State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0793

State of Minnesota,
Respondent,

vs.

Ricardo Dale Smith,
Appellant.

Filed April 13, 2020
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-18-14187

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Pr esiding Judge; Worke, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court violated his right to a speedy trial. We affirm.

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FACTS
On June 1, 2018, police officers were di spatched to a residence on a report that an
11-year-old child had been inappropriately touched by a family member. Officers arrived
at the residence and saw appellant Ricardo Dale Smith, who matched the description of the
suspect that was given to police. Officers learned that Smith had a felony warrant and
began placing him in custody. Smith struggled with officers and fled briefly before he was
apprehended. Smith was charged with se cond-degree criminal sexual conduct and
obstructing legal process.
On July 3, 2018, Smith a ppeared for an omnibus hearing and expressed concern that
DNA testing was not completed. The DNA testing in the case was “extensive” and
included swabs from the victim’s body and clothing, from Smith, and from the back of the
squad car where Smith rubbed his hands. The prosecutor noted that part of the delay was
due to Smith’s failure to coop erate. The district court explained that there was also a
backlog at the Bureau of Criminal Apprehension (BCA). Smith demanded a speedy trial,
and his trial was set for August 14, 2018.
On August 1, 2018, the BCA informed Sm ith’s attorney that the DNA testing may
consume the samples. Smith moved to pr eclude the BCA from consuming any sample.
The state moved for a continuance to complete DNA testing. At a hearing on August 13,
the district court asked Smith’s attorney how she wanted to proceed, and Smith’s attorney
stated that, rather than hire somebody to supervise the testing that would consume the
samples, she wanted an explanation as to why the samples would be consumed. The district
court noted that second guessing the BCA’s determination on consumption and requesting

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an explanation would pr olong the process. The district court stated that there was good
cause for a continuance, and set Smith’s trial for September 10, “seven days outside of the
speedy demand.” Smith gave approval for c onsumption of the samples soon after the
hearing, and the parties received the DNA-testing report on September 5, 2018.
On September 10, 2018, the district court noted that, although Smith’s trial was to
begin, Smith appeared with a new attorney and moved to suppress the DNA-test results.
Smith’s attorney argued that the state should be prec luded from using the new DNA
evidence because the first DNA evidence was exculpatory, but the new DNA evidence,
with respect to Y-chromosome testing, was inculpatory.
The district court denied Smith’s motion to suppress the evidence. Smith’s attorney
requested a continuance to review the new ev idence. The district court responded that
Smith had been “adamant” about his right to a speedy trial, but noted: “The reality is DNA
testing takes time. There are numerous samples in this case. . . . [T]his puts Mr. Smith in
the position of choosing speedy trial or preparation. This happens all the time.” The district
court found good cause to continue Smith’s trial to October 8, 2018.
On October 8, 2018, the district court was out due to a medical emergency, and
Smith’s attorney was in another trial. Sm ith’s jury trial was placed on standby. On
October 10, another district court judge was available for Smith’s trial, but Smith requested
a continuance. The district court granted Smith’s request and set his trial for October 29.
On October 29, 2018, Smith discharged hi s attorney and requested to remove the
district court judge. The dist rict court told Smith that his motion would delay his trial.
Smith replied: “I don’t care.” On November 8, the chief judge deni ed Smith’s motion to

