State of Minnesota,

1
STATE OF MINNESOTA
IN SUPREME COURT
A19-2096

Hennepin County Gildea, C.J.

State of Minnesota,

Respondent,

vs. Filed: July 6, 2022
Office of Appellate Courts
Kevin Lemar Jones,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney , Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Alexander H. De Marco, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
1. The evidence is sufficient to support appellant’s conviction for murder in the
first degree in violation of Minn. Stat. § 609.185(a)(3) (2020).
2. Appellant’s due process rights were not implicated by an allegedly
suggestive eyewitness identification that law enforcement did not arrange.
2
3. Appellant’s right to a speedy trial was not violated.
4. Appellant’s ineffective assistance of trial counsel claims fail.
Affirmed.
O P I N I O N
GILDEA, Chief Justice.
Following a bench trial, appellant Kevin Lemar Jones was convicted of first-degree
felony murder and sentenced to life in prison. Jones filed a direct appeal that we stayed to
allow him to pursue postconviction relief. In his petition for postconviction relief , Jones
challenged the sufficiency of the evidence, argued that a central witness’s identification of
him was irrevocably tainted in violation of his due process rights, and raised claims of
ineffective assistance of trial counsel. Following an evidentiary heari ng at which Jones
and his trial counsel testified, the district court denied the petition. Jones appealed.
We lifted the stay and consolidated Jones’s appeals. In this consolidated appeal,
Jones continues to challenge the sufficiency of the evidence , the propriety of the witness
identification, and the effectiveness of trial counsel. Jones also argues that he was deprived
of his right to a speedy trial. Because we conclude that sufficient evidence supports the
conviction, and that Jones’s constitutional and ineffective assistance of counsel challenges
fail, we affirm.
FACTS
This case arises from the shooting death of Anthony Hill-Prowell. The State proved
that Jones and his friend Antwion Crawford made arrangements to purchase marijuana
from Hill-Prowell on the day of the shooting . Crawford knew Hill -Prowell and had
3
previously purchased marijuana from him . Jones and Crawford met Hill -Prowell at the
home of D.J., Hill-Prowell’s girlfriend. D.J. testified that on the day of the shooting, two
Black men came to her home to meet with Hill -Prowell. D. J. knew one of these men —
Crawford—but she did not know the other man, who she described as taller than Crawford.1
Shortly before the shooting, D.J.’s next-door neighbor saw two Black men in their
20s or 30s walk between his and D.J.’s homes towards the back of the two homes . The
neighbor then heard a woman scream, followed by approximately four gunshots, at which
time his husband called 911. From his back porch, the neighbor saw the two men run out
the back door of D.J.’s home. One was wearing an aqua-colored T-shirt, and the neighbor
saw this man stick a gun in his waistband.
Law enforcement responded to the neighbor’s 911 call. They discovered H ill-
Prowell alive, lying on the kitchen floor with D.J. crouched over him crying. D.J.’s 5-year-
old son was upstairs. When law enforcement asked Hill -Prowell who shot him, he
repeatedly responded, “Antwion.” Paramedics arrived shortly after law enforcement first
responded. Hill-Prowell was taken by ambulance to a hospital where he died.
Law enforcement questioned D.J. at the scene. While D.J. was still inside her house,
she reported that the shooter was the taller of the two men she saw at her house. She also
said that the shooter was wearing a white shirt and black pants. She described the shorter
man as wearing a gray sweat suit and a white shirt.

1 According to their government-issued IDs, Jones is 6 feet tall and Crawford is 5
feet, 9 inches tall.
4
D.J. then gave a longer statement outside in a squad car. She said that she was
upstairs when she heard the first gunshot, at which point she rushed downstairs and saw
Hill-Prowell and two men fighting in her kitchen and living room. She reported, among
other things, that she saw one gun and one shooter. She again described the shooter as the
taller of the two men and said that he was wearing a white shirt and black pants. She also
said that after both men left through the back door, the shorter man returned through the
front door and demanded his car keys.
Later that evening, D.J. met with detectives at the police station. She identified
Crawford as the “short one, lighter tone, caramel complexion, goatee fluffy, stocky, 5-feet
to 5-7 inches, gray jogging suit, first came in wearing a hat.” She described the shooter as
the “[t]aller guy, dark complexion with a fade, sinister eyes like, don’t f*** with me, light
black – white shirt, black pants, 5-foot 9-inches, taller than . . . Antwion. . . . 20 to 30 years
old, possible goatee, deep voice.” The detectives showed D.J. a still image from a
neighbor’s surveillance camera that showed both men but did not show their faces. The
detectives showed D.J. this photo to confirm that there was not a third individual involved
in the incident because the taller man was not wearing a white shirt and black pants like
D.J. had earlier indicated. D.J. confirmed that the taller man in the aqua shirt was the one
who shot Hill-Prowell, but she said that he must have changed his clothes. D.J. circled the
shorter man dressed in gray and wrote “Antwan.” She said that she did not circle the taller
man with the aqua shirt because she did not know his name.
