Opinion
No. C9-98-1019.
Filed March 30, 1999.
Appeal from the District Court, Hennepin County, File No. 97045579.
Michael A. Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, (for appellant).
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant James Paul Solarz challenges his conviction of fifth-degree possession of a controlled substance, alleging his right to a speedy trial was violated. We affirm.
FACTS
On May 27, 1997, Bloomington police officers executed a search warrant and found marijuana at appellant's home. Appellant was charged with fifth-degree possession of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). By separate complaint, appellant was also charged with conspiracy to commit kidnapping relating to a different behavioral incident. On August 1, 1997, appellant pleaded not guilty to both charges and demanded speedy trials on both. Separate trials were scheduled. The conspiracy trial proceeded first, in October 1997, and when it was finished, the parties agreed that appellant's next trial would be on a pending charge of second-degree criminal sexual conduct. That trial took place in January 1998. Although the state indicated it was ready to try the possession charge the day after trial ended on the charge of criminal sexual conduct, appellant did not want to proceed at that time, and the trial was, therefore, scheduled for March 1998.
The date on which this complaint was filed is not part of the record on appeal.
On the first day of trial on the possession charge, appellant moved to dismiss, claiming his right to a speedy trial had been violated. The district court denied the motion, concluding the delay was justifiable. The trial proceeded, appellant was convicted, and he appeals.
The district court also denied appellant's motion to dismiss the case on the ground of the statutory prohibition against serial prosecution, Minn. Stat. § 609.035, subd. 1 (Supp. 1997), but appellant does not challenge that ruling here.
DECISION
When reviewing a claimed violation of the right to a speedy trial, we will affirm the district court absent an abuse of discretion. State v. Friberg , 435 N.W.2d 509, 515 (Minn. 1989).
Both the United States Constitution and the Minnesota Constitution guarantee a criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. To determine whether this right has been violated, four factors must be balanced: the length of the delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to the defendant during the delay. Friberg , 435 N.W.2d at 512 (citing Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92 (1972)). A trial shall be commenced 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.
Here, appellant's trial on the possession charge began more than seven months after his demand for a speedy trial, which creates a presumption that appellant's speedy-trial right has been violated, thereby requiring further inquiry. See Friberg , 435 N.W.2d at 513 ("[D]elays beyond the 60-day limit simply raise the presumption that a violation has occurred and require * * * further inquiry to determine if there has been a violation of the defendant's right to speedy trial.").
The state has the primary burden of ensuring that a speedy trial occurs. State v. Rachie , 427 N.W.2d 253, 255 (Minn.App. 1988), review denied (Minn. Sept. 20, 1988). But the mere fact that more than nine months passed from appellant's arrest on May 27, 1997, to his trial on March 10, 1998, does not mean that his right to a speedy trial was violated. See, e.g., State v. Helenbolt , 334 N.W.2d 400, 405-06 (Minn. 1983) (concluding 14-month delay did not violate right to speedy trial). The delay from May 1997 to January 1998 weighs against the state, although it conducted two trials of appellant during that time. The period from January 1998 to March 1998 does not weigh against the state because appellant chose not to proceed to trial when the state was ready in January. See State v. Johnson , 498 N.W.2d 10, 15-16 (Minn. 1993) (stating delay caused by defendant does not weigh against state when determining whether right to speedy trial was violated).
Appellant concedes that the delay between his arrest and his trial on the possession charge was the result of the state trying him on two other charges first. Because the charges against appellant did not arise from a single course of conduct, the state could not consolidate them in a single trial, and one of the trials had to be last. See State v. Hatton , 389 N.W.2d 229, 234 (Minn.App. 1986) (explaining Minn.R.Crim.P. 17.03, subd. 4, permits joinder for trial if charges "arose from the same course of conduct") (citations omitted), review denied (Minn. Aug. 13, 1986). Appellant agreed to the scheduling of his three trials, and by doing so, he waived his right to strict compliance with the 60-day rule. See State v. Curtis , 393 N.W.2d 10, 12 (Minn.App. 1986) (concluding that by accepting trial date without objection, appellant "in effect waived his right to strict compliance with the 60-day rule").
The parties do not dispute that appellant asserted his right to a speedy trial, which is normally given strong evidentiary weight in determining whether the right was unfairly denied. See Johnson , 498 N.W.2d at 16 (stating defendant's assertion of right to speedy trial "is normally given `strong evidentiary weight' in determining whether or not the right was unfairly denied") (quoting Barker , 407 U.S. at 531-32, 92 S.Ct. at 2192-93). In weighing this factor, the force and frequency of the demand must be considered. Friberg , 435 N.W.2d at 515. Here, appellant was aware of, participated in, and did not object to the scheduling of his trial on the possession charge. Although appellant asserted his right at the time of his plea to the charge and reminded the district court of his assertion "from time to time," this factor does not weigh in favor of appellant's claim. See Johnson , 498 N.W.2d at 16 (concluding defendant's assertions of right to speedy trial did not favor claim that his right was violated when his four demands were not forceful).
Appellant's claim that he has suffered some anxiety and stress, "wondering what has become of this charge," is insufficient to show prejudice for purposes of a speedy-trial claim. See Friberg , 435 N.W.2d at 515 (finding no prejudice where appellants alleged only stress, anxiety, and inconvenience); State v. Reese , 446 N.W.2d 173, 179 (Minn.App. 1989) (explaining anxiety allegedly suffered while waiting for trial is insufficient to show prejudice), review denied (Minn. Nov. 15, 1989).
For the foregoing reasons, we conclude the district court did not abuse its discretion in deciding that appellant's right to a speedy trial was not violated.