This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Kevin Paul Kurz,
Filed June 28, 2005
Affirmed in part, reversed in part, and remanded
Rice County District Court
File No. K0-03-1246
Mike Hatch, Attorney General,
Kelly O’Neill Moller, Barry R. Greller, Assistant Attorneys General, 1800
G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)
John Stuart, State Public
Defender, Michael F. Cromett, Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Kevin Kurz raises eight issues in this appeal from his conviction and sentence on four felonies arising out of a car theft from a residence. We conclude that the state did not deny Kurz a speedy trial or commit prosecutorial misconduct that requires a new trial, that the district court acted within its discretion in admitting other-crimes evidence and in imposing restitution, and we reject Kurz’s claims that his counsel was ineffective and that the evidence is insufficient to support his convictions. But we agree that the upward durational sentencing departure violated Kurz’s right to a jury trial and that the fixed copayment for public-defender services is unconstitutional. We, therefore, affirm in part and reverse in part and remand for resentencing and determination of whether Kurz is financially able to pay for public-defender services.
F A C T S
In July 2003 the district court approved Kurz’s application for a public defender and imposed a $200 copayment under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003). On November 24, 2003, Kurz entered a plea of not guilty and demanded a speedy trial.
At the five-day trial that began on March 1, 2004, the homeowners testified that personal items, including a purse, keys, and a Buick Regal car were stolen from their residence on July 8, 2003. The homeowners testified that they found a footprint in an addition to their residence that did not belong to any resident of their household. An officer with the Faribault Police Department testified that he compared photographs of the footprint with Kurz’s shoes, taken from his jail locker, and found no difference between the tread patterns. A forensic scientist testified that the overall tread pattern was similar between the shoes and the photograph.
An acquaintance of Kurz’s testified that, on July 18, 2003, he
and his cousin were passengers in Kurz’s car on their way to
After the state’s case-in-chief, the prosecutor moved to admit evidence of Kurz’s convictions for burglary and related automobile thefts in 1997 and 2002. The district court granted the motion.
In his defense, Kurz presented testimony from
a friend who testified that Kurz came to her home on July 18, 2003, and used
the phone to arrange a ride back to
The jury found Kurz guilty of all four charges. The district court sentenced Kurz under the career-offender statute to an upward durational departure of 120 months in prison on the first-degree-burglary count. The district court also ordered that Kurz pay $1,209.36 in restitution. Kurz appeals, challenging the (1) order for the public-defender copayment, (2) lack of a speedy trial, (3) admission of other-crimes evidence, (4) propriety of the prosecutor’s closing argument, (5) sufficiency of the evidence to support his conviction, (6) amount of restitution, (7) constitutionality of the durational sentencing departure, and (8) effectiveness of his trial counsel.
D E C I S I O N
The district court ordered Kurz to provide a
$200 copayment for services of the public defender under Minn.
Stat. § 611.17, subd. 1(c) (Supp. 2003). While Kurz was awaiting trial, the supreme
court declared the copayment statute unconstitutional. See State
v. Tennin, 674 N.W.2d 403, 410 (
Contingent on financial ability, a criminal
defendant may be required to make partial payment for public-defender services. See Minn.
R. Crim. P. 5.02, subd. 5 (stating district court may require financially able
defendant to compensate governmental unit charged with paying expense of
appointed public defender); Minn. Stat. § 611.20 (Supp. 2003) (requiring
district court to direct partial payments to state general fund if it
determines criminal defendant is financially able). This court has previously concluded that a
criminal defendant’s constitutional rights are not violated by this repayment structure. State
v. Cunningham, 663 N.W.2d 7, 12-13 (
Kurz contends that his right to a speedy
trial was denied. The right to a speedy
trial is guaranteed by the Sixth Amendment of the United States Constitution
and by article I, section 6 of the Minnesota Constitution. Whether an appellant’s constitutional right
to a speedy trial was violated is a question of law, which we review de
novo. State v. Wiegand, 645 N.W.2d 125, 129 (
first factor, length of delay, is a triggering mechanism that determines
whether consideration of the other factors is necessary. Windish,
590 N.W.2d at 315. Delays beyond sixty
days from the date of demand raise a presumption that the right has been
violated. State v. Friberg, 435 N.W.2d 509, 513 (
The second factor requires inquiry into the reasons for delay. Windish, 590 N.W.2d at 315. Trial was originally set for January 20, 2004. At two appearances following his speedy-trial demand, Kurz agreed to continue trial to January 27 due to the unavailability of his defense counsel and then to February 24 to allow testimony of alibi witnesses. But Kurz did not agree to these continuances without objection—he repeatedly stated that he wanted a speedy trial and explained that the unavailability of his public defender and that the late submission of his alibi witnesses were caused by the overburdened public-defender office. The district court noted Kurz’s objection and clearly stated on the record its understanding that, although Kurz agreed to the continuance, he was not waiving his speedy-trial demand. Trial was subsequently continued to February 26, again due to the unavailability of defense counsel, and then to March 1 due to district court scheduling conflicts.
