This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Thomas L. Koelndorfer,
Ramsey County District Court
File No. K6-04-254
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.*
This case arises from an August 2002 drug-deal dispute in St. Paul in which Thomas Koelndorfer fired his gun multiple times at a vehicle, striking four of the five occupants and paralyzing one of them. On appeal from convictions of first- and second-degree assault, Koelndorfer argues that the state denied his constitutional right to a speedy trial because of a 20-month delay between the original filing of the complaint and the start of his jury trial. He argues that the prosecutor improperly delayed his trial by dismissing the charges shortly before the jury was to be sworn. He maintains that the state lacked a good-faith basis to delay refiling the complaint for seven months, that none of the delay period was attributable to the defense, and that the delay prejudiced his defense and required him to maintain a substantial bond for the entire period. He also argues that the district court committed plain error by allowing physicians to testify that paralysis meets the legal standard for great bodily harm. Because we find no prejudice to Koelndorfer’s defense and no impairment to his ability to have a fair trial based either on the delay or the admission of the challenged testimony, we affirm.
This case involves a sham drug deal that quickly escalated to extreme violence. A juvenile arranged to purchase $600 worth of “ecstasy” from Ching Vang and Robert Handt. But Vang and Handt instead sold the juvenile a bag of children’s aspirin. After Handt and Vang divided their profits, Handt met with Thomas Koelndorfer and the two went to a bar. Meanwhile, the juvenile discovered that he had been duped. He left several angry voicemail messages for Handt and Vang throughout the evening, threatening to kill them if they did not return his money. The juvenile and four others, including Daniel Briseno, set out in Briseno’s vehicle to search for Handt and Vang. Handt eventually spoke with the juvenile by telephone, offering to meet him at Handt’s house and promising to return the money.
Handt and Koelndorfer then drove to Koelndorfer’s house at approximately 2:00 in the morning, where Koelndorfer, aware of the bogus drug deal and the threats, armed himself with a loaded handgun. They next headed for Handt’s house.
Briseno and his four companions also drove to Handt’s house, intending to recover the juvenile’s money. The five arrived first, waited up to 40 minutes, and then they began to leave. As they drove away, they noticed Handt’s car approaching from the opposite direction. The witnesses dispute whether Briseno’s vehicle cornered Handt’s car, but both cars ended up stopped on opposite sides of the street.
Koelndorfer left Handt’s car from the back seat, drew his handgun, and fired at Briseno’s vehicle as it began to pull away. Koelndorfer emptied his gun, shooting seven to ten rounds. One bullet entered Briseno’s shoulder and hit his spine, paralyzing him from the chest down. Bullets struck three other occupants in the back, arms or legs. Briseno identified Handt as the driver and Koelndorfer as the shooter.
The state charged Koelndorfer on August 13, 2002, with first-degree assault, four counts of second-degree assault, and drive-by shooting. Jury selection began on June 16, 2003. But the state dismissed the case the next day, before the court swore-in the jury, because Briseno was hospitalized and, according to his doctor, would not be well enough to testify until June 20 or 23.
The state filed a new complaint against Koelndorfer on January 21, 2004, charging him with the same six offenses. The court scheduled a jury trial for April 19, 2004, but Koelndorfer moved to dismiss on April 15, alleging for the first time that the state violated his Sixth Amendment right to a speedy trial and purposefully delayed the trial. The district court denied the motion to dismiss and Koelndorfer’s jury trial began on April 26. A deadlocked jury led to a mistrial on May 6, 2004, and the district court scheduled a new trial for July 26, 2004. Koelndorfer did not make another speedy trial demand and his trial eventually began on March 29, 2005. The jury found Koelndorfer guilty of all six charges, but the district court sentenced Koelndorfer only on the assault charges. The district court also departed downward from the presumptive 86-month sentence and imposed four consecutive one-year sentences in a county correctional facility, and it placed Koelndorfer on twenty years’ probation. The state does not appeal the downward departure resulting in the one-year sentences, but Koelndorfer appeals his convictions.
D E C I S I O N
Koelndorfer argues that the 20-month span between his initial charge in August 2002 and the start of his jury trial in April 2004 violated his Sixth Amendment right to a speedy trial and warrants reversal of his convictions. The federal and Minnesota constitutions establish that in all criminal prosecutions, “the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI; Minn. Const. art. I, § 6. Determining whether a defendant has been denied the right to a speedy trial is a question of constitutional law, which we review de novo. State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004).
