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State v. Bailey

March 18, 2004


Hennepin County


1. Where a suspect is apprehended under coercive circumstances, is subjected to lengthy custodial interrogation before being given a Miranda warning, there is no significant pause in the interrogation after the Miranda warning is given, and the suspect essentially repeats the same inculpatory statements after the warning as before, the statements made after the Miranda warning are inadmissible.

2. Testimony describing inculpatory physical evidence that was destroyed or released by the state prior to trial is admissible where the destruction or release was inadvertent and not for the purpose of avoiding production of evidence that might be beneficial to the defense.

3. With respect to DNA evidence:

a. The district court did not abuse its discretion in determining that the state established a chain of custody for the DNA sample.

b. The district court did not abuse its discretion in ruling that the cross-examination of the state's DNA expert opened the door to some interpretative testimony about test results that, under the laboratory's protocol, were not considered sufficiently reliable to be interpretable.

c. The district court did not abuse its discretion in ruling that the testimony of the state's DNA expert on probability statistics calculated by use of the product rule was admissible.

d. A prosecutor has no duty under Minn. R. Crim. P. 9.01, subd. 1(4), to provide notice of destructive scientific tests to suspects who are not currently the subject of a charge.

e. In the new trial, the district court must conduct a hearing under the second prong of the Frye-Mack standard for scientific evidence to determine fact issues concerning whether the application of Bunsen burner heat to a laboratory slide containing a DNA sample is a violation of the DNA Advisory Board standards and controls, and whether such a procedure is scientifically reliable.

f. The admission in evidence of incomplete DNA results from the state's Polymerase Chain Reaction and Short Tandem Repeats (PCR-STR) testing did not violate due process.

4. The district court did not abuse its discretion in admitting as Spreigl evidence the defendant's guilty plea to three subsequent home burglaries that had factual similarities to the charged offense.

5. Instances of prosecutorial misconduct occurred during the trial and must be avoided in a new trial.

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

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

Anderson, Russell A., J., concurred in part and dissented in part and issued an opinion in which Gilbert, J., joined, Blatz, C.J., joined in part, and Anderson, Paul H., J., joined in part.

Meyer, J., concurred in part and dissented in part, and issued an opinion in which Hanson, J., joined and Page, J., joined in part.


Appellant Billy Daymond Bailey was convicted of first-degree murder while committing criminal sexual conduct in connection with the May 1984 death of a 69-year-old neighborhood resident, Agnes Fafrowicz. On appeal to this court, he makes ten claims of error. Because prejudicial statements made by Bailey to police were erroneously admitted in evidence in violation of Miranda v. Arizona, 384 U.S. 436 (1966), we reverse and remand to the district court for a new trial. To provide guidance for the new trial, we also address the other evidentiary issues that are likely to recur.

A. The Initial Investigation

On Sunday, May 20, 1984, Virginia Golden entered the house of her mother, Agnes Fafrowicz, and discovered her mother's body on the living room floor. When police arrived, they found evidence that Fafrowicz had been robbed and sexually assaulted by someone who broke into her home. Investigators concluded that the crime had occurred on Wednesday, May 16. They took fluid samples from Fafrowicz's mouth, vagina and anus. Lab tests detected sperm in the vaginal sample.

On May 22, police learned that two checks "had come into the bank on Ms. Fafrowicz' account." When Detectives Ronald Snobeck and Robert Nelson acquired the checks, they saw that one of them, dated May 17, 1984, was made out to "Bill Vollmar-Bailey" for the sum of $230.00. The back of that check indicated that it had been cashed by Gopher Liquor, a store next to Bailey's apartment building.

B. The 1984 Interrogations and Indictment

While they were at Gopher Liquor questioning the store's owner, Detectives Snobeck and Nelson spotted Bailey walking across the adjacent parking lot and entering his apartment building. According to Detective Snobeck, when they saw him re-emerge and begin walking toward the corner, the detectives returned to their car and drove close to Bailey, cutting off his path. The detectives exited the car, shouted to Bailey to stop and put his hands up, and approached him, one of them with his gun drawn and the other with his hand on his gun. They identified themselves as police, put Bailey against their car for a pat-down weapons search, handcuffed his hands behind his back and put him in the backseat of the car. The detectives interrogated Bailey in the car without providing any Miranda warning and then told him they would take him to the station.

