State v. Bailey

Minnesota, Respondent, STATE

v. BAILEY,

Billy Daymond Appellant.

No. C4-02-835.

Supreme Court Minnesota. 18, 2004.

March

Rehearing April Denied (1966), L.Ed.2d 694 86 S.Ct.

we reverse and remand to the district provide guidance court for a new trial. To trial, for the we also address the other new evidentiary likely that are to recur. issues A. Investigation The Initial 20, 1984, Sunday, May Virginia Gold- On mother, Agnes en entered the house of her Fafrowicz, and discovered her mother’s body living po- room floor. When arrived, they found that Faf- lice sexually rowicz had been robbed and as- saulted someone who broke into her Investigators home. concluded that Wednesday, May crime had occurred They from Fafrow- samples took fluid mouth, anus. tests vagina icz’s Lab sperm vaginal sample. detected May police learned two On Defender, “had come into the bank on Ms. Stuart, checks M. Public John State account.” When Detectives Russett, Fafrowicz’ P. Assistant Public De- Steven ac- MN, Ronald and Robert Nelson fender, Snobeck Minneapolis, appellant. checks, they saw one quired General, Paul, Hatch, Attorney Mike St. them, 17,1984, to May was made out dated Klobuchar, MN; Hennepin Amy and Vollmar-Bailey” “Bill for the sum of Burdorf, Attorney, E. Assis- County Jean of that check indicated The back $230.00. Weist, County Attorney, Thomas A. tant Liquor, by Gopher that it had cashed been Attorney, Minneapolis, County Assistant Bailey’s apartment a store next to build- MN, respondent. n ing. and Indict- Interrogations B. The 198i ment Gopher Liquor ques- at they were While OPINION owner, the store’s Detectives Sno- tioning HANSON, Justice. Bailey walking spotted Nelson beck and lot and enter- adjacent parking Billy Daymond Bailey was across Appellant According to ing apartment building. his first-degree murder while convicted of Snobeck, they saw him re- when conduct in con- Detective committing criminal sexual the cor- emerge begin walking toward May death of a 69- nection with the resident, ner, to their car the detectives returned Agnes year-old neighborhood court, Bailey, cutting off his close to this he and drove appeal Fafrowicz. On to car, shout- detectives exited the preju- path. Becаuse ten claims of error. makes up, hands Bailey stop put to his by Bailey police ed to made dicial statements him, of them with his one approached in evidence erroneously admitted were Arizona, hand on the other with his gun drawn and Miranda v. 384 U.S. violation of engine compartment themselves as car” and “cleaned the gun. They identified his up.” Bailey against their car for a police, put search, handcuffed his

pat-down weapons realized, Bailey’s story theAs detectives him in put his back and hands behind was riddled with doubtful assertions. Bai- The detectives inter- him ley backseat of the car. claimed that Fafrowicz had written May the check on whereas there was Bailey providing car without rogated considerable evidence that Fafrowicz had Miranda any warning and then told him May died on 16. The detectives noticed they him station. would take to the in Bailey’s description several inaccuracies station, the two detectives At the same mower, of Fafrowicz’s car and lawn interrogate Bailey without continued to they cut believed his claims have her providing Miranda warning. Midway battery car grass and cleaned her to be interrogation, they through demonstrably the station false. his Miranda Bailey rights.1

read The “culmination” of police-station detectives, interrogation, according to the at When the detectives testified came when misidentified the side of conducted on motion to hearing battery Fafrowicz’s car on which the suppress both the warned and unwarned point, located. At this told detectives statements, provided any them neither of mur- that he was under arrest for explanation why they give did not a der, gave Bailey and Detective Nelson Miranda warming in the car or on arrival standard Miranda warning.2 agreed He According the station. to Detective to waive his Miranda rights. The interro- Nelson, Bailey told the detectives gation immediately, continued sig- with no car that out the check tо Fafrowicz made nificant pause. Bailey largely recounted May him on for work that he had done story his but added the further detail that car on her lawn and the brakes of her arranged paint he had Fafrowiez’s previous day. they brought After Bai- Challenged by house. the officers to ex- plain him how Fafrowicz could write ley to before police station but he was May already check on when she was informed of his Miranda rights, he elabo- dead, Bailey responded, good “That’s a rated: he that he had done “a claimed question.” job” May car on brake on Fafrowicz’s 14, grass May cut her and some charged under Minn.Stat. 609.185(2)(1982)3 battery § point up posts first-degree “cleaned her on her with mur- 2. At the 1. The his warning; ing: and "third” three in the sequent to the Miranda rated Detective Nelson right against him in a court of law. He had a I told him he and warning Bailey interrogations: only by parties anything police to an pretrial hearing, and interrogations to the Miranda characterize the third, attorney station had he testified said could be used for in the first, consisted of the follow- prior right now, warning. Nelson testified that warning were in the that the “second” police to to the Miranda or at questioning remain actually sepa- car; second, station sub- itself. However, any silent, time 3.That ed Nelson Whoever does before sentenced rights, and he said he did. (Footnote of murder him the Court without cost. [And I] any warning attorney, n n : section advice that the statements made before did questioning. not asked him continued on the to could not be used. n :|= read, imprisonment testify one the first any n n in would be pertinent part: If he could not afford if he understood his degree 5¡S ^[*] his following for life: following page.) warning appointed n ^[*] and shall be is n ^[*] includ- guilty adhered a mount- slips sexual con- cover were committing criminal while der 6, Appre- ing June 1984. medium. Bureau Criminal was indicted on duct. He (BCA) later, the state dismissed hension scientist Catherine Knutson months About 6 P. recognized under' Minn. R.Crim. that the tests she intended to indictment 30.01, samples on the DNA would ex- stating: perform samples. advised the haust those She indictment, all of Jury the Grand

[S]inee by letter prosecutor approxi- of this fact pro- been evidence has physical mately six weeks before the tests were Ap- by the Bureau of Criminal cessed 9.01, citing Minn. P. performed, R.Crim. The results of laboratory. prehension 1(4), stating part: subd. negate to some of examination tend Jury which the Grand upon the evidence case is identified as a homicide case This recently This indicted this defendant. Daymond Bailey Bill involving * * un- highly makes it obtained evidence *. Agnes Mary Fafrowicz Please proved this case could be likely testing “may pre- that this be advised beyond a reasonable doubt. any experiments” further tests or clude action on the no further meaning The state took within the of the'amendment , ; years. case for several Minnesota Rules of Criminal Procedure 9.01, 1(4), January subdivision Evidence The 1992Destruction C. may the evidence example, For affect February police lieutenant Brad following in the man- possession our Johnson, head of the homicide divi- then will be con- ner: all of the evidence Minneapolis Department, Police sion of the analysis regarding the oral sumed and release of authorized the destruction (Item 41) (Item vaginal slides slides relating pieces physical several 42), both said to have been collected Photographs and Fafrowicz’s murder. Mary Agnes from Fafrowicz. destroyed of some of the photocopies to disclose this The decision whether check) (such as the released evidence $230 party your other information to court later The district were retained. prosecuting as the attor- responsibility the de- trial witnesses to describe allowed ney. evidence, court allowed stroyed and the notify Bailey or his prosecutor did reliability of that the defense to attack the attorney appointed before previously un- testimony based on the fact that the performed Knutson the tests. destroyed. evidence had been derlying Plus using a Profiler In October and Trial D. The 2000 Tests kit, samples against Knutson tested Bailey during the taken from blood reopened the case was When gain.access To investigation. from the Medical investigators procured slides, applied heat Knutson reported- sample Examiner’s Office two slides until a Bunsen burner samples to the slides with vaginal and oral ly contained Bai- began to boil. body during mounting medium Fafrowicz’s taken from process that this was violation by ley claims protected Both slides were autopsy. (1982). § Section (Footnote 609.185 previous page.) Minn.Stat. continued from times (2) amended several being 609.185 has been death of a human Causes the 1983; currently would the same crime committing attempting to commit since while or 609.185(a)(2) § charged under Minn.Stat. the first or sec- sexual conduct in criminal violence, (2002). Bailey challenge the statuto- does not degree with force or either ond charge against ry him. basis for the upon affecting person another!.] or or laboratory protocols and approved interrogation given of had after he was the Mi- subject of validation stud- Second, been warning. complains randa he vaginal sample yield- The ies the BCA. improperly the court allowed the interpretable DNA results at of ed six prosecution testimony regarding to solicit loci, including amelogenin ten tested destroyed the evidence that the state and (the gene). resulting profile sex The Third, argues released he Bailey’s matched the DNA from blood improperly the court admitted the results sample. The Profiler Plus test exhausted (1) of DNA tests because chain result, sample. the DNA As the BGA custody sample for the unsubstantiat- was sample was not to also test the with able (2) ed; the state solicited inadmissible tes- kit, typically the Cofiler which examines an timony purporting interpret the results loci, sample additional three and no testing of DNA at the other four loci even independent testing by for Bai- available though those results did not reach the ley. normal interpretation; BCA’s threshold for evidence, police With this new once (3) expert the state’s impermissibly used again charged Bailey with first-degree “product calculating probabili- rule” in committing murder while criminal sexual (4) statistics; ty the state violated Minn. jury A grand conduct. indicted him in 9.01, 1(4), by R.Crim. P. failing subd. time, Bailey December 2000. At that notify Bailey experts before state conduct- serving prison time in federal in Oklahoma up ed a test that used sample; the DNA offenses. unrelated (5) the use of Bunsen burner heat to re- trial, Bailey’s objections, slip At move the cover the DNA over take present district court allowed the state to from its slide was not a “validated (1) regarding inculpatory technique” laboratory and violated stan- (6) dards; statements made after the Miranda warn- the PCR-STR method for (2) ing; testimony describing witness DNA, testing case, applied in this drawing destroyed conclusions from the Next, process. unreliable and violates due (3) evidence; physical testimony released argues he that prior-crimes evidence was experts pro- from Knutson and other state improperly Finally, admitted. argues he viding the testing; results the DNA prosecutor that the engaged in courtroom (4) subsequent burglaries evidence of three deprived Bailey misconduct that fair by Bailey. February committed On trial. jury Bailey guilty found of first- degree murder. He was sentenced to a I. consecutive term of life imprisonment.4 parties agree the statements

