                                NO.    90-434

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1991



STATE OF MONTANA,
             Plaintiff and Respondent,
      v.

RAYMOND "BUTCH" MORENO,
             Defendant and Appellant.



APPEAL FROM:        District Court of the Second Judicial District,
                    In and for the County of Silver Bow,
                    The Honorable Mark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                    Ralph T. Randono, Esq., Great Falls, Montana
             For Respondent:
                    Honorable Marc Racicot, Attorney General; Elizabeth
                    L. Griffing, Assistant Attorney General; Helena,
                    Montana
                    Robert McCarthy, County Attorney; Brad Newman,
                    Deputy County Attorney; Butte, Montana



                                 Submitted on Briefs: January 24, 1991

       c6/
         Sgpif
  CLERK OF SUPRE,   .  &OUR1
     STATE OF Ffi01u-Ffai.A
                                                Decided: April 11, 1991



                                 n
                                 -   Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
        On May 9, 1990, Raymond "Butch1'Moreno was convicted by a jury
of criminal sale of dangerous drugs, a felony, in the Second
Judicial District, Silver Bow County.          He appeals from that
conviction.
        We affirm.
        The issues raised on appeal are:
        1.    Was the defendant prejudiced by the name change on the
transcription of the audio tape?
        2.    Was the defendant prejudiced by permitting the jury to
hear discussion on admissibility of the transcript and defendant's
motion to dismiss?
        3. Was the defendant prejudiced by allowing the tape recorder
to be taken into the jury room?
        On January 31, 1990, an undercover operative for the Butte
police department made a drug purchase while fitted with a body
wire.        The informant testified that he went to the defendantls
house, where the defendant and another man were working, and
purchased a gram of methamphetamine from the defendant.           The
defendant was subsequently arrested and charged with criminal sale
of dangerous drugs.
     At trial, the audio tape of the transaction was admitted into
evidence.       However, when the State attempted to admit a written
transcript of the tape, the defendant objected on the grounds that
the original transcript provided in discovery had different names
                                   2
ascribed to the parties than the transcript being offered into
evidence.   A police officer then testified that when he had been
going over the tape that morning before trial, he had noticed that
"the secretary had used the wrong name as being the person
speaking.It Consequently, a revised transcript was provided to the
defense the morning of the trial.   The court did not permit either
transcript to be admitted into evidence.
     While the jury was deliberating, it asked for a tape recorder
to listen to the tape.       The court provided one "for fifteen
minutes."   The jury then returned a verdict of guilty of criminal
sale of dangerous drugs.
     Was the defendant prejudiced by the name change on the
transcription of the audio tape?
     The defendant argues that in changing the names on the
transcription of the audio tape and not disclosing it until the day
of the trial, the State did not comply with discovery rules, and
thereby prejudiced the defendant.    He relies primarily on 5    46-

15-327, MCA, which states:

     If at any time after a disclosure has been made any party
     discovers additional information or material that would
     be subject to disclosure had it been known at the time
     of disclosure, such party shall promptly notify all other
     parties of the existence of the additional information
     or material and make an appropriate disclosure.
The defendant maintains that because the first transcript iden-
tifies the third party at the house as the seller of the drugs,
and the second one implicates the defendant, the last minute change
was prejudicial. He asserts that disclosure was not properly made
according to   §    46-15-327, MCA, because the revised transcript was

only provided the day of the trial.
     Two facts are problematic for the defendant.       The first one
is that neither of the transcripts at issue were admitted into
evidence. The court noted that the best evidence was the recording
itself and that the jury could make its own determination on the         1
basis of it.       We fail to see how the name change could constitute
"additional informationn when the transcripts were not           even
admitted.
     The second problem is that even if the defendant had prepared
for trial as if exculpatory evidence were going to be introduced
by the State, he still had the benefit of the "best evidencettof
the tape itself.         Access to the best evidence rules out the
possibility that the defendanttstrial preparation was substantial-
ly impaired by the Statets action.
     Was the defendant prejudiced by permitting the jury to hear
discussion on the admissibility of the transcript and the motion
to dismiss?
     Section 46-20-701, MCA, provides in part that:
     (1)    .. .No cause shall be reversed by reason of any
     error committed by the trial court against the appellant
     unless the record shows that the error was prejudicial.
     The defendant contends that arguing the admissibility of the
transcripts in front of the jury was "highly prejudicial. It      His
only proof of prejudice appears to be that no jury instruction was
given about the tape/transcript problem.
     Here, the jury never even saw the transcripts. An instruction
could only have told them to disregard what it had not seen.    It
is true that the jury heard about a material change in the
transcripts.   However, the court did state during the trial that
the tape was the best evidence, and having reviewed the instruc-
tions as a whole, we find no reason to believe that the jury would
understand that it could consider material not in evidence. Merely
witnessing the exchange regarding conflicting transcripts is not
proof of prejudice.
     Further, it was defense counsel who solicited information
about the tapes in open court.    He did not request an in camera
voir dire of the detective or an in camera motion to dismiss.
Because he failed to make these requests, we defer to the discre-
tion of the trial court in the conduct of its proceedings and do
not find prejudicial error.
     Was the defendant prejudiced by allowing the tape recorder to
be taken into the jury room?
     After the case was submitted to the jury, the jury requested
a tape recorder to play the recording of the drug transaction.
Defense counsel consulted his client, who said he had no objection.
The recorder was given to the jury without objection.
     Section 46-20-104, MCA, governs the scope of appeal by the
defendant:
    (2) Upon appeal from a judgment, the court may review
    the verdict or decision and any alleged error objected
    to which involves the merits or necessarily affects the
    judgment. Failure to make a timelv objection durins the
    trial constitutes a waiver of the objection except as
    provided in 46-20-701t2L. [Emphasis added.]
The defendant's failure to object at the time of trial waived his
right to appeal the action.
    Affirmed.




We concur:
