This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Cher Xiong,



Filed April 6, 2004


Huspeni, Judge*



Ramsey County District Court

File No. K0-02-1167


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Susan Gaertner, Ramsey County Attorney, Richard Jay Dusterhoft, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


John Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue SE., Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Minge, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


In challenging his convictions for first-degree assault, attempted second-degree murder, possession of a firearm, and committing those crimes for the benefit of a gang, appellant claims (1) the trial court erred by admitting expert testimony based on the ten-point gang-identification criteria; (2) the evidence was insufficient to support the jury’s verdict; and (3) the trial court abused its discretion by not calling all 12 jurors who took part in the verdict to testify at the Schwartz hearing.  Because we conclude that the evidence was sufficient and that the trial court did not err in admitting evidence or in conducting the Schwartz hearing, we affirm.


            The night of March 28, 2002, St. Paul police officers Peter Semenkewitz and Mike Helgoe responded to a “shots fired” call in the area of Edmund and Avon Avenues.  As they were driving to the location, the call was updated, and they were informed that two males were dragging a body down an alley.  Arriving at the scene, they saw two Asian males carrying a third Asian male (the victim) up the back stairs of 790 Edmund.  The victim was taken to the hospital, where it was determined that he had been shot below the left shoulder blade, and the bullet had entered his spine and traveled up his spinal cord.  The bullet remains lodged in the victim’s neck, and he is paralyzed from the neck down. 

Officers found four spent casings from a .25 caliber semi-automatic pistol on the sidewalk at the southeast corner of Edmund and Avon.  They also located two witnesses who claimed to have seen the shooting that night – Joe Vang, who lives at 795 Edmund, and Tou Vang, who was across the street at 790 Edmund. 

Joe Vang described the shooter as a chubby Asian male, approximately 5’5” in height and wearing a white tank top and blue jeans with a blue bandana hanging out of his back right pocket.  Joe Vang identified one of several men the police brought out of 790 Edmund, but the man he identified was not appellant Cher Xiong.  Tou Vang, however, told the police he saw appellant shoot the victim.  In executing a search warrant for 790 Edmund, officers discovered appellant wearing a white tank top, underwear, and a pair of socks.  In response to a request that he dress so that he could be taken to the station, appellant donned a pair of blue jeans, which he identified as his, that had a blue bandana hanging from the rear pocket.  Appellant’s wallet and driver’s license were in the jeans’ pocket. 

            At trial, Joe Vang testified that he was at home studying when he heard people running and talking.  Upon looking out his attic window, he saw eight or ten men running south on Avon, one of whom stopped near the corner.  He then heard four or five shots and saw a gun in the shooter’s hand. 

            Tou Vang testified that he, a former member of the Asian Crypts (AC) gang and appellant, a current member, were at a party at 790 Edmund the night of the shooting.  He stated that members of the Oriental Locs (OL) gang were also in the house that night.  Tou Vang further testified that appellant “got pissed” and told the OL members that 790 Edmund was an “AC house” and he should not be disrespected.  As the OL members began to leave the house, the AC gang members followed them.  Tou Vang testified that at that point appellant asked, “What time is it?,” a gang warning that is given to “violate” or “jump” someone.  Then appellant said “3-5-7 time,” hit an OL member, and everyone began to fight.  Then the OL started running down Edmund toward Avon, with the AC chasing them.

Tou Vang testified that he saw appellant stop at the corner of Avon and Edmund and begin shooting south on Avon; although Vang could not see the gun, he could see the flames.  When appellant returned to the backyard of 790 Edmund after the shooting, Vang told appellant that he had “f----d up” and should not have done that.  Vang took appellant’s gun, a black .25 caliber pistol, and gave it to a person named “Mouse” with instructions that he hide it. 

            The victim testified that both he and appellant were AC members, and that AC and OL were drinking and partying at 790 Edmund when Vang Yang warned that there may be a fight, and everyone exited the garage.  Members of both gangs were yelling at each other, and the victim heard an OL make fun of appellant, at which point appellant asked, “What time is it?,” and another AC said, “3-5-7 time,” an AC symbol.  The victim admitted that he and other AC began fighting with the OL, and that when the outnumbered OL began to run, he chased after them.  The victim testified that he then fell and could not get up. 