E. Appeal Issues on Bailey police prior made to being in- rights formed of his Miranda court, were inad- appeal On to this makes missible. The district error, court held that the ten claims of concerning six them police statements made to the DNA evidence that was after re- introduced First, against ceiving warning him. the Miranda argues he were volun- improperly tary district court admitted his in- and admissible under the United culpatory during pоlice Supreme statements made Oregon States Court’s decision in 4. presum- serving The use word of the "consecutive” in Oklahoma. ably refers to federal sentence was

389 298, 1285, ruling contrary, to the we will Elstad, 84 definitive 105 S.Ct. 470 U.S. v. rule in com- continue to follow Elstad (1985). 222 L.Ed.2d that circumstances.6 We note El- parable Elstad, that the concluded In the Court ruling peculiar to its stad limited its own analysis apply does not “taint” traditional facts, admissibility any stating “the sub- violations, stating that to Miranda should turn in these sequent statement Mi- extension of an unwarranted is [i]t on it is solely circumstances whether simple failure to to hold that randa knowingly voluntarily made.” 470 unaccompanied warnings, administer 309, Throughout at 105 1285. U.S. S.Ct. other circum- actual coercion or by any emphasized opinion, the Elstad the Court to undermine the sus- stances calculated that “these circumstances” involved “vol- will, his free so ability to exercise pect’s untary from the but unwarned admission that a investigatory process taints (470 303, defendant” U.S. at 105 S.Ct. informed voluntary and subsequent 1285); in a where the offi- given situation for some indetermi- is ineffective waiver warning give cers failed to a Miranda requires Miranda Though period. nate determining of an error in that because must be unwarned admission “custodial”; and the interrogation admissibility suppressed, “unaccompanied unwarned statement was should turn subsequent statement by any actual coercion or other circum- solely on whether these circumstances calculated to undermine the sus- stances voluntarily made. knowingly and will.” 470 pect’s ability to exercise his free Elstad, 309, at 105 S.Ct. 1285 Indeed, 470 U.S. 309, at 105 U.S. S.Ct. 1285. added). note, did how- (emphasis Elstad circum- recognized that different Court ever, give a Miranda stances, that the failure prior statement is actu- “[w]hen presumption coerced, does create “a warning ally passes the time that between 307, confessions, 1285. Id. at 105 S.Ct. of interro- compulsion.” change place change identity of the gations, and may have been The rationаle of Elstad interrogators all bear on whether by subsequent deci- somewhat weakened carried over into the second coercion has a taint rejection in Elstad of sions. The at 105 S.Ct. confession.” 470 U.S. conclu- analysis part was based (citations omitted). warning is not consti- sion that a Miranda 306-07, 105 tutionally required. Id. at Bai- denying court’s order The district But the Court later ruled Mirandized ley’s suppress S.Ct. 1285. motion to his totality does have constitu- “The warning a Miranda concluded: statement Dickerson v. United reveal that Defendant was tional stature. circumstances Mirandized, 428, 438, coerced, States, properly 120 S.Ct. 530 U.S. not (2000). voluntarily waived freely, knowingly, has 147 L.Ed.2d 405 Court third statement is rights. Dickerson on his Defendant’s impact not considered the This conclusion of a therefore admissible.” rule.5 the absence the Elstad visory powers extend to the feder- would court decisions have concluded 5. Some state See, Thus, modify require Dickerson did not Elstad. the decisions that al courts. Harms, e.g., v. 137 Idaho 55 P.3d State Miranda must be based state courts to follow (2002), and cases cited. implicit premise Miranda is con- Miranda, See, stitutionally required. e.g., observed, majority there in Dickerson As 1602; 491-94, 497-99, S.Ct. Dick- U.S. applying inexplicable contradiction in is an 438-39, erson, 120 S.Ct. 2326. 530 U.S. at if it is constitutional- Miranda to the states super- Supreme ly because the Court's based directly elements of fact and law and Al- combines heels the first. light purposes in the of the must be viewed though precludes Elstad the formulation applying of the Miranda rule ‍​‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​‌‌​​​​‌‌‌​‌​​​​​​‌‌​​​‌‌‌‌​‍and caselaw a “rigid determining rule” the ad- Miranda under similar facts. confession, missibility of the second our review of surrounding “the circum- context, Bailey argues

In that El- stances and police the entire course of factually distinguishable stad is and respect conduct with suspect,” to the by Eighth is controlled Cir- this case convinces us that the second confession Carter, cuit decision United States v. (8th Cir.1989). cannot be into 368, allowed evidence. F.2d 373-74 argues apply state that Elstad does and Carter, (citations 884 F.2d at 373 and foot- upon interpretation further relies our omitted).7 note Scott, v. Elstad State 584 N.W.2d applying bright-line We read Carter as a (Minn.1998). 419-20 circumstances, rule to these which avoids (a) Bailey distinguishes Elstad because the need to case-by-case determine the circumstances of interrogation issue of empha- voluntariness. The court (b) coercive; were more Elstad’s non-Mir- sized clarity application the ease and brief, only andized statement was indicat- of Miranda and said: scene; ing presence his at the crime and * * * If police permitted are (c) Elstad’s Mirandized statements oc- ignore they Miranda until after obtain a a significant pause curred after the in- confession, again the courts will once terrogation. embroiled in the case-by-case endless Bailey argues that Carter is more analo- inquiries voluntariness Miranda was de- gous. for 55 min- Carter was interviewed signed prevent, and case-of-appli- Carter, warning. utes without a Miranda eation rationale enunciated the Su- 884 F.2d at 369. After he made some preme Court will be largely nullified. statements, incriminating given he was Id. at 374. warning, Miranda further was inter- viewed, signed waiver form and wrote a argues The state that this case is con Eighth handwritten confession. Id. The trolled instead Scott. Police took Scott Circuit held that the warned confession custody gunpoint, into at handcuffed him inadmissible, distinguishing Elstad as Scott, him police took to the station. follows: 419. Police then interroga case, hours, ted Scott three with passage this there was no video- and audiotapes speak interroga

time to of between the made of the entire unwarned tion. Id. at 415. subsequent warnings Although police confession did not confession, give all of which occurred as Scott a warning Miranda until 15 part parcel process. of a continuous minutes into interrogation, Scott did Thus, the second confession came almost not make incriminаting statements 7. The dissent in Carter did not criticize the where the warned statement is made "on the bright-line (United rule but instead focused on the heels” of the unwarned statement Gale, question interrogation (D.C.Cir. whether Carter's States v. 952 F.2d ''custodial,” 1992)) question present inapplicable is not and that Carter is when Carter, arresting here. v. United States 884 F.2d officers do not coerce the un (Beam, J., Further, (United dissenting). 375-76 McCurdy, warned statement States v. (10th suggested by Cir.1994)), criticisms of Carter other courts 40 F.3d do Thus, applicable suggestion are not impact here. reduce the of Carter on the facts of the present that Carter should be limited to circumstances case.

391 solely on whether Id. After circumstances it is warning. the warn prior to the knowingly voluntarily and made. committing two ing, confessed Scott that the shootings. Id. We held drive-by (citations 470 at U.S. 105 S.Ct. 1285 admissible El were under two confessions omitted). Scott, at 419-20. stad. 584 The facts in show that the un- Elstad Bailey Elstad is agree We with warned made statement was without actu- the situa- Elstad involved distinguishable. coercion. al Police went to the Elstad the unwarned statement was tion where home with a warrant for his arrest voluntary” because of the absence “clearly burglary connection a recent with Elstad, any circumstances. coercive neighborhood. defendant’s After mother fact, 310-11, 1285. U.S. at 105 S.Ct. in, met let the officers one of them with where on the circumstances Elstad focused he living Elstad room and said felt police questioning clear that was not robbery, that Elstad was involved interrogation custodial neces- involved the “Yes, I responded which Elstad sary warning. a Miranda The trigger 300-01,105 at there.” U.S. S.Ct. 1285. its conclusion with this supported Court only This was unwarned Elstad’s state- rationale: not ment the circumstances did in- warnings may inhi- Because Miranda actual interroga- volve coercion before the information, this giving bit from persons Moreover, tion at the station. continued that they Court has determined need be had passed one hour and Elstad been hаd person after is administered father, by spoke angri- confronted his who “custody” into his freedom has taken him. ly to at 105 S.Ct. Id. significantly restrained. otherwise been Thus, prior even if the circumstances Unfortunately, defining the task of “cus- coercive, passage have would been one, and tody” slippery “policemen ais any police time would have diminished crimes serious re- investigating [cannot by any coercion and coercion Elstad’s fa- alistically expected to] be make no er- any police superceded ther would have If made errors are rors whatsoever.” coercion.

by officers in adminis- law enforcement of the current case circumstances proce- tering prophylactic Miranda Bailey’s unwarned quite are different. dures, they should breed the same during interroga- statements were made consequences in- police irremediable immediately tion in the car af- detective’s Fifth it- fringement of the Amendment placed gunpoint, ter he was arrested unwarranted self. It is an extension car, against patted down for squad simple hold that a failure to Miranda to handcuffed, placed weapons, warnings, unaccompanied administer make it clear that seat. These facts back coercion or other circum- any actual “custody” was in and that first calculated to undermine the sus- stances interrogation accompanied actual will, pect’s to exercise his so ability free coercion. process investigatory taints Further, voluntary and we conclude Scott distin- informed subsequent guishable some Scott’s non-Mirandized ineffective for indetermi- because waiver is minutes interrogation only 15 Though lasted period. requires Miranda nate incriminating no state- admission because Scott made the unwarned must Scott, admissibility time. during sub- ments suppressed, at 415. non-Mirandized should turn in these N.W.2d sequent statement interrogations longer,8 trial, took dence being improperly admitted at substantially inculpatory made the same we ask whether the verdict rendered was warning statements before the as after. “surely unattributable” to the constitution- Chomnarith, al error. State v. Carter, Following we hold that 660, (Minn.2003); see also Sul- a suspect apprehended where is under co Louisiana, 275, 278-82, livan v. 508 U.S. circumstances, subjected ercive is to (1993). 113 S.Ct. 124 L.Ed.2d 182 lengthy interrogation custodial before be ing given warning, a Miranda does not Bailey’s None of statements constituted significant pause have the of a benefit confession, but all were dubious state- interrogation the after the Miranda warn ments of fact that brought credibility his ing given, essentially repeats is the strongly question. into In ar- closing his inculpatory same statements after the Mi gument, prosecutor capitalized the before, randa warning as statements these by arguing “[p]eople statements warning made after the Miranda are inad they lie because want something.” to hide missible. light significant impact of this evidence, say Bailey’s we cannot con-