Although unavailability of a public defender
does not weigh in a defendant’s favor, Windish,
590 N.W.2d at 316 (concluding public defender’s unavailability weighs against
appellant), “[t]he responsibility for an overburdened judicial system
cannot . . . rest with the defendant.” State
v. Jones, 392 N.W.2d 224, 235 (
The third factor is the “frequency and force” of Kurz’s assertion of his right to a speedy trial. See Friberg, 435 N.W.2d at 515 (stating that court must consider “frequency and force” of demand). This factor weighs in Kurz’s favor. Kurz formally demanded a speedy trial on November 24, after entering a plea of not guilty, and Kurz asserted his right to a speedy trial at all subsequent appearances when trial was delayed.
The fourth factor, whether Kurz has been prejudiced by the delay, encompasses three considerations: (1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety of the accused, and (3) limiting impairment of the defense. Windish, 590 N.W.2d at 318. Kurz asserts that he was prejudiced because he suffered anxiety by being incarcerated and having to appear for a trial that was repeatedly continued. But Kurz does not demonstrate that he experienced anxiety in excess of that suffered by any defendant awaiting disposition of a criminal case. He also fails to demonstrate that the delay impaired his defense or affected the strength of his case. See Friberg, 435 N.W.2d at 515 (stating that appellant must demonstrate that delay affected strength of appellant’s case and that demonstration of stress, anxiety, and inconvenience experienced generally when involved in criminal trial is insufficient).
Because no evidence suggests a deliberate attempt on the part of the state to delay trial and because Kurz failed to demonstrate that the delay in trial was prejudicial, we cannot conclude that Kurz was denied a speedy trial.
contends that the district court erred in admitting evidence of two previous burglary
convictions. This court will not reverse
a district court’s admission of other-crime or Spreigl evidence absent an abuse of discretion. State
v. Kennedy, 585 N.W.2d 385, 389 (
A district court may not admit evidence of
other crimes to prove the character of the defendant in order to show the
defendant acted in conformity with the proven character.
contends that the evidence of his prior convictions was not relevant or
material and was prejudicial. In
determining the relevance and materiality of Spreigl evidence, the district court considers the
issues in the case, the reasons and need for the evidence, and whether a
sufficiently close relationship exists between the charged offense and the Spreigl offense in time,
place, or modus operandi. Pierson v. State, 637 N.W.2d 571, 580 (
The district court made the necessary findings on each of the factors related to relevancy, materiality, and prejudice. The court concluded that the evidence of Kurz’s past criminal convictions was admissible for the purpose of proving identity because the convictions showed a pattern of entering a residence, taking keys and other personal items, and taking an automobile from the residence using the keys. In one instance residents were home during the burglary, and, in the other instance, Kurz was found driving the stolen automobile days later. This evidence is sufficiently close in relationship to the charged offense, particularly in modus operandi.
Additionally, the state’s case on identity
was weak because the partial footprint showed at most that Kurz could not be
excluded as the crime’s perpetrator and, even though the state presented direct
evidence of Kurz’s possession of the car, the evidence of his participation in
the burglary was circumstantial. Evidence
of a prior crime is not admissible to show conforming conduct, but the
similarity of a prior conviction may make its admission more appropriate, rather
than less, because it reduces the likelihood that the evidence will be used for
an improper purpose. Lynch, 590 N.W.2d at 80; State v. Frisinger, 484 N.W.2d 27, 31 (
Because the record supports the district court’s determination that the other-crimes evidence is relevant and material, and that the probative value is greater than the prejudicial effect, it was not an abuse of discretion to admit evidence of Kurz’s two prior burglary convictions.
