State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0753

State of Minnesota,
Respondent,

vs.

Michael David Pazdernik,
Appellant.

Filed September 22, 2025
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-19-31020

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Elizabeth Scoggin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Brockton D. Hunter, Ryan C. Else, Brockton D. Hunter, P.A, Minneapolis, Minnesota (for
appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his conviction for first-degree criminal sexual conduct,
arguing that the district court erred by seating a juror with purported limited English
proficiency and abused its discretion by denying postconviction relief because his attorney
2
was ineffective for failing to strike the juror and for limiting appellant’s testimony. We
affirm.
FACTS
In December 2019, respondent State of Minnesota charged appellant Michael David
Pazdernik with two counts of first-degree criminal sexual conduct —penetrating a child
under the age of 13 (his daughter). See Minn. Stat. § 609.342, subd. 1(a) (2014).
When the case proceeded to trial, prospective jurors received a questionnaire.
Juror 15 responded “no” to whether he (1) ever witnessed a crime, was questioned by
police about a crime, or was subpoenaed to testify about a crime; (2) was ever a victim of
a crime (“specifically including physical or sexual assault or abuse”); (3) was ever accused
of a crime; or (4) had “any other experiences related to sexual assault or abuse.” 1 During
voir dire, the following exchange occurred between juror 15 and Pazdernik’s attorney.
Q: So, I’ve talked about a lot of different things; you haven’t
raised your hand. Do you have any thoughts or opinions
that you wanted to -- that you thought about as I was
having different discussions along the way?
A: Yeah. I’m usually from Bangladesh, and then -- ten
years ago. And I was born over there, everything I
learned over there was a long-time experience, culture
and everything, I am just learning. Just learning. I had
one experience when I first time came here. I don’t have
any family here. I’m struggling every day, every month,
every year, struggling in my life. And then I have little
bit experience when I started working paying a less
amount, very little money.

1 Prospective jurors also completed qualifying questionnaires. Juror 15 responded, “Yes”
to the question, “Are you able to speak and understand English and are others able to
understand you?”
3
And then also that place, one time I was facing
robbery, one person suddenly came into the store, and
then they showed my gun my left side, and then my co-
worker, he run away, she run away, and robber also run
away. And I call the police, they take the bottle and they
take the picture and two bottle. I don’t get any
information. After six months, I left the store. And I
worked in insurance, they’re also paying less amount.
And then after that, I worked the post office, I worked
two -- for one and a h alf years, two years. I have eye
problem for the organizing the mailing there, so I think I
-- I tell them I’m not going to work over there. I’m right
now start opening the one restaurant, Indian restaurant.
That’s it.
Q: Where is your restaurant at?
A: This is the Burnsville . . . restaurant.
Q: All right. And so is it your own restaurant that you’re
starting?
A: Partnership.
Q: Congratulations. It’s the American dream, right?
A: Yeah. And also all my family’s back home.
Q: Okay. And so is it you and your wife here?
A: I have one daughter, and I hope they will come soon.
Q: The remainder -- your wife and daughter are back home?
A: Yeah. Back home.
Q: So you’re truly here by yourself?
A: Yeah.
Q: What do you think when you got the notice to come to
court to be a juror?
A: It’s good. I have a new experience.
Q: Yeah. You were pretty excited?
A: Yeah.
Q: I can tell you some of your friends in the audience
maybe weren’t as excited as you were. Excellent. Very
nice to meet you.

Juror 15 was seated on the jury.
During deliberations, the jury gave a note that was written by the foreperson to the
district court that read:
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We are requesting assistance regarding circumstantial evidence.
One juror does not believe in using circumstantial evidence as
true evidence. They do not feel that any guilty verdict is
possible without tangible evidence. Therefore, we cannot make
progress despite many efforts to clarify the written instructions
given to us. I also feel that it should be noted that there is a
language barrier that may have played a role in understanding
the trial.

Pazdernik moved for a mistrial, arguing that the juror with the language barrier
should not have been on the jury. The district court denied the motion, noting that the
jurors were thoroughly subjected to voir dire, had been determined to be “qualified and
competent” by the parties, and passed for cause. The district court also noted that it could
not “invade” deliberations and conduct a “Schwartz-type hearing2 or inquire of the jurors
as to why . . . the one juror wrote that note -- or [question] what’s happening [during
deliberations].” The parties and district court agreed that the district court would reread
certain instructions to the jury.
The jury then found Pazdernik guilty of one count of first-degree criminal sexual
conduct and not guilty of one additional count of criminal sexual conduct. Pazdernik again
moved for a new trial , arguing that he was denied a fair trial because a juror did not
understand English. Pazdernik also requested a Schwartz hearing based on the information
about the juror not understanding English.
The district court denied Pazdernik’s motion for a new trial and his request for a
Schwartz hearing, reasoning that Pazdernik sought juror testimony about something that

