State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0731

State of Minnesota,
Respondent,

vs.

Robert Earl Leatherberry,
Appellant.

Filed May 1, 2017
Affirmed
Bratvold, Judge

St. Louis County District Court
File No. 69DU-CR-15-1250

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

Mark S. Rubin, St. Louis County Attorney, Jessica J. Fralich, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
On appeal from his conviction of first -degree criminal sexual conduct, appellant
argues that he was denied his right to a speedy trial because trial was postponed eight days
2
beyond the 60-day speedy-trial deadline. Because appellant was responsible for causing
delays before he made a speedy -trial dema nd, and the district court did not abuse its
discretion in determining witness unavailability was good cause to exte nd the 60 -day
period, we affirm.
In his pro se supplemental brief, appellant also argues his conviction should be
reversed for additional r easons. Because appellant was not denied effective assistance of
counsel, the district court did not deny appellant his due-process right to present a complete
defense, and none of appellant’s other pro se claims have merit, we affirm.
FACTS
The evidence at trial established that K.B. was on her front porch when appellant
Robert Leatherberry, her next door neighbor, approached her a round midni ght on
November 12, 2014. K.B. walked into her house and tried to shut the door, but
Leatherberry pushed his way in and locked the door behind him. Leatherberry sat down on
the couch next to K.B., and K.B. asked him to leave; Leatherberry responded that he would
“in a few minutes.” Leatherberry then pushed K.B. back on the couch and ripped off her
pants. K.B. told Le atherberry, “No, No, I don’t want to do this .” Leatherberry inserted
three fingers into K.B.’s vagina and then penetrated her vagina with his penis. Leatherberry
ejaculated inside of K.B., and, according to K.B., kissed her “on the cheek, laughed, and
put his stuff on and went out the back door.”
After Leatherberry left, K.B. “knew what [Leatherberry] did wasn’t right,” so she
“wipe[d] off” with a tissue, placed the tissue in a Ziplock bag, and placed the leggings she
had been wearing in a plastic bag. K.B. waited until the next morning to go to the hospital
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because it was late at night, her children were sleeping, and her efforts to seek help from a
friend failed.
At the hospital, K.B. told the sexual assault nurse that Leatherberry had digitally
penetrated her and had intercourse with her. The nurse documented numerous scratches on
K.B.’s legs. The nurse also collected blood and urine samples; swabbed K.B.’s vaginal and
rectal areas, cheek, fingernails, and neck; and collected and documented the leggings and
tissue that K.B. brought with her to the hospital . Sperm cell fractions matching
Leatherberry’s DNA were found on the vaginal and rectal swabs.
On April 15, 2015, the state arrested Leatherberry on charges of first -degree
criminal sexual conduct and first-degree burglary. At his first appearance, the district court
set bail at $75,000 and Leatherberry remained in custody through trial and was represented
throughout the pretrial and trial proceedings.
At the scheduled omnibus hearing, Leatherberry requested a continuance, which the
district court granted, and Leatherberry waived his right to a timely omnibus hearing . At
two hearings in June and July 2015, Leatherberry again requested continuances so he could
review the state’s discovery and decide whether to raise an omnibus challenge.
At the rescheduled omnibus hearing on August 13, 2015, Leatherberry waived any
omnibus issues and specifically stated that he did not demand a speedy trial. Leatherberry
also moved for additional DNA testing of the tissue and leggings and a cushion from K.B.’s
couch. In support of his motion, Leatherberry told the court that he was not relying on an
alibi defense and that the court should not “place too much weight” on any further delay
caused by additional testing.
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The district court granted Leatherberry’s motion and instructed the Bureau of
Criminal Apprehension (BCA) to conduct DNA testing of the tissue, leggings, and cushion.
The BCA, however, informed the c ourt that it would not conduct the additional DNA
testing pursuant to a policy, the details of which are not relevant here . The district court
told Leathe rberry that he could have an independent lab perform testing at the state’ s
expense, but Leatherberry responded that he did not want to hire an independent lab and
expressly acknowledged that the tissue, leggings, and cushion would not be tested. On
August 25, 2015, Leatherberry requested an omnibus hearing and asserted a probable-cause
challenge, which the district court denied after a hearing.
At a pretrial hearing on September 24, 2015, Leatherberry demanded a speedy trial.
The district court acknowledged the demand and stated that it would coordinate schedules
with counsel to accommodate the demand. On September 25, Leatherberry filed notice of
an alibi defense and identified his wife, V.H., as his alibi witness.
On October 15 , 2015, the district court considered two pretrial motions. First,
Leatherberry moved to allow V.H. to testify telephonically, which the state opposed.
Leatherberry argued that when hi s counsel contacted V.H. to testify, she refused to travel
to Minnesota because she could not afford it . The district court denied Leatherberry’s
motion, citing the rules and the state’s opposition.
Second, the state moved to set the trial beyond the 60 -day speedy -trial period ,
arguing that good cause supported its request. Leatherberry opposed the motion and
5
reasserted his speedy -trial demand. 1 The state “primarily” relied on the unavailability of
three witnesses. The state informed the court that it expected to call the sexual assault nurse
as a witness, but the nurse was unavailable until after the 60-day speedy-trial deadline. The
state further explained that two other witnesses were unavailable and it was unable to locate
V.H. The state also explained that its office was “severely taxed,” and no prosecutor was
available to prosecute the case within the 60-day period. Noting that “witness unavailability
is something the State has generally little control over,” the district court found good cause
to set the trial eight days beyond the 60-day speedy-trial deadline.
On December 1, 2015, the prospective jury panel was sworn.2 During trial, the state
called K.B., four BCA scientists, and two responding officers. The state asked to present
testimony outside the chain -of-custody order because two of its BCA witnesses had
scheduling conflicts. Leatherberry opp osed the motion and asked the court to exclude
testimony outside the chain-of-custody order. The district court provisionally admitted the
state’s testimony, but stated that it would entertain a mi strial motion if the state did not
establish chain of custody. On the last day of trial, the district court determined that the

