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This opinion will be unpublished and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
A17-0730

State of Minnesota,
Respondent,

vs.

Ronald Lee Conway,
Appellant.

Filed March 26, 2018
Affirmed
Cleary, Chief Judge

Ramsey County District Court
File No. 62-CR-16-2168

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

John J. Choi, Ramsey County Attorney, Pete r R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Reyes, Judge; and Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from his conviction of two counts of second-deg ree murder while
committing a felony and one count of second-degree murder with intent, appellant Ronald
2
Lee Conway asserts that his conviction must be reversed because respondent State of
Minnesota violated his right to a speedy trial. In the alternative, appellant argues that he is
entitled to a new trial because of alleged pros ecutorial misconduct and the district court’s
failure to order a mistrial due to that misconduct. We affirm.
FACTS
Two men were shot and killed at a motel in St. Paul on March 22, 2016. Multiple
witnesses were present, and the shooting was captured on su rveillance video. Appellant
and two other men were arrested within days of the shooting. Appellant was charged with
two counts of second-degree murder on March 25. The two other men—E.B. and C.S.—
eventually cooperated with the state, pleaded guilty to charges related to the shooting prior
to appellant’s trial, and testified at his trial.
On May 13, 2016, appellant made a written demand for a speedy trial. The district
court initially scheduled a trial date within the 60-day speedy-trial window. At the next
hearing, the district court noted appellant’s speedy-trial demand and the state expressed
concern that the required DNA testing coul d not be accomplished within the 60-day
speedy-trial window. That same day, the state filed a motion to consolidate the three cases
of codefendants—E.B., C.S., and appellant—for the purposes of DNA testing. Appellant
challenged the DNA testing proc edure, contesting the BCA’s need to consume the entire
DNA sample because of the “long-term imp lications that can negatively impact” any
further appeal.
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At the next scheduling hearing on June 10, the state informed the district court that
the BCA employee who was going to offer te stimony about the consumption of the DNA
sample through testing was unavailable until Ju ly 6. The state explained that the BCA
employee had “all information” and was “in au thority at the BCA.” The state requested
the district court to continue the hearing to a date after July 6 and to find good cause to
extend the 60-day speedy-trial wi ndow to 120 days. Appellant strongly obje cted to any
continuance based on the BCA employee’s unavailability. The state was unable to offer a
specific reason for the BCA employee’s unavailability. The district court found good cause
to issue a continuance due to the BCA employee’s “critical information” and “critical
evidence . . . against all three defendants” that could be inculpatory or exculpatory.
The district court rescheduled the motion hearing for July 11 and the jury trial for
August 29. The partie s eventually agreed to have the motion scheduled for the July 11
hearing heard by stipulation. The state submitted a transcript of the BCA testimony from
a pretrial hearing on the same DNA issue in a different case held months before as part of
its stipulation.
On July 26, appellant’s codefendant, E.B., pleaded guilty pursuant to an agreement
with the state and agreed to testify before the grand jury and at appellant’s trial. The next
day, the state convened a gra nd jury. The grand ju ry returned an indictment charging
appellant with two counts of first-degree murder, two counts of second-degree intentional
murder, and two counts of second-degree unintentional murder for his role in the shooting.
At his arraignment hearing on August 3, appellant’s attorney noted the speedy trial demand
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and alleged that the indictment was “just anot her way for the state to further extend this
matter and subvert my client’s right to a speedy trial.”
At the next hearing on August 18, appellant noted that he had no notice that there
would be a grand jury conven ed, that the state had yet to complete its disclosure
obligations, and that he received the grand jury transcript on August 16—13 days before
the scheduled trial date. Appe llant stated that there was no way to present an adequate
defense given the late disclosures and recent indictment and felt he had “no choice” but to
waive his speedy-trial demand. The district court accepted appellant’s waiver and
scheduled a new trial date for December 5.
Prior to trial, appellant made a moti on to preclude testimony regarding his
involvement in any prior shootings or kidnapp ings. The district court granted the motion
and directed the state to “instruct its witnes ses not to discuss” another murder or other
shootings or kidnappings. During E.B.’s te stimony at trial, th e following exchange
occurred:
STATE: What was [appellant]’s demeanor like?
E.B.: He was very upset and “Nobody takes sh-t from
me and gets away with it. Nobody steals from me and
gets away with it.” I guess it’s ways I never really heard
him talk before, I guess. I heard him saying things like,
“Do you know how many I done kidnapped? Do you
know how many people I done shot at?” I’ve never—

