State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1225

State of Minnesota,
Respondent,

vs.

Karl Arthur Keene,
Appellant.

Filed June 20, 2022
Affirmed
Cleary, Judge*

Rock County District Court
File No. 67-CR-17-364

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Jeffrey Haubrich, Rock County Attorney, Luverne, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presid ing Judge; Wheelock, Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
CLEARY, Judge
In this direct appeal from the final judg ment of conviction for bribery, appellant
Karl Arthur Keene argues that the district court violated his constitutional rights to
(1) confront a witness face-to-face, and (2) a speedy trial. We affirm.
FACTS
On December 1, 2017, respondent State of Minnesota charged Keene with three
crimes, the relevant count bein g bribery of a public official or employee in violation of
Minn. Stat. § 609.42, subd. 1( 1) (2016), for an incident involving Keene and city-hall
employees. Keene posted bail and was released from custody.
Between January 2018 and April 2019, Keene filed several motions, including
multiple motions for a Minnesota Rule of Criminal Procedure 20.01 competency
assessment. The state also filed a motion for a competency assessment during that time.
At his arraignment Keene pleaded not guilty to all three charges. The state later dismissed
two of the charges, leaving only the bribery charge.
On March 20, 2020, the Chief Justice of the Minnesota Suprem e Court issued an
order suspending new jury trials because of the COVID-19 pandemi c, delaying Keene’s
trial. See Continuing Operations of the Courts of the State of Minnesota Under a Statewide
Peacetime Declaration of Emergency , No. ADM20-8001 (Minn. Mar. 20, 2020). The
Chief Justice again susp ended new jury trials on November 20, 2020. Order Governing
the Continuing Operations of the Minnesota Judicial Branch , No. ADM20-8001 (Minn.
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Nov. 20, 2020). Jury trials were eventually permitted to proceed after March 15, 2021, and
the district court scheduled the trial for March 18, 2021.
Before trial, the state filed a motion to permit the remote testimony of a witness,
P.A., based on P.A.’s recent international tr avel and the CDC quar antine guidelines for
international travelers at that time.1 The district court granted the state’s motion to permit
P.A. to testify remotely.
The district court held a trial on Keene’s bribery charge as scheduled. At trial, two
city-hall employees, including P.A., and a deputy sheriff, tes tified on the state’s behalf.
Keene testified in his own defense but otherwise presented no witnesses. Less than an hour
after deliberating, the jury fo und Keene guilty of the bribery charge. The district court
adjudicated Keene guilty, stayed imposition of his sentence, and placed him on supervised
probation for two years. This appeal follows.
DECISION
I. The district court did not violate Keene’s right to confront a witness.

Keene argues that the district court’s d ecision to allow P.A. to testify remotely
violated his rights under the Confrontation Clause. See U.S. Const. amend. VI; Minn.
Const. art. I, § 6. This clause, contained within the Sixth Amendment of the United States
Constitution and echoed in the Minnesota Constitution, provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

