Lead Opinion
Defendants petitioned this court to review a court of appeals decision which affirmed their conviction for trespassing and
Defendants were arrested for trespassing after they staged a “sit-in” in a St. Paul Planned Parenthood clinic on December 23, 1986. A formal complaint was issued and defendants made their first appearance on January 13, 1987. At that time, a pre-trial hearing was scheduled for February 24, 1987. Petitioners appeared pro se at the scheduled hearing and requested a continuance so they could retain counsel. The court granted the continuance and scheduled a second pre-trial hearing for March 18, 1987.
At the March hearing, trial was scheduled for May 26, 1987; however, sometime prior to that date, the court assignment clerk contacted defendants’ counsel to inform him the trial had to be postponed because no judges would be available during that week. On May 26, 1987, defendants filed a demand for speedy trial and the following day were notified by the court that the trial had been rescheduled for June 22, 1987. On the day the trial was scheduled to begin, defendants filed a notice to remove the judge who was assigned to hear their case. The removal of the judge caused a second delay.
Defendants’ counsel was contacted the following day by the assignment clerk and informed that the trial could not be held that same week and that a notice of the new trial date would be sent by mail. The next trial date assigned was August 17, 1987. On August 13, 1987, defendants served upon the prosecutor a motion to dismiss the charges claiming their right to speedy trial had been violated.
Immediately preceding trial on August 17, 1987, the court conducted a hearing on the motion to dismiss and defendants presented testimony about how they had been inconvenienced by having to reschedule work and appointments, rearrange vacation plans, arrange to be absent from work, deal with pressure from employers to get the case concluded and cope with the stress and anxiety of waiting for trial.
During the motion hearing, the trial judge commented on the calendar problems which existed at the time, stating in the record:
I’m sorry to interrupt you, but I’m on the calendar committee for this district and I’m sure it’s to the chagrin of the state that they can’t move the cases faster because it is a problem with the number of judges and a lot of the illness on the bench as long as we have .sat with two judges’ positions that have been vacant for a long time.
The trial court also explained that defendants’ case had come into the system at the time the district and municipal courts were being consolidated and there were many scheduling problems. Although the court did not specifically state it would take judicial notice of the calendar congestion, neither the prosecutor nor defendants’ attorney disputed its existence. When questioned by the trial judge at the motion hearing, defendants’ attorney did not remember whether he had informed the assignment clerk that his clients had filed a demand for speedy trial. The prosecutor explained at the hearing that the assignment clerk customarily contacts the defendant’s attorney to arrange trial dates and simply notifies the prosecutor since prosecutors are generally readily available. > The court denied defendants’ motion to dismiss from the bench stating that defendants’ counsel had been aware of the scheduling problems when the notice of removal was filed and that the anxiety, stress and time lost from work and families was not sufficient prejudice to justify dismissal.
The trial was conducted as scheduled and defendants were convicted of trespassing. The court sentenced each of the defendants to 60 days in the Ramsey County Workhouse but suspended the sentences in lieu
On August 28, 1987 defendants’ attorney filed a notice of appeal with the court of appeals indicating defendants were appealing the judgment of conviction and the condition of probation which prohibited them from going within 500 feet of the clinic. Sometime after the trial, defendants retained a new attorney who on September 2, 1987 filed a post-trial motion with the trial court to vacate the judgment or in the alternative to modify the conditions of probation.
After the trial court ruled on the post-trial motion, defendants’ new attorney filed an amended statement of the case with the court of appeals so as to include in the appeal the trial court’s denial of the motion to vacate judgment. The court of appeals affirmed the trial court after which defendants petitioned this court for review.
Speedy Trial
The first issue we must consider is whether defendants’ right to speedy trial was violated. We hold that Minn.R.Crim.P. 6.06 does not set an arbitrary time limit for speedy trials, violation of which requires dismissal of a case. Rather, the rule provides that delays greater than 60 days after a demand for speedy trial has been made are presumptively prejudicial and require further inquiry to determine whether there was good cause for the delay.
Both the United States and the Minnesota Constitutions guarantee a defendant’s right to speedy trial. U.S. Const. amend. VI and XIV; Minn. Const. article 1, § 6. In evaluating this right, the United States Supreme Court has said:
The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.
