1. In conducting a Schwartz hearing to consider claims of improper ex parte contacts between the trial judge and the jury, the district court did not abuse its discretion by questioning only six of the twelve jurors.
2. On an appeal after remand, the matters raised and resolved in the original appeal that resulted in the remand and any claims known but not raised in that original appeal will not be considered.
Considered and decided by the court en banc without oral argument.
The opinion of the court was delivered by: Hanson, Justice
Appellant Ronald Lewis Greer was convicted of first- and second-degree murder. State v. Greer, 635 N.W.2d 82, 84 (Minn. 2001). On his original appeal, we remanded the conviction to the chief judge of the judicial district to determine whether a Schwartz hearing*fn1 was needed to inquire into ex parte contacts between the trial judge and the jury during Greer's trial. Id. at 94. The chief judge ordered a Schwartz hearing, heard testimony from the trial judge and six of the twelve jurors, and denied Greer's motion for a new trial. We affirm.
Greer was convicted of first- and second-degree murder in the July 26, 1998, shooting death of Kareem Brown. Greer, 635 N.W.2d at 84. Greer moved the trial judge for a new trial on several grounds. Id. at 84-85. Among these was his claim that the trial judge engaged in improper ex parte contacts with the jury during the trial. Id. at 85. Greer requested a Schwartz hearing and asked the trial judge to recuse himself from deciding whether to grant that hearing. Id. at 92. Greer also moved the chief judge of the judicial district to remove the trial judge from the post-trial motions, and particularly the motion for a Schwartz hearing. Id. at 92-93. After the chief judge denied Greer's motion to have the trial judge removed, the trial judge denied Greer's motion for a Schwartz hearing and denied his motion for a new trial. Id. at 93.
Greer appealed to this court on four issues, including the denial of a Schwartz hearing. Id. at 84-85. We rejected Greer's first three arguments but remanded to the chief judge of the judicial district to decide whether the ex parte contacts between the judge and the jury warranted a Schwartz hearing. Id. at 85. We voiced our serious concern * * * that when counsel did, in the context of a motion for a Schwartz hearing, raise the jury contact issue, the motion was decided by the same trial court judge alleged to have engaged in improper conduct. When a judge presides over a motion hearing to decide whether further inquiry is required into the propriety of the judge's own conduct, it raises questions about the impartiality of the court's decision. Because public trust and confidence in the judiciary depend on the integrity of the judicial decision-making process, we can ill afford to ignore this problem. We stress that nothing in the albeit sparse record indicates that the trial court's consideration of Greer's motion was not impartial. However, the mere appearance of partiality warrants concern. In light of this concern and the inadequacy of the record before us, we remand to the chief judge of the Fourth Judicial District for consideration of Greer's motion seeking a Schwartz hearing on the issue of the trial court's ex parte contacts with the jury. Id. at 93-94.
On remand, Greer's motion for a Schwartz hearing came before a new chief judge. At a hearing on the motion, the trial judge testified that he "may have briefly communicated with the jury regarding scheduling and exchanged some pleasantries." All such contact, the trial judge testified, was "incidental."
Greer submitted affidavits from two law clerks who asserted that the trial judge appeared "visibly angry at defense counsel" during Greer's trial; that he told them he had "denied defense counsel's challenges for cause because he was angry with them"; and that, contrary to his common practice, he had not sent jury questionnaires to the attorneys. One clerk stated that "approximately two" of the questionnaires expressed the belief that "the Judge favored the State."
Greer also submitted his own affidavit, in which he stated that he had seen the trial judge enter and exit the jury room on a regular basis. Greer described a specific instance in which he heard laughter emanating from the jury room and then saw the trial judge exit the room, "laughing and giggling."
The chief judge granted Greer's motion for a Schwartz hearing, and the hearing was held on April 30, 2002. The chief judge summoned six of the twelve jurors, chosen at random, and all six testified at the Schwartz hearing.
One juror testified that he remembered one or two instances in which the trial judge asked if there was anything the jury needed, such as coffee. A second juror testified that the trial judge's ex parte communications were "about process kinds of things and not about * * * specifics of the case." A third juror testified that he remembered the trial judge explaining what "the role of the jury really was," clarifying the information the jurors had read from a booklet they had received. A fourth juror stated that she had no recollection of any ex parte communications between the trial judge and the jury whatsoever. A fifth juror testified that the trial ...