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State v. Osorio

Supreme Court of Minnesota

March 22, 2017

State of Minnesota, Respondent,
v.
David Ernest Osorio, Appellant.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

          Mary F. Moriarty, Chief Hennepin County Public Defender, David W. Merchant, Assistant Public Defender, Minneapolis, Minnesota, for appellant.

         SYLLABUS

         Appellant's Sixth Amendment right to a speedy trial was not violated by a 21-month delay between the date appellant was charged and the date of arrest. Affirmed as modified.

          OPINION

          ANDERSON, Justice.

         We are presented here with a 21-month delay between the date appellant David Osorio was charged with a crime and his eventual arrest and are asked to decide whether that delay violated his Sixth Amendment right to a speedy trial. The Hennepin County Attorney's office charged Osorio in May 2013 with two counts of first-degree criminal sexual conduct. The district court mailed the complaint and summons to Osorio's last known address in Perris, California. The summons directed Osorio to make his first appearance in Hennepin County district court in June 2013. When Osorio failed to appear for the hearing, the district court issued a warrant for his arrest. California police officers arrested Osorio in February 2015 for unrelated reasons and he was extradited to Minnesota.

         Before his omnibus hearing, Osorio moved to dismiss the charges, claiming that the delay violated his right to a speedy trial under the United States and Minnesota Constitutions. The district court granted Osorio's motion and dismissed the charges. The court of appeals reversed in a published opinion and Osorio petitioned our court for review. On appeal, we affirm the decision of the court of appeals as modified.

         I.

         In early March 2007, the Mound Police Department received a report from Osorio's then-wife, N.O., alleging that Osorio had sexually assaulted his minor stepdaughter. On March 12, Mound Police Detective Dan Niccum interviewed Osorio, who was serving time at the Hennepin County Adult Corrections Facility for a domestic-assault conviction. A few days later Detective Niccum submitted the case to the Hennepin County Attorney's Office for charging, but no charges were filed.

         Shortly after his release from the Hennepin County Adult Corrections Facility in mid-March, Osorio moved to California. N.O. followed up with the Mound Police Department in November, when she called to report that Osorio was living with his mother in Perris, California-a city in Riverside County. N.O. also provided new evidence in the case. Another Mound Police Department officer, Detective Wittke, contacted the Riverside County Sheriff's Department to request assistance with the investigation. Riverside authorities confirmed that Osorio was residing with his mother in California and provided Osorio's Perris address.

         On November 28, Osorio called the Mound Police Department and spoke with Detective Wittke. Osorio explained that he had heard there was a warrant for his arrest in Minnesota, but Detective Wittke told him that no warrant had been issued. Osorio also provided his contact information to Detective Wittke at that time. In January 2008, Detective Wittke resubmitted the case to the Hennepin County Attorney's Office for charging. Again, no charges were filed.

         Over 4 years later, in September 2012, N.O. left a voicemail for Detective Wittke. N.O. reported that another one of her minor daughters had alleged that Osorio sexually assaulted her. Detective Wittke continued his investigation and spoke with a sergeant from the Riverside County Sheriff's Department in early October. The sergeant confirmed that his department had been in contact with Osorio at the Perris, California address. In November, Detective Wittke asked Riverside authorities to interview Osorio. When he was contacted by the Riverside authorities, Osorio said that he thought he was found "not guilty" of the prior allegations and declined to be interviewed. Shortly thereafter, on November 11, Osorio left a voicemail message for Detective Wittke in which he stated that he had been approached by a Riverside County Sheriff and that he thought he had been found not guilty. Osorio asked that Detective Wittke call him.

         In late November, N.O. and Detective Wittke each called Osorio. When N.O. called Osorio on November 21 at Detective Wittke's request, Osorio answered, stated that nothing had happened, and hung up. When Detective Wittke called Osorio on November 27, Osorio explained that he spoke with some lawyers who told him that the statute of limitations had run. Osorio declined to speak to Detective Wittke further. Some time thereafter, Detective Wittke resubmitted the case to the Hennepin County Attorney's Office for charging.

         On May 1, 2013, the State charged Osorio with two counts of first-degree criminal sexual conduct based on allegations that Osorio sexually abused his two minor stepdaughters. Later that month, the district court sent the summons and complaint by U.S. mail to Osorio's last known address in Perris, California. The summons explained the charges against Osorio and directed him to make his first appearance in Hennepin County district court in early June. The district court did not make an entry in the court records indicating that the summons and complaint were returned as undeliverable.

         On June 6, 2013, the district court issued a warrant for Osorio's arrest after he failed to appear at the hearing. The warrant information was entered into the National Crime Information Center (NCIC) database for law-enforcement agencies.[1] See United States v. Erenas-Luna, 560 F.3d 772, 775 n.2 (8th Cir. 2009) ("The NCIC database is an FBI-controlled national database that contains information for recent and outstanding arrest warrants. Both federal and state law-enforcement officers . . . can access the system to determine whether a person has outstanding arrest warrants."). The State concedes, however, that "[t]here is no additional evidence of efforts made by law enforcement to locate Osorio."

