This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Patrick Bernard,


Filed January 5, 1999


Lansing, Judge

Hennepin County District Court

File No. 97043678

Michael A Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Patrick Bernard, Inmate No. 195840, MCF-St. Cloud, Box B, St. Cloud, MN 56302-1000 (appellant pro se)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]



This appeal from conviction of second degree and attempted second degree murder raises evidentiary and procedural issues. Because the evidence supports the convictions and the district court did not abuse its discretion in admitting photographs or in its other evidentiary and procedural rulings, we affirm.


A jury found Patrick Bernard guilty of second degree murder and attempted second degree murder, both committed in rapid succession by firing a Glock pistol in a dance hall. The murder victim was shot in the head and back. The other victim was found lying in a pool of blood, and he told an officer at the scene, "I've been shot." The state's case consisted of physical evidence, the testimony of two witnesses, and several photographs of Bernard holding what appeared to be the same kind of pistol as the alleged murder weapon.

The state's two witnesses testified to crucial observations during the shooting. Both saw Bernard with a gun moments before the shots sounded. One witness said the gun looked like the Glock retrieved from the dance hall. He heard a round of gunshots and saw the victims lying on the floor. The other witness saw Bernard holding a gun and then heard shots, saw gunfire flashes, and observed the murder victim slide down the wall.

The bullet and bullet fragments recovered from the body of the murder victim, as well as other bullets and ten shell casings found in the dance hall, were all consistent with a Glock pistol. A Glock pistol with no usable fingerprints was found in the dance hall. Police retrieved the magazine to a Glock pistol and several photographs of Bernard holding what appeared to be a Glock pistol from the apartment of a man who was with Bernard at the dance hall.

Shortly after the jury returned its verdict of guilty on both counts, the district court received a letter from the jury foreman expressing concern about the well-being of a juror who was particularly distraught during jury deliberations and requesting the judge to inform the juror about counseling services. Based on this letter, Bernard moved for a Schwartz hearing to evaluate the mental competency of the juror. The district court denied the motion.


In this appeal, Bernard challenges and we address (1) the admissibility of the photographs obtained from his friend's apartment, (2) the sufficiency of the evidence to support his convictions, (3) the denial of a Schwartz hearing, and (4) procedural and evidentiary issues raised in Bernard's pro se brief.


A district court's decision to admit or exclude photographs is reviewed under an abuse-of-discretion standard. State v. Daniels, 361 N.W.2d 819, 828 (Minn. 1985). "Photographs are generally admissible where they accurately portray anything which is competent for a witness to describe orally, and they are relevant to some material issue." State v. Durfee, 322 N.W.2d 778, 785 (Minn. 1982). If evidence is inappropriately admitted, we apply a harmless-error test and evaluate "whether there is any reasonable doubt the result would have been different if the evidence had not been admitted." State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (quoting State v. Naylor, 474 N.W.2d 314, 319-20 (Minn. 1991)).

The photographs with a gun depicted Bernard negatively. Balancing the prejudicial effect against the probative value of the evidence is committed to the district court's discretion. State v. Axford, 417 N.W.2d 88, 92 (Minn. 1987). We conclude the district court did not abuse its discretion in determining the pictures were more probative than prejudicial. Whether Bernard had access to a gun like that used in the shooting is a fact of consequence to the determination of the action.

We further conclude that any error in the admission would have been harmless because even without the photographs the state had a strong case against Bernard: (1) the testimony of two witnesses, both of whom saw Bernard with a gun just prior to the shooting, and one of whom saw Bernard firing the gun; (2) no evidence of anyone else in the hall drawing a gun; and (3) the bullets, metal fragments, and casings found were all consistent with the gun found at the scene. We conclude that beyond a reasonable doubt the verdict would not have been different in the absence of the photographs.


Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We view the evidence in a light most favorable to the verdict and assume the jury believed the witnesses whose testimony supported the verdict and disbelieved any contradictory evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). Inconsistencies between one state witness and another does not necessarily constitute false testimony or a basis for reversal. Daniels, 361 N.W.2d at 826.

