This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Mebrat Belay Yeazizw,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 01014419
Jill Clark, Esq., Jill Clark, P.A., Special Assistant State Public Defender, 2005 Aquila Avenue North, Golden Valley, MN 55427; and
Jill Waite, Esq., Attorney at Law, Special Assistant State Public Defender, 2856 Humbolt Avenue South, Minneapolis, MN 55408 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Christopher P. Renz, Thomsen & Nybeck, P.A., Edinborough Corporate Center East, 3300 Edinborough Way, Suite 600, Edina, MN 55435 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Forsberg, Judge. *
In this appeal from her convictions of disorderly conduct and obstructing legal process, appellant argues that (1) the disorderly conduct and obstructing legal process statutes are unconstitutionally vague and overbroad; (2) there was insufficient evidence to support her convictions; (3) the district court abused its discretion in finding probable cause to support the charged offenses; (4) the district court abused its discretion in denying her a hearing on her motion to dismiss for discriminatory enforcement; (5) because of the cumulative effect of several evidentiary rulings, she did not receive a fair trial; (6) the district court erred in denying her motion for a new trial; and (7) the district court erred in denying her motion for a Schwartz hearing. The state argues that appellant’s brief should be disregarded because it fails to comply with rules of appellate procedure. We affirm in part, reverse in part, and remand.
On January 18, 2001, appellant Mebrat Yeazizw was no longer employed by English Rose Suites (ERS), a private residential facility in Edina that provides care for people with dementia and related disorders. She visited the facility to pick up her last paycheck. Yeazizw went to an office on the lower level of the facility and spoke with Geralyn Mornson, a co-owner of ERS, regarding her paycheck. During the conversation, Yeazizw and Mornson began to argue about a discrepancy in the number of work hours reflected in Yeazizw’s paycheck. Testimony differs about the argument and subsequent events. Co-owner Jayne Clairmont, whose office was nearby, testified at trial that she asked Yeazizw three times to lower her voice because of the adverse effect it would have on the patients in the facility. After repeatedly asking Yeazizw to leave, Clairmont put her hand on Yeazizw’s arm to guide her from her seat. When Yeazizw did not comply with the requests to leave, Clairmont asked Mornson to call the police.
Yeazizw testified that Mornson became angry while recalculating Yeazizw’s hours and threw a calculator at Yeazizw, striking her arm and causing it to bleed. Yeazizw also stated that she tried to call the police, but Mornson pulled the telephone away from her and took her earring. Yeazizw testified that Clairmont and another individual restrained her, and she was never asked to leave before the police arrived.
There are also differing accounts of what happened once Edina police officers Kris Eidem, Troy Kemp, and Abagail Hammond responded. Clairmont testified that, after the police arrived, they spoke with Yeazizw and gave her a card explaining how she could pursue a civil lawsuit to recover any money ERS owed her. Clairmont testified that the officers were able to understand Yeazizw and Yeazizw did not ask for an interpreter. The officers also spoke with Clairmont to determine how she was involved in the incident. The officers asked Yeazizw more than once to leave the property. According to Clairmont, on the way up the stairs, Yeazizw began to flail and resist the officers, such that the officers had to put her against a wall. Eidem, Kemp, and Hammond also testified that, as they walked Yeazizw up the stairs, she was struggling, physically resisting, and screaming in a high tone of voice. Eidem also testified that, once the officers got Yeazizw outside of ERS, Yeazizw started to pull away. Consequently, the officers handcuffed her because they were concerned that she would hurt someone or break a window.
Yeazizw testified that when the police arrived, they went directly to her, handcuffed her, and dragged her out of the facility. She stated that she had difficulty understanding the officers and did not have an opportunity to tell her side of the story.
On February 9, 2001, Yeazizw was charged with disorderly conduct, in violation of Minn. Stat. § 609.72, subd. 1(3) (2000), and obstruction of legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2000). After a jury trial, Yeazizw was convicted of both offenses and sentenced to serve 180 days in the workhouse, with 175 days stayed. This appeal followed.