1 The state’s motion to re-set the trial date was discussed at two hearings. At the end of the
first hearing on October 15, the district court did not issue an order and the parties
tentatively agreed to schedule the trial for November 23, 2015, the last day within the 60-
day period. One week later, the parties reconvened to discuss scheduling conflicts, and the
district court granted the state’s motion in a written order.

2 On December 10, the district court continued trial for one week because Leatherberry’s
counsel was unable to attend trial due to a death in the family. The chief public defender
attended trial on December 10 on Leatherberry’s behalf.
6
state had established chain of custody through its witness testimony, and Leatherber ry’s
counsel did not move for a mistrial.
Leatherberry testified that on November 12, 2014, he arrived home around 8:00 or
9:00 p.m. from a friend’s house, showered, ate, “got into bed next to [his] wife,” and went
to sleep. Leatherberry further testified that, since 2012, he and K.B. had been in a casual
sexual relationship, he had consensual sex with K.B. three days before November 12, after
which he and K.B. had argued because he wanted to end their relationship. K.B. said he
would “pay for it. ” Leatherberry testified that he did not have any contact with K.B. on
November 12, 2014, although he also acknowledged that he told police that he had never
had any contact with K.B.
The jury found Leatherberry guilty of first -degree criminal sexual conduct , but
acquitted him of first -degree burglary. The district court sentenced Leatherberry to 306
months in prison. This appeal follows.
D E C I S I O N
I. Leatherberry was not denied his right to a speedy trial.
The U.S. and Minnesota Constitutions guarantee criminal defendants the right to a
speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Minnesota has adopted the
four-factor test articulated by the United States Supreme Court in Barker v. Wingo for
determining whether a defendant’s speedy-trial right has been violated. State v. Taylor, 869
N.W.2d 1, 19 (Minn. 2015); see Barker, 407 U.S. 514, 530 –33, 92 S. Ct. 2182, 2192 –93
(1972). Under Barker, appellate 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
7
(4) whether the delay prejudiced the defendant.” Taylor, 869 N.W.2d at 19 (quotation
omitted). No factor is either necessary or sufficient to finding a speedy -trial violation. Id.
Instead, appellate courts “engage in a difficult and sensitive balancing process,”
considering all the factors together with any other relevant circumstances. Id. (quotation
omitted). This court reviews a claimed speedy-trial violation de novo. Id.
A. Length of the delay
“The length of the delay is a ‘triggering mechanism’ which determines whether
further review is necessary.” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quoting
Barker, 407 U.S. at 530, 92 S. Ct. at 2192) . The delay is calcul ated based on “when a
formal indictment or information is issued against a person or when a person is arrested
and held to answer a criminal charge.” State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).
Unless good cause is shown , “trial must start within 60 days” of a speedy -trial demand.
Minn. R. Crim. P. 11.09(b) . “A delay that exceeds 60 days from the date of the demand
raises a presumption that a violation has occurred.” Taylor, 869 N.W.2d at 19.
The state concedes that Leatherberry has met the first Barker factor because trial
began after the 60 -day speedy -trial deadline. We agree. Leatherberry was arr ested on
April 15, 2015, and demanded a speedy trial on September 24, 2015. The 60 -day speedy-
trial deadline was November 23. Trial began on December 1, over seven months after the
arrest and 68 days after the demand. See Jones, 392 N.W.2d at 235 (concluding that seven-
month delay from the date of arrest triggered consideration of the other Barker factors).
Therefore, we will consider the remaining Barker factors.
8
B. Reason for the delay
“The responsibility for promptly bringing a case to trial rests with the state,” but
different weights are assigned for different reasons causing a delay. State v. Hahn , 799
N.W.2d 25, 30 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011). The key question
is whether the government or the defendant is responsible for the delay. Taylor, 869
N.W.2d at 20. Because the right to a speedy trial attaches at the time a defendant is arrested
or charged, the reasons for the entire d elay, not merely the delay after the speedy -trial
demand, should be considered. State v. Osorio, 872 N.W.2d 547, 554 (Minn. App. 2015) ,
aff’d as modified, 891 N.W.2d 620 (Minn. 2017). A district court’s determination that there
is good cause to extend the 60-day speedy-trial deadline under Minn. R. Crim. P. 11.09(b)
is reviewed for an abuse of discretion. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).
In this case, responsibility for pre-demand delays are attributable to Leatherberry.
During the five-month period between Leatherberry’s arrest and his speedy-trial demand,
Leatherberry waived a timely omnibus hearing, requested four continuances, waived any
omnibus challenges, but then revoked the waiver and asserted a probable-cause challenge.
See Hahn, 799 N.W.2d at 32 (“Delays caused by defense motions generally weigh against
the defendant.”). Notably, Leatherberry initially waived a speedy trial, but then later
changed his mind and demanded a speedy trial. Therefore, the five -month pre -demand
delay is attributed to Leatherberry.
Next, we consider post-demand delays. The district court determined that the eight-
day post-demand delay was caused by witness unavailability. Generally, the unavailability
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of state witnesses establishes good cause for a delay , but only if the state acted diligently
in attempting to procure the witnesses’ attendance at trial. Windish, 590 N.W.2d at 317.
Leatherberry argues that the state was not diligent in pursuing its witnesses . We
disagree. There were three state witnesses with scheduling conflicts. The sexual assault
nurse was unavailable until after the 60 -day speedy -trial deadline , and t wo other state
witnesses were unavailable during one week in the 60-day period. The sexual assault nurse
was a key witness for the state, and the state was diligent in ascertaining her availability
and raising scheduling conflicts with the court . See State v. Terry , 295 N.W.2d 95, 96
(Minn. 1980) (finding no speedy -trial violation where delay was caused by unavailability
of state’s key witness, and state was diligent in trying to locate the witness).3 The state was
also diligent in attempting to locate and subpoena V.H., given the late timing of
Leatherberry’s notice of his alibi defense, but was unsure of her whereabouts. We conclude
the record supports the district court’s determination that witness unavailability established
good cause for extending trial beyond the 60-day speedy-trial deadline.
The state also argued that the prosecutor’s office was “severely taxed” and no other
prosecutors were available to try the case within the 60 -day period. These reasons weigh
against the state because “o vercrowding in the court system is not a valid reason for
denying a defendant a speedy trial.” Windish, 590 N.W.2d at 316. But there is no evidence

