This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-790

 

State of Minnesota,

Appellant,

 

vs.

 

Shawn Edward Evans,

Respondent.

 

Filed October 17, 2006

Reversed

Ross, Judge

 

Benton County District Court

File No. 05-CR-06-306

 

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

 

Robert J. Raupp, Benton County Attorney, Karl L. Schmidt, Assistant County Attorney, Benton County Courthouse, 615 Highway 23, Foley, MN 56329 (for appellant)

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097; and

 

Mark D. Nyvold, Assistant Public Defender, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge; Ross, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This case arises from a March 2005 stabbing in Sauk Rapids that led to a first-degree assault criminal complaint against respondent Shawn Evans.  As the trial date approached, the state dismissed the criminal complaint to give itself more time to secure additional evidence, then it refiled the complaint five months later.  The district court included the period between the dismissal and refiling in its speedy-trial analysis and therefore concluded that the state had violated Evans’s constitutional right to a speedy trial.  The state appeals the district court’s order dismissing its refiled criminal complaint.  Because we conclude that the district court erred in its speedy-trial analysis by including the time between the state’s dismissal and refiling of the complaint, we reverse.

 

FACTS

Police investigators believe that Shawn Evans stabbed Michael Brunelle in the neck during a March 18, 2005 altercation at an apartment in Sauk Rapids.  A witness informed police that Evans had stabbed Brunelle.  Police arrested Evans at his residence in the early morning hours that same day.  During the arrest, police observed a substance that they believed to be blood on Evans’s pants.  They also found a knife, covered in what appeared to be blood, in a dumpster near the apartment.  Evans admitted to police that he stabbed Brunelle in the neck while the two were fighting.  He claimed that he picked up a knife that Brunelle had dropped and that Brunelle started punching him.  Evans allegedly then swung at Brunelle, stabbing him in the neck.  Brunelle told police that it was Evans who pulled the knife, that they engaged in a physical scuffle, and that, immediately unbeknownst to Brunelle, Evans stabbed him during the altercation.  Brunelle’s injury required a five-hour surgery.

Three days later the state filed a criminal complaint in district court, charging Evans with assault in the first degree.  Evans could not post bond and remained incarcerated.  On April 22, 2005, Evans moved to suppress his statement to police in which he admitted stabbing Brunelle.  At an omnibus hearing on July 8, 2005, Evans pleaded not guilty and, for the first time, demanded a speedy trial.  His attorney requested and received additional time to file supporting caselaw, which she did not file until August 5.  The court scheduled a jury trial to commence August 29, 2005.  On Evans’s motion, the court reduced his bail.  Evans posted bond and was released from jail on August 5, 2005, for the first time since his March 18 arrest.

On August 12, 2005, the state moved to compel Evans to submit a DNA sample.  The state apparently wanted to compare Brunelle’s and Evans’s DNA with the blood on the knife and Evans’s pants, but the state had not yet submitted the knife and pants to the Bureau of Criminal Apprehension for forensic laboratory testing.  At a settlement conference on August 18, the state moved to continue the trial because the DNA test results would not be available in time.  The district court denied the state’s motion to continue but granted its motion for discovery of Evans’s DNA.  The next day, the district court granted Evans’s motion to suppress his statement.  On August 25, 48 days after Evans made his speedy trial demand, the state dismissed the charge but advised him on the record that it would refile the charge when the laboratory completed the DNA testing.

On February 3, 2006, the state provided Evans with notice that it had DNA evidence.  The state filed a new complaint the next day, again charging Evans with assault in the first degree for the stabbing.  Police took Evans into custody on February 7 but released him on February 9 after the court reinstated the bond that he had posted on the charge in the dismissed complaint.  On February 17, Evans moved the district court to dismiss the newly filed complaint because the state violated his right to a speedy trial.  The district court granted Evans’s motion to dismiss the complaint, determining that the delay denied Evans’s constitutional right to a speedy trial.  The state’s appeal follows.

 

D E C I S I O N

The state challenges the district court’s determination that it denied Evans a speedy trial under the federal and state constitutions.  Determining whether a defendant has been denied the right to a speedy trial necessarily involves the district court’s discretion, State v. Friberg, 435 N.W.2d 509, 512-15 (Minn. 1989), but the determination 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).

