This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1165

 

Brandon Joseph Babich, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent. 

 

Filed June 15, 2004

Reversed and remanded

Randall, Judge

 

            St. Louis County District Court

File No. K1-02-100075

 

Frederick Goetz, 2124 Dupont Avenue South, Minneapolis, MN  55405 (for appellant)

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Court, St. Paul, MN 55101; and

 

Alan Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN  55802 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

RANDALL, Judge

On appeal from a denial of postconviction relief, appellant argues that the postconviction court abused its discretion in denying him a new trial because the prosecutor failed to disclose the full statement of the state’s key witness who told police appellant possessed and manufactured methamphetamine.  Appellant contends that the undisclosed evidence would have impeached the witness’s testimony at trial and would have provided exculpatory evidence.  Appellant also argues that the postconviction court erred in concluding that the evidence was sufficient to sustain his convictions.  We reverse and remand for a new trial.

FACTS

 

            On January 12, 2002, officers from the St. Louis County’s Sheriff Department responded to a disturbance at 6600 Highway 53 in Virginia.  The officers were advised that appellant Brandon Joseph Babich was causing a problem.  Toni Marie Berens, an occupant of the house, informed officers that she had information concerning appellant’s alleged mail-theft activities.  Sergeant Joseph Skofich later arrived at the house in Virginia and formally interviewed Berens.  Skofich tape-recorded the interview.  Berens told Skofich that appellant was involved in selling and manufacturing methamphetamine.  She also discussed appellant’s mail theft, counterfeit check, and stolen check activities.  Berens told Skofich that appellant’s activities took place at Todd Gregorich’s house in Biwabik.  Berens also told Skofich that appellant and Gregorich “always hide” a book about manufacturing methamphetamine in Gregorich’s upstairs bedroom if they believe the police are coming. 

            Skofich and Investigator Jason Akerson of the St. Louis County Sheriff’s Department testified at appellant’s trial that a few hours after Berens was interviewed, they executed a search warrant for Gregorich’s house in Biwabik.  Akerson testified that the purpose of the search warrant was to search for stolen mail and not appellant’s alleged drug activities.  Akerson stated that he and the officers were looking for “mail, checks, any type of checks, or computer equipment.”  Akerson testified that he searched the first floor bedroom of the house.  He stated that he found a large assortment of compact discs in the bedroom with the initials “BB” written on them.  He also found an “AOL CD” listing appellant’s mailing address.[1]  Akerson testified that in the closet of the bedroom, he found an access panel leading into the bathroom tub area and the piping around the bathtub.  Akerson stated that he removed the panel and found a blue plastic zip-lock bag containing “five individually wrapped little pink bundles.”  Akerson stated that each bundle appeared to be an “eight ball” of methamphetamine, and each bundle would have a street value of approximately $250.  Both Akerson and Skofich testified that the area where the methamphetamine was found was accessible through the basement ceiling, but that it was much more difficult to access this area from the basement than through the panel of the first-floor bedroom closet. 

When asked if Berens provided him with any information regarding appellant’s drug activities, Skofich replied, “No, she did not.  Her information was primarily having to do with theft of mail.”  Skofich testified that the purpose of the search warrant was to search for evidence relating to appellant’s alleged stolen check activities.  As to appellant’s drug activities, Skofich testified that the bundles tested positive for methamphetamine and contained 18.8 grams of methamphetamine.  He stated that no identifiable prints were found on the zip-lock bag.  Skofich testified that he found a bottle of prescription cough medicine in the first- floor bedroom with appellant’s name on the label, and dated January 7, 2002.  He also testified that several items of drug paraphernalia were found in the house.  Skofich testified that a mirror with a white substance on it was found in the first-floor bathroom along with two razor blades.  He stated that a pen tube with white residue on it was found in the kitchen or dining room area.

Appellant was charged with one count of second-degree sale of methamphetamine, one count of second-degree possession of methamphetamine, one count of fifth-degree sale of methamphetamine, and one count of fifth-degree possession of methamphetamine.  The state later dismissed the fifth-degree controlled-substance charges against appellant.  No charges were ever filed against appellant involving any allegations of mail theft or other types of theft.