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remove the district court judge. On November 13, the district court asked Smith, who was
pro se, when he would be ready for trial. Smith replied that he would be ready in two
months. The district court set Smith’s trial for January 14, 2019.
On January 14, 2019, Smith’s jury trial began. The jury found Smith guilty as
charged, and the district court sentenced him to 60 months in prison for the second-degree
criminal-sexual-conduct conviction, and 266 days in the workhouse for the obstructing-
legal-process conviction. This appeal followed.
D E C I S I O N
Speedy trial
Smith first argues that the district court denied him his right to a speedy trial. This
court reviews de novo whether Smith was denied his constitutional right to a speedy trial.
See State v. Osorio , 891 N.W.2d 620, 627 (Minn. 2017 ). If a defendant has been denied
his right to a speedy trial, he is entitled to dismissal of his case. Id.
In all criminal prosecutions, “the accused shall enjoy the right to a speedy and public
trial.” U.S. Const. amend. VI; Minn. Const. art. I, § 6. In determining whether a delay
deprived a defendant of his constitutional right to a speedy trial, this court applies the four-
factor balancing test set forth in Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182 (1972).
Osorio, 891 N.W.2d at 627. The four factors are: (1) the length of the delay, (2) the reason
for the delay, (3) whether the defendant a sserted his right, and (4) whether the delay
prejudiced the defendant. Id. No single factor is necessa ry or sufficient on its own in
determining whether a defendant has been deprived his right; rather, these four factors are
related and considered together in light of other relevant circumstances. State v. Taylor,

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869 N.W.2d 1, 19 (Minn. 2015). The four-factor balancing test is “difficult and sensitive,”
and includes consideration of the state’s conduct and the defendant’s conduct. Osorio, 891
N.W.2d at 628.
Length of delay
“The length of the delay is a triggeri ng mechanism which determines whether
further review is necessary.” Id. (quotations omitted). A delay exceeding 60 days from
the defendant’s demand creates a pres umption that a violation occurred. Taylor, 869
N.W.2d at 19; see also Minn. R. Crim. P. 11.09(b). Smith demanded a speedy trial on
July 3, 2018, and his trial bega n on January 14, 2019. The pa rties agree that the 195-day
delay necessitates review of the remaining factors.
Reason for delay
The second factor focuses on which party is more responsible for the delay—the
defendant or the state. Osorio, 891 N.W.2d at 628. After this court determines which party
is responsible for the delay, it considers the responsible party’s specific reason for causing
the delay. Id. Different reasons carry different weights. Id. For example, the state is
generally responsible for delays caused by the district court. See State v. Cham , 680
N.W.2d 121, 125 (Minn. App. 2004), review denied (Minn. July 20, 2004). Thus, the state
is responsible for an overbur dened judicial system, but it weighs less heavily than a
deliberate attempt to delay trial. State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). But
the state’s prompt requests for DNA-tes ting results and reasonable requests for
continuances to obtain those results may constitute good cause for delay. State v. Stroud,
459 N.W.2d 332, 335 (Minn. App. 1990). A defendant’s motion filings may be attributable

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to him, and weigh against a determination of a speedy-trial violation. See State v. Johnson,
498 N.W.2d 10, 16 (Minn. 1993).
Here, Smith’s trial was set for August 14, 2018. On August 1, the BCA informed
Smith’s attorney that DNA testing may consum e some of the samples. Smith moved to
preclude the consumption, which, the state contends, halted testing. The state moved for a
continuance to complete the DNA testing. At a hearing on August 13, the district court
stated that, because of the cons umption issue, “the source of the delay is not the [s]tate,”
and further stated that Smith’s strategy to question the BCA’s consumption determination
would “take longer.” The district court dete rmined that good caus e existed to continue
Smith’s trial to September 10, “seven days outside of the speedy demand.”
Based on Stroud, the state’s request for a continuance in order to complete DNA
testing constituted good cause for delay. See 459 N.W.2d at 335. An d even if the delay
was attributable to the state, it was a short delay and it was not deliberate; the state desired
the DNA evidence for trial and the district c ourt noted that there was a “huge” backlog at
the BCA. Therefore, the stat e may be more responsible than Smith for this initial delay,
but it was not deliberate, the district court fo und good cause for the continuance, caselaw
supported the continuance, and the delay was short.
After the parties received the DNA-testin g results on September 5, 2018, and the
results were not favorable to Smith, he appeared at his September 10 trial date with a new
attorney who moved to suppre ss the evidence. The district court denied the suppression
motion and Smith’s attorney requested a continuance. The district court continued Smith’s
trial to October 8. This delay is attributable to Smith.

