This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1672

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Patrick Brown,

Appellant.

 

 

Filed July 10, 2001

Affirmed

Parker, Judge*

 

Itasca County District Court

File No. K099354

 

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN  55744 (for respondent)

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Parker, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Appellant Dale Patrick Brown was charged and convicted of two counts of controlled substance crime.  He appeals from his conviction of first-degree controlled substance crime, contending that: (1) the evidence presented to the jury was not sufficient to prove he conspired to manufacture an additional amount of methamphetamine necessary to constitute a first-degree offense; (2) when the district court judge disqualified his attorney from representing him, he was deprived of his constitutional right to assistance of counsel; and (3) the district court judge erred when he denied appellant’s request to review all discovery materials outside his attorney’s office.  We affirm.

D E C I S I O N

I.

In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant contends that the testimony of his two accomplices implicating him in the conspiracy to manufacture 50 grams of methamphetamine was unreliable, and that the testimony of Tanya Wasson failed to sufficiently corroborate the accomplices’ testimony.

      Minn. Stat. § 634.04 (2000) provides:

A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

 

“Corroborating evidence must link or connect the defendant to the crime,” but need not “establish a prima facie case of the defendant’s guilt.”  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quotation omitted).  The sufficiency of the circumstantial evidence to corroborate an accomplice’s testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).

Pamela Olson, the girlfriend of appellant’s accomplice, Jonathon Newman, testified that on November 18, 1998, appellant called her house looking for Newman.  She stated that appellant called because he wanted his methamphetamine lab back.  On the same day, the police stopped Newman and found 1200 Sudafedrine tablets, a twenty pound tank of anhydrous ammonia, gas masks, coffee filters, funnels, stirring tools, a blender, lithium batteries, baking soda, lye, toluene, and acetone in his van.  Newman testified that he was transporting these items for use in a methamphetamine lab.  He also stated that six to seven ounces of methamphetamine had been made, putting the amount of methamphetamine at over 100 grams.  Because Olson, who was not an accomplice, corroborated Newman’s testimony, there was sufficient evidence to support appellant’s conviction of conspiring to sell over 50 grams of methamphetamine.

            In addition, accomplice Michael Kangas testified that Newman and appellant manufactured methamphetamine at his residence. His testimony is sufficiently corroborated by Tanya Wasson, who was not an accomplice, and who testified that she purchased Sudafed tablets for appellant, and that appellant and Kangas visited her apartment with methamphetamine.  “Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation * * * .”  State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (quotation omitted).  Thus, Wasson’s testimony linking appellant and Kangas together corroborates the latter’s testimony that appellant manufactured methamphetamine at his house. 

Appellant argues that Wasson’s testimony is unreliable because she is mentally ill and her testimony was motivated by a desire for lenient treatment by the prosecution in an unrelated case.  However, there was no evidence presented at trial concerning Wasson’s purported mental illness because appellant’s attorney did not believe her condition affected her credibility.  Nor was there evidence presented that Wasson received favorable treatment from the prosecution for her cooperation in the present case.  Even if appellant had presented evidence of Wasson’s mental illness or her motive to testify, a jury is in the best position to determine the credibility of witnesses.  See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).  Therefore, the jury properly considered Wasson’s testimony corroborating that of Kangas.

Moreover, other evidence corroborates Newman’s and Kangas’s testimony.  For example, prior to Newman’s arrest, Officer Dean Scherf observed appellant’s vehicle parked outside Kangas’s residence.  Subsequently, Scherf searched Kangas’s residence and found a propane cylinder that appeared to be the same as a propane cylinder found in Newman’s van.  Officer Scherf’s observations sufficiently connect appellant to the crime, particularly when viewed in the light most favorable to the verdict, to corroborate the accomplice testimony.

II.

            Appellant contends he was denied his constitutional right to assistance of counsel when the district court disqualified his attorney from representing him.