After meeting with the detectives, D.J. reached out to a friend of Cra wford’s and
was able to access Crawford’s Facebook page. She found a photo of Crawford and Jones
5
on Facebook. She recognized Jones as the shooter and forwarded the photo to detectives
at approximately 4 a.m. The detectives prepared a photo lineup contai ning a 2-year-old
photo of Jones and showed it to D.J. shortly after receiving the Facebook photo. D.J. was
unable to pick Jones out of the photo lineup.
During their investigation at the crime scene, law enforcement noticed an
unoccupied red Ford Fusion that was locked but left running across the street from D.J.’s
house. They ran a check on the vehicle and discovered that Crawford’s fiancée owned the
vehicle and that she had reported the vehicle stolen. A search of the car revealed a
backpack containing various items belonging to Jones including his cell phone, Nebraska
driver’s license and other photo identification, prescription pill bottles with his name, and
marijuana.
At D.J.’s home, law enforcement also found a backpack in the kitchen with
marijuana and cash inside. Four spent 9mm shell casings were recovered, two from the
kitchen and two from the living room. A ballistics expert later determined that the casings
were fired from the same gun. A bloody baseball cap was found on the back porch , and a
Ford car key was found in the house next to the stove. Forensic scientists discovered a
fingerprint that matched Crawford on the handle of the front door.
Law enforcement also found that o ne of D.J.’s other neighbors had a surveillance
system with cameras pointing at the street in front of D.J.’s house. The cameras captured
the red Ford Fusion pulling up and showed two Black men leave the vehicle and cross the
street towards D.J.’s house. One of the men was wearing a gray sweat suit and one was
wearing an aqua-colored T-shirt and distinctive blue basketball shoes. Four gunshots can
6
be heard in the surveillance video ; the two men then run back toward their car while the
one in the aqua shirt holds the right side of hi s pants. The men are not able to get in the
car and, as the man in the gray sweat suit runs back towards D.J.’s house, the man in the
aqua shirt says, “Hurry up! Go get the keys!”
Because of Jones’s Nebraska driver’s license, Minneapolis Police contacte d the
Omaha Police Department and informed them that two homicide suspects may be in the
area. Omaha police apprehended Crawford and Jones in a white Jeep. When police
searched the Jeep, they discovered two pairs of basketball shoes stuffed in trash bags that
matched the shoes that the men on the surveillance footage are seen wearing. Omaha police
then searched Jones’s home and discovered a holster in the master bedroom and a 50-round
box of 9mm ammunition containing only 37 rounds in a different bedroom closet. The
manufacturer’s stamping on the ammunition found in Jones’s closet was identical to the
stamp on the shell casings that police found at the crime scene.
In August 2017, the State charged Jones and Crawford in connection with Hill -
Prowell’s death. 2 Jones’s trial was initially scheduled for August 13, 2018, but the trial
was rescheduled several times. Jones never made a demand for a speedy trial under
Rule 11.09(b). See Minn. R. Crim. P. 11.09(b) (“A defendant must be tried as soon as
possible after entry of a plea other than guilty. On demand of any party after entry of such
plea, the trial must start within 60 days . . . .”).

2 Crawford was indicted for first-degree murder but pleaded guilty to second -degree
intentional murder under an aiding -and-abetting theory of criminal liability in exchange
for providing truthful testimony at Jones’s trial.
7
At a hearing held on July 26, 2018, Jones agreed to strike the initial trial date and
reschedule to a later date because, as defense counsel explained and Jones personally
confirmed, Jones did not wish to go to trial without all possible DNA evidence. Jones
thought that DNA results could contain exonerating evidence that would help his defense.
A possible mid-October trial was discussed if the Minnesota Bureau of Criminal
Apprehension (BCA) could complete the testing by that time.
The mid -October trial date did not materialize , and the district court ultimately
issued a scheduling order on November 30, 2018, setting trial for February 4, 2019. On
January 28, 2019, Jones affirmatively waived his right to a speedy trial until April 15, 2019,
and the court set that as the trial date. Before choosing that date, the court confirmed that
Jones desired complete DNA results and noted that the BCA had failed to test under Hill -
Prowell’s fingernails for DNA . At a hearing held on May 13, 2019, however, the court
noted that trial was scheduled for July 8, 2019. There was no explanation given for why
the trial was rescheduled.
Jones’s trial began on July 10, 2019. Jones executed a written waiver of his right to
a jury trial under Minn. R. Crim. P. 26.01, subd. 1(2)(a). Trial counsel questioned Jones
about his decision to waive his jury trial right, confirming that this was Jones’s decision,
that Jones had always wanted a bench trial, and that they had discussed the advantages and
disadvantages of the decision. The district court also questioned Jones about his decision
to forego a jury trial. The court accepted Jones’s waiver, and the case proceeded as a bench
trial.
