This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Lee Allan Christensen,
Filed April 1, 2003
Crow Wing County District Court
File No. K0012331
Michael K. O’Tool, 18073 Bernard Trail, Brainerd, MN 56402 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Bruce F. Alderman, Assistant County Attorney, 322 Laurel, Brainerd, MN 56401 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges his DWI conviction, arguing that the district court’s failure to bring him to trial within 60 days constituted a violation of his right to a speedy trial under the United States and Minnesota Constitutions. Because we conclude that there was no adequate justification for the delay in bringing appellant to trial, we conclude his right to a speedy trial was violated and accordingly reverse his conviction.
On the night of September 27, 2001, Pequot Lakes Police Officer Brad Gerner arrested appellant on a gross-misdemeanor violation of Minn. Stat. § 169A.20 (2000) (driving while impaired) after appellant failed to stop at a stop sign. Appellant was charged by complaint with violations of Minn. Stat. §§ 169A.20, subd. 1(1), (5); 169A.25, subds. 1, 2; 171.24, subd. 5; 169.30; and 171.09 (2000).
At his initial court appearance on October 29, 2001, appellant entered a not-guilty plea, and his attorney requested a speedy trial stating, “I would make a speedy trial demand on Mr. Christensen’s behalf.” After appellant told the court that he needed more time to talk with his attorney, the court instructed appellant to consult with counsel outside the courtroom. After meeting with his attorney, appellant’s case was not recalled. Also, despite appellant’s attempted waiver of an omnibus hearing, the court scheduled the hearing to address, among other issues, the legality of the stop of appellant’s car.
The record is unclear regarding how many continuances occurred and the extent of appellant’s requests that a trial date be set. At least one of the continuances, though, was related to the unavailability of one of respondent’s witnesses. On March 4, 2002, counsel renewed appellant’s speedy-trial demand. At that hearing, appellant claimed that he had previously asked for a speedy trial and waived an omnibus hearing at his first appearance on October 29, 2001. The court, noting that it would take appellant’s speedy trial argument under advisement, continued to receive evidence regarding whether the stop of appellant’s vehicle was legal.
The district court denied appellant’s motion to dismiss on the speedy-trial issue. The district court held that although appellant’s counsel had made a speedy-trial demand at the October 29, 2001 hearing, because the meeting between appellant and counsel that day resulted in no further on-the-record proceedings, any previously made demand was negated. On April 29, 2002, appellant renewed his motion for dismissal for failure to provide a speedy trial. The district court again denied appellant’s motion. At this hearing, appellant again pleaded not guilty to all charges.
On May 13, 2002, appellant entered a stipulation pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). On the basis of the stipulation, the district court convicted appellant of first-degree DWI, in violation of Minn. Stat. §§ 169A.20, subd. 1(5), 169A.25. Appellant challenges the conviction on the basis of a violation of his right to a speedy trial, alleging that the delay from October 29, 2001, until April 29, 2002 when a trial date was set, prejudiced him. Respondent has not filed a brief in this matter.
Appellant argues that because he demanded a speedy trial on October 29, 2001, and the district court eventually scheduled his trial for April 29, 2002, his right to a speedy trial was denied, necessitating reversal of his conviction.
The Sixth Amendment to the United States Constitution guarantees the right to a speedy trial. U.S. Const. amend. VI. Under the Fourteenth Amendment, this right also applies to state criminal proceedings. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). The Minnesota Constitution also grants defendants the same guarantee to a speedy trial. Minn. Const., art. 1, § 6. Minnesota courts have interpreted the right to a speedy trial to be the same under both the United States and Minnesota constitutions. Windish, 590 N.W.2d at 315. A rule of criminal procedure provides specificity to this constitutional guarantee:
A defendant shall be tried as soon as possible after entry of a plea other than guilty. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney’s or the defendant’s motion or upon the court’s initiative why the defendant should not be brought to trial within that period. * * * If trial is not commenced within 120 days after such demand is made and such a plea is entered, the defendant, except in exigent circumstances, shall be released subject to such nonmonetary release conditions as may be required by the court under Rule 6.01, subd. 1.
Minn. R. Crim. P. 11.10.
To determine whether a delay has violated appellant’s right to a speedy trial, we consider (1) the length of the delay, (2) the reason for the delay, (3) defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); see also State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker analysis for speedy-trial demands). None of the Barker factors are determinative. Barker, 407 U.S. at 533, 92 S. Ct. at 2192. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533, 92 S. Ct. at 2193.
