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State v. Habisch

Court of Appeals of Minnesota

November 12, 2013

State of Minnesota, Respondent,
v.
Anthony Joseph Habisch, Appellant.

UNPUBLISHED OPINION

Pine County District Court File No. 58-CR-10-559

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and John Carlson, Pine County Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Larkin, Judge.

CONNOLLY, Judge

On appeal following his conviction of sale of a controlled substance in the first degree, possession of a controlled substance in the fifth degree, and prohibited possession of an explosive, appellant argues that he is entitled to a new trial based on (1) the state's intentional suppression of Brady material, (2) the ineffective assistance of his trial counsel, (3) the district court's improper assistance of the prosecution and improper disparagement of the defense in the presence of the jury, and (4) the admission of irrelevant and prejudicial testimony. We affirm.

FACTS

In May 2010, Investigator Andrew Abrahamson of the Pine County Sheriff's Office stopped a car leaving a suspected drug house for a traffic violation. K.C., J.L., and their infant were in the vehicle. After Investigator Abrahamson found methamphetamine in J.L.'s wallet, J.L. indicated that he was willing to work with law enforcement to avoid going to prison. Investigator Abrahamson set up a meeting with J.L. to see if he had any information that could assist law enforcement.

At that meeting, J.L. provided Investigator Abrahamson with information about drug activity in the Twin Cities and Pine County. In addition to working with the Pine County Sheriff's Office, J.L. worked with the Bureau of Criminal Apprehension (BCA) and the Drug Enforcement Administration (DEA). After working with the BCA and DEA, J.L. was federally indicted for conspiracy to distribute 500 or more grams of methamphetamine.

Thereafter, J.L. agreed to work with the Pine County Sheriff's Office to target drug activity. J.L. told Investigator Abrahamson that he had previously supplied drugs to appellant Anthony Habisch. He indicated that he could purchase methamphetamine from appellant at appellant's home. The Pine County Sheriff's Office already suspected that appellant was dealing methamphetamine. They decided to investigate him further with J.L. and K.C.'s assistance.

Between August 14, 2010 and September 10, 2010, J.L. purchased 11.2 grams of methamphetamine from appellant through four separate controlled buys organized by the Pine County Sheriff's Office. Prior to each controlled buy, Investigator Abrahamson met with J.L. and K.C., conducted a thorough search of their persons and vehicle, and gave them "buy money" with which to purchase methamphetamine. While K.C. and J.L. were at appellant's residence, they communicated with Investigator Abrahamson through text messages; they did not wear wires. They would notify him when they were leaving appellant's house in order to meet, be searched, and turn over any drugs and remaining buy money.

On September 16, J.L. told Investigator Abrahamson that there should be firearms and large amounts of methamphetamine at appellant's home. He also text messaged Investigator Abrahamson a picture of TNT that was taken inside appellant's residence.

Based on this information and the controlled buys, Investigator Abrahamson obtained a search warrant to search appellant's residence. During the search, officers found plastic bags similar to those given to J.L. during the four controlled buys, a bowl containing white residue, coffee filters that tested positive for .01 grams of methamphetamine, a scale, two pipes commonly used for drug use, a plastic bag containing .2 grams of dimethyl sulfone, [1] and a home surveillance system. Officers also found a half-pound of TNT, handwritten instructions for detonating TNT, and a blasting cap. Officers did not find large quantities of methamphetamine or firearms.

Appellant was charged with first-degree sale of a controlled substance in violation of Minn. Stat. § 152.021, subd. 1(1) (2010), fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(b)(1) (2010), and possession of explosives in violation of Minn. Stat. § 609.668, subd. 2(b) (2010).

Appellant's first trial began on November 16, 2011 and resulted in a mistrial. Before the first trial, in October 2011, appellant informed his trial counsel that his home surveillance system was connected to a recording device with a 14-day self-contained memory capacity. Thereafter, defense counsel, a defense investigator, and a sheriff's investigator reviewed the inventory seized from appellant's residence. They did not find any device that contained a recording.

Appellant's second trial began on May 15, 2012. At trial, J.L. testified that appellant sold him methamphetamine during the four separate controlled buys. J.L. admitted that he was using methamphetamine and that he continued to buy drugs from appellant while working with law enforcement. During appellant's trial, J.L. was awaiting sentencing in federal court. He testified that he hoped to be rewarded for his testimony.

K.C. also testified at appellant's trial. She testified that she and J.L. had been at appellant's home on numerous occasions other than during the controlled buys and that J.L. is known for hiding methamphetamine on his person while conducting controlled buys.

On May 17, 2012, appellant's trial counsel had his investigator take a photograph of the inventory that officers seized from appellant's residence. Appellant reviewed the photograph and identified the surveillance equipment that he claimed contained the recording. The next day, appellant's trial counsel informed the court and the state that a defense investigator and sheriff's investigator looked at the equipment and discovered that it had recording capabilities.

Following this discovery, and on the third day of trial, appellant's trial counsel moved to dismiss the case against appellant based on the state's failure to disclose the recording. Alternatively, he moved for a mistrial, arguing that he had been an ineffective counsel for his client because he had not investigated the recording despite his client's insistence that it existed. The district court denied the motion to dismiss because the state had not knowingly withheld exculpatory evidence. The district court ordered the BCA to examine the device and to provide a copy of any surveillance data stored in its memory. The court deferred ruling on the motion for mistrial pending the results of the BCA analysis.

After analyzing the recording, the BCA explained that it was unable to copy the data due to its delicate nature. Based on this information, defense counsel again moved for a mistrial because the information on the tape could not be retrieved before the end of trial. The district court denied the motion and stated that it would proceed with trial. The district court stated that it ...


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