State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0756

State of Minnesota,
Respondent,

vs.

Timothy Wayne Mallick,
Appellant.

Filed March 11, 2019
Affirmed
Rodenberg, Judge

St. Louis County District Court
File No. 69VI-CR-16-833

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Bonnie A. Thayer, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa S heridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly , Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his conviction of conspiracy to com mit second-degree
controlled-substance sale in a public housing zone under Minn. Stat. § 152.022, subd.
1(7)(ii) (2016), appellant Timothy Wayne Mallick argues that he was deprived of his right

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to a fair trial when an internal court document containing prej udicial information not
admitted in evidence was inadvert ently included with the materi als sent with the jury
during its deliberations. We affirm.
FACTS
M.E. was enlisted by the Boundary Waters Drug Task Force as a paid informant. In
that capacity, M.E. informed law enforcement that he could buy methamphetamine from
appellant and D.S. M.E. met with task-force officers in a park ed vehicle, where he was
given a cell phone to record audio and a video recorder that looked like a key fob and was
instructed concerning how to work the devices.
While M.E. was meeting with the officers in the vehicle, he re ceived a phone call
from D.S. With officers recordi ng the call, D.S. said that M.E . would be able to buy
methamphetamine from appellant at D.S.’s apartment located in a publicly-funded
apartment building. M.E. walked approximately two blocks from the parked vehicle to
D.S.’s apartment. M.E. testified that he talked to appellant inside the apartment, agreed on
a price, and gave appellant money. M.E. further testified that appellant weighed some
methamphetamine and gave it to M.E. M.E. walked back to the vehicle to again meet with
the task-force officers and gave t hem the substance that he rec eived from appellant. The
substance was confirmed to be methamphetamine by a Minnesota Bu reau of Criminal
Apprehension forensic scientist.
The audio and video recording de vices that law enforcement prov ided M.E. were
recording from the time M.E. left the task-force vehicle until his return. At trial, the state

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played the audio and video recordings of the transaction. M.E. identified appellant as the
person depicted in the video holding a small bag containing a white powder.
Appellant waived his right to te stify and presented no witnesse s. The jury found
appellant guilty of the charged offense. After the jury was di scharged, it was discovered
that a document not admitted into evidence had been sent with t he jury along with the
exhibits and printed jury instructions. The inadvertently included document was an internal
court document entitled “St. Louis , Virginia Calendar Detail Li sting—Internal.” The
document contained, in relevant p art, the following information : “ I N C U S T O D Y ; B
10,000; ISR REVOKED,” indicating the bail amount and fact that appellant’s intensive
supervised release was revoked, and the notation “FEL” indicati ng the felony level of the
charged drug offense.
Appellant moved for a new trial based upon the jury having rece ived the calendar
detail listing, arguing that Minn. R. Crim. P. 26.04, subd. 1(1)(2), permits the district court
to grant a new trial for any irregularity in the proceedings that deprived the defendant of a
fair trial. The district court held an evidentiary hearing and questioned all of the jurors
individually concerning their exposure to the document. After each juror was questioned,
he or she was excused without returning to the jury room where the remaining jurors were
located.
The district court had prepared and asked six questions to the jurors:
1. Do you remember seeing a document in the jury room,
during deliberations, that was not an exhibit received during
the trial, a verdict form or a copy of the instructions?
2. Do you remember seeing this document before?
(showing the juror the Calendar Detail Listing)
3. Did you look at it?

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4. Do you know if other jurors saw it?
5. What did it mean to you?
6. Was it discussed during your deliberations?

Counsel for both parties were giv en the opportunity to request that the district court ask
specific additional questions. In response to the general ques tions about what they had
been given to review, none of the jurors mentioned the calendar detail listing. When shown
the calendar detail listing, two o f the jurors stated that it h ad been present in the material
that was circulated in the jury room, but none of the other jur ors recalled seeing the
document. The two jurors who recalled seeing the document were a s k e d w h a t t h e
document meant to them, one of the jurors stated that “it meant who the plaintiff was, who
the defendant was.” The other juror did not assign any meaning to the document.
The district court concluded that it was error to send the calendar detail listing to the
jury, but that the error was harmless beyond a reasonable doubt . It denied appellant’s
motion for a new trial.
This appeal followed.
D E C I S I O N
A district court’s decision to grant or deny a new trial because of a juror’s exposure
to improper material is reviewed for abuse of discretion. State v. Cox, 322 N.W.2d 555,
558 (Minn. 1982). A mistrial should not be granted unless there is a reasonable probability
that the outcome of the trial would be different if the event t hat prompted the motion had
not occurred. State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998). “[T]he district court is in
the best position to evaluate whether prejudice, if any, warran ts a mistrial.” State v.
Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001). When potentially prej udicial

