Opinion
No. CX-97-127.
Filed October 14, 1997.
Appeal from the District Court, Hennepin County, File No. 96056113.
Hubert H. Humphrey III, Attorney General, (for respondent).
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, Torriano N. Garland, Certified Student Attorney, (for appellant)
Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges the trial court's denial of the jury's request to review trial testimony. We affirm.
FACTS
Appellant Milo David Lane allegedly robbed $5 from an 11-year-old boy. He was charged with one count of simple robbery in violation of Minn. Stat. § 609.24 (1996) ("takes personal property from the person or in the presence of another and uses or threatens the imminent use of force").
At trial, the victim and Officer James Bjostad testified for the prosecution. Lane presented two defense witnesses to support his theory that he did not have a motive to rob the victim. After the jury began deliberating, the jury sent a note to the trial judge requesting Officer Bjostad's police report. The judge denied the request because the report was not part of the record. The jury then sent a note asking for a reading of that portion of Officer Bjostad's testimony regarding the victim's initial description of the events. The trial judge refused this request because of her concern that reading the testimony would improperly highlight the testimony. She also expressed concern that there was no way to ensure that she could precisely identify the requested testimony.
After resuming deliberations, the jury returned a guilty verdict. The court sentenced appellant to 23 months in prison, stayed execution of the sentence, and placed appellant on unsupervised probation for three years. This appeal followed.
DECISION
Minn.R.Crim.P. 26.03, subd. 19(2), permits a court to have requested portions of testimony read to the jury.
Lane argues that the trial court erred by not reading to the jury the trial testimony necessary for the jury to assess the credibility of the state's key witness. The record indicates, however, that Lane's attorney did not object to the trial judge's denial of the jury's request. Because Lane's counsel failed to object, Lane is deemed to have forfeited his right to have the matter considered on appeal. See State v. McMorris , 373 N.W.2d 593, 595 (Minn. 1985) (failure to object to court's response to jury request to reread trial transcript ordinarily constitutes forfeiture of right to have matter reviewed on appeal).
An exception to the rule that failure to object precludes appellate review was recognized in State v. Spaulding , 296 N.W.2d 870, 878 (Minn. 1980). In Spaulding , the court reviewed the trial court's refusal to read testimony despite defense counsel's failure to object at trial, noting that it was a "close case" with a deadlocked jury. Id. at 877-78. We conclude that such an exception is inapplicable here, where there is no indication that the jury was deadlocked and the jury was able to reach a verdict after returning to their deliberations. We conclude there is "no good reason to overlook defense counsel's failure to object" and that the issue is waived. McMorris , 373 N.W.2d at 595.
Moreover, even if the error were properly preserved, we cannot say that the court abused its discretion by denying the jury's request. See Spaulding , 296 N.W.2d at 878 (decision whether to grant jury's request for reading of trial testimony is within trial court's discretion); State v. Rean , 421 N.W.2d 303, 307 (Minn. 1988) (trial court has discretion to deny even reasonable request).