This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jay Dee Kaufman,




Filed August 10, 2004

Affirmed in part and remanded in part; motion granted

Halbrooks, Judge



Ramsey County District Court

File No. K0-02-3761



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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)




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

U N P U B L I S H E D   O P I N I O N


Appellant Jay Dee Kaufman challenges his conviction of and sentence for first-degree criminal sexual conduct and kidnapping,arguing that the district court abused its discretion in (1) denying his motion for a Schwartz hearing and (2) imposing upward departures at sentencing.  We affirm as to the Schwartz hearing, but in light of the United States Supreme Court’s recent opinion, Blakely v. Washington, 124 S. Ct. 2531 (2004), we remand this matter to the district court for sentencing not inconsistent with that opinion.  We further grant the state’s motion to strike portions of appellant’s pro se supplemental brief as outside the record on appeal.


            By amended complaint filed on February 26, 2003, the state charged appellant with one count of kidnapping with the intent to cause the victim great bodily harm in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (2002); one count of kidnapping with the effect of causing the victim great bodily harm in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (2002); one count of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2002); and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(e)(i), 2 (2002). 

            The complaint alleged that between October 5 and October 11, 2002, appellant kept S.M. – his girlfriend of four years – confined in his St. Paul home, during which time he forced her to perform oral sex on him repeatedly; inserted a beer bottle into her vagina; forced her to kneel on a broomstick while he whipped her with a belt; repeatedly smashed her head into the wall and whipped her; repeatedly bit her on the face and head; burned various parts of her body with a butane torch and a cigarette; punched her in the face; wrapped her in a blanket secured with duct tape while he had visitors or left the house; refused to give her food or drink except for one offer of french fries, which she was unable to eat because of injuries to her mouth; told her to drink from the toilet if she was thirsty; and twice forced her to drink his urine.  At trial, the trauma surgeon who treated S.M. testified that S.M. sustained great bodily harm – including permanent hearing loss and permanent brain injury – as a result of the prolonged assault. 

            The jury found appellant guilty as charged.  Approximately two weeks later, one of the jurors sent appellant a letter detailing her thoughts about why the jury convicted appellant, stating that appellant’s “lawyer sucked,” and stating that the “jury was all stuck up rich people” who “convict[ed appellant] on [his] character” because they did not “understand” appellant’s tattoos, appreciation of pornography, use and sale of methamphetamine, or repeated abuse of S.M.  Appellant submitted the letter to his attorney, who had an investigator interview the juror and then filed a motion pursuant to Minn. R. Crim. P. 26.03 requesting a hearing to investigate the allegations of juror misconduct pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).  The district court denied the motion. 

            The district court sentenced appellant (1) to 237 months in prison on the count of kidnapping with the effect of causing the victim great bodily harm, which in appellant’s case carried a presumptive sentence of 158 months; and (2) to 144 months in prison on the count of first-degree criminal sexual conduct, which also carried a presumptive sentence of 158 months.  The court then imposed a dispositional departure by ordering that appellant serve the sentences consecutively.  The court did not sentence appellant on the remaining two counts.  Appellant now challenges his conviction and sentence.  The state has filed a motion with this court to strike portions of appellant’s pro se supplemental brief as outside the record on appeal.



            Appellant argues that the district court abused its discretion in denying his motion for an evidentiary hearing pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960), to investigate the allegations of juror misconduct raised in the letter he received from a juror approximately two weeks following his conviction.

Under Minn. R. Crim. P. 26.03, subd. 19(6), if a defendant has reason to believe that jury misconduct occurred, he must move for a summary hearing, at which the district court decides whether to order a Schwartz evidentiary hearing for the purpose of interrogating the jurors under oath.  State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980).  To obtain a Schwartz hearing, the defendant must establish a prima facie case presenting “sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.”  State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979).  A Schwartz hearing should not be granted where the evidence of misconduct is “wholly speculative and [is] not based on any evidence reasonably suggesting that misconduct had occurred.”  Mings, 289 N.W.2d at 498.  This court reviews denials of a Schwartz hearing for 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; State v. Hoskins, 292 Minn. 111, 125, 193 N.W.2d 802, 812 (1972) (stating that “jurors are not competent to disclose any matters which inhere in the verdict, such as their mental processes in connection with it or any other matter resting alone in their minds or consciences”).  Typically, “a jury’s deliberations must remain inviolate and its verdict may not be reviewed or set aside on the basis of affidavits or testimony concerning that which transpired in the course of the jurors’ deliberations.”  Hoskins, 292 Minn. at 125, 193 N.W.2d at 812.