Our decision is consistent with pur- “surely viction was unattributable” to the poses police of Miranda. If permitted are admission of his Accordingly, statements. illegality to cure the aof coercive un- Bailey’s we reverse conviction and order a warned interrogation by merely custodial trial, Bailey’s new at which statements to providing warning they after have al- police shall not be admitted in evidence. ready evidence, inculpatory they obtained Bailey’s We will also address other claims would have little give incentive to of error they because concern issues that warning beginning at the of their custodial likely will arise in the trial. new interrogation.9 This conclusion necessitates II. analysis. harmless error Based on Dicker son, 530 U.S. at 120 S.Ct. we In February police lieutenant conclude that this was constitutional error. Brad Johnson authorized the destruction When a constitutional error results in pieces evi- of several physical evidence.10 Moreover, piecemeal The record clearly contains indications is so custodial. when the long Bailey's from the two detectives of how standard Miranda warning given after in- interrogations Testifying pre- lasted. at the made, culpatory already statements have been hearing, trial Detective Nelson estimated that specifically suspect it does not inform a car, interrogation, police the first in the lasted already none of the statements made can be for 15 minutes. Detective Snobeck suspects, used at trial. Most even those with pretrial hearing testified at the the sec- enforcement, prior experience with law could station, (at pre-Mi- interrogation ond reasonably expected appreciate to this randa) "[m]aybe lasted for ten minutes.” At distinction. trial, ''guesstimate” Snobeck testified to a post-Miranda interrogation took "30 to 45 original 10.These included $230 check pretrial minutes.” Nelson testified Bailey; from rape Fafrowicz to kit from hearing interrogating that the entire course Fafrowicz; cigarette the examination of butts half, maybe,” took "[a]n hour and a found at the scene and those smoked Bai- accepted assertion that the district court in its (a ley during expert his interviews state wit- findings of fact. ness testified that could not be elimi- scene); nated as a source police 9. We need have of the butts from the no concern that would Miranda under difficulty administering have material from Fafrowicz's house which circumstances, interrogation shoeprint. these where the contained a authorization, other items that the destruction of the evidence On Johnson’s negligent, in 1992 and rather than wife accidental released were and/or Bailey moved While at trial.11 intentional. Lieutenant Johnson not available were intentionally signed property to this evidence inven- any reference preclude tory ordеring this as sheets the destruction He now characterizes at trial. evidence, right he made it clear that this his Sixth Amendment motion under upon Minn. a mistake on Based part. and under his confront witnesses 9.01, argues analysis of there will subd. I.12The state these factors P. R.Crim. as the prohibiting more framed be no “blanket sanction” properly this issue is any testimony argument. introducing The district State from process a due motion, though regarding destroyed the evidence. court denied jury inform the Bailey to about allowed agree with that the destruc- We and release of the evidence. destruction “intentional.” tion of the evidence was Koehler, But, the United in Youngblood, suggestion In Arizona v. as there is no a destroyed that “unless Supreme Court held that the State or released items States faith on discovery can show bad of beneficial criminal defendant “to avoid evidence Koehler, police, preserve failure to See to the defense.” 312 N.W.2d part State, 1076, not consti- Lee v. (quoting useful evidence does 109 511 P.2d potentially at 1973)). (Alaska Moreover, 488 process of due of law.” there is tute a denial 333, 58, 51, any destroyed 109 S.Ct. 102 L.Ed.2d no indication U.S. Koehler, (1988). In v. had value. See exculpatory State released items (Minn.1981), to over- refused therefore that that the dis- we id. We hold grounds physical allowing on not err in testimo- turn a conviction trict court did ap- “inadvertently lost before that was de- ny regarding evidence it, released, testimony opportunity to examine” stroyed had an and such pellant (1) suggestion no new trial. concluding that “there is likewise be admissible a will intentionally [evi- lost that the State III. bene- discovery to avoid of evidence

dence] (2) “it the defense” and is doubtful ficial to DNA evi- Bailey challenges the state’s exculpatory.” the [evidence was] whether grounds. six Before dence on alternative (Internal citation quotation marks and de- grounds, general these some discussing omitted.) provide evidence will scription contеxt. helpful a case court in the instant

The district found that trial, Bailey several concerns At raised evidence, As quality samples. if of the DNA about the exculpatory value of noted, the 1984 court two of apparent the district

any, would have been also, vaginal were reexamined in 2000: destroyed. it was And slides the time Without Order Prosecution included taken from Disclosure 11. These shoes (a expert state witness testified and ex- after his arrest Without order of court of Court. shoeprint 9.01, "grossly to a they were similar” cept provided in Rule subd. residence); flashlight, at Fafrowicz’s found request attorney of defense prosecuting Fafrowicz, which belonging identified as shall, set for Omni- before the date counsel Bailey’s apartment after ar- police found in Hearing provided allow Rule bus him; cash, during resting $230 found any to all matters access at reasonable time same search. prosecuting attorney’s possession within the * * *. the case which relate to or control reads, part: pertinent subdivision 12. That and an oral smear slide. The support finding smear slide sufficient to inadequate yield question oral matter in proponent smear slide is what its year claims.” vaginal prior adoption One to the results and the slide also had 901(a), Rule we held that significant Both deficiencies. slides were been, after the victim had de- prepared [tjhere rigid can be no formulation of days ceased for an estimated three showing necessary what in order for a likely thus contained bacteria detrimental particular item of evidence to be admis- preservation By to the of the DNA. Rather, admissibility sible. must be sample vaginal smear slide was to the sound discretion the trial left test, so small one with a Profiler that, judge. He must be satisfied all kit, Plus could be conducted. The probability, reasonable the item offered old, years was sixteen the conditions of its is the same as the item seized and is and, storage were unknown as will be dis- substantially unchanged in condition. below, cussed section E the slide was Admissibility should not depend on a heated with Bunsen burner to remove prosecution the negativing possibility all slip. the cover As a result of some or all substitution, tampering of or but rather factors, of profile these the obtained from only that it reasonably probable is that the sample incomplete: was reliable re- tampering or substitution ‍​‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​‌‌​​​​‌‌‌​‌​​​​​​‌‌​​​‌‌‌‌​‍did not occur. sults were obtained for six of the ten Contrary speculation may well affect the loci tested. While the results at those six weight of the by evidence accorded it Bailey, loci experts agreed matched all the factfinder but does not affect its that person a if excluded he or she fails admissibility.

to match at one locus. Johnson, 501, 504-05, State v. 307 Minn. (Minn.1976) 239 242 N.W.2d

Thus, (empha- Bailey argues that the conditions added) (internal omitted); sis citations see of sample, by the whether natural causes also State v. Hager, 325 44 or from improper handling, him deprived (Minn.1982) (reaffirming Johnson after the opportunity to be excluded at one of 901(a)). adoption of Minn. R. Evid. the uninterpretable four by loci tested the kit, Profiler as well as the three additional problems identifies two with the loci normally would be tested custody chain of presented by the state. argument First, Cofiler kit. This heightens Bai- argues he that the state’s evidence ley’s criticism of handling the state’s concerning the the initial filing of the DNA DNA testing and the use of Bunsen burner evidence was insufficient because state heat to remove slip, the cover the destruc- failed to call pathologist, Dr. Robert tion of the sample testing Ackerson, without performed notice who autopsy Bailey, Bailey’s complaints Second, filing. about made that argues he allowing expert the state’s give interpre- the state “failed to establish chain of testimony tative about custody the four uninter- biological sample for the after it pretable loci. placed in [storage in] HCMC’s base-

ment” but before was retriеved when the A. Chain Custody investigation was restarted state, however,

Minnesota Rules of Evidence provided evidence of 901(a) (2002) provi provides: “General Dr. through Ackerson’s actions the testi- sion. The requirement of mony authentication of other through witnesses and busi- or identification as a precedent condition prepared ness records part of the au- to admissibility Moreover, is satisfied topsy process. BCA forensic A Yes. testimony— Knutson’s scientist Catherine sample slip on the slide was that the cover Q eight But other for the locations on label and “intact” that the “adhered” gene you were not able to an- prompted the district still affixed— swer question because either the that the state had shown an court to find your results were below threshold for the DNA evi- adequate foundation Cofiler; you didn’t do the is that dence. right? custody Viewing the chain issue A Yes.13

isolation, say cannot the district we Although pretrial testified Knutson had in finding court its discretion abused peaks that were less than RFUs had met its foundational burden. state not interpretable, were the sense that Minn, Johnson, 504-05, See match, they could provide state However, we will N.W.2d at 242. consider claimed that cross-examination age condition of fur- opened interpretation by door some analyze Bailey’s process ther when we due “that, done implying had Knutson the test arguments below. properly, Bailey could have been excluded eight at one loci not included in the B. Have Peaks Low RFU Loci Whose redirect, profile On generated.” Values questions state asked Knutson a series of yielded interpreta Knutson’s tests to show that while a locus with peaks at six of the loci that ble DNA results ten under the RFU threshold not were the kit tests. were Profiler Plus These match, support they reliable to enough graph on a represented by peaks called enough can in- provide sometimes reliable to electropherogram. pro Pursuant BCA to person. formation exclude a tocol, eleetropherogram peaks must be Bailey objected testimony to this higher than 150 relative fluorescent units charts, use of (RFUs) accompanying argu- the reliable enough in order to be to had failed ing prosecution to es- According to interpretable. be Knutson’s opinion tablish for foundation pretrial testimony, the BCA considers concerning any peak locus with under than 150 RFUs to unrelia peaks of less 150 RFUs. court overruled the The district ble. objection, ques- that the redirect holding yield interpreta- Four the loci did not of scope of the tions were within the cross- their were peaks ble DNA results because examination. Knutson testified that height. During less than 150 RFUs at placement peaks relative these Knutson, Bailey trial cross-examination Bailey’s pro- four loci with was consistent person established that does not match if. him. file and not exclude thus did locus, any Bailey’s at one he is excluded. Knutson: counsel then asked subject Evidentiary rulings are to an Q you cáse abuse of discretion standard. State v. And this were able (Minn. Robledo-Kinney, 615 N.W.2d question five loca-

answer 2000). court’s decision that gene; on the is that correct? The district tions that, argued be tested. had used or 13 loci available to Knutson The defense Knutson kit, gotten have explained Cofiler she could results at trial that she had used the a greater "[tjhere number of loci. This is the Cofiler kit was too little because implications, Bailey's source of the cross- DNA.” Knutson, that there were 12 examination Bailey’s opened cross-examination Daymond Bailey the door Agnes Mary Fafrow- to some limited discussion of the sub-150 icz.” The letter notified the prosecutor peaks likely RFU within the court’s laboratory Knutson’s would be con- discretion. But court respond did not ducting a test on the DNA objection. foundation On Fafrowicz murder on or about October point, testimony Knutson’s on the use of and that the testing “may preclude peaks sub-150 aрpears RFU to us any unclear. experiments.” further tests or The testimony Should this be offered at the prosecutor notify Bailey did not anyone or trial, new the district court should examine associated with him testing. about the foundation for any interpretation of proceeded Knutson with her DNA tests. electropherogram peaks that are less than testing exhausted the entire DNA height. 150 RFUs in sample. 9.01, 1(4), Minn. P. R.Crim. subd. pro- C. Product Rule in pertinent part: vides Bailey argues that Knutson’s testi Reports Examinations and Tests. mony concerning probability statistics was * * * .If a scientific or experiment test inadmissible because it referred to the * * * may matter preclude any “product rule” rather than the “interim further tests or experiments, prose ceiling approved method” in State v. cuting attorney give shall the defendant

