Hubert H. Humphrey III, Attorney General, James P. Spencer, Assistant Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, Saint Paul, MN 55101 (for respondent).

Boyd A. Beccue, Kandiyohi County Attorney, 316 S.W. Fourth Street, Willmar, MN 56201 (for respondent).

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Forsberg, Judge[*].

Appellant challenges his conviction for first and second-degree assault, arguing insufficiency of the evidence and that the trial court erred in failing to grant a new trial where certain statements were made to the jury by the bailiff. Respondent challenges appellant's sentence. We affirm in part and reverse in part.

Appellant's brother began arguing with Steele. Although only 5'9" and 160 pounds, appellant placed himself between the two, telling them to "chill out" and just to enjoy the party. Despite this attempt to diffuse the situation, appellant's brother and Steele became embroiled in a fist fight. Then, according to several witnesses, appellant pushed Lindahl from behind. Lindahl pushed appellant through a wooden fence, breaking the top board. Appellant began striking Lindahl in the chest. Lindahl noticed blood coming from his chest and a knife in appellant's hand. Lindahl stated on direct examination that appellant stabbed him before he pushed appellant through the fence, but on cross-examination Lindahl testified that he could not recall when he had been stabbed.

Immediately after Lindahl pushed appellant through the fence, Ryan Block jumped the fence after appellant and began wrestling with him. Contrary to Block's assertions that he was merely trying to subdue appellant, several witnesses for the state testified that Block was doing more than subduing appellant. Jamie Mossberg testified that Block was "beating up" appellant. Appellant escaped only by stabbing Block in the abdomen. Following the incident with Block, appellant ran down the driveway. A group of five men followed appellant. One tackled appellant to the ground, but released him when appellant stabbed him in the hip. Another individual kicked appellant in the ribs, pinned him to the ground, and grabbed his neck. Appellant stabbed him in the back of the calf. Appellant was again tackled to the ground, but escaped by stabbing the individual in the foot, partially rupturing a tendon. The remaining two individuals continued to chase appellant but lost him in the dark.

Lindahl and Block were immediately taken to the hospital by friends. Lindahl's lungs had been punctured, and he had a sucking chest wound. Without surgery to insert a chest tube, he would have died. Block suffered stab wounds to his abdomen which penetrated his intestines in four different places. Appellant's brother was beaten unconscious. Although the state's witnesses repeatedly testified that they knew everyone at the party, no one was able to identify the 3-5 individuals who beat appellant's brother.

At trial, appellant admitted to using the knife, but asserted that it was in self-defense. Appellant testified that he was facing at least four men with his back to the fence, that men started hitting him, and that he tried to protect himself with one arm while at the same time removing and tucking the knife under his forearm. He stated that he started swinging the knife as he was going through the fence, but stopped when he hit the ground. He claimed he did not begin swinging the knife a second time until someone started hitting him again. Appellant was charged in Kandiyohi County District Court with two counts of attempted second-degree murder, three counts of first-degree assault and six counts of second-degree assault. Following a jury trial, appellant was found guilty of two counts of first-degree assault and two counts of second-degree assault, and not guilty of the other counts. The trial court sentenced appellant to two concurrent terms of 36 months in prison, a downward durational departure. Appellant appeals from the judgment of conviction; respondent appeals from the sentence.

(1) the absence of aggression or provocation on the part of defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

Id. To prevail, the state must disprove, beyond a reasonable doubt, at least one of the four elements. Id. Also, the amount of force used in self-defense must be limited to that which would appear necessary to a reasonable person under similar circumstances. Id.

Jason Lindahl

Contrary to appellant's testimony, three witnesses testified that appellant pushed Lindahl from behind before Lindahl drove appellant through the wooden fence. Therefore, the jury could conclude beyond a reasonable doubt that appellant was the aggressor in that instance. For this reason, although not overwhelming, the evidence is sufficient to support the jury verdict that appellant did not act in self-defense.

Ryan Block

As to the charges involving appellant's altercation with Block, we conclude the state failed to disprove beyond a reasonable doubt that appellant was not acting in self-defense. There is no evidence in the record that would allow the jury to conclude that appellant was the aggressor. Block's own testimony is clear that he jumped the fence after appellant and tried to wrestle appellant to the ground. It was then that appellant fought back. There is no evidence that appellant made any aggressive move toward Block until after Block tried to wrestle appellant to the ground.

