This opinion will be unpublished and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
Stanley Richard Ebert,
Filed June 18, 2002
Robert H. Schumacher, Judge
G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, Faribault, MN 55021 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Stanley Richard Ebert challenges his conviction and sentence for receiving stolen property and two counts of first-degree controlled substance offense. Ebert argues that the charges should have been severed for trial, that his attorney's representation suffered from a conflict of interest, that the trial court erred in precluding defense impeachment evidence because of a discovery violation, and that the court erred in sentencing him on both the receiving stolen property offense and the 1997 drug offense. We affirm.
Ebert was charged with various counts of first-degree controlled substance offense and one count of receiving stolen property after two searches, one in November 1997 and the other in September 1998, revealed quantities of equipment and materials useful in the manufacture of methamphetamine. The complaint charged two counts of first-degree controlled substance offense occurring in November 1997, along with one count alleging possession at that time of a scale reported stolen from Ebert's employer. The complaint also charged two counts alleging September 1998 controlled substance offenses.
At a hearing just before the scheduled trial date, Ebert moved to sever the 1997 and 1998 offenses for trial. The trial court denied Ebert's motion, ruling that because all the evidence would be admissible as Spreigl evidence in separate trials, there was no prejudice from joining the offenses for trial.
On the day of trial, the prosecutor put on the record the fact that defense counsel had formerly represented Dana Oldeen, a key state's witness, in a child protection (CHIPS) proceeding. The prosecutor argued that defense counsel James Martin had a conflict of interest if he intended to question Oldeen about anything he had learned in the course of representing her. Martin agreed that he had represented Oldeen, but stated that, although he had very little independent recollection of the matter, he did not think it posed a conflict, after discussing it with the chief public defender of the district. The court did not issue a ruling on the issue, but allowed Martin to continue representing Ebert.
The prosecutor later objected to the defense's proposed use of certain letters Oldeen had written to appellant, on the grounds that they had not been disclosed until the first day of trial. The court ruled that because the letters were not timely disclosed, the defense would not be allowed to use them. On a separate issue, however, the court ruled that the defense could impeach Oldeen with her convictions for forgery and fifth-degree controlled substance offense.
The state presented evidence that police executed a search warrant on November 14, 1997, at Ebert's apartment in Faribault. In the bedroom, police seized a digital scale that had been reported stolen from Ebert's employer, along with coffee filters, some baggies containing white power residue, and $1,200 in cash. In a storage closet, police found equipment that could be used to manufacture methamphetamine, along with empty bottles of pseudoephedrine, the key ingredient in making methamphetamine, and a jug containing a yellow liquid which was later tested and found to contain methamphetamine. Ebert was not present at the time of the search but another man, who testified he had been staying there only a few days and knew nothing about a methamphetamine lab, was present.
The state also presented evidence concerning the execution of a second search warrant in September 1998, at Ebert's mobile home in Morristown. The police found evidence of methamphetamine manufacturing that was similar to the evidence found in the earlier search. They also found a recipe for making methamphetamine, in a notebook with Ebert's nickname "Butch" written on it. Ebert was not present when the search warrant was executed. Two other men were present.
Oldeen testified that she had used methamphetamine with Ebert and had helped him manufacture methamphetamine by buying some of the ingredients. Another prosecution witness, James St. Hilaire, testified that he had engaged in methamphetamine manufacture with Ebert.
Ebert testified on his own behalf, denying any knowledge of the manufacture of methamphetamine either in the Faribault apartment or in the Morristown mobile home. Ebert claimed he was frequently absent from both residences, and denied cooking methamphetamine with St. Hilaire or discussing it with Oldeen, or shopping for ingredients with her.
The jury found Ebert guilty of all counts of controlled substance offense, as well as receiving stolen property. The trial court sentenced Ebert to 86 months for one of the 1997 controlled substance offenses, a concurrent 13 months for the receiving stolen property, and a concurrent 110 months for one of the 1998 controlled substance offenses.