On or about January 18, 2002, the state disclosed to appellant’s trial counsel a copy of Skofich’s report dated January 12, 2002.  The report discussed the information Berens provided to Skofich about appellant’s alleged involvement with mail theft and counterfeit and stolen checks, but did not include Berens’s statements about appellant’s alleged drug activities.  The state never provided appellant’s trial counsel with the audiotape of Berens’s statement, a copy of that audiotape, or a transcript of Berens’s audiotaped statement before appellant’s trial on May 7 and 8, 2003.[2]

            Berens testified at trial that she did not discuss appellant’s alleged drug activities during her interview with Skofich.  The prosecutor and Berens had the following exchange:

[Q]:     Now, when you were talking to law enforcement regarding [appellant], the information that you were providing to law enforcement had to deal with stolen mail, is that correct?

            [A]:      Yes.

            [Q]:     Had nothing to do with controlled substances?

            [A]:      No.

            [Q]:     So you did not provide any information to law enforcement regarding [appellant’s] activities in either possessing and/or selling methamphetamine?

            [A]:      Yes.

            [Q]:     That’s a correct statement?

            [A]:      Yes.

Berens testified that in mid-December 2001, she started staying at the house in Biwabik and stayed there for approximately two weeks until the beginning of January 2002.  Berens stated that for the first couple days of her stay, appellant was living in the basement of the house.  She stated that appellant then moved into the only bedroom on the first floor.  Berens testified that Gregorich owned the house and that his bedroom was located on the second floor of the house.  Berens stated that after the first week of her stay at the house, Gregorich moved to Hibbing.  She testified that after that, Gregorich came by occasionally, but not on a regular basis.  Berens also testified that Al Houle also stayed at the house and slept on the couch in the living room.  Berens testified that while she stayed at the residence, she observed many people visit the house.  She stated that these people would occupy the first floor and basement of the house when they visited.  She stated that none of the visitors occupied the upstairs portion of the house.

Berens testified that she stayed with appellant in the first-floor bedroom of the house.  She stated that she had been intimate with appellant during her stay at the residence, but that she discontinued the relationship when she found out he was married.  Berens testified that appellant kept his clothing in the closet of the bedroom and that he kept his personal effects in the bedroom, including his collection of compact discs.  She also testified that appellant kept his toiletries in the first floor bathroom located next to the bedroom. 

Although Berens testified that she did not discuss appellant’s alleged drug activities during her pretrial interview with Skofich, she specifically testified about drug activities at trial.  Berens testified that both she and appellant used methamphetamine about three days a week.  She stated that she witnessed appellant inhale or “snort” methamphetamine.  She testified that she received methamphetamine from appellant, but that she never purchased it.  Berens also testified that she saw appellant give methamphetamine to Gregorich, Houle, and other visitors to the house.  She testified that she saw appellant receive money in exchange for methamphetamine on at least three occasions.  Berens stated that appellant “mostly [sold] eight balls” consisting of “three and a half grams” of methamphetamine.  She testified that when appellant left the house, he would tell her he was going to pick up methamphetamine or “get rid of it.”  Berens testified that she never saw Gregorich or Houle sell any methamphetamine.  Berens also testified that she left the house because she was afraid that appellant would kill her. 

            Appellant did not testify.  Appellant’s wife testified that appellant did not reside with her on a regular basis and that she did not know where appellant was on some nights.  She testified that she did not know why appellant’s prescription medicine, stereo, and compact disc case were not at their home. 

Following his two-day trial, appellant was found guilty on both counts of second-degree controlled-substance crime and was later sentenced to 98 months in prison.  Appellant’s appeal to this court was dismissed and the case was remanded for post-conviction proceedings.  In his petition for post-conviction relief, appellant requested a new trial based on the state’s alleged Brady violation.  Appellant also asserted that the evidence was insufficient to sustain his drug convictions. 

            At appellant’s postconviction hearing, appellant’s trial counsel testified that the state never provided him with the audiotape, a copy of the audiotape, or a transcript of the interview with Berens.  He stated that the state never disclosed to him that Berens had made pretrial statements to Skofich regarding appellant’s alleged drug activities.  Appellant’s trial counsel testified that had he been aware that Berens provided Skofich with information about appellant’s alleged drug activities, he would have used the statements to impeach Berens and Skofich.  He also testified that had he known there was a book in Gregorich’s bedroom about how to manufacture methamphetamine, he would have questioned Berens about the book to support his defense that there was reasonable doubt about whether appellant possessed the drugs found in the area between the first-floor bedroom and bathroom. 