At the station, the same two detectives continued to interrogate Bailey without providing any Miranda warning. Midway through the station interrogation, they read Bailey his Miranda rights.*fn1

When the detectives testified at the hearing conducted on Bailey's motion to suppress both the warned and unwarned statements, neither of them provided any explanation of why they did not give a Miranda warning in the car or on arrival at the station. According to Detective Nelson, Bailey told the detectives in the car that Fafrowicz made out the check to him on May 18 for work that he had done on her lawn and the brakes of her car on the previous day. After they brought Bailey to the police station but before he was informed of his Miranda rights, he elaborated: he claimed that he had done "a brake job" on Fafrowicz's car on May 17, cut her grass on May 14, and at some point "cleaned up her battery posts on her car" and "cleaned the engine compartment up."

As the detectives realized, Bailey's story was riddled with doubtful assertions. Bailey claimed that Fafrowicz had written him the check on May 18, whereas there was considerable evidence that Fafrowicz had died on May 16. The detectives noticed several inaccuracies in Bailey's description of Fafrowicz's car and lawn mower, and they believed his claims to have cut her grass and cleaned her car battery to be demonstrably false.

The "culmination" of the police-station interrogation, according to the detectives, came when Bailey misidentified the side of Fafrowicz's car on which the battery was located. At this point, the detectives told Bailey that he was under arrest for murder, and Detective Nelson gave Bailey the standard Miranda warning.*fn2 He agreed to waive his Miranda rights. The interrogation continued immediately, with no significant pause. Bailey largely recounted his story but added the further detail that he had arranged to paint Fafrowicz's house. Challenged by the officers to explain how Fafrowicz could write him a check on May 18, when she was already dead, Bailey responded, "That's a good question."

Bailey was charged under Minn. Stat. § 609.185(2) (1982)*fn3 with first-degree murder while committing criminal sexual conduct. He was indicted on June 6, 1984. About 6 months later, the state dismissed the indictment under Minn. R. Crim. P. 30.01, stating:

[S]ince the Grand Jury indictment, all of the physical evidence has been processed by the Bureau of Criminal Apprehension laboratory. The results of that examination tend to negate some of the evidence upon which the Grand Jury indicted this defendant. This recently obtained evidence makes it highly unlikely that this case could be proved beyond a reasonable doubt.

The state took no further action on the case for several years.

C. The 1992 Destruction of Evidence

In February 1992, police lieutenant Brad Johnson, then head of the homicide division of the Minneapolis Police Department, authorized the destruction and release of several pieces of physical evidence relating to Fafrowicz's murder. Photographs and photocopies of some of the destroyed and released evidence (such as the $230 check) were retained. The district court later allowed trial witnesses to describe the destroyed evidence, and the court allowed the defense to attack the reliability of that testimony based on the fact that the underlying evidence had been destroyed.

D. The 2000 DNA Tests and Trial

When the case was reopened in 2000, investigators procured from the Medical Examiner's Office two slides that reportedly contained the vaginal and oral samples taken from Fafrowicz's body during the autopsy. Both slides were protected by cover slips that were adhered by a mounting medium. Bureau of Criminal Apprehension (BCA) scientist Catherine Knutson recognized that the tests she intended to perform on the DNA samples would exhaust those samples. She advised the prosecutor of this fact by letter approximately six weeks before the tests were performed, citing Minn. R. Crim. P. 9.01, subd. 1(4), and stating in part:

This case is identified as a homicide case involving Bill Daymond Bailey and Agnes Mary Fafrowicz * * *. Please be advised that this testing 'may preclude any further tests or experiments' within the meaning of the amendment to Minnesota Rules of Criminal Procedure 9.01, subdivision 1(4), January 1, 1990. For example, it may affect the evidence in our possession in the following manner: all of the evidence will be consumed in the analysis regarding the oral slides (Item 41) and vaginal slides (Item 42), both said to have been collected from Agnes Mary Fafrowicz.

