This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Mitchel Rex Willette,


Filed January 12, 1999


Klaphake, Judge

Mower County District Court

File No. K8-95-1184

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Patrick Oman, Mower County Attorney, Courthouse, 201 First St. N.E., Austin, MN 55912 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.



In 1997, appellant Mitchel Rex Willette was tried on two counts of second-degree criminal sexual conduct for having sexual contact with his former live-in girlfriend's daughter, G.L.C. See Minn. Stat. § 609.343, subds. 1(a) (1994) (sexual contact between victim under age 13 and offender more than 36 months older than victim); 1(g) (1994) (sexual contact where offender has significant relationship to victim and victim under age 16 at time of offense). Following his conviction on both counts, Willette filed this appeal, claiming the trial court should have voir dired the jury or held a Schwartz hearing after learning of contact between jurors and at least one witness. We affirm because we conclude the trial court did not abuse its discretion in declining to voir dire the jury or hold a Schwartz hearing.


During Willette's trial, while the jury was not present, an exchange occurred among the judge, the prosecutor, and defense counsel regarding contact by certain individuals with the jury. The prosecutor informed the court that the bailiff heard "somebody" talking about "how they are making a point to say hello to various jury members." Defense counsel added, "The alleged victim was saying hi to some of the jurors after lunch." The bailiff then informed the court that he spoke with the jury and "a couple stated that she said hi." Thereafter, defense counsel moved for a mistrial. The trial court denied the motion.


Willette moved for a mistrial, but he did not request that the trial court voir dire the jury or hold a Schwartz hearing. When a defendant does not request a Schwartz hearing during trial, a trial court has no obligation to initiate the proceedings sua sponte and does not abuse its discretion in declining to do so post-trial. Zurn v. Hunt, 409 N.W.2d 8, 11 (Minn. App. 1987). Assuming Willette brought the matter to the court's attention by moving for a mistrial upon discovery of the irregularity, we nevertheless conclude that the trial court had no independent duty to voir dire the jury or hold a Schwartz hearing because Willette did not request either type of inquiry. See Minn. R. Crim. P. 26.03, subd. 9 (if materials presented to jurors outside trial proceedings raise "serious questions of possible prejudice," trial court "may" sua sponte examine jurors about exposure to materials; if either party moves for such examination, trial court "shall" conduct examination).

We also conclude that the contacts involved here did not actually prejudice the jury or mandate further inquiry by the court. See State v. Bauer, 471 N.W.2d 363, 367 (Minn. App. 1991) (prima facie case of juror misconduct derives from "outside influence" or "actual misconduct resulting in prejudice"), review denied (Minn. July 24, 1991). First, the bailiff's alleged actions were innocuous. He merely inquired about whether others had contacted the jurors. See State v. Cox, 322 N.W.2d 555, 559-60 (Minn. 1982) (trial court did not abuse its discretion in denying mistrial motion where sheriff remarked on defendant's guilt). Second, as to the discussion overheard by the bailiff, the record does not demonstrate that any individuals actually greeted the jury or that they were trial witnesses. Without more evidence of direct contact between witnesses and the jury, this evidence is insufficient to merit further inquiry. See State v. Church, 577 N.W.2d 715, 720 (Minn. 1998) (prima facie case for holding Schwartz hearing includes "sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct"). Third, while the victim in this case should not have greeted the jury, the greeting was not directly related to the issues in the case and was, at most, an extremely weak method to influence the verdict. See Minn. R. Crim. P. 26.03, subd. 9. The trial court properly instructed the victim to avoid any further contact with the jury and instructed the jury to rely on evidence presented at trial in making its decision. Under these circumstances, the trial court did not abuse its discretion in declining to inquire further about possible juror misconduct. See United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975) (where "piercing effect" of extrinsic material presented to jury "is only skin deep and without prejudice to the anatomy of the trial," no "constitutional salve" needed); see also Church, 577 N.W.2d at 721 (standard of review for denial of Schwartz hearing is abuse of discretion); State v. Anderson, 379 N.W.2d 70, 80 (Minn. 1985) (trial court did not err in denying Schwartz hearing motion where motion based on "speculative and doubtful allegations of jury misconduct").