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matters inadvertently come before a criminal jury, we apply the Cox four-part test to
determine whether a new trial is w a r r a n t e d : “ t h e n a t u r e a n d s ource of the prejudicial
matter, the number of jurors exposed to the influence, the weig ht of evidence properly
before the jury, and the likelihood that curative measures were effective in reducing the
prejudice.” Cox, 322 N.W.2d at 559.
I. The district court’s questioning of individual jurors was im proper in this
circumstance.

We begin by observing that the district court’s questioning of the individual jurors
concerning the document that was inadvertently included among the jury instructions and
exhibits was improper. Although neither party advances this ar gument, appellate courts
have a responsibility “to decide cases in accordance with law, and that responsibility is not
to be diluted by counsel’s overs ights, lack of research, failur e to specify issues or to cite
relevant authorities.” State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990)
(quotation omitted).
The district court followed the Minn. R. Crim. P. 26.03, subd. 10, procedure
providing: “If the court determines that material disseminated outside the trial proceedings
raises questions of possible prejudice, the court may on its in itiative, and must on motion
of either party, question each juror, out of the presence of th e others, about the juror’s
exposure to that material.” Minn. R. Crim. P. 26.03, subd. 10. Such an examination “must
take place in the presence of counsel, and a record of the examination must be made.” Id.
This procedure is to be used for circumstances in which the cou rt becomes aware during
the trial proceeding that a jury is exposed to improper information. State v. Greer , 635

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N.W.2d 82, 93 (Minn. 2001). 1 The appropriate course of action when the defendant
becomes aware of such a violation either during deliberations or after a verdict is reached,
is to move for a Schwartz hearing under Minn. R. Crim. P. 26.03, subd. 20(6).2 Id. Here,
because the jury had already deli vered its verdict when the imp ropriety was discovered,
the proper procedure was under ru le 26.03, subdivision 20(6), a nd not under rule 26.03,
subdivision 10.
A defendant may move the court for a hearing to impeach the
v e r d i c t . J u r o r a f f i d a v i t s a r e n o t a d m i s s i b l e t o i m p e a c h a
verdict. At an impeachment hearing, jurors must be examined
under oath and their testimony recorded. Minnesota Rule of
Evidence 606(b) governs the ad missibility of evidence at an
impeachment hearing.

Minn. R. Crim. P. 26.03, subd. 20(6). Minn. R. Evid. 606(b) ge nerally prohibits juror
testimony to impeach a verdict, but the rule allows exceptions including juror testimony
concerning improper evidence. Jurors may be questioned “whether extraneous prejudicial
information was improperly brought to the jury’s attention.” Minn. R. Evid. 606(b). But
they may not be questioned about the effect of any matter, whether properly or improperly
considered, “upon that [juror’s ] or any other juror’s mind or e motions as influencing the
juror to assent to or dissent from the verdict.” Id. “[T]he rule is clear that even though the
jurors may testify concerning the improper contacts, they may n ot testify concerning the

1 The language in rule 26.03, subdivision 10, was, at the time Greer was decided, contained
in subdivision 9 of the rule.

2 The rule has since been renumbered from 26.03, subdivision 19(6), as it was when Greer
was decided, to 26.03, subdivision 20(6).

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effect the improper contacts [or material] had on their minds.” State v. Hill, 287 N.W.2d
918, 921 (Minn. 1979).
Consequently, the district court’s questions to the jurors conc erning the calendar
detail listing such as, “What did it mean to you” and “Was it d iscussed during your
deliberations,” were outside the scope of Minn. R. Evid. 606(b) . T h e s u p r e m e c o u r t ’ s
opinion in Cox reflects this understanding:
We do not, however, permit inquiry into the validity and
reliability of a verdict to infri nge on the jury’s freedom at
deliberation. Minn.R.Evid. 606(b) protects the juror’s thought
processes and mental operations from later scrutiny.
Therefore, the proper procedure for reviewing a jury verdict is
to determine from juror testimony what outside influences
were improperly brought to bear upon the jury and then
estimate their probable effect on a hypothetical average jury.