The decision whether to disclose this information to any other party is your responsibility as the prosecuting attorney.

The prosecutor did not notify Bailey or his previously appointed attorney before Knutson performed the tests.

In October 2000, using a Profiler Plus kit, Knutson tested the samples against a blood sample taken from Bailey during the 1984 investigation. To gain access to the sample on the slides, Knutson applied heat to the slides with a Bunsen burner until the mounting medium began to boil. Bailey claims that this process was in violation of approved laboratory protocols and had not been the subject of any validation studies by the BCA. The vaginal sample yielded interpretable DNA results at six of the ten tested loci, including the amelogenin (the sex gene). The resulting profile matched the DNA from Bailey's blood sample. The Profiler Plus test exhausted the DNA sample. As a result, the BCA was not able to also test the sample with the Cofiler kit, which typically examines an additional three loci, and no sample was available for independent testing by Bailey.

With this new evidence, police once again charged Bailey with first-degree murder while committing criminal sexual conduct. A grand jury indicted him in December 2000. At that time, Bailey was serving time in federal prison in Oklahoma for unrelated offenses.

At trial, over Bailey's objections, the district court allowed the state to present (1) evidence regarding Bailey's inculpatory statements made after the Miranda warning; (2) witness testimony describing and drawing conclusions from the destroyed or released physical evidence; (3) testimony from Knutson and other state experts providing the results of the DNA testing; and (4) evidence of three subsequent burglaries committed by Bailey. On February 28, 2002, the jury found Bailey guilty of first-degree murder. He was sentenced to a consecutive term of life imprisonment.*fn4

E. Issues on Appeal

On appeal to this court, Bailey makes ten claims of error, six of them concerning the DNA evidence that was introduced against him. First, he argues that the district court improperly admitted his inculpatory statements made during police interrogation after he was given the Miranda warning. Second, he complains that the court improperly allowed the prosecution to solicit testimony regarding the evidence that the state destroyed and released in 1992. Third, he argues that the court improperly admitted the results of DNA tests because (1) the chain of custody for the sample was unsubstantiated; (2) the state solicited inadmissible testimony purporting to interpret the results of DNA testing at the other four loci even though those results did not reach the BCA's normal threshold for interpretation; (3) the state's expert impermissibly used the "product rule" in calculating probability statistics; (4) the state violated Minn. R. Crim. P. 9.01, subd. 1(4), by failing to notify Bailey before state experts conducted a test that used up the DNA sample; (5) the use of Bunsen burner heat to remove the cover slip and take the DNA sample from its slide was not a "validated technique" and violated laboratory standards; and (6) the PCR-STR method for testing DNA, as applied in this case, is unreliable and violates due process. Next, he argues that prior-crimes evidence was improperly admitted. Finally, he argues that the prosecutor engaged in courtroom misconduct that deprived Bailey of a fair trial.


The parties agree that the statements Bailey made to police prior to being informed of his Miranda rights were inadmissible. The district court held that the statements Bailey made to police after receiving the Miranda warning were voluntary and admissible under the United States Supreme Court's decision in Oregon v. Elstad, 470 U.S. 298 (1985).

In Elstad, the Court concluded that the traditional "taint" analysis does not apply to Miranda violations, stating that

[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Elstad, 470 U.S. at 309 (emphasis added). Elstad did note, however, that the failure to give a Miranda warning does create "a presumption of compulsion." Id. at 307.

