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State v. Miller

August 7, 2003



The district court did not abuse its discretion by admitting DNA population frequency statistics.

The district court did not abuse its discretion by admitting evidence that appellant kept a list of sexual partners, which included references to prostitutes, and a sex toy found in appellant's residence.

Appellant's ineffective assistance of counsel claim is without merit.


The opinion of the court was delivered by: Gilbert, Justice.

Concurring in part, dissenting in part, Page, Meyer, JJ.

Heard, considered, and decided by the court en banc.


Appellant Marcus Keith Miller was charged by indictment in Hennepin County for first-degree murder, Minn. Stat. § 609.185(1) (2002), and second-degree murder, Minn. Stat. § 609.19, subd. 1(1) (2002), for the killing of Wendy Bozeman. A jury trial was held. The jury returned guilty verdicts on both charged counts. A sentencing hearing was held and appellant received the mandatory sentence for first-degree murder, life in prison. Appellant appeals the judgment of conviction on the following grounds: 1) the district court committed reversible error when it allowed the state to introduce DNA evidence developed through the use of PCR-STR process and random match probability statistics that were not shown to fall within this court's DNA exception to the rule against admission of quantitative, statistical probability evidence; and (2) the district court committed reversible error when it admitted testimony by police that appellant kept a list of sexual partners that included references to prostitutes, and a plastic female head used by appellant as a sex toy. We affirm.

At 5:20 in the afternoon on May 31, 2001, a woman walking her dog in Theodore Wirth Park discovered a severed human arm. She reported the discovery to park employees who then called 911. The area of the park where the arm was found was cordoned off and searched. The search eventually led to the discovery of another arm, two legs and a head. Subsequently, these remains were identified as those of Wendy Bozeman. A garbage can within the park was inspected and found to contain a plastic garbage bag. That garbage bag contained three other garbage bags, Allied parking lot ticket stubs, a City Pages newspaper, a Burger King french fry container, cigarette butts, blood and human tissue.

Ronald Rucker, the father of Wendy Bozeman's son, testified at trial to the following. His longtime relationship with Wendy ended and the two separated, but they remained in touch for the purpose of raising their 14-year-old son. In November of 2000, Bozeman had fallen on hard times and asked if their son could move in with Rucker. Rucker agreed, and hearing that Bozeman had no place to stay, allowed her to move into his home too. Thereafter, Bozeman lived with Rucker on and off between November and May. On May 30, 2001, Bozeman went to work at her job downtown. That evening, while their son was at a church activity, Rucker saw that Bozeman was in the bathroom and smelled the odor of cocaine coming from the bathroom. In the early morning hours of May 31, between 12:00 and 12:30 a.m., Bozeman said she "was going around the corner" and that she would be back. Rucker understood that to mean that she was going to a nearby drug house to get drugs. Bozeman left with only her keys and identification. She never returned.

The next day Rucker read in the newspaper that an African-American woman's body had been found in Theodore Wirth Park. Rucker called the police and local hospitals and was directed to the coroner's office. He called the coroner's office and provided a description of Bozeman. He was asked to come down to identify her remains. Rucker positively identified the remains of Bozeman from a photo of the remains taken by the coroner.

A surveillance camera in Theodore Wirth Park provided evidence implicating appellant. Police sergeant Erika Christensen testified as to what the video showed, and the video was introduced into evidence. At 3:28 p.m., the video shows a Geo Tracker or Suzuki Sidekick come up to the parking lot, slow down and then go through again. The vehicle returns 5 to 8 minutes later and the driver parks it in the north end of the parking lot. A man exits the vehicle and walks to a trash can approximately 20 feet from the parking spot and appears to place a trash bag into the trash can. The man returns to the vehicle, stands for a moment in front of the vehicle, walks to the back of the vehicle and stands there for another brief moment, and then gets in the vehicle and leaves. From a review of the video the police were also able to determine that the vehicle in the video was a 1992-1996 model Geo Tracker.

Prior to the arrival of the vehicle, the only other time the video shows someone near the trash can is at 12:54 p.m. At that time a park employee, riding on a motorized cart, stops in the area of the trash can, gets out and looks inside the trash can and then gets back onto the vehicle and drives away. A man testified that he was the park employee on the video and that although he had no particular recollection of checking that garbage can, if there had been trash in the can, he would have removed it.

Paul Melchert testified that while driving through the park in the afternoon of Mayá31, he saw a vehicle parked on the side of the road in a no-parking area and a man standing by the curb. The back tailgate of the vehicle was open and there was a garbage bag to the man's left. Melchert testified that his attention was drawn to the man because he believed the man was dumping trash in a city park. At the time, Melchert considered reporting the man to the park authorities for illegal dumping, but ultimately decided not to report the incident and left the park. Upon reading in Monday's newspaper that human remains had been found in the park, Melchert contacted the police.

