                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1782

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Donald William Carlson,
                                     Appellant.

                                Filed August 11, 2014
                                      Affirmed
                                   Schellhas, Judge

                             Wright County District Court
                              File No. 86-CR-12-5803

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney,
Buffalo, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                       UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges his fifth-degree controlled-substance-sale conviction,

arguing that the district court (1) violated his speedy-trial right, (2) erred by not
suppressing evidence seized during the execution of a nighttime search warrant, and

(3) abused its discretion by declining to admit hearsay evidence. We affirm.

                                        FACTS

      In an application for a warrant to search an Otsego property for items including

marijuana and paraphernalia associated with manufacturing controlled substances,

Wright County Sheriff’s Deputy Todd Jorgenson stated that, at about 7:30 p.m. that day,

he learned from Wright County Sheriff’s Deputy Travis Macleod that Deputy Macleod

interviewed three juvenile males found near the Otsego property. The juveniles possessed

freshly cut marijuana, and two of them had gone to the property to hide it. After arriving

at the property, Deputy Jorgenson smelled the strong odor of fresh marijuana emitting

from the house and observed windows covered with dark plastic and custom-made

ventilation devices on the house. A neighbor told Deputy Jorgenson that appellant

Donald Carlson owned the property but did not live in the house, mowed the lawn

monthly, and often moved items in and out of the house. A “Juvenile Reporting Person”

told Deputy Jorgenson that the house had appeared vacant for several years. Deputy

Jorgenson believed that a search that night was necessary because he did not learn of the

“suspected marijuana grow” until after 8:00 p.m., the police were securing the house, and

the execution of a search warrant was necessary “to keep evidence from disappearing or

being destroyed.”

      The district court granted the search warrant, finding that “probable cause

exist[ed] for the issuance of a search warrant” and “a nighttime search [was] necessary to

prevent the loss, destruction, or removal of the objects of said search.” Law-enforcement


                                            2
officers executed the warrant between 10:00 p.m. and 11:00 p.m. and seized items

including marijuana and paraphernalia associated with growing marijuana. Respondent

State of Minnesota charged Carlson with fifth-degree controlled-substance sale under

Minn. Stat. § 152.025, subd. 1(a)(1) (2010).

       On January 31, 2013, Carlson moved the district court to suppress all evidence

obtained through execution of the search warrant, arguing that the warrant was not

supported by probable cause. Pending the court’s ruling on his suppression motion,

Carlson demanded a speedy trial—but agreed to an April 8 trial date, and asserted an

alternative-perpetrator defense, noting that his tenant, whom he did not identify, might

have been the person growing marijuana on the property and that the tenant had

“disappeared.” The district court denied Carlson’s suppression motion, finding that the

search warrant was supported by probable cause and that “[i]t [was] reasonable to suspect

that if [Carlson] learned of the police activity at his house, he would attempt to remove

the marijuana plants before morning.”

       In March, less than three weeks before the scheduled commencement of trial,

Carlson produced a copy of a lease for the property that he allegedly entered into with a

tenant, K.J., and an undated transcript, purportedly of a secretly recorded conversation

between K.J. and Carlson, in which K.J. confessed to growing marijuana on the property.

Carlson argued that, although hearsay, the transcript was admissible as K.J.’s statement

under Minn. R. Evid. 804(b)(3). Upon the state’s request, the district court continued the

trial to May 13 so that the state could investigate the authenticity of K.J.’s purported lease

and hearsay statement. Carlson was not in custody pending trial.


                                               3
       At a pretrial hearing on May 6, Carlson informed the district court that, although a

private investigator attempted to serve K.J. with a subpoena and Carlson tried to arrange

a meeting with K.J., Carlson was unsuccessful in his attempts to serve K.J. with a

subpoena for trial. The state maintained that K.J. did not exist and that Carlson had

fabricated the purported lease and transcript of the secretly recorded conversation with

K.J. The district court denied Carlson’s motion to admit K.J.’s hearsay statement,

reasoning that Carlson failed to make reasonable efforts to procure K.J.’s testimony or

attendance. A jury found Carlson guilty as charged.

       This appeal follows.