To determine whether a delay deprived the accused of the right to a speedy trial, Minnesota courts apply a four-factor balancing test announced in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972), in which the court weighs the conduct of both the prosecutor and the defendant. State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977). The four factors are (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the delay prejudiced the defendant. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). No single factor is necessary or dispositive to finding that the defendant was deprived of the right to a speedy trial. Rather, they must be considered together, in the context of other relevant circumstances. Id.
Koelndorfer argues that when a prosecutor deliberately attempts to circumvent a defendant’s speedy-trial right, a reviewing court is not required to consider the Barker factors to determine if a violation occurred. He relies heavily on State v. Kasper, 411 N.W.2d 182 (Minn. 1987), to support his contention that the state’s dismissal and refiling of the complaint seven months later constituted bad-faith legal maneuvering primarily designed to prevent Koelndorfer from testifying at co-defendant Handt’s trial. Koelndorfer’s factual assertion is speculative, and application of the Barker factors is warranted.
In Kasper, the defendant formally demanded a speedy trial to require the state to bring him to trial within 60 days under the applicable procedural rule. But the prosecutor dismissed the tab charges and then immediately filed a formal complaint alleging the same charges after the court denied his motion for a continuance, attempting to restart the 60-day period to preserve the tardy case. Kasper, 411 N.W.2d at 183. The Kasper court admonished the prosecutor’s attempted “legal maneuvering” around the 60-day speedy-trial requirement. Id. at 185; see also In re Welfare of G.D., 473 N.W.2d 878, 881 (Minn. App. 1991) (distinguishing Kasper by noting that, in Kasper, state’s attempt to avoid formal speedy-trial demand contained element of bad faith). Unlike the Kasper defendant, Koelndorfer never demanded a speedy trial and the record does not indicate that the state asked for a continuance. Additionally, when the supreme court “considered the facts in Kasper, there was no need to specifically recite the Barker factors because it was patently obvious that Kasper’s right to a speedy trial would have been violated if the prosecutor’s maneuver had been allowed to go unchecked.” State v. Friberg, 435 N.W.2d 509, 514 (Minn. 1989) (rejecting suggestion that courts need not apply Barker factors to find speedy-trial violation); see also Cham, 680 N.W.2d at 124 (holding that district court erred by failing to apply the Barker test). Kasper is therefore inapposite.
It is unclear how Koelndorfer’s speculation that the state deliberately attempted to prevent him from testifying at another trial might prejudice his trial. As it turned out, because Handt’s trial concluded first, Koelndorfer could call Handt as a witness in his trial. Koelndorfer has not established that a de novo review of the Barker factors is unwarranted. We turn to that review.
Length of Delay
The length-of-delay factor “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.” State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). Filing criminal charges against an accused activates the Sixth Amendment’s protection and marks the starting point for calculating the length of the delay. State v. Huddock, 408 N.W.2d 218, 220 (Minn. App. 1987). Koelndorfer contends that the total length of delay should be calculated as 20 months, from the filing of charges in August 2002 until the start of the first trial in April 2004. He urges that the length of the delay should include the interim seven months between the dismissal of the first complaint in June 2003 and the filing of the second complaint in January 2004. We disagree, because the interim seven months during which formal charges were not outstanding are inapplicable under a speedy-trial analysis. See United States v. Pajari, 715 F.2d 1378, 1384 (8th Cir. 1983) (explaining that, following a good-faith dismissal of charges, “any delay between dismissal of the original charge and the return of the indictment cannot be attacked under the [S]ixth [A]mendment speedy trial guarantee”). But we conclude that the delay of 13 months is sufficient to warrant further analysis under the remaining three Barker factors. See Jones, 392 N.W.2d at 235 (finding delay of seven months in murder trial long enough to trigger consideration of other Barker factors).
Reason for the Delay
The next factor, reason for the delay, requires that we apply different weights to different reasons for the delay. Cham, 680 N.W.2d at 125. A deliberate attempt to delay the trial to hamper the defense is weighted heavily against the state, while negligent or administrative delays are given less weight. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Huddock, 408 N.W.2d at 220. By contrast, when a defendant’s actions are responsible for the overall delay, there is no violation of the right to a speedy trial. State v. DeRosier, 695 N.W.2d 97, 109 (Minn. 2005).
Koelndorfer asserts that no good reason justifies the 20-month delay and that the state provided no good-faith reason for the seven-month delay in refiling the charges following the dismissal. He argues that all of the delays were attributable to the state, including the administrative continuances. But we conclude that most of the delays were attributable to Koelndorfer’s inability to retain or pay for private counsel, and administrative continuances are not weighted heavily against the state. Although the district court initially set trial for October 28, 2002, the trial date was continued to December 9, 2002, at a status hearing in early October at Koelndorfer’s request and over the state’s objection. On December 5, four days before the scheduled start of trial, the district court permitted Koelndorfer’s private counsel to withdraw because Koelndorfer had not returned several of his counsel’s telephone calls and because Koelndorfer was unable to pay his counsel’s fees. The court gave Koelndorfer until January 6, 2003, to appear with his new counsel, and it scheduled the jury trial for February 10, 2003. Koelndorfer failed to retain new counsel, and a public defender was appointed on January 8, 2003. One week later, Koelndorfer’s public defender requested a continuance because she could not be ready for trial by February 10. On February 28, the court rescheduled the trial for June 16, 2003. We conclude that this initial ten-month delay is primarily attributable to Koelndorfer.
On the day after the jury was selected but before jurors were sworn, the state learned that Briseno, the victim-witness paralyzed by one of Koelndorfer’s gunshots, was hospitalized and, according to his doctor, unlikely to be able to testify until June 20 or 23. The unavailability of a witness generally constitutes good cause for delay. Windish, 590 N.W.2d at 317. The value of Briseno as a key witness is evident; he was the only victim-witness who positively identified Koelndorfer as the shooter, and his injuries supported the first-degree assault charge. Given the risk and uncertainty of whether a crucial witness would be able to testify one week after the start of the trial, the state had good reason to dismiss the charges under Minnesota Rule of Criminal Procedure 30.01. A dismissal under this rule is without prejudice, and the state, in good faith, may later reindict on the same charges. State v. Couture, 587 N.W.2d 849, 853 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999).
This takes us to the final phase of the delay. As stated above, the seven-month delay between dismissal of the first complaint and filing of the second complaint in January 2004 is irrelevant in the speedy-trial calculation. And much of the four months between the filing of the second complaint in January and the start of trial in April 2004 can be attributed to resolving the continued issues of Koelndorfer’s inability to retain private counsel and his eligibility for appointed counsel. After Koelndorfer provided the necessary financial data and the district court found him eligible for public-defender assistance, the district court set the trial for April 2004. This second factor weighs substantially against Koelndorfer’s claim of a speedy-trial violation.
Assertion of Right to Speedy Trial
The force and frequency of a defendant’s demand for trial must be considered in weighing the third factor, the assertion of the right, and the strength of the demand will generally reflect the seriousness and extent of any resulting prejudice. Friberg, 435 N.W.2d at 515; see also State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (noting that whether demand is prompt and forceful are key considerations when evaluating speedy-trial claim). As the Supreme Court has summarized it, “[t]he more serious the deprivation, the more likely a defendant is to complain.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
Koelndorfer moved to dismiss in April 2004—four days before the scheduled start of the jury trial—based on the alleged violation of his right to a speedy trial. But he never moved the court to schedule a speedy trial during the 20-month period that he now complains about. When a defendant moves for dismissal without having earlier demanded a speedy trial, this factor will not favor him. See Cham, 680 N.W.2d at 125 (noting that defendant twice moved to dismiss for alleged violation of speedy-trial right but never moved for speedy trial); State v. Rachie, 427 N.W.2d 253, 257 (Minn. App. 1988) (holding no constitutional violation of speedy-trial right occurred when defendant never demanded a speedy trial), review denied (Minn. Sept. 20, 1988). Koelndorfer’s failure to demand a speedy trial weighs heavily against finding a violation of his right to a speedy trial.
Prejudice to the Defendant
The final factor of prejudice also does not help Koelndorfer. This factor is measured in light of the interests that the speedy-trial right is designed to protect. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The Supreme Court has identified three interests in assessing prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility that the defense will be impaired. Id. The third interest, possible impairment of the defense, is the most important. Id.
