A05-619

State of Minnesota,

Appellant,

vs.

Lee Ronald Nesgoda,

Respondent.

Filed January 10, 2006

Affirmed

Willis, Judge

Carlton County District Court

File No. K9-02-242

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

Thomas H. Pertler, Carlton County Attorney, Paul T. Shaffer, Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for appellant)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

The state appeals from the district court’s order dismissing the complaint against respondent. Because the record supports the district court’s conclusion that respondent’s right to a speedy trial was violated, we affirm.

FACTS

In February 2002, the state filed a complaint against respondent Lee Nesgoda, charging him with second-degree burglary, in violation of Minn. Stat. § 609.582, subd. 2a (2000). The state later filed an amended complaint with additional charges of possession of a firearm by a felon, in violation of Minn. Stat. § 624.713, subd. 1(b) (2000), and receiving stolen property, in violation of Minn. Stat. § 609.53, subd. 1 (2000).

In May 2002, the district court continued a scheduled omnibus hearing and gave the state three additional weeks to provide discovery to Nesgoda. More than a month later, the state requested and received a second continuance of the omnibus hearing. At the rescheduled omnibus hearing in September 2002, the district court gave the state another two weeks to provide discovery to Nesgoda. Nesgoda’s counsel confirmed that there was at that time no speedy-trial demand. At a hearing in February 2003, the state and Nesgoda agreed to an indefinite continuance because the state’s key witness had pending a criminal appeal with “Fifth Amendment complications” that arose from the same events that led to the charges against Nesgoda and because the state was awaiting another judge’s determination of the competency of that witness.

Almost a year and a half later, at a hearing on July 12, 2004, Nesgoda made a speedy-trial demand. At the time, the state’s key witness was confined to the psychiatric ward of a state prison and was not competent to testify. The state conceded at the hearing that it was not certain that it could proceed with the case against Nesgoda without that witness.

A jury trial was scheduled for November 1, 2004. On October 19, 2004, the state requested a continuance, which the district court denied. For reasons not apparent from the record submitted to this court, the scheduled trial was cancelled. At a hearing on March 23, 2005, more than eight months after Nesgoda’s demand for a speedy trial, Nesgoda moved to dismiss the complaint for the violation of his right to a speedy trial. The district court granted the motion, and this appeal follows.

D E C I S I O N

Because it is a constitutional question, a district court’s 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). All criminal defendants have a constitutional right to a speedy trial. U.S. Const. amend VI; Minn. Const. art. I, § 6; State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). In Minnesota, a “trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown.” Minn. R. Crim. P. 11.10. To determine whether a delay has deprived a defendant of his right to a speedy trial, a court must balance the following four factors: “(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.” Windish, 590 N.W.2d at 315 (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2191-93 (1972), and State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting four-part Barker inquiry for speedy-trial demands)). None of the factors alone is dispositive; rather, the factors are related and “must be considered together with such other circumstances as may be relevant.” Id. (quotation omitted). The state argues that “[b]ased upon the district court’s lack of consideration of the [Barker] factors and the facts of this case . . . the district court abused its discretion in dismissing the state’s case.” The district court did not analyze the Barker factors in its order, but because we review Nesgoda’s claim de novo, we will apply those factors to the facts in the record.

The first Barker factor is the length of the delay. When the length of the delay is “presumptively prejudicial,” it triggers review of the remaining three factors. Id. In Minnesota, a delay of more than 60 days from the date of the speedy-trial demand is presumptively prejudicial. Id. at 315-16. More than eight months passed between Nesgoda’s speedy-trial demand on July 12, 2004, and the district court’s dismissal of the case on March 23, 2005. The delay, therefore, is presumptively prejudicial and requires review of the remaining Barker factors.

The second Barker factor is the reason for the delay. The state and the courts have the burden of ensuring speedy trials for criminal defendants. See id. at 316; Cham, 680 N.W.2d at 125. If a defendant’s own actions caused the delay, there is no violation of the right to a speedy trial. State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). Generally, the unavailability of a witness is good cause for delay. Windish, 590 N.W.2d at 317. But the state must be diligent in its efforts to obtain witnesses and evidence for trial. Id. And a delay caused by witness unavailability must not be extreme or prejudicial. State v. Reese, 446 N.W.2d 173, 179 (Minn. App. 1989), review denied (Minn. Nov. 15, 1989).

Here, nothing in the record suggests that Nesgoda caused any part of the delay after his demand for a speedy trial. The record shows that eight months passed between Nesgoda’s speedy-trial demand and his motion to dismiss because the competency of the state’s key witness was in question. Nesgoda had already agreed to an indefinite continuance in February 2003 because of the state’s problems with that witness. Almost a year and a half later, in July 2004, the state’s witness was in a prison psychiatric ward, and it was still unknown when, or if, the witness would be competent to testify. Nesgoda then demanded a speedy trial and, more than eight months later, moved for dismissal. Because we conclude that the eight-month delay caused by the unavailability of the state’s witness was extreme, particularly when the state had already had a year and a half to make the witness available, this factor weighs in favor of Nesgoda.

The third Barker factor is whether Nesgoda asserted his right to a speedy trial. It is uncontested that he did so.

The fourth Barker factor is whether the delay prejudiced Nesgoda. To determine whether a delay prejudices a defendant, this court considers three interests that the right to a speedy trial protects: (1) preventing lengthy pretrial incarceration; (2) minimizing the defendant’s anxiety and concern; and (3) preventing possible impairment to the defendant’s case. Windish, 590 N.W.2d at 318; Cham, 680 N.W.2d at 125. The third interest is the most important. Windish, 590 N.W.2d at 318. But it is difficult for a defendant to prove exactly how his case is impaired by a delay. Id. at 319. Therefore, a defendant does not have to prove specific prejudice. Id. at 318. Generally, an excessive delay presumptively compromises the reliability of a trial in ways that cannot be proved or identified. Doggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686, 2693 (1992).

Here, Nesgoda identifies no prejudice caused by the delay in bringing his case to trial. But we conclude that the eight-month delay after the speedy-trial demand was excessive, especially considering that more than three years had passed since Nesgoda was charged, and that, therefore, the delay presumptively compromised the reliability of a trial.

Because the Barker factors weigh in Nesgoda’s favor, we conclude that his right to a speedy trial was violated, and we affirm the district court’s dismissal of the complaint against Nesgoda.

Affirmed.