This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Claude Riley Crockson,


Filed February 7, 2006


Peterson, Judge


Ramsey County District Court

File No. K5031997


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


Susan Gaertner, Ramsey County Attorney, Colleen A. Timmer, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a conviction of second-degree assault, appellant argues that he was denied his right to a speedy trial when he was not tried until 11 months after his speedy-trial demand.  Appellant argues that reversal is required under the Barker test because the delays were caused by court administration; he asserted his right to a speedy trial at the outset; he asserted anxiety over the delay, although he was in prison for another offense; and his defense was likely harmed.  We affirm.


            Procedural facts

On June 4, 2003, a complaint was filed charging appellant Claude Riley Crockson with one count of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002).  At an omnibus hearing on June 18, 2003, appellant demanded a speedy trial.  A dispositional conference was scheduled for August 19, 2003, to be followed by a jury trial on or about August 25, 2003.  Appellant’s counsel objected to the trial date as being beyond the 60-day speedy-trial deadline.

On August 19, 2003, appellant was incarcerated at Stillwater prison.  He was scheduled to be transported to the dispositional conference, but the sheriff’s department failed to transport him; therefore, the dispositional conference was continued to November 10, 2003.  On November 7, 2003, apparently for administrative reasons, the dispositional conference was continued to November 17, 2003.

At the November 17, 2003 hearing, the trial date was set for February 9, 2004.  The district court noted, “I do have other cases on for trial that day, that may have a priority over this one, but we may get to this as well.”  On February 6, 2004, the trial was continued to May 17, 2004.  A hearing was conducted on May 17, 2004, and trial commenced on May 19, 2004.

The jury found appellant guilty as charged, and the district court sentenced him to an executed term of 51 months in prison.  This direct appeal challenging the conviction followed.

Facts underlying offense

            The victim testified:  At about noon on June 2, 2003, the victim heard a loud knock on his door, looked outside, and saw appellant.  The victim recognized appellant, whom the victim had met once and had seen many times in the streets.  The victim knew that appellant was a cousin to Harvey Eason, with whom the victim had had a dispute about a year earlier.  Appellant asked what was going on between the victim and Eason and said that Eason was in the alley.  The victim stepped outside, walked toward the alley, and saw Eason’s sister in the alley.  As the victim approached the alley, appellant hit him in the back of the head with a pipe.  As appellant tried to hit the victim a second time, the victim swung around, trying to grab the pipe away from appellant, and the blow struck the victim’s left arm and shoulder.  The victim grabbed onto the pipe, and appellant ran away toward the front of the house.

            The victim’s trial testimony was consistent with the statement he gave to police shortly after the assault.  The victim’s trial testimony was also corroborated by the testimony of a neighbor, who did not witness the assault but saw a car drive into the alley and observed the people who got out of the car.

            A short time after the assault, Commander Dennis Jensen was parked near the Eason residence when he saw a man matching the description of the victim’s assailant.  The man looked at Jensen and then began to walk away.  As Jensen pulled his car away from the curb, the man began running.  The man was apprehended and identified as appellant.

            Appellant testified on his own behalf at trial.  He denied assaulting the victim and claimed that he ran from police because he was carrying a crack pipe.


            Under the United States and Minnesota Constitutions, criminal defendants are entitled to a speedy trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  Whether a defendant’s constitutional right to a speedy trial was violated is a question of law, which we review de novo.  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004).

            In Minnesota, a defendant must be tried within sixty days after demanding a speedy trial unless good cause is shown for the delay.  Minn. R. Crim. P. 11.10.  “[D]elays greater than 60 days after a demand for speedy trial has been made are presumptively prejudicial and require further inquiry to determine whether there was good cause for the delay.”  State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989).

            In order to determine whether a delay in any given case constitutes a deprivation of the right to a speedy trial, courts are instructed to use the balancing test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972).  The test provides that a court must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant.


State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  “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.’”  Id. (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193).