1. Ebert argues that the trial court erred in denying his motion to sever the 1997 and 1998 controlled substance offenses for trial. He argues that because the evidence on each count was different yet similar enough to potentially confuse the jury, because the court failed to instruct the jury to consider each charge separately, and because the court never made a complete ruling as to the admissibility of each offense as Spreigl evidence, he was prejudiced by the improper joinder of the offenses for trial.
The trial court's ruling on the severance of offenses, even if improper, will not be reversed unless "prejudicially erroneous." State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999).
The state concedes that the 1997 and 1998 meth lab charges arose out of separate behavioral incidents, and, therefore, joinder was improper. See Minn. R. Crim. P. 17.03, subd. 3(1)(a) (requiring severance if offenses are not related); Profit, 591 N.W.2d at 458 (noting prior holdings that, to be properly joined, offenses must arise out of single behavioral incident). In determining whether improper joinder is prejudicial, however, we look to a Spreigl analysis. If the improperly joined offenses would each have been admissible as Spreigl evidence in a separate trial of the other offense, the improper joinder is not reversible error. Profit, 591 N.W.2d at 461.
Spreigl, or other-crimes, evidence is admissible if it is relevant and material to the state's case. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). Similarity in "time, location, or modus operandi" is the heart of the analysis in determining the admissibility of Spreigl evidence. See State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); cf. Profit, 591 N.W.2d at 461 (stating prejudice is more likely to be found from improper joinder if the improperly joined offenses are "unrelated in time, location, or objective"). The 1997 and 1998 meth lab offenses bear a high degree of similarity. Both involve the seizure by police in Ebert's then-current residence of much of the equipment and many of the ingredients necessary to manufacture methamphetamine, in addition to byproducts or other evidence indicating that the manufacture had actually occurred. Despite the difference in ingredients and materials seized and the fact that the 1998 search yielded more incriminating evidence, the evidence of the two offenses undoubtedly meets the Spreigl admissibility test.
The trial court's failure to do a complete Spreigl analysis does not render the joinder decision reversible error. The Spreigl analysis, as used to determine whether improper joinder was prejudicial, is a test to be applied by an appellate court in reviewing a trial court's decision on joinder. See Profit, 591 N.W.2d at 460; State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982) (applying Spreigl admissibility test to review trial court joinder decision). The evidence of the joined offenses clearly passes that test. Since the Profit court discouraged trial courts from even engaging in a Spreigl admissibility analysis, the failure of the trial court here to do a complete Spreigl analysis cannot be reversible error. See Profit, 591 N.W.2d at 461.
The trial court, contrary to Ebert's argument, instructed the jury to consider each joined count separately. That instruction did not follow verbatim the model instructions quoted in State v. Kates, 610 N.W.2d 629, 631 n.4 (Minn. 2000). But the court in Kates did not endorse any particular cautionary instruction and did not mandate any particular language. Therefore, the wording of the trial court's cautionary instruction does not make the joinder reversible error.
2. Ebert argues that his trial attorney had a conflict of interest because he had previously represented Dana Oldeen, a key prosecution witness, and that this conflict denied him the effective assistance of counsel.
A defendant claiming ineffective assistance of counsel must show that his attorney's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995). A defendant who claims he was denied the effective assistance of counsel due to a conflict of interest must show that counsel "actively represented conflicting interests" and that this conflict "adversely affected [the] lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708, 1718, 1719 (1980).
An attorney may not represent a person in "the same or a substantially related matter" in which the attorney represented a former client. Minn. R. Prof. Conduct 1.9(a). Ebert's criminal prosecution, however, is not substantially related to Oldeen's CHIPS proceeding. Ebert's attorney would have been prohibited from using any information from his representation of Oldeen "to the disadvantage of the former client." Id. at 1.9(b). But Ebert has not shown that his attorney acquired any confidential information in representing Oldeen that would be useful in this prosecution. Moreover, because the two matters are not substantially related, there is no presumption that the attorney did acquire such information. See Jenson v. Touche Ross & Co., 335 N.W.2d 720, 731 (Minn. 1983).
