This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jonathan Paul Nordstrom,
Gordon W. Shumaker, Judge
St. Louis County District Court
File No. K302600142
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant St. Louis County Attorney, 100 North Fifth Avenue West, No. 501, Duluth, MN 55802-1298 (for appellant)
John M. Stuart, State Public Defender, 331 Second Avenue South, Suite 900, Minneapolis, MN 55401; and
Wesley Martins, Joanne Piper-Mauer, Indian Legal Assistance, 107 West First Street, Duluth, MN 55802 (for respondent).
Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Huspeni, Judge.*
GORDON W. SHUMAKER, Judge
Appellant State of Minnesota challenges the district court’s pretrial order denying a continuance of respondent’s criminal trial. Because the record shows that the district court did not abuse its discretion in denying the continuance, we affirm.
The state accused respondent Jonathan Paul Nordstrom of stabbing Garrett Olson in the jaw in a Duluth apartment building on February 3, 2002. Neither Nordstrom nor Olson remembers the incident, but various people in the apartment building at the time told the police that Nordstrom and Garrett were arguing in the apartment. One witness said that Nordstrom was swinging a knife around during the argument. This witness left the area, but later saw Nordstrom dragging Olson out of the apartment by the hair. Another witness was in the kitchen when the argument began, but then went into another room. As she left, she heard Olson yell out. She returned and saw Olson on his knees with his hand on his neck and blood flowing between his fingers.
When the police arrived to investigate the report of Olson’s stabbing, they found Nordstrom sleeping on the kitchen floor. They arrested him and took swabs of a “blood‑like material” from his fingernails. The police also confiscated various items of clothing belonging to Nordstrom, a backpack containing a Leatherman Tool with apparent traces of blood on it, swabs from blood spatters in the kitchen and the hallway, a butter knife with a red substance on it, a clump of hair, and other items. Nordstrom’s clothing had small stains and smudges of what appeared to the police to be blood.
Nordstrom remained in custody from the date of his arrest, apparently because of the present charge and a probation violation, part of which related to the present charge. On May 30, 2002, he demanded a speedy trial. Trial was set for July 9, 2002, which was 40 days after the demand.
The state learned on June 17, 2002, that one of its investigating officers would be out of the state from July 5 to July 15, 2002.
On June 19, 2002, the state took blood samples from Nordstrom for submission for DNA testing. The testing was not expected to be completed in time for Nordstrom’s trial.
On June 27, 2002, the state moved for a continuance, arguing that a critical witness and critical DNA evidence would not be available for a July 9, 2002, trial. Nordstrom opposed the motion, but agreed to a continuance if he could be placed on supervised release pending the trial. The state opposed Nordstrom’s release.
At the motion hearing, the state argued the basis for a continuance:
There is considerable evidence that’s – either has been or will be sent to the BCA. I have been advised that they need six weeks, that the testing will not be completed by July 9, that, as well as the testimony of Sergeant Campbell is critical to the state’s case. Sergeant Campbell interviewed the defendant. He was involved in the search. He went back to the premises. He seized the knife that appeared to have blood on it and a backpack that was identified as the defendant’s.
The state also argued that Sergeant Campbell interviewed Nordstrom.
Finding that the state had failed to show good cause for a continuance, the district court denied the state’s motion. The state then brought this pretrial appeal.
D E C I S I O N
The district court enjoys discretion as to whether or not to grant a continuance motion and the district court’s decision will not be reversed unless an abuse of discretion is demonstrated. State v. Scharfencamp, 416 N.W.2d 825, 826 (Minn. App. 1997) (citation omitted). The test for abuse of discretion is whether the district court’s decision will prejudice the outcome of the case. State v. Jones, 451 N.W.2d 55, 61-62 (Minn. App. 1990) (citation omitted), review denied (Minn. Feb. 21, 1990). Here, the state
must “clearly and unequivocally” show both that the trial court’s order will have a “critical impact” on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995) (citations omitted). The state need not show that the order will result in complete destruction of its case, but only that the order “significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).
