This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Linh Hong Vu,
Filed March 15, 2005
Isanti County District Court
File No. K0-03-528
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue SW, Cambridge, MN 55008 (for respondent)
John M. Stuart, State Public Defender, Bridget Kearns Sabo, Roy G. Spurbeck, Assistant Public Defenders, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of theft by false representation, in violation of Minn. Stat. § 609.52, subd. 2(3) (2002), and he challenges his 60-month sentence, an upward departure from the presumptive guidelines sentence of 23 months. Because we conclude that the district court abused its discretion by refusing to grant appellant’s motion for a Schwartz hearing and because we conclude that the upward durational departure was improperly imposed, we reverse and remand for a Schwartz hearing and for resentencing.
On April 23, 2003, appellant Linh Hong Vu test-drove a car from Morrie’s Nissan in Brooklyn Park. The salesman who rode with Vu testified that Vu asked him to get out of the car at a parking lot in Cambridge because Vu needed to speak with his wife, who was supposedly in that parking lot. The salesman complied, and Vu drove the car next to a woman in the parking lot. A few minutes later, Vu and the woman drove away. When Vu did not return, the salesman called the police. An officer stopped Vu shortly thereafter, and Vu was arrested. At the Isanti County Sheriff’s department, Vu denied stealing the car and told a second officer that he got lost and could not find his way back to the parking lot. Vu was charged with felony theft, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (2002); felony theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(2) (2002); and misdemeanor driving after revocation, in violation of Minn. Stat. § 171.24, subd. 2 (2002). On July 9, 2003, a jury convicted Vu of felony theft, in violation of Minn. Stat. § 609.52, subd. 2(3).
Two days after Vu’s conviction, a telephone conference took place among the jury foreperson, the district court judge, Vu’s attorney, and the prosecutor. The jury foreperson voiced her concerns about two incidents that had occurred during the jury’s deliberations.
The first incident concerned a juror who mentioned that she had read something about the case but said that she was not supposed to talk about it. Although this juror revealed no information about what she had read, the jury foreperson was concerned about the statement’s effect on the other jurors because the woman was “very, very forceful[,] not even assertive, but . . . aggressive in her manner.” And the jury foreperson said that from the beginning, this juror was positive that Vu was guilty.
The second incident concerned the following statement by another juror: “The guy’s guilty, put him on a boat and send him back from where he came from.” Vu was born in Vietnam and spoke through an interpreter at trial.
After this conference, Vu filed a motion requesting a Schwartz hearing to determine whether jury misconduct had occurred. Vu argued that a prima facie case of juror conduct was established because (1) extraneous prejudicial information was improperly brought to the jury’s attention, and (2) racial comments were made during the jury deliberations. The district court determined that the reported incidents did not rise to juror misconduct, and it denied Vu’s motion.
The district court sentenced Vu to 60 months, an upward departure from the sentencing guidelines presumptive sentence of 23 months, basing the departure on the district court’s determination that Vu was a career offender. This appeal follows.
Vu argues that the district court abused its discretion by denying his motion for a Schwartz hearing. The constitutions of the United States and of Minnesota guarantee a criminal defendant the right to a fair trial by an impartial jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6; State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995). Jury misconduct may undermine this right and may warrant a new trial. Bowles, 530 N.W.2d at 536.
A defendant who has reason to believe that the verdict is subject to impeachment, shall move the court for a summary hearing. If the motion is granted the jurors shall be interrogated under oath and their testimony recorded. The admissibility of evidence at the hearing shall be governed by Rule 606(b) of the Minnesota Rules of Evidence.
Minn. R. Crim. P. 26.03, subd. 19(6). This summary hearing is referred to as a “Schwartz hearing” because the rule codifies the procedures for impeaching a jury verdict described by the supreme court in Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960). State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979).
The purpose of a Schwartz hearing is to “avoid harassment of jurors and to provide a record on appeal in cases where, after the jury renders the verdict, the losing party becomes aware of facts which indicate the possibility of jury misconduct.” Id. (quotation omitted). Schwartz hearings should be liberally granted, but a district court exercises “fairly broad discretion” in determining whether to grant one. State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980). Denials of Schwartz hearings are reviewed, therefore, for an abuse of that discretion. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
To obtain a Schwartz hearing, a defendant must establish a prima facie case of jury misconduct by submitting “sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.” Larson, 281 N.W.2d at 484; accord Opsahl, 677 N.W.2d at 422. Here, the district court denied Vu’s motion for a Schwartz hearing because it determined that (1) the reported incidents did not rise to the level of juror misconduct; and (2) Vu did not sustain his burden of demonstrating actual juror misconduct and prejudice.