Cox, 322 N.W.2d at 559 (emphasis added).
The district court erroneously relied on the effect that the document had on this jury
when it concluded that no prejudice resulted to appellant becau se “the two jurors who
recalled seeing the document did not attach any particular mean ing to the document and
gave no indication that they c oncluded from it that [appellant] was in custody or had his
Intensive Supervised Release revoked.” Cf. Cox, 322 N.W.2d at 559-60 (“We hold there
is no reasonable possibility that the sheriff’s remark would affect the verdict of an average
jury given the nature of the remark, the weight of the evidence sup porting conviction and
the probable curative effect of the trial court’s voir dire and instructions.” (emphasis
added)). But this improper procedure alone does not require reversal. Instead, we review
and analyze the Cox factors to determine the effect the extraneous material would have on
the “hypothetical average jury.”

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II. The Cox four-part test does not require reversal.
A. Nature and source of the prejudicial information
The scenario here can be compared with that in State v. Winningham , where the
defendant was convicted of multip le offenses related to the use of minors in sexual
performances and possession of pornographic representations of minors. 406 N.W.2d 70
(Minn. App. 1987), review denied (Minn. July 15, 1987). During trial, the state moved to
introduce letters allegedly written by the defendant to commercial pornographers and using
“vulgar and graphic terms of the writer’s fondness for photos of ‘baby dolls’ or ‘little girls’
in various stages of undress and erotic posture.” Id. at 71. The district court ruled that the
“highly prejudicial” letters were inadmissible. Id. Approximately five minutes after the
case had been submitted to the jur y, the court’s clerk discover ed that the letters had been
delivered to the jury room and were spread across the entire length of the table. Id. After
the letters were removed from th e jury room, each of the jurors admitted having viewed
the excluded evidence, with one juror testifying that “I read o ne paragraph in one letter,
and it was enough” and described the letter as “garbage.” Id. The district court denied the
defendant’s motion for a new trial. Id. On appeal, we reversed, holding that the defendant
was denied his constitutional right to a fair trial because, am ong other reasons, the letters
were highly prejudicial. Id. at 72.
In State v. Cash , the jury inadvertently received portions of a transcript of t he
defendant’s police interrogation that the district court had pr eviously ruled inadmissible.
391 N.W.2d 875, 878 (Minn. App. 1986). The defendant was on trial for charges relating
to sexual abuse of a minor, and the district court had ruled th at portions of the transcript

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discussing the defendant’s sexual conduct with and supplying li quor to other minors was
inadmissible. Id. at 879. The district court determined that the error was harmless, and we
reversed, explaining that:
We would ignore reality and the common sense of a jury to
conclude that a jury will not b e unduly prejudiced against a
defendant when the jury is allowed to see a written statement
by a police officer made to the defendant in which the officer
claims to have statements from other young individuals
alleging that [defendant] had sexual intercourse with them.

Id. at 880.
The calendar detail listing here i s n o t a s i n f l a m m a t o r y a s t h e improper material
received by the juries in Winningham and Cash. Moreover, the receipt of the calendar
detail listing is less prejudi cial than the disclosure in Cox, where a new trial was not
required after the sheriff made a remark to the jury implying an opinion that the defendant
was guilty.
3 Cox, 322 N.W.2d at 560.
Here, we agree with the district court that “it is unlikely that any juror who was not
actively working in the criminal justice system would draw any significant conclusion from
the abbreviated statement.” The references to “B 10,000,” “ISR REVOKED,” and “FEL”
appear to be of little prejudice to appellant. It is the refer ence to “IN CUSTODY” that
carries the potential of prejudice. The supreme court has foun d that references to prior
incarceration of a defendant can be unfairly prejudicial. See State v. Manthey, 711 N.W.2d

3 Appellant argues that, under Cox, the introduction of unauthor ized material to the jury
during deliberations creates a rebuttable presumption of prejudice. Cox expressly limited
such a presumption to statements of a court official about the merits of a criminal case
“because the official character of the bailiff—as an officer of t h e c o u r t a s w e l l a s t h e
State—beyond question carries great weight with a jury.” 322 N .W.2d at 558 (quotation
omitted). We do not have that situation here.

