This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §. 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy Scott-Allan Davich,
Filed August 20, 1996
St. Louis County District Court
File No. T2-95-600077
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
William P. Dinan, City Attorney, Mary E. Asmus, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for Respondent)
Arthur M. Albertson, 394 Lake Avenue South, Duluth, MN 55802 (for Appellant)
Considered and decided by Parker, Presiding Judge, Short, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Timothy Scott-Allan Davich challenges his conviction by jury for impersonating a police officer and for having illegal lights on his vehicle, contending that (1) the trial court erroneously refused to suppress evidence obtained after an allegedly unconstitutional police stop of appellant, (2) the trial court failed to protect his asserted right to a speedy trial, (3) the trial court erroneously permitted the introduction of
evidence, and (4) the evidence was insufficient as a matter of law to sustain the guilty verdicts. We affirm on all grounds.
This appeal arises from two incidents occurring on December 22, 1994. On that afternoon, Duluth police officer Steven Stracek spotted appellant's car, with activated police-type flashing lights, stopped behind another car to the side of a four-lane road. Appellant was standing at the driver's window of the stopped car examining a driver's license. Stracek stopped to assist, believing appellant was a police officer, but ascertained shortly thereafter that he was not. Appellant explained he followed the car after it ran a stop sign and almost struck him, intending to ask the driver why she had run the sign. Appellant stated that the driver must have mistaken him for a police officer. Officer Stracek did not ticket or arrest appellant at that time, unsure of the appropriate charges. Later, however, Stracek determined that appellant could be charged with impersonating a police officer and various equipment violations. Stracek notified other officers that they should stop appellant's car on sight, issue a citation for impersonating an officer, and examine appellant's vehicle for equipment violations.
Pursuant to Stracek's instructions, police stopped appellant in his car later that evening. Police inspected the car and found various illegal lights on it. Appellant was charged at that time with some equipment violations, and later with impersonating a police officer and additional equipment violations. A jury found appellant guilty of the impersonation charge and of two illegal lights equipment charges.
D E C I S I O N
When reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, we independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.
State v. Othoudt
, 482 N.W.2d 218, 221 (Minn. 1992).
Suppression of Evidence
Constitutional search and seizure law prohibits police from stopping a vehicle without a "particularized and objective basis for suspecting the particular persons stopped of criminal activity."
State v. Kvam
, 336 N.W.2d 525, 528 (Minn. 1983) (quoting
United States v. Cortez
, 449 U.S. 411, 417-18 (1981)). This suspicion need not be based on an officer's own observation of an individual, but it may come from information passed on to the officer from citizen informants or other officers.
Marben v. State
, 294 N.W.2d 697, 699 (Minn. 1980).
Appellant contends that Duluth police officer Michael Gilbert, who stopped him the second time on December 22, 1994, did not have an adequate basis for making that stop. The record reflects, however, that Officer Gilbert had two adequate reasons for stopping appellant. Primarily, Gilbert stopped appellant because appellant's vehicle matched the description of a vehicle given to him by Officer Stracek along with instructions to pull the vehicle over for possible equipment violations. Officer Gilbert reasonably could have believed that the driver of a car suspected of various equipment violations at 2:00 p.m. likely would still be in violation of those statutes at 11:30 p.m. of the same day. Thus, Gilbert had an articulable, specific suspicion of criminal behavior when he stopped appellant's car.
Moreover, Gilbert testified that he personally viewed some of the suspect equipment before stopping appellant. Direct observation of equipment that may violate statutory law is an adequate basis for making an investigatory stop of a vehicle.
, 336 N.W.2d at 528 (stop justified if police can articulate "particularized and objective basis for suspecting the particular persons stopped of criminal activity") (quoting
, 449 U.S. at 417-18). The trial court correctly determined that the second police stop of appellant's vehicle on December 22, 1994, was constitutional.
Appellant contends his convictions must be overturned because he was denied his right to a speedy trial. Appellant's case was tried some 109 days after appellant's speedy trial demand; a substantial part of the delay was caused by the trial court's decision to continue the Rasmussen hearing to obtain testimony from Officer Gilbert. Whether appellant was denied his right to a speedy trial is a question of law that this court may review de novo.
Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n
, 358 N.W.2d 639, 642 (Minn. 1984).
