State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0727

State of Minnesota,
Respondent,

vs.

Said Yusuf Mumin,
Appellant.

Filed March 26, 2018
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-15-1046

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pres iding Judge; Larkin, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his conviction for f ourth-degree criminal sexual conduct,
arguing that his constitutional right to a spee dy trial was violated by a 208-day period
between the invocation of his speedy-trial right and his trial. We affirm.
FACTS
The state charged appellant with fourth-degree criminal sexual conduct six months
after he held a woman in a tight grip across her torso and touched her vaginal area. At the
initial appearance, the district court released appellant on his own r ecognizance and with
conditions. Between the date the charges were filed and the demand for a speedy trial, the
trial was continued three times: once after the state requested a continuance because of an
unavailable law-enforcement witness, a se cond time after appellant requested a
continuance because his employer would not permit him to take days off work, and a third
time because an older case took priority on the district court’s trial calendar.
On March 17, 2016, after the third conti nuance of trial, appellant made a speedy-
trial demand. At a pretrial hearing in April, the parties acknowledged that appellant’s case
may not be heard in April because two other cases had priority on the trial calendar. The
case was subsequently removed from the trial calendar in April because of an ongoing trial.
The trial was rescheduled to May 16. At a pretrial hearing, the parties acknowledged
that another case would be heard before appellant’s case because it involved an in-custody
defendant whose speedy-trial demand was set to expire. Appellant’s attorney was
scheduled as standby counsel in the other case. On the week of May 16, the state emailed
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the district court to ask if the case would proceed to trial later that same week, and, if not,
requested that a hearing be held to discuss appellant’s speedy-trial demand.
At a hearing on May 19, the di strict court found that there had been good cause to
delay the trial on May 16. The district court explained that it heard a different trial that
week, and appellant’s trial c ould not be moved to a differe nt judge because appellant’s
attorney was appearing in the other trial as well. Both the state and appellant’s attorney
acknowledged that a witness for the state and a witness for the defense had been
unavailable for trial. Appellant’s attorney th en explained that the same witness would be
unavailable for trial between July 13 and August 25. Appellant ’s attorney requested that
the trial be held before July 13, indicating that appellant woul d be prejudiced if the trial
was scheduled during the period when his witness would be unava ilable. Appellant
declined to waive his speedy-trial demand or request a continuance.
The trial was subsequently rescheduled to August 29. On that day, the state
requested a continuance because a “third-party disinterested witness” was out of the state
and had not returned the state’ s recent attempts at contact until that morning. The state
acknowledged that the case could be tried without the witness, but that it would only do so
as a last resort. The state told the district court that it planned to dismiss the case and refile
the charges if a continuance was not granted. Appellant objected to the request for a
continuance. The district court granted a continuance on the basis that the state had made
reasonable efforts to secure the appearance of the witness. The district court acknowledged
appellant’s speedy-trial demand, but found that further delay would not be “particularly
prejudicial” in light of appellant’s out-of-custody status.
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The trial was rescheduled to October 10. On October 7, ap pellant moved for a
dismissal on the ground that the previous dela ys violated his right to a speedy trial.
Appellant’s attorney argued that the delays from March 16 to May 19 and from August 29
to October 10 were heavily attributable to the state because they were caused by the state’s
actions and court congestion. Appellant’s attorney acknowledged that the delay from May
19 to August 29 was not attributable to the state because a defense witness was not available
during that time, and because the attorneys’ schedules would not permit a trial in late May.
When asked by the district cour t if appellant turned down tr ial dates in June and July,
appellant’s attorney answered in the affirmative. The district court concluded that
appellant’s right to a speedy trial was not violated by the delay.
The case proceeded to trial and a jury found appellant guilty of the sole charge. This
appeal followed.
D E C I S I O N
The United States Constitution and the Mi nnesota Constitution guarantee criminal
defendants the right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6; State
v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015). “Whether a defendant has been denied a speedy