2 A defendant may challenge a verdict through a Schwartz hearing to determine whether
improper considerations affected the jury’s decision. Schwartz v. Minneapolis Suburban
Bus Co., 104 N.W.2d 301, 303 (Minn. 1960).
5
occurred during deliberations because the issue of the alleged language barrier arose during
deliberations. The district court also determined that Pazdernik failed to establish a prima
facie case of juror misconduct because the allegation that the juror may have lacked English
competence was based solely on another juror’s opinion.
The district court sentenced Pazdernik to 144 months in prison. Pazdernik filed a
direct appeal, which this court stayed to allow Pazdernik to pursue postconviction relief.
In November 2023, Pazdernik filed a petition for postconviction relief and requested
an evidentiary hearing . Pazdernik argued that his constitutional rights were violated
because a juror was seated who had limited English proficiency and because he was denied
effective assistance of trial counsel.
Pazdernik’s ineffective-assistance-of-counsel claim included the assertion that his
attorney acted unreasonably by limiting his trial testimony. The state had filed a pretrial
notice of its intent to cross-examine Pazdernik about a formal reprimand he received from
the United States Military for having “multiple sexual relationships with at least five female
Soldiers,” including four soldiers who were under his command. The reprimand noted
that, during the investigation into Pazdernik’s conduct, he “knowingly made false
statements under oath , and . . . pressured a female Soldier to lie about [the] . . .
relationship.” In an affidavit attached to his postconviction petition, Pazdernik alleged that
his attorney “did not seem fully alert and engaged during trial,” and had failed to “walk the
jury through the timeline of events [regarding the conduct explained in the letter of
reprimand], cross-examine [the victim] about statements she made on the stand that
6
contradict[ed] her prior interviews, and gave a generic closing argument that failed to
address the specifics of [his] case.”
The postconviction judge denied Pazdernik relief on his ineffective-assistance-of-
counsel claim, determining that his attorney provided reasonable professional assistance .
But the postconviction judge granted Pazdernik permission to have the jury foreperson
explain the note. At a hearing, the postconviction judge asked the foreperson: “Can you
tell me whether your concern about the juror’s ability to communicate in English [was]
resolved through the further deliberations? ” The foreperson replied: “Yes. It was
resolved.”
In February 2025, the postconviction judge denied Pazdernik relief, stating that “the
jury foreperson’s note [was] the only piece of unexamined concrete evidence to support
[Pazdernik]’s argument [which] has now been explored, and any concern regarding [the
juror]’s language proficiency has been resolved[; therefore,] [Pazdernik]’s remaining
assertions are without factual support and without merit.” This reinstated appeal followed.
DECISION
Mistrial for juror misconduct
Pazdernik argues that the district court abused its discretion by denying his motion
for a mistrial because he received an unfair trial with the seating of a juror who did not
understand English well enough to understand the trial or to reach an independent
conclusion. We review the denial of a motion for a mistrial for an abuse of discretion.
State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016).
7
A defendant charged with a felony is entitled to be tried by a jury of 12 people.
Minn. Const. art. I, § 6 . A qualified juror must be “[a]ble to communicate in the English
language.” Minn. R. Gen. Prac. 808(b)(4). “A juror should be able to understand the
evidence, the arguments of counsel, and the instructions of the district court; and a juror
should be able to deliberate with other jurors.” State v. Berrios, 788 N.W.2d 135, 140
(Minn. App. 2010), rev. denied (Minn. Nov. 16, 2010).
Here, juror 15 indicated that he is “able to speak and understand English and . . .
others [are] able to understand [him].” The transcript of voir dire shows that juror 15
engaged in a conversation with defense counsel. Pazdernik’s counsel did not express a
concern with juror 15’s English proficiency. If such a concern existed, it should have been
raised when Pazdernik had the opportunity to remove juror 15. See State v. Logan, 535
N.W.2d 320, 324 (Minn. 1995).
Moreover, the record supports the postconviction judge’s determination that
Pazdernik’s assertion that he did not receive a fair trial was “without factual support and
without merit.” The jury foreperson testified that any issue had been “resolved” during
deliberations. Pazdernik takes issue with the fact that juror 15 indicated on his
questionnaire that he had never witnessed a crime, but during voir dire told a story about a
robbery. While this is apparently inconsistent, it does not indicate that juror 15 was biased.
Pazdernik also cites caselaw that he claims is analogous, but he relies on cases in
which jurors self- reported inabilities to proceed. See Berrios , 788 N.W.2d at 139-40
(concluding that district court did not abuse its discretion by excusing juror after juror
indicated she did not understand some testimony because of language barrier).
8
Additionally, here, there is just the jury foreperson’s original opinion that there could
possibly be a language barrier in the understanding of the use of circumstantial evidence.
The district court reread relevant instructions to the jury. And the foreperson later testified
that the language-barrier issue had been resolved during further deliberations. The facts
do not support the conclusion that Pazdernik is entitled to a new trial.
Schwartz hearing
Although Pazdernik requests that the matter be remanded for a new trial because a
Schwartz hearing is impractical because of the passage of time, he claims that he is entitled
to a Schwartz hearing because the record suggests that juror 15 was not qualified to be a
juror. This court review s the denial of a Schwartz hearing for an abuse of discretion.
Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
To be entitled to challenge a verdict through a Schwartz hearing, a defendant must
present a prima facie case that “standing alone and unchallenged, would warrant the
conclusion of jury misconduct.” State v. Martin, 614 N.W.2d 214, 225-26 (Minn. 2000)
(quotations omitted). At a Schwartz hearing, the defendant may present juror testimony
about “whether extraneous prejudicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly brought to bear upon any juror”
or “as to whether a juror gave false answers on voir dire that concealed prejudice or bias
toward one of the parties.” Minn. R. Evid. 606(b).
Here, Pazdernik is not entitled to a Schwartz hearing because there is no allegation
of jury misconduct. See Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn.
1977) (stating that Schwartz hearing is appropriate only when there is suspicion jury acted
9
improperly). Additionally, the postconviction judge held a hearing and questioned the jury
foreperson about the potential language-barrier issue. The foreperson stated that any issue
had been “resolved” during deliberations. As the district court judge and postconviction
judge noted, a Schwartz hearing would be inappropriate because a juror may not testify
about statements made during deliberations or what influenced a juror to reach a verdict,
unless there was an improper influence or a threat. Minn. R. Evid. 606(b). Here, there is
no evidence of an improper influence or a threat. Pazdernik simply suggests that it was
jury misconduct to seat a juror whom another juror at one point believed may have a
language barrier impeding his understanding of circumstantial evidence. Here, Pazdernik
is not entitled to a Schwartz hearing and there was no abuse of discretion.
Ineffective assistance of counsel
Lastly, Pazdernik argues that the postconviction judge erred by denying relief
because his attorney was ineffective for failing to examine juror 15 regarding his language
barrier and by advising him to limit his testimony regarding the circumstances surrounding
the letter of reprimand.
To prevail on an ineffective-assistance-of-counsel claim, a petitioner must show that
“counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn.
1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). If a petitioner
cannot meet one of the Strickland prongs, the claim fails, and this court need not address
the other prong. Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020).
10
“[T]here is a strong presumption that counsel’s performance fell within a wide range
of reasonable assistance.” Bruestle v. State, 719 N.W.2d 698, 705 (Minn. 2006)
(quotations omitted). Because trial counsel enjoys “wide latitude” in making strategic
decisions, State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013), this court will not review
trial counsel’s “strategic choices made after [a] thorough investigation of law and facts.”
Strickland, 466 U.S. at 690.
Generally, trial counsel makes strategic decisions during jury selection. Tsipouras
v. State, 567 N.W.2d 271, 275-76 (Minn. App. 1997), rev. denied (Minn. Sept. 18, 1997).
This court has held that an attorney’s representation falls below an objective standard of
reasonableness during jury selection when the petitioner proves:
(1) that defense counsel was so inattentive or indifferent during
the jury selection process that the failure to remove a
prospective juror was not the product of a conscious choice or
preference; (2) that a prospective juror expressed bias so strong
or unequivocal that no plausible countervailing subjective
preference could justify failure to remove that juror; or (3) that
there is some other specific evidence clearly demonstrating
that counsel’s choice was not plausibly justifiable.