1. Facial Challenge
Yeazizw argues that Minn. Stat. § 609.72, subd. 1(3) (2000), which proscribes disorderly conduct, is unconstitutional on its face because it is both vague and overbroad. Established precedent holds otherwise. Section 609.72 provides, in pertinent part:
Whoever does any of the following in a public or private place, * * * knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
* * * *
Minn. Stat. § 609.72, subd. 1(3).
Vague statutes are prohibited under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 7, of the Minnesota Constitution. State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985). A statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)). “A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights.” State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (citation omitted). In a facial challenge to a statute punishing spoken words, the conduct underlying the conviction is irrelevant. In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978). Thus, we need not consider Yeazizw’s charged conduct to consider whether the statute is facially constitutional.
Although it narrowed the reach of Minn. Stat. § 609.72, subd. 1(3), in S.L.J., the Minnesota Supreme Courthas upheld the facial constitutionality of the statute in terms of both vagueness and overbreadth. S.L.J., 263 N.W.2d at 419; see also State v. Klimek,398 N.W.2d 41, 42 (Minn. App. 1986). As to its application to speech, the disorderly conduct statute may only prohibit “fighting words.” In re Welfare of M.A.H., 572 N.W.2d 752, 756 (Minn. App. 1997) (quoting S.L.J., 263 N.W.2d at 418-19). Prohibiting speech that merely arouses “‘alarm, anger or resentment’ is overbroad and vague.” Id. “Fighting words” are defined as “those personally abusive epithets which, when addressed to the ordinary citizen, are likely to provoke violent reaction or tend to incite an immediate breach of the peace. Words that merely tend to arouse alarm, anger, or resentment in others are not fighting words.” Klimek,398 N.W.2d at 43 (quotation and citation omitted). Thus, “a conviction of disorderly conduct cannot be predicated only on a person’s words unless those words are ‘fighting words.’” State v. McCarthy, 659 N.W.2d 808, 810-11 (Minn. App. 2003) (quoting S.L.J., 263 N.W.2d at 419). As Yeazizw points out, the relevant language of Minn. Stat. § 609.72, subd. 1(3), has not changed since S.L.J. was decided. Although the reach of the statute has been narrowed, Minn. Stat. § 609.72, subd. 1(3), is facially constitutional.
2. As-Applied Challenge
In examining the conduct of a person accused of disorderly conduct, the words of a defendant are considered as a “package” along with conduct and physical movements. M.A.H., 572 N.W.2d at 757 (citation omitted). Here, Yeazizw’s charged conduct included physically resisting the officers and was not merely oral statements. At the least, the disorderly conduct statute’s proscription of abusive and boisterous conduct applies to both Yeazizw’s speech and her physical conduct. Thus, the application of Minn. Stat. § 609.72, subd. 1(3), to the total “package” of Yeazizw’s conduct is constitutional. Id.
B. Obstruction of Legal Process
1. Facial Challenge
Yeazizw also contends that Minn. Stat. § 609.50, subd. 1(1) (2000), which prohibits obstruction of legal process, is unconstitutional on its face. The statute prohibits conduct that “obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense.” Minn. Stat. § 609.50, subd. 1(1).
The Minnesota Supreme Court has held that section 609.50, subdivision 1(1), is not facially overbroad or vague. State v. Krawsky, 426 N.W.2d 875, 879 (Minn. 1988); see also State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001) (noting that the Krawsky court “held that section 609.50 was not facially overbroad or vague”). In reaching this holding, the Krawsky court reasoned that “[p]ersons of common intelligence need not guess at whether their conduct violates the statute” and that the statute does not “encourage arbitrary or discriminatory enforcement by the police.” Krawsky, 426 N.W.2d at 878. In State v. Ihle, 640 N.W.2d 910, 915 (Minn. 2002), the Minnesota Supreme Court stated that, in Krawsky,
[w]ithout making an explicit holding on its constitutionality, we construed the statute narrowly, holding that the statute required the state to prove that the defendant acted intentionally and that the statute was directed at words and acts that have the effect of physically obstructing or interfering with a police officer.
