This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Gerald Lloyd Casler,



Filed August 26, 2003


Gordon W. Shumaker, Judge


Olmsted County District Court

File No. K7012154




Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Raymond Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for appellant)




            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N


            Appellant argues that the district court violated his Sixth Amendment right to assistance of counsel when it ordered that appellant’s attorney be disqualified because he was a necessary witness.  Because we conclude that the district court did not abuse its discretion when it disqualified appellant’s attorney, we affirm.


            Appellant Gerald Lloyd Casler had an argument with his wife during which he pulled his wife out of a car by her hair and threatened, “you are getting out of the car b**ch or I am gonna f**king kill you.”  The state charged him with terroristic threats, domestic abuse, harassment, and interference with an emergency call.

            On November 13, 2001, Casler gave his court-appointed assistant public defender a letter that his wife had allegedly written on August 23, 2001, which recanted her statement to police that he had threatened to kill her.  Casler’s attorney disclosed this letter to the prosecutor the following day.  The prosecutor then contacted Casler’s wife and she said that she “had not sent any letter.”  The prosecutor asked Casler’s attorney who gave him the letter, and he stated that Casler had given it to him.

            The prosecutor decided to call as a trial witness Casler’s attorney to testify and to lay the foundation for the admission of the letter to prove that Casler fabricated it, showing his consciousness of guilt.  The prosecutor offered not to request that Casler’s attorney be disqualified if Casler would stipulate that he had given the letter to his attorney.  But Casler and his attorney refused to stipulate, and the prosecutor moved for Casler’s attorney’s disqualification.

            The district court granted the state’s motion to disqualify Casler’s attorney because he was a necessary witness.  The court appointed a new attorney, and the trial was continued until May 2002 so that his new attorney could prepare Casler’s case.  At trial, Casler’s first attorney testified about how he received the letter from Casler.  The jury found Casler guilty of felony harassment and gross-misdemeanor domestic assault.

            Casler appeals his conviction challenging the district court’s decision to grant the state’s motion to disqualify Casler’s attorney.


            On appeal, we review the district court’s order to disqualify an attorney for an abuse of discretion.  M.M. v. R.R.M., 358 N.W.2d 86, 90 (Minn. App. 1984).  The Sixth Amendment of the United States Constitution provides a defendant with a right to counsel.  U.S. Const. amend. 6.  The Supreme Court has held that “where there is a Sixth Amendment right to counsel there is a right to a choice of counsel.”  In re Welfare of M.R.S., 400 N.W.2d 147, 152 (Minn. App. 1987) (citing Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932)).  When a public defender is appointed to represent a defendant, that defendant does not have an unqualified right to a counsel of his/her choice.  Id.  But

once an attorney is serving under a valid appointment by the court and an attorney-client relationship has been established, the court may not arbitrarily remove the attorney over the objection of both the defendant and counsel.


Id. (citation omitted).  Here, Casler and his attorney objected to the attorney’s disqualification motion.

            Minnesota Rule of Professional Conduct 3.7 provides that an attorney cannot act as a witness and represent a client in the same proceeding unless certain exceptions apply.  Rule 3.7 provides that

(a)       A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1)       the testimony relates to an uncontested issue;

(2)       the testimony relates to the nature and value of legal services rendered in the case; or

(3)       disqualification of the lawyer would work substantial hardship on the client.


(Emphasis added.)


            The supreme court has outlined when an attorney should be disqualified by stating:

[s]imply to assert that the attorney will be called as a witness, a too-frequent trial tactic, is not enough.  If the evidence sought to be elicited from the attorney-witness can be produced in some other effective way, it may be that the attorney is not necessary as a witness.  If the lawyer’s testimony is merely cumulative, or quite peripheral, or already contained in a document admissible as an exhibit, ordinarily the lawyer is not a necessary witness and need not recuse as trial counsel.


Humphrey ex rel. State v. McLaren, 402 N.W.2d 535, 541 (Minn. 1987). 

            Casler contends that the district court abused its discretion when it disqualified his attorney because (1) it did not require that the state prove that the letter was admissible, (2) the state’s theory that Casler fabricated the letter was purely speculative, (3) the letter was a peripheral issue in the case, and (4) the prosecutor could have testified about what Casler’s attorney had told the prosecutor.  Casler argues these errors require a new trial.

            Based on the district court’s knowledge that the state intended to call Casler’s attorney as a witness to lay the proper foundation for the state to admit the letter into evidence and to demonstrate Casler’s consciousness of guilt, the district court found that

under the current circumstances, should the letter be admitted [Casler’s attorney] would be required to testify.  In the interest of justice and fairness to [Casler], it seems prudent to grant the State’s motion to remove [Casler’s attorney].


We conclude that the district court properly found that Casler’s attorney was a “necessary witness” because his testimony was (1) relevant, (2) material, and (3) not available from an alternative source.  See id; see also World Youth Day, Inc. v. Famous Artist Merch. Exch., Inc., 866 F.Supp. 1297, 1302 (D.Colo. 1994) (providing that “a lawyer is a ‘necessary’ witness if his or her testimony is relevant, material and unobtainable elsewhere.”).

            First, Casler’s attorney’s testimony was relevant at the time of the pretrial hearing to prove that Casler had fabricated the letter. 

            Second, his testimony was material because without it the state could not have developed its theory that the letter displayed Casler’s consciousness of guilt.  The theory of consciousness of guilt is evidence that a party will present to the jury to prove that the defendant is guilty.  See, e.g., Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986) (providing that lack of a truthful response to authorities demonstrated a consciousness of guilt); State v. McTague, 190 Minn. 449, 453-54, 252 N.W. 446, 448 (1934) (providing that “the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.”  This evidence was not a peripheral matter because without Casler’s attorney’s testimony, the state could not have provided the jury with evidence that Casler displayed consciousness of guilt.

            Lastly, the state had no alternative witness who could testify about how Casler’s attorney received the letter, because only Casler and his attorney were present when Casler gave his attorney the August 23, 2001 letter.  The state could not call Casler as a witness and Casler refused to stipulate to foundation.  This case is unlike State v. Fratzke, where another person besides the prosecutor was present during an interrogation, which made the prosecutor unnecessary as a witness.  State v. Fratzke, 325 N.W.2d 10, 13 (Minn. 1982).  In addition, the prosecutor could not have testified to what Casler’s attorney had told the state, as Casler contends, because this testimony would have been inadmissible hearsay.  See Minn. R. Evid. 801(c) (defining hearsay as an out-of-court statement offered as proof of the matter asserted); Minn. R. Evid. 802 (stating that hearsay is inadmissible unless the statement meets an exception to the rule).  Thus, because Casler’s attorney’s testimony was relevant, material, and unobtainable from another source, and because no exceptions to rule 3.7 applied to Casler’s situation, the district court did not abuse its discretion when it ruled that Casler’s attorney was subject to disqualification as a necessary witness.