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State v. Blom

July 01, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
DONALD ALBIN BLOM, APPELLANT.



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

SYLLABUS BY THE COURT

District court did not abuse its discretion when it denied defendant's motions to change venue, continue the trial for one year, and sequester the jury.

District court took appropriate measures to prevent extra-judicial statements and did not violate Minnesota Rule of Criminal Procedure 26.03, subdivision 7, which requires courts, whenever appropriate, to caution trial participants not to make extra-judicial statements.

District court adequately managed defendant's trial when it actively monitored courtroom activity and properly addressed problems as they arose.

Spreigl evidence was properly admitted when identity was at issue, the defendant offered an alibi, the evidence was relevant and material, and the district court lowered the risk of prejudice by (1) withholding its decision on admitting the evidence until after the state presented all of its other evidence and (2) holding an evidentiary hearing on whether to admit the evidence.

Defendant's right to self-representation was not violated when the district court denied his request to represent himself when the self-representation request occurred 40 days into a 48-day trial and the request was ambiguous and made as an alternative to defendant's primary request for new counsel.

Defendant waived the argument that his statement was made involuntarily when he failed to assert this issue at his omnibus hearing concerning the admissibility of the statement. Regardless, even if defendant had preserved the issue, the district court did not abuse its discretion when it admitted the statement after finding that, under the totality of the circumstances, the defendant's statement was voluntary.

Defendant waived the evidentiary protection of Rule 410; therefore, district court did not err when it admitted defendant's statement in which he admitted kidnapping and killing the victim.

District court erred when it required the defendant to present clear and convincing evidence of an alleged alternative perpetrator's connection to the crime rather than requiring the defendant to establish an inherent tendency linking the alternative perpetrator to the crime; however, the error was harmless because there was no reasonable possibility that the jury would have rendered a different verdict if the proffered alternative-perpetrator evidence had been admitted.

Defendant was not denied his right to effective assistance of counsel.

The opinion of the court was delivered by: Anderson, Paul H., Justice.

Affirmed.

OPINION

On August 16, 2000, a Saint Louis County jury found Donald Albin Blom guilty of murdering Kathlyn "Katie" Poirier. Specifically, Blom was convicted for causing "the death of a human being with intent to effect the death of the person * * *, while committing or attempting to commit * * * kidnapping." Minn. Stat. § 609.185(a)(3) (2002). The district court sentenced Blom to life in prison, without the possibility of parole. On appeal, Blom raises several issues as to why his conviction should be overturned. He claims that the court erred when it (1) denied numerous motions to change venue, continue the trial, and sequester the jury; (2) failed to prevent extra-judicial statements about his case; (3) failed to control the courtroom; (4) denied his self-representation motion, (5) admitted Spreigl evidence; (6) admitted his statement to law enforcement authorities; and (7) excluded alternative-perpetrator evidence. He also claims that he was denied effective assistance of trial counsel. We affirm the conviction.

At about 11:38 on the evening of May 26, 1999, 19-year-old Kathlyn Poirier was abducted while working at DJ's Expressway, a convenience store located near Interstate 35 on the outskirts of Moose Lake, Minnesota. The abduction was recorded on the store's videotape surveillance system, but the poor resolution of the images on the video did not allow the police to determine the abductor's identity with any certainty. The video did show that the abductor was a white male who was wearing a T-shirt with a New York Yankees insignia on the front and the number 23 on the back.

An extensive search and investigation were conducted, accompanied by extensive local and statewide news coverage. As part of the investigation, the police interviewed Kathryn Hanek, who, on the night of the abduction, was working at the Subway sandwich store adjacent to DJ's Expressway. The two stores are connected by an internal door. Hanek told the police that shortly before closing the Subway store at about 10:00 p.m., she saw a man in and around the Subway store who was behaving strangely. After closing, Hanek drove home toward downtown Moose Lake and, coincidentally, followed the man, who was leaving the convenience store property at the same time. She noted that the man was driving a black Ford F150 extended cab pickup truck with white markings on the side and a license plate that read in part, 557 _ _Y. The pickup truck weaved a number of times and after entering Moose Lake, pulled into the parking lot of a local cafe. Hanek stated that when she left work, Poirier's vehicle was still at DJ's Expressway.