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On October 8, the district court and Smith’s attorney were unavailable. Smith’s trial
was placed on standby until October 10. This two-day delay was equally attributable to
the state and Smith.
On October 10, another district court judge was available for Smith’s trial, but Smith
requested a continuance. The district court continued Smith’s trial to October 29. On
October 29, Smith moved to remove the district court judge. The district court told Smith
that his removal motion would delay his trial. Smith replied: “I don’t care.” At a hearing
on November 13, Smith, appearing pro se, stated that he would not be ready for trial for
two months and the district c ourt continued his trial to Janua ry 14, 2019. Each of these
delays was attributable solely to Smith.
Other than the first delay, every othe r delay was due to Sm ith or was equally
attributable to both parties. Therefore, this factor weighs in favor of the state. See Taylor,
869 N.W.2d at 20 (stating that there is no violation of right to speedy trial when, overall, it
is defendant’s actions causing delay).
Asserted
Smith asserted his right to a speedy trial, and the state does not contest that this
factor weighs in favor of Smith.
Prejudice
Under the fourth factor, this court co nsiders whether the delay resulted in
(1) oppressive pretrial incarceration; (2) heightened, rather than ordinary, levels of anxiety
and concern in the defendant; an d (3) an impaired defense. Barker, 407 U.S. at 532, 92
S. Ct. at 2193. Impairment of defense is the most serious form of prejudice. Doggett v.

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United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992). A defendant may establish
that his defense was impaired by showing th at the delay resulted in him being unable to
raise specific defenses, elicit specific testimony, or produce specific evidence. Id. at 655,
112 S. Ct. at 2692.
Smith claims that he suffered each form of prejudice—he was incarcerated longer
than prescribed by law, hi s anxiety and concern was evid enced in his persistence in
litigating his speedy-trial violations, and his defense was impaired by the DNA results that
were not disclosed until September 5, 2018.
However, the record supports the conclusion that Smith was not prejudiced. First,
although Smith was incarcerated during the delay, he caused much of the delay. Second,
the record does not show that Smith was i nordinately anxious or concerned by the
postponements. In fact, when the district court informed Smith that his motion filing would
cause delay, he responded: “I don’t care.” Finally, Smith had a full jury trial and cross-
examined witnesses, including the victim. There is nothing in the record showing that he
was unable to raise a defense, elicit specific testimony, or produce specific evidence. He
claims that the inculpatory DNA-test results hampered his defense, but that evidence was
provided to Smith on September 5, 2018, and his trial was not held until January 14, 2019.
The greatest part of the delay occurred after Smith had the evidence that he claims impaired
his defense. Based on this record, Smith was not prejudiced, and this factor weighs in favor
of the state.
Because the delay was mainly caused by Smith and he was not prejudiced by the
delay, we conclude that the district court did not deny Smith his right to a speedy trial.

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Pro se brief
In his pro se supplemental brief, Smith rais es three issues: a speedy-trial violation,
illegal consumption of DNA samp les, and failure to arrest on a warrant supported by
probable cause. We summarily dispose of eac h. We have already addressed the speedy-
trial issue. Smith fails to cite authority, present legal argument, or point to anything in the
record to support his DNA-consumption i ssue; thus, this claim is forfeited. See State v.
Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017) (“Arguments are forfe ited if they are
presented in a summary and conc lusory form, do not cite to applicable law, and fail to
analyze the law when claiming th at errors of law occurred.”); State v. Wembley , 712
N.W.2d 783, 795 (Minn. App. 2006) (holding that unsupported assignments of error are
forfeited “unless prejudicial error is obvious on mere inspection”), aff’d, 728 N.W.2d 243
(Minn. 2007). Finally, Smith raises his warrantless-arrest claim for the first time on appeal,
and it is not properly before this court. See Roby v. State , 547 N.W.2d 354, 357 (Minn.
1996) (holding that a party cannot raise a new issue on appeal).
Affirmed.