This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Bouabane Phommakhy,




Filed August 23, 2005

Affirmed; motion granted

Robert H. Schumacher, Judge


Olmsted County District Court

File No. K001939



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for appellant)


Candace J. Rasmussen, 400 South Broadway, Suite 204, Rochester, MN 55904; and


Mary M. McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113 (for respondent)



            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


             The state charged respondent Bouabane Phommakhy in March 2001 with one count of third-degree criminal sexual conduct under Minn. Stat. § 609.344, subds. 1(d), 2 (2000) and one count of procuring alcohol for a minor under Minn. Stat. § 340A.503, subd. 2(1) (2000).  The district court granted Phommakhy’s motion to dismiss the charges in February 2005, concluding that the three-plus year delay between the time he was charged and his arrest violated his right to a speedy trial.  The state appeals from the dismissal, arguing that under a proper application of the test announced by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), Phommakhy was not denied a speedy trial.  Phommakhy moved for attorney fees in connection with this appeal.  We affirm and grant the motion for attorney fees.


            On March 23, 2001, a complaint was filed in Olmsted County District Court charging Phommakhy with third-degree criminal sexual conduct and procuring alcohol for a minor occurring on January 22, 2000.  The same day the Olmsted County court administrator served the summons and complaint on Phommakhy by mail at his residence in Rochester, Minnesota pursuant to Minn. R. Crim. P. 3.03, subd. 3.[1]  The summons ordered Phommakhy to appear in court on April 25, 2001.

Phommakhy did not appear, and a warrant for his arrest was issued on May 4, 2001.  There is nothing in the record to indicate that any steps were taken over the next three years by the state to execute the warrant, despite evidence that Phommakhy continued to live and work openly in the community.  Phommakhy was arrested in June 2004, when he was stopped for a traffic violation in Rochester

At the omnibus hearing, Phommakhy moved to dismiss the charges for violation of his right to a speedy trial.  The only witnesses to testify at the omnibus hearing on the motion were Phommakhy, who testified through a Laotian interpreter, and Sergeant Mark Erickson of the Olmstead County Sheriff’s Department.  Erickson testified that he was familiar with the procedures used in executing arrest warrants but had no knowledge of Phommakhy’s case. 

The district court granted Phommakhy’s motion to dismiss based on the court’s analysis of the four-factor test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972).  The court found the delay was caused by the state’s failure to exercise due diligence in apprehending Phommakhy, and that “there is no evidence to support the assertion that [Phommakhy] knew of the charges filed against him in March 2001.”  In further discussing why it had found that the delay was not caused by Phommaky, the district court stated:

[T]he record reflects that while [Phommakhy] may have received the summons and complaint, he did not understand them. . . .  [G]iven [Phommakhy’s] wanting command of the English language exacerbated by the [s]tate’s fourteenth month delay in filing its charges arising from the January 2000 incident, this Court cannot now lay the weight of blame on [Phommakhy] for his apparent unawareness or inaction in March 2001.  There is nothing in the record to suggest that [Phommakhy] chose to ignore the papers purposefully to avoid charges against him.  Therefore, this Court cannot infer that [Phommakhy] was aware of the charges prior to his arrest . . . .



As a constitutional question, a speedy-trial determination is subject to de novo review.  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004).  The district court’s factual findings underlying the determination will be sustained unless clearly erroneous.  See State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (holding appellate courts review district court’s findings of fact underlying probable cause determination for clear error); see also Doggett v. U.S., 505 U.S. 647, 652, 112 S. Ct. 2686, 2691 (1992) (stating appellate courts “review trial court determinations of [government] negligence with considerable deference”). 

            The Sixth Amendment to the United States Constitution and the Minnesota Constitution guarantee an accused the right to a speedy trial.  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  The primary burden of ensuring a speedy trial lies with the prosecution and the courts.  Id. at 318.  “A defendant has no duty to bring himself to trial.”  Id. (quoting Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 2190 (1972)).  Speedy trial claims are evaluated under the four-part test announced in Barker.  State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).       