Kurz contends that the prosecutor’s closing argument improperly suggested that the defense had an obligation to produce witnesses or proof when the prosecutor said:
You may recall hearing something about a gentleman named [T.A.] in the opening statement, and you may recall something about an alibi for July 8th that [he] was going to supply. There was no evidence of that. There was no person named [T.A.] who testified. I would urge you to disregard anything you might have heard the defense attorney say in his opening statement with respect to an alibi for July 8th.
Before making this statement the prosecutor told the jury that “statements by counsel are not evidence.” The district court also instructed that counsel’s statements were not evidence and instructed on the state’s burden of proof. Kurz did not object to the prosecutor’s statement or request a curative instruction.
a prosecutor may “point out that the record did not support defense counsel’s
representations in opening statement,” State
v. Coley, 468 N.W.2d 552, 555 (
will require a new trial because of prosecutorial misconduct “only when the
misconduct, considered in the context of the trial as a whole, was so serious
and prejudicial that the defendant’s constitutional right to a fair trial was
impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (
The improper statement was brief and
was preceded by a correct explanation of the law that statements by counsel are not evidence.
See State v. Bell, 294
Kurz challenges the sufficiency of the evidence supporting his convictions. Although Kurz does not challenge the conclusion that a burglary, theft of a motor vehicle, and fleeing a police officer occurred, he contends that the evidence identifying him as the perpetrator of these acts is insufficient.
Evidence is sufficient to support a conviction if, given
the facts in the record and the legitimate inferences drawn from those facts, a
jury could reasonably conclude the defendant committed the crimes charged. State v.
Kurz disputes that part of the restitution
order that requires him to reimburse the homeowner $500 for the
home-insurance-policy deductible. District
courts have broad discretion in imposing restitution. State
v. Tenerelli, 598 N.W.2d 668, 671 (
The homeowners testified that, as a result of the crime, they were missing personal property including sunglasses, house keys, golf clubs, golf shoes, compact discs, automobile keys, a purse and its contents, and an automobile registration book and manual. The homeowners further testified that it was necessary to replace the locks on their home. The affidavit for restitution shows losses amounting to $1,209.36, including $500 for a deductible on their homeowner’s policy. At the sentencing hearing, one of the homeowners told the court that the total claim under that policy covered a number of items amounting to approximately $2,500 in total losses. Because the testimony at trial and the affidavit for restitution provided a sufficient basis for determining economic loss, the district court did not abuse its discretion in ordering restitution that included $500 for the deductible on the homeowner’s policy.
sentence violates a defendant’s Sixth Amendment right to a jury trial when it
exceeds the statutory maximum and is based on judicially determined aggravating
facts, other than the fact of a prior conviction, that were neither admitted by
the defendant nor found by a jury. Blakely, 124
The career-offender statute permits an upward
durational departure from the presumptive sentence upon two findings: (1) that
the defendant has five or more prior felony convictions and (2) that the
present offense was committed as part of a pattern of criminal conduct. Minn. Stat. § 609.1095, subd.
4. Because sentencing under the
career-offender statute requires a factual finding other than the fact
of a prior conviction, this court has
held that the pattern-of-criminal-conduct finding must be made by a jury or
stipulated to by the defendant. State v. Mitchell, 687 N.W.2d 393,
In his pro se brief, Kurz
argues that his defense counsel was ineffective by failing to prepare adequately
for trial. A defendant claiming ineffective
assistance of counsel must show by a preponderance of the evidence that his
counsel’s representation “‘fell below an objective standard of reasonableness’”
and that counsel’s error so prejudiced defendant's trial that, but for the
error, there would have been a different outcome. State v. Doppler, 590 N.W.2d 627, 633 (
To support his argument of ineffective assistance of counsel, Kurz contends that counsel did not view all of the evidence before trial, communicate adequately with Kurz during trial preparation, investigate thoroughly, and interview the prosecution’s witnesses. Although we agree that Kurz’s attorney sought continuances for these reasons, the record demonstrates that the district court granted the continuances. In any event, Kurz’s allegations fail to demonstrate prejudice. Kurz asserts only that the result of trial “might have been different.” This general assertion is not sufficiently specific to show prejudice. See id. (stating appellant must demonstrate prejudice from alleged insufficient preparation). Because the district court granted Kurz’s counsel the requested continuances to prepare for trial and because Kurz failed to demonstrate prejudice, Kurz’s ineffective-assistance-of-counsel claim does not provide a basis for relief.
Affirmed in part, reversed in part, and remanded.