Blom's Arrest

On June 18, after seeing a composite sketch of Poirier's abductor, one of appellant Donald Albin Blom's co-workers contacted the police to report Blom as a possible suspect based on his belief that Blom had behaved suspiciously during the week of the abduction. Upon investigating this report, the police determined that Blom drove a black Ford F150 extended cab pickup truck with license plate number 557 HDY. The police then attempted to locate Blom. The police also learned that Blom had property near Kerrick, less than 10 miles from DJ's Expressway. They secured this property the evening of June 18 and conducted a 12-hour search of the property on June 19. An examination of a fire pit on the property resulted in the discovery of a number of bone fragments, including what appeared to be part of a jaw bone and a human tooth. The bone fragments were collected for evaluation by a forensic anthropologist. This property was searched again on June 29.

Police located Blom after midnight on June 20 at a campground near Alexandria, Minnesota. The police questioned him about Poirier's abduction and he denied any involvement. He said he had been at his property near Moose Lake on May 14 or 15 and again on June 12. Blom said that on May 26 he left work early and went fishing on the Kettle River, a mile or two south of Sandstone, but claimed he was home in Richfield by between 7:00 and 8:00 p.m.

Later on June 20, the police arrested Blom. At a police line-up the day following Blom's arrest, Hanek positively identified Blom as the man she had seen on the convenience store property the night of May 26. On June 23, Blom was charged by complaint with kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2) and (3) and subd. 2(2) (2002). He was confined at the Carlton County Jail and bail was set at $285,000. He was arraigned on July 1. He first retained private counsel, but on July 23, a public defender was appointed after private counsel received permission from the district court to withdraw.

Blom's Request To Make a Statement

On August 10, Blom began sending notes to Carlton County Sheriff David Seboe. Blom sent Seboe approximately six to eight notes in August and early September. In a note sent on September 3, Blom requested to speak to Seboe. Suspecting that Blom was about to confess to Poirier's murder, Seboe proceeded to arrange a meeting for that evening with Blom, Blom's counsel, and law enforcement officials. Blom's lead state defense counsel could not be reached, but his federal public defender and the chief public defender for the Sixth Judicial District were able to attend the meeting.*fn1 At the meeting, Blom was advised by his counsel not to speak. Counsel warned him that no "offers" had been made and that anything he said could be used against him. In response to these warnings, Blom stated, "I wanta accept an offer cause I'm tired of this." Nevertheless, the meeting ended without Blom making a statement.*fn2 Blom then met with his counsel over the next several days regarding whether he should make a statement and what, if any, concessions to seek. On September 7 and 8, both the state and federal prosecuting attorneys sent letters to Blom's state and federal defense counsel outlining the terms of a proposed agreement with Blom. The state's September 7 letter, which made reference to a "plea agreement," stated that Blom was to provide "a complete, a detailed, statement regarding the abduction and murder of Ms. Katie Poirier," as well as plead guilty to both the state and federal charges.*fn3

The state noted in its letter that it intended to convene a grand jury for the purpose of obtaining an indictment as soon as Blom gave his statement. Further, as a result of his plea, Blom would be sentenced to life in prison without the possibility of parole, his federal and state sentences would run concurrently and he would be imprisoned in a state prison in North Dakota. Blom had previously requested that he be imprisoned outside Minnesota for safety reasons. He specifically requested either North Dakota or South Dakota because he wanted to remain close enough to Minnesota so that his family could maintain contact with him.

The state also represented in its letter that it would not bring criminal charges against Blom's wife or bring forfeiture proceedings against property owned by her, and that forfeiture proceedings would be dropped against Blom's truck. The state agreed that personal property lacking evidentiary value would be returned to Blom's family, Blom would be permitted to wear street clothes rather than jail fatigues when he pleaded guilty, and, as long as he followed jail rules, he would be granted more time outside of his jail cell and additional phone privileges while housed in the Carlton County Jail. Blom initialed every page of the state's letter except the last page where he signed his full name.

The conditions outlined by the federal government were that Blom provide a detailed and complete account of Poirier's abduction and murder, plead guilty to the state and federal charges, agree to a life sentence without the possibility of parole, waive all rights to appeal, and forfeit all rights to firearms seized on his property.*fn4 While Blom did not sign this letter, his federal defense counsel explained at a September 23 hearing that the letter accurately reflected the oral agreement between counsel and the federal government.

