, A21-0726

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1364, A21-0726

State of Minnesota,
Respondent,

vs.

James David Wren,
Appellant.

Filed May 2, 2022
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-19-13690

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

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota (for
appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant argues that his conviction and the district court’s post-sentence restitution
order must be reversed because his right to a speedy trial was violated by C OVID-related
delays. He also argues that the district court abused its discretion by instructing the jury
2
on a lesser -included offense and by ordering restitution and that he received ineffective
assistance of counsel. Because appellant’s speedy-trial right was not violated by COVID-
related delays, we see no abuse of discretion in the jury instruction or the restitution order,
and because appellant’s counsel did not provide ineffective assistance, we affirm.
FACTS
In June 2019, appellant James Wren was identified by a witness, C.F., as the shooter
in an incident in downtown Minneapolis that left one man dead and another man paralyzed.
Appellant was charged with se cond-degree intentional murder, with attempted second -
degree intentional murder, and with possession of a firearm by an ineligible person.
In October 2019, appellant demanded a speedy trial. Both his counsel and the
prosecutor said that they could not be prepared for trial until January 2020 and that, if
appellant were also indicted on first -degree murder charges, they could not be prepar ed
until March 2020. Trial was continued until January 21, 2020. Later in October, appellant
was also indicted on charges of first -degree premeditated murder, attempted first -degree
premeditated murder, and first-degree assault.
Early in November, appe llant’s private counsel’s motion to withdraw and
appellant’s motion to discharge his private counsel were both granted, and a public
defender (P.D.) was appointed for appellant. The P.D. said he could not be ready for trial
by January 21, 2020, and appellant waived his right to a speedy trial until March 16, 2020.
Questionnaires were distributed to potential jurors on March 13, 2020. On that date,
the Chief Justice of the Minnesota Su preme Court responded to the emerging COVID -19
pandemic with an order suspending all district court proceedings until March 30, 2020,
3
except for ongoing jury trials and certain high-priority cases. On March 16, 2020, the state
sought a continuance of appellant’s trial because of COVID, and a continuance was granted
until May 11, 2020.
On March 30, 2020, and again on May 26, 2020, the P .D. moved to dismiss the
indictment based on a violation of appellant’s right to a speedy trial; both motions were
denied. All jury trials were suspended until June 1, 2020, and it was decided that a shorter,
simpler case than appellant’s should be tried firs t, as part of a pilot program. Appellant’s
case went to trial on June 15, 2020.
The jury heard testimony from C.F., a major witness for the prosecution. He
testified that, at about two o’clock in the morning on June 10, 2019, while he was at work
driving his tow truck in an alley , he had to stop driving because a group of people was
walking towards him, arguing and swearing. A man came up on the driver’s side of the
truck, hit the mirror, and , while standing six or seven inches from C.F.., started shooting.
C.F. saw light flashing from the gun; he heard two “tinks” on the hood of his truck that he
believed were casings from the gun. C.F. described the shooter as an African -American
male, between 6’2” and 6’5” tall, who was wearing a dark shirt and a necklace with a gold
charm; his hair was in a bun or braids, and he had a small backpack on his shoulders. C.F.
saw a gunshot hit one person, who fell to the ground, and saw another person on the ground,
about three or four feet from C.F.’s truck and from the shooter. C.F. looked the shooter
directly in the eyes and pointed him out to the police when they arrived. C.F. also said he
did not see or hear anyone else firing a gun. Finally, he identified the shooter as appellant,
who was present in court.
4
The state requested a jury instruction on the lesser-included offense of unintentional
second-degree felony murder , there was no objection, and the district court added that
instruction. The jury found appellant guilty of unintentional second-degree felony murder
and first-degree assault. He was sentenced to 189 months in prison for first-degree assault
and to a consecutive 180 months in prison for second-degree murder, a total of 369 months
in prison, and he was ordered to pay $8,557.65 in restitution.
Appellant challenge d the judgment of conviction and the restitution order in
separate appeals, which were consolidated. On appeal, he argues that his right to a speedy
trial was violated, that the district court abused its discretion in instructing the jury on a
lesser-included offense and in ordering restitution, and that he was denied the effective
assistance of counsel.
DECISION
1. Right to a Speedy Trial
“Whether a defendant has been denied a speedy trial is a constitutional question
subject to de novo review .” State v. Os orio, 891 N.W.2d 620, 627 (Minn. 2017). But
“any inquiry into a speedy tr ial claim necessitates a functional analysis of the right in the
particular context of the case.” Barker v. Wingo, 407 U.S. 514, 522 (1972).
Barker sets out four factors to be considered in speedy-trial claims: (1) the length of
the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy
trial, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530. Minnesota has
adopted these factors, noting that they are to be considered in balancing “the sometimes
competing interests between the orderly prosecution of crimes that is fair to both sides and
5
the prompt resolution of the case by trial .” State v. Mikell, 960 N.W.2d 230, 245 (Minn.
2021). The Barker factors are not exclusive; rather, they are considered “together with
such other circumstances as may be relevant” in evaluating an alleged violation of the right
to a speedy trial. Osorio, 891 N.W.2d at 628. In the final analysis, “whether delay in
completing a prosecution amounts to an unconstitutional deprivation of rights depends on
the circumstances.” State v. Jackson, 968 N.W.2d 55, 60 (Minn. App. 2021), (quotation
omitted), rev. granted (Minn. Jan. 18, 2022).
The circumstance s in Jackson, like those in this case, included the COVID
pandemic. Id. at 58. Jackson cited and applied the four Barker factors. Id. at 60.
A. Length of the Delay
“On demand of any party after the entry of [a not -guilty] plea, the trial must start
within 60 days unless the court finds good cause for a later trial date .” Minn. R. Crim. P.
11.09(b). Appellant first demanded a speedy trial on October 3, 2019; he waive d his
speedy-trial right on March 16, 2020, 165 days after his initial speedy -trial demand; and
his trial began on June 15, 2020, which was 91 days after the end of the waiver. Therefore,
we must address the three remaining Barker factors. See State v. W indish, 590 N.W.2d
311, 315-16 (Minn. 1999).
B. Reason for the Delay
In Jackson, the defendant argued that the state was responsible for the delay because
the Chief Justice of the Minnesota Supreme Court had ordered that no trials were to be held
until adequate safety precautions were in place. 968 N.W.2d. at 61. This court rejected that
argument:
6
[T]he circumstances of the pandemic in July 2020 rendered a
trial unsafe and did not reflect a deliberate attempt by the state
to hamper the defense. [The appellant’s] 77 -day wait after
invoking his speedy -trial demand was unavoidable.
Accordingly, we hold that neither [the appellant] nor the state
are responsible for the delay in commencing the trial when that
delay occurred solely because of public-safety concerns due to
the COVID -19 pandemic and when the district court was
prohibited from holding a jury trial by order of the Chief
Justice.

