This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Bernard Clark,




Filed September 11, 2001


Halbrooks, Judge


Hennepin County District Court

File No. 98005664



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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)


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




            Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Following a jury’s verdict convicting appellant of first-degree assault and first-degree robbery, the trial court denied appellant’s posttrial motion for a new trial.  Appellant contends that he is entitled to a new trial because the trial court advised the jury to continue deliberating without obtaining appellant’s waiver of his right to be present and because the trial court erred in not allowing the jurors to separate during deliberations.  We affirm.  The trial court did not err in its decision to keep the jury sequestered, and, although it was error to communicate with the jury without first contacting appellant, any error was harmless.


            This case is the continuation of appellant Bernard Clark’s direct appeal from his conviction following this court’s remand to the trial court for a determination of whether any ex parte communication with the jury occurred during deliberations.  The facts relating to the underlying offense may be found at State v. Clark, No. C4-99-306, 2000 WL 54093 (Minn. App. Jan. 25, 2000). 

Appellant was charged with first-degree robbery, first-degree assault, and second-degree murder.  A jury trial began on September 22, 1998.  On Wednesday, September 30, 1998, at approximately 3:00 p.m., the jury began its deliberations.  The jurors were sequestered in a hotel for the evening at approximately 6:30 p.m.

At approximately 10:00 a.m. the next day, the jury sent a note to the court with two questions:

(1) “For the first element of aggravated robbery, does the liability for crimes of another apply?”


(2) “If Toya pled guilty to attempted robbery, does liability for crimes of another apply to aggravated robbery for Bernard Clark?”


            The trial court notified both counsel and made the following record:

It’s now approximately 20 minutes to 12:00 on the morning of October 1st.  * * *  Counsel and I have had discussion in chambers as to how to respond.  My intent is to send in the following written response.  “Jurors, the instructions may be somewhat confusing but the law applicable to this case is as set forth in the written instructions.  And you should rely on those instructions.”


Appellant’s counsel explicitly waived appellant’s right to be present for the discussion and raised no objection to the court’s response. 

At approximately noon, the jury sent the trial court a second note, indicating that it was “hung.”  The court met with both counsel in chambers to discuss an appropriate response to the jury.  Appellant was not physically present but was consulted and agreed with responding in a manner that was consistent with the earlier note.  The court then sent the jury a written instruction to have lunch and “continue deliberating.”

At about 4:30 p.m., the jury sent another note, stating it was still deadlocked.  The court contacted both counsel by telephone.  Appellant’s counsel did not request any additional time to contact appellant.  Based on both counsels’ agreement, the court sent the jury a written response with instructions to recess early, remain sequestered, and continue deliberating the next morning.  At about 5:30 p.m., the court allowed one of the jurors to be escorted home by a deputy so that the juror could retrieve his heart medication.

On Friday morning, October 2, the court met with the attorneys to make a record of the court’s decision with respect to that juror.  Appellant’s attorney had no objection.  Later that day, the court again met with the attorneys before it allowed a deputy to obtain the medication of another juror, who had indicated that she had been unable to sleep for two days.  Other jurors contacted the bailiff to ask permission to contact their families or businesses in case the jury was sequestered for the entire weekend.  Appellant’s attorney advised the court that someone had seen one of the jurors sitting on the floor, crying.  Appellant’s attorney requested that the jurors be allowed to go home for the weekend and continue deliberating on Monday.  The court decided to allow the jury to retire early but continued to keep the jurors sequestered.

The jury resumed its deliberations on Saturday morning, October 3, and reached a verdict at 2:30 p.m.  Appellant was found guilty of first-degree robbery and first-degree assault but acquitted of the second-degree murder charge.

Appellant raised five issues in his direct appeal of his conviction.  This court affirmed the trial court’s evidentiary rulings and found that the evidence was sufficient to support the jury verdict.  But we remanded because of the lack of an adequate record on whether there had been ex parte communication with the jury or whether the court had merely failed to make a record of notice given to the parties before responding to the notes.  No determination was made as to whether the substance of those alleged ex parte communications was error.

