This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



Keevin Lashawn Hinton,


Filed December 22, 1998


Harten, Judge

Hennepin County District Court

File No. 97060779

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.



A jury convicted appellant Keevin LaShawn Hinton of attempted second-degree murder. Appellant seeks a new trial or a Schwartz hearing because of alleged outside contact with the jury and juror misconduct; alternatively he seeks a new trial due to prosecutorial misconduct. We affirm.


1. The Shooting of Javaris Milton.

Javaris Milton testified that he was walking from a liquor store when a friend approached who wanted Milton to go with him to retrieve his stolen bicycle and coat. Both men began walking to the place where the friend claimed his bike had been stolen. Appellant and another man, both mounted on a bicycle, came out from between two buildings and dismounted; appellant fired a pistol multiple times, hitting Milton once in the chest.

The police found Milton on the ground; twenty to thirty people were in the area. Milton spoke to a police officer, to whom he gave a fictitious name because there was a warrant out for Milton's arrest. The officer testified that he received a description of the suspect as an African American male wearing a red baseball cap with the blue letters "L.A." on the front.

Milton was taken to a hospital and treated for his injuries. Approximately one month after the shooting and one week after his release from the hospital, Milton flagged down a police officer who took Milton to the police station. Milton told a police sergeant that he knew the person who shot him. The sergeant put appellant's picture in a photographic lineup and Milton identified him. After the police issued a warrant for appellant's arrest, appellant turned himself in.

2. The State's Closing Argument.

Two of the prosecutor's remarks in closing argument are at issue. The first remark implied that appellant was a threat to Milton, his family, and to other witnesses, and the credibility of those witnesses was enhanced by their testifying despite this danger. Appellant's objections to these characterizations were sustained; he did not request cautionary instructions.

The second remark implied that reasonable doubt would not be at issue if Milton, an African American, were white. The prosecutor argued, "[W]hat if this had happened in a suburban community * * * Would there be a reasonable doubt if Javaris Milton was white?" Appellant did not object.

3. Jury Deliberations.

After four days of deliberations, the jury found appellant guilty of attempted second-degree murder. At one time the jury appeared to be deadlocked, but the district court instructed the jury to continue to deliberate. During deliberations, a bailiff informed a juror that his father had had a heart attack but would be okay.

After the jury verdict was read, the district court questioned juror 10, an attorney, regarding a note her family sent her in a bag of clothes. Juror 10 said that this note did not affect her decision. Appellant's attorney had the opportunity to examine juror 10, but did not ask her any questions. The court also revealed that one of the jurors briefly left deliberations to receive "blood pressure medication." After the court adjourned, appellant's counsel accepted a ride home with juror 11.

On October 1, 1997, juror 11 sent the district court judge a letter informing the judge that because she experienced extreme stress during jury deliberations, she was incompetent to decide on a verdict. The stress was caused by the sequestration itself, her job, her feeling responsible for keeping other jurors from going home, and juror 10's behavior.

At appellant's new trial motion hearing, he also moved for a Schwartz hearing. The district court denied both motions. In the meantime, juror 11 reiterated her position in another letter to the district judge.

Juror 6, the foreman, also sent a letter to the district judge in which she accused juror 10 of violating "the tenets of proper jury conduct" by using her status as a lawyer and making inflammatory statements about gangs and her personal plans. Juror 11 later expressed her concern about the jury deliberations in a newspaper article. Appellant again moved for a Schwartz hearing; the district court again denied the motion. This appeal followed.


1. Juror Misconduct.

(a) Outside Contact.

"The exposure of a jury to potentially prejudicial material creates a problem of constitutional magnitude * * *" and raises a rebuttable presumption of prejudice. State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982). The prosecution then has the burden to rebut the presumption by showing beyond a reasonable doubt that the asserted error did not contribute to the verdict obtained. Id.

When there have been improper outside influences, the district court must determine from juror testimony what outside influences were improperly brought to bear upon the jury and then estimate their probable effect on a hypothetical average jury. State v. Wilford, 408 N.W.2d 577, 581 (Minn. 1987) (quoting State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982)). On review, we consider four factors in an "independent evaluation of the verdict." Cox, 322 N.W.2d at 559. These are (1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to the misconduct; (3) the weight of evidence; and (4) the likelihood that curative measures effectively reduced the prejudice. Id. We will grant a new trial because of juror misconduct only if the district court abused its discretion in denying a new trial. Id. at 559-60.

Appellant argues that the district court abused its discretion by not properly investigating the two specific instances of juror misconduct--the note from home to juror 10 and the bailiff's communication to a juror about the juror's father. While the district court did find that the jurors directly affected were not prejudiced, appellant argues that this information may have spread to other jurors and pressured reluctant jurors to vote guilty.

In evaluating appellant's arguments, we apply the four Cox factors. First, the nature and source of the outside material had nothing to do with the case itself. Second, while a significant number of jurors may have been exposed to the outside material, no prejudice was identified. Third, the weight of the evidence against appellant, while not overwhelming, was strong; the outside material neither added to nor detracted from evidence against appellant. Finally, no curative measures were undertaken because the incidents surfaced after the verdict had been received. Because there is support in the record for the district court's decision, we conclude that the district court did not abuse its discretion.

(b) Schwartz Hearing and Gang Comments.

Schwartz v. Mpls. Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960), outlined the procedures for a district court to follow when a party seeks to impeach a jury's verdict. State v. Benedict, 397 N.W.2d 337, 339 (Minn. 1986). Schwartz was codified in Minn. R. Crim. P. 26.03, subd. 19(6), which states:

Affidavits of jurors shall not be received in evidence to impeach their verdict. If the defendant has reason to believe that the verdict is subject to impeachment, he shall move the court for a summary hearing. If the motion is granted the jurors shall be interrogated under oath and their testimony recorded.