Id. Jackson holds that “[i]n the context of a speedy-trial analysis, neither the state nor the
defendant is responsible for the delay in bringing a defendant to trial when that delay is
solely due to public -safety co ncerns related to the COVID -19 pandemic.” Id. at 58.
Accordingly, under Jackson, we conclude that neither appellant nor the state was
responsible for the 91-day delay from March 16, 2020, to June 15, 2020.
C. Assertion of the Right to a Speedy Trial
Jackson noted that “a defendant’s assertion of his speedy trial right is entitled to
strong evidentiary weight in determining whether the defendant was deprived of the right,
. . . [but] the inquiry is necessarily contextual.” Id. at 61 (quoting Mikell, 960 N.W.2d at
252 (quotation omitted)). In Jackson, the state’s counsel asked the district court to find
good cause to extend the trial date because a trial could not occur without violating the
order of the Chief Justice, and the defendant’s counsel did not object. Id. at 62. The district
court responded, “I am going to ma ke a finding that, as [to] the specific articulations by
[counsel], they are all true. We couldn’t have a trial if we wanted to have a trial today, or
[if the defendant] demanded that he have a trial today.” Id.
7
This court “[did] not question whether [ the Jackson defendant’s] demand for a
speedy trial was serious,” but observed that “the context of the demand illustrates that all
parties were aware that a safe trial could not occur within the 60-day period because of the
pandemic and . . . [t]hese circu mstances weaken the strength of [the defendant’s] demand
for a speedy trial in our overall balancing.” Id. Analogously, while appellant’s demand
for a speedy trial was serious, a safe trial in his case was not possible before June 15, 2020.
His demand, while serious, was incapable of fulfillment, given the context in which it was
made.
D. Prejudice to the Defendant
The prejudice that can result from a violation of a defendant’s speedy-trial right may
be avoided or minimized by protecting the defendant’ s interests in (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. Barker, 407 U.S. at
532. The most serious of these interests is the third. Id.
Here, appellant argues that his defense was impaired because K.C., a witness to the
shooting, was killed on Sunday, March 22, 2020, and therefore unavailable to testify in
support of appellant’s self -defense claim . The district court , in denying appellant’s
motions to dismiss because of a speedy -trial violation, found that, because trial testimony
was not due to start until May 23, “K.C. was killed before he would have testified, even if
the trial had not been continued.” The district court also noted that appellant was “able to
use video surveillance footage of the incident or call any of his numerous other friends who
were present during the shooting to support his se lf-defense claim.” Appellant’s defense
8
was not impaired by the delay of his trial because K.C.’s death occurred before he would
have testified , and whether his testimony would have helped appellant is at best
speculative.
The defendant in Jackson did not contend that the delay impaired his defense.
Jackson, 968 N.W.2d at 62. In Jackson, the balancing of the four Barker factors led this
court to conclude that the delay was justified by the pandemic, its length was consiste nt
with and proportionate to that justification, and there was no particular harm to the
defendant resulting from the delay: his right to a speedy trial was not violated. The same
is true here.
2. Jury Instruction
Near the end of trial, on Saturday, Ju ne 27, 2020, counsel for both parties received
an email from the district court containing a revised version of the jury instructions and
asking them to let the district court know by email if they had any changes or corrections,
or if they were “fine with this revised version of the instructions.” On Sunday, June 28,
2020, the P.D. sent an email saying, “As for the jury instructions, the defense approves of
this final draft”; later, counsel for the state sent an email saying, “The State approves of the
current jury instructions. However, the State intends to ask for a lesser -included count of
Murder in the Second Degree (Felony/Unintentional) . . . . Therefore we are requesting
the jury instructions be added for that offense.” The district court replied to these messages
that “[t]he murder in the second degree, while committing a felony, instruction was added
at the request of the state” and also said, “ [t]hese changes will be discussed tomorrow
9
morning and the instructions will be finalized only after hearing arguments from the parties
on any disputes.” The next morning, neither side objected to the instructions.1
This court reviews a district court’s decision to give a requested lesser -included
offense instruction for an abuse of discretion . State v. Hannon , 703 N.W.2d 498, 509
(Minn. 2005). Where the evidence warrants a requested lesser-included offense instruction,
the district court must give it. Id.; see also State v. Dahlin, 695 N.W.2d 588, 598 (Minn.
2005) (holding that district courts must give a lesser-included-offense instruction when the
lesser offense is included in the charged offense and the evidence provides a rational basis
both for acquitting the defendant of the offense charged and for convicting the defendant
of the lesser-included offense).
Here, based on the evidence, the jury acquitted appellant of the charged offenses,
first-degree premeditated murder (defined as “caus[ing] the death of a human being with
premeditation and with intent to effect the death of the person or of another” in Minn. Stat.
§ 609.18 5(a)(1)(2018)), and second degree murder, with i ntent but not premeditated,
(defined as “caus[ing] the death of a human being with intent to effect the death of that
person or another, but without premeditation” in Minn. Stat. § 609.1 9, subd. 1(1)(2018)).
However, the jury convicted appellant of the le sser-included offense, second -degree
unintentional murder (defined as “caus[ing] the death of a human being, without intent to