In a footnote in Barker, the Supreme Court stated
[n]othing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory power which establishes a fixed time period within which cases must normally be brought.
Id. at 530 n.29, 92 S. Ct. at 2192 n.29. Therefore, in analyzing a claim to a speedy trial under Minn. R. Crim. P. 11.10, we consider the Barker factors. State v. Brooke, 381 N.W.2d 885, 888 (Minn. App. 1986).
The length of the delay between a defendant’s demand for a speedy trial and the trial is a “triggering mechanism,” which determines if further review is necessary. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. A further inquiry into the remaining three Barker factors is warranted if the length of the delay is “presumptively prejudicial.” Id. at 530-31, 92 S. Ct. at 2192. In Minnesota, delays of more than 60 days from the date of the demand for a speedy trial raise a presumption that a violation has occurred. State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).
The alleged speedy-trial demand by appellant’s counsel occurred on October 29, 2001, and the district court did not schedule his trial until April 29, 2002—six months, or approximately 180 days, later. Therefore, if appellant’s October 29, 2001 request for a speedy trial was an adequate demand, appellant’s trial was delayed more than 60 days. This delay raises a presumption that a violation occurred and requires an examination of the remaining three Barker factors. Id. at 513.
The second factor of the Barker analysis requires an inquiry into the reasons for the delay. 407 U.S. at 531, 92 S. Ct. at 2192. The Supreme Court in Barker placed the burden on the state to ensure speedy trials:
The rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial.
Id. at 529, 92 S. Ct. at 2191. To be fair to the respondent, however, any delays that are attributable to appellant should weigh against him. Windish, 590 N.W.2d at 316.
The record is not clear regarding the reason or reasons for the six-month delay or who caused it. Only one delay is explained by the record; that delay was caused by the unavailability of a prosecution witness. “Normally, the unavailability of a witness constitutes good cause for delay.” Id. at 317. Although appellant concedes that there is no adequate explanation for the other postponements, he asserts that they were not the result of his conduct, and there is nothing in the record before us to suggest otherwise. Given the burden placed on respondent to ensure a speedy trial and the absence of any indication that appellant caused or contributed to the delay, this factor weighs in favor of appellant.
Finally, the Supreme Court in Barker noted that the delay tolerable for a complex crime might not be tolerable for simpler criminal cases. 407 U.S. at 531, 92 S. Ct. at 2192. The DWI charge here is hardly a complex case necessitating considerable delay. Assuming again that appellant made an effective speedy-trial demand at his initial court appearance, the relative simplicity of the charged offense and respondent’s failure to produce adequate justification for the numerous continuances weigh against the respondent.
The third factor to be considered under the Barker analysis is how appellant asserted his right to a speedy trial. Whether a defendant’s demand for a speedy trial is “prompt” and “forceful” is “key to a court’s evaluation of a speedy trial claim.” State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).
[T]he frequency and force of a demand must be considered when weighing this factor and the strength of the demand is likely to reflect the seriousness and extent of the prejudice which has resulted.
Friberg, 435 N.W.2d at 515.
Although it is clear that appellant’s counsel made a speedy-trial demand on the record at appellant’s first appearance, the district court held that the conference between appellant and his attorney, and the subsequent failure to again appear in court that day, negated any demand made. The district court concluded that appellant “did not make a demand for a speedy trial” and that appellant’s right to a speedy trial had not been denied.
Appellant argues that he expressly demanded a speedy trial despite the fact that the on-the-record proceedings were interrupted to allow appellant to discuss matters with his counsel. Appellant relies on Windish:
Assertion of the right to a speedy trial need not be formal or technical, instead the Supreme Court has looked for any action whatever * * * that could be construed as the assertion of a speedy trial right. We have said that an assertion of the speedy trial right is determined by the circumstances.
590 N.W.2d at 317 (quotation and citation omitted).
Appellant’s demand for a speedy trial on October 29, 2001, was prompt and forceful. Nothing about appellant’s request was ambiguous. Appellant’s counsel clearly stated, “I would make a speedy trial demand on Mr. Christensen’s behalf.” Keeping in mind that Barker instructs courts to look for any “action whatever” as an assertion of a defendant’s speedy-trial right, the circumstances of the October 29, 2001 hearing make it clear that appellant’s speedy-trial rights were at issue. Appellant’s trial was scheduled for six months after this hearing date, three times the period allowed by Minn. R. Crim. P. 11.10. This factor also weighs in favor of appellant.