The rationale of Elstad may have been weakened somewhat by subsequent decisions. The rejection in Elstad of a taint analysis was based in part on the conclusion that a Miranda warning is not constitutionally required. Id. at 306-07. But the Court later ruled that a Miranda warning does have constitutional stature. Dickerson v. United States, 530 U.S. 428, 438 (2000). The Court has not considered the impact of Dickerson on the Elstad rule.*fn5 In the absence of a definitive ruling to the contrary, we will continue to follow the Elstad rule in comparable circumstances.*fn6 We note that Elstad limited its ruling to its own peculiar facts, stating "the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." 470 U.S. at 309. Throughout the Elstad opinion, the Court emphasized that "these circumstances" involved a "voluntary but unwarned admission from the defendant" (470 U.S. at 303); given in a situation where the officers failed to give a Miranda warning because of an error in determining that the interrogation was "custodial"; and the unwarned statement was "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will." 470 U.S. at 309. Indeed, the Court recognized that in different circumstances, "[w]hen a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession." 470 U.S. at 310 (citations omitted).

The district court's order denying Bailey's motion to suppress his Mirandized statement concluded: "The totality of the circumstances reveal that Defendant was not coerced, was properly Mirandized, and freely, knowingly, and voluntarily waived his rights. Defendant's third statement is therefore admissible." This conclusion combines elements of fact and law and must be viewed in the light of the purposes of the Miranda rule and caselaw applying Miranda under similar facts.

In that context, Bailey argues that Elstad is factually distinguishable and that this case is controlled by the Eighth Circuit decision in United States v. Carter, 884 F.2d 368, 373-74 (8th Cir. 1989). The state argues that Elstad does apply and further relies upon our interpretation of Elstad in State v. Scott, 584 N.W.2d 412, 419-20 (Minn. 1998).

Bailey distinguishes Elstad because (a) the circumstances of Bailey's interrogation were more coercive; (b) Elstad's non-Mirandized statement was brief, only indicating his presence at the crime scene; and (c) Elstad's Mirandized statements occurred after a significant pause in the interrogation.

Bailey argues that Carter is more analogous. Carter was interviewed for 55 minutes without a Miranda warning. Carter, 884 F.2d at 369. After he made some incriminating statements, he was given a Miranda warning, was further interviewed, signed a waiver form and wrote a handwritten confession. Id. The Eighth Circuit held that the warned confession was inadmissible, distinguishing Elstad as follows:

In this case, there was no passage of time to speak of between the unwarned confession and the subsequent warnings and confession, all of which occurred as part and parcel of a continuous process. Thus, the second confession came almost directly on the heels of the first. Although Elstad precludes the formulation of a "rigid rule" in determining the admissibility of the second confession, our review of "the surrounding circumstances and the entire course of police conduct with respect to the suspect," convinces us that the second confession cannot be allowed into evidence.

Carter, 884 F.2d at 373 (citations and footnote omitted).*fn7

We read Carter as applying a bright-line rule to these circumstances, which avoids the need to determine case-by-case the issue of voluntariness. The court emphasized the ease and clarity of the application of Miranda and said:

If the police are permitted * * * to ignore Miranda until after they obtain a confession, the courts will once again be embroiled in the endless case-by-case voluntariness inquiries Miranda was designed to prevent, and the case-of-application rationale enunciated by the Supreme Court will be largely nullified.

Id. at 374.

The state argues that this case is controlled instead by Scott. Police took Scott into custody at gunpoint, handcuffed him and took him to the police station. Scott, 584 N.W.2d at 419. Police then interrogated Scott for three hours, with video- and audiotapes made of the entire interrogation. Id. at 415. Although police did not give Scott a Miranda warning until 15 minutes into the interrogation, Scott did not make any incriminating statements prior to the warning. Id. After the warning, Scott confessed to committing two drive-by shootings. Id. We held that the two confessions were admissible under Elstad. Scott, 584 N.W.2d at 419-20.

We agree with Bailey that Elstad is distinguishable. Elstad involved the situation where the unwarned statement was "clearly voluntary" because of the absence of any coercive circumstances. Elstad, 470 U.S. at 310-11. In fact, Elstad focused on the circumstances where it was not clear that police questioning involved the custodial interrogation necessary to trigger a Miranda warning. The Court supported its conclusion with this rationale:

Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into 'custody' or his freedom has otherwise been significantly restrained. Unfortunately, the task of defining "custody" is a slippery one, and 'policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.' If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective ...

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