Appellant objected to this line of testimony , the parties approached, and the jury was
removed from the courtroom. The district c ourt noted the pretrial motion to exclude the
statements involving prior crimes and that the “witness was to be instructed that he was not
5
supposed to refer” to those prior crimes. The prosecutor explained that she was not allowed
to have contact with E.B. as he was a represented party and that it was unclear whether the
prohibition on testimony involving prior crimes had been conveyed to E.B. The district
court sustained the objection, ordered the stat ement stricken, and inst ructed the jury to
disregard the statement when th ey returned. Appellant then moved for a mistrial. The
prosecutor explained that lay witnesses are ha rd to control and that a mistrial was not
necessary because a curative instruction woul d suffice. The district court denied the
motion for a mistrial and issued a curative instruction to the jury upon their return and again
prior to closing arguments. In a written order denying the motion for a mistrial, the district
court concluded that there was “no manifest necessity for a mistrial, in light of various less
restrictive alternatives” and found that “[t]here is nothing in the record to suggest that the
state took any action to precip itate the violation of the Co urt’s ruling on the motion in
limine.”
Appellant was found guilty of two coun ts of second-deg ree murder while
committing a felony in violation of Minn. Stat. § 609.19, subd. 2(1) (2016), and one count
of second-degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2016). This
appeal follows.
D E C I S I O N
I. Appellant was not denied hi s right to a speedy trial.
“The right to a speedy trial is guarant eed by the Sixth Amendment to the United
States Constitution and Article I, Secti on 6 of the Minnesota Constitution.” State v.
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DeRosier, 695 N.W.2d 97, 108 (Minn. 2005). In Minnesota, “trial is to commence within
60 days from the date of the demand unless good cause is s hown . . . why the defendant
should not be brought to tr ial within that period.” State v. Hahn, 799 N.W.2d 25, 29-30
(Minn. App. 2011); see also Minn. R. Crim. P. 11.09(b).
“A speedy-trial challenge presents a constitutional que stion subject to de novo
review.” State v. Griffin, 760 N.W.2d 336, 339 (Minn. App. 2009). To determine whether
a delay deprives a defendant of his right to a speedy trial, a court must balance four factors:
(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. Barker
v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972); see also State v. Widell,
258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker test for speedy-trial
demands). “None of the factors is either a necessary or sufficient condition to the finding
of a deprivation of the right to a speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be relevant.” State v. Windish,
590 N.W.2d 311, 315 (Minn. 1999) (quotation omitted).
A. Length of the delay
“Under Minnesota law, a delay of more th an 60 days from the date of the speedy-
trial demand is presumptively prejudicial, triggering review of the remaining three factors.”
State v. Johnson, 811 N.W.2d 136, 144 (Minn. App. 2012), review denied (Minn. Mar. 28,
2012). Appellant’s formal demand on May 13 triggered the 60-day time period under
Minn. R. Crim. P. 11.09(b). The district co urt continued the trial outside the 60-day time
7
period after finding good cause for the continuance. The delay here is 97 days, triggering
a review of the remaining factors.
B. Reason for the delay
With respect to the second factor, “the key question is whether the government or
the criminal defendant is more to blame for the delay.” State v. Taylor, 869 N.W.2d 1, 19
(Minn. 2015) (quotation omitted). “The Supreme Court assigned the burden of protecting
speedy trial rights to the court system and prosecutors.” Windish, 590 N.W.2d at 317. A
deliberate attempt to delay trial weighs heavily against the state. Barker, 407 U.S. at 531,
92 S. Ct. at 2192. “A more neutral reason such as negligence or overcrowded courts should
be weighted less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstan ces must rest with the govern ment rather than with the
defendant.” Id.
The primary cause for delay in this case was the unavailability of the BCA employee
that the state intended to call as a witness. “Normally, the unava ilability of a witness
constitutes good cause for delay.” Windish, 590 N.W.2d at 317. However, the state “must
be diligent in attempting to make witnesses available a nd the unavailability must not
prejudice the defendant.” Id. In Windish, the court concluded that because the “state did
not produce any evidence of its efforts to ensure [the witness]’s appearance,” the “lack of
diligence weigh[ed] ag ainst the state.” Id. Here, the state exhib ited a similar lack of
diligence. The state asserted that this particular BCA employee was the only person
competent to testify on the DNA consumption issu e. Nothing in the record indicates that
8
the witness was unnecessary or that there was another witness who was competent to testify
that the state knew of or failed to contact. But there is also nothing in the record that
establishes that the state was diligent in attempting to make the witness available to testify
other than placing at least one phone call to the witness and reaching a voicemail recording.
The state also could not point to a specific reason for the witness’s unavailability, whether
it was a vacation, some sort of health-related leave, or otherwise.
Despite this lack of diligence, there is no evidence that the state was deliberately