Ihle, 640 N.W.2d at 915. Although Ihle’s characterization of Krawsky leaves doubt as to how explicit Krawsky’s holding is, it nevertheless makes clear that, on its face, the statute constitutionally prohibits words and acts that physically obstruct or interfere with a peace officer’s duties. We thus conclude that this issue has been decided and that Minn. Stat. § 609.50, subd. 1(1), is neither unconstitutionally vague nor overbroad.
2. As-Applied Challenge
“Krawsky requires that in order for a violation of Minn. Stat. § 609.50, subd. 1(1) or (2) to exist, there must be a finding that the accused physically obstructed or interfered with a police officer while that officer was engaged in the performance of his official duties.” Tomlin, 622 N.W.2d at 549. Because the allegations against Yeazizw included physical conduct that interfered with a peace officer, as applied to this case, Minn. Stat. § 609.50, subd. 1(1), is neither unconstitutionally vague nor overbroad. Thus, we conclude that Yeazizw’s challenge to the obstruction of legal process statute has no merit.
Yeazizw also challenges the sufficiency of the evidence to support her convictions of disorderly conduct and obstructing legal process. In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The elements of disorderly conduct are: (1) the defendant “engaged in offensive, obscene, abusive, boisterous, or noisy conduct, or in offensive, obscene, or abusive language tending reasonably to arouse, alarm, anger, or resentment in others;” (2) the defendant “knew, or had reasonable grounds to know, that the conduct would, or could tend to” alarm, anger, or disturb others; and (3) the conduct occurred in a public or private place. Minn. Stat. § 609.72, subd. 1(3); 10 Minnesota Practice, CRIMJIG 13.121 (1999). Verbal conduct may be examined along with physical conduct. M.A.H., 572 N.W.2d at 757. As discussed above, “a defendant’s words are considered as a ‘package’ in combination with conduct and physical movements, viewed in light of the surrounding circumstances.” Id. (citation omitted).
The record establishes that Yeazizw’s truculent conduct was both physical and verbal. Clairmont testified that, as the officers escorted Yeazizw out of ERS, Yeazizw was flailing and resisting the officers and “yelling and screaming at the top of her lungs.” Clairmont’s testimony also established the sensitive nature of the residents of ERS. In addition, Eidem, Hammond, and Kemp testified that, while screaming in a high tone of voice, Yeazizw struggled and physically resisted their efforts to walk her up the stairs. A jury could reasonably conclude from the evidence that Yeazizw committed disorderly conduct. Accordingly, there is sufficient evidence to support her conviction.
Conduct charged under Minn. Stat. § 609.50, subd. (1), “must rise to the level of a physical obstruction or be words, such as fighting words, that have the effect of physically obstructing or interfering with an officer conducting an investigation.” Tomlin, 622 N.W.2d at 548. The elements of obstruction of legal process are: (1) that the officers were engaged in the performance of their duties; (2) that the defendant obstructed, hindered, or interfered with the officers in the performance of their duties; and (3) that the defendant acted with intent to obstruct, hinder, prevent, interfere with, or deter the officers. Minn. Stat. § 609.50, subd. 1(1); 10A Minnesota Practice, CRIMJIG 24.26 (1999). As discussed above in relation to the disorderly conduct offense, there is ample evidence of Yeazizw’s intentional physical and verbal conduct that obstructed and interfered with the officers. Because a jury also could reasonably conclude from the evidence that Yeazizw committed the offense of obstruction of legal process, this challenge to the sufficiency of the evidence also fails.
Yeazizw argues that she was not allowed to challenge probable cause in her case. We construe this statement as an argument that the district court abused its discretion when it denied Yeazizw’s motion for a contested probable-cause hearing. Several orders at various stages of the pretrial proceedings addressed probable cause. In its November 13, 2001, order denying Yeazizw’s motion to dismiss for lack of probable cause, the district court found that “the trial court has already determined that probable cause existed.” Yeazizw moved for an additional probable-cause hearing, and the district court again denied the motion, concluding that probable cause had already been determined two times — first, when Yeazizw was arraigned without objecting to probable cause and again, months later, in the November 13 order. The district court then proceeded to find for a third time that “[a] review of the complaint shows that the facts establishing probable cause to believe an offense has been committed and that the Defendant committed it are included therein.”
