This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF
APPEALS
A08-0349
State of Minnesota,
Respondent,
vs.
Hassan Dahir,
Appellant.
Filed March 10, 2009
Affirmed
Worke, Judge
Hennepin County
District Court
File No. 27-CR-07-100081
Lori Swanson,
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101;
and
Michael O. Freeman,
Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000
Government Center, Minneapolis, MN 55487 (for respondent)
Lawrence Hammerling,
Chief Appellate Public Defender, Roy G. Spurbeck, 540 Fairview Avenue North,
Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Randall, Judge.*
WORKE, Judge
Appellant challenges his convictions of aggravated robbery and being an ineligible person in possession of a firearm, arguing that (1) he was denied his right to a speedy trial when his trial began nearly four months after his speedy-trial demand; (2) the evidence is insufficient to sustain his convictions; and (3) he was denied the effective assistance of counsel. We affirm.
D E C I S I O N
Speedy
Trial
Appellant Hassan Dahir first argues
that his convictions must be reversed because his right to a speedy trial was
violated. A speedy-trial challenge presents a constitutional question subject to de
novo review. State v. Cham, 680 N.W.2d 121, 124
(Minn. App. 2004), review denied (Minn.
July 20, 2004).
“In 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. Minnesota courts apply a four-part
test to determine whether a defendant’s speedy-trial right has been violated:
“(1) the length of the delay; (2) the reason for the delay; (3) whether
and when the defendant asserted his right to a speedy trial; and (4) the
prejudice to the defendant caused by the delay.” Cham, 680 N.W.2d at 124
(citing Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2182, 2192 (1972)).
Length
of Delay
In Minnesota, following a speedy-trial
demand, the trial shall commence within 60 days of the demand unless good cause
is shown. Minn. R. Crim. P. 11.10. Delay beyond 60 days raises a presumption
that a defendant’s speedy-trial right has been violated, and requires further
inquiry into whether a violation has occurred.
State v. Friberg, 435 N.W.2d
509, 513 (Minn. 1989). Appellant made a
speedy-trial demand on August 7, 2007.
Appellant’s trial commenced nearly four months later on December 3, 2007;
therefore, further inquiry is necessary to determine whether a violation has
occurred.
Reason
for Delay
The reason for delay is closely related
to the length of delay, and different weights are assigned to different reasons. Barker,
407 U.S. at 531, 92 S. Ct. at 2192. “A deliberate
attempt to delay trial to harm the defense is weighed most heavily against the
state.” State v. Brooke, 381 N.W.2d 885, 888 (Minn. App. 1986). That
is not the case here because the delay was caused by court-calendar congestion
and the fact that a new judge took over appellant’s case. While delays caused by overcrowded courts are
weighed against the state because the state is ultimately responsible for such
circumstances, this type of delay weighs less heavily against the state. Id.; see also Friberg, 435 N.W.2d at 513 (stating that “calendar congestion or other
circumstances over which the prosecutor has no control are good cause for
delays up to fourteen months where the defendants suffered no unfair prejudice”).
When appellant made his speedy-trial
demand, his attorney
indicated that a speedy-trial date would fall into a week that was problematic
for the district court and counsel. Appellant’s
attorney and the prosecutor had previously agreed to set the matter for trial
on October 22, and appellant agreed to the October 22 trial date. The district court stated that October 22
would “presumably be the trial date, all things being equal.” Thus, appellant
initially agreed to set his trial date beyond the 60-day period. The second continuance occurred on October 22
when a new district court judge took over appellant’s case. The district court stated: “The record
should and does reflect that it’s my unavailability and not that of either the
defense lawyer or the prosecutor [delaying the trial date].” Appellant’s
attorney indicated that the parties agreed to a trial date of November 14 or December
3. Thus, appellant’s attorney acquiesced
in the continuances. And the delays were
attributed to the court calendar and a new judge assuming the calendar. Because the state had no control over these
circumstances and because appellant experienced a delay of only four months, appellant’s
speedy-trial right was not violated unless he suffered unfair prejudice as a
result of the delay.
Assertion
of Right
Assertion of the right to a speedy trial
need not be formal or technical, and it is determined by the
circumstances. State v. Windish, 590 N.W.2d 311, 317 (Minn. 1999). A court must assess “the frequency and
intensity of a defendant’s assertion of a speedy trial demand.” Id. at 318. This court considers the “frequency and
force” of the speedy-trial demand because “the strength of the demand is likely
to reflect the seriousness and extent of the prejudice.” Friberg,
435 N.W.2d at 515.
Appellant demanded his right to a speedy
trial and, at the same time, waived that right to the extent that his trial
would occur slightly beyond the 60-day period.