trying to delay the trial or hinder the defens e. And while the issu e was eventually heard
through a stipulation, there is no evidence that this option was a possibility considered by
the parties at the time the motion was made. Because there is no evidence of a deliberate
intent to delay on the part of the state, th e witness’s unavailability is a neutral reason for
the delay and this factor shou ld not weigh heavily against the state. But it still weighs
against the state because the st ate bears the burden of ensuri ng a speedy trial and there is
little evidence that the state was diligent in its attempts to make the witness available.
The second event that appellant argues caused a delay was the indictment.
Appellant notes that the stat e convened the grand jury without any notice to him or the
district court. There is no requirement that the state notify a defendant that a grand jury is
to be convened and there are express provisions designed to ensure the secrecy of the
proceedings. See Minn. R. Crim. P. 18.07. And there is no evidence in the record that
indicates the state convened the grand jury to delay or hinder the appellant’s defense. The
timing of the guilty plea of one of appellant’s codefendants was not within the control of
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the state. In response to the grand jury’s indictment, appellant waived his right to a speedy
trial. “If a defendant’s own actions caused the delay, there is no violation of the right to a
speedy trial.” Griffin, 760 N.W.2d at 340. After waivi ng his right to a speedy trial, the
parties and the district court agreed upon the December 5, 2016 trial date. Because
appellant voluntarily waived his right to a sp eedy trial, this portion of the delay is not
attributable to the state.
C. Strength of appellant’s speedy-trial demand
On the third factor, a defendant’s assertion of the right to a speedy trial need not be
formal or technical and is determined by the circumstances. Windish, 590 N.W.2d at 317.
A court must assess “the frequency and intensity of a defendant’s assertion of a speedy trial
demand.” Id. at 318. Courts evaluate the “circ umstances surrounding the frequency and
intensity of a defendant’s assertion of a speedy trial demand-including the import of
defense decisions to seek delays.” Id. Delay “occasioned by the defendant himself often
is deemed a temporary waiver of his speedy trial demand, which can only be revived when
the defendant reasserts his speedy trial right.” State v. Johnson, 498 N.W.2d 10, 16 (Minn.
1993).
Appellant repeatedly asserted his right to a speedy trial and objected to the state’s
request for a continuance. The district court found good cause for the continuance over his
objection. Appellant later made a knowing and voluntary waiver of his right to a speedy
trial. Appellant did not revive or reassert his right at any time prior to trial. This factor is
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neutral because appellant vigorously asserted his right to a speedy trial but later waived
that right without reasserting it.
D. Prejudice
Prejudice should be analyzed in light of the interests th at the speedy-trial right is
designed to protect. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. “The Supreme Court has
identified three interests that are protected by the right to a speedy trial: (1) preventing
oppressive pretrial incarceration; (2) minimi zing the anxiety and concern of the accused;
and (3) preventing the possibility that the defense will be impaired.” Windish, 590 N.W.2d
at 318. Preventing the possib ility that the defense will be impaired is the most serious
interest. Id. “A defendant does not have to affirmatively prove prejudice; rather, prejudice
may be suggested by likely harm to a defendant’s case.” Id. To establish that a delay
harms the defense, a defendant must “suggest evidentiary prejudice.” Taylor, 869 N.W.2d
at 20 (quotation omitted). Evidentiary prejudice may include damage to a witness’s ability
to recall “essential facts,” the unavailability of a witness, or impairment of representation.
State v. Jones, 392 N.W.2d 224, 235-36 (Minn. 1986).
The first two interests weigh in appella nt’s favor: he was in custody during the
delay. But the third, and most important interest, does not. During the delay, both of
appellant’s codefendants pleaded guilty and one testified at th e grand jury hearing. The
supreme court has “reject[ed] the notion th at the procurement of a plea agreement
constitutes unfair prejudice.” Taylor, 869 N.W.2d at 20. The sort of prejudice at issue here
is concerned with the ability of the defense to make its own case and the opportunity for
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the state to prepare for trial does not, on its ow n, amount to prejudice to the defense. Id.
In announcing this rule, the Taylor court noted that there was “no allegation that the delay
was manufactured by the State.” Id. Here, appellant alleges the delay was manufactured,
but that allegation is not supported by facts in the record. While the two factors related to
appellant’s incarceration weigh in his favor, the third and most important factor does not.
Appellant did not suffer the type of unfair prejudice akin to the evidentiary prejudice
contemplated by Barker. Accordingly, this factor does not weigh in appellant’s favor.
After evaluating all the Barker factors, we conclude that appellant’s right to a speedy
trial was not violated by the 97-day delay.
II. The prosecutor’s failure to prepare the state’s witness in violation of the
district court’s order was misconduct, but it was harmless error.