trial is a constitutional question subject to de novo review.” State v. Osorio, 891 N.W.2d
620, 627 (Minn. 2017). If a defendant is depr ived of his right to a speedy trial, the case
must be dismissed. Id.
Minnesota appellate courts apply the four-factor test articulated in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972), to determine whether a defendant’s
speedy-trial right has been violated. Id. “Under the Barker test, we must consider: (1) the
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length of the delay; (2) the reason for the dela y; (3) whether the defendant asserted his or
her right to a speedy trial; and (4) whether the delay pr ejudiced the defendant.” Id.
(quotations omitted). We consider each factor, weighing the conduct of both the state and
the defendant. Id. at 628. None of the factors is ei ther necessary or sufficient to find a
speedy-trial violation; rather, the factors must be considered together along with any other
relevant circumstances. Id.
I. Length of Delay
“The length of the delay is a ‘triggeri ng mechanism’ which determines whether
further review is necessary.” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quoting
Barker, 407 U.S. at 530, 92 S. Ct. at 2192). A delay that exceeds 60 days from the date of
a defendant’s speedy-trial demand is presumptively prejudicial. Taylor, 869 N.W.2d at 19
(citing Minn. R. Crim. P. 11.09(b) (requiring a trial to start within 60 days of a speedy-trial
demand unless good cause for dela y is shown)). If a delay is presumptively prejudicial,
we must consider the remaining Barker factors. Id.
Appellant has satisfied the first Barker factor because his trial did not occur within
60 days of his speedy-trial demand. This delay was presumptively prejudicial and triggers
further review of the remaining Barker factors. Windish, 590 N.W.2d at 315.
II. Reason for delay
“[T]he key question is whether the government or the criminal defendant is more to
blame for the delay.” Taylor, 869 N.W.2d at 19-20 (quotation omitted). Different reasons
for a delay are weighed differently: a deliberat e delay to hamper the defense is weighed
heavily against the prosecution, but neutral reasons, such as negligence or overcrowded
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courts are weighed less heavily against the prosecution. Id. Court congestion is weighed
against the state, as the resp onsibility of bringing the defend ant to trial rests with the
government rather th an the defendant. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. But
“when the overall delay in bringing a case to tr ial is the result of the defendant’s actions,
there is no speedy trial violation.” State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).
Appellant’s trial was primarily delaye d from March 17 to Ma y 19 due to court
congestion. Court congestion is considered a more neutral factor, though it is still weighs
against the state. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. However, the district court
found that, even if a di strict court judge had been available to hear the case, appellant’s
attorney would not have been available because he was appearing in a different trial. The
parties likewise agreed that both witnesses for the state and appellant were unavailable for
trial at that time. Because both court congestion, and the availability of appellant’s attorney
impacted the delay, this delay is a neutral factor.
The second delay, from May 19 to August 29, was caused by the unavailability of
the attorneys for trial, as ad mitted in the motion to dismiss, and th e unavailability of
appellant’s character witness. The bulk of this delay is attributable to appellant because of
the unavailability of his witness, and thus does not weigh in favor of a finding of a speedy-
trial violation. See Windish, 590 N.W.2d at 316 (indicating that a defendant’s requests for
continuances do not weigh in favor of a speedy-trial violation).
The final delay, from August 29 to October 10, was caused by the unavailability of
a witness for the state. “N ormally, the unavailability of a witness constitutes good cause
for delay.” Windish, 590 N.W.2d at 317. “[A] prosecut or must be diligent in attempting
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to make witnesses available and the unavailability must not prejudice the defendant.” Id.
If the state does not produce evidence of its e fforts to ensure a witn ess’s appearance, the
“lack of diligence weighs against the state.” Id. In granting a continuance, the district
court found that the state acte d diligently in attempting to pr ocure the witness. The state
sent a subpoena to the witness, which the witness returned. The state then lost contact with
the witness, despite trying to contact him in the days prior to the scheduled trial date. The
witness did not make contact with the state un til the day the trial was scheduled to begin.
The witness informed the state that he was travelling and would be unable and unwilling
to return for the trial. The state produced evidence of its efforts to ensure the witness’s
appearance, and the delay did not impact appellant’s case. This delay is a neutral factor.
Of the three delays in bringing the case to trial after appellant’s demand, two of the
