This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ramsey County District Court
File No. K7023861
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102-1657 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
On appeal from a conviction of criminal sexual conduct, appellant Julian Garcia Cordova argues that he was denied a speedy trial. Appellant also asserts that the admission of a videotaped statement of the victim and prosecutorial misconduct denied him a fair trial. We affirm.
I. Speedy trial
More than 13 months elapsed between the time appellant was charged and the date of trial. Appellant argues that repeated continuances denied him the right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Minnesota Constitution. We disagree.
Appellant did not request a speedy trial and did not argue to the district court that his right to a speedy trial had been denied. In general, a defendant who does not raise an issue in the trial court has waived the right to raise the issue on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). But this court can consider constitutional issues not raised at the district court when required in the interest of justice, when parties have had adequate briefing time, and when issues were implied at trial. Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982). In this case, the state, appellant’s counsel, and the court repeatedly acknowledged that this case had taken too long to get to trial, so the issue was raised, at least by implication, at trial, the parties have had adequate briefing time, and we conclude that review is in the interest of justice.
Minnesota has adopted a four-part analysis to determine whether a defendant’s right to a speedy trial has been violated. State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977). The factors considered are: (1) the length of delay; (2) the reason for delay; (3) if and when defendant asserted his right to a speedy trial; and (4) the prejudice to defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); Widell, 258 N.W.2d at 796. “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 such other circumstances as may be relevant.’” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker, 407 U.S. at 533, 92 S. Ct. at 2193).
a. Length of delay
In Minnesota, delays beyond 60 days from the date of demand raise a presumption that a violation has occurred. Id. at 311, 315-16. The court need not consider the other three factors unless there is some “presumptively prejudicial” delay. State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). Although appellant did not assert his right to a speedy trial, the thirteen-month delay from charging to trial is sufficient to trigger analysis of the remaining factors. Id. (holding that a seven-month delay from first request for speedy trial was sufficient to trigger further analysis.).
b. Reason for delay
Trial was originally to be scheduled within a 3-week period following a January 7, 2002 trial management conference. At the January 7 trial management conference, a new trial management conference was set for February 13, with trial to begin during a three-week period beginning February 19. At the February 13 trial management conference, appellant’s attorney requested a continuance of the conference to February 19 because she was pregnant and her due date was close, and she believed she would have the name of an attorney who could take over the case by that date. At the February 19 trial management conference, another public defender had not yet been assigned so appellant’s counsel asked for another continuance. She suggested an April or May date in order to accommodate the availability of her expert witness. The assigned judge was scheduled to preside over a murder trial in April. The state was insistent that trial start on February 25 because of the victim’s young age. Appellant’s attorney noted that her client also wanted the matter resolved, but stated that the public defender’s office was understaffed because two people were out on leave, and there was no money available to hire another attorney. The trial management conference was apparently continued to February 25. At an unrecorded conference on February 25, the case was continued to April 8. At an unrecorded conference on April 8, the case was continued to June 17. On June 17, a different prosecutor appeared and another attorney appeared for appellant, requesting a continuance because the public defender newly assigned to the case was suffering from a medical emergency. The state apparently joined in that request for a continuance. A new trial management conference was set for July 16 and a new judge was assigned.
At the July 16 conference, appellant’s original attorney and the original prosecutor appeared. The newly assigned judge asked for an explanation of how the case had been assigned to him. Counsel indicated that they had asked for a reassignment in an effort to get the matter to trial as soon as possible. Trial was set for September 23, 2002. At an unrecorded hearing on September 23, trial was reset for September 25. For reasons not explained in the record, the case was reassigned to another judge on October 3, 2002, and he was removed by the state on October 8. On October 11, the case was reassigned and a dispositional conference took place on November 19. Trial was set for December 9, 2002, and actually took place on December 10, 2002.
An overcrowded court docket is not a valid reason for denying a defendant the right to a speedy trial. Windish, 590 N.W.2d at 316 (citing Jones, 392 N.W.2d at 235). The state is obligated to make a good-faith effort to bring a defendant to trial. Id. at 316-17. According to the record, it appears that the state was ready for trial in February 2002 and repeatedly expressed concern about the age of the case. A combination of court scheduling and public defender staffing issues appear to have been the primary reasons for delay. There is no evidence of bad faith on the part of the prosecution. Appellant makes a compelling argument that staffing and financial issues in the public defender’s office that caused several of the delays in this case should not be held against him. We agree. This is not a case in which the defendant’s counsel, for tactical reasons, was delaying trial. This factor weighs in favor of concluding that appellant’s right to a speedy trial was denied.
c. Assertion of right to a speedy trial
“Assertion of the right to a speedy trial need not be formal or technical . . . . [A]n assertion of a speedy trial right is determined by the circumstances. Id. at 317. But failure to assert the right to a speedy trial will make it difficult to prove that the defendant was denied the right to a speedy trial. Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
Appellant asserts that his attorney’s February 25 statement that appellant would like his case resolved should be construed as a demand for a speedy trial. Because appellant’s counsel simultaneously sought a continuance to April or May in order to accommodate the expert witness’s schedule, we conclude that the comment cannot be construed as a demand for a speedy trial.
