degree murder and was sentenced to a term of 36 years.  Consequently, he was already incarcerated when he asserted his speedy-trial right, and any delay in bringing him to trial on the assault charges did not result in any pretrial incarceration. 

Brooks argues that because his anxiety level fluctuates with every unresolved issue in his life, the absence of a resolution in this matter caused him anxiety.  However, on April 3, 1998, Brooks was indicted on two counts of first-degree murder and one count of second-degree murder, and until late in 1999, he pursued postconviction remedies for his murder conviction.  In addition, while the November 1997 assault charges were pending, Brooks was charged with another assault and convicted.  He pursued postconviction remedies for that assault conviction into the middle of 2001.  Consequently, any anxiety and concern Brooks experienced while awaiting trial on the November 1997 assault charges occurred while he was experiencing the anxiety and concern associated with his other offenses.

Brooks argues that his defense was impaired because two witnesses who were present at the time of the November 1997 assault were unavailable as a result of the delay in getting the case to trial.  Availability of witnesses at an earlier date followed by unavailability of witnesses at the time of the delayed trial can indicate a defendant was prejudiced by delays.  Id. at 319.  There were three possible witnesses present at the scene of the alleged assault.  Brooks does not identify which two of these witnesses were unavailable as a result of the delay in getting the case to trial, but because one of the witnesses was the victim in the murder for which Brooks was convicted, we presume that it was the other two witnesses that he contends became unavailable as a result of the delay.  One of these witnesses fled the scene before police could interview him and was never located.  The police interviewed the second witness. 

Brooks argues that these two witnesses could have provided important details on why the victim was at his house and what his state of mind was at the time of the alleged assault, but he does not indicate what details they could have provided or what impact these details could have had in his trial. 

Because Brooks has not shown that (1) the prosecution or the court caused delays before he moved to dismiss on March 13, 2000, (2) he made anything more than minimal efforts to assert his speedy-trial right, or (3) he was prejudiced by the delay in proceeding to trial, we conclude that he did not meet his burden of demonstrating that the postconviction court abused its discretion when it denied his petition for postconviction relief.

2.         Motion to strike

            Brooks moved to strike documents B, D, E, K, L, and M from the state’s appendix and any references to these documents from the state’s brief. 

            Appendix L, a transcript of a police interview of Brooks, was an exhibit at trial and is in the record. 

Appendix M is a transcript of a police interview of one of the witnesses who was later unavailable.  Although, in its order, the district court refers to the interview, indicating that the transcript was considered by the district court, the transcript is not in the record.

The state concedes that documents B, D, E, and K are not in the record.

The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.

Minn. R. Civ. App. P. 110.01.

Documents B, D, E, K, and M are stricken from the state’s appendix, and references to those documents are stricken from the state’s brief.

            Affirmed; motion granted in part.



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