            At trial, the state called Tyrone Ayler, who was in jail with appellant after the shooting.  Ayler testified that appellant confessed to accidentally shooting his friend in the back while trying to shoot someone else.  Deputy Robert Sargent also testified that as he was escorting Ayler past appellant’s holding cell, he heard someone yell, “I’m going to get you, b-tch.” 

            Finally, the state introduced the testimony of Sergeant Richard Straka as an expert on the subject of Hmong gangs.  Sgt. Straka testified about the general gang culture and how gang members identify themselves.  He testified about the ten-point gang-identification criteria and how these criteria are used to identify gang members.

            The jury returned verdicts of guilty on all counts.  When polled, each juror agreed that each verdict was correct.  Four days later, however, M.E., one of the female jurors, contacted the judge’s clerk and alleged misconduct against A.T., a male juror.  M.E. reported that A.T. put his hand around her throat, applied light pressure, and told her to “change sides.” 

Appellant moved for a judgment of acquittal, a new trial, and impeachment of the jury’s verdict because of juror misconduct.  The court held a Schwartz hearing, at which it heard testimony from M.E. and A.T., who denied the allegation.  The court denied appellant’s motions and imposed sentence.  This appeal followed.


I.            Expert Testimony on Ten-Point Gang-Identification Criteria

Appellant’s first claim is that the ten criteria used by Sgt. Straka to identify gang membership are unreliable and, therefore, his testimony should not have been admitted in evidence.  Resolution of this issue requires that we address the background against which the issue arises.  

A.            Background

Prior to appellant’s trial, this court issued its opinion in State v. DeShay, 645 N.W.2d 185 (Minn. App. 2002), aff’d, 669 N.W.2d 878 (Minn. 2003).  In that opinion, we held that “there is an ample showing of the reliability of the ten-point gang criteria sufficient to allow an expert to utilize them in forming an opinion on whether an individual is a member of a gang.”  Id. at 192.  The Minnesota Supreme Court granted review.  No decision had been issued by the supreme court either at the time of appellant’s trial or at the time he filed his appellate brief.  Appellant’s brief appears to be written in anticipation of a reversal by the supreme court and challenges only the reliability of the ten-point gang-identification criteria.  After the filing of appellant’s brief, but before respondent state’s brief was filed, the supreme court issued its opinion in DeShay.  The state’s brief addressed the supreme court’s DeShay opinion rather than the earlier opinion of this court.  Appellant did not file a reply brief.

B.            The Caselaw:  State v. DeShay and State v. Lopez-Rios

In DeShay, the supreme court affirmed this court.  669 N.W.2d at 878.  The court cautioned that some expert testimony on the characteristics of gangs and the identification of gang members should not be admitted.  Id. at 888.  Thus, the issue we must address here is not solely whether the ten-point gang-identification criteria are unreliable, nor even “whether the expert was competent or relied on an adequate foundation for his testimony, but whether the issues and subject matter were appropriate for expert testimony.”  Id. at 884

The supreme court in DeShay voiced several concerns:  (1) “largely duplicative” gang-expert testimony gives little assistance to jurors, id. at 886; (2) testimony from lay witnesses “is how the state can and should go about proving the essential elements” of a crime committed for the benefit of a gang, id.; (3) expert testimony should not be used to “launder inadmissible hearsay evidence,” id.; (4) expert testimony should not serve as a pretext for admitting unlimited or far-reaching opinions on criminal gangs in general, id. at 886-88; (5) the ten-point gang-identification criteria are of questionable help and some question their reliability, id. at 886 n.7, 887 n.8; and (6) testimony concerning prior offenses of gang members may prejudice defendants by placing them in the position of defending others’ criminal activities, see id. at 887.

Despite these concerns, the supreme court in DeShay held that admission of the “gang expert” testimony was harmless error because it “was, for the most part, duplicative of testimony given by witnesses with first-hand knowledge of the relevant events and which established that DeShay was a member of, and involved with, a group that operated as a criminal gang.”  Id. at 888. 

In State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003), a companion case to DeShay, the supreme court also concluded that admission of gang-expert testimony was harmless error, but not on the grounds that the ten-point gang-identification criteria were unreliable, but because the testimony was largely duplicative of lay-witness testimony.  Lopez-Rios, 669 N.W.2d at 612-13. 