Blom's Statement

On September 8, Blom gave a statement to the police regarding his involvement in Poirier's abduction and murder. Before Blom started his interview with the police, his lead state defense counsel had an extended conversation with him in order to verify that Blom understood the consequences of what he was about to do. Blom verified on the record that his counsel had met with him for several hours between September 6 and September 8 and that he intended to give a statement, but that he first wanted his counsel to negotiate some terms on his behalf. Blom indicated that these terms were contained in the September 7 letter from the state and acknowledged that his counsel negotiated these terms on his behalf. He affirmed that his counsel advised him not to give a statement.*fn5 Later during the statement, Blom's federal defense counsel arrived and also verified with Blom that he was going through with this "plea negotiation" against his counsel's advice.

In his statement, Blom admitted abducting Poirier by forcing her to leave DJ's Expressway and that he "pushed" her into his truck. He said he then drove Poirier to his property near Kerrick where he "choked" her to death. Blom stated that he "threw" Poirier's body in a fire pit on his property and burned the body using fence boards, but did not use an accelerant. During the statement, Blom affirmed, albeit somewhat equivocally, that the bones recovered by the police from his fire pit belonged to Poirier. He stated that he did not sexually assault Poirier, but that he may have been thinking about it. Throughout his statement, Blom was generally not forthcoming with information, claiming to not remember many details, including his interactions with Poirier.

Immediately following Blom's statement, his counsel met with the news media. At this meeting, his lead state defense counsel announced that the parties had been in "negotiations most of the day," the "details of a letter of intent" had been accepted, and "[Blom] has admitted to both the kidnapping and the killing of Katie Poirier." Blom's state defense counsel said that Blom made the statement "out of his feelings for the Poirier family and certainly out of the feelings for his own family," and that Blom "wanted to get the matter behind him." State defense counsel noted that he objected to Blom giving the statement "[b]ecause quite frankly in a plea bargain, both sides get something and I don't believe that Mr. Blom obtained-got much in this agreement." Both state and federal defense counsel indicated that Blom's major concern was where he would serve his sentence, but there were, as state defense counsel said, "other minor details" in the agreement.

As previously noted, Blom originally requested that he be imprisoned in either South Dakota or North Dakota. While the negotiations leading to the plea agreement were taking place, the district court was made aware of Blom's specific request as to where he would be imprisoned. According to a "Bill of Particulars" prepared by the court and presented to the Chief Public Defender for the Sixth Judicial District on September 27, 1999, Blom's state defense counsel and the state requested the court's assistance in "exploring the possibility of meeting that condition with the Minnesota Department of Corrections." The court contacted the Deputy Commissioner of Corrections in charge of adult facilities who then took the matter directly to the Commissioner of Corrections. The commissioner then made arrangements with the North Dakota Commissioner of Corrections for Blom's placement in North Dakota. The court further explained in its Bill of Particulars that, after Blom's placement in North Dakota was arranged, "the parties continued to meet through the 7th and during the 8th of September regarding other conditions of the plea agreement that did not need this court's assistance."

Post-Statement Proceedings

On September 16, a grand jury indicted Blom for first-degree murder, Minn. Stat. § 609.185(3) (2002).*fn6 Among the evidence presented to the grand jury was Blom's September 8 statement. A closed hearing in state court also was held that day, but no plea was entered. At that hearing, Blom's counsel, for the first time, informed the court that Blom was uncomfortable entering a guilty plea before the completion of DNA testing on the bones found on his property. Counsel also expressed reluctance to have Blom enter a guilty plea because counsel believed that Blom's version of the disposal of Poirier's body by burning was impossible. The state responded by explaining that the DNA testing could take as long as three months and would not necessarily be conclusive.*fn7 The court then asked Blom's counsel to verify with Blom that he was telling the truth about Poirier's abduction and murder and to determine his intention regarding a guilty plea. The court then adjourned so that counsel could talk to Blom. The next day, the federal government withdrew the agreement it had offered to Blom, citing Blom's refusal to plead guilty to the state charges and noting that his federal trial was set to begin in less than six weeks-on October 25.

