This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Randal Bernard Crowley,




Filed June 27, 2000


Lansing, Judge


Randall, Judge


Hennepin County District Court

File No. 98054894



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Randal Crowley appeals from conviction of a third-degree controlled-substance offense in violation of Minn. Stat. § 152.023, subds. 1(1), 3(a) (1998).  Crowley argues that the trial court abused its discretion in allowing a late amendment to the complaint and in failing to exclude identification evidence not disclosed until the eve of trial.  Crowley also contends that the trial court prejudicially erred in communicating with a juror ex parte.  We find no abuse of discretion in permitting the late amendment or in allowing the identification evidence.  The record does not support Crowley’s claim of error in the communication with the juror, and because we further conclude that any error was harmless, we affirm.


            Minneapolis police arrested Randal Crowley in a “buy-bust” undercover operation after Crowley allegedly sold $20 worth of crack cocaine to an undercover officer.  The complaint charged Crowley with a third-degree controlled-substance offense for the sale.

            On the day scheduled for trial, the state moved to amend the complaint to add another count charging Crowley with third-degree controlled-substance crime for possession of crack cocaine that was found on the ground beneath Crowley’s body after he was forcibly arrested.  The prosecutor also provided late disclosure of a “show up” procedure. The procedure essentially involved having the undercover officer who made the buy from Crowley walk by the squad car where Crowley was being held after his arrest to confirm that the right man had been arrested.  This “show up” was not mentioned in any of the police reports.  The trial court denied a defense motion to exclude evidence of the “show up.”

            After the jury returned guilty verdicts on both counts, the trial court made a record of a note it had received earlier from a juror.  The note, signed by a juror who turned out to be the foreperson, asked:  “Can the 13th juror take my place because I’m not sure if I will change my mind[?]”  The trial court noted that it had “attempted to get a hold of both lawyers.”  After reaching only the prosecutor, the court returned the note to the juror, with a handwritten response stating, “No, that cannot be done.” 



            Crowley argues that the district court abused its discretion in allowing the state to amend the complaint just before jury selection.  Crowley acknowledges that the amendment occurred before trial had started.  At that time, the court was “relatively free” to permit an amendment.  State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990).  Crowley’s argument that the late amendment nevertheless deprived him of sufficient notice and opportunity to prepare a defense is unpersuasive.  Defense counsel acknowledged he had received police reports describing the crack cocaine found on the ground following Crowley’s arrest.  He did not request a continuance; the remedy Bluhm suggests may occasionally be necessary when the court permits a late amendment to the complaint.  See id.  Furthermore, the 15 rocks of crack cocaine found near Crowley’s body significantly corroborated the state’s case.  Even without the amendment to the complaint, the defense would have had to prepare to meet that evidence.


            Crowley argues that the district court abused its discretion in failing to sanction the state’s late disclosure of the “show up” by excluding it from evidence.  Generally, we review the district court’s denial of discovery sanctions for abuse of discretion.  State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995).  In this case, however, we need not determine whether the court abused its discretion because we find that the alleged error was harmless beyond a reasonable doubt.  See id. at 198-99 (reviewing court should not reverse for discovery violation “if no reasonable probability exists that the outcome of the trial would have been different”) (quotation omitted).

            Crowley argues that there is a reasonable probability that, had the “show up” been timely disclosed, the outcome of the proceeding would have been different.  See Freeman, 531 N.W.2d at 198-99.  We disagree.  This was not a typical “show up,” in which a victim views a suspect who has been singled out from the general population based on a victim’s description.  The “show up” was not a critical part of the state’s evidence.  State v. Taylor, 594 N.W.2d 158, 162 (Minn. 1999).  Rather, the procedure was only a small part of an elaborate police buy-bust operation relying as much, if not more, on circumstantial evidence—including marked buy money, rapid transmission of a physical description, and immediate arrest—to establish identity.  Defense counsel in closing argument described the marked buy money found in Crowley’s possession as “the strongest piece of evidence in the whole case.”  The undercover officer’s identification was secondary.  In fact, the officer could not even make an in-court identification.  The “show up” was only briefly mentioned in closing arguments.  We conclude there is no “reasonable probability” the outcome of trial would have been different if the “show up” had been timely disclosed or even if the evidence had been excluded.  Crowley’s claim that he would have pleaded guilty if the “show up” had been timely disclosed is unsupported by any indication that a plea would have provided a more favorable sentence.