The jury found Bernard guilty of second degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1996), and attempted second degree murder in violation of Minn. Stat. §§ 609.19, subd. 1(1), and 609.17 (1996). A second degree murder is causing "the death of a human being with intent to effect the death of that person or another, but without premeditation." Minn. Stat. § 609.19, subd. 1(1). An attempt is the intent to commit a crime and performing "an act which is a substantial step toward, and more than preparation for, the commission of the crime." Minn. Stat. § 609.17.

One man died and another was injured from the shooting in the dance hall. The state presented evidence that the bullet and metal fragments in the murder victim, as well as the other bullets and ten spent shell casings found at the scene, were all consistent with the nine-millimeter Glock pistol found there. Two witnesses stated that they saw Bernard with a gun--one saw him with a gun moments before the shots sounded, and the other saw him holding a gun, and heard and saw gunfire. Although one of the witnesses, who had ducked his head out of view, thought that the shots were fired from different areas and different guns, no witness testified that anyone other than Bernard drew a gun. The second witness believed that the gun Bernard was holding was a silver gun rather than the Glock found in the hall. Inconsistency in some particular testimony between one witness and another usually stems from fallibility in human perception, particularly when the incident is traumatic. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983). The evidence, taken as a whole, was consistent on the elements required for conviction. Viewing the evidence in the light most favorable to the conviction, the verdicts must be upheld.


The standard of review for denial of a Schwartz hearing is abuse of discretion. State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). While Schwartz hearings are to be liberally granted, the defendant is required to first make a prima facie case of juror misconduct. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979). In recognition of the pivotal importance of privacy in jury deliberations, the rules of evidence prohibit inquiry into a juror's "mental processes" related to the verdict. Minn. R. Evid. 606(b).

Although we do not foreclose the possibility that outward manifestations of mental incompetency could rise to the level of juror misconduct necessitating a Schwartz hearing, Bernard did not present a prima facie case that the juror's conduct at issue reached that level. The letter indicated that the juror had been hysterical and overly emotional but that the other jurors helped her to regain her balance by talking to her and counseling her. The foreman indicated that the behavior resulted from the pressures of the lengthy deliberations. The district court concluded that such a reaction is not unforeseeable in a case of this degree of seriousness and that the described behavior did not constitute misconduct that affected the verdict. The trial court did not abuse its discretion in denying the hearing.


Bernard contends in his pro se supplemental brief that he was denied a speedy trial, the prosecutor committed misconduct, and that the trial court erred in admitting unfairly prejudicial testimony.

Although Bernard requested a speedy trial, he also requested that the trial start December 1, 1997, which was beyond the 60-day period prescribed by Minn. R. Crim. P. 11.10. Preliminary matters were taken care of December 1, 1997, and trial began December 2, 1997. Any delay from Bernard's requested start date was minimal, and he did not demonstrate any prejudice incurred by starting trial December 2, 1997. On these facts, his right to a speedy trial was not denied.

Bernard contends that the prosecutor committed misconduct by (1) inducing perjured testimony, and (2) asking the jury to find Bernard guilty of attempted second degree murder, the second count of the complaint. The record does not support the first allegation, and the second allegation is not prosecutorial misconduct.

The last objection raised in the pro se brief is that the district court erred by allowing the statement of a witness that the witness was fearful of testifying. Evidence of a witness's fear of a defendant is governed by Minn. R. Evid. 403. See State v. Harris, 521 N.W.2d 348, 351-52 (Minn. 1995) (the admissibility of evidence of witness's participation in a witness protection program because of fear of defendant analyzed under Minn. R. Evid. 403). We note that the statement appears to relate to the witness's general fear of having to testify in court, not a specific fear of Bernard; that the statement was elicited by Bernard's attorney; and that it prompted no objection. It was neither reversible error nor an abuse of the district court's discretion to allow the statement into evidence.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.