The federal and Minnesota constitutions establish that “[i]n 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.  The United States Supreme Court has “refused to establish an arbitrary and rigid time period for determining whether the right to speedy trial has been violated and instead adopted a balancing test for reviewing such claims.”  Friberg, 435 N.W.2d at 512; see also Barker v. Wingo, 407 U.S. 514, 523, 529-30, 92 S. Ct. 2182, 2188, 2191-92 (1972) (rejecting inflexible approaches to speedy-trial analysis and adopting balancing test, but noting that states are “free to prescribe a reasonable period within constitutional standards”).

To determine whether a delay deprived the accused of the right to a speedy trial, Minnesota courts apply the Supreme Court’s four-factor balancing test announced in Barker, 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 the 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. (quotation omitted); see also State v. Lussier, 695 N.W.2d 651, 654 (Minn. App. 2005) (emphasizing that speedy-trial violation determination requires “delicate judgment based on the circumstances of each case” (quotation omitted)), review denied (Minn. July 19, 2005).  Weighing these factors in the unique circumstances of this case, we believe the district court erred by finding a speedy-trial violation.

Length of Delay

Evans urges the court to include the interim delay of five months between dismissal of the first complaint and the filing of the second when measuring the length of the delay.  We decline to do so because without some evidence of bad faith on the part of the state—which Evans does not allege, the district court did not find, and the record does not suggest—this period does not factor into the speedy-trial calculation.

The Sixth Amendment’s speedy trial clause “has no application after the [g]overnment, acting in good faith, formally drops charges.”  United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 1501 (1982).  The Eighth Circuit Court of Appeals has explained 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.”  United States v. Pajari, 715 F.2d 1378, 1384 (8th Cir. 1983).  And this court has excluded the period between dismissal of a juvenile-delinquency petition and refiling when calculating the time that applies in a speedy-trial analysis.  In re Welfare of G.D., 473 N.W.2d 878, 882 (Minn. App. 1991) (“Appellant’s right to speedy trial lapsed during that interim period when he was not charged with an offense, under arrest, in custody, or under any restriction.”); see also 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 25.2 (2001) (opining that time when defendant is neither under indictment nor subject to any restraint on liberty should be excluded from consideration of speedy-trial claim).

The Minnesota Rules of Criminal Procedure provide for a speedy trial and define a reasonable time for bringing a defendant to trial.  These rules require that a defendant “be tried within sixty (60) days from the date of the demand unless good cause is shown . . . why the defendant should not be brought to trial within that period.”  Minn. R. Crim. P. 6.06; see also id. 11.10 (requiring commencement of trial within 60 days of speed-trial demand).  Delays beyond 60 days from the demand for a speedy trial therefore raise a presumption that a violation has occurred and require courts to examine the remaining Barker factors.  Windish, 590 N.W.2d at 315-16; Friberg, 435 N.W.2d at 513.

Evans points to State v. Kasper, 411 N.W.2d 182, 184 (Minn. 1987), to argue that the interim period between the dismissal and recharging should count toward the length of delay that is attributable to the state in a speedy-trial analysis.  Kasper does not support Evans’s argument.  The supreme court in Kasper did not hold that an interim period counts towards the length of delay; Kasper held only that “the time period should not start again from zero with the new complaint.”  Id.  This court has interpreted Kasper as holding that “although the time between dismissal and refiling of the [charges] tolls the running of the 60-day speedy trial guarantee, the 60-day time period should not start anew upon refiling.”  G.D., 473 N.W.2d at 881.  Kasper therefore contradicts rather than supports Evans, and we exclude the period from dismissal to refiling when measuring the delay.

Even excluding the dismissal period, Evans satisfies the presumption that a violation of his right to a speedy trial has occurred.  Evans did not make a speedy-trial demand until July 8, 2005.  Evans therefore had to be brought to trial within 60 days of the demand, or by September 6, 2005.  When the state dismissed the complaint on August 25, only 48 days had passed.  Between the filing of the second complaint on February 4 and Evans’s filing of the motion to dismiss on February 17, another 13 days passed, for a total of 61 days.  This delay beyond 60 days barely, but sufficiently, creates a presumption of prejudice and leads us to apply Barker’s other factors.