1 Thus, as appellant acknowledges, the standard of review is arguably de novo. When there
is no objection, an appellate court has discretion to consider a claim of error on appeal if
the instructions involve either a plain error affecting substantial rights or an error of
fundamental law. State v. Reek, 942 N.W.2d 148, 158 (Minn. 2020).

10
effect the death of any person, while committing or attempting to commit a felony offense
. . . .” in Minn. Stat. § 609.19, subd. 2(1)(2018)).
Appellant does not mention the term “lesser included offense ,” but he argues that
“[u]nintentional felony murder is a different charge than intentional murder” and
“unintentional felony murder contains different elements and is a complete ly different
charge than what [appellant] was indicted.” He also argues that it was “clearly plain error”
to add a new charge “that is arguably substantially different . . . than what was charged in
the original complaint and indictment.” But every lesse r degree of murder is a lesser
included offense under Minn. Stat. § 609.04 (2020), which defines a lesser included offense
as a lesser degree of the same crime, or an attempt to commit the crime charged, or an
attempt to commit a lesser degree of the same crime, or a crime necessarily proved if the
crime charged were to be proved. See Dahlin, 695 N.W.2d at 597.
There was no abuse of discretion in the district court’s decision to give the
instruction on a lesser-included offense that the state requested.
3. Restitution
The district court ordered appellant to pay the mother of the man whose death was
caused by the shooting $1,000 and the Crime Victims Reparations Board $7,500 for
funeral expenses. The order provided that, d uring incarceration, appellant was to pay by
deduction from his prison wages and inmate account, and , during supervised release , by
deduction from his wages ; he will have paid the entire amount by the time supervised
release ends. Appellant argues that the restitution award should be vacated if his conviction
is reversed on speedy-trial grounds and, in the alternative, that the district court “abused its
11
discretion in finding that [appellant] had the ability to pay resti tution [because] he will
make $.50 per hour while incarcerated until he is 55 years old.” Appellant argues that this
court should “remand [the award] back to the trial court to address [appellant’s] ability to
pay and to outline a payment plan.”
A district court in setting restitution “shall consider . . . the income, resources, and
obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1 (2020). This court reviews
a restitution order for an abuse of the district court’s “broad discretion.” State v. Wigham,
967 N.W.2d 657, 662 (Minn. 2021).
Wigham sets out a district court’s obligations concerning restitution.
[W]e hold that a district court fulfills its statutory duty to
consider a defendant’s income, resources, and obligations in
awarding and setting the amount of restitution when it
expressly states, either orally or in writing, that it considered
the defendant’s ability to pay . . . . [T]he record must include
sufficient evidence about the defendant’s income, resources,
and obligations to allow a district court to consider the
defendant’s ability to pay the amount of restitution ordered.

Id. at 664-65. The district court here complied with these obligations, finding that:
[Appellant] is currently incarcerated. [He] qualified for
the services of the public defender. [Appellant], however, is a
relatively young man of 36 years old, and nothing in the record
suggests that he would be mentally or physically unable to
work, either while in prison or upon release. The Department
of Corrections will withhold a portion of prison wages and a
portion of money deposited in inmate accounts for restitution.
Therefore, [appellant] has an ability to make payments toward
the restitution amount while incarcerated. Moreover, [he] is
anticipated to be released from prison in 2039, when he will be
approximate[ly] 55 years old. He could be employed and will
have a sufficient period of time within which to repay
restitution while on supervised release (parole). After
considering [appellant’s] financial s ituation, including his
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current incarceration, the court concludes that restitution
should remain in the total amount of $8,500.

. . . .

Once [appellant] is placed on supervised release, [he]
shall work with his supervised release officer to establish a
payment schedule. The payment schedule shall ensure that
[he] makes regular and substantial payments and remains
