Charles E. MacLean, Winona County Attorney, Courthouse, 171 West Third Street, Winona, MN 55987-3166 (for respondent)

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

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

Appellant Robert Allen Smith challenges his conviction for one count of first-degree controlled substance crime, arguing the trial court erred in denying a jury request to review testimony of a state's witness. Because defense counsel failed to object at trial and appellant failed to show prejudice suffered as a result of the denial, we affirm.

We first note that this court is under no obligation to hear the appeal because Smith's counsel did not object to the trial court's denial. Ordinarily, if a defense attorney fails to object to the trial court's decision regarding a jury request under Minn. R. Crim. P. 26.03, subd. 19, the defendant's right to have an appellate court review the trial court's decision is deemed forfeited. State v. McMorris, 373 N.W.2d 593, 595 (Minn. 1985). In only one case, State v. Spaulding, 296 N.W.2d 870 (Minn. 1980), did the supreme court overlook the defense counsel's failure to object. However, the facts of Spaulding are distinguished from that of the present case. In Spaulding, the case was "a close case" involving a request for the review of the defendant's testimony by a jury that said it was deadlocked." McMorris, 373 N.W.2d at 595. Here, although the jury acquitted Smith of the count based on the first drug transaction, the evidence supporting the count based on the second transaction was strong, the case was not "a close case," and the jury was not deadlocked. Because Smith did not object to the trial court's denial of the jury request, we conclude he forfeited his right to appeal this issue.

Even if Smith did not forfeit his right to appeal this issue, his claim would fail. It is within the trial court's discretion to grant a jury's request to review trial testimony. State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983). Smith contends that the trial court's denial was a "blanket" denial of any jury request for review of trial testimony prohibited by Spaulding. Spaulding, 296 N.W.2d at 877-78. We disagree. In denying the jury request, the trial court stated:

[M]y response to your question will be I'm sure unsatisfactory to wherever it was generated, but there are no transcripts that are prepared during the course of the trial or made available to juries during deliberation. You'll have to rely upon your individual and collective recollection of the evidence to guide you in your deliberations.

We do not characterize the trial court's refusal as a "blanket" refusal. Even if we did, a blanket rule against granting jury requests can survive appellate review if there are objective grounds for denying the requests. State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988).

Moreover, Smith failed to demonstrate that the denial was prejudicial. See McMorris, 373 N.W.2d at 595 (holding that to obtain a new trial on appeal, defendant must establish that the denial was prejudicial). Smith's attorney did not object when the trial court denied the jury's request for review of the trial testimony. Also, any inference that the jury's request indicated they disbelieved Lee's testimony is highly speculative. It is just as likely, if not more likely, that the jury put a great deal of weight on Lee's testimony and therefore wanted to review it further to see if there was evidence to convict on the other count.

Affirmed.