Melchert testified that the vehicle was a turquoise car with a hatchback that hinged on the left side and had a black roof and purple and white decaling. He described the man he had seen as "a light-skinned African male with longer hair kind of in – I call them Jeri curls." He testified that the man was wearing a dark green jogging suit with a white patch on the front that came into a triangle. Melchert testified that he did not get a good enough look at the man to be able to identify him.

The investigating officers were able to track the Allied parking ticket stubs found in the trash can at the park back to a specific parking lot in downtown Minneapolis. The officers went to the lot and noticed a Geo Tracker matching the description of the one appearing in the surveillance video. The parking lot attendant told the officers that the driver of the Tracker worked at Augie's, a bar next to the parking lot. The officers ran the Tracker's license plate and discovered the vehicle was registered to appellant.

The officers returned to the parking lot later in the day and upon seeing that the Tracker was still in the lot, entered Augie's pretending to be license inspectors with the Minneapolis Police Department. Appellant informed the officers that his shift had ended at 8 p.m. on May 30 and he had not worked on May 31.

Appellant was placed under police surveillance. While under surveillance he drove to the Salvation Army and left a garbage bag at the front door. The police recovered the bag. The bag contained numerous empty beer and liquor bottles, women's jewelry and paper backing from self-adhesive floor tiles. The officers followed appellant back to his home where they could see through the window that he was "scrubbing or cleaning something."

Appellant did not testify at trial. The investigating officers provided the following testimony. Appellant, having heard that he was under investigation, on his own initiative, went to the Minneapolis police homicide office. There he met with the investigating officers, the same officers who had talked to him earlier at Augie's when posing as liquor license inspectors. Appellant spoke with investigators for 3 hours. Appellant denied knowing Bozeman. Appellant explained that he was employed as a disk jockey at Augie's in downtown Minneapolis and lived in an apartment that was part of a warehouse space. He was converting part of the warehouse space into a training facility for disk jockeys. Appellant told the officers that he had worked at Augie's on May 30 until 8áp.m., and that after work he spent the evening hours drinking at several bars in Minneapolis. Appellant said that he returned to Augie's at around 1:15 a.m. in order to give one of the club's dancers a ride home. Appellant told the officers that he drove home fast because he was drunk and that he arrived at his home between 2:00 and 2:30 a.m.

Appellant claimed that he was home alone in his residence from 2:00 or 2:30 a.m. until he woke up the next day around noon. Appellant told the officers that he had a severe hangover from the previous night and spent quite some time throwing up. He felt like he needed to get out of the house, so he went to a nearby store where he purchased an orange. He then drove to Theodore Wirth Park to eat the orange in order to alleviate the effects of the hangover. He claimed he ate the orange and threw the remainder of the orange in the trash and then left. He also said that he was wearing a green Michigan State shirt and gray sweatpants that day.

During the course of the interview, one of the officers left the room and was informed that appellant's fingerprints were found on one of the parking ticket stubs found in the trash can at the park. The officers then continued the interview, asking more direct questions about the murder of Wendy Bozeman. Appellant claimed that he picked up some garbage near the curb while at the park and threw it in the trash can. When confronted with the descriptions of the surveillance video and the statement by Melchert, appellant denied stopping in the area where the remains were discovered and stated that he merely slowed down because of the speed limit signs. Appellant explained that when he found the trash bag on the curb, he had cleaned out his vehicle. At the conclusion of the interview, appellant was arrested and taken to the Hennepin County Jail Intake.

Search warrants were then drawn up for appellant's residence and another address that was listed on appellant's driver's license. The Minnesota Bureau of Criminal Apprehension (BCA) began the search of appellant's residence at around 7 or 8 p.m. on June 7. When the officers entered they noticed a strong order of chlorine bleach, which seemed to be coming from the bathroom. In the doorway of the bathroom were a bucket and mop. An officer described the shower curtain as looking new. The bathroom walls were painted black. The officers also found a paint roller with black paint and several previously opened containers of black paint.

The officers seized a roll of black trash bags from the kitchen and these bags were found to be of the same general type as those found in the trash can at the park. In the sleeping area of the residence the police found a plastic female head with a mouth that opened and closed, described as a sex toy by the officer testifying at trial. The plastic female head sex toy was seized pursuant to a second search warrant, issued on June 8, 2001. This second warrant was issued after the officers had entered appellant's residence pursuant to the first search warrant. This second search warrant sought permission to seize items that the officers had seen while in appellant's residence when executing the first search warrant including "[s]exual toys or devices or ...

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