This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-2142

 

 

State of Minnesota,

Respondent,

 

vs.

 

Brandon Carl Heinl,

Appellant.

 

 

Filed August 14, 2001

Affirmed

G. Barry Anderson, Judge

 

Ramsey County District Court

File No. KX001432

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, Minnesota State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Robert Schumacher, Presiding Judge, R.A. Randall, Judge and G. Barry Anderson, Judge.


U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

Appellant, convicted of second-degree burglary with a tool, challenges the district court’s denial of his motion for a new trial or, alternatively, his request for a Schwartz hearing, based on juror misconduct.  Appellant also contends that he should be granted a new trial in the interests of justice.  We affirm.

FACTS

A.B. and A.D. reside at 957 Rose, a residence in St. Paul.  A.D. had expensive tire rims on his vehicle, which he kept locked in his detached garage.  As an additional precaution, A.D. placed a baby monitor in the garage so that he could monitor any attempts to steal the rims.

At about 1:30 a.m. on May 1, 2000, A.B. heard a noise on the baby monitor and woke A.D., who went outside with his dog to investigate.  Shortly thereafter, A.B. heard two gun shots.  When A.D. came back into the house, he told A.B. to call the police.  Shortly thereafter, St. Paul Police received a report of a burglary at 957 Rose.  Officer Stephanie Bailey arrived at the residence and found (1) the garage door lock broken; (2) a car jack under the vehicle; and (3) a tire iron nearby.  Officer Sean Burton, en route to the crime scene, was informed that one of the suspects in the crime, a white male, ran from the scene wearing a white flannel shirt and carrying a flashlight.  Approximately three blocks from 957 Rose, Officer Burton stopped appellant Brandon Carl Heinl, who was wearing a white and black flannel shirt and carrying a flashlight.  According to Officer Burton, appellant was “breathing heavily” and “sweating profusely.”  Officer Burton took appellant to 957 Rose, and later to police headquarters.

While at the crime scene, Officer Burton interviewed a neighbor who stated that after hearing the gun shots, he saw a white man and a black man running opposite directions down the alley.  The neighbor explained that the black man was wearing a dark shirt and the white man was wearing a flannel shirt and carrying a flashlight.  At trial, the neighbor testified that the shirt worn by appellant when he was arrested appeared to be the same flannel shirt worn by the man running down the alley.

            Sergeant Neil Nelson, who interviewed appellant the morning after the burglary, testified that appellant initially denied involvement in the crime but later admitted that (1) he made a living by stealing tire rims; (2) he and another person went into the garage to steal the rims; and (3) he ran from the garage when a person came out of a house with a dog and he heard a gun shot.  Appellant did not testify.

During jury deliberations, the district court judge received a note from the jury requesting the “Statement to Neil Nelson, police officer.”  The district court judge denied the request stating “[y]ou are to rely, as I told you earlier[,] [o]n the instructions which are in the book[,] on evidence as it was presented to you[,] and on the law as it was given to you by myself.” 

The jury convicted appellant of second-degree burglary, a violation of Minn. Stat. § 609.582, subd. 2(d) (2000).  After the trial concluded, a juror approached the district court and expressed concerns about the deliberations.  The juror explained to the district court that when a disagreement arose over the weight given to certain testimony, the foreperson, who had control of the jury instructions, told the jurors that they must accept testimony as the “absolute truth” because all testimony had to be accepted at face value.  In addition, the juror stated that the foreperson and other jurors refused to allow a juror to ask the court for a clarification of the law.  The same juror and a second juror expressed these concerns to defense counsel.

After learning of this information, appellant filed a motion for a new trial or, alternatively, a Schwartz hearing, based on juror misconduct.  The district court denied the motions.  Appellant challenges the district court’s ruling on appeal.

D E C I S I O N

I.

When a defendant suspects a guilty verdict was tainted by juror misconduct, the defendant can make a post-trial motion to the district court for a Schwartz hearing.  Minn. R. Crim. P. 26.03, subd. 19(6); Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  A defendant must establish a prima facie case of jury misconduct before a motion for a Schwartz hearing will be granted.   State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979).  “To establish a prima facie case, a defendant must submit sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.”  Id. (citation omitted).  This court reviews the denial of a Schwartz hearing for an abuse of discretion.  State v. Church, 577 N.W.2d 715, 721 (Minn. 1998).