8
D.J. and Crawford were the principal witnesses against Jones at trial. D.J. testified
that Hill-Prowell had come over to her house the afternoon of the shooting and that they
planned to have a serious discussion regarding their relationship. But Hill-Prowell received
a phone call and told the person with whom he was speaking to com e around to the back
door. D.J. explained that she had met Crawford before and that Crawford came to her
house with another man introduced as Crawford’s “homeboy” who was taller, stockier, and
had a darker complexion. D.J. said that she had not met this man before, but she later
identified him as Jones. The men entered the house through the back door. At this point,
D.J. went upstairs to be with her son. She then heard a gunshot and ran downstairs.
She saw Crawford and Jones “jumping” Hill -Prowell in the kitchen. She testified
that Jones hit Hill-Prowell in the head with the butt of a gun. D.J. tried to run back upstairs,
but Crawford followed her and brought her back down. Crawford and Jones then started
demanding that she give them Hill -Prowell’s backpack, their cell phones, marijuana, and
money. During this time, Jones pointed the gun at her face and threatened to shoot her if
she did not stop screaming. She found Hill-Prowell’s backpack and threw it, at which point
Hill-Prowell and Jones fough t over the backpack. D.J. testified that she heard multiple
shots and that the “ [s]ame person was shooting the entire time.” 3 She witnessed Jones
shoot Hill-Prowell in the kitchen and toss him like “a rag doll.” This was the last shot.
After the last shot, “something seemed more wrong with” Hill-Prowell, and he tried to roll
over and scoot to the refrigerator. She testified that only she, Hill -Prowell, Crawford,

3 D.J. testified that she was upstairs when she heard the first shot and therefore could
not have seen who fired that initial round.
9
Jones, and her son were in the home. She never saw Crawford with a gun. She identified
Jones in the courtroom as the man who shot Hill-Prowell.
Crawford also testified for the State. He explained that he and Jones were friends,
that Jones lived in Omaha, Nebraska, and that Jones would visit Minnesota from time to
time. On the day of Hill-Prowell’s death, Jones was in Minnesota, having driven up from
Omaha in a white Jeep rental car. Jones spent the day with Crawford at Crawford’s house
and then at Jones’s friend G.B.’s house. While at G.B.’s house, Crawford informed Jones
of his plan to rob Hill-Prowell. Jones had never met Hill-Prowell, but Crawford knew that
Hill-Prowell regularly had “a large amount of weed on him, sometimes cash,” and probably
would not call the police. They agreed to rob Hill -Prowell at gunpoint. Jones h ad a gun
and Crawford did not. No one else was involved in the plan.
Jones and Crawford explained t o G.B. and to Crawford’s fiancée, who were at
G.B.’s house at the time, that they were going to get some weed and would meet them later.
The men drove the red Ford Fusion owned by Crawford’s fiancée to D.J.’s house. When
they arrived at D.J.’s house, Hill-Prowell told them over the phone to come in through the
back door. When Crawford gave Jones “the look,” Jones pulled the gun on Hill -Prowell,
and Jones and Crawford demanded “the cash and the weed.” At this point, Crawford
testified that he ran upstairs to get D.J. because he did not want her calling the police.
While upstairs, Crawford heard what he assumed was a warning shot. Hill-Prowell did not
seem injured when Crawford got back downstairs with D.J., and then Crawford started
fighting with Hill-Prowell over a backpack.
10
During this fight, Hill-Prowell attempted to escape out the back door, but Crawford
pulled him back inside . Jones struck Hill-Prowell in the head with the butt of the gun.
While Crawford wrestled with Hill-Prowell in the kitchen, there were at least three or four
shots and at least one sounded close to Crawford’s head.
After the final shot, Crawford testified that he a nd Jones ran out the front door but
when they got to the red Ford Fusion, they discovered that they had lost the keys. Crawford
ran back in to D.J.’s house through the front door to try and find his car keys. He took
D.J.’s phone while she was trying to assist Hill-Prowell. Crawford and Jones then started
running on foot and ultimately split up. Crawford called his fiancée and told her to pick
him up and report the red Ford Fusion stolen. She picked up Crawford in Jones’s white
Jeep rental car , and then they picked up Jones. They disposed of the gun in a dumpster
outside G.B.’s home.
Crawford testified that the next morning, Crawford and Jones drove the white Jeep
rental car back to Omaha. Crawford threw his cell phone out of the window on the drive.
They first went to Jones’s house. Then both went to a store and purchased prepaid phones.
Later that night, Jones and Crawford were arrested while driving the white Jeep in Omaha.
At trial, the State also offered DNA evidence recovered from the scene. DNA from
the band of a baseball hat found on D.J.’s back porch matched Crawford, while the blood
on the hat was Hill-Prowell’s. DNA from underneath Hill -Prowell’s fingernails matched
Crawford but did not match Jones. Jones was affirmatively excluded from all of the major
profiles recovered from Hill -Prowell’s fingernails, but many minor types contained
insufficient information to compare.
11
Jones waived his right to testify and did not call any witnesses in defense. His theory
at trial, which he pursued on cross-examination of the State’s witnesses and in his written
closing argument, was that he was not the shooter. Jones contended that either Crawford
or an unidentified third person was the shooter.