On July 26, 2000, the trial court held a hearing to establish a record regarding the communications.  In addition to the prosecuting attorney, appellant appeared with both his trial and appellate counsel.  The parties agreed to the following stipulations:

1.         The court provided notice to appellant’s trial counsel by telephone and in person before responding to the first “deadlock” note.  The court provided notice to appellant’s trial counsel by telephone before responding to the second “deadlock” note. 

2.         Appellant’s trial counsel advised appellant about the first deadlock but failed to notify him about the second one.

3.         No one expressly informed appellant that he had the right to be present during any communications between the court and the jury, and appellant never expressly waived that right.


Appellant’s appellate counsel indicated that only the trial court’s actions regarding the two “deadlock” notes were at issue.  The trial court denied appellant’s motion for a new trial.  This appeal follows.



Appellant argues that the trial court erred in telling the jury to continue its deliberations after the jury indicated twice that it was deadlocked.

In a criminal case, it is permissible for the trial court to instruct the jury to “consult and deliberate with a view to reaching an agreement consistent with their individual judgments.”  State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 773 (1973).  But a defendant must receive a new trial if a trial court’s instructions appear to have coerced a jury to reach a unanimous verdict.  Id. at 371-72, 211 N.W.2d at 771-72.  It is impermissible for the court to tell the jury that it may not deadlock.  State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996) (citation omitted); see also State v. Peterson, 530 N.W.2d 843, 846 (Minn. App. 1995) (instruction that jury would be sequestered until it reached a verdict is coercive and reversible error); State v. Petrich, 494 N.W.2d 298, 300 (Minn. App. 1992) (instruction that jury must reach a unanimous verdict is reversible error), review denied (Minn. Feb. 23, 1993). 

During jury deliberations, the judge and jury should not communicate except “in open court and, where practicable, in the presence of counsel * * * and in criminal cases in the presence of the defendant.”  State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955).  The court should give notice to the prosecutor and defense counsel before giving additional instructions to a jury.  Minn. R. Crim. P. 26.03, subd. 19(3).  In addition, under Minn. R. Crim. P. 26.03, subd. 19(3), “the court has discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all.”  State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).     

The Minnesota Supreme Court has cited the A.B.A. Standard Relating to Trial by Jury 15-4.4(b) (1986), with approval:

If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a).  The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.


State v. Kelley, 517 N.W.2d 905, 909 (Minn. 1994).  The commentary to Standard 15‑4.4(b) states that:

[A] court may send the jury back for additional deliberations even though the jury has indicated once, twice, or several times that it cannot agree or even after jurors have requested that they be discharged.  * * *  [A] jury should not be permitted to avoid a reasonable period of deliberation merely by repeated indications that it is unable to agree. 


Instead, the real question is whether the jury was required to deliberate an unreasonable length of time or for unreasonable intervals, or was threatened with the prospect of such unreasonably lengthy deliberations.  The general rule is that the length of time a jury may be kept deliberating is a matter within the discretion of the trial judge, but abuse of that discretion requires reversal.  The reasonableness of the deliberation period depends on such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors’ statements to the court concerning the probability of agreement.


Kelley, 517 N.W.2d at 909.

            Here, we hold that the court did not abuse its discretion by instructing the jury to continue its deliberations.  The jury claimed that it was deadlocked after approximately six and one-half hours of deliberations.  The second “deadlock” note was received about four hours later.  Given these short time periods and the complexity of the trial, which involved multiple witnesses, conflicting testimony, and DNA evidence, the court was well within its discretion when it instructed the jurors to continue deliberating.