Bloom, (Minn.1994). reasonable opportunity notice and an Bloom, we significantly relied qualified have a expert observe the test recommendation of the National Research experiment. (NRC) Council ceiling “interim method” should be used for probability Bailey argues that the spirit of the rule statistics. 516 N.W.2d at 160. here, makes it applicable and that ap- propriate sanction for the notify failure to

We have question addressed this in two him of testing destructive is to exclude all recently other cases before this court. See DNA evidence. argues The state that Miller, (Minn. State v. 666 N.W.2d 703 9.01, 1(4), Rule only subd. applies to a 2003); Nose, State v. Roman 667 N.W.2d that, “defendant” and at the time of the (Minn.2003). Essentially, we have testing, Bailey was not a defendant be- that, Bloom, concluded subsequent to subject cause he was not then to a charge. NRC re-examined the issue and deter The district court found that mined that the interim ceiling method is not appropriate to systems. PCR-based the testing clearly was during conducted The NRC now prod recommends that the the investigation phase than [rather uct rule be used. Accordingly, we con prosecution phase] of the сase. The clude that the district court did not abuse Court finds this significant distinction its in allowing discretion probability statis and declines to burden the State with tics testimony product based on the rule. discovery obligations prior to the time a (even, here, case is charged where the

D. Sample Exhaustion and Lack of State is single focused on a suspect). Notice rejects Court also Defendant’s ar- 24, 2000, August On approximately gument that the State failed to give 6 weeks tests, before she bad-faith, conducted her notice or for strategic [sic] Knutson prosecutor sent the a letter purposes. re simply There is no such evi- garding “a involving homicide case Bill were, dence on the record. If there fact, history to these likely view this much facts. of the issue

Court would differently. suggests Rule the restriction to a presently “defendant” was charged delib- alternative, the district court also In the requirement erate. notice When the prejudiced by Bailey was not found that Rule 9.01 lan- adopted to him prosecution’s notify failure be- from guage part drawn Rule 421 of to “would not have been entitled cause he to an the Uniform Rules of Criminal a conduct Procedure. portion independent Although “there is no proposed test” because Rule notice be that,” if Knutson had been any evidence even given to the defendant “and person expert, by a defense “the ex- accompanied known or to have an believed interest testing procedure traction followed matter,” clearly would in- which have have been different.” would BCA Bailey, cluded Minnesota Rule 9.01 did not and, instead, include requires these words procedur of a The construction notice to “the defendant.” law de subject al rule a to question Kastner v. Star Trails novo review. Thus, we that the district conclude court Ass’n, (Minn.2002). 235, 238 646 N.W.2d did not err in that Rule 9.01 ruling did not However, discovery once a violation has apply Bailey. to But we hasten to caution occurred, “is particularly a court district prosecutors may process be due that there appropriate reme suited to determine implications a decision to give from not dy deciding and has wide discretion notice where there is well-identified sus- sanctions.” State v. impose whether object who is pect primary the DNA (Minn. Freeman, 197-98 surely testing and will become a de- who 1995). discretion, “Absent a clear abuse if testing fendant confirms a match to not overturn the reviewing court will connection, DNA. we disagree his In that * * * preclu trial court’s decision. [T]he conclusion with the district court’s sion of is a severe sanction Bailey by the prejudiced was not lack of lightly should invoked.” Id. at 198. contrary, notice. To the would have argu- that there are recognize policy We have extremely been valuable make it ments that would desirable expert testing, to observe that present apply Rule 9.01 to these unusual facts particularly application of Bunsen where, technically was not although heat, next.15 burner as discussed previous defendant because indict- - dismissed, ment had been he had once E. Burner Bunsen charged, been he remained the sole sus- proponent scientific evi The testing was to pect, purpose and the has to establish the dence the burden compare.the sample taken from the victim admissibility for the of a proper foundation precise to his But the used DNA.14 words by showing that method- apply cannot be extended to scientific test Rule 9.01 Moreover, We about question 15. are also concerned court’s one could the district finding finding that there was no evidence court's is no evidence that "the that there give that the state failed to notice "in bad by testing followed procedure extraction faith, strategic purposes.” simple or for the BCA have been different.” would indicted, situation, previously fact of a sole finding the fact another Such overlooks known, suspect sup- whosе whereabouts can observe what procedures witness strategic ports purpose, inference of a and procedures also how were followed but explain evidence its the state offered no performed. were thought process. actual 398 samples reliable and that

ology generally used is The DNA this case produced specific results in the were samples reliable stored on two slides. The Tharaldson, protected by slips 615 were case. Goeb v. cover that were (Minn.2000). Minnesota, a mounting adhered to the slides medi test two-pronged Frye-Mack must be sat- um. BCA forensic scientist Knutson re may by heating isfied before such evidence be admit- moved the slips cover the slides Traylor, seconds, ted. v. 656 N.W.2d State “over a low using heat” for (Minn.2003). proceeds test burner, That as fol- Bunsen the mounting until medi lows: um boiled and loosened. First, technique a novel scientific pretrial At a Knutson hearing, conceded produces to be evidence admitted trial removing this method of a cover slip generally must accepted be shown to had “not ‍​‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​‌‌​​​​‌‌‌​‌​​​​​​‌‌​​​‌‌‌‌​‍been studied” can “[i]t scientific community, within the relevant degradation” lead to the DNA sample. second, particular de- expert Defense Dan E. Krane witness tes- technique rived from the and used in an tified that the burner Bunsen method has individual case must have a foundation that, not been validated and under the scientifically that is reliable. Put anoth- Advisory standards of the DNA Board way, Frye-Mack er standard asks (DAB), a technique the use of such without experts widely first whether the field study guidelines validation would violate share the view that results of scienti- laboratory and could cause a to lose its reliable, testing scientifically fic are Traylor, accreditation.16 In we held that laboratory second whether conduct- the DAB appropriate standards are the

ing the in the individual tests case com- govern testing. ones to 656 N.W.2d plied appropriate with standards and at 900. сontrols. The district court concluded that “[t]he Nose, State v. Roman very record is clear that the BCA has not (Minn.2002) (citations omitted). The stan- done a study validation the use of Bun- Frye-Mack dard analyses of review in sen purposes burners to heat slides for two-pronged: also removing extract slips cover DNA. The particular principle Whether a or tech- why study reason such a has not been nique prong, general satisfies the first mystery.” done remains a The court acceptance in the relevant scientific found the BCA’s failure to conduct a vali- field, is a question law that we review dation test but it “troubling,” admitted the de novo. District court determinations upon testimony DNA evidence based from prong, under the second foundational re- experts state Knutson and James Iverson liability, are reviewed under an abuse of (1) the Bunsen burner method “had standard, as discretion are determina- been successfully previous 10-15 used qualifications tions of expert witness (2) BCA”; extractions conducted helpfulness. method “was still in use the BCA’s Goeb, (internal (3) laboratory”; N.W.2d at 815 citations Iverson “feels the omitted). procedure appropriate is reliable.” Though expert gave state witness to the Knutson extraction of DNA from the cells in the Krane, testimony appears that to concur with sample, sample not to the removal of the from assertion, disputes arguing the state Krane’s the slide. question only apply that the DAB in standards degradation sample that all similar to that of the significant it

The court found in this case. that “there are no agreed witnesses expert it possible that which have found studies Also, pretrial Iverson ruling, after the to complex profile DNA anoth- alter one to study ordered Bunsen a validation DNA And the court complex profile.” er trial, burner At that method. he testified pure speculation “it that would be stated any- the results indicated that “it took to that the Bunsen the Court conclude for where from 60 to seconds of direct primarily responsible for the was holding burner that slide in to create the flame “In profile conclu- full point you get DNA obtained.” the where couldn’t a partial * * *, said, profile sion,” again “the State has nar- DNA it was hold- the court contrast, it ing right the flame.” In demonstrating met its burden rowly that, case, Knutson testified in this she the reliability under Because Goeb.” only slide at the of the flame edge held the heavily on Iverson’s court’s decision relied Bailey for 30 that the argues seconds. technique the Bunsen burner claim study used DNA only pristine validation successfully previ- 10-15 had been used samples, 16-year-old sample the unlike cases, Bailey’s mo- granted the court ous case, this and was not reliable. Because cases. discovery on those tion for not until study had been conducted trial, two By appeared the time of hearings, after the results pretrial by key upon the dis- of the factors relied provided Bailey had not been to or were, ruling in its pretrial trict court to Bailey’s court at the time of motion First, be, to turned out doubtful. to DNA suppress the motion reconsider emphasis expert agreement court’s evidence, by it was not considered fit profile a DNA cannot be altered to deciding Bailey’s court motion to when main profile point missed the different suppress the DNA evidence. Bailey’s argument. concern was findings We hold that the district court’s may sample that someone DNA else’s satisfy fully are insufficient to the second Instead, match his. have been altered to prong Fry of the e-Mack standard concern was that someone else’s his Bun- of DNA results where the admission may sample possibly have been degraded, has The technique sen used. burner been point to the technique, the burner requires proof of foundation- prong second his indistinguishable it was from because reliability operating procedure al interpretation could not be made reliable specific actually applied case. have might loci that excluded at certain district find the Bunsen burner court did him. reliable, technique but that determina- Second, the to substantiate state failed absence of tion tenuous because of the claim Iverson’s of 10-15 successful uses upon validation studies and the reliance uses, technique by the Bunsen burner the BCA. claim of 10-15 successful state’s in discovery Fur- produce The state was able to claim that remains unsubstantiated. ther, court address only argued five “Burner cases.”17 the district did not dispute concerning factual whether at trial that those cases evidenced trial, prior enees "10-15 extractions conducted made motion to 17. Prior suppress his the DNA reconsider motion and substituted "the Bunsen the BCA” evidence, based the state on the fact method/technique used been burner had produced The district court five cases. many past.” origi- in the (Emphasis times explanation, without but denied motion nal.) prior its to eliminate refer- amended order DAB require standards validation Traylor studies was convicted of second-degree assault and operating procedure. Finally, posses- for such an controlled substance in sion connection with a stabbing incident. holding court’s that “it district would Id. at A key piece 887. against pure for the speculation Court to con- Traylor bloody was DNA from a primari- clude the Bunsen burner was knife found at the scene of the crime. Id. ly responsible partial profile for the DNA Traylor challenged the district court’s ad- (i.e., damaged obtained” that it the sam- evidence, mission of the DNA arguing that ple), improperly shifts the foundational (1) the BCA’s use of testing PCR-STR away burden from the state. failed to meet the Frye-Mack standard We therefore direct that a Frye-Mack (2) testing same violated his due prong hearing second on the Bunsen burn- process rights. Id. at 898. Central to procedure er be held to determine whether of Traylor’s arguments both was the fact any DNA evidence is admitted at the new that given he was not genetic access to the Nose, trial. See Roman at N.W.2d primer sequences in the Profiler and Cofi- (requiring Frye-Mack hearing 822-23 on ler kits sequences because those are remand). guarded as proprietary by information

