This opinion will be unpublished and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
State of Minnesota,
Filed January 15, 2002
Hennepin County District Court
File No. 95074990
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Stephen Danforth, 970 Pickett Street North, 147636, Bayport, MN 55003-1490 (pro se appellant)
Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Foley, Judge.
Appellant challenges the district court’s order barring him, his mother, and anyone acting under his direction from contacting the jurors who convicted him of first-degree criminal sexual conduct five years earlier. Because we find no merit in appellant’s contentions, we affirm.
In March 1996, a jury convicted appellant Stephen Danforth of first-degree criminal sexual conduct. In December 2000, respondent advised the district court that some jurors in appellant’s trial received a 23-page juror questionnaire from appellant’s mother, Shirley Rabideau. In the questionnaire, Rabideau presents the jurors with new information, such as appellant’s lie-detector test results, and asks the jurors how these new facts would have impacted their deliberations. In addition, the questionnaire asks the jurors to discuss specific conversations they had with each other and the judge during their deliberations.
Respondent petitioned the district court for an order directing appellant, his mother, and others acting under his control to cease contact with the jurors from his trial. In support of respondent’s motion, an Assistant Hennepin County Attorney wrote a letter to the district court stating that he had a five-year familiarity with the writing style of appellant and that he believed appellant was the author of the questionnaire. Appellant responded to the motion in a letter claiming that the court lacked jurisdiction because the underlying criminal case was closed and that the court could not bind Rabideau, a nonparty. Appellant denies that he is the author, yet vehemently defends the legality of the questionnaire.
In March 2001, the district court found that Rabideau was acting as appellant’s agent and issued an order barring appellant, his mother, and any others acting under appellant’s direction from contacting the jurors.
Appellant claims that the district court lacked subject matter jurisdiction to hear the motion because his criminal case had closed. Existence of subject matter jurisdiction is a question of law reviewed de novo. Neighborhood Sch. Coalition v. Indep. Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992).
The Minnesota Supreme Court has concluded that, because attorneys or investigators for a defeated litigant should not interrogate jurors, the district court retains jurisdiction over posttrial jury contact.
[R]ather than permit or encourage the promiscuous interrogation of jurors by the defeated litigant, we think that the better practice would be to bring the matter to the attention of the trial court, and, if it appears that the facts justify so doing, the trial court may then summon the juror before [the judge] and permit an examination in the presence of counsel for all interested parties and the trial judge under proper safeguards.
Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). The district court must have inherent authority to protect jurors from harassment by parties or attorneys. Therefore, the district court had subject matter jurisdiction despite the completion of the prosecution.
Appellant also asserts that the court lacks subject matter jurisdiction because he had an appeal pending from the district court’s denial of his postconviction relief. Where there is an appeal pending, a district court’s jurisdiction is suspended only as to those matters that are necessarily involved in the appeal. Muecke v. State, 348 N.W.2d 808, 810 (Minn. App. 1984). The district court retains jurisdiction as to those matters independent of or supplemental to the appeal or collateral to the proceeding in which the appealed order or judgment was rendered. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984). This order was collateral to his criminal prosecution, and therefore the court retained jurisdiction to hear the motion.
Appellant also argues that the district court lacked personal jurisdiction over Rabideau, a nonresident, and cannot extend the order restricting communication with jurors to her. The existence of personal jurisdiction is a question of law reviewed de novo. TRWL Fin. Establishment v. Select Int’l, Inc., 527 N.W.2d 573, 575 (Minn. App. 1995). Minnesota’s long-arm statute confers personal jurisdiction over a nonresident who “[c]ommits any act outside Minnesota causing injury or property damage in Minnesota.” Minn. Stat. § 543.19, subd. 1(d) (2000). The Minnesota Supreme Court has interpreted the long-arm statute as authorizing Minnesota courts to exercise personal jurisdiction over nonresidents to the fullest extent possible consistent with due process. N. States Pump & Supply Co. v. Baumann, 311 Minn. 368, 370, 249 N.W.2d 182, 184 (1976). Due process requires that the nonresident have minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice. Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945).