Reason for the Delay

We next consider the legitimacy of the reason for the delay.  This factor is closely related to the previous factor, particularly in this case.  See State v. Huddock, 408 N.W.2d 218, 220 (Minn. App. 1987) (recognizing relationship between first two Barker factors).  In balancing this factor, we “recognize that different weights will be assigned to different reasons for the delay.”  Cham, 680 N.W.2d at 125.  Although the rule-based presumption of undue delay depends on a defendant demanding a speedy trial, the right to a speedy trial attaches upon arrest.  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).  We therefore consider the reason for the entire delay, which is the period from Evans’s arrest on March 18, 2005, to the filing of his motion to dismiss on February 17, 2006, less the excluded period between dismissal and refiling.  See Friberg, 435 N.W.2d at 513-15 (considering period before the speedy-trial demand when evaluating reason for delay).  The applicable delay here is measured by the period in which Evans was the subject of a criminal charge and was either incarcerated or released on bail, which was 173 days, or about five and one-half months.

The bulk of this delay cannot be attributed to the state.  The delay between the arrest on March 18, 2005, and the omnibus hearing on April 29, 2005, arose from Evans’s request for the omnibus hearing and the district court’s scheduling limitations.  The delay between the April 29 hearing and the continued July 8 hearing rests entirely on Evans’s decision at the April hearing to waive his demand for a speedy omnibus hearing.  The delay between the July 8 and August 18 hearings is attributable entirely to Evans, whose attorney on July 8 requested time to submit additional caselaw and instead filed a formal memorandum nearly one month later, on August 5.  The state filed its response within one week, on August 12, and the district court decided the disputed issues on August 19.  The only delay attributable to the state arose from its intention to secure a DNA sample from Evans and to develop forensic evidence through laboratory testing, beginning in August 2005.  The state concedes that its failure to begin developing this evidence sooner is “obvious negligence on its part.”

It is this obvious negligence that Evans overemphasizes and on which the district court primarily rested its determination that the state violated Evans’s right to a speedy trial.  The district court based its decision in part on its understanding that “negligent delays are weighed heavily against the state.”  But although the Supreme Court has noted that a “deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government,” the court has also recognized that  “[a] more neutral reason such as negligence . . . should be weighted less heavily.”  Barker, 407 U.S. at 531, 92 S. Ct. at 2192; see also Huddock, 408 N.W.2d at 220 (recognizing that negligent delays are given less weight).  And we consider the state’s negligence in light of the minimal additional delay it caused.  The earliest the district court could have begun Evans’s trial apart from any delay caused by the state was after August 19, 2005, when it decided his motion to suppress evidence.  The delay attributable to the state after that point—6 days in August immediately preceding the dismissal and 13 days after refiling in February 2006—is not of great consequence by comparison to the substantial delays attributable to Evans.

Our supreme court has found that circumstances over which the state had no control have justified tolerable delays up to 14 months where, as here, the defendant has suffered no unfair prejudice.  See Friberg 435 N.W.2d at 513-14 (citing cases in which court found speedy-trial violation despite delays ranging from six to fourteen months).  We conclude that the state’s contribution to the delay was minor, its reason to gather evidence was legitimate, and, despite its negligence associated with the delay, this factor argues against a determination that the state violated Evans’s right to a speedy trail.

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, and the strength of the demand will likely reflect the seriousness and extent of any resulting prejudice.  Id. at 515.  “The more serious the deprivation, the more likely a defendant is to complain.”  Barker, 407 U.S. at 531, 92 S. Ct. at 2192.  Evans demanded a speedy trial, but not until July 8, 2005, or nearly four months after his arrest.  We find nothing in the record to support the contention that he made any other request for a speedy trial.  His decision to waive his demand for a speedy omnibus hearing in April, his agreement to the contested hearing being rescheduled to July, and his delay to August to submit a memorandum related to his motion to dismiss, provide a substantial counterbalance to any weight that his single, late request for a speedy trial might otherwise contribute.  We conclude that “the defendant’s speedy trial assertions here cannot be regarded as prompt or forceful, both of which are key to a court’s evaluation of a speedy trial claim.”  State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).  This factor also does not support Evans’s claim of a constitutional deprivation.