            The district court concluded that the juror’s letter did not provide a basis for inquiry of the author or any other juror because the letter wholly concerned the jury’s deliberations and mental processes and did not allege any extraneous prejudicial information.  We agree.

Appellant contends that the jury’s alleged disapproval of his character and lifestyle constituted extraneous prejudicial information.  In support, he cites to State v. Yeazizw, No. CX-02-1486, 2003 WL 21789013 (Minn. App. Aug. 5, 2003), review denied (Minn. Oct. 21, 2004), for the proposition that extraneous prejudicial information can originate within the jury room.  But in Yeazizw, the court concluded that appellant met her Schwartz burden on the basis of a statement a juror heard outside the courtroom.  Id. at *12.  That case is therefore inapposite, as are the other cases relied on by appellant:  State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995), where the court held that “[r]ace-based pressure constitutes ‘extraneous prejudicial information’ about which a juror may testify,” and State v. Beer, 367 N.W.2d 532, 535 (Minn. 1985), where the court held that a Schwartz hearing is appropriate where it appears that a juror gave false answers during voir dire that may have concealed bias or prejudice toward a party.  The matter before us presents allegations of neither race-based pressure nor an irregular voir dire process.

Appellant also contends that the jury disregarded the district court’s limiting instruction concerning evidence of his prior relationship with S.M. in reaching its verdict.  This assertion is not supported by evidence in the record and appears wholly speculative.

            The juror’s letter consists primarily of speculation and commentary about the other jurors’ deliberative process, but does not mention any outside influence that affected the verdict.  The letter repeatedly states the author’s belief that appellant was guilty as charged and does not state that the author has reservations about the verdict or that the jury reached the wrong verdict.  The district court properly denied appellant’s motion for a Schwartz hearing. 


Appellant argues that the district court abused its discretion at sentencing in (1) imposing an upward durational departure for the kidnapping charge and (2) imposing a consecutive sentence – a dispositional departure – for the criminal-sexual-conduct charge.  The district court based both departures on its findings that appellant’s offenses presented substantial and compelling circumstances making his conduct significantly more serious than that typically involved in the commission of the offense in question.  See Minn. Sent. Guidelines II.D (providing district court may depart from the presumptive sentence when the case involves substantial and compelling circumstances); State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (stating that a durational departure is justified when the defendant’s “conduct somehow may be said to be significantly more serious than typically involved in the commission of the offense [in question]”). 

After the parties submitted briefs in this appeal, the United States Supreme Court issued Blakely v. Washington, holding that a determinate sentencing scheme – such as Minnesota’s – that increases sentences based on judicial fact-finding instead of jury fact-finding violates the trial-by-jury requirement of the Sixth Amendment.  124 S. Ct. 2531, 2537-38 (2004).  Appellant has cited Blakely in a letter to this court without briefing the applicability of that opinion to this matter.  See Minn. R. Civ. App. P. 128.05 (allowing citation of supplemental legal authority without argument).  Appellant did not request supplemental briefing, and we conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  Because here, the district court increased appellant’s sentence based on its own findings of fact, we remand to the district court for a consideration of the application, if any, of Blakely to appellant’s sentence.


            In his pro se supplemental brief, appellant argues that (1) he received ineffective assistance of counsel and (2) he was subject to judicial misconduct.  Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal, because a postconviction hearing provides the court with “additional facts to explain the attorney’s decisions.”  Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  Here, because much of appellant’s ineffective-assistance argument is based on conversations with his attorney that are not part of the record on appeal, this issue would be more effectively presented in a postconviction proceeding.  See, e.g., Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  We therefore grant the state’s motion to strike as outside the record those portions of appellant’s pro se supplemental brief that address conversations with his attorney and decline to consider the ineffective-assistance claim here; we note, however, that the issue is preserved should appellant choose to pursue it in a postconviction proceeding.

Appellant alleges judicial misconduct on the ground that the district court judge had previously issued what appellant refers to as an “order of protection and restraining order on testimony of [S.M.].”  There are no such orders in the record; it appears that appellant is referring to the fact that the judge issued a no-contact order with respect to S.M. when she arraigned appellant.  That order does not support appellant’s allegation of misconduct.

Affirmed in part and remanded in part; motion granted.