Mark Antonio Profit
On May 8, 1997, Mark Antonio Profit,
33, was found guilty of the strangulation death the previous May of
prostitute Renee Bell, who's body was found floating in a creek in
Theodore Wirth Park in Minneapolis. Profit was also found guilty of two
counts of the sexual attack on another woman.
Profit, who has spent nearly one-half of his life in
prison for violence and sexual assaults, was known as the "Wirth Park
Killer". According to a county attorney Profit has been out of prison
for only a year since he was 15 years old.
Police believe Bell was the first of four victims in
a four-month serial killing spree. His three other suspected victims
are, Deborah LaVoie, 43, whose burned body was found June 3 in Wirth
Park; Avis Warfield, 36, found June 19 near the park, and Keooudorn
Photisane, 21, found July 29 in bushes near a bike path and the park's
After the verdict Assistant County Attorney Mike
Furnstahl said: "In 12 years as a prosecutor, I've never seen a more
dangerous psychopath than Mark Profit." Defense attorneys Robert Miller
and Charles Amdahl said Profit was devastated and surprised by the
verdict. On June 2 Judge Peter Lindberg sentenced Profit to two
consecutive life terms for the murder of Bell and the rape of another
Profit, 35, has spent more than half of his life in
prison for rapes, robberies, assaults and now, murder. Because of his
1997 convictions for the first-degree murder of Renee Bell and the
attempted rape of another woman, he won't be eligible for parole until
Though new DNA tests on a cigarette butt have linked
him to Avis Warfield's death, Profit said that he wants to be charged
with her murder. It's undisputed that Profit was in jail when Warfield's
stabbed and burned body was discovered on June 19, 1996, in front of a
house where he once lived. What is disputed is whether Profit was locked
up on a parole violation when she was stabbed. He insists he was in the
Hennepin County jail; authorities say he had not yet been arrested.
During his 1997 trial, Profit and one of his
attorneys, Charles Amdahl, argued unsuccessfully that Profit's wallet
was planted at the Bell murder scene. They blame a man named Paul Kelly
Jr. Now, Profit contends that Kelly planted the cigarette butt near
Warfield's body. Profit offers no reason why Kelly would frame him
except to say there was trouble between the two because Kelly was dating
Profit knows the legal system from the inside. By 15,
he had 30 felony arrests or charges on his record. Facing more counts,
he agreed to plead guilty to aggravated assault with a weapon -- a sawed-off
shotgun -- and be sentenced as an adult to two years. Eight counts were
dropped. He was the youngest Minnesotan sent to prison, and since then
he's never had more than a year of freedom. Seventeen days after
Profit's release from a Minneapolis halfway house, Bell was murdered
during what appeared to be a sexual assault. Fibers found in a tan
elastic band used to gag and strangle her matched some found in the
trunk of a car that Profit drove.
On September or October, 2001, Profit was found dead
in his cell at the Minnesota Correctional Facility in Oak Park Heights.
Not one to take prison life lightly, on August, 2001, he was charged
with attempted murder on a prison guard and was facing an additional 20+
years to his four life sentences.
March 19, 1999
Despite a district court's
mistake in joining a murder case with a criminal sexual conduct case,
Minnesota's Supreme Court ruled it doesn't warrant a new trial for
suspected serial killer, Mark Profit.
Profit was convicted of two counts of first-degree murder and one count
of second-degree murder. During the trial, Profit also was convicted of
second-degree criminal sexual conduct for attempting to assault another
woman in the same park.
Hennepin County District
Judge Peter Lindberg sentenced Profit to one life term on the murder
charges and to a consecutive life term on the criminal sexual conduct
Profit had appealed the decision on several counts, including
that the murder and assault cases should have been heard separately
instead of in one trial. The Supreme Court agreed that the lower court
should have separated the cases, but said the court hadn't acted
prejudicially by doing so.
June 2, 1997
Judge Peter Lindberg sentenced
suspected serial killer Mark Profit to two consecutive life terms for
murdering one woman and sexually assaulting another one in a Minneapolis
Police believe Profit, 33, also killed three other
women whose bodies were found in or near the park last summer. However,
he was never charged in those cases and jurors were never told about the
three killings. All four women were suspected of being prostitutes.
