This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2039

Joshua James Walker, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 5, 1997

Affirmed

Kalitowski, Judge

Scott County District Court

File No. 9415827

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Neil Nelson, Brent S. Schafer, Assistant County Attorneys, 428 South Holmes Street, Shakopee, MN 55379 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Joshua James Walker challenges the district court's denial of his motion for a Schwartz hearing or a new trial based on alleged jury incompetence and misconduct. We affirm.

D E C I S I O N

The granting of a Schwartz hearing is generally a matter of discretion for the trial court. Its purpose 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.

State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979) (citation omitted). The proper procedure for requesting a Schwartz hearing is as follows:

[I]f a defendant has reason to believe that jury misconduct has occurred, he must move the trial court immediately for a summary hearing. The court then determines whether to order a Schwartz hearing to interrogate the jurors under oath.

State v. Butzin, 404 N.W.2d 819, 828 (Minn. App. 1987), review denied (Minn. June 9, 1987); Minn. R. Crim. P. 26.03, subd. 19(6). Nothing should prevent the district court from ordering a Schwartz hearing based on an oral assertion by counsel or a hearsay affidavit. Larson, 281 N.W.2d at 484. Moreover, district courts should be liberal in granting such a hearing. Id.

An attorney or his agent should never question a juror for the purpose of gathering evidence for a request for a Schwartz hearing. Olberg v. Minneapolis Gas Co., 292 Minn. 334, 343, 191 N.W.2d 418, 424 (1971). The supreme court "strongly suggest that trial courts decline petitions for Schwartz hearings based upon information obtained improperly." Baker v. Gile, 257 N.W.2d 376, 378 (Minn. 1977).

Appellant argues the district court abused its discretion in denying his petition for a Schwartz hearing for alleged jury incompetence and misconduct because appellant's trial counsel did not comply with the procedural requirements for a Schwartz hearing. We disagree.

As the district court correctly stated,

There is no question that Defense counsel failed to comply with the procedural framework codified in Rule 26.03, subd. 19 (6) with respect to the seeking of a Schwartz hearing. Had he acted properly, said counsel would have moved this Court for a "summary hearing" immediately upon his having formed a concern regarding the at-trial competence of the committed juror. * * * Had defense counsel proceeded in this manner, this Court would have been given the opportunity to provide the jurors that protection from post-verdict interrogation which Minnesota courts have clearly emphasized as a priority. Instead, however, Defense counsel took it upon himself to initiate an investigation into the matter and thereupon not only contacted three of the jurors but took the further step of securing Affidavits from said jurors.

Because the defense counsel did not comply with the procedures for requesting a Schwartz hearing, the district court in its discretion may deny such a hearing. See Baker, 257 N.W.2d at 378 (petition for a Schwartz hearing was denied because procedures were not followed).

Appellant argues the denial of a Schwartz hearing was improper because: (1) violation of the procedural requirements for a Schwartz hearing should not result in denial of the hearing in criminal cases; (2) defense counsel acted in good faith when he contacted the jurors; and (3) denying a Schwartz hearing did not further the policy underlying the rule against postverdict jury contact. We conclude appellant's arguments are without merit. There is no legal authority that courts should enforce the rule against postverdict jury contact in civil cases, but not in criminal cases. Further, good faith is not a valid defense for violating the requirements for a Schwartz hearing. Finally, the policy behind the rule against postverdict jury contact is to prevent jury harassment. Larson, 281 N.W.2d at 484. The assertion that the three jurors were not harassed does not make the improper contact permissible. We conclude the district court did not abuse its discretion.

The district court also determined the Schwartz hearing request should be denied on the merits. We agree. First, the fact that a juror was committed as mentally ill nearly one year after the verdict does not establish a prima facie case of juror misconduct necessary to mandate a Schwartz hearing. See id. (defendant must submit evidence that standing alone and unchallenged would warrant conclusion of jury misconduct). Second, the district court properly concluded that in light of the overwhelming evidence of appellant's guilt, the alleged improper disclosure of appellant's criminal record did not prejudice the verdict.

Affirmed.