Although speedy-trial violations generally occur when the government fails to honor a defendant’s request for a speedy trial within 60 days, the government’s negligence in failing to exercise reasonable diligence in locating an accused may violate a person’s right to a speedy trial.  See, e.g., Doggett, 505 U.S. at 648, 112 S. Ct. at 2689 (concluding 8-1/2 year delay between indictment and arrest when minimal efforts would have located accused violated accused’s speedy trial rights); State v. Sistrunk, 429 N.W.2d 280, 282-83 (Minn. App. 1988) (concluding “unexplained” government negligence that caused 12-year delay between indictment and initiation of formal proceedings violated speedy trial rights), review denied (Minn. Nov. 23, 1988).              

            Here, the date of the incident was January 23, 2000.  The state did not mail Phommakhy the summons and complaint until March 23, 2001.    When Phommakhy failed to appear for the April 25 hearing, a warrant for his arrest was issued on May 4, 2001.  There is nothing in the record of any attempts by the state to locate Phommakhy during the three-plus year delay.  The district court found that even minimal effort would have quickly located Phommakhy.    Under Doggett and Sistrunk, the government’s failure to diligently pursue Phommakhy for three-plus years raises speedy-trial concerns, and we turn to an analysis of the Barker factors to determine whether Phommakhy was denied his right to a speedy trial.   

            The four Barker factors considered in the speedy trial analysis are: (1) the length of the delay; (2) the reason for the delay; (3) if and when the defendant asserted his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay.  Barker,407 U.S. at 530-32, 92 S. Ct. at 2192-93; 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.”  Windish, 590 N.W.2d at 315 (quotation omitted).       

            The first factor is the “triggering mechanism.”  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).  Until the occurrence of some delay that is presumptively prejudicial, the other factors need not be considered.  Id.  When the accused has shown the delay is presumptively prejudicial, the “court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger examination of the claim.”  Doggett, 505 U.S. at 652, 112 S. Ct. at 2691.  The Minnesota Supreme Court has concluded that a delay of six months “is sufficient to trigger further inquiry.”  State v. Coararito, 268 N.W.2d 79, 80 (Minn. 1978).  The length of the delay is calculated from the point at which Sixth Amendment rights attach.  Jones, 392 N.W.2d at 235.  Sixth Amendment rights attach when a person is charged.  State v. Ture, 353 N.W.2d 502, 509 (Minn. 1984). 

Here, Phommakhy was charged in March 2001.  After he did not appear, there is no evidence of the state’s attempt to find him.  He was eventually arrested pursuant to the warrant in June 2004 when he was stopped for a traffic violation.  Thus, there was an approximately 39-month delay between the time Phommakhy was charged and his arrest.  This delay is significantly longer than what is sufficient to trigger further analysis.      

Under the second Barker factor, we consider the reason for the delay.  Simply being subject to an outstanding arrest warrant does not place the responsibility for the delay on the defendant when the state has failed to make diligent efforts to locate the defendant.  See, e.g., Doggett,505 U.S. at 652-53, 112 S. Ct. at 2691; Sistrunk, 429 N.W.2d at 282.  Rather, Barker places the primary burden of ensuring a speedy trial on the state and the court.  407 U.S. at 529, 92 S. Ct. at 2191.  Delays caused by negligence are weighed against the state because the state is ultimately responsible for such circumstances.  Id. at 531, 92 S. Ct. at 2192.  

Here, the district court found that Phommakhy’s trial was delayed because the state failed to exercise reasonable diligence in apprehending him and that he could have been located with minimal efforts.  In contrast, the district court found that Phommakhy made no attempts to evade arrest, and regardless of what he may have received in the mail, he was not aware of the charges against him until his arrest in June 2004.   Compare Windish, 590 N.W.2d at 318 (defendant has no duty to bring himself to trial) with U.S. v. Brown, 169 F.3d 344, 349 (6th Cir. 2003) (stating “defendant who evades prosecution is culpable in causing the delay”).       