         On February 4, 2015, about 21 months after the arrest warrant was issued, law enforcement officials from the Riverside County Sheriff's Department in California arrested Osorio on unrelated charges. Osorio was extradited to Minnesota and made his first appearance in Hennepin County district court on March 2, 2015. At that time, Osorio provided his Perris, California address as his current residence. Osorio consistently provided this same address to court officials. Osorio even submitted a letter from the Riverside County Department of Public Social Services, indicating that he had received food stamps at the Perris, California address from October 11, 2013 through April 2, 2015. Osorio's bail evaluation reflected that Osorio had lived at the Perris, California address for 9 years.

         On April 3, 2015, Osorio moved to dismiss the charges based on an alleged violation of his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article I, Section 6 of the Minnesota Constitution. At his omnibus hearing on April 8, Osorio demanded a speedy trial. One month later, the State informed Osorio that certain evidence from the investigation no longer existed, including audio recordings of phone calls and statements made by Osorio and N.O.[2]

         The district court concluded that the State had violated Osorio's right to a speedy trial and dismissed the charges against him. The court applied the four-factor balancing test from Barker v. Wingo, 407 U.S. 514 (1972), and determined that none of the factors weighed in favor of the State. Specifically, the court found that the delay was primarily attributable to the State's negligence in failing to execute the warrant for Osorio's arrest. The court rejected the argument that Osorio should have asserted his speedy trial right sooner because the State could not "definitively prove that [Osorio] knew about the complaint prior to his arrest" and Osorio was not required to "bring himself to court." Finally, the court concluded that the fourth Barker factor-prejudice to the defendant as a result of the delay-was satisfied because Osorio's defense was impaired by the unavailability of the missing evidence.

         The State moved the district court to reconsider its order dismissing the charges. The district court denied the State's motion. The State then appealed the district court's pretrial order dismissing the charges.

         In a published decision, the court of appeals reversed the district court's pretrial order and remanded the case for further proceedings consistent with its opinion. State v. Osorio, 872 N.W.2d 547, 558 (Minn.App. 2015). The court of appeals concluded that the third and fourth Barker factors did not weigh in Osorio's favor, and therefore, on balance, the State had not violated Osorio's constitutional right to a speedy trial. Id. at 554-58. As to the third factor, the court determined that Osorio knew of the charges long before his arrest and yet failed to make a speedy-trial demand until after his arrest. In reaching this conclusion, the court applied "a 'presumption, in the absence of proof to the contrary, that mail properly addressed and sent with postage prepaid is duly received by the addressee.' " Id. at 555 (quoting Nafstad v. Merchant, 303 Minn. 569, 570, 228 N.W.2d 548, 550 (1975)). The court of appeals also determined that Osorio was not prejudiced by the loss of the audio recordings: "Because the record does not establish that the recordings were lost after Osorio was charged, it cannot be said that they were lost due to the postaccusation delay." Id. at 556-57.

         Osorio appealed to our court and we granted review. On appeal, Osorio argues that the court of appeals erred by presuming he had received the summons and claims that all four Barker factors weigh in his favor. The State, by contrast, argues that the court of appeals correctly applied the presumption in this context and claims that at least three of the four Barker factors weigh in its favor.

         II.

         This case involves the appeal of a pretrial order-specifically, the district court's order granting Osorio's motion to dismiss for a violation of his right to a speedy trial. To appeal a pretrial order, the State must show "how the district court's alleged error, unless reversed, will have a critical impact on the outcome of the trial." Minn. R. Crim. P. 28.04, subd. 2(2)(b). We view "critical impact" as a "threshold issue" and will not review a pretrial order absent such a showing. State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005). Osorio concedes that there is a critical impact and that the district court's order is therefore appealable. See State v. Varnado, 582 N.W.2d 886, 889 n.1 (Minn. 1998) (explaining that the State satisfied the critical impact test because the district court dismissed the complaint). Therefore, we now address the merits of the appeal: whether the district court's pretrial ruling dismissing the State's case against Osorio on speedy trial grounds was erroneous. See State v. Lugo, 887 N.W.2d 476, 481-87 (Minn. 2016) (holding that once the State demonstrates a critical impact, the court can proceed to the merits).

         III.

         Both the United States Constitution and Minnesota Constitution guarantee criminal defendants the right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6; see also State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005). Whether a defendant has been denied a speedy trial is a constitutional question subject to de novo review. See State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015). If a defendant has been deprived of his or her right to a speedy trial, "the only possible remedy" is dismissal of the case. Strunk v. United States, 412 U.S. 434, 440 (1973) (quoting Barker v. Wingo, 407 U.S. 514, 522 (1972)).

         Because the right to a speedy trial attaches after a defendant is formally charged or arrested, whichever comes first, defendants raise speedy-trial claims at different times. United States v. Marion, 404 U.S. 307, 320 (1971) ("So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment."); State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). For example, defendants have brought speedy-trial claims when there is a delay between the time of arrest and the time of trial. See, e.g., State v. Windish, 590 N.W.2d 311, 313 (Minn. 1999).

         This case, however, concerns an alleged speedy-trial violation resulting from the delay between charging the defendant and the defendant's arrest. The Supreme Court of the United States first recognized that this type of delay implicates the Sixth Amendment in Doggett v. United States, 505 U.S. 647, 648 (1992) (holding that an approximately 8-year delay between the defendant's indictment and arrest violated his Sixth Amendment right to a speedy trial). Here, Osorio argues that ...


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