Following the bench trial, the district court convicted Jones of first -degree murder
while committing or attempting to commit aggravated robbery . Among other things, the
district court found that “Crawford and [D.J.] both credibly testified [Jones] was the
shooter.” The court sentenced Jones to life in prison.
Jones filed a direct appeal. We stayed that direct appeal to allow Jones the
opportunity to pursue postconviction relief.
Jones then filed a petition for postconviction relief. In his petition, Jones challenged
the sufficiency of the evidence, argued that the identification process for D.J.’s
identification of him was irrevocably tainted, and alleged that his trial counsel was
ineffective for pressuring him to waive his right to a speedy trial and his right to a jury trial.
Jones also argued that trial counsel was ineffective for failing to contact potential defense
witnesses, raise sufficient evidentiary objections , and cross-examine the State’s ballistic
expert.
Following an evidentiary hearing at which Jones and his trial counsel testified, the
district court denied Jones’s petition for postconviction relief. The district court rejected
the sufficiency of the evidence argument, concluding that Jones’s “claim that he was not
the shooter flies in the face of the evidence” and that the evidence presented against Jones
was “overwhelming.” The court concluded that Jones’s due process rights were not
12
violated by D.J.’s identification of Jones as the shooter because the identification was not
procured by law enforcement. The court rejected Jones’s ineffective assistance of counsel
arguments, first concluding that there was no speedy trial violation because Jones requested
continuances to obtain beneficial evid ence and never asserted his right to a speedy trial,
and then finding that trial counsel did not pressure Jones to waive his right to a jury trial.
The district court rejected Jones’s remaining ineffective counsel arguments as matters of
“trial strategy which should not be reviewed by the court.”
We then lifted the stay and consolidated Jones’s appeals.
ANALYSIS
Jones raises four arguments in this consolidated appeal. First, Jones argues that
there is insufficient evidence to support his conviction. Second, he contends that D.J.’s
identification of him as the shooter violated his due process rights because it was
“irrevocably tainted.” Third, Jones asserts a deprivation of his constitutional right to a
speedy trial. Fourth, he argues that his trial counsel was ineffective. We address each
argument in turn.
I.
We first address Jones’s argument that there was insufficient evidence to convict
him of murder in the first degree while committing a felony, a violation of Minn. Stat.
§ 609.185(a)(3) (2020). Jones argues that the State failed to present sufficient evidence on
the element of identity. Jones defines the issue as “whether Mr. Jones was, in fact the
shooter” and raises the possibility of an unidentified third -party shooter. Jones concedes
that Hill-Prowell was “the victim of homicide and that the cause of death was a gunshot
13
wound.” Jones also acknowledges that Crawford and Jones plotted to rob Hill -Prowell at
gunpoint and that “[t]here is no question about the location it happened and the date it
happened.”
In determining whether the evidence is sufficient in a case like this one, whi ch is
based on direct evidence, we “view the evidence in a light most favorable to the verdict
and assume the fact-finder disbelieved any testimony conflicting with that verdict.” State
v. Balandin , 944 N.W.2d 204, 217 (Minn. 2020) (quoting State v. Chomn arith,
654 N.W.2d 660, 664 (Minn. 2003)) ; see also State v. Horst , 880 N.W.2d 24, 40 (Minn.
2016) (explaining that when the State presents direct evidence on each element of the
offense, “we limit our review to a painstaking analysis of the record to deter mine whether
the evidence, when viewed in a light most favorable to the conviction, was sufficient to
permit the jurors to reach the verdict which they did” (citation omitted) (internal quotation
marks omitted)). Our standard of review does not change when evaluating the sufficiency
of the evidence in a bench trial rather than a jury trial. State v. Palmer, 803 N.W.2d 727,
733 (Minn. 2011).
The State presented direct evidence in this case that Jones was the shooter. See
Bernhardt v. State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (defining “direct evidence” as
“[e]vidence that is based on personal knowledge or observation and that, if true, proves a
fact without inference or presumption” (alteration in original) (quoting Direct Evidence,
Black’s Law Dictionary (8th ed. 2004)) ). D.J. testified that she saw Jones shoot Hill -
Prowell and that no one else fired any shots. Specifically, D.J. testified that “[Hill-Prowell]
and [Jones] both started fighting over the backpack” and then “[Jones] shot [Hill-Prowell]
14
and threw him in front of me, like, he was a rag doll.” Then, after clarifying that “all of us
were in the kitchen, all four of us” (referring to Hill-Prowell, Crawford, Jones, and herself),
she reiterated that “[h]e shot him and he threw him.” D.J. was clear that the “[s]ame person
was shooting the entire time.” The district court found that D.J. “credibly testified [Jones]
was the shooter.” Because Jones does not dispute that Hill -Prowell died from a gunshot
wound, D.J.’s testimony alone is sufficient direct evidence to establish that Jones caused
Hill-Prowell’s death. See State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981) (holding that
testimony from one eyewitness may be sufficient to sustain a conviction); Balandin,
944 N.W.2d at 21 7 (noting that our standard of review requires us to “assume the fact-
finder disbelieved any testimony conflicting with [its] verdict” (citation omitted) (internal
quotation marks omitted)).
