This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Anthony Joseph Habisch,



Filed December 21, 2004


Kalitowski, Judge


Pine County District Court

File No. KX-01-1140


Mike Hatch, Attorney General, Stephanie Morgan, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127; and


John Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063-1693 (for respondent)


Steven J. Meshbesher, Meshbesher & Associates, PA, 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Anthony Habisch challenges his convictions and sentence for four controlled substance crimes contending that (1) the district court improperly severed appellant’s case from that of his codefendant; (2) the district court erred by denying a motion to dismiss the charges against appellant because of prosecutorial misconduct; (3) the district court abused its discretion by denying appellant’s request for a downward durational departure; and (4) the district court’s sentence violated appellant’s right to equal protection.    We affirm.




            Appellant argues that the district court improperly severed appellant’s case from that of his codefendant because severance prejudiced appellant’s ability to present a joint defense.  Minn. R. Crim. P. 17.03, subd. 2, governs pretrial joinder and severance of defendants.  Santiago v. State, 644 N.W.2d 425, 441, 444 (Minn. 2002).  On review, an appellate court will make “an independent inquiry into any substantial prejudice to defendants that may have resulted from their being joined for trial.”  Id. at 444 (quotation omitted). 

            The Minnesota Supreme Court has held that if a defendant presents an antagonistic defense—that is if defendant attempts to present an inconsistent defense or attempts to shift blame to the codefendant—then the codefendant would suffer “substantial prejudice” if the matters were not severed.  Id. at 445.  The court analyzed the four factors listed in Minn. R. Crim. P. 17.03, subd. 2(1):  the nature of the offense, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.  Id. at 446.  The court reasoned that since the defendant planned at pretrial to present an antagonistic defense, that the factor of potential prejudice to defendant was met, and that it would be in the interests of justice to sever the matters.  Id.  

            Here, appellant argues that defense counsel, rather than the court, should decide whether severance is appropriate, that a joint defense can be advantageous to defendants and can serve the best interests of judicial administration, and that Minnesota law on joinder is “neutral” and mirrors the federal standard favoring joinder.  We disagree.  In light of Santiago, appellant’s preference at trial was not the only consideration for the district court.  The potential for “substantial prejudice” to codefendants is also a necessary and appropriate factor to consider.

            And here, prejudice is evident because the record supports the potential for the use of antagonistic defenses at trial.  Appellant’s girlfriend testified that she received a phone call from appellant after his arrest, during which they discussed having the girlfriend call the detective on the case and tell him that the codefendant was living in the basement, and that “all that stuff in the basement was [the codefendant’s], and that none of it was [appellant’s].”  And the district court noted that some of the incriminating evidence was found in appellant’s home but in an area of the home where the codefendant was allegedly staying.  The district court was also concerned that significant Spreigl evidence could be admitted against one codefendant but would not be admitted against the other.  Finally, appellant’s attorney blamed the codefendant for the incriminating evidence during closing arguments at appellant’s trial. 

            In light of the factors enumerated in Santiago, the district court did not err in denying appellant’s motion for severance under Minn. R. Crim. P. 17.03, subd. 2.


            Appellant argues that the prosecution violated professional rules of conduct by (1) issuing subpoenas directly to appellant and his codefendant to testify at each other’s trial; and (2) directly contacting a nonparty witness who was granted use and derivative use immunity to testify about the allegedly illegal activities she witnessed while living with appellant.

            Minn. R. Prof. Conduct 4.2 prohibits attorneys from communicating about the subject of the representation with a represented party in the matter.  This rule protects the represented party’s attorney from outside interference in the representation.  State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999).  Trial courts are given broad discretion in determining what, if any, sanctions to impose for violation of discovery rules or for other attorney misconduct.  Id. at 468.  Absent a clear abuse of discretion, the trial court’s determination will not be overturned.  Id.