At a subsequent closed state court hearing on September 22, Blom stated that he had not rejected the federal agreement, but that the federal government had. In order to reassure Blom that his sentence would be served in North Dakota if he were to plead guilty, the court explained that because the state charges were made before the federal charges, Blom's sentence to a state prison would take precedence over any federal sentence. The court explained to Blom that the federal judge assigned to his case was in agreement on this point. The court stated that Blom had the right to withdraw his plea if the agreement to imprisonment in North Dakota fell through. Blom appeared to understand that the federal government had accepted the terms in the letter. The court then commented that the federal government did not have any leverage and that this agreement could be accomplished only through the state proceedings.*fn8

The next day, September 23, the federal government provided a letter in which it formally agreed to reinstate its terms for one day. This reinstatement letter came fifteen days after the completion of negotiations and Blom's statement; seven days after the grand jury indicted Blom for first-degree murder and he failed to enter a plea; and six days after the government had initially withdrawn its terms. At a hearing that day, Blom's state defense counsel acknowledged that waiting for the DNA testing results was not part of the original agreement. The district court asked Blom if there was any part of the plea agreement he had misunderstood or was not reflected in the written agreement. Blom replied that there were "a few things." The court then explained to Blom that according to the federal government's reinstated terms, September 23 was the last day to plead guilty to the state charges.

Blom responded to the district court by emphasizing that he did not want much from the agreement other than for his family to be left alone. He stated that his family was still not being left alone and noted that, soon after the September 8 agreement, discovery documents had been opened to the public, his trailer had been burned down, his wife continued to receive threatening calls, and he was being "threatened at night." Although he asserted that "this letter" was different from the state's letter, Blom did not describe what was different. The court asked Blom's state defense counsel whether Blom had given his statement without understanding the agreement. Blom's counsel replied that this was "an omnibus issue" and asserted there were terms in the federal September 8 letter that were not part of the state's September 7 letter, but he did not specify which terms.

The district court then asked Blom's federal defense counsel if he had talked to the federal prosecutor about the oral agreement and the state's letter. Defense counsel stated that the oral agreement was "accurately reflected" in the state's letter, but that there were "one or two differences" between the oral agreement and the federal government's September 8 letter. The court asked if counsel had contacted the federal prosecutor upon receiving the September 8 letter. Counsel replied there had been no communication regarding any conflicts between the oral agreement and the September 8 letter. The court then asked the state if there was anything discussed and negotiated that was not reflected in the agreement. The state replied that everything that was talked about was in its September 7 letter.

When the district court indicated that it was about to end the closed hearing, Blom's state defense counsel interjected and described for the record his understanding of the federal government's position based on its September 23 reinstatement letter. Counsel stated that the government's plea offer was only open for one day and added that this term was not in the original agreement. He also noted that the September 23 letter required Blom to meet two particular conditions of the September 8 letter-namely, enter a plea of guilty to first-degree murder on September 23 and at the same time waive his right to appeal. He added that the September 23 letter required Blom to meet every condition of the September 8 letter before the federal government would be bound by the letter's terms.

The district court then interposed that the state and federal agreements were separate. This comment was followed by Blom's state defense counsel explaining that the federal and state charges were to be resolved together and that the federal terms were part of the state's September 7 letter. When the court asked if there was any part of "the federal letter" that was contradictory to his understanding of the agreement, Blom's state defense counsel replied "Absolutely," but did not explain this response other than to say it was an "omnibus issue." Shortly after the end of the closed hearing, when asked by the court at an open hearing if he wished to enter a plea, Blom told the court that he was not going to enter a plea. Blom never did enter a plea.

In essence, the state's position at the September 23 hearing was that everything that was discussed and negotiated was reflected in its September 7 letter. Blom's federal defense counsel took the position that the oral agreement with the federal prosecutor was summarized in the September 7 letter and the September 8 letter generally reflected the terms of this agreement; but there were "one or two differences" which counsel did not specify. Blom's state defense counsel stated there were terms in the September 23 letter that were "not part of the State agreement"-apparently referring to the deadline, the requirement that Blom meet two particular terms of the September 8 letter on September 23, and that the federal government was not bound until Blom met all of the conditions in the September 8 letter.

Attempts to Suppress Blom's Statement

In December 1999, Blom's state defense counsel filed a motion to suppress Blom's September 8 statement on the ground it was part of an offer to plead guilty and Minn. R. Evid. 410 prohibited its admission. The district court denied the motion, finding that Blom did not subjectively expect that the statement was part of plea negotiations and, therefore, was not protected by Rule 410. The court noted that Blom made several requests to Sheriff Seboe to discuss his situation, including a request to "resolve this matter," and he disclosed details of the abduction to a reporter on September 3. The court found it especially relevant that Blom's counsel warned Blom on September 3 and again on September 8 not to make any statement because it could be used against him. The court also found that Blom agreed to allow the state to use the statement against him for the purpose of obtaining a grand jury indictment. The court stated that "typical plea negotiations did not occur" here because: there was no bargained-for exchange, Blom repeatedly initiated contact with Seboe to make a statement, no specific plea offers were extended, and the state did not encourage negotiations. The court found that Blom "did not specifically seek anything in return" and had agreed to plead guilty to an offense that was a more serious offense than the one he was charged with at the time and which had a greater penalty. The court also found that Blom's counsel began discussions only after Blom tried to confess. Therefore, the court concluded, the statement remained separate from any plea negotiations.