In resolving the issues in this case, we focus on the areas of concern identified by the supreme court in DeShay.

C.            Application of DeShay

1.            Nature of the Testimony

a.            Lay Witness Testimony

Lay testimony was given by a former member of the AC who stated that appellant was also a member.  A second lay witness also identified himself as a former AC member and identified appellant as a current member, one who got mad because he believed he was being “disrespected,” said “This is AC’s house and you don’t take that crap from anybody” and “What time is it?,” and threw a punch at an OL.  The witness observed OL running away, saw AC, including appellant, chasing them, and saw flames coming from appellant’s hand.  The witness denied, however, that “3-5-7 time” necessarily means shooting, and denied that the AC plan crimes.

The victim admitted that he is a member of the AC, and believed that appellant is also a member because he has a gang tattoo on his arm.  The victim testified that on the night he was shot he heard the statement, “Be aware because there might be a fight.”  He went outside and saw some OL and appellant shouting at each other, heard OL making fun of appellant, heard appellant say, “What time is it?,” saw appellant and another start fighting with the OL, and saw OL break free and begin to run.  At this point the victim and another AC joined the pursuit. 

b.            Expert Testimony

Sgt. Straka, former member of the Minnesota Gang Strike Force, in testifying as an expert on Asian gangs in Minnesota, stated that these gangs have no apparent leadership, and that most cases he has investigated have involved assaults against other gang members, usually motivated by women, by being in the wrong place at the wrong time, or by feeling disrespected.  Sgt. Straka testified that he is familiar with the AC through personal contacts, other officers, interviews, and police reports.  He testified that he has learned through his investigations that their sign is “3-5-7,” which gang members have informed him was chosen because it is a powerful gun.  The AC informed him that they use the following tattoos for identification purposes:  “AC,” “Asian Crypts,” “3-5-7,” and “1-0-3.”  Further, Sgt. Straka testified that the AC use their hands to sign the letters “A” and “C” in those situations where their gang affiliation may not be otherwise visible.

Sgt. Straka also testified that through police investigations and contacts he has learned that appellant is a member of the AC and meets several of the gang-identification criteria:  (1) appellant has admitted gang membership; (2) appellant has a tattoo on his chest that says “Asian Crypt Gang” and two on his left upper arm that read “3-5-7” and “AC”; (3) appellant has been photographed with known gang members throwing AC gang signs and wearing clothing with the letters “AC” and a hat with the numbers “3-5-7” written on it; and (4) appellant writes about gangs.  Sgt. Straka opined that appellant is a “hard-core” member of the AC.

In an attempt to establish that the AC is a gang, Sgt. Straka also testified regarding prior convictions of other AC.  See Minn. Stat. § 609.229, subd. 1 (2002) (a criminal gang is, in part, any organization of three or more people).  He testified regarding four individuals who have been identified as gang members and have been arrested for felonies in the presence of gang members or have been convicted of committing crimes for the benefit of a gang.  Sgt. Straka testified only briefly about these offenses and did not elaborate on the facts surrounding them.

2.            DeShay’s “Cautions”

a.            Duplicative Testimony

In DeShay, the supreme court cautioned that the expert’s testimony should not duplicate lay witness testimony regarding the elements of the offense.  DeShay, 669 N.W.2d at 886.  In order to convict appellant of first-degree assault and second-degree attempted murder for the benefit of a gang, the jury had to determine whether: (1) appellant committed the initial charged offenses; (2) the AC are a criminal gang and appellant was a member of or was associated with the group; (3) the shooting was for the benefit of the gang or motivated by involvement with the gang; and (4) the shooting was committed with the “intent to promote, further, or assist in criminal conduct by gang members.”  See Minn. Stat. § 609.229, subds. 1, 2 (2002); DeShay, 669 N.W.2d at 885-86.

Sgt. Straka testified about gang culture in general and non-graphic terms.  He testified that appellant met four of the ten criteria for membership and that there were other members of the AC who had criminal records.  However, lay witnesses had also identified appellant as a member of the AC, and their testimony regarding gang “language” and what led to the shooting could allow a jury to reasonably conclude that the AC are a criminal gang.  Therefore, in some respects, Sgt. Straka’s testimony was duplicative of that of lay witnesses.  We cannot describe it, however, as “largely” duplicative.