Relying on the jury foreperson’s information, Vu argued that a prima facie case of juror conduct had been established because (1) extraneous prejudicial information was improperly brought to the jury’s attention, and (2) racial comments were made during the jury deliberations.
Vu asserts that the fact that one juror read an article about the case and related this fact to the jury, amounts to “extraneous prejudicial information . . . improperly brought to the jury’s attention.” Vu argues that a Schwartz hearing is necessary to inquire whether this juror’s decision was influenced by what she had read in the newspaper. Vu argues that whether the juror disclosed the contents of the article is irrelevant because if she brought up the article during deliberations, she was thinking about it and it could have influenced her decision.
A juror’s exposure to prejudicial material is a serious matter. This court has noted that “[t]he possibility of exposure to potentially prejudicial material creates a problem of constitutional magnitude. If a juror is exposed to prejudicial material, the defendant is deprived of the right to an impartial jury and the right to confront and cross examine the source of the material.” State v. Holly, 350 N.W.2d 387, 390 (Minn. App. 1984). Exposure to news articles or news reports regarding the case or a party of the case has previously been found to warrant a Schwartz hearing. See, e.g., Beier, 263 N.W.2d at 626-27.
Here, there was evidence that a juror had read a newspaper article about the case. Reading the article after being seated as a juror, in defiance of the district court’s instructions, would constitute jury misconduct. See State v. Domabyl, 272 N.W.2d 745, 747 (Minn. 1978) (quoting a treatise stating that possession of knowledge relevant to the facts in issue acquired during the trial through means other than the evidence presented in court is jury misconduct). But here there was no evidence suggesting that the juror read the article after being chosen for the jury. At voir dire, two potential jurors admitted having read something about the case. One of those jurors was dismissed. The second was not identified by name during voir dire, and it is unclear from the record whether that juror was seated. The mere fact that a person has read an article about a case does not mean that the person is biased or prejudiced regarding the case. Cf. State v. Boitnott, 631 N.W.2d 362, 373 (Minn. 2001) (rejecting appellant’s argument that counsel’s withdrawal of change of venue motion was unreasonable and stating that “[e]xposure of some jurors to news reports before trial does not mean that the jury was biased”).
Further, posttrial questioning of the juror about the effect that such an article had on her decision is an inquiry into the juror’s “mental processes” and would be prohibited by the Minn. R. of Evid. 606(b). Cf. Pajunen v. Monson Trucking, Inc., 612 N.W.2d 173, 176 (Minn. App. 2000) (noting that the district court did not abuse its discretion by refusing to ask or permit questions directed to ascertain the effect on the jury of a juror’s statement that his understanding of the law was different from the instructions provided by the court), review denied (Minn. Aug. 15, 2000).
Because the juror’s statement, standing alone, does not necessarily lead to a conclusion that juror misconduct occurred here, we conclude that the district court did not abuse its discretion by denying a Schwartz hearing regarding this issue.
Next, Vu argues that the district court abused its discretion by denying a Schwartz hearing to determine whether the verdict was infected by racial prejudice. Vu asserts that the district court glossed over the racial implications of the second juror’s statement that “[t]he guy’s guilty, put him on a boat and send him back from where he came from.”
The district court found that the juror’s statement did not amount to a racial comment and explained that “[t]here is no evidence that the juror’s basis for concluding that the defendant was guilty was related to the defendant’s race.” The district court believed that the statement about the boat was “not necessarily racist in nature” and appeared to be an “afterthought.”
“[D]emeaning references to racial groups compromise the right to a fair trial by inviting jurors to view a defendant as coming from a different community than themselves.” State v. Varner, 643 N.W.2d 298, 304 (Minn. 2002). In Varner, the Minnesota Supreme Court concluded that the district court should have questioned the jury pursuant to Minn. R. Crim. P. 26.03, subd. 9, when a juror referred to the defendant’s neighborhood in the Frogtown area of Saint Paul as “miracle mile” because “if you were to walk down that street being a white person and if you were not beat up or robbed, it was considered a miracle.” Id. at 302, 304-05. The supreme court reasoned that
[t]he issue of racial or ethnic bias in the courts is not simply a matter of ‘political correctness’ to be brushed aside by a thick-skinned judiciary. It is an issue that must be confronted whenever improperly raised in judicial proceedings. Even statements made without a biased intent may have a negative effect when it comes to issues of race. The failure to inquire as to the impact of such statements in a criminal trial allows the prejudice, if any, to go forward.