We disagree with appellant’s contention that “the jury must have realized that the only way to end their ordeal was to return a verdict, any verdict.”  We recognize the jurors’ discomfort, as evidenced by problems with medication, the crying juror, and the requests to contact family and employers.  But with the exception of the first juror’s request for his heart medication, these events occurred after the court’s second instruction to the jury to continue its deliberation.  The court did not advise the “jury that a case must be decided, nor allow the jury to believe that a ‘deadlock’ is not an available option.”  State v. Buggs, 581 N.W.2d 329, 338 (Minn. 1998) (quoting State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996)) (citations omitted).  Both parties agreed to the court’s instructions, and the jury never renewed its request for a deadlock instruction.  Based on this record, we cannot say that the jurors felt coerced into arriving at a verdict.

Appellant also claims that the trial court erred by refusing to allow the jury to separate during its deliberations.  Minn. R. Crim. P. 26.03, subd. 5(1), provides, in relevant part:

With the consent of the defendant the court, in its discretion, may allow the jurors to separate over night during deliberation.  The officers shall not speak to or communicate with any juror concerning any subject connected with the trial nor permit any other person to do so, and shall return the jury to the courtroom at the next designated trial session.


Once the defendant consents, the rule clearly grants the court wide latitude in deciding whether to separate the jurors.  State v. Stephani, 369 N.W.2d 540, 549 (Minn. App. 1985), review denied (Minn. Aug. 20, 1985).  Although some jurors may have preferred to go home for the weekend, we cannot say that the court abused its discretion by continuing to sequester the jury.  The court did its best to accommodate the special needs of the jury while ensuring that it finished its deliberations.  Therefore, the trial court did not abuse its discretion by sequestering the jury.


            Appellant alternatively contends that the trial court committed reversible error when it communicated with the jury regarding the deadlock without notifying him.

            The Confrontation Clause, the Sixth Amendment to the United States Constitution, grants a defendant the right to be present at all stages of a trial.  State v. Sessions, 621 N.W.2d 751, 755 (Minn. 2001); State v. Bouwman, 354 N.W.2d 1, 8 (Minn. 1984).  Responding to a deliberating jury’s question is part of a trial.  State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995).  In addition, the criminal rules require that communications with a deliberating jury be conducted in open court whenever the jury desires to be informed on any point of law.  Minn. R. Crim. P. 26.03, subds. 19(2), 19(3).  The rule is mandatory (“shall be conducted to the courtroom”) and compliance with it does not depend on the form or the substance of the court’s response.  Id.  Thus, the general rule is that a trial court not communicate with the jury after deliberations begin unless the communication is in open court and in the defendant’s presence.  Sessions, 621 N.W.2d at 755-56.

            But even if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is not warranted if the error was harmless.  State v. Schifsky, 243 Minn. 533, 542, 69 N.W.2d 89, 96 (1955).  If the verdict is surely unattributable to the error, then the error is harmless beyond a reasonable doubt.  Sessions, 621 N.W.2d at 756.  When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error, we will consider the strength of the evidence and the substance of the court’s response.  Id.

Here, there is no dispute that the trial court responded to the jury’s second “deadlock” note without an express waiver from appellant.  Thus, there was an error because appellant was not made aware of the communication.  But this error is harmless.  First, the state’s evidence was strong, as indicated in this court’s earlier opinion rejecting appellant’s sufficiency-of-the-evidence claim.  State v. Clark, No. C4-99-306, 2000 WL 54093, at *2 (Minn. App. Jan. 25, 2000).  Given our prior review, we conclude that the evidence supporting appellant’s guilt was sufficiently strong.  Second, the court’s responses to the jury’s notes—to continue deliberation—were neutral and not coercive.  See State v. Petrich, 494 N.W.2d 298, 300 (Minn. App. 1992) (“Judges are not required to tell jurors that a deadlock is a permissible result of their deliberations; however, judges may not tell juries they must reach a verdict.” (citation omitted)), review denied (Minn. Feb. 23, 1993).  Therefore, any error caused by failing to inform appellant of the second “deadlock” note before responding to it is harmless and is not grounds for a new trial.