1 The remote testimony was provided via a common “internet platform for live, remote,
two-way video technology.” See State v. Tate, 969 N.W.2d 378, 380 n.2 (Minn. App. Jan.
3, 2022), rev. granted (Minn. Mar. 15, 2022).
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against him.” U.S. Const. amend. VI. “[ W]e apply de novo revi ew when determining
whether the admission of evidence violates a defendant’s rights under the Confrontation
Clause.” State v. Sutter, 959 N.W.2d 760, 764 (Minn. 2021).
The Confrontation Clause “predominantly requires a face-to-face meeting.” Tate,
969 N.W.2d at 380. But the right to face-to-face confrontation is not absolute. The United
States Supreme Court has held that “a defendan t’s right to confront accusatory witnesses
may be satisfied absent a physical, face-to-face confrontation at trial only where denial of
such confrontation is necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850
(1990). Recently, this court held in Tate that the two-part test in Craig applies to the kind
of remote testimony at issue here. Tate, 969 N.W.2d at 380-81. We therefore examine the
record in this matter to de termine whether (1) allowing P. A. to testify remotely was
necessary to further an impo rtant public policy; and (2) the testimony’s reliability was
otherwise assured.
A. Public Policy
Keene argues that the state failed to meet its burden on this first prong because a
generalized concern for COVID-19 does not sufficiently further an important public policy,
and the state failed to make a case-specific showing that P.A. had been exposed to COVID-
19. See id. at 388-90 (noting that the state made “a specific showing” that the witness was
susceptible to COVID-19 an d therefore remote testimon y was necessary). Keene’s
argument is unpersuasive. Under the first prong of Craig, we consider whether denial of
Keene’s right to confrontation was “necessary to further an important public policy.”
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Craig, 497 U.S. at 850. The public policy exception to the Confrontation Clause is defined
narrowly; it does not include, for example, “issues related to the convenience of the parties
or added expense.” Tate, 969 N.W.2d at 386. But in Tate, this court summarized the
Governor’s and Chief Justice’s COVID-19-re lated orders from 2020 and concluded that
“protecting public health when in the throes of a global pandemic . . . easily qualifies as an
important purpose.” Id. at 388. This court noted, though, that a generalized concern about
the pandemic is insu fficient because, under Craig, a finding of necessity must be “case-
specific.” Id. (quoting Craig, 497 U.S. at 855). This court held that, to satisfy Craig, the
state must “show that the testimony of a particular witness must be remote in order to serve
an important public policy, ra ther than . . . rest[ing] on the general existence of the
pandemic.” Id.
In this case, the state made such a showing. The state submitted an affidavit stating,
in part, that P.A. “is on vacation this week out of the country and that upon her return she
will be required to follow the Centers for Disease Control (CDC) recommendations and
guidelines for international tr avel,” which “call for testi ng 3-5 days after return” from
international travel “with a 7- day quarantine for a negative te st or alternatively 10 days
quarantine without a test.” Because both of those time periods “expire[d] after the date of
trial,” the district court determined that it should proceed with P.A.’s testimony remotely
“so as to avoid possible exposure to COVID” as a result of P.A.’s recent international travel
and “consistent with the CDC guidelines.” Citing Craig, the district court acknowledged
that there is a preference for face-to-face confrontation at trial but determined that, in this
particular case, “The witness’s physical pres ence at trial potentially jeopardizes not only
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the health of this witness, but also the health of all other persons who will be present in the
courtroom.” Based on these facts, the state made a sufficient case-specific showing that
allowing P.A. to testify remo tely was necessary to further the public policy of protecting
public health during the COVID-19 pandemic.
B. Reliability
Keene argues that P.A.’s remote testimon y was not sufficiently reliable because it
“did not provide the jury the ability to observe her demeanor equivalent to live, in-person
testimony.” Keene argues generally that the Confrontation Clause requires face-to-face
testimony, and again cites Tate, stating that unlike in Tate the district court here did not use
a “large” screen to help the jury observe P.A.’s demeanor. See Tate, 969 N.W.2d at 390.
Keene’s second-prong argument is also unpersuasive.
For the second prong of Craig, we consider whether “the reliability of the [remote]
testimony is otherwise assured.” See Craig, 497 U.S. at 850. “To satisfy this prong, the
witness must generally be under oath a nd understand the seriousness of his or her
testimony, the witness must be subject to cross-examination, a nd the judge, jury, and
defendant must be able to properly see and hear the testifying witness.” Tate, 969 N.W.2d
at 390. Keene does not dispute that P.A. gave her testimony under oath, nor does he dispute
that she was subject to contemporaneous cross-examination.
The record reflects that the district court sought to ensure reliability. Before any of
the witnesses testified, the district court instructed the jury on the importance of seeing and
hearing everything:
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[T]rial is about to begin, and you have now been sworn in. It
is important that you, members of the jury, be able to hear and
see everything that takes place du ring this trial. If you have
difficulty hearing, understanding, or seeing something during
this trial, please raise your hand and alert us, and we will make
accommodations so that you can see and hear everything.

And before P.A.’s testimony, the district court administered an oath to P.A. It also told the
jury that “[t]he next witness [P.A.], ladies and gentlemen, will be testifying remotely, so if
you could direct your attention toward the screen.” The distri ct court then asked P.A. if
she could hear everything and fu rther advised her: “This is an official court hearing and
trial. It is important that you speak loudly and clearly, and if we can’t hear you, we will
ask you to repeat yourself. If you can’t hear something that you are asked, please let us
know.”
Finally, at no point through out P.A.’s testimony did the judge, jury, or Keene
suggest that they could not properly hear or see P.A.’s testimony. Nor did P.A. convey an
inability to see or hear the questions asked. Based on this record, P.A. was under oath and
was subject to cross-examination, and the j udge, jury, and Keene could properly see and
hear P.A. See Tate, 969 N.W.2d at 390. The reliability of P.A.’s remote testimony was
therefore adequately assured.
Because the two-part Craig test is satisfied here, the district court did not violate
Keene’s rights under the Confrontation Clause by permitting P.A.’s remote testimony.