Finally, the district court concluded that, regardless of whether the statement was part of plea negotiations, Blom knowingly and voluntarily waived any claim to have the statement suppressed. The court found that Blom was repeatedly advised by counsel that the statement would be "admissible against him at trial," would be used to obtain an indictment by the grand jury, and that Blom fully understood the repercussions of the statement.

Pretrial Motion to Change Venue

On December 6, 1999, Blom moved to change venue from Carlton County to a "more suitable location." Blom argued that it would be difficult to find fair and impartial jurors in Carlton County due to the extensive local publicity and because so many people from the county had been involved in the search for Poirier. Blom urged the district court to move the trial from Carlton County, but left the specific location to the court's discretion, with the understanding that his motion could be renewed if the new site did not work out. The state agreed with Blom that there was a basis to change venue, but argued that the court did not need to "go very far" from Carlton County to find fair and impartial jurors.

The district court granted Blom's motion, changing venue to Saint Louis County, specifically, the City of Virginia, which is approximately 65 miles from the Carlton County Courthouse. In moving the trial to Virginia, the court noted that most of the state had been inundated with media coverage, thereby making it difficult to find jurors anywhere in the state who were unfamiliar with the case. The court concluded that Virginia was convenient to the parties and at the same time free from the significant community involvement that existed in Carlton County.

Motions Made During Voir Dire

Blom's trial took place at the Saint Louis County Courthouse in Virginia. Voir dire began on June 5, 2000, and lasted 20 days. During this time, Blom moved for a change of venue nine times or, in the alternative, for a continuance. During this time, he also made two motions to sequester the jury.

The motions to change venue were based on Blom's contention that answers to the jury questionnaires suggested bias against him by individual jurors, as well as by the community. Blom also argued that jury exposure to the case outside the courtroom and the potential for jury exposure to prejudicial publicity made a further change of venue necessary. In denying the motions to change venue, the district court acknowledged that the pretrial publicity was extensive, but concluded that no evidence had been provided to indicate that any part of Minnesota had been shielded from such publicity. The court stated that it could not conclude that the jury had been adversely affected by any exposure to publicity or inadmissible evidence or that the jury would be unfair, but the court indicated it would reconsider Blom's motion if it became necessary.

In conjunction with one of Blom's motions for change of venue, he moved for the alternative relief of continuing his trial for one year. The district court denied the motion, concluding that publicity would resume the month before the trial was re-initiated and therefore a continuance was pointless. The court noted that it shared Blom's concern that he receive a fair trial and recognized the difficulties Blom faced, but the court expressed faith in the jury system and the seated jurors and expressed its belief that Blom would receive a fair trial. The court also denied Blom's two requests to sequester the jury. The court concluded that sequestration was not essential at that time.

Subsequent Motions to Sequester the Jury

On July 10, Blom formally moved to sequester the jury, arguing that the criminal procedure rule governing sequestration was meaningless if his case did not warrant sequestration.*fn9 The district court held a hearing on the motion after the completion of voir dire. At this hearing, Blom argued that sequestration was needed in light of the high volume of media coverage, the denial of the numerous requests for change of venue, the difficulty in showing actual prejudice, and the fact that many jurors had indicated that they had seen or heard information about the case. The state argued that sequestration would be difficult for the jurors, given that the trial could be lengthy, and would increase the risk of jurors dropping out.

The district court denied Blom's motion to sequester the jury. While acknowledging the high profile of Blom's case, the court stated that it would continue to admonish the jury not to read or listen to anything about the case or to discuss it with anyone. The court also noted that the press and the public would be excluded from hearings conducted outside the presence of the jury. The court stated that if highly prejudicial matters came to the attention of the jurors, it would re-evaluate Blom's motion to sequester. The next day, after further juror questioning, Blom again moved for sequestration. The motion was again denied.