kits’ manufacturer. Id. at 890. F. We Testing; parties’ process PCR-STR Due Process Is- summarized the due arguments as follows:

sues Traylor heavily relies on State v. challenge final to the DNA evi- Schwartz in making this constitutional Polymerase dence is that the Chain Reac- Schwartz, challenge. recognized we (PCR- tion and Repeats Short Tandem that “[t]he fair trial process and due STR) method and the Profiler Plus kit rights [under im- Constitution] are used Knutson do not meet the Frye- plicated when upon data relied by a Mack general acceptance standards of laboratory performing tests are not community the scientific and foundational available to the opposing party for re- reliability, as held the Minnesota Court view and cross examination.” We fur- Appeals in Traylor, 641 N.W.2d at 339- ther noted Schwartz that “[i]deally, a adopts argument further defendant should be provided with the Traylor, made in if even the PCR- actual sample(s) repro- order to Frye-Mack STR method meets the stan- duce the tests” and that if that is not dards, its use process. violates due Subse- possible, data, “access to the methodolo- quent filing Bailey’s to the brief this gy, and actual results is crucial so a appeal, appeals’ we reversed the court of defendant has at opportunity least an in Traylor decision and held that independent expert review.” Our PCR-STR method and the Profiler Plus discovery Minnesota rules also echo the and Cofiler kits Frye-Mack satisfied the concerns set forth in Schwartz. Rule requirements general acceptance in the 1(4) 9.01, subd. of the Minnesota Rules scientific community and foundational reli- of Criminal provides Procedure that de- ability. Traylor, 656 900. We fense counsel has a right inspect re- rejected also Traylor’s process due argu- that, sults of scientific tests and if a test ment. Id. Traylor But there were facts in precludes any testing, further the de- that were critical process analy- to our due fense must receive reasonable notice and sis that are absent and that here necessi- an opportunity to a qualified expert have tate argument. further review of this observe the test.

401 data, ley’s complete access to method- the BCA’s The state contends in- access to fully ology addresses the and results of the BCA’s DNA tests policy in Schwartz concerns stated rights formation under process satisfied his due discovery Specifically, rules. Schivartz, (Minn.1989) in the and 447 at 427 N.W.2d policy, the BCA’s points to the state Jobe, v. and State 486 N.W.2d 419 that, possible, a requires when which (Minn.1992). A complete more discussion sample be re- portion of the evidence majority’s of the conclusion on this issue is If laboratory. tained at the BCA in the and dissent contained concurrence used, sample must be the BCA’s entire of Justice Russell Anderson. notify policy requires the scientist the defense attorney so that

prosecuting IV. its own ex- opportunity to have has 23, 1985, July Bailey pleaded guilty On case, testing. this pert observe the burglaries April to three he committed testing situa- is common PCR-STR year about one after the death of tions, sample was not con- the DNA Fafrowicz. In connection with his Agnes sumed, the DNA sam- portion and a Bailey facts of three plea, described the testing by available for further ple was 1, 1985, Bailey burglaries. April On broke Further, the state contends Traylor. Minneapolis of an into the South house 83- all Traylor had full access to infor- woman, her, “hit year-old “confronted” possession. Such mation the BCA’s her,” money took her and left. Later extensive available information included way into the day, same forced his work, in- of the BCA’s documentation woman, 69-year-old pushed her home of a all methodology, actual results of cluding knife, ground, сut her with standards testing, compliance with stealing anything. April without On fled Therefore, the state as- and controls. 19, 1985, Bailey into another house broke serts, provided Traylor the BCA has Minneapolis, carrying a knife and South laboratory’s with sufficient access to the intending to steal items from the house. for review and testing data and results caught by Minneapolis police He was cross-examination, allaying constitution- A1 building. officer when he exited al concerns. within a short burglaries occurred three (quoting State Traylor, 656 N.W.2d Bailey’s Minneapolis res- distance of South Schwartz, 427-28 v. idence. omitted). (internal (Minn.1989)) citations author would conclude

Athough the asserts, Bailey does not The state that, record, this the admission of the just around that Fafrowicz “lived dispute, pro- due DNA evidence violated at the time she Appellant” the corner from court does majority of the rights, cess Bailey’s objection, murdered. Over majority holding of the agree. Spreigl was allowed to submit as the state age about the expressed that the concerns in con- Bailey’s statements made the lack sample, condition of the DNA guilty to each plea nection with his testing, of destructive of notice v. burglaries. See State April technique to the use of the Bunsen burner 272 Minn. Spreigl, slide, from the lab slip remove the cover (1965). unavailability genetic prim- and the court reviews district not, This kit do sequences er of the Profiler to admit on whether court’s decision to the level individually collectively, rise Instead, of discretion. evidence for abuse Spreigl violation. Bai- process of a due (internal Kennedy, proof.” quotations empha- 585 N.W.2d 389 of and State v. omitted)). (Minn.1998). sis Evidence of other crimes to show the defendant’s cannot be used strong We conclude that there is a factu- committing character for those crimes but in- al nexus between the crimes and the motive, intent, ab- can be to show used charge. burglaries stant The all involved mistake, identity, or a commоn sence of at home invasions locations near Id.; R. plan. see also Minn. scheme or burglaries, residence. two of the three 404(b). may Evid. Before such evidence Bailey attacked lone female homeowners (1) admitted, must establish the state age burgla- who were over 60. Two of the that convincing clear and evidence probative ries involved knives. The value crime; participated defendant the other upon question of this of iden- evidence (2) that the evidence of the other crime is tity strong, prejudicial is whereas the ef- case; relevant and material the state’s appears sig- fect of the evidence no more (3) probative and that value of the in any nificant than case of admissible outweighs crime evidence of the other its Spreigl evidence. prejudice. Kennedy, for unfair potential say cannot that court We district questions here 585 N.W.2d finding Spreigl abused its discretion in evidence was rele- Spreigl are whether the question evidence relevant on the of identi- proof identity vant the state’s ty in finding proba- that the evidence’s value of the evi- probative

whether the outweighed prejudicial tive value its effect. potential for unfair outweighed dence its prejudice. V. Finally, Bailey that argues factual argues eight there were of prosecutorial instances burglaries and mur nexus between the require misconduct that reversal. Because burglaries der is because the “oe- weak granted we have trial on new other nearly year after Fafrowicz’s curr[ed] grounds, we need not determine whether murder,” burglary and because and mur sufficiently of these instances was committing der while sexual assault are prejudicial to warrant reversal of the conv “not even of the same crimes are iction.18 But we will comment on each of * * generic type argues *.” also provide guidance them to for a new trial. probative had no Spreigl еvidence Bailey argues that prosecutor

value in this case because the other identi proof misstated the state’s burden of ty strong, offered the state is four occasions. Misstatements of the bur DeWald, quoting v. 464 N.W.2d State proof improper den of are and constitute (Minn.1991) (“This court has stated Hunt, prosecutorial misconduct. State v. if Spreigl evidence is admissible (Minn.2000). 615 N.W.2d the trial court finds the direct or circum First, identity stantial evidence of defendant’s is prosecutor’s opening inadequate, otherwise weak or and that it probability statement referred to DNA ev necessary idence, support stating [percent] the state’s burden that “99.999976 conduct, record, prosecution light 18. The has an affirmative obli- viewed of the entire gation inexcusable, serious, to ensure that each defendant receives prejudicial was “so Henderson, a fair trial. State v. right that the defendant’s to a fair trial was ” (Minn.2001). 701-02 This court will not at 702. denied. Id. prosecutorial disturb a conviction unless mis- injustice’ to consider the lesser-includ- beings are able all human population charge acquit ed offenses and to from the tests be excluded” expected to murder”), court’s case, first-degree ex- Bailey was not but the instant any taint. subsequent instruction removed the rhetorical cluded, then raised prosecutor’s conclude that the state- beyond a reason- We proof “Is that question, ments, confusing, while somewhat were cautioned the state We have able doubt?” of not a clear misstatement of the burden equate prob- to DNA any attempt to avoid event, and, super- in such would be beyond proof rea- proof with ability statistics Carlson, by jury instructions on v. 267 ceded the court’s See State sonable doubt. (Minn.1978) (citing proof. Lau- burden of 176 N.W.2d Mathematics, 84 Tribe, Trial rence Third, prosecutor twice ar (1971)) (“Testimony ex- L.Rev. 1329 Harv. be gued closing question in that the in terms or conclusions pressing opinions Fafrow- jury identity fore was the make the can probabilities of statistical Bailey out that he points icz’s attacker. sug- proven, all but uncertain seem statutory ele any not concede of the did of the satisfaction gest, by quantification, that agrees crime. The state ments ‘be- guilt be established requirement that “technically error.” this was ”); also doubt.’ see yond a reasonable Fourth, during direct interro (“Prosecutors Bloom, at 169 516 N.W.2d Nelson, prosecutor gation of Detective that we will are cautioned and trial courts asked, “So, [Bailey’s] only alibi witness [his trial to a award a new not hesitate to at the time?”. Dur was out of state wife] trial record if defendant our review prosecutor ing closing argument, his qualitative quantitative that or reveals to wife again made a reference presented evidence was DNA identification him, with not able to [being] “not home way.”). We misleading improper in a to the officers as to his where indicate statements prosecutor’s conclude that the May May 16th or night abouts on the in a and should be avoided improper were * * Bailey suggests that these 17th new trial. Bailey improperly implied references Second, argument, during closing provide to evi responsibility had some jurors, “as the urged the prosecutor that the an alibi. We conclude dence of seekers, truth in the search for the truth reference to the defendant’s prosecutor’s evidence; in the search for doubt don’t improper “only alibi witness” evidence, truth seek you are the because trial. be avoided in new should evidence, truth in the for the ers. Search prosecu complains next the benefit of give but the defendant inap that were made three comments tor that a argues reasonable doubt.” Bailey’s de disparaging of propriately “ ‘searching for jury’s requires real role fense, expert witness. his counsel and his The state in all the evidence.” doubt’ prosecutors warned “repeatedly We have closing arguments maintains that similаr the de improper disparage is in State v. Ash appropriate were deemed * * * .” State closing arguments in fense (“The (Minn.1997) 21, 28 by, 567 N.W.2d (Minn. Griese, 427 565 N.W.2d v. jury ‘keep its did tell the prosecutor Powers, 654 1997); v. see also State * * *.”), and of truth eyes prize’ (Minn.2003). 667, 679 N.W.2d Atkins, 642, 648 State v. First, disparaged (Minn.1996) prosecutor (noting prosecutor In the Mueller. expert ‘unspeak- defense jury that it “would be told the 404 (Minn.1995) statement, er, prosecution (citing said