Although we need go no further to hold that there is sufficient evidence to support
the conviction, the district court also found that Crawford, Jones’s accomplice, credibly
testified that Jones shot Hill -Prowell. And the State offered additional evidence that
supported the district court’s conclusion that Jones was the shooter. Surveillance footage
shows the men that D.J. identified as Crawford and Jones exiting the Ford Fusion and
walking towards D.J.’s home. Four shots are heard in the surveillance fo otage, and then
Jones is seen running with his hand near his waistband and his pants sagging consistent
with carrying a gun. D.J.’s neighbor testified that two men ran out of D.J.’s house after he
heard gunshots and that the man in the aqua-colored shirt, later identified as Jones, stuck a
15
gun in his waistband. Finally, a box of ammunition of the same brand and caliber used to
kill Hill-Prowell was found in Jones’s home with 13 rounds missing from the box.4
Based on our review of the record, we hold tha t the evidence is sufficient to
conclude, as the district court did, that Jones committed first -degree murder while
committing a felony ( specifically, aggravated robbery) in violation of Minn. Stat.
§ 609.185(a)(3).
II.
We next address Jones’s arguments related to D.J.’s identification testimony. Jones
first argues that D.J.’s independent search of Crawford’s Facebook photos violated his due
process rights because it “irrevocably tainted” her identification of Jones as the shooter.
Where, as here, “the facts are not in dispute and the trial court's decision is a question of
law,” we “independently review the facts and determine, as a matter of law, whether the
evidence need be suppressed.” State v. Taylor , 594 N.W.2d 158, 161 (Minn. 1999)
(citation omitted) (internal quotation marks omitted).

4 Jones makes several arguments that fail to view the evidence in the light most
favorable to the verdict or fail to defer to the district court’s credibility determinations.
Specifically, he challenges D.J. ’s and Crawford ’s credibility , points to Hill -Prowell’s
statement to police that Crawford was the shooter, identifies inconsistencies between D.J.’s
and Crawford’s testimony, and notes the absence of DNA evidence tying Jones to the
scene. Because these arguments are inconsistent with our standard of revi ew, they are
unavailing. See Balandin , 944 N.W.2d at 217 (explaining that our standard of review
requires us to “assume the fact -finder disbelieved any testimony conflicting with [its]
verdict”); State v. Ostrem , 535 N.W.2d 916, 924 (Minn. 1995) (explaini ng that we view
“the evidence in the light most favorable to the state,” when concluding sufficient evidence
supported a conviction, despite the presence of conflicting evidence); State v. Bliss ,
457 N.W.2d 385, 391 (Minn. 1990) (“Defendant’s attempt to retry his case by asking us to
reevaluate [a witness]’s credibility is contrary to our role.”).
16
The law is well-established that an “eyewitness identification . . . only implicates a
defendant’s due process rights when the identification of the defendant by the witness was
arranged by law enforcement.” State v. Mosley, 853 N.W.2d 789, 796 (Minn. 2014) (citing
Perry v. New Hampshire , 565 U.S. 228, 248 (2012) ). Because nothing in the record
suggests that law enforcement arranged D.J.’s search of Crawford’s Facebook photos,
Jones’s due process rights are not implicated here, and we reject Jones’s challenge to D.J.’s
identification.5
Jones also argues that the district court erred when it failed to question the
admissibility of D.J.’s identification testimony sua sponte. When a criminal defendant
challenges a witness’s identification, district courts must conduct a pretrial omnibus
hearing or midtrial hearing to resolve the challenge. Coralin v. State, 377 N.W.2d 14, 18–
19 (Minn. 1985). But we have never held that a dist rict court must sua sponte determine

5 Jones relie s heavily on the Report of the Minnesota Supreme Court Rules of
Evidence Advisory Committee , ADM10 -8047 (Oct . 1, 2018) (“Advisory Committee
Report”), to support his due process arguments. His reliance on the Advisory Committee
Report is misplaced because although the Committee made many evidentiary-related
recommendations concerning eyewitness testimony, it did n ot address —nor was it
empowered to address—expanding constitutional due process protections to identifications
that were not arranged by law enforcement.
Jones also suggests that when law enforcement showed D.J. a surveillance still of
Crawford and Jones that did not show their faces, law enforcement may have “irrevocably
tainted” D.J.’s identification by undermining her confidence in her prior descriptions of the
shooter’s attire. We cannot see how an image that did not show Jones’s face could have
unfairly singled him out for identification, and we therefore reject this argument. See State
v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (explaining that , where identifications are
arranged by law enforcement, we apply a two -part test to determine wheth er the
identification violates a defendant’s due process rights. The first step of that test asks,
“whether the procedure was unnecessarily suggestive,” which “turns on whether the
defendant was unfairly singled out for identification”).