There was lay testimony that the phrase “What time is it?” means that someone will get hit, and that other AC know what it means.  Lay testimony indicated that before the fighting and shooting began, appellant felt “disrespected” by an OL and said, “This is an AC house and you don’t take crap from anybody.” 

Testimony of lay witnesses assisted in proving the other essential elements of the charged offense – that appellant shot the victim, that the shooting was for the benefit of the gang or motivated by involvement with the gang, and that the shooting was committed with the “intent to promote, further, or assist in criminal conduct by gang members.”  See Minn. Stat. § 609.229, subds. 1, 2 (listing elements necessary for committing a crime for the benefit of a gang).  Sgt. Straka’s testimony did not assist in proving these elements.  Because the expert’s testimony is only duplicative as to one of the four elements of the charged offenses, we cannot say that the testimony was “largely” duplicative to the degree that concerned the supreme court in DeShay.[1] 

b.            Laundering of Inadmissible Evidence

            The supreme court in DeShay was also concerned that an expert witness might launder inadmissible hearsay through his testimony.  669 N.W.2d at 886.  We note initially that an expert may base his or her opinion on facts or data received or made known to the expert at or before the hearing.  Minn. R. Evid. 703(a).  If the expert reasonably relies on those facts or data to form opinions or inferences, the facts or data itself need not be admissible as evidence.  Id.  Here, Sgt. Straka testified that he received his information from his personal contacts, interviews, other police officers, and police reports.  He also testified that he was active in the Hmong community, attending soccer tournaments and Hmong New Years’ celebrations and speaking to many gang members who wanted others to know about their gangs.  Sgt. Straka reasonably relied on this information in order to form his opinions and inferences about Hmong gangs.[2]  We recognize that some of Sgt. Straka’s testimony was based on what is traditionally defined as hearsay.  We conclude that the knowledge he accumulated through his personal contacts, interviews, and community involvement, and to some extent police reports, none of which directly incriminated appellant, is not the objectionable “inadmissible” hearsay about which the supreme court cautioned in DeShay.

c.            Pretext for Admitting Far-Reaching Opinions on Criminal Gangs

            In DeShay, the supreme court also cautioned against eliciting expert testimony as a pretext for admitting far-reaching opinions on criminal gangs in general, and noted that it was

neither helpful nor relevant to the fact issues before the jury to have expert testimony that crimes committed by criminal gangs in general run the gamut from “murder for hire” to property crimes, that New Breed gangs engage in drive-by shootings, or that certain individuals associated with the New Breed group involved in this case had prior convictions for criminal sexual conduct and crimes committed for the benefit of a gang.


DeShay, 669 N.W.2d at 886. 

Here, Sgt. Straka testified that there is no leadership in Asian gangs and “[t]hey can go out, if they see rival gang members . . . they can assault them, shoot at them, whatever it has to be.  They can go do a gun store burglary without letting anyone else know.”  He also testified that respect is very important in Asian gangs, and if a member feels disrespected he may retaliate by either fist-fighting, breaking car windows, or shooting at another’s home or at his person.

We conclude that Sgt. Straka, drawing upon his years of experience investigating gang crimes, was describing offenses he had known gang members to commit.  His testimony did not paint a picture of gang life disturbing enough to create prejudice.  See id.  Further, because lay-witness testimony indicated that the shooting was the result of appellant feeling “disrespected,” Sgt. Straka’s theory on why these crimes occur – disrespect and lack of leadership – was closely related to the facts in this case.  Thus, his testimony did not place appellant “in the position of defending allegedly criminal activities of others,” as was the concern in DeShayId. at 887.

d.            Reliability of Gang Criteria

Sgt. Straka cited the more reliable criteria when identifying appellant as an AC:  (1) admitted membership; (2) gang tattoos; and (3) photographs with known gang members throwing gang signs and wearing clothing with the letters “AC” and a hat with the numbers “3-5-7” written on them.  See id. at 886 n.7 (noting that other criteria may be less helpful).  He also noted that appellant writes about gangs.  The presence of these strong indicators of gang membership lessen, we believe, the impact in this case of the unreliability of the other gang-membership criteria that concerned the supreme court in DeShay.