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II. The district court did not violate Keene’s right to a speedy trial.

Keene argues that although he caused the three initial reasons for the trial delay, the
delay after March 20, 2020, is solely because of the COVID-19 pandemic and violates his
speedy-trial right. Keene’s argument fails.
“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). But “any
inquiry into a speedy trial claim necessitate s a functional analysis of the right in the
particular context of the case.” Barker v. Wingo, 407 U.S. 514, 522 (1972).
Barker sets out four factors to consider in speedy-trial claims: (1) the length of the
delay; (2) the reason for the delay; (3) the de fendant’s assertion of his right to a speedy
trial; and (4) the prejudice to the defendant. Id. at 530. Minnesota has adopted these
factors, noting that they are to be consid ered in balancing “the sometimes competing
interests between the orderly prosecution of crimes that is fair to both sides and the prompt
resolution of the case by trial.” State v. Mikell, 960 N.W.2d 230, 245 (Minn. 2021).
The Barker factors are not exclusive; rather, they are considered “together with such
other circumstances as may be relevant” in evaluating an alleged violation of the right to a
speedy trial. Osorio, 891 N.W.2d at 628. In the fi nal analysis, “whether delay in
completing a prosecution amounts to an unconstitutional deprivation of rights depends on
the circumstances.” State v. Jackson , 968 N.W.2d 55, 60 (Minn. App. 2021) (quotation
omitted), rev. granted (Minn. Jan. 18, 2022).