obligated to pay the entire restitution amount in full by the date
that [his] supervised release ends.

Thus, the district court has already done what appellant wants it to do on remand:
addressed appellant’s ability to pay and outlined a payment plan. We affirm the restitution
award.
4. Ineffective Assistance of Counsel
Appellant claims that he received ineffective assistance of counsel during his trial
because the P.D. did not call “eyewitnesses to the alleged murder and [appellant] acting in
self-defense” and did not object to the jury instruction on second-degree felony murder, to
an officer’s testimony that he found an eyewitness’s testimony consistent with the video
surveillance, or to references to appellant as “the shooter” and to the man killed and the
man paralyzed by the shooting as “the victims.” To prevail on his ineffective -assistance
claim, appellant must show both that the P .D.’s “representation fell below an objective
standard of reasonableness” and that there is “a reasonable probability that, but for [the
P.D.’s] unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington , 466 U.S. 668, 687 -88, 694 (1984) . Known as the Strickland
prongs, these criteria of an ineffective -assistance claim were adopted by Minnesota in
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
13
A. The P.D.’s Performance
The objective standard of reasonableness is met when an attorney exercises “the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances.” State v. Vang, 847 N.W.2d , 248, 266 Minn. 2014) (citation
omitted). There is a strong presumption that an attorney’s “performance falls within the
wide range of professional assistance.” State v. Miller, 754 N.W.2d 686, 709 (Minn. 2008).
Appellate courts do not generally review an ineffective -assistance claim that is based on
trial strategy. Vang, 847 N.W.2d at 267. “Which witnesses to call at trial and what
information to present to the jury are questions that lie within the proper discretion of the
trial counsel. Such trial tactics should not be reviewed by an appellant court, which, unlike
[trial] counsel, has the benefit of hindsight.” State v. Jones, 392 N.W.2d 224, 236 (Minn.
1986).
Thus, the P.D.’s decision not to call the exculpatory witness or witnesses appellant
claims should have bee n called is not a decision this court reviews in an ineffective -
assistance claim. See id.; Andersen v. State, 830 N.W.2d 1, 13 (Minn. 2013) (declining to
review an attorney’s decision not to call exculpatory witnesses as an act falling within trial
strategy).
An attorney’s failure to object to a jury instruction is equally a matter of trial
strategy. State v. Mosley, 895 N.W.2d 585, 592 (Minn. 2017); White v. State, 711 N.W.2d
106, 110 (Minn. 2006) (noting that jury instructions are matters of trial st rategy and an
attorney’s failure to object to a jury instruction is therefore not reviewable). The P .D.’s
decision not to object when an officer testified that he found the eyewitness’s testimony
14
consistent with the video surveillance recording, even if it were vouching testimony, is also
a matter of trial strategy. State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001) (declining to
review failure to object to vouching testimony, because not objecting to it was a matter of
trial strategy). The P .D.’s decisions not to object when appellant was referred to as “the
shooter” and when the man who later died and the man who was paralyzed from the
shooting were referred to as “the victims” were also matters of trial strategy. This court
does not review such decisions , and the P .D.’s conduct did not fall below an objective
standard of reasonableness.
B. Prejudice to appellant2
Appellant has the burden of proof as to his prejudice from the P.D.’s representation.
See State v. Cram, 718 N.W.2d 898, 907 (Minn. 2006) (holding that the defendant has the
burden of proof on both prongs of an ineffective -assistance claim). The defendant in an
ineffective-assistance claim must show “that but for the errors [of counsel] the result of the
proceeding probably would have been different.” Gates, 398 N.W.2d at 562.
Appellant argues that he “pleaded self-defense[,] and witnesses that he requested of
his attorney to be called, eyewitnesses to the alleged murder and [appellant] acting in self-
defense, did not testify. . . . [The ] attorney did not believe they would help and therefore
refused to call them even though they would go directly to [appellant’s] possible acquittal.”
Appellant does not say who these witnesses were or what they would have said to convince