e.            Prejudicial Effect of Testimony Regarding Prior Offenses

            Finally, the DeShay court’s concern that testimony regarding prior convictions of other gang members may have a prejudicial effect is not of significant concern in this case.  Sgt. Straka’s testimony as to each prior conviction was brief.  He testified that one individual was convicted of criminal sexual conduct and one count of crime committed for the benefit of a gang; that one individual was arrested for possession of a firearm; and that a third individual was convicted of criminal sexual conduct for the benefit of a gang.  Because there was no elaboration on the facts surrounding these offenses, and the convictions were not for offenses more serious than the offenses charged in this case, any prejudicial effect of this testimony was minimal.

            Testing Sgt. Straka’s testimony against the cautions articulated in DeShay, we conclude that the risks that concerned the supreme court in DeShay are not present to an unacceptable extent here, and we find no error in the court’s admission of the expert testimony. 

II.            Sufficient Evidence

In considering a claim of insufficient evidence, this court’s review is limited to an examination of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Review “is limited to ascertaining whether, given the facts in the record and the legitimate inference that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.”  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

A.        First-Degree Assault, Attempted Second-Degree Murder, Possession of a Firearm


An individual is guilty of first-degree assault when he “assaults another and inflicts great bodily harm.”  Minn. Stat. § 609.221, subd. 1 (2000).  Second-degree murder is defined as causing “the death of a human being with intent to effect the death of that person or another, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (2000).  “Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”  Minn. Stat. § 609.17, subd. 1 (2000).  Finally, “a person who has been convicted of . . . committing, in this state or elsewhere, a crime of violence” and possesses a pistol or semiautomatic military-style assault weapon is guilty of possession of a firearm by an ineligible person.  Minn. Stat. § 624.713, subd. 1(b) (2000).

Medical testimony indicated that as a result of the shooting the victim received great bodily harm.  Appellant was identified as the shooter, and the weapon and shell casings were recovered.  Testimony of a jail inmate indicated that appellant confessed to the shooting.  Testimony that the targets of the shooting were running, that numerous shots were fired, and that the victim was shot in the back support an inference that the shooter intended to cause death.  Appellant argues that one witness had a motive for lying because police threatened to charge him if he did not tell them what happened, that a second witness described the shooter in an inconsistent manner, that testimony of another witness is unreliable because he got a deal for his testimony, and that the comment overheard by the jail deputy could not be identified as coming from appellant because the deputy and the speaker could not see one another.  It is not for this court, however, to determine the weight and credibility of witness testimony.  That is a role reserved to the jury.  Folkers, 581 N.W.2d at 327.

An examination of the facts in the record, the legitimate inferences that can be drawn from those facts, and recognition of the jury’s role in determining the credibility of witnesses, convinces us that the evidence is sufficient to support conviction of the substantive offenses with which appellant was charged.

B.            Offenses Committed for the Benefit of a Gang 

A person is guilty of committing a crime for the benefit of a gang if that person committed the crime (1) “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang,” and (2) “with the intent to promote, further, or assist in criminal conduct by gang members.”  Minn. Stat. § 609.229, subd. 2 (2000).  A “criminal gang” is defined as

any ongoing organization, association, or group of three or more persons, whether formal or informal, that:

(1)              has, as one of its primary activities, the

commission of one or more of the offenses listed in section 609.11, subdivision 9;

(2)              has a common name or common identifying

sign or symbol; and

(3)              includes members who individually or

collectively engage in or have engaged in a pattern of criminal activity.


Minn. Stat. § 609.229, subd. 1 (2000).

            Appellant argues that the evidence was insufficient to show that the AC is a criminal gang.  We disagree.  Sgt. Straka testified regarding four known members of the AC who have been convicted of felonies, some committed for the benefit of a gang.  In addition, the victim testified that the AC know that when another AC says “3-5-7” it means that someone will be hit.  Other testimony indicated that when appellant stated it was “3-5-7” time, he knew that someone was going to be “violated.”  Additional detailed testimony described the events leading to the fight and the shooting; the fight began because appellant felt “disrespected” in an AC house, AC chased OL members, and OL members were shot at as they ran away.  Given this testimony, a jury could reasonably infer that the AC is a criminal gang.