17
whether witness identification procedures complied with due process when, like here, no
challenge to the identification was raised before the district court. Nor does the
Constitution compel such a rule. See Watkins v . Sowders , 449 U.S. 341, 349 (1981)
(explaining that “[a] judicial determination outside the presence of the jury of the
admissibility of identification evidence may often be advisable” but that “it does not follow
that the Constitution requires a per se rule compelling such a procedure”). Jones has failed
to articulate any compelling reason for us to adopt a rule requiring district courts to analyze
whether eyewitness identifications comport with due process when no party challenges the
identification, and we decline to adopt such a rule in this case.6
III.
We next turn to Jones’s argument that his right to a speedy trial was violated. A
criminal defendant’s right to a speedy trial is protected by both the federal and Minnesota
Constitutions. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial . . . .”); Minn. Const. art . I, § 6 (same). The right is a
“safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety
and concern accompanying public accusation and to limit the possibilities that long delay
will impair the ability of an accused to defend himself.” State v. Mikell, 960 N.W.2d 230,

6 The only authority that Jones cites for his argument that district courts should sua
sponte determine the admissibility of witness identifications is the Advisory Committee
Report. Jones’s reliance on the report is misplaced. Although the report recommends that
“[c]ourts should continue to assess both the suggestiveness and reliability of an
identification . . . at the omnibus hearing under Minn. R. Crim. P. 11.02,” it does not
recommend that district courts engage in the witness identification due process analysis on
their own initiative. Advisory Committee Report at 16.
18
244 (Minn. 2021) (quoting United States v. Ewell , 383 U.S. 116, 120 (1966)). When a
defendant’s speedy trial right is violated, “the only possible remedy” is dismissal of the
indictment. Barker v. Wingo , 407 U.S. 514, 522 (1972). Whether the right to a speedy
trial is violated “is a constitutional question subject to de novo review.” State v. Osorio,
891 N.W.2d 620, 627 (Minn. 2017).
To determine whether a defendant’s right to a speedy trial has been infr inged, we
engage in a “difficult and sensitive balancing process” that considers four nonexclusive
factors. Mikell, 960 N.W.2d at 245 (quoting Barker, 407 U.S. at 533) . Specifically, we
balance the length of the delay, the reason for the delay, whether the defendant asserted his
right to a speedy trial, and whether the delay prejudiced the defendant “to answer the
essential question of whether the State brought the accused to trial quickly enough to avoid
endangering the values that the right to a speedy trial protects.” Id. No factor is “either a
necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered together with such other
circumstances as may be relevant.” Barker, 407 U.S. at 533.
A.
The first factor—the length of delay between the defendant’s charging and trial —
weighs towards a speedy trial violation in this case. The length of delay is measured “from
the point at which the sixth amendment right attaches.” State v. Jones, 392 N.W.2d 224,
235 (Minn. 1986). The length of delay is also “significant because ‘the presumption that
pretrial delay has prejudiced the accused intensifies over time. ’ ” Mikell, 960 N.W.2d at
246 (quoting Doggett v. United States, 505 U.S. 647, 652 (1992)).
19
Here, the delay between when Jones was charged in August 2017 and when his trial
was held in July 2019 was approximately 23 months. The State concedes that this delay
was presumptively prejudicial, triggering our continued review . See State v. Corarito ,
268 N.W.2d 79, 80 (Minn. 1978) (holding that a delay of 6 months is presumptively
prejudicial). And where, as here, the delay extend s far beyond the point that the delay
became presumptively prejudicial, we are less likely to find the delay justified by the other
factors and more likely to find a speedy trial violation. Mikell, 960 N.W.2d at 250.
B.
In weighing the second factor —the reason for the delay —“the key question is
whether th e government or the criminal defendant is more to blame for th [e] delay.”
Osorio, 891 N.W.2d at 628 (alteration in original) (citation omitted) (internal quotat ion
marks omitted). When the delay “is the result of the defendant’s actions, there is no speedy
trial violation.” Mikell, 960 N.W.2d at 251 ( citation omitted) (internal quotation marks
omitted). Delays caused by defense counsel, whether appointed or privately retained, are
attributable to the defendant. Vermont v. Brillon, 556 U.S. 81, 90–91 (2009). But when
the State “is responsible for the delay , we must also assess the reasons offered to justify
the delay.” Mikell, 960 N.W.2d at 251. Deliberate efforts “to delay the trial in order to
hamper the defense [are] weighted heavily again st the government.” Id. (quoting Barker,
407 U.S. at 531). State negligence and overcrowded courts are “weighted less heavily” but
are still considered against the State. Barker, 407 U.S. at 531. Finally, a delay will not be
held against the State when there is good cause for the delay. Mikell, 960 N.W.2d at 251.