            One of the purposes of rule 4.2 is “to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party’s attorney theoretically neutralizes the contact.”  Frey v. Dep’t of Health & Human Servs., 106 F.R.D. 32, 34 (E.D.N.Y. 1985) (quotation omitted).  In light of that purpose, a legitimately issued subpoena, even if sent mistakenly, may be a “communication” for purposes of rule 4.2 because it could create a coercive circumstance for the represented party if the party does not consult counsel prior to responding to the subpoena.  After a communication has been deemed a violation of rule 4.2, appellate courts have looked to the “totality of the circumstances of the contact” to determine if the communication went beyond appropriate and commonly accepted investigatory activity to implicate issues relating to the fair administration of justice on the part of the prosecuting attorney.  Miller, 600 N.W.2d at 467.

            Here, the district court acknowledged that the subpoena “technically” violated the text of rule 4.2.   But after examining the totality of the circumstances, including the attorney’s admission of error, the long passage of time from when the subpoena was retracted to the commencement of trial, and the agreement not to require either codefendant to testify against the other, the district court found that no sanctions were necessary. We conclude that appellant has not shown that the fair administration of justice was compromised by respondent’s errant subpoena. 

            Appellant also argues that respondent violated rule 4.2 when respondent or respondent’s agent investigators directly contacted a nonparty witness, appellant’s girlfriend, who was represented by an attorney in another civil matter.  But appellant’s girlfriend was a nonparty state witness who testified under a grant of use and derivative use immunity about her observations while living with appellant.  Therefore, because she was not a party to the criminal matter, rule 4.2 does not apply.

            Moreover, even if rule 4.2 applied to the prosecutor’s communications with the nonparty witness, the person with standing to request sanctions is the nonparty witness’s attorney.  Miller, 600 N.W.2d at 464.  Thus, appellant’s request for dismissal of charges based on challenged communications with the nonparty witness also fails for lack of standing.



            Appellant challenges his sentence arguing that the district court ignored a well-recognized factor justifying downward departure from the sentencing guidelines.   Only in “rare” cases will a reviewing court reverse a district court’s refusal to depart from the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The district court may depart from the presumptive sentence when the case involves “substantial and compelling” circumstances to warrant a downward departure.  Id.  The decision to depart from the sentencing guidelines is left to the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Even if the district court finds the existence of a mitigating or aggravating factor, it is under no obligation to “place defendant on probation or impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). 

            Here, the district court sentenced appellant to the presumptive sentence of 115 months in prison based on the offense severity level and appellant’s criminal history score.  Appellant argued that the district court should have departed from the presumptive sentence because he was amenable to treatment and could participate in a teen treatment program.  See State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983) (holding that defendant’s particular amenability to individualized treatment in a probationary setting will justify departure in the form of a stay of imposition or execution of a presumptively executed sentence).  But the district court determined that appellant was not amenable to treatment because there was no evidence that appellant required the rehabilitation for personal addiction provided by the teen treatment program or that appellant had accepted responsibility for his actions.

            We conclude that the district court did not abuse its discretion by imposing the presumptive sentence because appellant did not show that “substantial and compelling” circumstances existed to justify a downward departure.


            Appellant argues that his imposed sentence violates his due process and equal protection rights because he speculates that the codefendant will receive a lesser sentence in exchange for his guilty plea.  “[A] justiciable controversy must exist in order for a litigant’s claim to be properly before a court.”  State v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979).  To establish a justiciable controversy, a party must show a “direct and imminent injury which results from the alleged unconstitutional provision.”  Id.  Issues that “have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable.”  Id. at 842 (quotation omitted). 

            Here, appellant speculates as to his codefendant’s sentence.  The appellate record does not indicate the codefendant’s sentence or even if the codefendant has been sentenced.  No justiciable controversy exists on this record because appellant’s speculations are hypothetical.  Moreover, even if the codefendant’s sentence were known, fairness in sentencing involves “more than comparing the sentence the appealing defendant received with the sentence his accomplices received.”   State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983).  Appellant is not entitled to a lesser sentence merely because his codefendant received a lesser sentence.  State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986).

            Finally, appellant argues that he was given a harsher sentence solely because he exercised his constitutional right to a jury trial.  But the record indicates that he was sentenced to the presumptive sentence for his crimes under the sentencing guidelines, and that the district court denied respondent’s motion for an upward departure.  On this record, we cannot conclude that the district court erred.