SEX: M RACE: B TYPE: T MOTIVE: Sex.
Slayer of female prostitutas in/around Wirth Park
Two consecutiva life terms, 1997, on one count of murder and two counts
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota, Respondent,
Mark Antonio Profit, Appellant.
Filed: March 18, 1999
Anderson, Paul H., J.
Concurring in part, dissenting in part,
Anderson, Russell A., J., and Page and Stringer, JJ.
S Y L L A B U S
Joinder of criminal offenses under
Minn. R. Crim. P. 17.03 is proper only when the offenses are part of a
single behavioral incident.
When criminal offenses are improperly joined for
trial, remand for a new trial is not required if the joinder was not
A district court has wide discretion over evidentiary
matters, and its decision to prohibit evidence of a third party's
alleged participation in an uncharged crime, for the purpose of
exonerating the defendant of the charged crimes, will not be reversed
unless the record shows that: (1) the evidence of the uncharged crime is
relevant, (2) the admission of the evidence of the uncharged crime is
not unfairly prejudicial, and (3) the defendant provided clear and
convincing evidence of the third party's participation in the uncharged
Absent a showing of prejudice to the defendant,
amending an indictment so that the dates of the charged murder comport
to the evidence presented at trial is within the district court's
discretion under Minn. R. Crim. P. 17.05.
Evidence that a defendant tied an elaborate noose and
used extreme force in strangling his victim is sufficient to support a
jury verdict finding the defendant guilty of first-degree premeditated
Evidence that a murder victim was a prostitute, was
found naked, and that her assailant had taken steps to destroy physical
evidence of rape, in conjunction with Spreigl evidence showing
that the defendant's common pattern was to sexually assault his victims,
is sufficient to support a jury verdict finding the defendant guilty of
first-degree felony murder.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
A jury found Mark Antonio Profit guilty of two counts
of first-degree murder and one count of intentional second-degree murder
for the May 1996 killing of Renee Bell. At the same jury trial, the jury
also found Profit guilty of second-degree criminal sexual conduct and
attempted first-degree criminal sexual conduct for an August 31, 1996
assault on Phynnice Johnson. The court sentenced Profit to two
consecutive life terms.
On appeal, Profit claims that the district court
committed reversible error by (1) joining the Bell and Johnson charges
for trial; (2) excluding evidence of a third party's possible
involvement in allegedly similar crimes; and (3) permitting the state to
amend the date of the offense on the Bell murder indictment after the
close of testimony. Profit also asserts that there was insufficient
evidence to support the jury's verdict with respect to the murder
charges. We affirm.
On May 23, 1996, the nude body of Renee Bell, a 30-year-old
African-American woman, was found floating in Basset Creek in Theodore
Wirth Park in Golden Valley, Minnesota. What appeared to be an elastic
waistband from an article of clothing had been wrapped around Bell's
neck and was secured in a knot. One end of this ligature was also looped
through Bell's mouth and under her tongue in a gag-like manner.
Dr. Mitchell Morey, an Assistant Hennepin County
Medical Examiner, performed an autopsy on Bell and concluded that Bell
had been strangled with the ligature and that her death was a homicide.
Dr. Morey concluded that Bell had been dead from one day to one week.
According to police, Bell was a reputed prostitute
who frequented the Broadway Avenue area of Minneapolis. The autopsy
revealed that Bell had ingested cocaine within a few hours before her
death. Police investigators also observed that Bell's upper torso and
vaginal areas were covered with mud. Police Sergeant Robert Krebs
testified that the mud “appear[ed] to be packed, not just a matter of
something [sic] had flowed over the body.”
Dr. Morey discovered mud inside Bell's vaginal vault
as well, but found no other evidence of vaginal injury nor any
indication of sperm or seminal fluid inside Bell's vaginal vault. Dr.
Morey declined to rule out the possibility of sexual assault, however,
stating that the decomposition of Bell's body and her submersion in
water could have masked evidence of such an assault.
On July 13, 1996, Officer David Born
of the Golden Valley Police Department found a wallet laying on the bank
of Basset Creek a few feet from where Bell's body had been discovered.