Respondent argues that Block was assisting Lindahl in fighting off appellant's attack. This argument is unpersuasive because there is no evidence in the record that Lindahl and appellant were still fighting or that appellant was attacking Lindahl at the time Block decided to jump the fence. The fight between appellant and Lindahl was over at that point. Block could not have been assisting Lindahl in fighting off appellant's attack. Block was the aggressor.

Similarly, the state failed to disprove the remaining elements of self-defense. After being pushed through a wooden fence and having Block immediately on top of him, it was reasonable for appellant to fear that he was in imminent danger of great bodily harm. Block was five inches taller than appellant and had a fifty-five pound weight advantage on him. Also, appellant had no reasonable opportunity to retreat because Block was on top of him immediately after appellant was pushed through the fence and fell to the ground. We conclude there is no credible evidence in the record to support a jury verdict that appellant did not act in self-defense. We reverse appellant's conviction with regard to Block.

II.

Appellant argues that the trial court erred when it refused to grant a new trial after learning that the bailiff made certain comments to the jury regarding the prospects of reaching a verdict and that the prosecution improperly gathered juror affidavits rendering a Schwartz hearing impossible.

Shortly after trial, the jury foreperson contacted defense counsel to inform him that he was concerned about comments made by the bailiff to members of the jury. According to the jury foreperson, when asked by a juror how long they had to deliberate, the bailiff answered, "[d]eliberations in cases like this usually take just a few hours." After delivering pizza to the jury room, the bailiff also commented, "[t]he Judge has been down here twice already wanting to know how you are doing." The jury foreperson stated that some jurors, himself included, felt rushed because of the bailiff's comments and because some of the juror's had prior commitments over the upcoming weekend.

Following defense counsel's request for a Schwartz hearing, the prosecutor's office began contacting the remaining jurors. Despite being advised by defense counsel that it was improper to contact the jurors prior to the Schwartz hearing, the prosecutor's office continued to gather affidavits from the remaining jurors. Appellant then moved for a new trial, arguing that a Schwartz hearing was no longer possible because the jurors were tainted due to their contact with the prosecutor's office. The trial court agreed, finding that the jurors might be tainted and the purposes of a Schwartz hearing defeated. However, the trial court denied appellant's motion for a new trial, holding that although the alleged comments should not have been made by the bailiff, they lacked the amount of pressure or coercion that would influence the jury. The trial court ruled that the comments made by the bailiff were neutral in nature and did not go to the merits of the case.

While a Schwartz hearing on claims of jury misconduct should be liberally granted, it is within the trial court's fairly broad discretion whether to grant one. State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980). Generally, juror testimony or affidavits may not be used to impeach a verdict, although there are certain exceptions to this rule, such as in the case of juror testimony concerning improper contacts between third persons, such as the court itself or a bailiff or one or more of the jurors. State v. Hill, 287 N.W.2d 918, 921 (Minn. 1979).

Although Minn. R.Evid. 606(b) protects the juror's thought processes and mental operations from scrutiny, where it is suspected that outside influences were improperly brought to bear upon the jury,

the proper procedure for reviewing a jury verdict is to 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. Cox, 322 N.W.2d 555, 559 (Minn. 1982). The relevant factors to be considered include an independent evaluation of the verdict, the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of the evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice. Id.

Here, the prosecutor's conduct was decidedly improper. It is firmly established that "[n]either an attorney nor his agent should initiate questioning of jurors concerning possible misconduct." Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262-63 (Minn. 1977) (citation omitted). As this court has observed, "the Schwartz hearing was created to stop the practice of attorneys contacting and questioning jurors after a verdict has been rendered." Arney v. Helbig, 383 N.W.2d 4, 6 (Minn. App. 1986). Accordingly, this court has ruled that "attorneys should never contact and interrogate a juror for the purpose of gathering evidence for a Schwartz hearing." Id. Contrary to the state's bald assertion, this rule is not limited to attorneys for defeated criminal litigants.