opening N.W.2d 388, 391, to walk around the Morgan, that Mueller “continues State v. 235 Minn. (1952)). country advocating counting argument the use of the This Rule], opposed method the Product should be avoided the new trial. [as in, this, coming criminal cases like be- pro- Reversed and remanded for further paid closing he for it.” In the gets cause ceedings consistent with opinion. this said that argument, prosecutor “[Muel- language (con- uses soft ‘consultant’ ler] ANDERSON, A., Russell Justice when, fact, is, paid all he witness curring part, dissenting part). in criminal cases.” We con- the Defense respectfully I in part concur and dissent improper prosecu- clude that it was for the part. light in of all the events and testimony of go beyond tor to the the surrounding Bailey’s conditions state- expert by making these witness references ments, including entirety police the of the to the witness’s character. Bailey’s experience conduct and the view, justice system, my criminal Bai- Second, prosecutor the elicited ley’s voluntary. statements were As for testimony implying from Nelson Detective evidence, DNA I see no error in the ad- that defense counsel was from the Public analysis. mission of the results of the view Defender’s office. We the reference laboratory There is a difference between inadvertent, agree but it should be procedures aimed at ensuring integrity the avoided in a trial. new physical evidence and validated methods Third, argument, during closing for analyses forensic casework aimed at prosecutor jury the told the that the de the ensuring reliability of the DNA results allegation fense case amounted to the analysis of the given case. I would “somebody surrep involved with the State affirm. titiously snuck the defendant’s DNA under During the investigation course of the a slip,” cover contention he likened to Fafrowicz, Agnes the death of homicide Simpson that made in his O.J. murder investigators learned that the victim’s trial. comparison This kind of to the They checkbook was missing. also found Simpson improper case has been held keys the victim’s car with the still the Thompson, this court. See State v. ignition in a parking lot about a block (Minn.1998). 734, Closing ar 22, away May 1984, from her home. On gument must be confined to the record and “eyeballed” Officers Snobeck and Nelson comparison obviously this goes outside the car, a 1970 Ford Custom 500 with record. was and This misconduct should brakes, “ideas, something drum for miss- be avoided in a new trial. ing, something They hidden there.” Finally, Bailey complains that the looked under the hood and noticed ‍​‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​‌‌​​​​‌‌‌​‌​​​​​​‌‌​​​‌‌‌‌​‍a cor- appealed passion prejudice state to and battery roded red and white Atlas located jury. prosecu At end of the passenger’s side. The officers then closing argument, prosecutor tion’s grass walked the tall around the victim’s evidence, prosecution brought looking stated that “the this house anything for “trace up, wrong. family back a right might This have been missed.” At some * * * . point during deserves resolution to this case morning May prosecutors We have held that must avoid officers were notified that two checks had account; inflaming jury’s passions preju and cleared the victim’s bank one was against May dices the defendant. State v. Port- payable dated 1984 and made other, themselves, point, patted identified company and the dated down an insurance “Bill payable Bailey’s made May clothing weapons, 1984 and outer took liquor a Vollmar-Bailey,” was cashed at him cigarette, his Camel handcuffed and, to the victim’s residence store close him in placed the vehicle.20 The officers bank, appeared to be according to the Bailey with confronted the check made out date of the vic- forgery. The estimated suspicion to him and their May 1984. The offi- tim’s death was forgery. Bailey said the check valid bank, obtained the two cers went to the cutting and that he received it for checks, department police returned to the victim’s car grass working on her photocopies and made of the checks. The cleaning battery job. doing brake through ran name officers also He said the car had disc brakes. He said system if it was in the local records to see victim him wrote the check out to up empty, the officers and when that came 18, 1984, Friday, May days which was two liquor went to the store where the check transported after she died. The officers had been cashed. police department, to the took off him in handcuffs seated the inter- store, the talked to liquor At the officers room view where was allowed to Bill Bailey owner who told them that the cigarettes. smoke his Camel apartment building in next door. lived the him Bailey said that told The owner also At the police department, the officers in an (Bailey) years that he had “done” 17 again questioned Bailey as to how he came recently prison and had been Oklahoma possession Bailey into of the check and talking to released. As the officers were essentially information. gave the same owner, Bailey through walked questioning, ten minutes into the About parking apartment lot and into the build- Bailey battery when indicated that the he him ing liquor pointed and the store owner car, on the driver’s cleaned was side who had cashed the person out as the Bailey Officer Nelson told he was under police check. The officers called the de- and him of his arrest for murder advised in partment Bailey’s to check record Okla- Nelson asked rights. Miranda Officer that, they doing Bailey homa and as were Bailey rights. if he those Bai- understood quickly apartment building left he familiar ley said he did. He said smoking a walking up started street law, having had access to a law with the cigarette. Bailey agreed in to waive library prison. essentially the rights provided his got The into their unmarked officers information, adding that he wasn’t same vehicle,19 street, turned the drove down the only cleaned the brakes and mechanic and pulled up “wrong corner side of paint- talked to the victim about that he’d Bailey road” next to where was walk- Bailey gun- ing her house.21 ing. stopped The officers suppress defense moved to all an unmarked Crown 21.Because 19. The officers drove statements, Bailey's separated generally the state Victoria which was known on groups: pre-Miranda "cop two street as car.” them into three (in police and at the statements vehicle station) agreed should police which the state they Nelson denied that "cut” Bai- Officer post-Miranda state- suppressed and the they ley off with the vehicle and doubted ment, op- suppression of which the state yelled at him in a loud voice. Officer Nelson Although objections questions they police posed. Bailey already knew were believed (Footnote page.) continued on next officers. 436, 479, 1602, of a search warrant at U.S. 86 S.Ct. 16 L.Ed.2d In the execution (1966).22 Bailey’s apartment, Officers Snobeck obtained in the Statements in clothing under some absence of a Miranda are, Nelson found warning with $230 flashlight, and a Bailey’s drawer dresser inadmissible. Id. exceptions, certain by daughter victim’s as later identified suspect’s But when a initial statement is A comparison mother. belonging to her Miranda, obtained violation of the ad by Bailey at the time of the shoes worn missibility subsequent of a statement made shoeprints found on the win- arrest with after Miranda warnings governed is siding of the victim’s house dowsill and Elstad, Oregon v. 470 U.S. 105 S.Ct. patterns the tread were indicated (1985). 84 L.Ed.2d The Court similar,” meaning that “grossly Elstad concluded that in the absence of eliminated; not be and foren- shoes could coercion, a Miranda violation need actual Bailey testing sic did not eliminate as the not bar the admission evidence of subse cigarette source of saliva found on Camel quent, properly warned statements. El found in the victim’s house and the butt stad, 470 U.S. at 105 S.Ct. 1285. The during collected cigarette Camel butts Court reasoned that errors in the adminis interrogation. station house tration Miranda procedures 1984, Bailey indicted June should not breed the same irremediable murder. grand jury first-degree consequences police infringement indictment was dismissed November the Fifth It Amendment. unwar- reopened 1984. The case was ranted extension of Miranda to hold testing indicated a nexus between simple failure to administer crime, grand and the and a second warnings, unaccompanied by any actual jury indicted for the same offense. coercion or other circumstances calculat- hearing, the Following an omnibus district ability ed to suspect’s undermine the to Bailey’s suppress to court denied motions will, exercise his free so taints the inves- after the Miranda given statement tigatory process a subsequent that vol- warning and DNA evidence. untary and informed waiver is ineffec- Post-Miranda Statement period. tive for some indeterminate of coercion inherent in cus- Because Miranda Though requires that the un- todial must be interrogations, suspect suppressed, warned admission must be any prior questioning “warned to he admissibility any subsequent silent, any- right has the to remain statement should turn these circum- thing says against him in a he can be used solely stances knowingly on whether law, that to the right court of he has voluntarily made. attorney, an and that if he presence of Id. attorney ap- cannot afford an one will be The Elstad any if pointed prior questioning for him to Court said that the “subse- Arizona, he so desires.” Miranda v. Miranda quent 384 administration of warnings 688, (Footnote (9th Cir.1991) (defendant previous page.) continued from F.2d 689-90 . given why warnings as to Miranda were not right stop question need not be warned of prior third sustained on statement were ing, option questions to answer some but grounds, relevance the officers indicated questions may pro not others or that some rights of those concern over the invocation Ouk, incriminating responses); duce v. State was anot factor. 180, (Minn. 1994) (no 516 N.W.2d 185 re quirement juvenile possibil required. be advised of 22. No additional admonitions are See, Lares-Valdez, adult). e.g., ity being v. tried as United States 939

