State v. SapState v. Sap
- Reporters:
- ,
- Before:
- Randall
OPINION
RANDALL, Judge.
Aрpellant Chan Sap was convicted of fleeing a police officer,
FACTS
On August 11, 1985, around 11:00 p.m. St. Paul police officers observed a parked car on fire on Otsego. A person stepped out from the front of the car, and walked over to a 1985 Cаmaro parked on the opposite side of the street. The officers heard someone yell, “That’s him, that’s the guy who just started the car on fire.”
When the officers saw the Camaro drive away with its headlights off, they followed with their siren and red lights on. The Camaro ran a stop sign, crossed oncoming lanes of traffic, and sped away. At one point the сar hit a curb and remained airborne for 60 to 80 feet. The car reached speeds of 90 miles per hour on University Avenue before finally coming to rest.
Appellant, the sоle occupant of the Ca-maro, was arrested by the officers. He was questioned and responded in English both at the scene and at the police station. The next day appellant was questioned by a St. Paul police interpreter who spoke Laotian.
Appellant was charged on August 12, 1985, with fleeing a police officer and with аrson in the third degree. At the omnibus hearing, appellant’s attorney expressed concern over the lack of Southeast Asians available for the jury pool. The omnibus
At the beginning of the trial, appellant’s attorney orally challenged the jury selection based on the lack of Southeast Asians on the jury panel. The trial court denied the challenge. Appellant was found guilty of fleeing a police officer but was acquitted of arson. Chan Sap appeals the conviction.
ISSUES
1. Was appellant denied a speedy trial?
2. Did the trial court err by not conducting a hearing on appellant’s challenge to the jury panel?
3. Did the trial court err in its instructions to the jury?
4. Was the evidence sufficient to convict appellant of fleeing a police officer?
ANALYSIS
I.
Speedy Trial
Appellant claims his right to a speedy trial was violated because ten months elapsed between the date he was charged and the date оf trial. Four factors must be examined when a defendant claims denial of a speedy trial:
Length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).
A. Length of Delay
A ten month period elapsed before appellant was tried. This delay is sufficient to trigger further inquiry as the delay is presumptively prejudicial. See id.; State v. Corarito, 268 N.W.2d 79, 80 (Minn.1978).
B. Reason for Delay
The case was continued due to difficulty locating a qualified interpreter.
C. Assertion of Right
Appellant was represented by counsel thrоughout all proceedings. He never moved for a speedy trial, but instead moved to dismiss the case on March 10, 1986, seven months after he was charged. Given appellant’s lаte assertion of his rights, this factor does not favor appellant.
D. Prejudice
Appellant may have suffered some anxiety and concern, but he failed to demonstrate that he was prejudiced because of the trial delay. He was not incarcerated while awaiting trial. He did not testify at trial or call any witnesses. He presented no evidencе of memory loss.
See State v. Helenbolt,
334 N.W.2d 400, 406 (Minn.1983);
State v. Givens,
356 N.W.2d 58, 62 (Minn.Ct.App.1984)
pet. for rev. denied
(Minn. Jan. 2, 1985). We conclude that appellant was not denied a speedy trial.
II.
Jury Selection
Appellant orally challenged Ramsey County’s jury selection process, contending, first, that its reliance on driver’s license and voter registration lists excluded Southeast Asians from the jury panel and, second, that people are excused from jury sеrvice too readily by the jury commissioner. The trial court refused to allow testimony relating to the jury selection process. Appellant contends this refusal was error.
Upon motion filed under subdivision 1 containing a sworn statement of factswhich, if true, would constitute a substantial failure to comply with sections 593.31 to 593.50, the moving party is entitled to present in suрport of the motion the testimony of the jury commissioner, any relevant records and papers not public or otherwise available used in the juror selection process, and any other relevant evidence.
Subdivision 3 states:
The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the State, or a party in a civil case may challenge a jury оn the ground that the jury was not selected in conformity with sections 593.-31 to 593.50.
Appellant did not comply with the statutory provisions necessary to challenge the jury panel. These аre the exclusive provisions for such a challenge. Appellant had sufficient time and opportunity to comply with the statutes. The trial court did not abuse its discretion by refusing tо hear testimony on this issue.
III.
Jury Instructions
Appellant challenges the court’s jury instructions on proof beyond a reasonable doubt, claiming the court incorrectly defined the concept as proof “beyond a reasonable certainty.” The court instructed the jury as follows:
That language contains what are called material elements which must be proved by the State beyond a reasonable doubt. And in a minute I will go into the listing of those material elements for you.
Proof beyond a reasonable doubt means such prоof as removes from your mind any reasonable doubt that the defendant is guilty of the crime charged. Stated another way, before you can find the defendant guilty as charged yоu must be satisfied in your mind and conscience to a reasonable certainty that the State has proved each element of the offense. If, after you have drawn all of the inferences that you deem to be fair and reasonable from the evidence that you have heard, if there remains in your mind as to a material element a reasonable doubt as to whether that element has been proved, the defendant is entitled to the benefit of that reasonable doubt and you must find him not guilty. On the other hand, after yоu have drawn the inferences that you think are fair and reasonable from the evidence that you have heard and you are satisfied that the State has proved eаch material element of that offense charged beyond a reasonable doubt, then you must find the defendant guilty as charged.
Appellant characterizes the court’s instruction as a “reasonable certainty” instruction. We do not accept that characterization. The words “reasonable certainty” were used only once in the instruction, in the context of the court’s explanation of the standard. The court did not equate the reasonable doubt standard with reasonable certainty.
While words implying “proof beyond a reasonable certainty” are not favored words, the court’s instruction, taken as a whole, adequately explained the reasonable dоubt standard. See State v. Johnson, 396 N.W.2d 906, 909 (Minn.Ct.App.1986); State v. Taylor, 369 N.W.2d 30, 33 (Minn.Ct.App.1985), pet for rev. denied (Minn. Aug. 20, 1985). Any error that may have resulted from the court’s use of the words “reasonable certainty” was cured by the rest of the instruction.
Courts are always safe in using the instruction of CRIM.JIG. II, 3.03 (1985):
Prоof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based on rеason and common sense; it does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
The use here of the words “reasonable certainty” as part of a jury instruction explaining the reasonable doubt standard was not reversible error. The instructions, taken as a whole, were sufficient to explain
IV.
Sufficiency of the Evidence
We have reviewed the record and conclude the evidence was sufficient to convict appellant of fleeing a police officer. By the evidence presented, the jury could reasonably have found appellant was aware he was fleeing a police officer and intended to elude a police officer.
DECISION
Appellant’s conviction for fleeing a police officer is affirmed.
Affirmed.