The district court’s finding that the delay in pursuing the charges against Phommakhy was the result of state negligence and not intentional delay by Phommakhy is amply supported by the evidence.  The record shows that Phommakhy lived at the residence his summons was sent to for at least eight months after he failed to appear at the April 25 hearing, he filed state tax returns for 2001-2003, and his father, with whom he resided, was the only Phommakhy listed in the Rochester area phone book.  It is uncontested that Phommakhy has a very limited understanding of the English language and that there was a 14-month delay between the date of the alleged incident and the date that the state charged him.  And Phommaky testified that he was unaware of the charges against him until his arrest in 2004.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (weight and credibility of witness’s testimony is matter for district court).  This factor weighs against the state and in favor of finding that Phommakhy’s right to a speedy trial was violated. 

Under the third Barker factor, we consider if and when Phommakhy asserted his right to a speedy trial.  “When a defendant moves for dismissal, but does not move for a speedy trial, this factor will not favor the defendant.”  Cham, 680 N.W.2d at 125.  Here, Phommakhy asserted his right by moving to have the charges against him dismissed and, therefore, this factor does not favor him.  But the district court found that Phommakhy was not aware of the charges against him until he was arrested, and this factor should not weigh against him either.  See Doggett, 505 U.S. at 649, 112 S. Ct. at 2691 (stating accused “is not to be taxed for invoking his speedy trial right only after his arrest” if it is only upon arrest accused learns of charges).  

Under the fourth Barker factor, we consider the prejudice to Phommakhy caused by the delay.  When the government’s negligence caused the delay, the need to prove prejudice diminishes as the delay increases.  Id. at 657, 112 S. Ct. at 2693.  If the delay is excessive, courts may presume prejudice because a lengthy delay “presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.”  Id. at 655, 112 S. Ct. at 2693.  Here, Phommakhy has not pointed to specific prejudice in this case, but the delay is excessive and caused by unexplained negligence by the state.   We presume Phommakhy was prejudiced by the excessive delay. 

The state attempts to rebut the presumed prejudice by noting Phommakhy’s confession, by suggesting that the three-plus year delay is “relatively short,” and by noting that Phommakhy did not promptly and forcefully invoke his speedy trial right after he was served with the summons and complaint in March 2001.  Because the district court found Phommakhy was not aware of the charges against him, his failure to promptly assert his right may not be used against him.  A three-plus year delay is not “relatively short”; rather it is over a year longer than the delay in Cham, which this court characterized as “unusually long.”  680 N.W.2d at 125.

In analyzing whether Phommakhy’s right to a speedy trial was violated, no one factor is determinative and presumptive prejudice is only “part of the mix of relevant facts.”  Doggett, 505 U.S at 656, 112 S. Ct. at 2693.    In light of all the Barker factors, we conclude that the state’s lack of diligence in locating and arresting Phommakhy for three-plus years violated his right to a speedy trial.      

            We note the state argues that the district court clearly erred by failing to find that Phommakhy received the summons and complaint.  No matter whether Phommakhy received the summons and complaint or not, it would not alter our conclusion in light of all the Barker factors and relevant circumstances. 

            Phommakhy moved for attorney fees in the amount of $2,775 incurred in defense of this appeal.  A defendant forced to respond to a pretrial prosecution appeal is entitled to reasonable attorney fees and expenses incurred in defense of the appeal.  Minn. R. Crim. P. 28.04, subd. 2(6).  The amount requested by Phommakhy is consistent with awards made by this court in similar cases, and the state has made no objection.  Phommakhy is awarded $2,775 for attorney fees.  

Affirmed; motion granted.

[1] Under Minn. R. Crim. P. 3.01, “A summons shall be issued rather than a warrant unless it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or the defendant’s whereabouts is not reasonably discoverable, or the arrest of the defendant is necessary to prevent imminent harm to the defendant or another.”