            Crowley’s final claim is that the district court erred in communicating ex parte with the juror, who turned out to be the foreperson, after deliberations had begun.

            It is error for the judge to communicate with the jury without “‘notice to all parties and reasonable opportunity for them to be present.’”  State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994) (quoting ABA Standards for Criminal Justice § 15-3.7(b) (1986)).  See also ABA Standards, Criminal Justice Trial by Jury § 15-4.3(a) (3d ed. 1996) (counsel “should be informed of such communication and given the opportunity to be heard”).  The district court received the juror’s note at 1:30 in the afternoon asking whether she could be replaced by the alternate juror.  The district court stated on the record:

I attempted to get a hold of both lawyers.  We were only able to get a hold of [the prosecutor] at the time but what I indicated to in a handwritten note back to the jurors was that no, that could not be done, is what I said.


This is the only record made of the communication, other than the note and written response preserved in the file.

            Crowley first argues that the response to the juror’s note had to be in open court and in his presence.  A defendant has a right to be present at every stage of the trial.  Minn. R. Crim. P. 26.03, subd. 1(1).  But the juror’s note, although ambiguous, indicates she is making a personal request because she is unsure of her concurrence, not that she or the jury has reached an impasse.  Furthermore, in Kelley, the ex parte communication also took the form of a written note, and the supreme court did not criticize the form of the communication even though the note reported a jury deadlock.  See Kelley, 517 N.W.2d at 907-09.  The ABA Standard, quoted with approval in Kelley, allows communication with the jury “in writing or on the record in open court.”  Standard 15-4.3(a).  Both procedures ensure that a record is made of the communication.  Crowley cites no authority holding that a criminal defendant has a personal right to be present at a communication with a deliberating jury that would prevent the court from responding in writing, after proper notice to the parties and a reasonable opportunity to be heard, to a single juror’s communication.

            Crowley also argues that because the district court judge was able to reach defense counsel 40 minutes later to assemble for the jury’s verdict, the court did not make a reasonable attempt to notify defense counsel of the juror’s note at 1:30.  The record is not well developed on this issue.  We encourage district courts and defense counsel to create better records of attempts made to locate counsel and give them an opportunity to be present.  But, on this record, we cannot say that Crowley and his attorney were not given a reasonable opportunity to be present.  See State v. Greenleaf, 591 N.W.2d 488, 504 (Minn. 1999) (defendant claiming error has burden to demonstrate it on appeal).  The transcript indicates the district court telephoned both the prosecutor and defense counsel after receiving the juror’s note.  Unable to reach defense counsel, the court reasonably issued a timely response to the juror’s question. 

            Even if Crowley had demonstrated that the court’s ex parte communication with the juror constituted error, the error would not require reversal if it was harmless beyond a reasonable doubt.  Kelley, 517 N.W.2d at 908.  The harmless-error test is stated generally as whether the error affected the result.  Id. (citing State v. Schifsky, 243 Minn. 533, 544, 69 N.W.2d 89, 96 (1955)).

            Crowley argues that the district court’s rejection of the juror’s request for replacement was tantamount to a “dynamite charge” requiring her to reach agreement with the rest of the jury.  He also argues that the court should have given a Martin instruction to remind the jury that “no juror should surrender [her] honest conviction simply because of [her] fellow jurors’ opinion or just to reach a verdict.”  Kelley, 517 N.W.2d at 909 (citing State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 773 (1973)).  We disagree.  The district court’s ex parte communication was a straightforward response to a straightforward question:  Could the juror be replaced by the alternate juror because she was not sure if she would change her mind?  Although the note strongly hinted that the juror was a holdout, it did not mention deadlock or ask for advice on how to deal with one.  Under those circumstances, a Martin instruction was not required, and the district court’s response to the note was appropriate. 


RANDALL, Judge (dissenting).

            I respectfully dissent.