David, J.
Before trial, the State created an exhibit log, which listed both the exhibits the State planned to offer and the witnesses the State planned to have authenticate the exhibits. The State provided a copy of the exhibit log to the trial court, but not to Inman. Unbeknownst to Inman, the trial court used the exhibit log during trial to track exhibits.
On the afternoon of the third day of trial, [footnote omitted] when Inman became aware of the exhibit log, he requested a copy. Outside the presence of the jury, arguments were heard. Inman objected to the exhibit log as an ex parte communication between the State and the trial court. Citing work product privilege, the State contended, “I don’t think I should be expected to give [Inman] a road map of my case so he knows where I [sic] going with it.” (Tr. at 548–49.) The trial court initially decided not to provide a copy to Inman, who immediately objected. Later that day, Inman filed motions for a change of judge and a mistrial.
Ultimately, the trial court marked the exhibit log Court’s Exhibit One and admitted it into evidence. Denying Inman’s motions, the trial court stated, “[the] State provided [the] Court with an exhibit list. Any [sic] witness list for convenance [sic]. These documents were for administrative purposes and the documents did not address substantive issues.” (Tr. at 829.)
. . . .
Determining that the exhibit log was only of administrative value, the trial court denied both of Inman’s motions. We find no error or abuse of discretion in these rulings. The purpose of the exhibit log was to aid the trial court in tracking the State’s witnesses and exhibits. Prior to trial, Inman had received lists of witnesses and approximately thirty notices of discovery compliance from the State. Contained in these notices were lists of physical evidence that “may be used as exhibits a [sic] trial and can be viewed by contacting the undersigned deputy prosecutor.” (Inman’s App. at 69.) Additionally, the notices indicated which pieces of evidence had been copied and forwarded to defense counsel and provided information about the prosecutor’s “open file policy” for viewing evidence. (Inman’s App. at 69–70.) Because Inman already possessed or had prior access to the information contained within the exhibit log, the trial court’s denial of Inman’s motion for a change of judge following Inman’s discovery of the ex parte communication was not clearly erroneous.
Likewise, we cannot say that Inman was placed in grave peril by the trial court’s possession of the exhibit log. As Inman has not demonstrated that his lack of possession of the exhibit log had a probable persuasive effect on his defense, he cannot establish that his lack of possession had a probable persuasive effect on the jury’s decision, as required by Clark. Therefore, the trial court did not abuse its discretion in denying Inman’s motion for a mistrial.
Although we find no error or abuse of discretion in the trial court’s denial of Inman’s motions, the suggestion of ex parte communication is an issue against which trial courts should guard. Despite the fact that the exhibit log was provided to the trial court for convenience and administrative purposes, we suggest the better practice going forward would be for trial courts to refuse to accept exhibits when tendered ex parte, unless the opposing party has been given notice and an opportunity to be heard on the matter.
Dickson, C.J., Rucker, and Rush, J.J., concur.
Massa, J., concurred in result with opinion on another issue.