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A. Length of the Delay
A delay becomes “presumptively prejudicial” after two time periods. Mikell, 960
N.W.2d at 246. The first period “starts when a criminal prosecution has begun,” and the
supreme court has found that “a 6-month delay after the beginning of a prosecution, without
any demand made, [is] presumptively prejudicial.” Id. (quotation omitted). The second
period “occurs 60 days after an accused demands a speedy trial after entering a not guilty
plea.” Id. In Minnesota, delays that are presump tively prejudicial trigger the “necessity
for inquiry into the remaining factors of the [Barker] test.” State v. Windish, 590 N.W.2d
311, 315 (Minn. 1999).
Because police arrested Keene on November 30, 2017, more than three years before
his trial, which began on March 18, 2021, the length of delay here well exceeds six months
after Keene’s arrest. Thus, this factor weighs in favor of Keene and triggers evaluation of
the remaining Barker factors. See id.
B. Reason for the Delay
Under the second Barker factor, we consider the reas ons for the delay, including
which party bears responsibility for the delay. Mikell, 960 N.W.2d at 250-51. When the
trial delay stems from the defendant’s own acti ons, his speedy-trial right is not violated.
Id. at 251. When the trial delay is attributable to the state’s actions, we assess the state’s
reasoning for the delay. Id. (noting that when good cause for delay exists, such as “a key
witness of the State is unavoid ably unavailable . . . the dela y will not be held against the
state”).
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Again, Keene acknowledges that he caused the initial three delays, which spanned
nearly two years, but challenges the delay beginning March 20, 2020, arguing that the delay
was caused by COVID-19. He asserts that this weighs against the state. Keene is correct
that the final delay was caused by the COVID- 19 pandemic, but his argument that this
weighs against the state fails in light of Jackson. In Jackson, this court concluded that a
17-day delay caused by public-safety concerns related to the COVID-19 pandemic did not
violate the defendant’s speedy-trial right. 968 N.W.2d at 63. This court also concluded
that neither the defendant nor the state was responsible for the delay, and that “[t]he delay
was justified by the pandemic.” Id.
On March 20, 2020, the Chief Justice of the Minnesota Supreme Court suspended
new jury trials because of the COVID-19 pa ndemic and, with lim ited exceptions not
applicable here, extend ed that suspension th rough July 6, 2020. See id. at 59. And on
November 20, 2020, the Chief Justice once ag ain announced that new jury trials were
suspended, and that moratorium was later extended to March 15, 2021. Order Governing
the Continuing Operations of the Minnesota Judicial Branch , No. ADM20-8001 (Minn.
Nov. 20, 2020); Order Governing the Continuing Opera tions of the Minnesota Judicial
Branch, No. ADM20-8001 (Minn. Jan. 21, 2021).
Here, as in Jackson, the delay from March 20, 2020 , to March 18, 2021, resulted
from the “order of the Chief Justice and requi rements set forth by the Judicial Council
recogniz[ing] that certain safety protocols must be implemented to conduct a safe trial for
all participants, including court employees, lawyers, witnesses, jurors, and [the defendant]
himself.” Id. at 63. When a district court “couldn’t have a trial if [it] wanted to,” good
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cause necessarily existed for a delay in trial. Id. at 61. The district court here similarly
“couldn’t have a trial if [it] wanted to” from March 20, 2020, to March 15, 2021.
The delay attributable to the COVID-19 pandemic is not attributable to either party.
Id. at 61. And because Keene acknowledges that the remainder of the delays are the result
of his own actions, this factor weighs agai nst finding a violation of Keene’s right to a
speedy trial.
C. Assertion of the Right to a Speedy Trial
As for the third Barker factor, Keene asserted his right to a speedy trial several
times: first, during his arraignment hearing, stating that the year-and-a-half delay “violates
the speedy trial”; next, during a hearing on October 24, 2019, sta ting that “from the
beginning, I’ve asked for a speedy trial”; and finally, during his pretrial hearing, stating, “I
have an issue with the speedy-trial violation . . . I’ve asked for speedy trial motions to be
filed . . . we have to move forward because we’re beyond speedy trial.” This factor weighs
in Keene’s favor.
D. Prejudice to Keene
The prejudice that can result from a violation of a defendant’s speedy-trial right may
be avoided or minimized by protecting the defendant’s interests in the following:
(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of
the accused; and (3) preventing the possibility that the defense will be impaired. Barker,
407 U.S. at 532. The most seriou s of these interests is the third, id., and “is typically
suggested by memory loss by witne sses or witness unavailability,” Jackson, 968 N.W.2d
at 62 (quotation omitted).
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1. Oppressive pretrial incarceration
Keene had not been incarcerated for much of the length of the delay. The record
reflects that he was released on bail January 18, 2018. So, Keene had been in custody for
roughly one-and-a-half months. By contrast, he had been out-of-custody for roughly three-
and-a-half years. Keene’s first interest was not implicated.
2. Minimizing Keene’s anxiety and concern
Keene argues that the delay caused him “an unprecedented form of anxiety and
concern” and “more uncertainty than defendants in pre-pandemic cases.” He cites no legal
authority to support his position. Even so, while Keene likely suffered anxiety because of
the pandemic, his reasoning that the delay wa s more oppressive or anxiety-inducing than
usual is unpersuasive.
The expected stress and anxiety experienced by anyone who is involved in a trial is
insufficient, by itself, to show prejudice. State v. Strobel , 921 N.W.2d 563, 571 (Minn.
App. 2018), aff’d, 932 N.W.2d 303 (Minn. 2019). Keene has only asserted a level of stress
associated with all defendants involved in a trial during the pandemic, which is insufficient,
by itself, to show that he was prejudiced by the COVID-19-related delay more than all
defendants who were necessarily similarly s ituated. This interest was therefore not
implicated.
3. Preventing possible defense impairment
Demonstrating prejudice from a pretrial delay involves an affirmative showing that
the delay impeded the defendan t’s ability to raise specific defenses, elicit specific
testimony, or produce specific evidence. Id. at 571. Keene has made no such showing.
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Keene was the sole witness appearing in his defense, and so witness unavailability was not
a concern. And although Keene argues that the delay caused him to have “forgotten most
the facts of the case,” he provides no further explanation as how this specifically impaired
his ability to defend himself. Accordingly, Keene has failed to demonstrate that he was
prejudiced by delay in trial.
E. Balancing the Barker Factors
Here, the first and third factors weigh in Keene’s favor, while the second and fourth
factors weigh in the state’s favor. The dela y was presumptively prejudicial. And Keene
asserted his speedy-trial rights. But the greatest part of the delay is attributed to Keene’s
own actions, while the remaini ng delay was because of the necessary suspension of new
jury trials and other guide lines imposed amid the COVID- 19 pandemic. Keene was not
incarcerated during the delay, except for a comparatively short 45-day period. And though
he claims that “memory loss” impaired his defense, he does not adequately brief the issue,
nor does he explain how it specifically impaired his defense. Keene’s trial delay was long,
but on balance we conclude that his speedy tria l right was not violated, particularly given
that he was out of custody and that he was his only witness.
Affirmed.