Appellant alternatively argues that his failure to demand a speedy trial should not be weighed against him because assertion of the right would have been pointless in light of the public defender’s staffing problems. We disagree. Asserting the right would have forced the district court and the public defender’s office to address the staffing problem other than by granting continuances. And, appellant’s original attorney had returned to work by July, yet no speedy trial demand was made at that time. We conclude that failure to assert the right to a speedy trial weighs against appellant.
d. Prejudice caused by delay
Three factors are considered in evaluating the prejudice prong of the speedy-trial analysis: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired. Windish, 590 N.W.2d at 318. In this case, appellant was not incarcerated during the delay, and the record does not demonstrate that he suffered unusual anxiety or concern during this period, despite his assertion that he was unable to attend his entire sentencing due to stress. Appellant argues that he was “in denial” during the delay, which does not indicate that he was suffering from stress or anxiety.
Appellant argues that his defense was impaired because the victim was unable to remember details of the alleged abuse by the time of trial. But appellant’s defense was that the abuse never occurred, so the victim’s inability to remember was more prejudicial to the state than to appellant. We conclude that appellant has failed to establish prejudice caused by the delay. And, reviewing all of the factors as a whole, although we do not condone the repeated continuances, we conclude that appellant has failed to establish that he was denied his constitutional right to a speedy trial.
II. Fair trial
Appellant first argues that he was denied his federal and state constitutional rights to confront the witnesses against him when the district court admitted a videotape of an interview between the victim and a social worker. Appellant’s expert testified that the interviewing technique used was incorrect and leading and cites Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139, 3147 (1990), for the proposition that out-of-court hearsay statements must have “particularized guarantees of trustworthiness” to be admitted in a case involving a child-victim of sex abuse. Idaho v. Wright, is distinguishable from this case, however, because in that case, the child victim whose statements were at issue did not testify at trial and her statements were not recorded, but admitted through the testimony of the interviewing doctor. Id. at 813, 110 S. Ct. at 3145. In the case before us, the victim testified and the interview was recorded.
Evidentiary rulings rest within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991). Admission of a witness’s pretrial statement does not deny a defendant the right to confrontation if the witness testifies and is available for cross-examination. See United States. v. Owens, 484 U.S. 554, 560, 108 S. Ct. 838, 843 (1988). And when a hearsay declarant is present at trial and subject to unrestricted cross-examination, the testimony need not be examined for “particularized guarantees of trustworthiness.” Id. The victim in this case was subject to unrestricted cross-examination.
Furthermore, when a witness’s credibility is attacked, a consistent pretrial statement by the witness may be introduced if admission would help the trier of fact determine the witness’s credibility. Minn. R. Evid. 801 (d)(1)(B); State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997). Such prior consistent statements are not hearsay. Minn. R. Evid. 801(d)(1)(B). The victim’s credibility was attacked in this case, so her prior consistent statements to the social worker, nurse, and her mother were admissible and appellant’s right to confrontation was not violated. Appellant had a full opportunity to discredit the interviewing techniques depicted on the videotape, and the credibility of the victim’s statements was a matter for the jury. Introduction of the tape did not deny appellant a fair trial.
III. Prosecutor’s comments
Appellant argues that the prosecutor used leading questions to examine the child victim, asked the same questions that were asked at the competency hearing, and “testified” through her own questions. But appellant has failed to show that the prosecutor’s leading questions constituted misconduct “so serious and prejudicial that [his] right to a fair trial” was denied. State v. Quick, 659 N.W.2d 701, 718 (Minn. 2003). The judge ruled on the few objections made to leading questions and appellant has not shown why he did not object to other questions or that the court’s rulings on the objections made were incorrect. And appellant has not explained why the use of questions asked at the competency hearing was prejudicial.
Appellant also asserts that the prosecutor engaged in misconduct in closing argument by misrepresenting the burden of proof and vouching for the credibility of the victim. But appellant did not object to the prosecutor’s final argument or seek a cautionary instruction. He has, therefore, waived the right to raise the issue on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The comments complained of were not “unduly prejudicial” such that we would review them despite appellant’s failure to object. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (noting this court may reverse a conviction despite failure to object or seek cautionary instruction if prosecutor’s statements were “unduly prejudicial”).
None of the issues raised in appellant’s pro se brief were raised in the district court. And appellant does not support any of his claims with case law or other authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding claims made in pro se supplemental brief without argument or supporting authority were waived). Therefore, we decline to address the issues raised in appellant’s pro se brief.