This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Eugene Bakai Joe,



Filed August 2, 2005

Affirmed; motion granted

Willis, Judge


Hennepin County District Court

File No. 03085914


Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and


Paul D. Baertschi, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction on the grounds that the district court erred by not requiring the state to generate a videotape from the digital video recording made while appellant was in the booking room of the jail and that the record does not show that appellant was present when the district court answered a question from the jury.  Appellant also moves to strike parts of respondent’s brief.  Because we see no error in the district court’s decision and no denial of appellant’s right to be present at his trial, we affirm; because the items appellant moves to strike were not part of the record before the district court, we grant the motion.


            A Robbinsdale police officer noticed the erratic driving of appellant Eugene Joe sometime between 12:30 a.m. and 1:00 a.m. on December 3, 2003.  The officer turned on his squad-car lights to pull Joe over, thus activating the video camera in the squad car.  Joe continued to drive until he turned into his own driveway and stopped.  The officer made three attempts to have Joe take a preliminary breath test; each time, Joe failed to produce enough breath for the machine to operate. The officer searched the car that Joe had been driving and found a canister of marijuana in the glove compartment.  After learning that Joe’s license had been revoked and that he had had two previous DWI incidents within ten years, the officer arrested Joe and took him to the Robbinsdale jail.

            In a booking room equipped with a digital video recorder and an audio recorder that did not operate, the officer read Joe the implied-consent advisory, noted his responses on the advisory form, and provided Joe with a telephone and a telephone directory so he could call a lawyer.  The officer testified at trial that (1) he asked Joe three times if Joe understood that Minnesota law required him to take a test to determine if he was under the influence of alcohol, and Joe had answered three times, “I do not”; (2) he asked Joe four times if Joe understood that refusal to take the test was a crime and Joe answered four times, “I do not”; (3) when he told Joe of his right to consult with an attorney, Joe replied, “I don’t want to make any statements without representation”; (4) Joe said he did not understand the statement that he could be considered to have refused the test if the test were unreasonably delayed or if he made no decision; and (5) when he asked Joe if Joe would take a breath test, Joe replied, “I am not supposed to answer without an attorney.”  Joe testified that the officer did not read the implied-consent advisory to him.   

Joe was charged with driving under the influence, test refusal, driving while in possession of a small amount of marijuana, and driving after revocation.  He stipulated to driving after revocation.  A jury subsequently convicted him of driving under the influence and test refusal but not of driving while in possession of a small amount of marijuana.  Joe challenges his convictions, arguing that the district court abused its discretion by not requiring the state to produce a videotape of the officer reading the implied-consent advisory to Joe and that the record does not show that Joe was present when the judge answered a question from the jury.  Joe also moves to strike portions of the state’s brief.


“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

Joe argues that the district court abused its discretion by not requiring the state to produce an audiotape and a videotape of the police officer reading the implied-consent advisory to Joe in the booking room at the jail.  At the Rasmussen hearing, defense counsel asked the officer about the recording equipment in the booking room.  The officer replied that “[t]here is a digital camera in the room in which the Implied Consent is read” and that “[t]o my knowledge right now, the audio does not work and has not worked.  It is a new system.”  When asked where the videotape of Joe was, the officer answered, “We are unable to copy the information from the computer onto the diskette at this time . . . the information is saved on a computer, and he is unable to download that information onto a CD to use it as a video right now.  We just do not have the capability to do that.”  The officer did not know whether the information about Joe was still in the computer or whether it had been destroyed.  At trial, the officer again testified about the recording equipment, iterating that the department lacked “the software to download the digital video image and the audio onto a disc.”

Joe claims that the district court’s refusal to require the state to produce the recording of what happened at the jail was error.  Joe concedes that the state is not required to record the reading of an implied-consent advisory, but he argues that, because the reading was recorded here, and it is possible to generate a videotape from that recording, the state was obligated to generate a videotape and furnish Joe with a copy. But the statute on which Joe relies, Minn. Stat. § 611.271 (2002), states only that prosecutors and law-enforcement agencies must “furnish . . . copies of any documents in their possession,” including audiotapes and videotapes.  Here, no audiotape was made and no videotape was generated.  The statute does not require law enforcement to record audiotapes or to generate videotapes for the purpose of furnishing copies.  This court cannot add to a statute what the legislature may have inadvertently overlooked or purposely omitted.  Ullom v. Indep.  Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994).  Therefore, this court cannot require law-enforcement agencies to generate videotapes from digital video recordings.