Barker v. Wingo,
Minn.R.Crim.P. 6.06 and 11.10 are the procedural rules which define what this court considers a reasonable time for bringing defendants to trial. Both rules provide that defendants “shall be tried within sixty (60) days from the date of the demand unless good cause is shown by the prosecutor or the defendant why he should not be brought to trial within that period.” Neither rule defines what constitutes “good cause” nor does either rule mandate any consequence for failure to bring a defendant to trial within sixty days.
Both the “Overview of the Minnesota Rules of Criminal Procedure” and the comments to Rules 6.06 and 11.10 indicate that the rules do not attempt to set arbitrary time limits or specify the consequences of a failure to bring a defendant to trial within the time limits set by the rule and that the determination of whether a defendant has been denied the right to speedy trial is left to judicial decision. Minn. Rules of Court 104, 137 (West 1988). Because the rules were adopted in 1975, after the Barker decision, and because the comments specifically refer to Barker, we interpret the rule to mean that delays beyond the 60-day limit simply raise the presumption that a violation has occurred and require the trial court to conduct a further inquiry to determine if there has been a violation of the defendant’s right to speedy trial.
The dissent contends that the. language of the rule is mandatory and creates a procedural right to speedy trial separate from the constitutional right. The language of the rule, however, is not mandatory because it explicitly allows delays longer than sixty days where there is “good cause”. If the drafters of the rule had intended the sixty-day limit to be mandatory, they would not have allowed for “good cause” exceptions to be determined by the court.
We must next determine whether there was “good cause” for the delay in this case. The language in Rule 6.06 is identical to that in Rule 11.10 and the comments to Rule 11.10 are incorporated by reference as comments to Rule 6.06. This court has consistently used the Barker factors to determine whether there was “good cause” for a greater than sixty day delay in felony cases and we see no reason not to require the same analysis in misdemeanor cases.
Once the delay is determined to be presumptively prejudicial by exceeding the sixty-day limit set forth in the rule, the remaining Barker factors to be reviewed are the reasons for delay, the defendant’s assertion of the right and the extent and seriousness of prejudice suffered.
Here the trial court attributed the delay to the crowded court calendar and the defendant’s removal of the judge on the day trial was to have begun. Where calendar congestion is the reason for delay, it weighs less heavily against the state than would deliberate attempts to delay trial. Barker,
The court of appeals has also considered numerous speedy trial cases including some misdemeanor cases and has consistently applied the Barker analysis to determine whether there have been constitutional violations. Until now, however, this court has considered only one misdemeanor case involving a claim of denial of the right to speedy trial. State v. Kasper,
The dissent contends that our failure to recite the Barker factors in Kasper impliedly recognized that violation of the sixty-day limit in Rule 6.06 could be reason for dismissal. When we considered the facts in Kasper, there was no need to specifically recite the Barker factors because it was patently obvious that Kasper’s right to a speedy trial would have been violated if the prosecutor’s maneuver had been allowed to go unchecked. Deliberate tactics such as those used in Kasper cannot constitute the good cause intended by the rule and weigh heavily against the party causing the delay.
Here there were no such delaying tactics by the prosecutor. The trial court found that the delay was caused in part by the court’s crowded calendar. The finding was based on the trial judge’s own information by virtue of her participation on the calendar committee. The record indicates that during argument by defendants’ attorney and before the prosecutor had the opportunity to address the question of the cause for delay, the trial judge commented about the court’s crowded calendar and apparently took judicial notice of that information. It is unfortunate that there were several procedural problems with the way this information was received. First, there was no specific reference made to the fact the court would take judicial notice of the calendar problems. Second, the prosecutor did not adopt the court’s explanation for the delay. While it would have been a better practice for the court to specifically state its intention to take judicial notice of certain facts and for the prosecutor to adopt the court’s explanation as good cause for the delay, the comments were made at the hearing and not refuted or challenged by either party indicating that there was no disagreement with the fact of the court’s crowded calendar.
The second reason for delay considered by the trial court was defendants’ eleventh hour removal of the judge scheduled to
The third factor, defendant’s assertion of the right, “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker,
Defendants’ demand here involved no more than filing a notice of demand for speedy trial two months after their plea of not guilty. Defendants’ attorney, after waiting until the day of trial to remove the judge, failed to bring to the assignment clerk’s attention that a demand had been made when the trial date was being rescheduled even though it was common knowledge that the court calendar was crowded because of the recent consolidation of the municipal and district courts. This minimal effort lends support to the trial court’s conclusion that defendants did not suffer serious prejudice from the delay of trial.