Id. at 305 (quotation and citation omitted). Race-based pressure in jury proceedings is “extraneous prejudicial information,” and a juror may testify about such pressure. Bowles, 530 N.W.2d at 536.
When a juror’s statement implicates either the defendant’s race or ethnicity, the district court should grant a Schwartz hearing to ensure that the verdict was not affected by racial or ethnic prejudice. See id. at 537. Vu is Vietnamese and spoke through an interpreter during the trial. A juror’s comment that Vu should be put on a boat and sent back to where he came from is, at the very least, a comment implicating ethnicity. Such a comment invited the jurors to view Vu as coming from a community different from that of the jurors. We conclude that the district court abused its discretion by denying Vu a Schwartz hearing regarding this incident. We remand for a Schwartz hearing to ensure that the verdict here was not affected by racial or ethnic prejudice.
Next, Vu argues that the district court abused its discretion by basing the upward durational sentencing departure on its determination that Vu is a career offender. Vu argues that the definition of career offender does not apply to him and that the sentencing departure violates his Sixth Amendment rights as explained by the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004).
Departures from presumptive sentences are reviewed for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). But statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
The career-offender statute provides that
[w]henever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (2002). A “prior conviction” is defined as “a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section.” Id., subd. 1(c) (2000). This court has determined that this definition applies to the phrase “prior felony convictions” in subdivision four and that “five sequential felony offenses and convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction, etc.).” State v. Huston, 616 N.W.2d 282, 283-84 (Minn. App. 2000).
At the sentencing hearing, Vu and the state agreed that Vu had five prior convictions. On appeal, both Vu and the state agree that not all of Vu’s convictions qualify as “prior convictions” for purposes of the career-offender statute. Vu previously had committed five felonies, but he did not plead guilty to the first felony until he had committed offenses two, three, and four. Vu and the state agree that Vu had only two qualifying “prior convictions” before he committed this offense. Because Vu was not convicted of five sequential felony offenses, we conclude that the career-offender statute was incorrectly applied to him and that Vu must be resentenced.
We reject the state’s suggestion that this court could justify the upward durational departure based on the fact that Vu’s crime was a major economic offense, which is an aggravating factor described in Minnesota Sentencing Guidelines II.D.2.b.(4). Blakely makes clear that the greatest sentence that a judge can impose “is the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537. A defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above the maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), see also Blakely, 124 S. Ct. at 2543. The Minnesota Supreme Court has recently determined that Blakely applies to the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam). We conclude that justifying the district court’s upward durational departure here on the basis that Vu’s crime was a major economic offense would require us to determine facts that were not found by the jury and would violate Vu’s Sixth Amendment rights.
Because Vu does not qualify as a career offender, and because the alternative ground offered for upward durational departure would violate Vu’s Sixth Amendment right to have a jury determine beyond a reasonable doubt the facts used to depart from the presumptive guidelines sentence, we reverse his sentence and remand for resentencing consistent with Blakely.
 According to the Rules of Evidence, a juror is not permitted to testify regarding the jury’s thought processes or deliberations, but a juror may testify “on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror . . . from whatever source, to reach a verdict.” Minn. R. Evid. 606(b).
 The district court relied on State v. Crims, 540 N.W.2d 860, 869 (Minn. App. 1995), when it determined that Vu did not sustain his burden of demonstrating actual juror misconduct and prejudice. But Crims deals with the denial of a new trial, not with granting a Schwartz hearing. At a Schwartz hearing, a defendant must prove prejudice to warrant a new trial, State v. Beier, 263 N.W.2d 622, 626 (Minn. 1978), but the Minnesota Supreme Court’s recent articulation of what a defendant must show to obtain a Schwartz hearing does not include a requirement that the defendant show prejudice. Opsahl, 677 N.W.2d at 422.
 The state inaccurately characterizes Bowles by describing it as a case in which the supreme court “upheld the denial of a Schwartz hearing even though one of the jurors had reported” that people were “implying that it was a racial thing.” The supreme court in fact concluded that the record needed to be supplemented and that the district court could do this by filing a memorandum explaining the basis of its opinion, conducting a Schwartz hearing, or conducting further proceedings to support the district court’s conclusion that there had been no impropriety in the jury deliberations. Bowles, 530 N.W.2d at 536-37.
 Recently, this court held that the requirement of a “pattern of criminal conduct” in Minnesota’s career-offender statute is beyond the scope of the prior-conviction exception described in Apprendi. State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004). Because Vu does not meet the requirements of the career-offender statute, we need not consider whether application of the career-offender statute violated Vu’s Sixth Amendment rights.