This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Richard Lloyd Philipsek,
Filed August 8, 2006
Stearns County District Court
File No. K9-04-3254
Mike Hatch, Attorney General, 1800
Janelle Prekopec Kendall,
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant State Public Defender,
Considered and decided by Dietzen, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
Appellant challenges his convictions of second-degree assault and terroristic threats, arguing that the district court abused its discretion by refusing to allow the jury to replay an audio-taped statement of appellant during its deliberations.
In July 2004, police responded to a call that appellant Richard Lloyd Philipsek was causing a disturbance at his mother’s residence. When the responding officer arrived, appellant stated, “I hope you have your gun ready.” When the officer asked appellant the meaning of his statement, appellant replied, “You’re going to need it.” As the officer approached him, appellant stated that he was going to “cut [the officer’s] head off” and pointed a 13-inch knife directly at the officer. The officer used his taser gun to restrain and arrest appellant.
After his arrest, appellant waived his Miranda rights and gave an audio-taped statement to the police. Appellant admitted (1) stating to the responding officer that “I hope you got a gun” and that he was going to cut off the officer’s head; (2) stating that he “was going to resist” and to pointing a butcher knife at the officer; and (3) that his goal was to have the officer shoot him, “[b]ecause I wanted to get killed.” Appellant was subsequently charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1, and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1.
trial, respondent State of
During jury deliberations, the district court received a note from the jury requesting a tape player in order to replay appellant’s statement. Because appellant’s comments on the tape were “rather incriminating,” the prosecutor expressed concern about “undue weight being put on the statement if it’s replayed.” Defense counsel stated: “I believe that the jury, if they want to listen to it again, they should be given the opportunity to do so.” The district court denied the request, reasoning that the jury may place “undue emphasis on that part of the evidence” and the audio-taped statement “does have a potential to unduly prejudice the defendant[.]”
The jury found appellant guilty of second-degree assault and terroristic threats, and appellant was subsequently sentenced to 27 months in prison. This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion by refusing to allow the jury to replay the audio-tape during its deliberations. Respondent contends that the district court properly exercised its discretion by considering the appropriate factors before denying the jury’s request.
Minn. R. Crim. P. 26.03, subds. 19(1) and (2), governs the materials that may go to the jury room and jury requests for review of evidence. It provides:
(1) Materials to Jury Room. The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken in the jury room.
(2) Jury Requests to Review Evidence. 1. If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.
While the language in subdivision
19(1) indicates that the jury has a right to review evidence that has been
received, it is not “an absolute right.” State v.
Ming Sen Shiue, 326 N.W.2d 648, 653 (
In Kraushaar, the supreme court further indicated, however, that this does not mean that the district court has “unreviewable discretion” and listed three factors that the district court should take into account in exercising its discretion: “(i) whether the material will aid the jury in proper consideration of the case; (ii) whether any party will be unduly prejudiced by submission of the material; and (iii) whether the material may be subjected to improper use by the jury.” 470 N.W.2d at 515.
the district court considered the Kraushaar
factors and concluded that replaying the audio-tape exhibit would place
undue emphasis and weight on that portion of the evidence, particularly because
the statement was prejudicial to appellant.
The record supports the district court’s determination that appellant’s statement
was tantamount to an admission of the charged offenses and prejudicial to the defense. While appellant argues that the jury’s
request could have been reasonably accommodated by replaying the tape in the
courtroom, the applicable standard is abuse-of-discretion, not
reasonableness. See State v. Daniels, 332 N.W.2d 172, 177 (
further argues that the district court failed to exercise its discretion at
all, and instead impermissibly made “an illegal blanket prohibition” of jury
requests to review evidence. The
Minnesota Supreme Court has stated that the district court “totally fail[s] to
exercise its discretion” and may commit reversible error when it states at the
outset of deliberations that no testimony will be reread to the jury.
But the district court made no explicit blanket statements. Instead, the district court simply determined that the particular evidence requested by the jury to be replayed was unduly prejudicial under the circumstances. Consequently, the district court did not abuse its discretion.
argues that, even if the district court abused its discretion, the error was
harmless and does not warrant a new trial.
“[T]he mere fact that the [district] court may be said to have erred or
abused its discretion under [rule 26.03, subdivision 19] does not mean that a
defendant is entitled to a new trial.” Kraushaar, 470 N.W.2d at 516. Instead, a harmless-error analysis is to be
applied to such circumstances.
Because the district court did not abuse its discretion by refusing the jury’s request to replay the audio-taped statement, it is not necessary for us to reach a harmless-error analysis. But given the incriminating nature of the statement, it is doubtful that appellant would have benefited from a replaying of the statement to the jury. Further, the statement was cumulative and corroborative of the testimony of the responding police officer and appellant’s sister. And this testimony was unrebutted by the defense. Consequently, we conclude that the verdict was unattributable to the refusal to replay the audio-taped statement.