This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-609

 

 

State of Minnesota,
Respondent,

vs.

Milton Roland Myshack, Sr.,
Appellant.

 

 

Filed January 30, 2001

Affirmed
Klaphake, Judge

 

St. Louis County District Court

File No. K399600629

 

 

Mike Hatch, Attorney General, Margaret H. Chutich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN  55802 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

On several occasions between May 28 and June 3, 1999, appellant Milton Roland Myshack, Sr., hit his wife of 36 years, swore at her, and pulled her hair.  On June 3, after he allegedly choked her, threatened her, and threw her around the kitchen, causing her to break several ribs, she called 911.  Deputy Ross Litman was the first to respond, followed by two other deputies.

Appellant was arrested and charged with third-degree assault and making terroristic threats against his wife under Minn. Stat. §§ 609.223, subd. 1; 609.713, subd. 1 (1998).  A jury acquitted appellant of terroristic threats, but found him guilty of third-degree assault.  Appellant challenges his conviction, arguing that the prosecutor failed to disclose the substance of any oral statements made by the victim to other deputies who responded to her 911 call, and that the trial court failed to notify the parties when the jury twice requested, during deliberations, to view certain evidence.  Because the substance of the victim’s statements were fully disclosed to the defense and because appellant was not prejudiced by the trial court’s failure to notify the parties when the jury requested to view evidence that had not been admitted at trial and that the jury had just heard the previous day, we affirm.

D E C I S I O N

            1.         Appellant argues that the prosecutor violated discovery rules by failing to reveal the substance of any oral statements made by the victim to two other deputies who responded to her 911 call.  See Minn. R. Crim. P. 9.01, subd. 1(2) (prosecutor required to disclose “any relevant written or recorded statements” and “the substance of any oral statements” which relate to case).  Appellant speculates that the victim must have made additional statements to these other deputies, statements that are not already contained in Deputy Ross Litman’s written report or in the victim’s own handwritten statement, which were disclosed to the defense.

            However, nothing in the record suggests that the victim made any other relevant statements to the other two deputies.  In addition, appellant’s claim that he did not know that the victim had also spoken to two other deputies that day is questionable, given that (1) appellant himself was present that day and must have observed his wife speaking to these deputies; (2) the complaint itself refers to “deputies” responding to the 911 call; (3) the prosecutor specifically listed these two other deputies as potential witnesses; and (4) the victim’s handwritten statement and Deputy Litman’s report both indicated that two other deputies were present and assisted Litman in his investigation.

            If defense counsel suspected that other relevant statements were made to these deputies, he had the opportunity to interview them or move for additional discovery.  See Minn. R. Crim. P. 9 cmt. (rules provide that issues arising from discovery process be resolved at omnibus hearing).  Because the state fully disclosed the information that it had and because the duty to discover the substance of any additional statements lies with defense counsel, the trial court did not abuse its discretion in determining that no discovery violation occurred.  See State v. Crawford, 394 N.W.2d 189, 191-92 (Minn. App. 1986) (rule 9.02 does not require state to transcribe oral statements by victims, but contemplates that witness interviews are key method for discovering substance of any such statements), review denied (Minn. Nov. 19, 1986); State v. Morgan, 358 N.W.2d 448, 451 (Minn. App. 1984) (no discovery violation where information regarding witness’ poor eyesight apparent and readily available and where information not hidden by prosecutor), review denied (Minn.  Feb. 27, 1985).

            2.         Appellant argues that the trial court committed prejudicial error when it communicated with the jury during deliberations, without notifying the parties.  “[C]ommunication between the judge and jury is to be in the presence of the defendant and counsel.”  State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994).  This includes any communication after a case is submitted and the jury has begun deliberations.  Id.  A defendant is not entitled to a new trial for improper or ex parte communication, however, where “the error was harmless beyond a reasonable doubt.”  Id. (citing State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1983)). 

            Appellant concedes that the court’s denial of the jury’s request to view Deputy Litman’s report was not prejudicial, because the report contained inadmissible hearsay and was not admitted into evidence during trial.  See State v. Richardson, 332 N.W.2d 912, 913-14 (Minn. 1983) (no prejudice where trial court told jury that police reports were not in evidence and provided jury with parts of typewritten instructions).

            Appellant focuses on the court’s communication with the jury regarding replaying of the 911 tape.  He argues that this communication was prejudicial because his attorney was given no opportunity to suggest a suitable, alternative course of action.  He claims that he would have argued to allow the jury to hear the tape again.

            Where a trial court’s communication with a jury is “neutral and nonsubstantive” or where it “presumably would have been the same,” even if counsel had been consulted first, reviewing courts have found no prejudice.  See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995); State v. Kindem, 338 N.W.2d 9, 16-17 (Minn. 1983).  In this case, the trial court instructed the bailiff to inform the jury that its request was denied; it had no direct contact with the jury and presumably the bailiff gave no explanation for the court’s denial of the request.  In addition, the jury made its request as it was walking into the jury room to begin deliberations.  Just prior to this, between the parties’ closing arguments, the court had decided not to send the tape into the jury room.  Thus, the trial court’s answer to the jury presumably would have been the same even if the court had first consulted the attorneys.

            Further, a trial court has broad discretion in determining which exhibits can be taken to the jury room.  State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn. 1991).  When making this determination, a court considers whether the exhibit’s submission would “aid the jury in proper consideration of the case,” unduly prejudice either party, or be used improperly by the jury.  Id. at 515.  In this case, the jury heard the tape the previous afternoon and it was discussed during closing arguments; thus, the jury’s memory of the tape was fairly fresh during its deliberations.  In addition, a replaying of the tape might have unduly prejudiced appellant by placing additional emphasis on appellant’s yelling in the background and the victim’s claim that appellant had been hitting her for years.  The trial court appears to have properly exercised its discretion by refusing to allow the jury to replay the tape.

            Although trial courts should avoid even minor and harmless ex parte communications with juries and although we conclude that the trial court in this case should have notified the parties of the jury’s requests, we cannot conclude that appellant was prejudiced by the court’s error.  We therefore affirm appellant’s conviction.

            Affirmed.