Appellant argues that the pr osecutor committed miscondu ct by failing to prepare
E.B. in accordance with the district court’ s order and by eliciting information about his
prior bad acts on cross-examinat ion and that this misconduct requires the reversal of his
conviction and a new trial. We disagree.
When reviewing a claim of prosecutoria l misconduct, our standard of review
depends on whether there was an objection at trial to the claimed misconduct. State v.
McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). For objected-to prosecutorial misconduct,
like the misconduct at issue here, there are tw o harmless-error standards of review taken
from State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).1 The harmless-

1 The supreme court has questioned the viability of this approach, but has yet to decide that
issue. See State v. Whitson, 876 N.W.2d 297, 304 n.2 (Minn. 2016).
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error test for “unusu ally serious” misconduct requires an analysis of whether the
misconduct was “harmless beyond a reasonable doubt.” State v. Nissalke, 801 N.W.2d 82,
105 (Minn. 2011) (quotation omitted). Th e harmless-error test for less serious
prosecutorial misconduct requires an analysis of “whether the misconduct likely played a
substantial part in influenc ing the jury to convict.” Id. (quotation omitted ). An error is
harmless beyond a reasonable doubt “only if the verdict rendered was surely unattributable
to the error.” Id. at 105-06 (quotation omitted). A new trial will only be granted based on
objected-to prosecutorial misconduct if the misconduct, “viewed in the light of the whole
record, appears to be inexcusable and so serious and prejudicial that the defendant’s right
to a fair trial was denied.” State v. Palubicki , 700 N.W.2d 476, 489 (Minn. 2005)
(quotation omitted).
“Prosecutors have an affirm ative obligation to ensure that a defendant receives a
fair trial, no matter how strong the evidence of guilt.” State v. Ramey, 721 N.W.2d 294,
300 (Minn. 2006). The prosecutor is a “minister of justice” who “may not seek a conviction
at any price.” Id. (quotation omitted). It is well esta blished that a prosecutor may not
intentionally elicit, or try to elicit, inadmissible evidence at trial. State v. Fields , 730
N.W.2d 777, 782 (Minn. 2007). “Minnesota la w is crystal clear . . . the state has an
absolute duty to prepare its witnesses to ensure th at they are aware of the limits of
permissible testimony.” State v. McNeil , 658 N.W.2d 228, 232 (Minn. App. 2003)
(emphasis added). The state must prepare its witnesses so that th ey “will not blurt out
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anything that might be inadmissible and prejudicial.” State v. Carlson, 264 N.W.2d 639,
641 (Minn. 1978).
Here, the prosecutor failed to prepare E.B., in violation of the district court’s order,
and E.B. offered a response that included in admissible character evidence of appellant’s
prior bad acts. Whether this violation of the court’s order was intentional or not, the failure
to prepare the witness was misconduct attributable to the prosecutor. State v. Mahkuk, 736
N.W.2d 675, 689 (Minn. 2007). When the dist rict court questioned the prosecutor about
whether or not she complied with her duty to prepare her witnesses and the court order to
do so, she explained that E.B. was a represented party with whom she could not have direct
contact and that lay witnesses are generally difficult to control. The state’s duty to prepare
its witnesses extends to all of its witnesses—even lay witne sses represented by counsel.
The prosecutor’s failure to prepare E.B. was misconduct.
But there is no evidence in the record that the prosecutor intentionally failed to
prepare E.B. in an attempt to elicit inadmissible evidence through testimony. The question
asked by the prosecutor, “What was [appellant]’s demeanor like?” was open ended and not
directed at appellant’s alleged involvement in other kidnappings or shootings. She asked
that same question, phrased the same way, to multiple other witnesses about other persons
involved in the shooting. The prosecutor unintentionally elicited the improper testimony
by asking open-ended questions of a witness she failed to prepare.
Even if the failure to prepare E.B. was “unusually serious” misconduct, it was