            Appellant demanded a speedy trial on June 18, 2003, and trial did not begin until almost one year later, on May 19, 2004.  Thus, this court must apply the Barker balancing test to determine whether the delay constituted a deprivation of appellant’s speedy-trial right.

1.        The length of delay

            We evaluate the length of delay to determine if further review of a defendant’s speedy-trial claim is warranted.  Id. (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192). The length of delay

is to some extent a triggering mechanism in that until some delay, which is presumptively prejudicial, is evident the other factors need not be considered.  The delay in speedy-trial cases is calculated from the point at which the [S]ixth [A]mendment right attaches: when a formal indictment or information is issued against a person or when a person is arrested and held to answer a criminal charge.


State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).  The length of the delay in this case was long enough to trigger consideration of the remaining Barker factors.  See id. (stating seven-month delay long enough to trigger consideration of other Barker factors).

2.        The reason for delay

The primary burden to ensure speedy trials lies with the courts and prosecutors.  Windish, 590 N.W.2d at 316.  Good cause for delay does not include court congestion unless exceptional circumstances exist.  McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989).  But when delay results from calendar congestion or other circumstances over which the prosecutor had no control, “it weighs less heavily against the state than would deliberate attempts to delay trial.”  Friberg, 435 N.W.2d at 513-14 (explaining why reason for delay did not weigh heavily against the state).  The supreme court has “found that calendar congestion or other circumstances over which the prosecutor has no control are good cause for delays up to fourteen months where the defendants suffered no unfair prejudice.”  Id. (listing cases).

The record contains evidence that the initial setting of the trial more than 60 days after appellant’s speedy-trial demand was due to a shortage of judges in the felony-trial rotation and that at least one of the continuances in this case resulted from court congestion.  The record is otherwise unclear as to the reasons for the delay.  Because the record does not show good cause for delay, this factor weighs in appellant’s favor.  But because there is no evidence in the record that the delay was in any way attributable to the prosecutor’s conduct, it does not weigh heavily in appellant’s favor.  Absent unfair prejudice, appellant is not entitled to reversal based on this factor.

3.         Assertion of speedy-trial right

            “[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.  Appellant demanded a speedy trial at the June 18, 2003 omnibus hearing and noted an objection when the initial trial date was set more than 60 days later.  Appellant did not reassert his speedy-trial right.

4.         Prejudice

            We consider three factors in determining whether a defendant was prejudiced by the delay: “(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 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2182).  The third factor is the most serious.  Windish, 590 N.W.2d at 318 (citing Duggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686 (1922)).

            The first two prejudice concerns do not apply in this case because, during the delay, appellant was incarcerated for an unrelated crime.  See Windish, 590 N.W.2d at 318 (stating that first two prejudice concerns did not apply when defendant was incarcerated for another offense).

            Appellant argues that the delay may have impaired his defense.  “A defendant does not have to affirmatively prove prejudice; rather, prejudice may be suggested by likely harm to a defendant’s case.”  Windish, 590 N.W.2d at 318.   Appellant notes that Eason and his sister were not called as witnesses to prove his defense and that they may have been available earlier.  But appellant cites to no evidence in the record indicating that he made any attempt to call those witnesses or that they would have testified for him if the trial had been held earlier.  Compare Windish, 590 N.W.2d at 519 (although defendant did not provide a clear record of how defense witnesses would have testified, the supreme court concluded that the evidence, including the availability of witnesses at the earlier trial dates and the defendant’s loss of contact with them during the delay, suggested harm to defendant’s case).  Appellant’s claim that his defense may have been impaired is speculative and, thus, insufficient to establish likely harm to his defense.

            The absence of good cause for the delay is the only Barker factor that favors appellant.  Because there is no evidence that any delay was due to the prosecutor’s conduct and the record is insufficient to establish prejudice to appellant, the delay does not constitute a violation of appellant’s constitutional right to a speedy trial.