The trial court record adequately supports the conclusion that the defendants had not suffered any serious prejudice from the delay. The only prejudice attested to at the hearing was the stress, anxiety and inconvenience experienced by anyone who is involved in a trial. Because the delay in no way affected the strength of defendants’ case, the final Barker factor does not favor defendants.
Considering the Barker factors in light of all the circumstances, we find that the trial court did not abuse its discretion by ruling that there was good cause for the delay and that defendants were not denied their right to a speedy trial. The delay was not deliberately caused by the state, defendants’ own trial tactics contributed to the delay and they suffered no prejudice.
Condition of Probation
We must next consider whether the condition of probation imposed by the trial court which required defendants to stay 500 feet away from the clinic unduly restricted their First Amendment rights. Trial courts have great discretion in the imposition of a sentence and appellate courts cannot substitute their judgment for that of the trial court in the imposition of a sentence. Steeves v. State,
Generally, conditions of probation must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer’s liberty or autonomy. Conditions of probation may include
The condition objected to here is a limited geographical exclusion which prohibits defendants from going within 500 feet of the clinic property on which they trespassed. This condition admittedly affects defendants’ first amendment rights but we do not find it to be an unreasonable restriction and there is nothing in the record to indicate that the restriction presented any particular problems for defendants. The trial court granted exceptions to the exclusion to allow two defendants to frequent a bank and a library which were within the excluded area.
The validity of geographical exclusions as conditions of probation is an issue of first impression before this court. The test adopted by the court of appeals to consider the validity of probation conditions containing limited geographical exclusions involved the following factors:
■ 1) the purpose sought to be served by probation;
2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and
3) the legitimate needs of law enforcement.
State v. Friberg,
In Lowe the defendants were convicted of trespassing on a naval submarine base during a protest of the Trident weapons system and the condition of probation which prohibited them from going within 250 feet of the base was upheld because it did not prohibit their continued participation in the anti-nuclear movement or all anti-nuclear speech. The Lowe court held that the 250 foot limitation created a reasonable buffer zone in which probation violations and repeat offenses could be differentiated from the probationers when they are involved in lawful protest activities. Lowe,
The instant case meets both the ABA Standards and the Lowe test. The condition was reasonably related to the purpose of sentencing and did not unreasonably restrict defendants’ fundamental rights. The purpose of sentencing is to prevent future unlawful conduct by defendants and establish reasonable consequences for their unlawful conduct. The trial court’s obvious intent in imposing the geographical exclusion was to prevent defendants from committing repeated offenses and to protect the clinic employees and patients from further unwanted intrusions. Such a restriction is reasonable where defendants have by their criminal conduct demonstrated their inability to refrain from unlawful activity when they are involved in protest activities.
The condition was reasonable because it did not prohibit defendants’ continued participation in anti-abortion protest activities and. it did not prohibit all anti-abortion speech. In fact, the court made it clear that defendants would be free to continue their participation in anti-abortion activities in other locations and granted two of the defendants exemptions from the condition so they could frequent a nearby bank and library. The protection of clinic employees and patients from future intrusions and harassment by petitioners who
The Lowe test has been applied by numerous state and federal courts which have considered geographical exclusions. The degree and specificity of restrictiveness varies considerably. In Crabb v. State,
The condition imposed by the trial court here does not restrict all anti-abortion activity nor does it restrict defendants’ right to associate with anti-abortion groups. It simply requires that for one year they stay at least 500 feet from the particular location at which they trespassed. After careful consideration, we find that the condition of probation imposed by the trial court here does not unduly restrict defendants’ first amendment rights. It is reasonably directed at keeping the peace and deterring future criminal activity. We therefore uphold the limited geographical exclusion as a valid condition of probation.
AFFIRMED.
Notes
. It should be noted that once the notice of appeal was filed, the trial court no longer had jurisdiction over the matter. The trial court should have refused to hear the motion to vacate judgment since the judgment of conviction was being appealed.