2Although we need not consider whether appellant was prejudiced by that conduct, we do
so in the interest of completeness. See Vang, 874 N.W.2d at 266 (holding that an appellate
court “need not analyze both [Strickland] prongs if either one is determinative”).
15
the jury that appellant was not the shooter. “In determining whether the defendant [making
an ineffective-assistance claim] has made the requisite showing [of prejudice] , the court
must consider the totality of the evidence before the j udge or jury.” Id. Here, C.F.’s
testimony alone provided ample evidence to support the jury’s verdict that appellant
committed second-degree murder; the witnesses whom appellant wanted to call would not
have altered the verdict, and he was not prejudiced by their absence.
Appellant also objects that he was prejudiced because his presumption of innocence
was taken away by the references to him as “the shooter.” But appellant himself testified
that he was the shooter and that he had lied to the police about not being the shooter, which
would have done more to reduce the jury’s presumption of his innocence than any other
person’s reference to him as the shooter. The use of the word “victim” to refer to someone
who was shot and killed has been held not to be prejudicial. State v. Hall , 764 N.W.2d
837, 845 (Minn. 2009). Appellant was not prejudiced either by the P.D.’s failure to object
to the use of “shooter” to refer to appellant or by the use of “victims” to refer to those he
shot during the trial.
The addition of the jury instruction on the lesser included offense of second-degree
murder was mandatory; appellant’s attorney’s objection to it would have been pointless,
because a district court must give a requested lesser-included offense instruction when the
evidence warrants it. Hannon, 703 N.W.2d at 509. Finally, the officer who testified that
she had compared the testimony of C.F., a third-party witness, to the video surveillance of
the incident and found that the testimony and the video were con sistent was not
commenting on the credibility of C.F: she had previously said that the prosecution’s “two
16
big pieces of evidence ” were the eyewitness to the crime and the large amount of video
surveillance in downtown Minneapolis. She was asked if she fo und the two pieces of
evidence consistent, and said she did; she went on to testify how the videos corroborated
what the police had been told by C.F. Moreover, the jurors were repeatedly instructed that
they were the sole judges of witnesses’ credibility, which would have reduced any possible
prejudice from the officer’s statements. Appellant was not prejudiced by the P.D.’s failure
to object to the officer’s testimony. Appellant has not shown either that the P .D.’s
representation of him fell below a standard of reasonableness or that he was prejudiced by
the P.D.’s representation.
Appellant’s right to a speedy trial was not violated; the district court did not abuse
its discretion either in instructing the jury on a lesser -included offense or in setting
restitution, and appellant was not deprived of the effective assistance of counsel.
Affirmed.