3 In his pro se reply brief, Leatherberry argues that the state failed to consider alternative
solutions to th e nurse’s unavailability, such as introducing the nurse’s “findings without
her being present” under hearsay exceptions. But Leatherberry does not point to any
specific hearsay exception that would have applied, and fails to acknowledge that witness
unavailability is good cause for trial delay so long as the state acted diligently.
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that the state deliberately delayed trial; therefore, the state’s other reasons weigh, at most,
only slightly against the state. See Hahn, 799 N.W.2d at 32 (state’s own scheduling conflict
weighs slightly against state in absence of “deliberate attempt to delay trial”).
In sum, Leatherberry is responsible for the five-month pre-demand delay, while the
state is responsible for delaying the trial eight days beyond the 60 -day speedy -trial
deadline. Because the district court did not abuse its discretion in determining the state had
good cause for seeking an eight -day delay , we conclude that the second Barker factor
weighs against a speedy-trial violation.
C. Strength of the speedy-trial demand
A defendant’s assertion of the right to a speedy trial “is entitled to strong evidentiary
weight.” Friberg, 435 N.W.2d at 515 (quotation omitted). Courts evaluate “[t]he
circumstances surrounding the frequency and intensity of a defendant’s assertion of a
speedy trial demand—including the import of defense decisions to seek delays.” Windish,
590 N.W.2d at 318. Although the defendant is not required to repeatedly assert the right,
“the strength of the demand is likely to reflect the seriousness and extent of the prejudice
which has resulted.” Friberg, 435 N.W.2d at 515.
The state concedes that Leatherberry unequivocally demanded a speedy trial on
September 24, 2015, and reasserted the demand through trial. We agree that Leatherberry’s
speedy-trial demand was clear and unequivocal, and he reasserted the demand at least two
additional times. On the other hand, Leatherberry specifically declined to demand a speedy
trial when given the option to do so at a hearing in August 2015, and he waited over five
months after being arrested to assert his right. See State v. Johnson, 498 N.W.2d 10, 16
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(Minn. 1993) (noting defendant’s seven -month delay in demanding a speedy trial after
attempting to dismiss the charges “cannot be regarded as prompt or forceful”). Thus, this
factor only slightly weighs in favor of finding a violation.
D. Prejudice
Whether a defendant is prejudiced from a delay is determined in light of three
interests served by the right to a speedy trial : “(1) preventing oppressive pretrial
incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing
the possibility that the defense will be impaired.” Taylor, 869 N.W.2d at 20 (quotation
omitted). The third interest, impairment of the defense, is the most important. Id.
Leatherberry was held in pretrial custody through trial , which undoubtedly
contributed to his anxiety and concern . Some of t he length of Leatherberry’s pre trial
custody was caused by Leatherberry’s pretrial motions and delay in asserting his speedy -
trial right. See Johnson, 498 N.W.2d at 16 (finding no prejudice from incarceration because
defendant was responsible for most of the delay between arrest and trial). The state carries
some responsibility for the post-demand delay, but this delay was only eight days beyond
the 6 0-day speedy-trial deadline. Thus, the first two interests, pretrial custody and the
defendant’s anxiety, only slightly favor a speedy-trial violation.
Regarding the third and most important interest, Leatherberry does not identify how
the delay impaired h is defense. Because it is difficult to prove exactly how a case was