With respect to the first interest, Koelndorfer posted bond two days after he was charged in August 2002, and he remained free throughout the proceedings until his conviction in April 2005. Koelndorfer asserts that he suffered interference with liberty because he posted and maintained bond during the entire 20-month period on the $100,000 bail imposed by the district court. But a bail requirement is not oppressive incarceration; rather, posting bond allowed Koelndorfer to avoid incarceration. And Koelndorfer requested that the bond remain in effect following the dismissal of the complaint to avoid another premium to the bond company on the anticipated refiling of charges. Koelndorfer did not suffer oppressive pretrial incarceration.
Koelndorfer asserts that the disruptions to his life, including a demotion at work, financial hardship, the strain on his friendships, and the possibility of a long prison sentence, caused him anxiety and stress, prejudicing him. But the anxiety, stress, and disruption of normal life are attendant circumstances that may accompany any ongoing criminal investigation whether or not charges had been dismissed pending recovery of Koelndorfer’s most seriously injured victim. See Friberg, 435 N.W.2d at 515 (holding defendants suffered no serious prejudice when only prejudice attested to was “the stress, anxiety and inconvenience experienced by anyone who is involved in a trial”). Koelndorfer remained free and maintained employment throughout the proceedings until his convictions, mitigating any alleged anxiety or stress.
Concerning the most important interest, Koelndorfer asserts that the 20-month delay prejudiced him and impaired his ability to present a defense. He speculates that the lengthy delay afforded the victim-witnesses time to corroborate their stories and testimony. This assertion seems factually weak; the prosecutor conceded in her closing argument that the victim-witnesses’ accounts varied in some of the factual details. More important, the delay did not preclude Koelndorfer from asserting self-defense, and the state had the burden of proving otherwise. See Huddock, 408 N.W.2d at 221 (noting defendant could still raise planned defense and state retained its burden of proof). As it happens, the delay enabled Koelndorfer to call Handt as a defense witness because Handt’s trial had concluded, and he corroborated Koelndorfer’s claim of self-defense. Koelndorfer does not contend that he lost any witnesses as a result of the delay and he may have instead benefited from a corroborating witness who might not have testified but for the delay. See Jones, 392 N.W.2d at 235-36 (finding no prejudice when defendant failed to show that any witnesses were unable to recall essential facts or failed to testify). When, as here, a “delay in no way affect[s] the strength of [the] defendant[’s] case, the final Barker factor does not favor [the] defendant.” Friberg, 435 N.W.2d at 515. The impairment-of-defense and the prejudice factors therefore weigh substantially against the claimed speedy-trial violation.
Because each of the applicable Barker factors weighs against finding that the state violated Koelndorfer’s right to a speedy trial, we reject Koelndorfer’s constitutional argument.
Koelndorfer next argues that the district court committed plain error that requires a new trial when the court permitted two treating physicians to testify that Briseno’s paralysis met the legal definition of “great bodily harm,” an essential element of first-degree assault. At trial, however, Koelndorfer failed to object to the now-complained-of testimony. When a defendant fails to object to the admission of evidence, we review the challenged evidence under the plain-error standard. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under that standard, before the court may grant a new trial, there must be error that is plain and that affected the defendant’s substantial rights. State v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006). An error is plain if it was clear or obvious. Id. at 302. Only when all three prongs are met may an appellate court assess whether to remedy the error because it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005) (quotation omitted).
The state concedes that admitting the doctors’ testimony constituted plain error. We note, however, that the supreme court decision on which Koelndorfer relies, which held that a medical expert may not testify to whether a victim’s injuries meet the legal definition of great bodily harm regarding alleged first-degree assault, was not decided until July 14, 2005, more than three months after Koelndorfer’s convictions. See State v. Moore, 699 N.W.2d 733, 740 (Minn. 2005) (discussing admissibility of expert opinion testimony). Still, Koelndorfer has failed to show that the testimony affected his substantial rights by establishing that there was a “reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Koelndorfer conceded in his opening statement that Briseno suffered “great bodily harm,” and he was willing to stipulate to the element at the trial’s outset. Koelndorfer did not dispute Briseno’s significant injuries at any point at trial. That Briseno suffered great bodily harm was readily apparent to the jury; he was paralyzed from the chest down and he testified from his wheelchair. There is no reasonable possibility that the physicians’ stated opinion that Briseno’s injuries meet the legal definition of great bodily harm affected the verdict.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.