. Even if the trial court had received the affidavit, consideration of it would have been improper. Supporting affidavits are to be submitted with a motion, not on an ex parte basis after the hearing.
. We note that the rules of criminal procedure were adopted and several of the cases were decided when criminal trial calendars were controlled by prosecutors. Since court administrators have been responsible for setting trial calendars, prosecutors have no more opportunity to influence when trials are scheduled than do defendants. Accordingly, because the rule was apparently intended to prevent abuses of defendants’ speedy trial rights by prosecutors, it is somewhat outdated and should perhaps be amended to allow the court to demonstrate good cause for delays.
. The only other information related to the court’s crowded calendar was the improperly submitted affidavit of an assignment clerk which was submitted by defendants’ second attorney two weeks after the post-trial motion hearing and after appeal had been taken. The prosecutor had no opportunity to refute the information in the affidavit.
. We characterize the defendants’ removal of the judge as eleventh hour because it was not noticed until the day trial was scheduled to begin. The dissent points out that it was not eleventh hour because there were 33 days remaining in the 60-day period from when the demand for speedy trial had been made. There were, no doubt, trials already scheduled for those remaining 33 days. Had defendants filed their notice of removal earlier, it would obviously have been easier to schedule another trial date within the 60-day period.
. We note that the grant of probation was not required and the court’s power included the authority to sentence the defendants without considering the alternative of probation. The defendants' geographical freedom would be . vastly more curtailed had the court decided not to grant probation. Furthermore, the decision whether to accept the probation with its condition was solely that of the defendants.
Dissenting Opinion
(dissenting).
I regret I must respectfully dissent from both holdings in the majority opinion. Defendants were denied their right to a trial within 60 days under Minn.R.Crim.P. 6.06 and the conditions of their probation were unconstitutional. It is my view that Rule 6.06 establishes an independent nonconsti-tutionally based procedural right, which in this case has been violated.
1. The majority admits the defendants made a demand for a speedy trial and the state failed to meet that demand when it did not provide a trial within 60 days as mandated by Rule 6.06, Minn.R.Crim.P.
The majority goes on to apply to this case the factors given in Barker v. Wingo,
The majority’s reliance on Barker is unfounded. Barker specifically recognized that the states, unlike the Supreme Court, were free to set rigid time periods in which criminal trials must be brought. Barker,
The comments relied on by the majority provide: “The existence or absence of the demand under Rule 11.10 provides a factor that may be taken into account in determining whether the defendant has been unconstitutionally denied a speedy trial.” Comment to Rule 11.10, Minn.R.Crim.P. The constitutional question, however, does not answer whether “good cause” has been shown for a violation of the procedural time limit as required by Rule 6.06. The procedural violation is an entirely different question than the constitutional question. The commentary suggests this distinction where it states, “a defendant shall be brought to trial within 60 days after demand * * *, unless good cause is shown for a delay * * Id. Contrary to the majority’s contention that Rule 6.06 does not set an arbitrary time limit, the commentary makes clear that is precisely what the rule does: “Rule 11.10 does not attempt to set arbitrary time limits (other than those resulting from the demand) * * *.” Id. (emphasis added).
The only way to reconcile the commentary’s conflicting language is by recognizing that a violation of the procedural rule is not equivalent to a violation of a defendant’s constitutional right to a speedy trial. Nothing in the rule or the commentary suggests the 60-day limit is meaningless unless there is a constitutional deprivation. That the 60-day limit itself could be the source of a dismissal was implicitly recognized by this court in State v. Kasper,
2. Rule 6.06, unlike the balancing test in Barker, places the burden for explaining a delay squarely on the state; the state must show “good cause” for the delay. I conclude from the above analysis of Barker, the commentary to Rule 6.06 and Minnesota case law that there is no authority for equating “good cause” to the Barker factors. None of the cases cited by the majority even mention a “good cause” showing, much less equate such a showing to the Barker factors. Under the majority’s formula no violation of Rule 6.06 would be cognizable until such time as the right to a speedy trial had been violated. Thus, Rule 6.06 would be nothing more than a recodification of the sixth and fourteenth amendments, in my opinion an untenable position.