We are satisfied that the charges were supported by probable cause, as the district court correctly determined each time the issue was raised. Yeazizw’s conduct occurred in the presence of the officers and her former employers. Thus, her identity was never in question. Further, “[w]hile probable cause to arrest requires something more than mere suspicion [of criminal activity], it requires less than the evidence necessary for conviction.” State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000) (citation omitted). Because the existence of probable cause had previously been determined without objection at the time that Yeazizw sought a contested hearing, the district court did not abuse its discretion when it denied the motion for a contested probable-cause hearing. Moreover, because Yeazizw was convicted of the offenses, we conclude that the issue of whether there was probable cause at the time of her arrest is moot.
Yeazizw also contends that we should order an independent investigation of the conduct that led to her arrest. Because Yeazizw cites no legal authority demonstrating that she is entitled to this remedy or that we are empowered to order it, and because Yeazizw has not directed us to any decision of the district court related to this issue for appellate review, this argument clearly lacks merit.
Yeazizw asserts that the district court erred when it denied her motion to dismiss for discriminatory enforcement. Yeazizw alleges that she was arrested and prosecuted because of her race and ethnicity. Finding that Yeazizw’s allegations were frivolous and conclusory, the district court determined that she had not met the threshold requirements for a hearing on discriminatory enforcement. We review de novo the district court’s denial of a motion to dismiss. State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999).
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits intentional, discriminatory enforcement of nondiscriminatory laws. City of Minneapolis. v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976) (citation omitted). A criminal defendant may raise the defense of discriminatory enforcement of criminal laws by law enforcement officials at all levels. Id. at 66, 240 N.W.2d at 503. Yeazizw has the burden of producing evidence of discrimination by a clear preponderance of the evidence. Id.
To prove discriminatory enforcement,
a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional right.
State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984) (citation omitted).
Our review of the record establishes that the district court’s determination was not erroneous. The proffered evidence does not show that Yeazizw was singled out because of her race or ethnic origin. There is no evidence that the officers knew of her race or ethnic origin before they responded to ERS. Although she was the only black and Ethiopian-born person at ERS who was arrested, she was also the only person who physically resisted the officers. Further, while our careful review of the Scales tape from the police station reveals a heated discussion between one of the officers and Yeazizw as to whether she was arrested because of her race, she has not met her burden of showing that her race, ethnicity, or this post-arrest discussion led to Yeazizw’s prosecution. Accordingly, the district court properly denied Yeazizw’s motion to dismiss for discriminatory enforcement.
Yeazizw argues that the cumulative effect of several evidentiary rulings by the district court resulted in an unfair trial. Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
Yeazizw sought additional discovery after learning that, in March 2002, Mornson had a “psychotic episode” resulting in a traffic fatality. Yeazizw argues that the district court abused its discretion when it declined to conduct an in camera review of Mornson’s medical records and denied the discovery motion. Yeazizw contends that evidence of the episode would explain Yeazizw’s behavior toward the police. A district court has broad discretion in discovery rulings. State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998). The district court denied the motion, concluding that the records were not relevant because “they would tend to prove Defendant’s version of events before the police arrived,” rather than after they arrived. (Emphasis in original.) The district court further stated that “[w]hether or not Ms. Mornson was acting erratic with regard to Defendant simply has no bearing on Defendant’s interaction with the police.” We agree.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. The district court must also recognize that the defendant has a constitutional right to “be afforded a meaningful opportunity to present a complete defense * * * .” Wildenberg, 573 N.W.2d at 697 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)). While “not all relevant evidence in the hands of the prosecution is discoverable, where it is material to guilt or innocence, or to sentencing, denying access to the defendant unconstitutionally impairs the defense[.]” Wildenberg, 573 N.W.2d at 697.