On the first day of trial, the district court granted defense counsel's request that the court question members of the jury further regarding whether they had been contacted about the case or had seen or heard news about the case since being seated. While a few of the jurors acknowledged seeing an article or headline or being approached about the case, they also explained that they stopped reading or talking about the case when they realized that Blom's trial was the subject of the conversation or article. Blom then sought a further change of venue, as well as sequestration of the jury. He did so based upon his renewed concern about some answers given by jury members. The court denied the motions and reiterated that the jurors would be admonished not to deal with this case outside of trial.

State's Evidence at Trial

The state's theory of the case was that Blom kidnapped Poirier from DJ's Expressway, forced her into his truck, drove to his property near Kerrick, strangled her, and burned her body in his fire pit. The state was required to prove beyond a reasonable doubt that Blom kidnapped Poirier, Poirier died, Blom killed her, and that he intended to kill her. A redacted version of Blom's September 8 statement was presented to the jury. The following evidence also was presented by the state.

a. Evidence Relating to Whether Poirier was at Blom's Kerrick Property

The state submitted as evidence the bone fragments and tooth the police recovered from Blom's fire pit. The police testified that the condition of the ashes in the fire pit suggested there had been a recent fire that had been fueled by accelerants. A forensic anthropologist testified that the bone fragments and tooth were those of a young adult female between the ages of 15 and 24, with a mean age of 19.4 years. The anthropologist analyzed the burned skeletal remains to determine the condition of the bones before incineration. She concluded the bones had an organic component and therefore were fresh. The anthropologist stated that the full skeleton was not in the fire pit and that the cause of death could not be determined.

A Duluth dentist testified that on August 27, 1991, he had placed a one-surface occlusal amalgam cavity filling in Poirier's lower left second molar-tooth number 18. The dentist testified he "prepped" the cavity with Dropsin, a Swedish cavity lining material containing a large amount of zinc. A second Duluth dentist testified to having treated Poirier on May 12, 1999, less than two weeks before the abduction. This dentist replaced the existing filling in tooth number 18 with another amalgam filling, using a bonded acid-etch technique and a 3M bonding product known as Rely X ARC. The dentist testified that she first used this bonding agent after receiving samples the previous month-April 1999-from a 3M distributor at a dental convention. A 3M chemist who supervised the development of Rely X ARC testified that the product was first shipped to the marketplace in February or March 1999. A forensic scientist in the Bureau of Criminal Apprehension's (BCA) microanalytical section testified that the tooth recovered from Blom's fire pit was consistent with a human tooth number 18 that had been treated with a dental amalgam that had been bonded to the tooth with Rely X ARC. Finally, a faculty member at the University of Minnesota School of Dentistry testified that the recovered tooth had been treated with the acid-etch technique.

Based on comparisons between the tooth and jaw-bone fragments found in the fire pit and Poirier's dental x-rays and medical records, the state's two forensic dentists testified that, to a reasonable degree of medical certainty, the tooth belonged to Poirier. The dentists' conclusions were based on the following findings:

(1) The recovered tooth and Poirier's tooth (lower left second molar, number 18) both had an extra, distinctively similar-looking root. Typically, tooth number 18 only has two roots.

(2) A comparison of Poirier's dental x-rays of 1994 and 1997 to x-rays of the recovered tooth and jaw fragments revealed various conformities in root size and shape, tooth structure, and physical characteristics of the area where the tooth was filled.

(3) The recovered tooth contained zirconium and silicon on its surface in roughly the same proportions present in a bonding agent used for a cavity filling called Rely X ARC, which bonding agent was used on Poirier's tooth for a cavity filling approximately two weeks before her disappearance and was only first introduced to the market approximately three months before it was used on Poirier's tooth.

(4) The recovered tooth contained a small amount of zinc, which was used in an earlier filling of Poirier's tooth in 1991.

(5) Both the recovered tooth and Poirier's tooth had been filled using the acid-etch method of cavity filling.

During cross-examination, the defense presented testimony to show that the acid-etch technique used to fill the recovered tooth had been in use since 1955. The defense also presented evidence that when the state's chief dental expert first examined the tooth on June 25, 1999, she considered that the tooth might be of animal origin. Then, on July 2, this expert and the state's other dental expert identified the tooth as human tooth number 30, which is the lower right first molar, but eliminated Poirier as the owner. On August 20, the state's chief dental expert stated that the tooth was not number 30, but rather number 18, and made a possible identification of it being Poirier's tooth. Approximately two days before trial, after ...


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