impaired by a delay, “[a] defendant does not have to affirmatively prove prejudice; rather,
prejudice may be suggested by likely harm to a defendant’s case.” Windish, 590 N.W.2d
at 318. To establish that a delay likely harmed the defense, a defendant must “suggest
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evidentiary prejudice.” Taylor, 869 N.W.2d at 20 (quotation omitted). In this case , the
delay arguably benefitted Leatherberry by giving him more time to develop his alibi
defense.4 Because Leatherberry alleges no impairment to his defense , the fourth Barker
factor weighs against a speedy-trial violation.
Upon balancing all of the Barker factors, we conclude that Leatherberry was not
denied his right to a speedy trial. Although the length of delay raises a presumptive
violation, the state had good cause to request a delay based o n witness unavailability, the
state’s admitted limited resources make it only slightly responsible for the post-demand
delay, there is no evidence that the state deliberately delayed trial to gain a strategic
advantage, Leatherberry waited over five months to assert his speedy-trial right, and he has
not suggested how his case was prejudiced by the eight-day delay. Therefore, we conclude
that the balance of the Barker factors overcome the presumption of a speedy-trial violation.
II. Leatherberry was not denied effective assistance of trial counsel.
In his pro se supplemental brief, Leatherberry asserts that his trial counsel was
ineffective. A claim of ineffective assistance of counsel involves a mixed question of law
and fact, which this court reviews de novo. Hawes v. State, 826 N.W.2d 775, 782 (Minn.
2013). Minnesota courts analyze ineffective -assistance-of-counsel claims under the two -
prong analysis from Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

4 In his pro se reply brief, Le atherberry intimates that he was prejudiced by the delay
because, had trial sta rted when previously scheduled, his counsel would not have been
absent for a death in the family and would not have been negatively affected by grief during
trial. Trial, however, was continued one week to allow defense counsel time to grieve, and
there is no evidence that defense counsel’s performance was negatively affected by grief.
13
(1984). Hawes, 826 N.W.2d at 782. Under the first prong, a defendant must show that
counsel’s representation “fell below an objective standard of reasonableness. ” Strickland,
466 U.S. at 688, 104 S. Ct. at 2064. The second prong requires that a reasonable probability
exists that, but for counsel’s errors, the outcome would have been different. Id. at 695, 104
S. Ct. at 2068 –69. There is a “strong presumption that counsel’s performance was
reasonable.” Zornes v. State , 880 N.W.2d 363, 370 (Minn. 2016). This court will “not
review an ineffective-assistance-of-counsel claim that is based on trial strategy.” Andersen
v. State, 830 N.W.2d 1, 10 (Minn. 2013). If a defendant cannot meet the first Strickland
prong, this court will not consider the second prong. Zornes, 880 N.W.2d at 370.
Leatherberry argues that his trial counsel was ineffective because she did not:
(1) subpoena V.H., (2) move for a mistrial when the state presented testimony outside the
chain-of-custody order, (3) hire an expert to rebut the state’s DNA evidence, or (4) object
to an exhibit that depicted the leggings K.B. wore on the night of the assault. 5 All of
Leatherberry’s claims of ineffective assistance are matters of trial str ategy that are not
reviewed by appellate courts. See Carridine v. State , 867 N.W.2d 488, 494 (Minn. 2015)
(decisions whether to subpoena a witness and file a motion are matters of trial strategy);
State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013) (“[T]he extent of any investigation is a
part of trial strategy.”); Leake v. State, 737 N.W.2d 531, 542 (Minn. 2007) (“Decisions