Appellant’s attorney then agreed to a November 14 or a December 3 trial
date, and appellant’s trial commenced on December 3. See State v. Rachie, 427 N.W.2d 253, 257 (Minn. App. 1988) (noting
that the defendant’s failure to object to continuances weighed against the
argument that he asserted his right to a speedy trial), review denied
(Minn. Sept. 20, 1988). This factor is
neutral because, despite appellant’s clear demand, his attorney agreed to the
continued trial date.
Prejudice
Whether a defendant has been prejudiced
by a delay encompasses three concerns: (1) preventing oppressive pretrial
incarceration, (2) minimizing the anxiety of the accused, and (3) limiting
impairment of the defense. Barker, 407 U.S. at 532, 92 S. Ct. at
2193. A court should also “consider
prejudice from interference with the [defendant’s] liberty, disruption of
employment, financial hardship, strain on friendships and associations, and
anxiety and stress to the defendant and the defendant’s family.” Rachie, 427 N.W.2d at 257 (quoting Brooke, 381 N.W.2d at 889). The defendant does not have to prove
prejudice; it can be “suggested by likely harm to a defendant’s case.” Windish, 590 N.W.2d at 318.
Appellant argues that he experienced
prejudice because he was subject to pretrial incarceration and could not make
bail. The district court initially set
bail at $40,000. The district court
considered but denied appellant’s request to be released pending his trial because
of the seriousness of the charges and the lengthy sentence that could
potentially be imposed. Additionally,
the record shows that appellant was without a permanent address and had minimal
identifiers, thus, there were concerns that he would be difficult to locate if
he was released and did not appear.
Further, appellant received 149 days credit to his prison sentence. Although appellant was incarcerated prior to
his trial, he was not prejudiced. See State
v. Givens, 356 N.W.2d 58,
62 (Minn. App. 1984) (concluding no prejudice when defendant was in
custody for five months prior to trial), review denied (Minn. Jan. 2,
1985).
Appellant next argues that the delay caused
him to experience anxiety. Appellant
contends that his repeated requests for prompt disposition demonstrated his
anxiety; the record, however, does not support appellant’s assertion. The only comment regarding prompt disposition
occurred immediately after appellant’s demand when his attorney stated that
appellant would agree to the first continuance but did not want a trial date beyond
October 22. After that, appellant never
expressed concern for prompt disposition.
Further, appellant fails to provide any specific areas of anxiety other
than the stigma of criminal charges and the angst of awaiting trial, which are
both commonly experienced by criminal defendants and are insufficient to
establish prejudice. See Friberg, 435 N.W.2d at 515 (noting that
prejudice is not shown when a defendant has failed to show evidence of greater
stress, anxiety, or inconvenience than that experienced by anyone who is
involved in a trial).
Finally, appellant argues that his
defense was “likely harmed” as a result of the delay because it is possible
that witnesses identified him merely because he was seated at the defense
table. Appellant’s argument fails. The victim identified appellant in a photo
lineup days after the incident and during trial. Additionally, three officers identified
appellant in the courtroom. See Givens, 356 N.W.2d at 62 (concluding no
prejudice when defendant was in custody for five months prior to trial and he
claimed that witnesses had lost memory of events). Further, the evidence at trial was relatively
straightforward. The victim and involved
officers testified. No witnesses left
the area and no evidence was stale.
Appellant does not show how the delay impaired his defense. See Friberg, 435 N.W.2d at 515 (stating that when a “delay in no way
affect[s] the strength of [the] defendant[’s] case, the final Barker
factor does not favor defendant”).
Because appellant does not claim any specific prejudice, and because the
record does not disclose any, this factor weighs against him.
Appellant’s constitutional right to a
speedy trial was not violated. Certain
factors, such as the length of the delay and his assertion of the right to a
speedy trial, favor him. But because the trial date was continued for reasons
beyond the control of the state and because appellant was not prejudiced by the
delay, he is not entitled to relief.
Sufficiency of the Evidence
Appellant
also argues that the evidence is insufficient to support his convictions. “When reviewing a claim for sufficiency of
the evidence, we are limited to ascertaining whether, given the facts in the
record and any legitimate inferences that can be drawn from those facts, a jury
could reasonably find that the defendant was guilty of the charged offense.” State
v. Asfeld, 662
N.W.2d 534, 544 (Minn. 2003) (quotation omitted). The determination must be
made under the assumption that the fact-finder believed the state’s witnesses
and disbelieved any contrary evidence, and we must view the evidence in the
light most favorable to the conviction. State
v. Bias, 419 N.W.2d
480, 484 (Minn. 1988).
