This opinion will be unpublished and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
Filed January 2, 2002
Affirmed in part, reversed in part, and remanded
Pipestone County District Court
File No. K100134
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James O’Neill, Pipestone County Attorney, 114 North Hiawatha, P.O. Box 128, Pipestone, MN 56164 (for respondent)
Robert Reutter, 13620 County Highway 117, Dalton, MN 56324-4549 (for appellant)
Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Foley, Judge. *
Challenging his conviction of first-degree arson and insurance fraud, appellant Bobby Bleyenberg argues that the trial court abused its discretion in denying his request for a Schwartz hearing to investigate allegations of pre-existing jury prejudice and outside influence on the jury. Because appellant’s allegation of pre-existing jury prejudice goes to the jurors’ mental process in arriving at a verdict, and because the state rebutted the presumption of prejudice raised by appellant’s allegation that the county administrator improperly contacted the jury, we affirm the denial of a Schwartz hearing to inquire into those allegations. But because appellant established a presumption of prejudice by alleging that the bailiff communicated with the jury privately and the record reflects neither the nature of the bailiff’s communication nor evidence of its effect, we reverse the denial of a Schwartz hearing to inquire into this allegation, and we remand for an evidentiary hearing.
A jury found appellant guilty of first-degree arson and insurance fraud. Two weeks later, appellant moved for a Schwartz hearing into allegations of pre-existing jury prejudice and improper outside influence on the jury. In his motion papers, appellant claimed that, in response to written notes the jurors passed to the bailiff advising that they were deadlocked, the bailiff made a statement “to the effect that the jury must reach 100% agreement on conviction or acquittal.” According to appellant, the bailiff’s statement effectively eliminated the possibility of a deadlock in deliberations by causing two jurors to believe that they would not be released until they reached a unanimous verdict.
Appellant also claimed that the court administrator told the jurors that they needed to reach a decision soon because there were “people waiting downstairs.” And in an accompanying affidavit, two of the jurors alleged that “[m]ost of the jurors in favor of conviction based their decision on pre-existing prejudices against [appellant].” The jurors also alleged that they believed the jury would not be released until it reached a unanimous verdict and that they would have stood fast in their decision to acquit had they known they could deadlock.
The court conducted a preliminary hearing to determine the need for a Schwartz hearing. It gave appellant the opportunity to present additional evidence, but appellant opted to rely on his motion papers instead, noting that “the only thing we have to offer today by the way of evidence is the [jurors’] affidavit itself.” The state, on the other hand, called the county administrator, who emphatically denied telling the jurors that they had to reach a verdict because people were waiting.
The trial court noted on the record that it did not know of any notes passed under the door to the bailiff advising the court that the jury was deadlocked. But the court recalled being asked by the bailiff early in the deliberations if a unanimous verdict was required. The court also noted that it “advised the bailiff” that a unanimous verdict was indeed required. Before ruling on the motion, the court stated that the record contained no evidence that anyone “other than an officer in charge of the jury” communicated with the jury and “then only upon order of the Court.”
The court then denied appellant’s motion, reasoning that the allegation of jury prejudice called for an inquiry into the jurors’ thought processes and that appellant’s moving papers contained no evidence of any improper outside influence on the jury. As to whether a bailiff communicated with the jury, the court observed that it had previously instructed the jury that its verdict must be unanimous—an instruction, the record shows, with the caveat that “in order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict.” The court also reasoned that the evidence of appellant’s guilt was “overwhelming.”
Under Minnesota law, a criminal defendant who has reason to believe the verdict is subject to impeachment must move the court for a summary hearing to determine the need for an evidentiary hearing known as a Schwartz hearing. See Minn. R. Crim. P. 26.03, subd. 19(6); State v. Martin, 614 N.W.2d 214, 226 (Minn. 2000). A Schwartz hearing is warranted if the defendant submits evidence that, standing alone and unchallenged, would be sufficient to justify the conclusion of jury misconduct. State v. Larson,281 N.W.2d 481, 484 (Minn. 1979). The decision to grant a Schwartz hearing rests within the trial court’s broad discretion. State v. Church,577 N.W.2d 715, 721 (Minn. 1998).
1. Private Communications
Initially, we address appellant’s argument that the trial court abused its discretion in refusing to grant a Schwartz hearing to investigate two jurors’ allegations that the jury was improperly influenced by private communications.
In criminal cases, a court official’s private communication with a juror during trial about the matter pending before the jury is deemed presumptively prejudicial unless made pursuant to known rules or court instructions and with the full knowledge of all the parties. Remmer v. United States,347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954); State v. Cox,322 N.W.2d 555, 558 (Minn. 1982). A defendant may establish the presumption of prejudice through oral assertions or hearsay affidavits. Olberg v. Minneapolis Gas Co.,291 Minn. 334, 343, 191 N.W.2d 418, 424 (1971). Once the presumption is established, the burden shifts to the government to establish beyond a reasonable doubt that the alleged communication with the juror did not contribute to the verdict obtained. Cox,322 N.W.2d at 558.