                                     DECISION

Speedy-Trial Right

       Carlson argues that the district court violated his speedy-trial right because the

trial did not commence until approximately three-and-one-half months following his

demand. We disagree.

       Criminal defendants have a constitutional right to speedy trials. U.S. Const.

amend. VI; Minn. Const. art. 1, § 6. Generally, “[b]y rule in Minnesota, trial is to

commence within 60 days from the date of the demand.” State v. DeRosier, 695 N.W.2d

97, 108–09 (Minn. 2005); accord Minn. R. Crim. P. 6.06, 11.09. “In determining whether

a delay constitutes a deprivation of the right to a speedy trial, courts consider (1) the

length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his or

her right to a speedy trial, and (4) whether the delay prejudiced the defendant.” DeRosier,

695 N.W.2d at 109 (citing Barker v. Wingo, 407 U.S. 514, 530–33, 92 S. Ct. 2182, 2191–


                                             4
93 (1972)). Failing to commence trial within 60 days of the demand raised “a

presumption that a [speedy-trial-right] violation ha[d] occurred.” State v. Windish, 590

N.W.2d 311, 316 (Minn. 1999); see State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989)

(“[D]elays 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.”). But, “[w]hen the overall delay in bringing a case to trial is

the result of the defendant’s actions, there is no speedy trial violation.” DeRosier, 695

N.W.2d at 109.

      Here, Carlson demanded a speedy trial on January 31, 2013, but agreed to a trial

date of April 8. The trial continuance from April 8 to May 13, although presumptively

prejudicial, was the direct result of Carlson’s late disclosure of evidence to support his

alternative-perpetrator defense. He did not produce the transcript of K.J.’s purported

secretly recorded statement until March 29, when he argued that K.J.’s statement

constituted an “explicit confession that [K.J.], not . . . Carlson, committed the crime

charged.” Although Carlson provided the state ample notice of his alternative-perpetrator

defense at a hearing on January 31, 2013, he did not notify the state of K.J.’s alleged

confession until late March. We conclude that the district court properly exercised its

discretion by granting the state’s motion for a trial continuance to allow the state to

investigate the authenticity of the newly produced evidence.

      We acknowledge that the trial did not commence on May 13 for reasons not clear

in the record. The parties engaged in pretrial discussions on May 13 and went off the

record with plans to reconvene later that day. But the parties did not reconvene until


                                            5
May 14, when trial commenced. Nonetheless, we conclude that the district court did not

violate Carlson’s speedy-trial right by commencing trial on May 14, approximately three-

and-one-half months after Carlson’s speedy-trial demand.

Nighttime Warrant

       The district court denied Carlson’s suppression motion, reasoning that probable

cause supported issuance of a nighttime warrant. Carlson challenges the nighttime

warrant. Carlson’s sole challenge to the court’s denial of his suppression motion is that

Deputy Jorgenson’s warrant application did not provide reasonable suspicion that a

nighttime search was necessary. He asks us to consider his argument in the interests of

justice even though he failed to raise it in district court. We decline. A defendant’s

“[f]ailure to include any” “defenses, objections, issues, and requests then available” in a

pretrial “motion to dismiss or to grant appropriate relief . . . constitutes waiver.” Minn. R.

Crim. P. 10.01, subd. 2.

       Moreover, our review of the record indicates that Carlson’s argument is

unpersuasive. “When reviewing a pretrial order on a motion to suppress, we review the

district court’s factual findings under our clearly erroneous standard. We review the

district court’s legal determinations, including a determination of probable cause, de

novo.” State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012) (citations omitted). Under the

United States and Minnesota Constitutions, “no Warrants shall issue, but upon probable

cause,” U.S. Const. amend. IV; accord Minn. Const. art. I, § 10, and, under Minn. Stat.

§ 626.14 (2010),




                                              6
              [a] search warrant may be served only between the hours of
              7:00 a.m. and 8:00 p.m. unless the court determines on the
              basis of facts stated in the affidavits that a nighttime search
              outside those hours is necessary to prevent the loss,
              destruction, or removal of the objects of the search or to
              protect the searchers or the public.

“[A]n application for a nighttime warrant under section 626.14 must establish reasonable

suspicion that a nighttime search is necessary to preserve evidence or to protect officer or

public safety.” State v. Jackson, 742 N.W.2d 163, 167–68 (Minn. 2007).