Despite the impropriety of the prosecutor's conduct, we conclude a reversal and a new trial is not mandated. A private communication or contact with a juror, directly or indirectly, about a pending matter is deemed presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954). This presumption is not conclusive, but places a heavy burden upon the state "to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." Id. Similarly, a court bailiff's statement about the merits of a criminal case in the presence of the jury creates a rebuttable presumption of prejudice. State v. Watkins, 526 N.W.2d 638, 640 (Minn. App. 1995), citing State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982). This presumption attaches "because the official character of the bailiff, as an officer of the court and as the State * * * carries great weight with a jury." Id., citing Parker v. Gladden, 385 U.S. 363, 365, 87 S. Ct. 468, 470 (1966). To rebut this presumption, the state must show beyond a reasonable doubt that the asserted error did not contribute to the jury's verdict. Id.

Those cases where a bailiff comments on the guilt or innocence of the defendant in the presence of the jury are distinguishable from those where the bailiff "tells the jury to hurry up." Hill, 287 N.W.2d at 921. This "sort of comment, by virtue of its neutrality as to the result, is less serious than the type of remark [regarding guilt or innocence], but it still is potentially prejudicial." Id.

We conclude, as did the trial court, that the comments made by the bailiff did not go to the merits of the case, but rather were neutral and not of the type that would improperly influence a jury. The fact that the jury found appellant guilty of only four of the nine counts, disregarded the more serious counts of attempted murder (the two counts of attempted murder, on these facts, border overcharging), and deliberated for seven and one-half hours suggest that the jury did not feel pressured and took the time necessary to consider each charge against appellant. While it was improper for the prosecuting attorney to have contacted jurors about the possibility of any jury misconduct, the error does not call for a new trial. Assuming all the statements attributed to the bailiff were made, we agree with the trial court that it is difficult to say those statements improperly influenced the jury during deliberation.

III.

Finally, respondent argues that the trial court erred in sentencing appellant because it relied on facts unsupported by the record as its basis for a downward durational departure. We vigorously disagree.

A trial court has discretion to depart from the sentencing guidelines if aggravating or mitigating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989); see also Minn. Sent. Guidelines I.4. (departure from the presumptive sentencing guidelines should be made only when substantial and compelling circumstances exist). In the absence of aggravating or mitigating circumstances, the trial court has no discretion to depart. Best, 449 N.W.2d at 427; see also State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (holding that where substantial and compelling circumstances exist justifying a departure, the trial court's decision to depart will be reversed only where the trial court abused its discretion).

The sentencing guidelines specifically provide that it is a mitigating factor where "[t]he victim was an aggressor in the incident." Minn. Sent. Guidelines II.D.2.a.(1). The guidelines further provide that it is a mitigating circumstance where the "offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Minn. Sent. Guidelines II.D.2.a.(3).

The trial court found that each of the two victims, Jason Lindahl and Ryan Block, were the aggressors in the incidents and that appellant did not use his knife until after he had been pushed through the fence by Lindahl and that not until after Block had jumped on top of him and began hitting him in the head did appellant again use his knife. The trial court found that because appellant was pushed through a fence and hit several times in the head and face, his capacity for exercising good judgment was impaired to such a degree that he felt compelled to use a knife to defend himself.

After reviewing the record, it is clear the trial court's thoughtful and reflective findings are supported by the evidence. There is no indication that appellant used a knife against Lindahl prior to being shoved through a fence. Appellant did first push Lindahl from behind, but Lindahl's response in pushing appellant through a fence was unreasonable, given the minimal contact on the initial push. By pushing appellant through the fence and coming at him, Lindahl measurably raised the level of aggression. Lindahl's action provoked appellant to use a knife against him.

Trial testimony further shows that Block then jumped the fence after appellant had been shoved through it and began beating appellant around his head and his face. The trial court correctly found that it was only after Block began beating appellant that appellant used his knife a second time.

The sentencing transcript indicates the trial court considered the totality of the circumstances in determining appellant's sentence. The trial court noted that appellant's brother had been beaten unconscious by other individuals at the party, there was drunken and boisterous conduct by all parties involved, that appellant had no previous criminal record, that given the letters and affidavits from friends, relatives, teachers, and clergy on behalf of appellant, this incident was completely out of character for appellant, and thus the nine-year presumptive sentence did not fit the circumstances. We agree.

The trial court's findings that substantial and compelling factors exist justifying a downward departure from the presumptive sentencing guidelines are easily supported by the record. The trial court acted properly when it sentenced appellant to a downward durational departure.

Affirmed in part, reversed in part.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.