Rabideau, a Wisconsin resident, had sufficient contacts with Minnesota because she sent a letter to the jurors who are Minnesota residents and who participated in a Minnesota criminal case involving her son, a Minnesota resident. Rabideau’s contact with the jurors constituted harassment because the questionnaire attempted to elicit confidential information regarding jury deliberations, specific conversations with the judge, and feedback regarding how new, inadmissible information would have impacted their deliberations. Thus, Minnesota’s long-arm statute authorizes the district court to exercise personal jurisdiction over Rabideau. Moreover, the court is only attempting to assert individual jurisdiction over Rabideau if she is acting under appellant’s control to contact the jurors from her son’s criminal trial.
Appellant argues that Rabideau was not acting under his control and that the district court’s finding to the contrary is not supported by evidence. “The trial court’s factual findings are subject to a clearly erroneous standard of review * * *.” State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996) (citation omitted), review denied (Minn. Nov. 20, 1996). The district court relied on the Assistant Hennepin County Attorney’s letter stating that, based on his five-year familiarity with appellant’s writing style, he believed appellant was the author of the questionnaire. The court also noted that the questionnaire addresses previous arguments that appellant raised to the district court and to this court. The questionnaire does mirror issues that appellant raised in his prior appeals to this court, including (1) alleged improprieties during jury deliberation; (2) exclusion of the child’s incompetency from evidence; (3) new polygraph evidence; and (4) prosecutorial misconduct. See State v. Danforth,573 N.W.2d 369 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998); State v. Danforth, No. C5-98-2054, 1999 WL 262143 (Minn. App. May 14, 1999), review denied (Minn. July 28, 1999); Danforth v. State, No. C6-00-699, 2000 WL 1780244 (Minn. App. Dec. 5, 2000), review denied (Minn. Feb. 13, 2001).
The district court’s finding is reasonable based on appellant’s numerous prior arguments and the attorney’s assertion. Furthermore, the court has jurisdiction to prohibit not only appellant, but also his agent, from contacting jurors post-verdict to inquire about jury deliberations.
Appellant argues that respondent lacks standing to bring this motion before the court because the prosecutor does not represent the jurors or have a personal stake in this matter. Appellant, however, cites no authority for the proposition that a prosecutor lacks standing to bring a motion to protect jurors. Issues not supported by authority are waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). Moreover, appellant’s standing arguments are misguided because the prosecutor has a duty to enforce the rights of the public and not to take a personal stake in the matters he presents to the court. See ABA Standards for Criminal Justice Prosecution 3-1.2., cmt. at 5 (1992) (prosecutor has fundamental obligation to enforce rights of public). Here, the prosecutor properly brought this motion to protect the jurors in appellant’s trial from further harassment.
As respondent notes, Minn. R. Prof. Conduct 3.5(f) mandates that attorneys bring inappropriate conduct toward jurors to the court’s attention.
A lawyer shall reveal promptly to the court improper conduct by, or by another toward, a jury or prospective juror or a member of the family thereof, of which the lawyer has knowledge.
Because appellant appeared pro se in the underlying case and is appealing this order pro se, he is generally held to the same standards as attorneys. Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). “[A]ttorneys should not be allowed to contact and harass jurors who render verdicts of a nonsuspicious nature.” Olberg v. Minneapolis Gas Co., 291 Minn. 334, 344, 191 N.W.2d 418, 425 (1971). Here, appellant’s contact with the jurors through his mother was improper. Therefore, respondent did allege an actual injury to the jurors and had standing to bring this motion.
Appellant argues that respondent, as a party opponent, should be barred from bringing this motion because it has a conflict of interest. Appellant does not explain why being a mere adversary is a conflict of interest, and he cites no authority for this proposition. See Modern Recycling, Inc., 558 N.W.2d at 772 (issues not supported by authority are waived unless prejudicial error is obvious on mere inspection). Moreover, appellant’s conflict of interest argument would not preclude the prosecutor from his mandatory duty to report evidence of improper jury contact to the district court’s attention. Thus, respondent properly brought the motion before the court.
Appellant argues that the district court violated his due process rights by failing to provide him with an evidentiary hearing before the court imposed this restrictive order. Appellant further contends that, because he was not afforded a hearing on the motion, the court’s findings lack evidentiary support. At a minimum, the Due Process Clause requires that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57 (1950).
