                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2012).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A13-2321

                                State of Minnesota,
                                    Respondent,

                                        vs.

                              Antawon Antonio Baker,
                                    Appellant.

                              Filed November 3, 2014
                                     Affirmed
                                 Klaphake, Judge*

                          Sherburne County District Court
                             File No. 71-CR-12-1910


Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and

Klaphake, Judge.




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                        UNPUBLISHED OPINION

KLAPHAKE, Judge

       On appeal from his conviction of burglary, appellant Antawon Antonio Baker

argues that the district court erred by denying his request for a Schwartz hearing

regarding jury misconduct. We affirm.

                                     DECISION

       Appellant argues that the district court erred by denying his request for a Schwartz

hearing because a juror was allegedly intimidated into convicting him. See Schwartz v.

Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960)

(stating the procedure for questioning jurors following a verdict to determine whether

jury misconduct occurred). “In cases in which a petitioner alleges juror misconduct, the

trial court may order a hearing with jurors who were privy to the alleged misconduct in

the presence of all interested parties.” Opsahl v. State, 677 N.W.2d 414, 421 (Minn.

2004) (citing Schwartz, 258 Minn. at 328, 104 N.W.2d at 303). To warrant a Schwartz

hearing to examine possible jury misconduct, a “defendant must first present evidence

that if unchallenged would warrant the conclusion that jury misconduct occurred.” State

v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000), review denied (Minn. Oct. 17,

2000). This court will reverse a district court’s decision not to hold a Schwartz hearing

only if it abused its discretion by denying a request for the hearing. State v. Church, 577

N.W.2d 715, 721 (Minn. 1998).

       After appellant’s trial, a juror spoke with appellant’s defense counsel. Appellant’s

defense counsel requested a Schwartz hearing and submitted an affidavit outlining the


                                            2
conversation. The juror explained that she felt “strongly intimidated and pressured into

voting for conviction,” and that “the jury ignored the evidence, and were mostly

interested in getting done with the deliberations so they could go home.” Based on this

evidence, the district court denied appellant’s request for a Schwartz hearing by

reasoning,

              The evidence that’s proffered to the Court at this time does
              not indicate that there was any extraneous, prejudicial
              information improperly brought to the jury’s attention nor
              does the information indicate that there was any outside
              influence improperly brought to bear on any juror. And
              finally the evidence does not demonstrate that there was
              threat of violence or a violent act brought to bear on the jurors
              from whatever source, whether it be internal or external to
              reach a verdict.

       We conclude that the district court did not abuse its discretion by denying

appellant’s request.    “The trial court must distinguish between testimony about

‘psychological’ intimidation, coercion, and persuasion, which would be inadmissible, as

opposed to express acts or threats of violence.” Minn. R. Evid. 606(b) 1989 committee

cmt. The juror stated that she felt “strongly intimidated and pressured,” but did not

indicate that she had been threatened with violence, received improper extraneous

prejudicial information, or outside influence.

       Appellant argues that because defense counsel “did not question [the juror] in any

way and simply allowed her to speak what was on her mind . . . it is quite possible that

more details would have emerged if [the juror] was questioned about threats of physical

violence.” We disagree. Appellant is correct that “it is undesirable to permit attorneys or

investigators for a defeated litigant to harass jurors by submitting them to interrogation


                                             3
. . . without more protection for the ascertainment of the facts.” Schwartz, 258 Minn. at

303, 104 N.W.2d at 328. But appellant bears the burden to “present evidence that if

unchallenged would warrant the conclusion that jury misconduct occurred.” Jackson,

615 N.W.2d at 396. Standing alone and unchallenged, the juror’s statements do not

warrant a Schwartz hearing. Consequently, the district court did not err by denying

appellant’s request.

       Affirmed.




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