407 voluntary disputes but court resolves testimonial as to given a suspect who has facts, ordinarily appellate should suf the historical and the court statement unwarned determines, preclud independently the conditions on the basis of fice to remove statement.” of the earlier findings clearly ed admission all factual that are not Elstad, 314, 105 S.Ct. 1285. erroneous, 470 U.S. whether or not the confession continued, stating that Anderson, “[i]n The Court voluntary. v. State 396 circumstances, may fact the finder of (Minn.1986) such 564, (citing N.W.2d 565 Miller suspect that the made reasonably conclude Fenton, 445, v. 474 106 U.S. S.Ct. 88 whether to intelligent a rational and choice Linder, (1985); v. L.Ed.2d State ad rights.” Id. The waive or invoke his (Minn.1978); State, N.W.2d 734 Doan v. subsequent missibility of the second (1975)). 306 Minn. 234 N.W.2d 824 to by reviewing the statement is decided Here, considering totality finder tality “[T]he of the circumstances: on the facts as found circumstances cir surrounding examine the of fact must court, view, my district state police course of cumstances and the entire voluntary. Bailey ments were was 29 suspect respect to the conduct with years significant prior experi old. He had voluntariness of his state evaluating the justice in system, ence with the criminal suspect that a chooses to ments. The fact cluding warnings Miranda and waivers of is, rights of his speak being after informed rights in connection with offenses those course, Id. at highly probative.” dating early back to the 1970’s. He had rule. 1285. We follow the Elstad 105 S.Ct. recently prison been released from and he (Minn. Scott, 412, 419 v. 584 N.W.2d State police informed the that he was familiar Moorman, 1998); 505 N.W.2d State v. law, having with the had access to the (Minn.1993). 593, 600 prison library. law The administration of of a statement de- The voluntariness warning the third the Miranda before totality of the circumstances. pends on the Al complete. statement was careful and Patricelli, 89, 92 State v. subject though custody, (Minn.1984); Jungbauer, v. State and was al physical deprivations (Minn.1984). Relevant during his state cigarettes lowed to smoke “age, matu- factors include the defendant’s police ments at the station. entire rity, intelligence, experi- education and transaction, from the detention on the ence,” ability to as well as the defendant’s third at street to the end of the statement 348 N.W.2d at comprehend. Jungbauer, station, lasted about police the Linder, (citing v. 268 N.W.2d 346 State addition, “given In hour and a half. (Minn.1978)). 734, The nature of 735-36 confess, in fact it cannot [Bailey] did not relevant, interrogation including is also the will was overborne [his] said circumstances, surrounding length its Mills, v. 562 [police] questioning.” State whether the defendant was denied (Minn.1997) 276, (citing Pil N.W.2d 284 Id. A physical needs or access to friends. (“That cher, he adhered 472 N.W.2d at 334 if involuntary police statement actions shows that tapestry to this woven of lies coercive, and over- manipulative were so overborne.”)). “ Pilchers will was not ‘deprive[ suspect] as to powering ] [a Elstad, distinguishes not- majority ability to make an unconstrained and his Elstad, suspect that unlike the ing wholly speak as he autonomous decision ” coercive Ritt, 802, apprehended under did.’ v. 809 State (Minn.1999) Pilcher, deliberately co- 472 circumstances. [A]bsent v. (quoting State (Minn.1991)). obtaining 327, improper tactics The trial ercive or 334 408 Elstad, statement, analysis rejected by that a 470 the mere fact also U.S.

the initial at 105 S.Ct. 1285.23 an unwarned admission suspect has made presumption of com- does not warrant findings Inasmuch as the district courts Elstad, at pulsion. U.S. to the voluntariness of both the related Baileys The circumstances оf S.Ct. 1285. and warned statements are not unwarned cause for a homicide probable arrest on erroneous, clearly considering the totali- status and only established his custodial circumstances, ty of the unwarned and fur- warning; need for a Miranda voluntary. warned statements were thermore, ques- of the initial the location words of the court that ruled on the same necessary tioning did not rise to the level original in connection with the indict- issue Baileys nullify the voluntariness fiction to ment would be sheer [i]t Doe, States v. statements. United Cf. warning Before the conclude otherwise. (7th Cir.1998) (Mi- 149 F.3d rights, [Bailey] of his said the check was voluntary randa waiver and confession yard car. for work on the victims despite being questioned while defendant warning rights, rights After the of his car). Here, in police handcuffed the dis- knew, he he said the check was for which police trict court found that did not yard work on the victims and car. His deliberately improper coercive or tac- use voluntary. explanation was The decision Baileys obtaining tics in statements. post- district court admit the Miranda statement should be affirmed. majority’s reliance on the As for the DNA: Bunsen Burner similarity of the warned and unwarned bearing admissibility statements as Bailey argues that the DNA test results statement, warned it seems to me should have excluded because the been very analysis that kind of comes close to state failed to establish that the BCA fol- cat-out-of-the-bag taint or embracing the proper protocols removing lowed Elstad, 470 analysis rejected by U.S. slip forensic-sample cover from the slide. Scott, 303-04, 1285; see also 105 S.Ct. following The evidence in- visual that the tradi- (recognizing N.W.2d at 419 slide, spection vaginal smear analysis apply tional taint does not to Mi- analyst biological BCA determined that violations). Finally, regarding the randa material was adhered to slide. The majority’s absence of a reliance analyst slip by then removed the cover significant pause betweеn unwarned using a Bunsen burner to heat the bottom statements, seconds, too comes warned of the slide for approximately 30 mounting close to the break-in-the-stream-of-events when the media had softened to bright-line only The assertion that a deliberate failure to rule which focuses on volun- 23. tariness”). give warnings sup question Miranda can mandate the The as to whether the pression post-warning despite abrogated by of a confession rule of Elstad is the initial inten statements, though give warnings the tional Miranda is one voluntariness of both failure Carter, supported by currently pending Supreme United States v. 884 F.2d that is before the 368, Seibert, (8th Cir.1989), rejected 372-74 has been Court. See Missouri v. 93 S.W.3d 700, (Mo.2002) (Elstad "facially Oregon apply with v. El 706-08 does not inconsistent” stad, 298, 1285, S.Ct. 84 to the of a Miranda 470 U.S. 105 intentional omission (1985). Esqui warning undermining ability L.Ed.2d 222 United Stales v. aimed at the lin, 315, Cir.2000); (1st knowingly voluntarily 208 F.3d see also exercise constitu 320 Orso, 1030, rights), granted, — U.S. —, cert. 123 United States v. 266 F.3d 1038 tional 19, 2003). (9th Cir.2001) ("we (May S.Ct. 155 L.Ed.2d 1059 read Elstad to create a

409 just begun liquefy agreed mounting that it who point affixing the had media a slip cover analyst The to a slide would melt at the slip and the cover loosened. same temperature of regardless whether the biological the material off the swabbed heat boiling came from water or a Bunsen it for DNA extraction. prepared slide and flame; agreed burner they that environ- the analyst The then extracted DNA from degrade mental insults destroy could or a it with the sample the and tested Profiler sample; they agreed that while heat obtained Plus kit. Results were for five of could degrade point DNA to the that no tested, amelogenin nine loci the plus obtained, profile could could not alter (the gender gene).24 profile. The court also considered the for protocols removing The BCA had likelihood sample had been de- slides, samples including forensic from graded other than reasons heat from freezing slip cover off a prying a slide burner; the Bunsen the victim had been soaking Xylene for several the slide dead for days sample three before the was hours; proto- but none of the documented collected; sample was over years 16 cols involved heat with Bunsen burner. old; and of storage the conditions were usage glass of Given the common slides unknown. The court concluded that slips, cover district court found it with evidence the reliability established of the “regrettable” “troubling” and even that no DNA test interpretable results at the five study” “validation been had done for the loci; and the court further concluded that use of a Bunsen flame to burner remove the fact interpretable the results were not slip glass cover from a slide. at the remaining loci was issue that Nevertheless, court allowed the went to weight evidence and not DNA evidence. The court considered that to its The admissibility.25 court revisited scientific studies documented the use of evidentiary the DNA ruling well before boiling slip water to a cover remove from a trial and determined the state had slide. considered glass The court testimo- that the demonstrated method of extrac- ny experts scientifically from for the state and defense tion was valid.26 yielded possibility RFU all 24. Five the loci levels over nine loci were examined for the interpretable. excluding heights Bailey. 150 and were considered The Bai all peak ley’s sample known at all nine matched five loci loci indicated exclusion was not plus amelogenin. possible. The random match probability population in the four databases Although predating testing pro maintained were: one the BCA in 15 mil current standards, Hispanic population; lion in the one in 19 cesses and match of nine loci Bloom, population; million in the Native American was admitted in State v. into evidence (Minn. 1994). population one in 23 million in the Caucasian 516 N.W.2d n. 2 Perez, (Minn. and one in in the State v. 210 million African-Ameri 1994), population. can DNA most conservative calcu admissible after a probability suggested lation for the of exclusion search of a for this sex offender database profile percent DNA is 99.9999784 that defendant at six loci. matched Alt, (Minn. population. world While loci with re In State v. incorporated App.), granted sults above 150 RFUs were into limited rev. and remanded for trial, (Minn. 1993), profile, reported Sept.21, the BCA’s BCA scien 505 N.W.2d 72 expert testimony tists used below the 150 a match of four loci information RFU admitted, person noting proce threshold to exclude a from a DNA that in 1993 standard though match even same dure three to five loci. these results would was to test not be allowed to show an affirmative match potential hearing, sample expert between a 26. At the the donor un omnibus for the case, present -laboratory, der the BCA's In the defense said that if were his he standards. it yielded while not all would Bunsen nine loci RFUs over like to see the burner method 410 jury evidence not Investigation’s given by Bureau of the the the