            On June 26, 2003, the postconviction court denied appellant’s petition for relief.  The postconviction court did determine that the Berens interview was recorded on audiotape and that defense counsel never received the audiotape, a copy of the audiotape or a transcript of the interview, but concluded no relief was necessary.  The court found that during the interview, Berens said that appellant was involved in selling methamphetamine and that a book about manufacturing the drug was kept in Gregorich’s bedroom.  The postconviction court found that the report provided to the defense by the state did not mention that Berens supplied information about appellant’s possession and sale of methamphetamine.  The court also found that Berens was a key witness in appellant’s trial.  But, after finding all of the above, the postconviction court found that appellant’s trial counsel had discredited Berens on cross-examination and that he had made a “persuasive” argument that the state had not met its burden.  The court denied appellant’s petition, concluding that the nondisclosure did not affect the jury’s verdict and that appellant had not suffered any prejudice from the nondisclosure.  The postconviction court also concluded the evidence was sufficient to sustain appellant’s convictions.  This appeal follows. 

D E C I S I O N

This court’s review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The court will not disturb the postconviction court’s decision absent an abuse of discretion.  Boitnott v. State, 640 N.W.2d 626, 629 (Minn. 2002).  A petitioner requesting postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.  Minn. Stat. § 590.04, subd. 3 (2002); State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

Appellant argues the postconviction court abused its discretion in denying him a new trial because the state violated the Brady rule by failing to fully disclose Berens’s statement, the state’s key witness.  Appellant contends that the statement contained information that would impeach Berens and Skofich (the officer who interviewed her), by revealing that they lied when both testified that they never discussed appellant’s alleged drug activities.  Appellant also argues that Berens’s statement contained exculpatory information because it reveals Berens told Skofich that Gregorich, the owner of the house where appellant was staying, kept a book about how to manufacture drugs in his upstairs bedroom.  We agree.

The Due Process Clause of the Fourteenth Amendment imposes on the government a duty to deliver “exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.”  California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984).  In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963).  The Brady rule is embodied in Minn. R. Crim. P. 9.01, subd. 1(6).  State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985).  Under this rule, the prosecutor must disclose evidence “that tends to negate or reduce the guilt of the accused as to the offense charged.”  Minn. R. Crim. P. 9.01, subd. 1(6).  Minn. R. Crim. P. 9.01, subd. 1(2), provides that:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements which relate to the case.

 

Minn. R. Crim. P. 9.01, subd. 1(7), also requires the prosecutor to disclose any material in the possession and control of members of the prosecution staff.  See also State v. Williams, 593 N.W.2d 227, 235 (Minn. 1999) (whether prosecutors actually knew of evidence not dispositive for Brady purposes; individual prosecutors have duty to learn of any favorable evidence known to others acting on government’s behalf, including the police), cert. denied, 528 U.S. 874, 120 S.Ct. 180 (1999).  These discovery rules are intended to allow “as complete discovery as is possible under constitutional limitations.”  Minn. R. Crim. P. 9.01 cmt.  The state concedes that the Minnesota Rules of Criminal Procedure impose an even broader discovery obligation on the prosecutor than a strict reading of Brady.  However, the state argues that it disclosed the existence of the audiotape in the report they gave to his counsel six days after the interview, even though it did not provide appellant’s trial attorney with the audiotape, a copy of the audiotape, or a transcript of the interview.  The state claims it made a disclosure because, in Skofich’s report, there was a line that reads, “[i]t should be noted further that at this time I did not activate a tape recorder as I did with Berens.”  Is this “disclosure?”  First, the statement was made in passing within approximately five single-spaced pages of typed-written text.  Next, Skofich was referring to an interview with Sam Bryers, a peripheral witness who did not even testify at trial.  So the state’s claim is that when Skofich said he did not activate a tape recording when he talked to Sam Bryers “as I did with Berens,” that that reference is full disclosure to appellant, or at least enough disclosure to comply with the Minnesota Rules of Criminal Procedure and Brady.  We understand the state’s argument, but we are not persuaded.

The state also contends that Skofich failed to include the discussion of appellant’s drug activities in his report because the sole purpose of the search warrant was to look for evidence of appellant’s alleged mail theft activities and not appellant’s drug activities.  Appellant was never charged with these alleged mail theft activities.  The Skofich report did not make reference to Berens’s and Skofich’s discussion of appellant’s drug activities for which appellant was subsequently charged.

The state’s argument that the failure to disclose was inadvertent because only appellant’s mail theft activities were on the minds of the authorities is “curious.”  The only charges against appellant involved drugs.  The focus of Skofich’s interview with Berens was drug activity.  We conclude that under Brady, the state had an obligation to make a specific disclosure to appellant that there was an audiotape of a statement between a criminal investigator and a key witness for the state.  In the normal course of events, the state would have had it typed up immediately for its own use and then provided a copy to appellant’s attorney.  This failure to disclose is also a violation of the Minnesota discovery rules and, more importantly, because it rises to a constitutional issue under Brady, we find the state committed a Brady (failure to disclose exculpatory material) violation in this case.