delays were neutral and the longest delay was attributable to appellant.
III. Appellant’s assertion of the right
“Whether and how a defendant asserts his right is closely related to the other
factors . . . .” Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Asser tion of the right need not
be formal or technical, and is de termined by the circumstances. Windish, 590 N.W.2d at
317. The defendant’s assertion of his spee dy-trial right is entitled to strong evidentiary
weight when evaluating whether he has been deprived of his right. Barker, 407 U.S. at
531-32, 92 S. Ct. at 2192-93. We evaluate “[t]he circumstances surrounding the frequency
and intensity of a defendant’s assertion of a speedy trial demand—including the import of
defense decisions to seek delays.” Windish, 590 N.W.2d at 318. Defendants are not
required to “continuously reassert their demand,” but “the strength of the demand is likely
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to reflect the seriousness and extent of the prejudice which has resulted.” State v. Friberg,
435 N.W.2d 509, 515 (Minn. 1989); see Johnson , 498 N.W.2d at 16 (indicating that
whether the demand is “prompt” and “forceful” is key to a court’s evaluation of a speedy-
trial claim).
Appellant asserted his speedy-trial right 13 months after the complaint was filed.
Between the assertion of the trial right on March 17 and the May 19 hearing, appellant did
not request a continuance or relinquish his right to a speedy trial. But it is clear from the
record that appellant’s attorney and a witness were unavailable for trial on the scheduled
trial date in May. From May 19 to A ugust 25, the strength of appellant’s demand
diminished. As explained by a ppellant’s attorney in his moti on to dismiss, a trial would
not have been possible in late May because appellant’s attorney was unavailable, and
appellant’s witness was unavailable in July and August. However, it is clear that appellant
reasserted his speedy-trial demand when the state requested a continuance in August and
in October when he requested dismissal for deprivation of his speedy-trial right. This factor
weighs against the state, though not as strongly as it would ha ve if appellant consistently
asserted his right. See Osorio , 891 N.W.2d at 633 (noting that the defendant’s
acquiescence to the delay ameliorates any generalized prejudice he may have suffered).
IV. Prejudice to appellant
“Prejudice . . . should be assessed in the light of the interests of defendants which
the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
Those interests are: “(i) to prevent oppressi ve pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be
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impaired.” Id. Preventing the possibility that the de fense will be impaired is the most
serious interest. Id.
Appellant does not argue that he was prejudiced by oppressive pretrial incarceration
or that his defense was impaired by a delay. He argues that the delay caused him to suffer
anxiety, impacted his social and ordinary-life activities, a nd required him to appear for
seven hearings after his initial speedy-trial demand.
The Supreme Court has recognized that “even if an accused is not incarcerated prior
to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of
anxiety, suspicion, and often hostility.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193.
“Inordinate delay may seriously interfere with the defendant’s liberty , whether he is free
on bail or not, and may disrupt his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in him, his family and his
friends.” State v. Griffin, 760 N.W.2d 336, 341 (Minn. App. 2009) (quotation omitted).
Though the anxiety appellant faced during the pendency of the trial impacted his
daily life, “stress, anxiety and inconvenience experienced by anyone who is involved in a
trial” is insufficient for a finding of prejudice. Friberg, 435 N.W.2d at 515. Large portions
of the delays were caused by the unavailability of defense witnesses, defense counsel, and
appellant’s request to continue trial to accommodate his employer’s demands. While
appellant expressed that he wanted the case to be decided as quickly as possible, he was
comfortable with some level of delay to accommodate his own interests.
Finally, appellant argues that he estab lished that the length of the delay was
presumptively prejudicial. He argues nothing in the record negates this prejudice, and
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therefore his conviction should be reversed. However, the length of the delay is not the
only factor we must weigh in considering whether a speedy-t rial violation has occurred;
we consider all of the factors along with all relevant circumstances. Osorio, 891 N.W.2d
at 628. Here, appellant asserted his speedy-trial demand and was then responsible for the
longest postdemand delay in bringing the case to trial. He has asserted no prejudice except
the anxiety and inconvenience that attend all persons involved in cr iminal trials. We
conclude that appellant’s right to a speedy trial was not violated, and the district court did
not err in denying appellant’s motion to dismiss.
Affirmed.