Mornson’s medical records were not relevant to the charges against Yeazizw. The offense conduct consists of Yeazizw’s actions toward the police, not actions occurring between Mornson and Yeazizw. Any evidence regarding Mornson’s mental health would not have addressed the fact questions regarding what happened once police arrived at ERS. While Mornson’s mental health may have affected why Yeazizw conducted herself the way she did when police arrived, it does not affect the probability of whether she committed the charged offenses. We, therefore, conclude that the district court did not abuse its discretion in denying Yeazizw’s discovery motion. See State v. Bakken, 604 N.W.2d 106, 110-11 (Minn. App. 2000) (holding that the district court did not abuse its discretion in ruling that sexual assault victim’s social services records “contained nothing relevant or material to [appellant]’s defense”), review denied (Minn. Feb. 24, 2000). In the absence of any showing that Mornson’s medical records were relevant to Yeazizw’s defense, we also conclude that the district court was not compelled to perform an in camera review of the records. See State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (concluding that petitioner’s insufficient showing that the victim’s confidential medical records were material and favorable to petitioner’s defense did not trigger the need forin camera review).
“The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citations omitted). “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704.
Yeazizw argues that the district court prevented her from effectively using her psychological expert at trial. Ferris Fletcher, Ph.D., a licensed psychologist, testified regarding her evaluation and diagnosis of Yeazizw’s posttraumatic stress disorder (PTSD). She also described the disorder’s characteristics and symptoms. Yeazizw specifically asserts that the district court misapplied Minn. R. Evid. 704 when it “refused to allow Fletcher to opine about whether Yeazizw would be likely to go into a PTSD trigger reaction under conditions present on January 18.”
The trial record reveals no reference to Rule 704 by the district court or counsel. After the state objected during Fletcher’s direct examination, the district court excluded evidence of prior acts of domestic abuse against Yeazizw. From the record, it appears that the district court’s ruling was not, as Yeazizw contends, based on Rule 704. Excluding the expert’s opinion testimony on prior domestic abuse was not a clear abuse of discretion because it lacked relevance to the issues of whether Yeazizw engaged in disorderly conduct and obstructing legal process. Further, the expert was permitted to testify regarding several other aspects of PTSD as it applied to Yeazizw. Contrary to Yeazizw’s assertion, the district court did not abuse its discretion in limiting the expert testimony.
Yeazizw also argues that the district court abused its discretion in limiting appellant’s cross-examination of police officers regarding “their incorrect knowledge of criminal statutes” and the civil lawsuit against them. Yeazizw’s argument regarding the officers’ knowledge of criminal statutes has no merit. She does not identify a decision of the district court for our review. None of her citations to the record reveals any objections to the officers’ testimony, and Yeazizw concedes that she did not object at trial. In the absence of an objection before the district court, this issue is not properly before us. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (concluding that reviewing court will not consider matters not argued before and considered by the district court).
As to cross-examination about the civil lawsuit that she has filed against them, Yeazizw contends that, because the civil lawsuit may have biased the officers’ testimony in the criminal trial, her constitutional right to confront witnesses was violated by the inability to cross-examine them on this topic. The district court ruled that the civil lawsuit was irrelevant to the criminal case. A criminal defendant establishes a violation of the Confrontation Clause “by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (emphasis added) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986) (other quotation omitted)). “Bias is a catchall term describing attitudes, feelings, or emotions of a witness that might affect [the witness’s] testimony, leading [the witness] to be more or less favorable to the position of a party for reasons other than the merits.” Id.(citation omitted).
But not everything tends to show bias, and courts may exclude evidence that is only marginally useful for this purpose. The evidence must not be so attenuated as to be unconvincing because then the evidence is prejudicial and fails to support the argument of the party invoking the bias impeachment method.
Id. (citations omitted).
Evidence of the civil lawsuit was attenuated and prejudicial. That Yeazizw has filed a lawsuit is not probative of whether Yeazizw committed the charged offense. It was also prejudicial, inviting a conclusion of wrongdoing based not on evidence, but on the mere commencement of a civil action. State v. Harris, 560 N.W.2d 672, 678 (Minn. 1997) (citation omitted) (defining “prejudice” as “the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means”). Because the existence of a civil lawsuit was not probative of any of the facts in the criminal case, the district court did not abuse its discretion when it excluded evidence of the civil lawsuit. Minn. R. Evid. 401 (stating that relevant evidence makes consequential facts more or less probable).
