This opinion will be unpublished and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

A05-1441

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Lloyd Philipsek,

Appellant.

 

Filed August 8, 2006

Affirmed

Dietzen, Judge

 

Stearns County District Court

File No. K9-04-3254

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Janelle Prekopec Kendall, Stearns County Attorney, Dennis A. Plahn, Assistant County Attorney, Administration center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, 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.

FACTS

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. 

            At trial, respondent State of Minnesota called appellant’s mother and sister, who were present during the incident, and the responding officer.  Both appellant’s sister and the officer gave a similar version of events, including appellant’s statements and actions during the incident.  Respondent also offered as an exhibit appellant’s audio-taped statement to police.  Over appellant’s objection, the district court admitted the audio-tape as an exhibit, and it was played to the jury at trial.  The defense did not call any witnesses, and appellant did not testify. 

            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

I.

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 (Minn. 1982) (right to review); State v. Wembley, 712 N.W.2d 788 (Minn. App. 2006) (no absolute right).  Instead, the Minnesota Supreme Court has advised district courts to “exercise caution and discretion,” State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991),and has held that, “Rule 26.03, subd. 19(1) authorizes the [district] court, in the exercise of its discretion, to preclude some exhibits from being taken to the jury room.”  State v. Fossen, 282 N.W.2d 496, 509 (Minn. 1979). 

            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. 

            Here, 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 (Minn. 1983) (expressly rejectinga “reasonableness standard” under Minn. R. Crim. P. 26.03, subd. 19, noting that “the Minnesota rule contemplates greater discretion” than that afforded under a reasonableness standard).  Consequently, the district court did not abuse its discretion in refusing the jury’s request to replay the audio-taped statement. 

            Appellant 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.  Id.  For example, in State v. Spaulding, the supreme court reversed and remanded for a new trial where the district court categorically refused to honor any requests for rereading of evidence at the outset of deliberations and before the jury had even made any such requests.  296 N.W.2d 870, 878 (Minn. 1980); see also State v. Rean, 421 N.W.2d 303, 306 (noting that district court’s statement that it “do[es] not reread the parts of the testimony” arguably suggests that district court improperly followed “blanket rule” against jury requests for rereading of testimony), review denied (Minn. Apr. 14, 1988). 

            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. 

II.

            Respondent 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.  Id.  When applying the harmless-error analysis, appellate courts “look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.”  State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).  If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt.  State v. Vance, 714 N.W.2d 428, 437 (Minn. 2006). 

            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.

            Affirmed.