Ebert also cites Minn. R. Prof. Conduct 1.7, which prohibits an attorney from representing clients whose interests are "directly adverse" to each other. Ebert's attorney no longer represented Oldeen, and, although her interests in this criminal prosecution may have been at odds with Ebert's, Ebert's attorney was not representing her in this proceeding. Cf. State v. Hole, 400 N.W.2d 430, 434 (Minn. App. 1987) (concluding there was no prejudice from defense counsel's prior representation of co-defendant who had pleaded guilty and was not called as a defense witness). Thus, we conclude that Ebert has not shown an actual conflict of interest.
3. Ebert argues that the trial court abused its discretion in ruling Oldeen's letters inadmissible for impeachment purposes because the defense had not timely disclosed them. The trial court's ruling on the appropriate sanction for a discovery violation is reviewed under a clear abuse of discretion standard. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). In deciding upon the appropriate sanction for a discovery violation, the court is to consider: (1) the reason that timely disclosure was not made; (2) the extent of the prejudice; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors. Id.
Defense counsel did not offer a good reason for his failure to disclose the Oldeen letters earlier, stating only that he had not obtained a copy of the letters until recently. He argued that the prosecutor should have known of them because they were in the file of another criminal case against Ebert in another county. But, if so, the letters could also have been discovered earlier by defense counsel, which undermines defense counsel's explanation for the late disclosure. The state was significantly prejudiced because the letters were not disclosed until the first day of trial and Oldeen was the first scheduled witness. Defense counsel did not argue that a continuance should be ordered, or propose any other sanction short of preclusion.
Preclusion of defense evidence is a severe sanction, to be used only as a last resort. State v. Widell, 530 N.W.2d 566, 570 (Minn. App. 1995), review denied (Minn. May 31, 1995). But we may consider the importance of the precluded evidence to the defense case in assessing the proper sanction for nondisclosure. State v. Patterson, 587 N.W.2d 45, 51 (Minn. 1998). Oldeen's testimony merely corroborated the inferences to be drawn from the physical evidence, and the more incriminating testimony of St. Hilaire. Any error in preventing the defense from impeaching Oldeen with the letters was harmless beyond a reasonable doubt because Oldeen's testimony was merely corroborative. See generally State v. Post, 512 N.W.2d 99, 102 (1994) (stating harmless error test for exclusion of defense evidence).
4. Ebert argues that the trial court erred in sentencing him for both the 1997 controlled substance offense and for receiving stolen property. He argues that because the electronic scale stolen from his employer, and found in Ebert's apartment in the 1997 search, was allegedly used to weigh the methamphetamine produced in the meth lab, it was part of the same behavioral incident.
The court may impose only one sentence if a person's conduct constitutes more than one offense but only one behavioral incident. See Minn. Stat. § 609.035, subd. 1 (2000). Whether offenses arose out of the same behavioral incident depends on the facts and circumstances of the particular case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The court, in making that determination, looks at the factors of time and place and whether the conduct was motivated by a single criminal objective. Id. The trial court's decision is a fact determination that is not reversed on appeal unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).
The testimony at trial established that the electronic scale was stolen more than three weeks before the November 14, 1997 search uncovered the methamphetamine lab. Although the stolen scale was apparently used to weigh the manufactured methamphetamine, the criminal objective behind its theft was just a small part of the larger criminal objective of the meth lab operation itself. The supreme court has held that separate sentences could not be imposed for burglary and for possession of burglary tools used solely to facilitate that burglary. State v. Scott, 298 N.W.2d 67, 68 (Minn. 1980). But the stolen scale could have been used to weigh methamphetamine manufactured over an extended period of time. The scale could have been used weeks before the November 14, 1997 search to weigh methamphetamine that had been manufactured, and sold, long before that search. Thus, the trial court did not clearly err in ruling that Ebert's possession of stolen property was not part of the same behavioral incident as the 1997 controlled substance offense.