20
The delay here appears to be attributable to both the defense and to the State. Both
the defense and the State wanted DNA results before trial. The State initially requested a
delay in the trial date for the DNA analysis. Jones agreed to the requested continuance in
the trial date because he also wanted the results of the testing of DNA taken from the crime
scene. See State v. Windish , 590 N.W.2d 311, 318 (Minn. 1999) (explaining that
continuances are considered under the reasons for the delay ). Jones himself requested a
later continuance, again so that the DNA results would be available. And he also
affirmatively waived his speed y trial right on the record for the delay from January 2019
through April 15, 2019. See id. at 317 n.2 (recognizing that waiver of a defendant’s speedy
trial right requires “on-the-record intentional relinquishment of the right”).
Regarding the State, no evidence suggests that the delay was a deliberate effort by
the State to hamper the defense. But the DNA analysis was being done at the BCA , and
the BCA, an arm of the State, was responsible for completing that testing. Uncontradicted
testimony at the postc onviction hearing established that Jones “had to keep requesting”
testing because “the lab was not coordinating well with the prosecutors” and that these
requests had to go “through the prosecutor.” Further, the BCA represented to the parties
that testing would be complete by January 11, 2019, but then failed to test DNA from under
Hill-Prowell’s fingernails. Because the State has “the primary burden” to bring cases to
trial, Mikell, 960 N.W.2d at 244 (quoting Barker, 4 07 U.S. at 529), we hold the delay
against the State but weigh it less heavily in our analysis. See Barker, 407 U.S. at 531.
21
C.
The third factor—whether the defendant asserted his right to a speedy trial—weighs
against a speedy trial violation in this case. Here, Jones never asserted his speedy trial right
before or during trial, and he personally agreed to continuances. See Barker, 407 U.S. at
532 (explaining “that failure to assert the right will make it difficult for a defendant to prove
that he was denied a speedy trial”).
At the July 26, 2018 hearing addressing the State’s motion for a buccal swab and
new trial date, Jones personally confirmed that he did not want to proceed to trial before
obtaining the potentially exonerating DNA evidence that the State was requesting. He
agreed to strike the trial date and reschedule trial at a later date. At the next hearing, held
on January 28, 2019, Jones requested the continuance and affirmatively waived his speedy
trial right.
The only indication that Jones may have wished to assert his speedy trial right came
at the postconviction hearing. At the postconviction evidentiary hearing, Jones’s trial
council testified that he received a letter from Jones dated July 17, 2018, in which Jones
asked him to make a speedy trial demand. Nevertheless, counsel testified that after he
received the letter, they discussed the issue and Jones agreed that the best course of action
was to not demand a speedy trial. Jones confirmed during the hearing that, after his counsel
explained the reasons for the needed continuance (i.e. , the desire for DNA results), he
“agreed with him.”
For these reasons, we hold that the third factor weighs against a speedy trial
violation. See State v. DeRosier, 695 N.W.2d 97, 109 (Minn. 2005) (concluding that where
22
delay “was occasioned by defense motions” and the defendant “never moved for a speedy
trial,” the defendant’s speedy trial right was not violated).
D.
The fourth factor —whether the delay prejudiced the defendant —also weighs
against finding a deprivation of Jones’s speedy trial right. We consider three interests when
analyzing prejudice: “(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.” Windish, 590 N.W.2d at 318. Prejudice due to the impairment of the defense
“is the most serious. ” Id. But “[a] defendant does not have to affirmatively prove
prejudice; rather, prejudice may be suggested by likely harm to a defendant’s case.” Id.
Here, the record fails to establish a likely harm to Jones’s case. Jones argues that
his trial counsel’s failure to follow up with potential witnesses establishes prejudice, but
this alleged failure was not a result of delay in bringing the case to trial. Moreover, the
delay actually gave Jones more time to contact these witnesses, not less.
Next, Jones argues that Crawford’s decision to take a plea deal in exchange for
testimony against Jones establishes prejudice due to the delay. But Crawford entered his
plea before Jones’s original trial date. And it is purely speculative that Crawford would
not have accepted a plea deal had Jones’s trial been held sooner.
Finally in terms of our prejudice analysis , the delay allowed Jones to obtain
complete DNA testing , which was of some benefit to his defense. On this record, Jones
has not established that he was prejudiced by the delay in his trial.
23
E.
We now balance the four factors to determine whether the State violated Jones’s
right to a speedy trial. The approximately 23-month period between the initial charge and
the start of trial is presumptively prejudicial. The bulk of the delay extending beyond the
point at which the delay became presumptively prejudicial (6 months after charges were
filed against him) is attributable to the BCA and therefore the State and weighs somewhat
against the State. But Jones failed to assert his right to a speedy trial after discussing the
issue with counsel because he believed that the DNA evidence would be beneficial to his
case, which weighs heavily against Jones’s challenge. Further, Jones ’s prejudice
arguments lack merit.
Based on our balancing of the four factors, we hold that Jones’s right to a speedy
trial was not violated.
IV.