The majority relies on the trial judge’s personal knowledge of “crowded dockets” and the defendants’ “eleventh hour” motion to remove the trial judge, to show good cause existed for the delay. As an
Rule 201(b), MinmR.Evid., describes what type of adjudicative facts may be “noticed” by a judge:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
The condition of the Ramsey County District Court calendar, based on the trial judge’s recollection, does not fall under either type of fact which may be noticed. Additionally, the trial judge’s assessment was apparently wrong, as the affidavit of Mike Calvert, criminal case manager for Ramsey County, shows.
3. While the United States Supreme Court has not had occasion to rule broadly on the constitutional rights of probationers, these questions have been answered as to prisoners. I look to these prisoner cases for guidance in analyzing the rights of the instant probationers. “Prison walls do not form a barrier separating prison inmates from the protections of the constitution.” Turner v. Safley,
The United States Supreme Court has not articulated a test for reviewing probation conditions which infringe first amendment rights. Again, the prisoner rights cases are instructive by analogy. Limitations on prisoners’ constitutional rights are justified by the fact of incarceration and valid penological objectives, including deterrence of crime, rehabilitation, and institutional security. O’Lone,
In formulating a standard of review, the Court takes special cognizance of the extreme complexity and urgent problems involved in prison administration, which courts are ill-equipped to handle. Turner,
The Court in Turner determined that a “reasonableness” test was appropriate. Id. at 2261. “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. The Court requires that there be a logical, valid and rational connection to a legitimate governmental interest which is not so remote as to make the regulation arbitrary. Id. at 2262.
The test in the prisoner rights cases is instructive because the state’s legitimate interests in a probation case are much less significant. When evaluating probation conditions, which limit constitutional rights, the state’s legitimate interest in prison security and order, and limitations incident to the fact of incarceration, are entirely absent. Moreover, the reviewing court need not defer to any special expertise possessed by the trial court. Finally, concerns over the separation of powers are also absent in the probation context. Thus, these important differences between the probation and prison cases suggest that in order to justify an infringement of a constitutional right in a probation context, more is required than the reasonableness test described in Turner; i.e., more is required than a mere logical and valid relationship between the' condition and the legitimate interest.
The majority relies on federal court of appeals decisions of similar issues in advancing its reasonableness test for probation conditions. United States v. Lowe,
In view of the special scrutiny used when applying the reasonableness test, I can only conclude that the proper standard of review was not followed in evaluating the conflicting interests presented in this case. The reasonableness test used in probation cases requires probation conditions which infringe constitutional rights to be “especially fine-tuned.” Tolla,
Even assuming there was no “speedy trial” issue involved in this case, I would remand to the trial court for a reconsideration of the probation condition. The trial court should be instructed to create a condition which infringes the defendants’ first amendment rights no more than is necessary to significantly advance legitimate state interests.
. The rule provides, in pertinent part:
A defendant shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the defendant shall be tried within sixty (60) days from the date of the demand unless good cause is shown by the prosecution or defendant why he should not be brought to trial within that period.
. The majority’s characterization of Rule 6.06 as not mandatory is difficult to understand. The rule is clear on its face; once a demand is made, a trial must begin within 60 days unless either party can show good cause for the delay. That there is a "good cause” exception to this rule does not make the rule’s application "voluntary."
. The majority suggests other cases were scheduled during 33 days following the removal. Since the state failed to adduce any evidence on the condition of the court’s calendar, we will never know the true status of that calendar.
. The majority focuses on the procedural problems with Mr. Calvert’s affidavit. Surely, if the trial judge could take notice of erroneous information concerning the court calendar, this court could take notice of the correct information of which we have personal knowledge from reading Calvert’s affidavit.
.Similarly, the fact that the state might have constitutionally incarcerated defendants does not justify a lesser but unconstitutional intrusion of their rights. See United States v. Tolla,
. The majority concedes that the condition restricts the defendants' first amendment rights. The United States Supreme Court has suggested that first amendment expression, even when it comes in the form of illegal acts, cannot be limited by legislative act unless the act "furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O'Brien,
. In the prison context the presence of such alternatives may require finding the regulation unconstitutional. See Turner, supra. I submit in the probation context, where heightened scrutiny is appropriate, the presence of easy and obvious alternatives requires modification of the probation condition at issue.
Dissenting Opinion
I join the dissent of Justice Popovich.
Dissenting Opinion
I join the dissent of Justice Popovich.