5 Leatherberry appends four documents to his pro se supplemental brief. Only one
document is contained within the record. Appellate courts do not consider documents that
are outside the record on appeal. Minn. R. Civ. App. P. 110.01 (providing that the record
on appeal consists of all documents filed in the district court and transcripts). Thus, o ur
analysis requires considering only those documents contained within the appellate record.

14
about objections at trial are matters of trial strategy.”). Therefore, Leatherberry’s
ineffective-assistance-of-counsel claim fails under the first Strickland prong, and we do
not address the second prong of the test. Zornes, 880 N.W.2d at 370.
III. Leatherberry was not denied his due -process right to present a complete
defense.

In his pro se supplemental brief, Leatherberry also asserts that the district court
denied his due-process right to present a complete defense. The Due Process Clause of the
U.S. and Minnesota Constitutions guarantee the right to present a complete defense. U.S.
Const. amend. XIV; Minn. Const. art. 1, § 7; State v. Jenkins, 782 N.W.2d 211, 225 (Minn.
2010). The right to present a complete defense includes the right to offer witness testimony.
State v. LeDoux , 770 N.W.2d 504, 513 (Minn. 2009). Usually, “evidentiary rulings rest
within the sound discretion of the trial cou rt” and are reviewed for abuse of discretion.
State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). But we review due -process questions
de novo. LeDoux, 770 N.W.2d at 512.
Leatherberry argues that he was denied the right to present a complete defense
because hi s alibi witness , V.H., was not allowed to testify telephonically at trial . The
district court denied Leatherberry’s motion because the state objected to telephonic
testimony and Minn. R. Crim. P. 26.03, subd. 16, states that “witness testimony must be
taken in open court, unless [the] rules provide otherwise.” (Emphasis added.) Analogizing
the district court’s decision to a decision to exclude V.H.’s testimony, the issue is whether
Minn. R. Crim. P. 26.03, subd. 16, infringes upon Leatherberry’s weighty interest in
15
presenting a complete defense 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).
In denying Leatherberry’s request, t he district court relied on a civil commitment
case, which held that it was an abuse of discretion for the district court to allow telephonic
testimony over appellant’s objection because teleph onic testimony impedes the fact -
finder’s ability to make credibility determinations. In re Bieganowski , 520 N.W.2d 525,
528 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Bieganowski reasoned that
“[w]ith telephone testimony, the trier of fact can perceive some of the indicia of credibility,
such as tone of voice, but cannot perceive others, such as body language.” Id. at 529. In
contrast, in-court testimony permits the factfinder to “perceive both visual and aural indicia
of credibility.” Id. The civil rule of procedure on which Bieganowski relied is virtually the
same as the criminal rule. See Minn. R. Civ. P. 43.01 (“In all trials the testimony of
witnesses shall be taken orally in open court, unless otherwise provided by statute or by
these rules.”). Thus, Bieganowski instructs our interpretation of Minn. R. Crim. P. 26.03,
subd. 16.
We conclude that r ule 26.03, subdivision 16, does not infringe on a defendant’s
constitutional right to present a com plete defense because it requires testimony to be
presented in open c ourt and applies equally to the defendant and the state . Additionally,
the purpose served by the rule, as explained in Bieganowski—fostering an environment for
fact-finders to make credibility determinations —is proportionate to the requirement that
testimony be taken in open court before the fact -finder. Thus, the district court did not
16
abuse its discretion in denying Leatherberry’s request for telephonic testimony, and
Leatherberry was not denied his constitutional right to present a complete defense.
Leatherberry asserts other pro se claims, including that the state violated its Brady
obligation by suppressing exculpatory evidence and engaged in misconduct by
interviewing V.H. without his permission . After close review of the record, we conclude
that none of Leatherberry’s pro se claims have merit, and Leatherberry is not entitled to the
relief he seeks.
Affirmed.