This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Bernard Clark,

Filed January 25, 2000
Affirmed in part and remanded
Short, Judge

Hennepin County District Court
File No. 98005664

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


Considered and decided by Randall, Presiding Judge, Short, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Bernard Clark was convicted of first-degree assault and first-degree robbery, but acquitted of second-degree felony murder. On appeal, Clark argues:  (1) he was denied his constitutional right to a speedy trial; (2) the trial court committed reversible error in allowing a witness to testify; (3) the jury’s verdicts are inconsistent; (4) the evidence is insufficient to support the conviction; and (5) he is entitled to a new trial because of the trial court’s ex parte communications with the jury. Although we find no error on the other issues, we remand for a determination on whether ex parte communications occurred.



Both the federal and state constitutions guarantee a defendant the right to a speedy trial. U.S. Const. amends. VI and XIV; Minn. Const. amend. VI. To determine whether a particular defendant’s right to a speedy trial has been violated, we balance the length of the delay, the reason for the delay, the defendant’s assertion of the right, and any prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972); State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989). In Minnesota, a defendant must be tried within 60 days of demanding a trial unless good cause is shown for the delay. Minn. R. Crim. P. 11.10.

Clark made his speedy trial demand on March 5, 1998. On September 15, 1998, the trial began. Clark argues his conviction should be reversed because he was denied a speedy trial. We disagree. The record demonstrates: (1) Clark agreed to a trial date of May 11, which was beyond the 60-day period; (2) the state requested a continuance because DNA testing was not completed, and would not be available until mid-June; (3) the parties appeared for trial on June 17, but scheduling conflicts required the trial court to set a July 27 trial date; (4) Clark’s counsel requested a continuance until September 8 so he could review the BCA report; and (5) the case was scheduled for trial on September 14 because the trial judge had a conflict on September 8. Considering the Barker factors in light of these facts, Clark’s constitutional right to a speedy trial was not violated. See State v. Jones, 392 N.W.2d 224, 234-36 (Minn. 1986) (holding, given Barker factors, no violation of right to speedy trial despite a seven-month delay); State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990) (holding need for DNA testing constituted good cause).


Clark also argues the trial court violated his right to due process by allowing a witness, who also was charged in the victim’s death, to testify against him at trial. Rulings on evidentiary matters rest within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991).

The record shows:  (1) the prosecution offered the witness favorable sentencing in exchange for a guilty plea, her admission to her own involvement, and her agreement to testify truthfully about the incident; (2) the plea agreement did not condition the sentence upon successful prosecution of Clark; and (3) the prosecutor did not know, in advance of her testimony, what the witness would say. Under these circumstances, Clark’s argument that the plea bargain constituted bribery or was an inducement to perjury is without merit.


Verdicts are legally inconsistent only if a necessary element of each offense is subject to conflicting findings. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We review questions of law de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

Clark argues it is legally inconsistent for the jury to find him guilty of first-degree assault and not guilty of second-degree murder. But a verdict of acquittal is not legally inconsistent with a verdict of guilty on another count. See State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) (noting verdicts are legally inconsistent if necessary element of greater and included offense are subject to conflicting jury findings); Moore, 438 N.W.2d at 108 (concluding first- and second-degree murder guilty verdicts are not legally inconsistent because lack of premeditation is not necessary element of second-degree murder); State v. Olmscheid, 492 N.W.2d 263, 266 (Minn. App. 1992) (noting guilty and not guilty verdicts on different counts are not legally inconsistent, even if logically inconsistent). Because no necessary element of either offense is subject to conflicting findings, the jury’s verdict is legally consistent. See Minn. Stat. §§ 609.221, subd. 1 (1998) (defining first-degree assault as inflicting great bodily harm upon another), .19, subd. 1 (1998) (defining second-degree murder as causing another’s death with intent, but not premeditation, or without intent while committing a felony offense).


In his pro se supplemental brief, Clark presents several challenges to the sufficiency of the evidence. This court’s review of the evidence’s sufficiency is limited to whether the evidence, viewed in the light most favorable to the verdict, was sufficient to permit jurors to convict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the jury believed the state’s witnesses and disbelieved any evidence contrary to the verdict. Moore, 438 N.W.2d at 108. Given this standard of review, we reject Clark’s challenge to the credibility of the state’s witnesses. Moreover, there was ample evidence to corroborate the accomplice’s testimony.


The trial court should not communicate with the jury during its deliberations except after notice to the parties and in the presence of counsel and the defendant. State v. Mims, 306 Minn. 159, 167-68, 235 N.W.2d 381, 387 (1975); State v. Petrich, 494 N.W.2d 298, 299 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993). The supreme court has reversed a conviction and ordered a new trial where the trial court, in response to two successive notes indicating the jury was deadlocked, instructed the jury, without providing notice to the parties, that it should continue deliberating. State v. Kelley, 517 N.W.2d 905, 907-08 (Minn. 1994).

Clark argues the trial court committed reversible error by twice communicating with the jury ex parte while the jury was deliberating. Although the nature and timing of those communications are similar to the Kelly communications, we cannot determine on the record before us whether the trial court engaged in ex parte communications or merely failed to make a record showing the parties were provided notice. Therefore, we must remand this issue to the trial court for development of a record.

After a careful review of the record, we conclude Clark was not denied his right to a speedy trial, the trial court did not err in permitting a witness to testify against Clark, the verdicts are legally consistent, and sufficient evidence supports Clark’s conviction. As to Clark’s claim of ex parte communications, we remand for a determination of whether ex parte communications occurred.

Affirmed in part and remanded.