The state argues that Berens’s statement would have provided little impeachment value and would have actually incriminated appellant, so appellant was “better off” without the knowledge of the pretrial statement.  We disagree.  In his closing argument, the prosecutor argued that Berens did not initially talk about appellant’s drug activities, she was not used as a drug informant, and she had a relationship with appellant so she would have no reason to lie.  The transcript of Berens’s statement indicates that, during the interview, Berens did begin talking about appellant’s alleged drug activities.  The transcript shows, undeniably, that in the interview, Berens and Skofich discussed drug activities.  When questioned about whether their conversation involved appellant’s alleged drug activities, both Berens and Skofich insisted that they had not talked about drugs.  The record is clear.  Berens and Skofich inaccurately/untruthfully testified that they did not discuss appellant’s drug activities.  A copy of that pretrial interview showing that Berens and Skofich had discussed appellant’s drug activities would have been helpful to the defense. 

The Minnesota Criminal Rules of Procedure regarding the prosecutor’s discovery obligations are broader than a narrow reading of Brady.  In Minnesota, the state cannot review evidence privately and decide,  “it does not help the defense, it is not exculpatory,” and, therefore, not disclose.  Berens was the state’s key witness.  The state granted Berens immunity in exchange for her testimony.  She was the only witness to initially connect appellant to his alleged drug crimes.  The prosecutor argued the issue of Berens’s credibility in his closing argument.  Berens’s credibility was crucial in this case.  Under Minnesota Rules of Criminal Procedure and under the spirit and letter of Brady, the prosecutor had an obligation to fully disclose the existence of Berens’s prior recorded statement to Skofich.  See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766 (1972) (stating that “[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls [under the Brady rule]”) (citation omitted).  Berens’s prior statement was relevant to impeach both Berens’s and Skofich’s testimony at trial.  In addition, the statements Berens made about appellant and Gregorich keeping a book hidden in Gregorich’s upstairs bedroom also suggest that someone other than appellant could have had exclusive control over the methamphetamine.  We cannot conclude that this error was harmless “by proof beyond a reasonable doubt.”  See State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (stating that a new trial is not required if “the state can show beyond a reasonable doubt that the error was harmless.”). 

The best and fairest policy is for the prosecutor to disclose evidence to the defense and let the defense determine its relevance and materiality.  The defense had a right to impeach both witnesses with Berens’s prior statement admitting the conversations.  We do not accept the state’s argument that it actually “helped appellant’s trial counsel” by the nondisclosure because the statement it failed to disclose incriminated appellant.  The state contends, in other words, that at trial appellant’s trial counsel argued “X” and if he had been provided a copy of the tape, he could not have argued “X.”  We can only point out that in a criminal case, defense counsel, not the state, has the responsibility to examine the evidence and plan tactics and strategy to help the client.  The state can “help a defendant’s trial counsel” by full disclosure.  It is up to defense counsel do his own weighing of the evidence to produce at trial.  It was important for appellant’s trial counsel to know the contents of Berens’s full statement for purposes of trial strategy and giving advice to his client.

On these facts, the state violated Brady by failing to disclose Berens’s statement to the defense.  We conclude that the postconviction court abused its discretion in denying appellant a new trial, and we grant appellant a new trial on this ground. 

2.  Sufficiency

Appellant also argues that the postconviction court erred in concluding that the evidence was sufficient to sustain his second-degree drug convictions.  Appellant raises several arguments relating to insufficiency of the evidence.  They are not convincing.  We are granting appellant a new trial based on procedural errors.  We are not reversing appellant’s convictions based on sufficiency of the evidence.  See generally State v. Harris, 533 N.W.2d 35, 36 n.1 (Minn. 1995) (noting that double-jeopardy bar applies following reversal for insufficient evidence).  Double jeopardy is only implicated if appellant’s convictions were reversed outright on insufficiency of the evidence.


Appellant submitted a pro se supplemental brief and appendix.  We find no merit to these claims, and some of appellant’s arguments are moot because we are granting him a new trial.

            Reversed and remanded.



[1]  Akerson had brought appellant to jail the night before where appellant told Akerson he received his mail at that address. 

[2]  Approximately six months after appellant’s trial, a transcript of Berens’s interview was prepared on or about November 1, 2002, and delivered to appellant’s appellate counsel on November 8, 2002.