This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








State of Minnesota,





Bobby Dean Bleyenberg,



Filed December 10, 2002


Robert H. Schumacher, Judge


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 E. O'Neill, Pipestone County Attorney, 114 North Hiawatha, Post Office Box 128, Pipestone, MN 56164 (for respondent)


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



            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Bobby Dean Bleyenberg appeals the denial of his motion for a new trial, claiming he was prejudiced when a bailiff told the jury that they must be in complete agreement to reach a verdict.  Bleyenberg also claims that the presiding judge should have recused himself at the Schwartz hearing.  We affirm. 


            A jury found Bleyenberg guilty of first-degree arson and insurance fraud.  Two weeks later, he moved for a Schwartz hearing with allegations of jury prejudice and improper outside influence on the jury.  Bleyenberg claimed that during jury deliberations the bailiffs told the jury that they had to reach 100% agreement on conviction or acquittal. 

            The district court conducted a preliminary hearing pursuant to Minn. R. Civ. P. 26.03, subd. 19(6) to determine the need for a Schwartz hearing.  The court denied the motion, reasoning that the allegation of prejudice called for an inquiry into the jurors' thought processes and that Bleyenberg's moving papers contained no evidence of any improper outside influence on the jury.  The court also noted that the evidence of Bleyenberg's guilt was overwhelming.  Bleyenberg appealed to this court, claiming he was entitled to a Schwartz hearing.

            On appeal, this court ruled that the district court properly denied a Schwartz hearing into allegations that the county administrator improperly addressed the jury but because the specific content of the bailiffs' communication, if any, could not be determined from the record, the court erred in failing to grant a Schwartz hearing. 

            The district court on remand held a hearing at which two bailiffs, two jurors, and the county administrator testified as to their recollection of the communications made during jury deliberations.  The jury foreperson testified that during deliberations the jury had a question regarding a unanimous verdict.  The foreperson claimed that someone told him through the jury room door that the jury had to be in complete agreement to reach a verdict. 

            Another juror testified that she believed a verbal communication was  made that the jury must reach a unanimous verdict.  The juror testified that she thought the county administrator made the statement.  She also testified that she did not remember the bailiffs saying anything to the jury regarding a unanimous verdict.  Both jurors also recalled notes being passed from the jury room regarding the unanimous verdict and written responses coming back. 

            Both bailiffs testified that they did not make any statements to the jurors regarding a unanimous verdict.  Both bailiffs also testified that they never wrote any notes to the jury.  The district court found that the bailiffs did not have any improper contact with the jury during the deliberations.  The court further found that the bailiffs "had no communication with the jury, other than receiving written notes and delivering those notes to the court," and that the jurors' testimony was contradictory and unbelievable. 


            This court independently reviews a claim of jury prejudice from outside influence.  State v. Sanders, 376 N.W.2d 196, 205 (Minn. 1985).  But we review the district court’s factual findings only for clear error.  State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).

            1.         Bleyenberg argues that the record is clear that the bailiffs had improper contact with the jury during deliberations creating a presumptive prejudice.  We disagree.  There is adequate evidence in the record to sustain the postconviction court's finding that the bailiffs did not have any improper contact with the jury.  The bailiffs were clear in their testimony that they did not make any comments to the jury in either written or verbal form.  The jurors had vague recollections of somebody informing them that their verdict must be unanimous but did not know who made the statements. 

The district court found that one juror was unhappy with the verdict rendered.  The court also found that the jurors' testimony was inconsistent and unbelievable.  We defer to the fact-finder on determinations of credibility. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  The district court did not abuse its discretion in denying Bleyenberg's motion for a new trial. 

2.         Bleyenberg also argues that the district court judge should have recused himself from the Schwartz hearing because it involved the propriety of the judge's actions.  He argues that there is an appearance of impropriety where the same judge who instructed the jury and spoke with the bailiffs and the county administrator presides over the hearing.

Bleyenberg did not make a motion to have the district court judge removed at the time of the hearing.  This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  We decline to consider the argument.