Criminal defendants' constitutional right to a speedy trial is enforced in Minnesota by Minn. R. Crim. P. 6.06 (misdemeanors) and Rule 11.10 (felonies and gross misdemeanors). Rule 6.06 provides:
Rule 6.06 does not speak specifically to the instant situation where a speedy trial is demanded before the completion of such pre-trial proceedings as a
hearing, probably because misdemeanor trials often do not involve, as this case did, extensive pre-trial proceedings. The comments to the felony/gross misdemeanor speedy trial rule, however, state:
A defendant shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown by the prosecuting attorney or defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the not guilty plea. * * *
Minn. R. Crim. P 11.10 cmt. (emphasis added). The comments for Rule 11.10 were "incorporated by reference as comments to Rule 6.06" in
State v. Friberg
, 435 N.W.2d 509, 513 (Minn. 1989). Thus, both Rule 11.10 and Rule 6.06 contemplate that pre-trial proceedings will be finished before speedy trial demands are made.
Under Rule 11.10 the time period following the demand does not begin to run earlier than the date of the not guilty plea. The not guilty plea was selected as the crucial date because the defendant is not required to so plead until at or after the Omnibus Hearing and
by that time all discovery and pre-trial proceedings will have been substantially completed.
Moreover, a trial court does not abuse its discretion by delaying a trial beyond the requested 60-day speedy trial limit where there is good cause or exigent circumstances substantiated by the record.
McIntosh v. Davis
, 441 N.W.2d 115, 119-20 (Minn. 1989). In the instant case, 24 days of the 109-day delay were caused by the trial court's decision to continue the
hearing in order to hear testimony from Officer Gilbert. The
hearing transcript reflects that Gilbert's testimony was necessary to resolve the Fourth Amendment issue raised by appellant. Furthermore, it was appellant's request for a
hearing and the trial court's decision to continue the
hearing that caused much of the delay between appellant's speedy trial demand and his hearing; the record shows that the prosecution played little or no role in delaying appellant's trial after appellant's speedy trial demand. The prosecution's lack of involvement in delaying trial supports upholding the validity of trials after the 60-day time limit.
See, e.g., State v. Cararito
, 268 N.W.2d 79, 80 (Minn. 1978) (per curiam). Finally, appellant has not shown he was prejudiced in any way by having to wait.
See, e.g., State v. Jones
, 392 N.W.2d 224, 235-36 (Minn. 1986) (defendant did not show prejudice where defendant did not show he lost any witnesses, nor did he show any witnesses lost recollection, because of delay);
, 268 N.W.2d at 80 (defendant did not show prejudice as result of delay where defendant was not incarcerated during delay);
State v. Reese
, 446 N.W.2d 173, 179 (Minn. App. 1989) (same)
(Minn. Nov. 15, 1994). Appellant was not unlawfully denied a speedy trial.
We will not reverse a trial court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.
State v. Scruggs
, 421 N.W.2d 707, 715 (Minn. 1988).
Minn. R. Evid. 404(b) provides that
evidence--evidence of a prior bad act--is admissible to show intent to commit a crime. The trial court, relying on Rule 404(b), held that evidence of a prior incident in which appellant pulled a car over for speeding using flashing lights and a siren could be introduced in the instant case as evidence of appellant's intent to impersonate a police officer, an element of that misdemeanor. The court instructed the jury repeatedly that they were not to consider appellant's guilt or innocence in connection with the prior incident but only to use the incident to help them decide whether appellant intentionally impersonated a police officer on December 22, 1994.
The trial court reasonably concluded that the
evidence introduced in this case tends to establish that appellant intended to pose as a police officer. Such evidence was particularly important to the state's case in light of appellant's argument to the jury that he was mistaken for an officer through no fault or action of his own.
See State v. Drieman
, 457 N.W.2d 703, 710 (Minn. 1990) (state must demonstrate a need for
evidence). The trial court did not abuse its discretion in permitting admission of the
Sufficiency of the Evidence
When there is a challenge to the sufficiency of the evidence, appellate review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did.
State v. Webb
, 440 N.W.2d 426, 430 (Minn. 1989). Having reviewed the record, we find it contains abundantly adequate evidence that, if believed by the jurors, could support the jurors' verdict finding appellant guilty of impersonating a police officer and of having illegal lights on his vehicle.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.