Yeazizw argues that the district court abused its discretion when it barred her expert on police practices. “The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citation omitted); see also Minn. R. Crim. P. 9.03, subd. 8 (permitting the district court to sanction for discovery violations). We will overturn such decisions only if the district court abused its discretion. Lindsey, 284 N.W.2d at 373. In exercising its discretion, the district court should consider “(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.” Id.
In a pretrial hearing, the district court set the deadline for submission of expert reports and explicitly warned the attorneys that a late submission would likely result in exclusion of the expert testimony. The district court excluded the police expert’s testimony because the report was untimely submitted and because the information provided in the report was not sufficient to inform the prosecution of the expert’s proposed testimony. In light of the district court’s explicit warning and the substantive deficiency of the late report, we conclude that the district court’s decision to exclude the expert testimony was not an abuse of discretion.
“Law enforcement officials must provide an interpreter before interrogating or taking a statement from a person handicapped in communication.” State v. Marin, 541 N.W.2d 370, 373 (Minn. App. 1996) (citing Minn. Stat. § 611.32, subd. 2 (1994)), review denied (Minn. Feb. 27, 1996). “A person is handicapped in communication if he or she cannot understand legal proceedings because of a difficulty speaking or comprehending English.” Id. (citing Minn. Stat. § 611.31 (1994)). Thus, the purpose of Minn. Stat. §§ 611.31 and .32 is to protect the rights of people who are being interrogated.
Yeazizw argues that the district court erred when it (1) ruled that prosecution witnesses could render an opinion as to whether Yeazizw needed an interpreter and (2) precluded Yeazizw from questioning police about Minn. Stat. §§ 611.31, .32, which address an arrestee’s right to an interpreter. Yeazizw’s claims are not supported by the record. The testimony demonstrates that Clairmont, Eidem, Kemp, and Hammond testified regarding Yeazizw’s ability to understand the officers, but none of them offered an opinion regarding whether Yeazizw needed an interpreter when interacting with the police. Contrary to Yeazizw’s assertion, the issue of whether such opinion testimony was admissible was not raised at trial, and there was no objection to testimony about Yeazizw’s ability to understand the officers. Thus, the record does not contain a district court ruling or issue for our consideration. Roby, 547 N.W.2d at 357.
Yeazizw’s attorney questioned Jeff Long, a supervising officer who spoke with Yeazizw at the police station, about his familiarity with the interpreter statute. The district court sustained the state’s objection to this questioning, and we conclude that it was proper to do so. Here, where the basis of Yeazizw’s arrest was conduct that occurred in the presence of police and no evidence was obtained or introduced at trial from any interrogation, the applicability of the interpreter statute was not relevant to the contested issues. See Minn. R. Evid. 401 (defining relevant evidence). The district court properly sustained the state’s objection to questioning regarding the interpreter statute.
A district court’s denial of a motion for a new trial based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted). The test for determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct. In cases involving “unusually serious prosecutorial misconduct,” we must be certain beyond a reasonable doubt that the misconduct was harmless before we will affirm. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). In cases involving less-serious prosecutorial misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. Id. at128, 218 N.W.2d at 200.
Yeazizw asserts that the district court erred when it denied her motion for a new trial based on prosecutorial misconduct. The district court found Yeazizw’s allegations of prosecutorial misconduct unwarranted and “completely lacking in foundation.” A review of the record reveals that most of the comments that Yeazizw considers improper disparagement are actually arguments countering Yeazizw’s theory of the case, which we conclude were appropriate. Further, the district court sustained some of Yeazizw’s objections to misstatements of the law, and the prosecutor corrected his argument. The supreme court has “repeatedly warned prosecutors that it is improper to disparage the defense in closing arguments or to suggest that a defense offered is some sort of standard defense offered by defendants when nothing else will work.” State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997) (citations and quotation omitted). In his closing argument, the prosecutor stated, “So if you don’t bite [that] she’s the victim, then she has Post Traumatic Stress disorder and I’m not responsible for what I did.” The prosecutor’s comments addressing Yeazizw’s PTSD were improper.
