John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

Appellant challenges his first-degree criminal sexual conduct convictions, arguing that the district court abused its discretion by disallowing his expert witness to refer to a learned treatise and by denying him a further Schwartz hearing. We affirm.

Evidentiary rulings "rest within the sound discretion" of the district court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Stafford argues that the district court abused its discretion by limiting Dr. Barden's testimony, because the limitation hindered Stafford's ability to properly present his defense.

The learned treatise exception to the hearsay rule states:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Minn. R. Evid. 803 (18). However, admitted evidence must still adhere to the disclosure rules. Minn. R. Crim. P. 9.02, subd. 1 (1) dictates:

The defendant shall disclose and permit the prosecuting attorney to inspect and reproduce books, papers, documents, photographs, and tangible objects which the defendant intends to introduce in evidence at the trial or concerning which the defendant intends to offer evidence at the trial * * *.

In discussing the importance of pretrial discovery rules, the supreme court noted that "[t]he growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system." State v. Lindsey, 284 N.W.2d 368, 372 (Minn. 1979). The disclosure of treatises also enhances the fairness of the adversary system. The district court ruled that Dr. Barden may not mention papers and other external research because of Stafford's counsel's failure to disclose the texts to the prosecutor. The ruling reflects a reasonable concern about a party's neglect to disclose treatises to opposing counsel: for example, the cited treatise could be universally discredited, or a cited portion's larger context could make it less applicable to the case.

Schwartz hearings are designed to investigate allegations of juror misconduct; after guidelines were established by the Supreme Court in the Schwartz case, the Minnesota Rules of Criminal Procedure codified the procedure for criminal cases. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960); Minn. R. Crim. P. 26.03, subd. 19 (6). The decision to grant Schwartz hearings is within the discretion of the trial court. State v. Durfee, 322 N.W.2d 778, 786 (Minn. 1982). Schwartz hearings should be liberally granted. Olberg v. Minneapolis Gas Co., 291 Minn. 334, 343, 191 N.W.2d 418, 424 (1971). However, the rule "implicitly requires defendant to establish a prima facie case of jury misconduct." State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979). In order to establish a prima facie case, "a defendant must submit sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct." Id.

Stafford's assertions do not establish a prima facie case for an additional Schwartz hearing. Simply put, the issue of Juror Bono's misconduct was already heard, witnesses were already heard, and the district court made its decision accordingly. The additional witnesses that Stafford wished to call are the parents of Tamara Buelow (a non-officer employee of the sheriff's office) with whom Bono had a brief conversation regarding the case, and a janitor who may have overheard a conversation between Buelow and the investigator assigned to the case. The value of this testimony is low, considering that the matter of the Buelow-Bono conversation had been the main subject of the first Schwartz hearing, in which both Buelow and Bono testified.

Affirmed.

Dated:

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Judge Roland C. Amundson