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498, 506 (Minn. 2006) (explaining that although the supreme court has “not enunciated a
general rule that it is prejudicial for the jury to learn that a defendant is in jail for the crime
for which he or she is on trial, ” the reference to the defendan t’s incarceration arguably
damaged the presumption of innocence). In Manthey, one of the witnesses testified that
the defendant had been in jail. Id. at 505. Additionally, the bailiff informed the court that
a juror told him that she learned from a supervisor at work that one of her coworkers was
in jail with the defendant. Id. at 506. The supreme court concluded that these references
did not warrant a new trial. Id. at 507. Although it may in some circumstances be
prejudicial for a jury to learn that a defendant was in custody , the reference to custody in
the calendar detail listing here w as buried in an otherwise-inn ocuous-appearing court
document. The custody referen ce does not indicate when, where, for how long, or why
appellant was in custody. The remaining references seem unlike ly to concern an average
juror looking at the document.
As it relates to the source of the calendar detail listing, the district court was unaware
of how the document came to be sent back with the jury. Counse l for both parties were
given the opportunity to review the items being sent back to the jury before the jury retired.
It appears that neither party was involved in sending the docum ent to the jury, and the
lawyers apparently took no note of the calendar detail listing. But the court concluded that
“I am not blaming anybody other than myself.”
The jury’s receipt of the calenda r detail listing would have be en minimally
prejudicial to appellant at most. Recognizing that the jury’s receipt of the document was
neither party’s fault, this factor weighs slightly against granting a new trial.

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B. Number of jurors exposed to the influence
Appellant argues that every juror was exposed to the calendar detail listing because
it was included among the exhib its and instructions the jury re ceived. The district court
noted that only two jurors recalled seeing the document, and “[w]hile it is likely that all of
the jurors probably glanced at it as it was passed around, it is unlikely that any of the jurors
examined the document in detail let alone drew potentially prejudicial conclusions.” But
this factor does not consider what conclusions the jurors drew from the document. Minn.
R. Evid. 606(b). The question is the number of jurors exposed to the influence.
Regardless of whether the jurors recalled seeing the document, the entire jury was
exposed to the calendar detail l isting because it was present t hroughout deliberations.
Consequently, this factor weighs in favor of granting a new trial.
C. The weight of evidence properly before the jury
Appellant argues that this factor weighs in favor of a new tri al because the evidence
before the jury was not strong. The district court noted that appellant “could clearly be
seen [on video] holding the drugs which were passed to the informant in a controlled buy”
and the weight of the evidence “heavily supports the verdict.” And since the district court
is most appropriately situated to consider this factor, we defer to it.
Appellant argues more specifically that there is no evidence o ther than M.E.’s
testimony that appellant conspir ed to sell drugs. But in addit ion to the audio, video, and
testimonial evidence, there is st rong corroborating circumstant ial evidence of appellant
conspiring with D.S. to sell drugs because M.E. had arranged fo r the controlled buy with
appellant entirely through D.S., by way of a phone call overhea rd by task-force officers.

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This factor weighs significantly against granting a new trial b ecause the evidence against
appellant was strong.
D. Likelihood that curative meas ures were effective in reducing t h e
prejudice

Given the procedural posture in which the district court becam e aware of the error,
the district court was not able to provide a curative instructi on. This factor, therefore,
necessarily weighs in favor of a new trial.4
T w o Cox factors favor granting a new trial—the number of jurors exposed a n d
absence of any curative measure. One factor weighs slightly ag ainst granting a new trial
(the nature and source of the document), and another factor weighs heavily against granting
a new trial (the strength of the evidence). We conclude, considering all of the Cox factors,
that a new trial is not warranted here. Given the strength of the state’s case, there is no
reasonable probability that the er rant document significantly a ffected the verdict. We
therefore affirm the district court’s denial of the new-trial motion.
Affirmed.

4 The state argues, and the distr ict court noted, that the jury was instructed, at both the
beginning of trial and in the final instructions, “[t]hat the defendant has been brought before
the court by the ordinary processes of the law and is on trial should not be considered by
you in any way suggesting guilt.” This standard instruction was proper, and appellant does
not suggest otherwise. But it was not a “curative measure.” F urther, the state argues that
any curative measure would have drawn more attention to the document than actually had
occurred, given that none of the jurors attached any significance to the document. See State
v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978) (discussing the idea that a specific curative
instruction would emphasize an i nadvertent prejudicial reference). But appellant had no
opportunity to request or declin e a curative instruction becaus e of the timing of the
discovery. And the question here is not whether any juror atta ched actual significance to
the document in deliberations.