In reviewing an order granting disqualification of counsel, this court must determine whether the district court abused discretion.  See M.M. v. R.R.M., 358 N.W.2d 86, 90 (Minn. App. 1984).  In making a decision regarding the disqualification of an attorney, the district court must balance the “right of an individual to retain counsel of his free choice and the need for upholding ethical standards.”  Buysse v. Baumann-Furrie & Company, 448 N.W.2d 865, 868 (Minn. 1989) (quotation omitted).

            The district court found that appellant’s initial attorney, David Albright, violated Minn. R. Crim. P. 9.03, subd. 4, by improperly disseminating discovery documents.  Rule 9.03, subdivision 4, requires that discovery documents

furnished to an attorney under discovery rules or orders shall remain in the custody of and be used by the attorney only for the purpose of conducting that attorney’s side of the case.

 

The record indicates that in the spring of 1999, appellant and his attorney met with Steven and Peggi Jacobson, friends of appellant.  According to Peggi Jacobson, Albright asked her if she knew anyone in Lino Lakes prison who would be interested in receiving a copy of Newman’s statement.  She provided the name of Kevin LeClair.  Albright left the statement with the Jacobsons for them to photocopy and send to LeClair.  The Jacobsons fulfilled this request.  After the statement was sent to the prison, a member of the Hell’s Angels gang handed the statement to Newman in a “threatening manner.”  Another copy of this statement was also found in the prison bathroom.  As a result, Newman was transferred from Lino Lakes because of safety concerns and, thereafter, he became reluctant to cooperate with the state.  Albright clearly violated the discovery rules by leaving Newman’s statement with the Jacobsons, and the district court properly determined that appellant’s right to have the attorney of his choice was outweighed by the need to restore the public’s perception of the legal profession, which was diminished by Albright’s actions.

            The district court also found that appellant’s attorney acted in violation of Minn. R. Prof. Conduct 3.7 (a), which states that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where * * * disqualification [works a] hardship on the client.”  The district court found that in June 1999, Wasson told Scherf that Albright had visited her home and asked her not to testify, and that if she did not testify, appellant could win his case.

Respondent informed the court that it intended to introduce evidence that Albright attempted to prevent Wasson from testifying to demonstrate appellant’s guilt.  See State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (stating that “evidence of threats to witnesses may be relevant in showing consciousness of guilt” (citation omitted)).  Because no other individuals observed the meeting between Wasson and Albright, the district court judge did not abuse his discretion in considering Albright a necessary witness and thus disqualifying him.  See Humphrey ex rel. Minn. v. McLaren, 402 N.W.2d 535, 541 (Minn. 1987) (noting that if evidence sought from an “attorney-witness can be produced in some other effective way, it may be that the attorney is not necessary as a witness”).

III.

      Appellant contends that the district court abused discretion in preventing him from viewing copies of all discovery documents outside his attorney’s office.  But, “there is no general constitutional right to discovery in a criminal case.”  State v. Hummel, 483 N.W.2d 68, 71 (Minn. 1992) (quotation omitted).  The district court has authority to regulate discovery and inspection in a criminal case by restrictions of time, place, and manner.  Minn. R. Crim. P. 9.03, subd. 3.

Any materials furnished to an attorney under discovery rules or orders shall remain in the custody of and be used by the attorney only for the purpose of conducting that attorney’s side of the case, and shall be subject to such other terms and conditions as the court may prescribe.

 

Id., subd. 4 (emphasis added).  Appellant argues that rule 9.03, subdivision 4, is unconstitutional.  Because appellant did not make this argument in the court below, however, it is not properly before this court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

The district court granted appellant’s request to review discovery materials outside his attorney’s office, but prevented appellant from receiving copies of witness statements.  The court based this decision on a finding that appellant’s initial attorney improperly disclosed a witness statement to an inmate at the Lino Lakes prison.  In light of the prior improper use of discovery documents by appellant’s attorney, it was not an abuse of discretion for the district court to prevent appellant from viewing similar discovery documents outside his attorney’s office, particularly where the district court stated that appellant was “free to read and study the [excluded discovery] materials while in [his attorney’s] office in order to assist in his defense.”

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.