The trial court properly denied a Schwartz hearing into the allegation that the county administrator improperly addressed the jury. The state rebutted the presumption of prejudice established by appellant’s allegation by calling the county administrator at the preliminary hearing to testify that he had not told the jury that they needed to reach a decision soon because “there were people waiting downstairs.” The court found the county administrator’s testimony determinative and properly denied relief on that portion of appellant’s arguments. The question of improper communications thus turns solely on the merits of appellant’s claim that the bailiff improperly addressed the jury privately about the matter at hand.
Appellant established the presumption of prejudice by alleging in his motion papers that the bailiff had improperly contacted the jury privately. The jurors’ affidavit incorporated by reference the statements in the motion papers. Contrary to the trial court’s ruling, appellant’s motion papers sufficiently established the presumption of prejudice necessary to justify a Schwartz hearing into his allegation of improper outside contact. Although the jurors’ allegation that the bailiff made a statement “to the effect that” a unanimous verdict was required describes merely an impression and may not suffice, in itself, to establish an improper outside contact, we are satisfied that it implies such a contact with sufficient specificity to require a judicial determination as to what was said and what effect any improper communication had.
We defer as required by law to the trial court’s broad discretion. Church,577 N.W.2d at 721. But because the specific content of the bailiff’s communication, if any, cannot be determined from this record, we conclude that the trial court erred in failing to inquire further to determine what, if anything, the bailiff told the jurors and what were the likely consequences of the communication. See State v. Green, 635 N.W.2d 82, 93-94 (2001)(remanding for a Schwartz hearing partly because of inadequacy of the record); State v. Shoen,578 N.W.2d 708, 715-16 (Minn. 1998) (remanding for a Schwartz hearing because the record did not reflect whether jurors knew defendant was wearing leg restraint and reviewing court could not assess prejudicial effect of the restraint); Cox, 322 N.W.2d at 559 (the proper procedure for reviewing a jury verdict challenged because of statements by court officials is “to determine from juror testimony what outside influences were improperly brought to bear upon the jury and then estimate their probable effect on a hypothetical average jury”).
2. Jury Prejudice
Appellant also argues that the trial court abused its discretion in denying his request for a Schwartz hearing to investigate allegations that the jury was prejudiced and that three of the jurors voted to convict only because they believed that the jury would not be released until it reached a unanimous verdict. There is no merit in this contention.
The admissibility of evidence at a Schwartz hearing is governed by Minn. R. Evid. 606(b). Rule 606(b) protects the jury’s deliberations from later scrutiny by prohibiting an inquiry into the jurors’ thought processes in arriving at a verdict. The allegations that the jury was prejudiced and that some jurors were unaware that they could deadlock would have required the jurors to testify about their thought processes in arriving at their verdict. The trial court properly denied a Schwartz hearing to assess those allegations. See Martin, 614 N.W.2d at 226 (upholding denial of motion for Schwartz hearing into allegation that sympathy controlled jury’s decision to convict); State v. Scheerle,285 N.W.2d 686, 687-88 (Minn. 1979) (upholding denial of motion for Schwartz hearing despite allegations that after trial two jurors complained to defense counsel that foreman had told them they could not consider a not-guilty verdict); State v. Domabyl, 272 N.W.2d 745, 746 (Minn. 1978) (holding trial court did not err in refusing to allow juror to impeach verdict on basis of misconception about the law).
In summary, we affirm the denial of a Schwartz hearing into the allegation that the jury was prejudiced, that three of the jurors voted to convict only because they believed they could not deadlock, and that the county administrator improperly contacted the jury. But because we cannot determine from this record what the bailiff told the jurors, if anything, and what the effect of any such communication was, we reverse the denial of a hearing into this matter and remand for a hearing confined to that question.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant expresses concern that jurors were not given the freedom to deadlock. The freedom to deadlock is not foreclosed by the instruction that either a guilty or not guilty verdict must be unanimous, the instruction the trial court first gave to the jury in this case. See 10 Minnesota Practice, CRIMJIG 3.04 (1999). The standard instruction materially varies from a more general instruction that the jury “must reach” a unanimous verdict one way or the other. Except for the standard instruction first given, appellant was not entitled to a jury instruction that broached the possibility of a deadlocked jury.
 Our reading of the record suggests the possibility that, by answering the bailiff’s question about the need for a unanimous verdict, the trial court may have inadvertently sanctioned the bailiff’s communication with the jury. If so, the issue is not whether the bailiff improperly contacted the jury but whether the court erred in instructing the jury and, as such, the issue may be considered the subject of a postconviction hearing rather than a Schwartz hearing.