The final prong of the Barker analysis looks at whether appellant suffered prejudice because of the delays. 407 U.S. at 532, 92 S. Ct. at 2193. The right to a speedy trial protects three interests: “(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.” Windish, 590 N.W.2d at 318. Appellant is not required to affirmatively prove any type of prejudice, however. Id. Rather, prejudice may be suggested by “likely harm” to appellant’s case. Id. (citing Moore v. Arizona, 414 U.S. 25, 26-27, 94 S. Ct. 188 (1973)).
But appellant faces a difficult challenge in demonstrating this type of prejudice. The Supreme Court has stated that impairment of defense is the most difficult kind of speedy-trial prejudice to prove. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Because appellant failed to establish that the circumstances surrounding the delay harmed his case or influenced his decision to plead to the charged crimes, his defense was likely not impaired. Appellant has not established that he would have prepared a stronger defense if only 60, and not 180, days had passed. See Windish, 590 N.W.2d at 318-19 (finding the availability of defendant’s witnesses at earlier trial dates suggested harm to defendant’s case).
A showing of prejudice, however, is not confined solely to appellant’s inability to mount an adequate defense to the charged crimes. We also consider prejudice from interference with appellant’s liberty, disruption of employment, financial hardship, strain on friendships and associations, and anxiety and stress to appellant and his family. See Brooke, 381 N.W.2d at 889 (having to appear in court five separate times, bringing witnesses each time, experiencing anxiety and stress from the preparation for, and attendance of trial on all occasions, substantially prejudiced defendant).
We conclude that appellant’s lengthy incarceration before a trial date was even set - from September 27, 2001, until April 29, 2002 - prejudiced him. In so holding, we are cognizant of this court’s prior case law holding that pretrial incarceration, while unfortunate, is not enough to demonstrate prejudice. State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990); State v. Givens, 356 N.W.2d 58, 62 (Minn. App. 1984), review denied (Minn. Jan. 2, 1985). But here, appellant’s pretrial incarceration also hindered his ability to provide financial support for his family and caused appellant’s health to deteriorate to the extent that transfers to the hospital for treatment were required. See State v. Stitzel, 351 N.W.2d 409, 411 (Minn. App. 1984) (defendant’s alleged emotional strain on his family and his job performance due to waiting for eight months to resolve a misdemeanor assault charge was personal prejudice that outweighed the state’s considerations in the case). Having demonstrated harm and more than mere pretrial incarceration, appellant has fulfilled the prejudice requirement of Barker.
The delay in proceeding to trial here was a violation of appellant’s constitutional right to a speedy trial. First, the length of the delay weighs against respondent, although not as heavily as if there had been a deliberate delay to hamper the defense or harass appellant. State v. Brouillette, 286 N.W.2d 702, 706 (Minn. 1979). Second, although the record indicates the reason behind only one of the five delays, this factor still weighs against respondent because it is respondent’s duty to ensure speedy trials and bring a defendant to trial promptly. Barker, 407 U.S. at 527, 92 S. Ct. at 2190. Third, the district court erred by concluding that appellant did not appropriately demand a speedy trial. Because any “action whatever” can constitute a proper demand, appellant’s counsel correctly placed the speedy trial at issue in his first appearance on October 29, 2001. Finally, appellant established that he suffered personal prejudice because of the delay.
 The court also determined that Gerner had sufficient probable cause to stop appellant’s vehicle based on appellant’s failure to stop his vehicle at a stop sign.
 Minn. Const., art. 1, § 6, provides:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law.
 Appellant also argues in the alternative that this court should exercise its inherent supervisory power to vacate appellant’s conviction. Because we agree with appellant that his speedy-trial rights were violated, we need not address this issue. We do note, however, that case law has never explicitly granted the court of appeals the supervisory power to insure the fair administration of justice, and appellant cites no authority for such an inherent power. See State v. Lopez, 538 N.W.2d 705, 707 n.1 (Minn. App. 1995) (declining to address what supervisory power the court of appeals may have); State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995) (refusing to exercise supervisory powers reserved to the supreme court), review denied (Minn. Sept. 20, 1995); cf. Lopez, 538 N.W.2d at 707 (Randall, J., concurring specially) (opining that court of appeals has some supervisory powers, for example, when the court observes a breach of the rules of appellate procedure).