The Federal admissibility analysis degrad- of the of the for Forensic Quality Assurance Standards Rulings evidentiary DNA. ed matters require labora- Testing Laboratories DNA the of the rest within sound discretion trial the procedures have “to ensure tories to court, and we will not reverse such eviden- (Stan- physical evidence.” integrity of the rulings of tiary absent a clear abuse dis- 7.1). that Accordingly, dard laboratories Chomnarith, State v. cretion. N.W.2d testing must fol- engage in forensic (Minn.2003). 660, 665 I the believe admis- minimize procedures that low “documented of the DNA sion evidence was well within loss, contamination, deleterious and/or discretion; given court’s the district 7.1.3). (Standard evidence.” change of that a validation study along constructed require FBI laborato- The Standards also suggested by expert the for lines the the proce- validated methods and ries to “use accomplished defense has been and was analyses” for forensic casework dures trial, presented point I see little (Standard 8.1), “[developmental including remanding litigation. this for further issue (Standard 8.1.1). , FBI validation.” The fol- DNA Due Process require also laboratories to Standards analytical includ- procedures, low written Meyer The dissent of Justice for ing procedure “a differential extraction that concludes admission of the DNA evi potentially stains that contain semen.” Bailey’s process rights dence violated due (Standard 9.1.3). he was given because not access to the genetic primer sequences in the Profi- case, me that in the It seems to process kits. Due concerns are ler/Cofiler from removing slip cover method “ ‘when implicated upon data relied had ensur- glass slide more to do with laboratory in performing are tests not ing integrity physical evidence opposing party available to the for review rather methods that was tested than the ” Traylor, and cross examination.’ State v. employed for the forensic procedures (2003) (quoting State analysis require that kind of validation (Minn. Schwartz, v. necessary reliability to assure of the 1989)). In rejecting the same claim in analysis. Certainly, proce- of that results Traylor, we noted that did the BCA handling physical for dures primer sequences per have the when it that need to “validated” to assure such analysis using formed DNA the kits evidence; procedures not harm but do case: I appropriately the district court believe degradation Instead, that the of the evi- through concluded the use of its own test- kits, weight ing an issue of or value to be dence was the BCA validated that removing slip holding a cover a slide validat- to 90 seconds of in the from the slide flame degrade point used; DNA to the as which less ed before it was and he also said that profile than a full DNA could be obtained. At “fairly easy” accomplish would be reconsider, Bailey’s motion to the state's ex- study experiments, as” with "as few ten pert informed court that the validation twenty. “perhaps” Following the court's ini- study, position which confirmed the state's ruling, the a vali- tial DNA BCA сonducted valid, the extraction method was had study burner dation Bunsen completed summary of the been and a find- collection method reinforced the court's being ings prepared. The court ordered initial determination foundational reliabili- study protective be covered ty. study experiments, the involved 18 order and made to the defense ex- available perts. which indicated it took from 60 results of Tray- produce testing the kits reliable results. available its data and results. See Schwartz, 427; lor likewise could have obtained the kits at N.W.2d State v. Jobe, type (Minn.1992). the same of vali- performed and testing laboratory. dation BCA reliability To the extent the of the Profi- Moreover, Traylor perused could have dispute here, test kits is in as in ler/Cofiler publicly number of available vali- Traylor, Bailey data, had access to the performed dation studies that have been methodology and actual results of the inception. on these kits since their With DNA tests and the fact that the sample procedures DAB and standards longer was no independent available for him, guide Traylor ques- could have also testing did not violate process his due tioned the BCA technicians about the rights. followed,

procedures methodology and studies, Anderson, A., J., their validation and their inter- Russell concurred in pretation Traylor part of the did not and part results. dissented in and an issued Gilbert, J., in primer sequences opinion joined, Blatz, need the or unlimited which C.J., joined part, Anderson, access to Perkin-Elmer’s validation in and Paul H., J., Finally, impor- joined J., to do so. and in part. Meyer, studies tantly, portion part there was of the concurred in and in part, dissented Hanson, sample Traylor opinion J., at issue available for and issued an in which tests, joined J., perform opportunity Page, joined his own in part. Traylor pursue. did not GILBERT, Justice in (concurring part (foot- Traylor, 656 899-900 dissenting part). in omitted). note join I in the concurrence and dissent of ' Meyer The dissent of distin- Justice Justicе Russell A. Anderson. guishes Traylor factually, concluding that process due violated here where the BLATZ, Chief in (concurring Justice sample degraded was so small and that it part in dissenting part). yielded only partial profile, with inter- join I in the DNA sections of the concur- pretable having results ‍​‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​‌‌​​​​‌‌‌​‌​​​​​​‌‌​​​‌‌‌‌​‍been obtained at rence and dissent of A. Justice Russell loci, only five of the nine and where Anderson. had neither notice as to the consummation sample through testing the entire nor (concur- ANDERSON, Justice Paul A. a portion sample. access to of the But the in ring part dissenting part). Traylor issue in involved access to the join I in the Post-Miranda Statement which, turn, primer sequences was rele- and the DNA: Due Process sections of the vant to the reliability of the Profi- concurrence and dissent of Justice Russell parties test kits. Neither the ler/Cofiler A. Anderson. nor thought pertinent this court it to ex- quality amine the and size of the DNA MEYER, (concurring part, Justice sample in that case as related to the dissenting in part). primer sequences and validation studies on True, those kits. we noted that a I portion majority concur with the on all issues except process concerning forensic was available for the due issue issue, independent testing Traylor, but that the DNA evidence. On that I would had more to do with the conclude that the admission evidence of Schwartz/Jobe obligation laboratory incomplete of the BCA to make DNA results from the state’s process performed violated due have the kits and testing obtained PCR-STR provide type testing not de- the same of validation as the state does the where (1) Moreover, primer laboratory. Traylor se- the genetic with the BCA fendant pub- could of proprietary testing perused used in the have number quences (2)Mts, licly portion sample a of the DNA for available validation studies (3) performed or notice that the have on these kits since independent testing, been testing an their DAB stan- sample incеption. will be exhausted in and With the him, testing procedures guide to the state’s dards and to opportunity observe Traylor have also the questioned could procedure. procedures BCA about technicians the our considering scope pro- In of due followed, methodology their vali- important in it is to ruling Traylor, cess studies, interpretation dation their Traylor sample that in the DNA recognize Traylor of the not need the results. did old; there no was less than six weeks were or to primer sequences unlimited access degraded by age, that it claims had been to do Perkin-Elmer’s validation studies procedures; storage handling conditions Finally, so. was importantly, there sample the DNA was of sufficient size and portion a DNA sample of the at issue by testing condition as to allow both the Traylor to perform available for his own kits, providing Profiler and the in- Cofiler tests, opportunity Traylor an did not terpretable by at all 13 loci tested results pursue. Accordingly, we conclude that kits; combination those two of the district court did not abuse its dis- sample DNA also of sufficient size to was ruling Traylor’s pro- cretion in due his provide portion Traylor experts a to so cess a fair trial right to was not violated. testing, could conduct their own to both Id. at 899-900. verify the work the BCA lab and to of verify reliability of the Profiler and process analysis Traylor Our due was kits; sample DNA had not Cofiler crucially Traylor founded on the facts that subjected application been to the of heat had amount “the same of information but had been extracted from swab prosecution” about the performed tests v. process: Traylor, chemical See State and, there of “importantly, portion (Minn.2003). Under at DNA issue available facts, we these concluded there had Traylor tests, perform op- his own process, no due even been violation of not portunity Traylor pursue.” did Id. though Traylor provided not with apply These statements do nоt kits, in the genetic primer sequences two Bailey’s age case. The evidence about the stating: sample, and condition of the DNA the lack agree

We with the district court. Due the state testing by notice process requires sample, that the have use of a destroyed defense and the yet technique the same amount of information as the Bunsen burner validated slide, test prosecution slip on a scientific so that to remove the cover from the lab adequately unavailability the defense able cross- when added to the of the experts. the prosecution’s genetic sequences examine the Profiler primer case, kit, process did not argument this BCA have Perkin- make due or the primer considerably Traylor’s. Elmer’s validation studies more than pressing performed when it anal- The sequences process due concerns raised Instead, using ysis through proprietary the kits. use kits PCR-STR test- kits, testing ing disappear the use of its own did not after our decision produce Traylor. the kits BCA validated that reli- Our decision that case process results. that due is satisfied Traylor able likewise could establishes a the same infor- given defendant is where possesses and an

mation that the BCA In re Petition for DISCIPLINARY AC his or her perform to own opportunity PEREZ, Jr., TION a AGAINST Alfred id. given sample. on a See tests Attorney, Registration Minnesota No. that admission of I conclude 181353. Bailey’s right to DNA violated process was not al- due because No. A03-1327. genetic primer to examine the se- lowed Supreme of Court Minnesota. kit that quences applied the Profiler was state; by sample DNA used was so April profile that a could degraded partial tested; obtained from 6 of the 10 loci be ORDER sample enough was not to allow large 4, 2003, On November this Court ap- kit; testing by of additional a Cofiler loci pointed a referee to conduct a hearing on sample by the destroyed state’s petition disciplinary action filed testing part so no available for inde- Lawyers Director of the Office Profes- Bailey’s testing by experts; pendent sional Responsibility against respondent given was not of the destruc- notice Perez, Alfred Jr. testing or an to opportunity tive have an testing procedures. expert observe the 23, 2004, On March the referee filed his that, Accordingly, I hold on would Fact, Findings of Conclusions Law us, before record evidence is Discipline. Recommendation for The ref- holding inadmissible. Such a would not respondent eree engaged found that attempting foreclose the state from professional misconduct and recommended overcome some these deficiencies for respondent that be disbarred. purposes of a new trial. The Lawyers Director of the Office of PAGE, (concurring in part, Justice dis- Responsibility requested Professional has senting part). respondent on placed be interim sus- join in pension I the concurrence dissent of pending a final determination of Meyer, except the extent that it Justice the discipline proceedings under Rule to give Bailey relies on the state’s failure 16(e), Lawyers Re- Rules Professional regarding notice exhaustion 16(e) (RLPR). sponsibility provides Rule opportunity the testing to observe upon of disbarment recommendation procedure right to conclude referee, lawyer’s authority “the process to due was violated. On the facts practice suspended pending law shall be I presented, do not believe those fail- disciplinary pro- final determination of process in a ures resulted due violation. ceeding, unless the referee directs other- wise or the Court orders otherwise.” HANSON, (concurring in part, Justice that respon- referee recommended dissenting in part). suspended dent at this time. agree We join in I the concurrence and dissent of 16(e), under suspension interim Rule Meyer. Justice RLPR, appropriate pending the final determination in this matter. files, Based all records and upon herein, proceedings

Case Details

Case Name: State v. Bailey

Court Name: Supreme Court of Minnesota

Date Published: Mar 18, 2004

Citation: 677 N.W.2d 380

Docket Number: C4-02-835

Court Abbreviation: Minn.