            Even assuming, arguendo, that a videotape of Joe’s time in the booking room should have been generated and furnished to him, Joe has not shown that he suffered any prejudice from the district court’s refusal to order that procedure.  To be entitled to a new trial, a defendant must generally show prejudice from the state’s failure to produce evidence.  Amos, 658 N.W.2d at 203.  “The issue then becomes whether the evidence was material exculpatory evidence in the sense that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different.”  State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).  Joe relies on the “interests of justice” exception to this rule set out in State v. Kaiser.  486 N.W.2d 384, 387 (Minn. 1992) (noting that this court occasionally will grant “a new trial . . . ‘in the interests of justice’ when prejudice was not clear”).  But “prophylactic reversals in the interest of justice have been limited to circumstances in which the prosecution’s failure to comply with the discovery rules is clear.  State v. Freeman, 531 N.W.2d 190, 199 (Minn. 1995) (citing Kaiser, 486 N.W.2d at 387).   Here, whether the state failed to comply with the discovery rules is, at best, a debatable issue.  Thus, Joe’s reliance on Kaiser is misplaced.    

            The jury did see a videotape of Joe taken by the squad-car video camera at the scene of arrest, shortly before he was taken to the jail, as he was going from his own car to the squad car.  It showed Joe having difficulty walking; Joe’s attorney in closing argument observed that, on the videotape, “You see [Joe] slipping.”  The attorney did not allege that the videotape proved that Joe was not intoxicated.   Joe does not explain why, if that videotape failed to show that he was not intoxicated, a videotape taken a few minutes later would do so.

The district court did not abuse its discretion by refusing to order the prosecution to generate and furnish Joe with a videotape of what occurred while he was in the booking room for two reasons:  first, the statute requires only that videotapes that are available to the prosecution be also furnished to a defendant, and second, Joe has not shown that the videotape, if generated, would have had exculpatory value.

2.         Jury’s Question[1]

            Minn. R. Crim. P. 26.03, subd. 1(1), requires that a defendant be present at every stage of the trial.  While the jurors were deliberating in this case, they sent the judge a note asking if they could read a particular portion of the transcript.  The judge answered by telling them that he had consulted with both attorneys and both agreed that, because no transcript had been prepared, the jurors would need to rely on their memories.  Joe argues that he was denied his right to be present at every stage of his trial because “[a]lthough this question was answered in open court, there is nothing in the record suggesting that either attorney was present . . . [or] that [Joe] was present.”   But “open court” is defined as “[a] court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business.”  Black’s Law Dictionary 1118 (7th ed. 1999).  The transcript states that the question was answered “in open court.”  Thus, contrary to Joe’s argument, the record suggests, or even asserts, that he and the attorneys were present.

3.         Motion to Strike

            Joe moves to strike two portions of the state’s brief as not part of the record.  See Minn. R. Civ. App. P. 110.01 (providing that the record consists of papers filed in trial court, exhibits, and the transcript).  The first is a comment made in the brief by the state’s counsel, speaking “[a]s an officer of the Court” and stating that any video images that were on the computer would have been recorded over, so remanding for the production of a videotape made from those images would be a futile exercise.  The state does not cite to the record in support of this comment, and an examination of the record does not show that the statement was ever before the district court.  Therefore, the motion to strike the statement is granted.

The second item that Joe seeks to strike is an affidavit from the court reporter included in the appendix to the state’s brief.  The affidavit states that the transcript would have indicated the absence from courtroom of Joe or either of the attorneys if they had been absent. Again, it was not before the district court and must be stricken.[2]  The motion to strike is granted.

            The district court did not abuse its discretion by failing to order the state to generate and furnish Joe with a videotape, and the record indicates that Joe was present when the district court answered the jury’s question.  We see no basis for reversal of Joe’s conviction.

Affirmed; motion granted.

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

[1] This issue is not properly before us because it was not raised in the district court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (noting that appellate courts do not consider matters not raised in the district court).  But we address it in the interests of completeness.  See Minn. R. Civ. App. P. 103.04 (providing that this court may take any action “as the interest of justice may require”).

[2] We note that Joe’s failure to present to the district court the issue of his alleged absence when the court answered the jury’s question means that there would have been no reason to present such an affidavit to the district court.