       But we must “give great deference to the issuing judge’s determination . . . of

whether a nighttime search warrant should be authorized under Minn. Stat. § 626.14.”

State v. Bourke, 718 N.W.2d 922, 927–28 (Minn. 2006) (quotation omitted). Here,

similar to Bourke, “As far as the issuing judge knew, [Carlson] was at large. There is

nothing unreasonable in concluding that [Carlson], then a suspect, would want to destroy

the evidence of the [marijuana growing] on his property if he were given the

opportunity.” Id. at 928–29. We therefore affirm the district court’s denial of Carlson’s

suppression motion.

Hearsay Evidence Regarding Alternative-Perpetrator Defense

       Carlson argues that the district court abused its discretion by denying his motion to

admit K.J.’s hearsay under Minn. R. Evid. 804(b)(3). He argues that the denial violated

his right to present an alternative-perpetrator defense. We disagree.

       “Even when a defendant alleges that his constitutional rights were violated,

evidentiary questions are reviewed for abuse of discretion.” State v. Peterson, 764

N.W.2d 816, 821 (Minn. 2009).



                                             7
              The Due Process Clauses of the United States and Minnesota
              Constitutions protect a criminal defendant’s right to a
              meaningful opportunity to present a complete defense,
              including the ability to present evidence suggesting that
              another individual committed the charged offense. However,
              a defendant’s due process right to present a complete defense
              yields to the application of an evidentiary rule unless the rule
              “infringe[s] upon a weighty interest of the accused and [is]
              arbitrary or disproportionate to the purposes [the rule is]
              designed to serve.”

State v. Pass, 832 N.W.2d 836, 841–42 (Minn. 2013) (citations omitted) (quoting Holmes

v. S. Carolina, 547 U.S. 319, 324–25, 126 S. Ct. 1727, 1731 (2006) (quotation omitted)).

The district court must not admit alternative-perpetrator evidence when the defendant

does not first “lay a proper foundation for admission of such evidence by offering

evidence that has an inherent tendency to connect the alternative perpetrator to the

commission of the charged crime.” State v. Hokanson, 821 N.W.2d 340, 351 (Minn.

2012) (quotation omitted), cert. denied, 133 S. Ct. 1741 (2013).

       The district court properly excludes alternative-perpetrator evidence when the

evidence is inadmissible hearsay because “[i]nadmissible hearsay statements cannot

inherently connect an alternative perpetrator to a crime.” State v. Scanlon, 719 N.W.2d

674, 677 (Minn. 2006). Hearsay is generally inadmissible, Minn. R. Evid. 802, but is

admissible when made against the declarant’s interest “if the declarant is unavailable as a

witness.” Minn. R. Evid. 804(b)(3). A declarant is unavailable as a witness when the

declarant “is absent from the hearing and the proponent of a statement has been unable to

procure the declarant’s attendance (or in the case of a hearsay exception under




                                             8
subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other

reasonable means.” Minn. R. Evid. 804(a)(5).

       The district court denied Carlson’s motion to admit K.J.’s hearsay under rule

804(b)(3), reasoning that Carlson failed to make reasonable efforts to procure K.J.’s

testimony or attendance and, consequently, failed to show that K.J. was unavailable.

Carlson argues that his efforts to procure K.J.’s testimony or attendance were reasonable,

arguing that, about two weeks before the May 6, 2013 hearing, Carlson arranged a

meeting with K.J. that K.J. did not attend; K.J. was, as of May 6, living in Mount

Prospect, Illinois; and Carlson continued, through undisclosed means, “to try to get [K.J.]

to cooperate.” He offered no evidence to support those assertions. On appeal, he

identifies no legal authority to support his argument that his efforts were reasonable. And

he provides no indication that applying the hearsay rules “infringes upon a weighty

interest of the accused and is arbitrary or disproportionate to the purposes the rule[s are]

designed to serve.” Pass, 832 N.W.2d at 842 (quotation omitted).

       We conclude that the district court did not abuse its discretion by denying

Carlson’s motion for admission of K.J.’s hearsay statement.

       Affirmed.




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