Appellant
challenges the victim, B.W.’s, identification, arguing that B.W.’s description
of the assailant’s clothing did not match his clothing and that he is taller
than B.W. described. Appellant also
argues that there were no fingerprints recovered and that appellant fled
officers because of an outstanding warrant. In viewing the evidence in the light most
favorable to the verdict, the evidence is sufficient to sustain appellant’s
convictions.
B.W.
testified that he
was walking home one night when he heard people running up behind him. B.W.
turned around and saw two men coming toward him—a tall, thin man, approximately
6’2”, and a shorter man, approximately 5’9”.
The tall man was wearing a blue-and-white baseball cap, a blue-and-white
t-shirt, and jean shorts. The short man
was wearing a white-and-yellow shirt. B.W.
observed that they were two black males, approximately 19 to 20 years old. The short man asked B.W. for a lighter, and as
B.W. took a lighter out of his pocket, the tall man pulled out a silver
automatic gun and said, “Give me everything you got.” The men put their hands in B.W.’s pockets and
took his cell phone, iPod that had his name engraved on it, and wallet. B.W. identified
appellant in a photo lineup days after the incident. The first time B.W. looked at the photo
display he stated that he thought the photo of appellant matched the
description of the tall man. The second
time, B.W. positively identified appellant as the individual who had the gun
and took his property. B.W. initially stated that appellant was approximately
three inches taller than he. Although
B.W. testified that appellant is actually more than three inches taller than
he, his description accurately describes appellant as taller than he is. B.W. also identified appellant in the courtroom.
Officers testified that shortly after they were dispatched
to the robbery call they observed a vehicle drive by them at a high rate of
speed. A traffic stop was initiated and the occupants jumped out of the moving
vehicle and ran away in different directions.
The officers engaged in a foot chase and found appellant who was out of
breath sitting on the steps of a nearby building. Appellant told the officers that he was walking
home from a friend’s house, but he did not know his friend’s name or where his
friend lived. Appellant initially
refused to give the officers his name. But
the officers discovered his name and that he had an outstanding warrant. Officers also observed that appellant fit the
description of one of the robbery suspects.
The officers then recovered two wallets, a baseball hat, a jersey, and two
cell phones from the vehicle, one of which belonged to the victim. On the street near the vehicle officers found
an iPod that had the victim’s name etched on it. During
an interview with a police officer, appellant admitted that he had been in the
vehicle and said that he ran because of the warrant.
There
was also evidence that appellant had been previously adjudicated delinquent of
first-degree aggravated robbery involving a handgun, and was, therefore,
ineligible to possess a firearm. The evidence is
sufficient to sustain appellant’s convictions.
Ineffective Assistance of Counsel
Finally, appellant argues in his pro se
supplemental brief that he received ineffective assistance of counsel because
his attorney failed to call witnesses. “Generally, a direct appeal from a judgment of
conviction is not the most appropriate way to raise a claim of ineffective
assistance of trial counsel because the reviewing court does not have the
benefit of all the facts concerning why defense counsel did or did not do
certain things.” Roby v. State, 531
N.W.2d 482, 484 n.1 (Minn. 1995) (quotation
omitted). When an ineffective-assistance-of-counsel claim is raised and
considered as part of a direct appeal, the party raising it may be barred under
State v. Knaffla, 309 Minn. 246, 243
N.W.2d 737 (1976) from thereafter raising the claim in a postconviction
hearing. See Hale v. State, 566 N.W.2d 923, 926-27 (Minn. 1997). When this court lacks a sufficient record
upon which to determine whether trial counsel was ineffective, we may decline
to reach the merits of the issue and direct the affected party to seek
postconviction relief. State v. Green, 719 N.W.2d 664, 674
(Minn. 2006). By declining to reach the
merits, “[a]n appeal to this court from a post-conviction proceeding on the
merits remains open.” State v. Schaefer,
374 N.W.2d 199, 201 (Minn. App. 1985).
Here, the record is sufficient for
review. We conclude that appellant did
not receive ineffective assistance of counsel.
The decision to call witnesses is left to counsel’s discretion. See State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006) (“What
evidence to present and which witnesses to call at trial
are tactical decisions properly left to the discretion of trial
counsel.”). Further, appellant has
failed to indicate who should have been called to testify, what evidence would
have been presented through witness testimony, or how the result of the
proceedings would have been different because of the witness testimony.
Affirmed.
* Retired
judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.