By Janice Gregorson

Post-Bulletin, Rochester MN 

Joe Milli admits he isn't quite sure what he saw two years ago in the basement of the Austin police station.

But he told an Olmsted County jury Tuesday that it was disturbing enough for him to take his concerns to the police chief.

Milli, a longtime Austin police officer, said he went to the training room in the basement on Nov. 6, 2007, to do some filing. He said he saw Capt. Curt Rude near a kitchen sink near the training room. Milli said it looked like Rude had an evidence package and some pill bottles but when he got close, Rude got nervous, snatched up the bottles and held them out of sight. Milli couldn't get a closer look. He left and returned a few seconds later, but Rude was gone, and there was nothing left behind.

Milli took his concerns to Chief Paul Philipp, who asked the Minnesota Bureau of Criminal Apprehension to investigate.

Rude, second in command at the police department, was put on unpaid administrative leave. In December 2007, he was charged with felony theft for allegedly taking OxyContin pills from the police evidence room; felony fifth-degree controlled substance crime for allegedly being in possession of the drug; and gross misdemeanor interfering with property in official custody. He has pleaded not guilty, and his trial began Monday with jury selection. Testimony began Tuesday.

The alleged crime occurred in Austin in Mower County, but the trial is being held in Olmsted District Court in Rochester and being prosecuted by the Olmsted County attorney's office to avoid any conflict of interest.

Milli was the first witness called by prosecutor Ross Leuning. By day's end, jurors had heard from a total of six witnesses, including Philipp.

Procedures for handling evidence

Much of the testimony was about the procedures for handling evidence. Defense attorney Peter Wold repeatedly asked witnesses if it was true that Rude was among the few people who had access to the evidence room and was a backup for evidence room technicians when they were not available.

Officers Todd Clennon and Jeff McCormack were the evidence room technicians in 2007. They said they had not heard Rude identified as a "backup" prior to the investigation into this case. They said he had access to the evidence room and occasionally did assist other officers who needed items from the evidence room.

Jurors also learned that the OxyContin in question came from a 55-gallon steel drum where evidence from closed cases is put to be destroyed. Once the drums are filled, they are taken to a foundry in the Twin Cities and melted. Evidence in the drums includes everything from weapons to drugs.

The OxyContin was from a closed case involving Mark Johnson, a former KAAL television reporter who was convicted of a drug offense. Johnson also was a friend of Rude's. Eight months earlier, Johnson had died of a drug overdose.

Philipp asks Rude to explain

Philipp told jurors that Milli came to him the morning after his encounter with Rude. Philipp said he met with Rude that afternoon.

Philipp, who has been police chief for 18 years, said he and Rude were best friends at the time and had worked together for more than 20 years. Philipp had recommended Rude for promotions as lieutenant and again as captain in 2002.

Philipp said when he asked Rude about what Milli had seen, Rude said he was looking for keys to a cabinet.

"I pressed him," Philipp said. "He paused for about 30 seconds, then said, 'Come with me.'"

The chief said Rude took him into his office, opened a desk drawer and showed him two bottles of OxyContin.

Philipp said that Rude had been in the evidence room searching for some things and that he noticed a decorative ax sticking out of one of the burn barrels. He went to look at it and saw the drugs from Johnson's case, Philipp said.

"He said he stood for some time looking at them. Then he picked one up and said, 'This is what killed Mark (Johnson),'" Philipp said Rude told him. "I said, 'Why did you take them?' He said he didn't know."

Philipp said he told Rude it was a "cardinal rule you never take anything from the evidence room." He said he asked Rude if he had taken the drugs for his own use or to give to someone else. Rude said no. "I asked him again, 'Why?'"

Philipp said he took the OxyContin and locked them in his own office, not sure if the integrity of the evidence room had been jeopardized. Three days later, he called the Bureau of Criminal Apprehension, turned over the pills and requested an investigation.

Cross examination

Wold asked how much Philipp knew at the time about the operation of the evidence room.

"Isn't it fair to say you were not aware at that time how that back room evidence room was run?" he asked.

Philipp said he didn't involve himself in the day-to-day business of the evidence room but had a general knowledge.

"You didn't even know who all had access to the room," Wold said.

"That could very well be true," Philipp said.

When asked about Rude's service as a police officer, Philipp agreed he was a dedicated officer and honest cop but didn't agree with Wold's statement that Rude had an unblemished record. The judge would not let him elaborate.

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