Appellant relies on a nonbonding, out-of-state case for the proposition that a party is entitled to procedural due process when the court seeks to restrict anyone from communicating with jurors postverdict. Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 827 (Ky. 2001), however, is not analogous or controlling here. Braden involved a newspaper’s claim that the district court’s posttrial order preventing “anyone” from contacting jurors was an unconstitutional prior restraint on the First Amendment right to speak with jurors and to gather news. Id. at 825. Furthermore, our supreme court has stated that a matter involving neither an adversarial proceeding nor a justiciable controversy does not require a full adversarial hearing. In re Burns, 542 N.W.2d 389, 390 (Minn. 1996). In Burns, the district court issued an order prohibiting a pro se litigant’s communications with the court. Id. The supreme court held that the “district court fully provided Burns with a ‘fair opportunity’ to demonstrate why she should be permitted the continued latitude in communicating with that court.” Id.
Here, the record contains an affidavit of service that states that appellant was served with the notice of motion and motion on December 15, 2000. Although appellant claims that he never received notice of the hearing, he did respond to the motion in a letter dated December 26, 2000, claiming that the court lacked jurisdiction to hear the motion. In his letter to the court, appellant, who is currently incarcerated, did not request an appearance to be heard on the motion. As in Burns, because this matter involves neither an adversarial proceeding nor a justiciable controversy, a full adversarial hearing was not required. Although appellant was not present at the hearing, he did not request such an appearance, and the court took into account appellant’s objections to respondent’s motion. Here, the district court properly provided appellant with a “fair opportunity” to demonstrate why he should not be barred from further contact with the jurors from his trial, and the court did not violate his due process rights.
Appellant argues that, because the responses from the juror questionnaire could not support a Schwartz hearing and because five years have passed, he should not be barred from contacting the jury. The district court’s order prohibiting appellant’s contact with jurors relies on the rule that “a defeated litigant’s attorney should never interrogate a juror or telephone him for the purpose of gathering evidence for a request for a Schwartz hearing.” Baker v. Gile, 257 N.W.2d 376, 377-78 (Minn. 1977). Appellant argues that the district court’s reliance on this case is misplaced because this questionnaire is five years postverdict, the responses would not warrant a Schwartz hearing, and the communication was not by telephone or personal contact.
Although appellant’s motives for contacting the jurors is unclear, the policy of protecting jurors from harassment postverdict extends to attorneys and their agents regardless of when, how or why they contact jurors. See, e.g., Zimmerman v. Witte Transp. Co.,259 N.W.2d 260, 262-63 (Minn. 1977) (attorneys and their agents should not initiate contact with jurors regarding possible juror misconduct.); Olberg, 291 Minn. at 344, 191 N.W.2d at 425 (attorneys should not be allowed to contact and harass jurors who render verdicts of a nonsuspicious nature); State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000) (jurors must be protected from harassment by counsel after the verdict). Regardless of whether appellant attempted to use the responses in a Schwartz hearing, appellant’s harassment of the jurors is clearly prohibited, and thus the court properly barred appellant from further contact with the jury.
Appellant argues that the court deprived him of his right to freedom of speech by barring contact with the jurors. Appellant relies on Braden for the principle that a postverdict order prohibiting communications with jurors is a violation of free speech. Constitutional issues are questions of law and are subject to de novo review. State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).
Braden’s discussion of First Amendment protection was limited to the press. 39 S.W.3d at 827. As a pro se litigant, appellant is held to the same standards as an attorney, and his rights to free speech regarding the jury are limited. See Olberg, 291 Minn. at 344, 191 N.W.2d at 425 (attorneys should not contact and harass jurors who render verdicts of a nonsuspicious nature). Thus, the district court’s order does not deprive appellant of his right to freedom of speech.
Appellant contends that the district court’s order improperly modified his sentence by making the order a term of his confinement. Under Minn. R. Crim. P. 27.03, subd. 9, the trial court does not have authority to modify a sentence once it has been executed. State v. Ford, 539 N.W.2d 214, 230 (Minn. 1995). The court here, however, has not modified appellant’s sentence for sexual criminal conduct because this order is collateral to his sentencing and merely imposes a restriction on his communication with jurors. The order does not, as appellant proposes, lengthen the term of his imprisonment.
Appellant also argues that double jeopardy protects him from being punished twice for the same conviction. The court here, however, is punishing him for his improper contact with jurors and not for his criminal sexual conduct. Therefore, double jeopardy does not apply.
Appellant, over time, has had numerous reviews of various aspects of his conviction. It is time to bring finality to his attempts for appellate relief.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.