"While Schwartz hearings should be liberally granted, the trial court exercises fairly broad discretion in determining whether to grant one." State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980). A defendant must establish a prima facie case of jury misconduct before he is entitled to a Schwartz hearing; that is, the evidence must be sufficient to warrant the conclusion of jury misconduct when standing alone without challenge. State v. Anderson, 379 N.W.2d 70, 80 (Minn. 1985).

Appellant argues that the district court abused its discretion by denying a Schwartz hearing on the subject of whether a juror committed misconduct by commenting about gangs and their retaliatory behaviors, comments that appellant characterizes as race-based. Although generally a juror may not testify about jury deliberations, Minn. R. Evid. 606(b), race-based pressure can constitute extraneous prejudicial information about which a juror may testify. State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995). Pointing to the independent complaints of two jurors, appellant argues that he has presented enough evidence of juror misconduct to warrant a more thorough investigation.

Notwithstanding a juror's ability to testify about race-based pressure, the defendant must still present a prima facie case of juror misconduct. See Anderson, 379 N.W.2d at 80 (requiring prima facie case before granting Schwartz hearing).

The district court found that appellant failed to prove a prima facie case of jury misconduct. While there may have been statements concerning gangs and reprisal, the district court found that these statements were not inherently racial and that jurors often fear reprisal. Moreover, mere mention of gangs and possible reprisal is insufficient to show racial or ethnic bias. Because appellant's allegations do not necessarily establish a prima facie case of juror misconduct, we conclude that the district court did not abuse its discretion by denying a Schwartz hearing.

2. Prosecutorial Misconduct.

The state argues that appellant's claims of prosecutorial misconduct are not properly before this court. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (failure to object or seek cautionary instructions ordinarily results in waiver of right to appeal). For purposes of this opinion, however, we assume without deciding that the claims are properly before us.

In reviewing prosecutorial misconduct, we apply a two-tier test to decide whether the conduct is harmless. State v. Coleman, 560 N.W.2d 717, 721-22 (Minn. App. 1997) (citing State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994)). When the misconduct is "unusually serious" we do not affirm the conviction unless there is a certainty beyond a reasonable doubt that it was harmless error. Coleman, 560 N.W.2d at 721-22. Where the misconduct is less serious, however, we will affirm only where the misconduct did not play a substantial part in influencing the jury to convict. Id. at 722. We first determine if the prosecutor's arguments were misconduct.

Appellant argues that three of the prosecutor's arguments were improper because two were not based on actual evidence in trial and the third was improperly race-based. A prosecutor's argument need not be colorless, but it must be based on evidence produced at trial, or reasonable inferences therefrom. State v. Porter, 526 N.W.2d 359, 363-64 (Minn. 1995). Here, there was no trial evidence that any of the witnesses feared reprisals or feared for their lives. Therefore, appellant correctly claims that these arguments were improper. The prosecutor's argument based on race was also improper. A comment on race is impermissible; prosecutions must be free of racially prejudicial slurs. See State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn. 1988) (prosecutor's reference to the jack of spades playing card not misconduct because it was neutral and did not appeal to racism). Although Minnesota has not specifically addressed the effect of race-based prosecutorial misconduct, Scruggs indicates that courts will analyze improper race-based prosecutorial misconduct using the Coleman test. We note with interest that Scruggs analyzed a comment that may have been perceived as racial, but was actually neutral, using the "less serious" test for prosecutorial misconduct. See Scruggs, 421 N.W.2d at 715-16 (analyzing prosecutorial misconduct of possibly race-based argument in closing argument by applying the test of whether the misconduct played a substantial role in influencing the jury to convict).

Under Coleman we determine whether the prosecutor's arguments were unusually serious or less serious. While the first two arguments involving witness credibility were improper, appellant did not seek curative instructions; this suggests that he did not consider the remarks to be prejudicial. See Ture, 353 N.W.2d at 516 (failure to object indicates defendant did not consider remarks prejudicial); State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974) ("defendant's failure to object or request curative instructions weighs heavily in our decision" to affirm denial of a new trial). Moreover, the remarks did not reach the central theme of appellant's case. We conclude that they did not rise to the level of "unusual seriousness."

After careful consideration, we also conclude that the prosecutor's race-based remarks did not rise to the level of "unusual seriousness." The state argues that appellant's argument is not race-based but rather is a good faith attempt to prevent injustice by challenging the jurors to apply the same criteria to Milton that they would to any other victim or witness. The prosecutor tried to make the point that justice is for everyone, including Milton, but in doing so, he impermissibly injected race into the argument. The state began its argument by telling the jury that closing arguments were not evidence, that they were only meant to assist the jury, and that the jury was the trier of fact. See Coleman, 560 N.W.2d at 722 (misconduct harmless beyond reasonable doubt where, among other things, prosecutor admonished jury to remain impartial and not be swayed by sympathy). Finally, appellant failed to object to the improper remarks. See Ture, 353 N.W.2d at 516 (failure to object indicates defendant did not consider remarks prejudicial). Thus, despite reference to race, we conclude that the argument did not rise to the level of "unusual seriousness."

Having concluded that the prosecutorial misconduct here is not unusually serious, we reverse only if the state's conduct played a substantial part in influencing the jury's verdict. Coleman, 560 N.W.2d at 721. Appellant's arguments that prosecutorial misconduct played a substantial part in the verdict is speculative, especially considering appellant's failure to object and to request curative instructions. The argument here, was not meant to be a racial slur and was ambiguous, like the argument in Scruggs. 421 N.W.2d at 716. Accordingly, under the totality of the circumstances, we conclude that the prosecutorial misconduct did not play a substantial part in convicting appellant, and he is not entitled to a Schwartz hearing or a new trial.