Opinion
No. C6-97-271.
Filed November 4, 1997.
Appeal from the District Court, Stearns County, File No. K8943713.
Lawrence W. Pry, Assistant State Public Defender, (for Appellant).
Hubert H. Humphrey III, Attorney General, Paul R. Kempainen, Assistant Attorney General, (for Respondent).
Roger S. Van Heel, Stearns County Attorney, (for Respondent).
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Jeffrey Donald Rathman challenges the district court's denial of his motion for a Schwartz hearing on the ground of alleged jury misconduct. We affirm.
FACTS
On September 20, 1994, appellant Jeffrey D. Rathman was charged with two counts of burglary in the second degree and one count of theft. Following a two-day jury trial in September 1995, appellant was found guilty of the charged offenses. At the sentencing hearing on November 6, 1995, the district court found appellant to be a career offender and sentenced him to three concurrent terms of ten years in prison.
On July 23, 1996, appellant filed a petition for postconviction relief, seeking a Schwartz hearing. At the evidentiary hearing on October 15, 1996, appellant offered the testimony of Kelly Kohl, who had been a defense witness at trial. Kohl testified that on September 20, 1995, he came to court to testify, and while waiting outside the courtroom, he overheard two female jurors commenting to each other during a trial recess that appellant looked guilty. Kohl did not know the names of the two jurors; he described one juror as being in her twenties and the other in her forties. Following the hearing, the district court held that Kohl's testimony did not establish a prima facie case of jury misconduct and denied appellant's request for a Schwartz hearing. This appeal follows.
DECISION
The granting of a Schwartz hearing is generally within the discretion of the district court. State v. Wilson , 535 N.W.2d 597, 606 (Minn. 1995). A defendant must establish a prima facie case of jury misconduct for a Schwartz hearing to be mandated. Id.
To establish a prima facie case, a defendant must submit sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct. Although the trial court may allow the prosecution to submit evidence rebutting jury misconduct, it may ignore that evidence in ordering a hearing. The trial court need not, however, blindly accept the assertions submitted by defense counsel.
State v. Larson , 281 N.W.2d 481, 484 (Minn. 1979) (citation omitted).
Here, appellant's evidence of jury misconduct consists of testimony regarding alleged remarks that appellant looked guilty made by two female jurors during a trial recess. After an evidentiary hearing, the district court concluded that the remarks do not constitute jury misconduct, noting that they were premature, but [were] not based on improper outside influence, and would be permissible comment during deliberations. Therefore, whether other jurors heard the remarks is irrelevant, and no additional material facts would be learned in a Schwartz hearing.
In support of its decision, the district court cited State v. Butzin , 404 N.W.2d 819 (Minn.App. 1987), review denied (Minn. June 9, 1987). In Butzin , the appellant presented the following evidence of alleged jury misconduct: (1) statements made during trial by two female jurors to other jurors that the appellant was staring at them and that this "gave them the creeps," (2) a statement to other jurors by a male juror who had stood next to the appellant in the bathroom that if the appellant had touched him he "would have stuffed his head down the toilet," and (3) a statement made during deliberations by the same male juror that his mind was made up before the testimony had started. In holding those comments did not constitute jury misconduct, the court stated:
It would be totally unrealistic to expect a juror * * * to purge his consciousness of any and all reflections upon the trial at hand — an event which to him is an extraordinary and rare occasion.
Id. at 828 (quoting Olberg v. Minneapolis Gas Co. , 291 Minn. 334, 341, 191 N.W.2d 418, 423 (1971)).
Like the jury remarks in Butzin , the remarks by the two female jurors here, while improper and in violation of the court's instructions, do not rise to the level of jury misconduct. Accordingly, we conclude that the district court did not err in refusing to grant a Schwartz hearing.