Appellant also argues that the shooting was not committed for the benefit of a gang but, rather, the fight broke out due to “macho posturing” between two non-rival gangs.  Again, we disagree.  There was testimony that the two gangs began to fight when someone insulted appellant, and that he felt “disrespected.”  Appellant was heard to say, “What time is it?” – a phrase described as meaning that someone was going to get hurt.  Eventually, the two gangs fought and appellant began shooting at the OL, although the victim shot was an AC. 

While the party may have begun as a friendly get-together, the evidence in the record suggests that it quickly escalated to a physical altercation between gangs.  The evidence indicates that appellant began shooting at the OL because he was associated with the AC and he was “disrespected” by the OL in an AC house.  The shooting was more than “macho posturing”; it was an answer to disrespect shown by OL to an AC in an AC house.  The shooting was associated with and motivated by gang affiliation, and the intent of appellant was to “promote, further, or assist in criminal conduct by gang members.”  Id., subd. 2.

Thus, in light of the evidence in the record and the inferences drawn from that evidence, the jury could reasonably conclude that the shooting was committed for the benefit of the gang.

III.            Schwartz Hearing


Finally, appellant argues that the trial court abused its discretion by not calling all members of the jury to testify at the Schwartz hearing.  We see no abuse of discretion.  The court granted the hearing, even though, as it stated in its memorandum of law, it “was not convinced that the allegation standing alone would warrant the conclusion of jury misconduct.” 

Two jurors testified.  M.E. stated that she did not remember seeing any jurors observe the alleged incident between herself and A.T., and that immediately after the alleged incident, the jurors went to dinner and participated in social conversation.  She never told any of the jurors about the incident.  Further, when the jurors were polled individually after returning their verdicts, M.E. gave no indication that she disagreed with the guilty verdicts.  When she was asked why she waited several days before coming forward with her complaint about A.T., she testified that she “wanted him for [her]self, because [she] wanted to do something to him,” and that she wanted revenge and wanted to “scare him as bad as he scared [her].” 

A.T. denied touching M.E.  He admitted, however, that he put his hand about two feet from her neck as if he were going to choke her, but claimed that it was a joke.  According to A.T., other jurors as well as M.E. were laughing.  He denied coercing her into a guilty plea.

“[T]he manner in which a district court conducts a Schwartz hearing is within the court’s discretion.”  State v. Greer, 662 N.W.2d 121, 124 (Minn. 2003).  The court’s decision on how many jurors to call to testify is dependent on the facts of each case.  See id. at 123-24 (finding no error in the court’s decision to call six of the twelve jurors); State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (holding that the district court “did not abuse [its] discretion by limiting the examination to the juror involved. . . . Having taken notice of the substance of the alleged improper influence, an examination of the juror was sufficient to find that the contact, beyond a reasonable doubt, would not contribute to the jury’s verdict.”); State v. Olkon, 299 N.W.2d 89, 109 (Minn. 1980) (holding that “the trial court did not abuse its discretion in calling six jurors, four of whom were referred to in the allegation of misconduct,” rather than all twelve). 

Here, the court conducted a Schwartz hearing, even though it doubted that appellant made a prima facie showing of juror misconduct.  After the hearing, the court found no misconduct.  Because there is no caselaw requiring the district court to call all the jurors at a Schwartz hearing, we conclude that the trial court acted within its broad discretion in not calling all 12 jurors to testify at the hearing. 




*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  We note that the issue of duplicative testimony was addressed by the supreme court in DeShay both in the context of cautioning that first-hand testimony is preferable to expert testimony in establishing the elements of an offense and in the context of whether the error in admitting expert testimony was harmless.

[2]  We are mindful of the comments to Minn. R. Evid. 703(a), which state that “[a]lthough an expert may rely on inadmissible facts . . . in forming an opinion, the inadmissible foundation should not be admitted into evidence simply because it forms the basis for an expert opinion.”  Sgt. Straka’s ability to get information from gang members through personal interactions is critical in developing his expertise in Hmong gangs.  While we are not called upon here to make a bright-line determination of how evidence meeting the elements of Minn. Stat. § 609.229 must be produced, requiring that Sgt. Straka bring forth to testify those who have confided in him would no doubt violate the trust that has enabled him and the police department to benefit from the acquired information.