The state argues that the district court’s denial of a continuance of the trial results in the suppression of both critical witness testimony and DNA evidence. See State v. Stroud, 459 N.W.2d 332, 334 (Minn. App. 1990) (stating a denial of a continuance effectively suppresses DNA evidence) (citing State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989)).
Recognizing that the state’s burden on appeal is to show clearly and unequivocally that the district court’s order will have a critical impact on the prosecution of this case, we hold that the state has failed to carry its burden.
First, as to the importance of Sergeant Campbell as a witness, the state apparently would offer his testimony on his interview with Nordstrom and his seizure and search of Nordstrom’s backpack, which contained a knife.
The interview is documented, and Nordstrom in essence states that he does not remember what happened on the date of the stabbing. This is the same thing Nordstrom told other officers at the scene just before his arrest. Thus, other investigating officers could testify regarding Nordstrom’s statements.
Sergeant Campbell confiscated and searched Nordstrom’s backpack. Other officers at the scene saw the backpack there, but they left it for further crime‑scene processing. Before being placed in custody at the scene, Nordstrom told arresting and investigating officers that the backpack belonged to him. The victim also said Nordstrom had a backpack. Thus, the victim and various police officers could identify the backpack. Because Sergeant Campbell was the person who found in the backpack a knife-like tool with traces of what he believed to be blood, arguably he would be a necessary chain-of-custody witness for the introduction of the knife. However, the state has not shown clearly and unequivocally that there would be no other way than through Sergeant Campbell’s testimony to introduce the knife into evidence. Furthermore, the chain of custody is a foundational issue for the trial judge, and the state makes no showing whatsoever that an adequate chain of custody could not be established without the testimony of Sergeant Campbell.
Regarding the DNA testing, the only thing that is clear and unequivocal is that a sample of Nordstrom’s blood was taken from him. There is no evidence beyond speculation that the stains and trace substances found on various items are blood or other bodily fluids that contain DNA. The substance taken from Nordstrom’s fingernails was simply something red. Nordstrom claims it was pizza sauce. It is also speculative that any DNA on any items connected with Nordstrom would be inculpatory. If the DNA either is not linked to Nordstrom or is exculpatory in some way, the absence of the DNA test results would have no impact on the state’s ability to prosecute.
The state has failed to show that the court’s order will have a critical impact on the prosecution.
The district court found that the state had not shown good cause for a continuance. The record reveals that the police seized items with ostensible bloodstains or traces on February 3 and 4, 2002. The state did not obtain a sample of Nordstrom’s blood until four- and one-half months later. The state offered no explanation for the delay. It was not clear that DNA testing had been requested as of the motion hearing date, nearly five months after the police found apparently bloodstained evidence,. The state gave no explanation for the delay. And the state did not show how Sergeant Campbell, one of many officers involved in the investigation of the case, was so critical to the prosecution that the likelihood of success would be significantly impaired without his testimony.
The state does not dispute that Nordstrom demanded a speedy trial on May 30, 2002. A delay of more than 60 days from that demand is presumptively prejudicial. State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).
Although a trial may be continued beyond the 60‑day limit, good cause for the continuance must be shown. Minn. R. Crim. P. 11.10. The unavailability of a witness, and presumably other evidence, can constitute good cause for a delay. State v. Windish, 590 N.W.2d 311, 317 (Minn. 1999). But the prosecution must be diligent in its efforts to obtain necessary witnesses and evidence for trial. Id. at 317. Here, both the availability of Sergeant Campbell and the DNA test results were largely within the state’s control. The DNA samples could have been submitted for testing months before the date set for trial. The state offered no reason for not doing so. Sergeant Campbell’s schedule might have required the state to request a brief continuance, but that should have been done promptly upon notification of the trial date instead of two weeks before the trial. The state offered no reasonable explanation as to why such a request was delayed. The district court did not abuse its discretion in denying the state’s continuance motion for lack of good cause.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.