Prejudice to the Defendant

The final factor of prejudice should be measured in light of the interests that the speedy-trial right was designed to protect.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193.  The Supreme Court has identified three interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.  Id.  The third interest, possible impairment of the defense, is the most serious concern.  Id.  None of these tends to support Evans’s claim.

With respect to the first interest, although Evans spent approximately four and one-half months in jail before he was able to post bond, the majority of that time was before his demand for a speedy trial and resulted from delays not attributable to the state.  Evans spent only 28 days in jail after his demand until posting bond, another 7 days on a warrant due to his probation violation, and 2 days following the filing of the second complaint until his bond was reinstated, for a total of 37 days.  This does not constitute oppressive pretrial incarceration on the serious charge that Evans faced.

In assessing anxiety and concern, the district court focused on the interim period between the dismissal of the first complaint and the filing of the second complaint, concluding that Evans suffered anxiety, concern, and financial hardship from the lingering potential charges.  We do not doubt the district court’s reasonable finding that Evans was anxious and concerned.  But for reasons already explained, this period does not factor into the speedy-trial analysis.  The Supreme Court has emphasized this point:

Once charges are dismissed, the speedy trial guarantee is no longer applicable.  At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation.  Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.  This is true whether or not charges have been filed and then dismissed. . . . Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.

MacDonald, 456 U.S. at 8-9, 102 S. Ct. at 152.  Evans does not identify any particular anxiety or concern that resulted from the short delay caused by the state, and none is apparent from the record.

In addressing the most important interest, Evans has failed to demonstrate or even argue that his defense of self-defense will be impaired by the delay.  He emphasizes that he need not prove prejudice.  But “deprivation of the right to speedy trial does not per se prejudice [a defendant’s] ability to defend himself.”  Barker, 407 U.S. at 521, 92 S. Ct. at 2187.  Evans asserts that he must locate witnesses and prepare them again for trial, but this is not prejudice; he has not claimed that he would be unable to locate witnesses, that any witnesses are now unwilling to testify, or that any witnesses will be unable to recall the events related to the stabbing.  See Jones, 392 N.W.2d at 235-36 (finding no prejudice when defendant failed to show how delay impaired defense).  When, as here, a “delay in no way affect[s] the strength of defendant[’s] case, the final Barker factor does not favor defendant[].”  Friberg, 435 N.W.2d at 515.  The impairment interest and the prejudice factor therefore weigh against the claim of a speedy-trial violation.

In sum, the delay in this case is sufficient to raise a presumption of prejudice and to require further inquiry, but that inquiry does not support a determination that the state violated Evans’s right to a speedy trial.  There is no evidence of any bad-faith effort on the part of the state to intentionally delay the trial or to hamper the defense.

We highlight that the district court had a clear basis to focus on the most troublesome part of this case, which is the state’s dismissal of the complaint after the court had denied the state’s request for a continuance to develop and secure additional evidence.  The state essentially fashioned its own continuance by unilaterally dismissing the complaint and refiling it on its own schedule.  This end-around tactic avoided the consequence of the district court’s discretionary denial of the state’s motion and is not a remedy contemplated by the rules.  See Minn. R. Crim. P. 28.04, subd. 1 (authorizing prosecuting attorney to appeal any pretrial order as of right).  We are mindful that dismissal-and-refiling is not uncommon or a generally prohibited practice under the rules.  The concern arises principally because in this case the tactic was a self-help substitute for the continuance that the district court refused.  Although we do not endorse the maneuver in this context, however, our review is limited to whether the state violated Evans’s constitutional right to a speedy trial.  It did not.  This is not the sort of “legal maneuvering” that is designed to circumvent the speedy-trial requirement by restarting the clock, such as the state attempted and the supreme court admonished in Kasper.  See Kasper, 411 N.W.2d at 185 (finding state attempted to circumvent Minn. R. Crim. P. 6.06.)

Because a de novo application of the Barker factors leads us to conclude that the district court erred in granting Evans’s motion to dismiss based on his right to a speedy trial, we reverse the district court’s order dismissing the complaint.

Reversed.