harmless beyond a reasonable doubt. The ve rdict was unattributable to the witness’s
14
inadmissible testimony. The trial spanne d six days, the offending testimony was one
sentence that was immediately objected to, the district court excused the jury and issued
multiple curative instructions, and the prosec utor made no reference to the prohibited
testimony during her closing ar gument. The evidence agai nst appellant was strong,
including the permissible testimony of his codefendants about the events leading up to the
shooting; the video evidence of appellant approaching the motel room, directing his
codefendant to knock on the door, and fleeing after the shooting; and the non-accomplice
eyewitness testimony.
Because there was no evidence that the pros ecutor intentionally failed to prepare her
witness in an attempt to elicit inadmissible testimony, the error caused by her misconduct
was harmless beyond a reasonable doubt; therefore, appellant is not entitled to a new trial.
III. The district court did not abuse its discre tion in refusing to declare a mistrial.
Appellant contends that the district court abused its discretion in refusing to declare
a mistrial after E.B.’s inadmissible testim ony because it applied the wrong standard in
reviewing the motion. We disagree.
The denial of a motion for a mistrial is reviewed for abuse of discretion. State v.
Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). “A mistrial should not be granted unless
there is a reasonable probability that the outcome of the trial would be different if the event
that prompted the motion had not occurred.” State v. Manthey , 711 N.W.2d 498, 506
(Minn. 2006) (quotation omitted ). “The trial judge is in the best position to determine
whether an outburst creates sufficient prejudice to deny the defendant a fair trial such that
15
a mistrial should be granted.” Id. When a criminal trial is terminated over the defendant’s
objection, the double-jeopardy clause is implicated and bars retrial unless the previous trial
was terminated for a manifest necessity. See Oregon v. Kennedy, 456 U.S. 667, 683, 102
S. Ct. 2083, 2093 (1982). But where the defendant moves for the mistrial, that standard is
inapplicable. Id.
Initially, the district court denied the mo tion for a mistrial from the bench—without
discussing either the “reasonable probabil ity” standard or the “manifest necessity”
standard. In a written order meant to supplemen t that ruling, the district court discussed
the “manifest necessity” standard at length in its order denying the motion. The district
court also discussed the correct standa rd in its order—citing and discussing Manthey in
coming to its conclusion. The district court found that the statements were “prejudicial”
but that “any prejudice created was not so funda mental as to require a mistrial and could
be effectively mitigated by the court’s instructions” and discussed the curative instructions
it gave and intended to give the jury. Ultimately, the district court concluded that the facts
and circumstances here did “not rise to the high degree of necessity required to grant the
motion for a mistrial in light of Double Jeopardy concerns.”
The district court mistakenly applied the “manifest necessity” standard and
accounted for “Double Jeopardy concerns” that were not implicated by appellant’s motion
for a mistrial. But the district court also made sufficient findings under the applicable
“reasonable probability” standard. And the district court issued multiple curative
instructions on the issue—both immediately af ter the statements we re made and before
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closing arguments. The district court was in the best position to evaluate whether a mistrial
was necessary or whether its curative instructions could mitigate the prejudice. Manthey,
711 N.W.2d at 506. The district court mistakenly relied on the wrong standard, discussed
the correct standard, and concluded that the curative instructions were sufficient.
In light of the strength of the evidence against appellant and the district court’s
multiple curative instructions, we conclude that there was not a reasonable probability that
the outcome of the trial would have been di fferent but for E.B.’s one sentence containing
inadmissible character evidence. The district court did not abuse its discretion in denying
the motion for a mistrial.
Affirmed.