Jama v. State, 756 N.W.2d 107, 114 (Minn. App. 2008).
Here, Pazdernik has failed to prove that his attorney’s performance in jury selection
fell below an objective standard of reasonableness. Pazdernik’s attorney conducted
thorough voir dire. She had a conversation with juror 15 about where he was from, his
family, his witnessing of a robbery, and his work experience in the United States. Based
on our review of the transcript we cannot discern that juror 15 was unable to engage in the
exchange or that Pazdernik’s attorney had problems communicating with juror 15. There
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is nothing in the record to support Pazdernik’s argument that his attorney was “inattentive
or indifferent.” See id. There is also nothing in the record showing that juror 15 was
biased. And Pazdernik does not show any other evidence that his counsel failed in jury
selection by not striking juror 15. Regarding Pazdernik’s arguments about juror 15, the
postconviction judge properly denied relief on this ineffective-assistance-of-counsel claim.
Pazdernik also argues that his attorney should not have limited his testimony
regarding the circumstances surrounding the reprimand letter. As previously stated, this
court will not review claims challenging trial strategy, and trial strategy includes the
selection of evidence presented to the jury, White v. State, 711 N.W.2d 106, 111 (Minn.
2006), “which witnesses to call at trial,” State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006),
and counsel’s advice to her client. State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998)
(concluding that counsel’s advice about what defendant should discuss at trial was
reasonable trial strategy). Trial counsel’s advice to Pazdernik regarding his testimony was
trial strategy. Pazdernik cannot show that his attorney’s performance fell below an
objective standard of reasonableness. The district court did not abuse its discretion by
denying postconviction relief.
Affirmed.