The misconduct in this case, however, was not so serious and prejudicial as to warrant a new trial. See Griese, 565 N.W.2d at 428 (concluding that, despite prosecutor’s improper conduct, statements were not so prejudicial as to deny appellant a fair trial). Based on the strength of the evidence considered by the jury, any misconduct committed by the prosecutor did not play a substantial part in the jury’s decision to convict. Caron, 300 Minn. at 128, 218 N.W.2d at 200; see also State v. Buggs, 581 N.W.2d 329, 341-42 (Minn. 1998) (where verdict “surely” not attributable to prosecutorial misconduct, defendant not entitled to new trial).
Yeazizw argues that the district court’s denial of a Schwartz hearing based on alleged juror misconduct was an abuse of discretion. “The granting of a Schwartz hearing is generally a matter of discretion for the trial court.” State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987) (citation omitted). The trial court should be liberal in granting a hearing, but the defendant must first present evidence that, if unchallenged, would warrant the conclusion that jury misconduct occurred. Id. We will not reverse the denial of a Schwartz hearing unless the denial constitutes an abuse of discretion. State v. Church, 577 N.W.2d 715, 721 (Minn. 1998).
During an inquiry into the validity of a verdict, a juror is permitted to testify regarding whether “extraneous prejudicial information was improperly brought to [the] jury’s attention.” Minn. R. Evid. 606(b); see also State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000) (citing Minn. R. Evid. 606(b) and stating that “[w]e are concerned with discovering whether extraneous prejudicial information was considered by the jury”). But a juror is not permitted to testify regarding the jury’s thought processes or deliberations. See Minn. R. Evid. 606(b); Pederson, 614 N.W.2d at 731.
In support of her motion, Yeazizw submitted the affidavit of Stephanie Howard-Clark, an attorney who works for the law firm representing Yeazizw. The affidavit states that Howard-Clark contacted a juror “to learn [her] general views of the trial, and how the lawyers performed at trial.” The juror told Howard-Clark
that there was an interpreter, so [the juror] assumed that meant the Defendant couldn’t speak English. But then [the juror] heard the Defendant speaking some English during a break, to someone in the hall. [The juror] also saw [Yeazizw] have brief conversations with her attorney. [The juror] said that in the jury room she mentioned to the other jurors that she had observed the Defendant speaking English in the hall, and then some of the jurors disclosed they had heard it too. [The juror] said it was that observation of the Defendant speaking English that largely persuaded her to decide that the Defendant was guilty. She thought that if the Defendant lied about needing an interpreter, she must’ve lied about what happened in her case.
The district court denied a Schwartz hearing, stating that Yeazizw provided insufficient evidence to warrant a hearing. Howard-Clark’s affidavit raises allegations that jurors committed misconduct by considering extraneous information that was prejudicial. These allegations, if unchallenged, lead to no conclusion other than juror misconduct.
We conclude that Yeazizw has met her evidentiary burden. Evidence that jurors obtained from outside the courtroom would be “extraneous prejudicial information” and not information regarding the jury’s deliberations. If the allegations prove to be true, consideration of such “extraneous prejudicial information” constitutes juror misconduct. Accordingly, it was an abuse of discretion to deny Yeazizw a Schwartz hearing. We reverse the denial of a Schwartz hearing and remand for further proceedings not inconsistent with this ruling.
The state argues that, because the format of Yeazizw’s brief fails to conform to the Minnesota Rules of Civil Appellate Procedure, the brief should be disregarded. The state does not expressly move to strike any portion of Yeazizw’s brief, which is appropriate where a party’s brief does not conform to the rules of appellate procedure. State v. Duncan, 608 N.W.2d 551, 559 (Minn. App. 2000), review denied (Minn. May 16, 2000). We, therefore, decline to consider the state’s argument.
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.
 Yeazizw was born in Ethiopia, and her native language is Amharic.
 The record contains a Minneapolis Star Tribune article reporting on an accident in which Mornson’s vehicle struck and killed a pedestrian while fleeing the police. The article stated that Mornson was having a “psychotic episode” prior to the police pursuit.