We last address Jones’s argument that his trial counsel was ineffective for (1) failing
to challenge D.J.’s identification, (2) failing to demand a speedy trial contrary to Jones’s
expressed wishes, (3) allegedly pressuring him to waive his right to a jury trial, (4) failing
to contact potential witnesses or retain an expert, (5) failing to raise sufficient evidentiary
objections at trial, and (6) failing to cross-examine the State’s ballistics expert.7

7 Jones also makes a generalized allegation that his trial counsel “was inexperienced
and ill -prepared” and “not familiar with basic courtroom procedure.” We reject these
arguments without analysis because we do not entertain “ineffective assistance claims
when based solely on conclusory, argumentative assertions without factual support.” Crow
v. State , 923 N.W.2d 2, 15 (Minn. 2019) (citation omitted) (internal quotation marks
omitted).
24
Both “[t]he United States and Minnesota Constitution s guarantee a criminal
defendant the right to effective assistance of counsel.” Crow v. State , 923 N.W.2d 2, 14
(Minn. 2019); see U.S. Const. amend. VI; Minn. Const. art. I, § 6. Whether counsel was
constitutionally ineffective is a mixed question of law and fact that w e review de novo.
State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
We use the Strickland test to resolve ineffective assistance of counsel claims . See
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (adopting the two-part test described in
Strickland v. Washington, 466 U.S. 668 (1984)). Strickland requires a criminal defendant
to “show both that (1) his trial counsel’s representation fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but f or the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Crow,
923 N.W.2d at 14. For purposes of the first prong, “[t]he objective standard of
reasonableness is defined as representation by an attorney exercising t he customary skills
and diligence that a reasonably competent attorney would perform under similar
circumstances.” Id. (citation omitted) ( internal quotation marks omitted). We apply “a
strong presumption that counsel’s performance was reasonable,” and we do not generally
“review matters of trial strategy or the particular tactics used by counsel.” State v.
Hokanson, 821 N.W.2d 340, 358 (Minn. 2012) . We may address and dispose of an
ineffective assistance of counsel claim on either pro ng without analyzing the other. See
State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland, 466 U.S. at 697).
Jones’s argument that his trial counsel was ineffective for not challenging D.J.’s
identification fails. During cross -examination, defense counsel did challenge D.J.’s
25
identification, noting that her repeated description of the shooter ’s clothes did not match
the surveillance footage and her failure to pick Jones out of a photo lineup . Jones has not
demonstrated that counsel was objectively unreasonable for not making additional
challenges.
Jones’s argument that his counsel was ineffective for failing to assert Jones’s speedy
trial rights fails for the same reason. As counsel explained during the postconviction
hearing, he and Jones agreed that waiting for the DNA results would be beneficial for the
defense. We cannot say that counsel’s failure to assert a right that his client agreed should
not be asserted is objectively unreasonable.
Jones next argues that his trial counsel was ineffective by pressuring him to waive
his right to a jury trial by telling him that a bench trial would allow him to “go home.” But
the postconviction court found, based on trial counsel’s testimony , that trial counsel did
not pressure Jones to waive his jury trial right. This finding is not clearly erroneous, see
Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015) (stating that the postconviction court’s
credibility determinations are reviewed under the clearly erroneous standard ), as it is
supported by Jones’s own written waiver of his jury trial rights and Jones’s responses to
questioning by the court and trial counsel confirming that his decision was made knowingly
and independently.
The State argues that Jones’s next three arguments —that Jones’s trial counsel was
ineffective for failing to retain an expert and contact four witnesses, including G.B.; failing
to raise sufficient evidentiary objections at trial ; and failing to cross -examine the State’s
ballistics expert—are all unreviewable matters of trial strategy. See State v. Mos ley,
26
895 N.W.2d 585, 592 (Minn. 2017) (“Generally , [d]ecisions about objections at trial are
matters of trial strategy, which we will not review.” (alteration in original) (citation
omitted) (internal quotation marks omitted)); State v. Lahue , 585 N.W.2d 785, 789 –90
(Minn. 1998) (holding that the failure to locate witnesses and determining what information
to present to the factfinder are matters of trial strategy). Even if these decisions were
reviewable, Jones failed to establish prejudice. Jones does not explain what an expert may
have testified about, or identify which specific pieces of evidence that trial counsel should
have objected to, or how cross-examination of the State’s ballistics expert may have
impacted the outcome of the trial .8 Although Jones argues that G .B. may have been able
to testify as to “the timeline” and “the use of vehicles,” it is unclear how this hypothetical
testimony could overcome the “overwhelming” evidence in this case. Without providing
this information, Jones cannot establish a reasonable probability that the result of his trial
would have been different.
Based on our analysis, we hold that Jones’s claims of ineffective assistance of
counsel fail.
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.

8 Jones argues that trial coun sel should have cross -examined the State’s ballistics
expert about whether the partly empty box of 9mm ammunition found in his Nebraska
residence was the same type used in the shooting. But this evidence was not introduced or
discussed until after the State ’s expert testified. Accordingly, the State’s expert did not
reference the ammunition discovered in Nebraska and focused only on the bullets and shell
casings recovered from the crime scene.