Appellant argues that the district court abused its discretion when it denied his request for a Schwartz hearing because statements made by jurors reveal coercion during the jury deliberation process.  The usefulness of a juror’s statement regarding a verdict, however, is limited by the Minnesota Rules of Evidence: evidence of what happened in the jury room is inadmissible, except that evidence of improper extraneous prejudicial information, outside influence, or threats of violence or violent acts is admissible.  Minn. R. Evid. 606(b); see also State v. Callender, 297 N.W.2d 744, 746 (Minn. 1980) (recognizing an exception to rule 606(b) where racial bias by a juror is alleged); State by Lord v. Hayden Miller Co., 263 Minn. 29, 35, 116 N.W.2d 535, 539 (1962) (holding that an exception to the prohibition against juror testimony exists when a juror conceals a prejudice or bias on voir dire that would have disqualified the juror from service).  The Minnesota Supreme Court recently addressed this issue, stating, “a jury’s deliberations must remain inviolate and its verdict may not be reviewed or set aside on the basis of affidavits or testimony concerning that which transpired in the course of the jurors’ deliberations.”  State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000) (citations omitted).  The supreme court explained:

The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.

 

Id. (citations omitted).

Appellant has not established a prima facie case of jury misconduct.  He does not allege that improper extraneous prejudicial information was considered by the jury, that an outside influence was brought to bear on a juror, or that threats of violence -- either from outside the jury or among the jury members themselves -- affected the verdict.  Appellant does not allege that a juror concealed a prejudice that would have disqualified the juror from service, or that racial bias by a juror affected the verdict. 

Instead, appellant alleges that the jury foreperson told jurors what weight to give testimony and did not allow members of the jury to ask the district court for a clarification of the law.  Although the jury foreperson’s alleged actions are certainly troubling, we conclude that these actions do not rise to a level requiring a Schwartz hearing.  Importantly, as the comment to Minn. R. Evid. 606(b) notes, a “[district] court must distinguish between testimony about psychological intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence.”  Minn. R. Evid. 606(b) cmt.  Nothing in the record indicates actions by the jury foreperson other than inadmissible psychological intimidation, coercion, and persuasion.  CfState v. Scheerle, 285 N.W.2d 686, 687-88 (Minn. 1979) (affirming the denial of a Schwartz hearing where a defendant, found guilty of first-degree manslaughter, alleged that, after trial, two jurors complained to the defense counsel that the jury foreman had told them they could not consider a not guilty verdict); State v. Hoskins, 292 Minn. 111, 126-27, 193 N.W.2d 802, 813 (1972) (stating that “in any jury of 12 persons a few, by dint of personality, experience, or knowledge, will predominate” but, unless the predominance is obtained by coercive actions, postverdict impeachment by a juror is not allowed).[1]  Because appellant failed to bring forth evidence that, standing alone and unchallenged, would warrant the conclusion of jury misconduct, we conclude that the district court did not abuse its discretion when denying appellant’s motion for a Schwartz hearing.

II.

Appellant alternatively argues that the district court erred in denying his request for a new trial in the interests of justice.  See Minn. R. Crim. P. 26.04, subd. 1(1) (stating a new trial may be granted “[i]f required in the interests of justice”).  A district court’s decision to deny a motion for a new trial pursuant to rule 26.04 will not be overturned absent an abuse of discretion.  State v. Kelley,517 N.W.2d 905, 910 (Minn. 1994).

Appellant relies on State v. Langteau, 268 N.W.2d 76 (Minn. 1978)  to support his argument that he deserves a new trial in the interests of justice.  In Langteau, a defendant was convicted of aggravated assault for robbing his friend at gunpoint.  Id. at 77. The defendant at all times categorically denied any involvement in the crime, insisting that at the time of the offense he was in his room listening to the radio.  Id.  No evidence was discovered to link defendant with the crime.  Id.  The suggestion of the prosecuting attorney that this irrational action was explainable as the act of a person under the influence of drugs had no support in the record.  Id.  Accordingly, the supreme court granted a new trial in the interests of justice.  Id.

Langteau is distinguishable from this case because there is ample evidence in the record linking appellant to the crime.  A neighbor testified that the man he saw run down the alley was wearing a flannel shirt and carrying a flashlight.  Appellant, arrested three blocks from A.D.’s garage, was wearing a flannel shirt and carrying a flashlight, and was  “sweating profusely and breathing hard as if he had been running.”  Appellant admitted to police that he made a living by stealing rims and that he entered the garage to steal the rims.  Therefore, we conclude that the district court did not abuse its discretion by denying appellant’s motion for a new trial.

Affirmed.



[1] See also State v. Hellum, No. C6-90-1722, 1991 WL 80694 *2-*4 (Minn. App. May 21, 1991) (stating evidence of the psychological domination of the jury by the foreman is not sufficient to warrant a Schwartz hearing where foreman had been very manipulative, had been watching television news accounts of the trial, and had announced his opinion before the jury began deliberations).  We recognize, however, that Hellum has no precedential value as an unpublished opinion.  Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).