The water level of the creek had subsided since the discovery of Bell's
body in May, causing the waterline to recede approximately eight feet.
The wallet was found about one foot from the creek's edge and appeared
to have been underwater. The wallet contained Profit's driver's license,
as well as several papers subsequently linked to him.
Bell's body was just the first of several bodies to
be found in or near Theodore Wirth Park during the summer of 1996. On
June 3, 1996, the body of Deborah Lavoie was found approximately one and
one-half blocks from where Bell's body had been discovered. On June 19,
1996, the body of Avis Warfield was found approximately one-half mile
from Theodore Wirth Park. Both bodies had been burned with gasoline.
On July 20, 1996, the body of Keooudorn Phothisane, a
male transvestite, was discovered in Theodore Wirth Park within one and
one-half blocks of where Bell's body had been found. Although
Phothisane's body was also burned, police determined that he had been
bludgeoned to death. Several juveniles claimed to have seen an African-American
man running from the scene where Phothisane's body was found. The
juvenile witnesses provided a composite sketch of the man to police.
Profit is an African-American.
Each of these deaths, along with the Bell killing,
was investigated by a multijurisdictional police task force under the
premise that the deaths might be the work of a serial killer. Shortly
after the discovery of Phothisane's body, this task force learned that a
man named Paul Kelly had spoken to his employer about a letter allegedly
concerning Phothisane's killing. The record does not indicate exactly
what the employer told police or what Kelly had said to his employer,
except to suggest that Kelly told his employer that someone else had
written the letter.
Shortly after learning about the
letter, the task force contacted and interrogated Kelly. Kelly told the
police that Profit, his girlfriend's brother, had asked to borrow a gas
can from him on July 20, 1996. Kelly said that Profit returned to
Kelly's home one and one-half to two hours later and that Profit
immediately proceeded to wash the clothes he had been wearing. According
to Kelly, Profit then borrowed some clothes from Kelly and asked Kelly
to help him wipe out the car Profit had been driving.
Kelly also told investigators that he
saw Profit write a letter confessing to the Phothisane murder. Kelly
willingly provided handwriting and blood samples to the police. The
police later learned that KARE 11 TV had received a letter similar to
the one that Kelly described. This “KARE letter” was unsigned, but a
handwriting analysis showed that Kelly was the most likely author. After
being confronted with this information, Kelly admitted to writing the
KARE letter, but said that he wrote the letter only after Profit showed
him an original draft of the letter and ordered Kelly to rewrite the
letter in his own handwriting in order to throw off authorities
investigating the killing. The police continued to monitor both Kelly
On August 2, 1996, while being monitored by the task
force, Kelly contacted Profit by telephone and asked if Profit still had
the clothes that he had borrowed on July 20, 1996. Profit told Kelly
that he did, and he then returned clothes which matched the description
of the clothes Kelly had told police Profit borrowed from him on the
night of the Phothisane killing.
That same day, the police executed search warrants
for Profit's home and the various vehicles driven by Profit or his
family. In a 1990 Pontiac Grand Am known to be driven by Profit,
investigators found threads and fibers similar to threads and fibers
found on the ligature used to strangle Bell. Tests performed by a micro-analyst
from the Bureau of Criminal Apprehension and a private analytic forensic
microscopist revealed that the threads and fibers from the trunk were
chemically and physically indistinguishable from the threads and fibers
from the ligature.
On August 31, 1996, Phynnice Johnson
was assaulted near Theodore Wirth Park. Johnson was an admitted crack
cocaine user who, on August 31, had been working as a prostitute on
Broadway Avenue in northeast Minneapolis. At about 11:00 p.m., a man in
a car stopped to ask her where to get some crack cocaine. Johnson asked
the man if he wanted her to ride with him to help him find some cocaine.
The man agreed and Johnson then got into the car. The man then asked
Johnson if she wanted to “party.” She said yes, and the man then drove
to an abandoned parking lot.
After smoking some crack cocaine with Johnson, the
man unzipped his pants and asked her for oral sex. Johnson refused
stating that she might do so later, but wanted to party first. The man
then offered to take her to a park in south Minneapolis. When the man
instead drove toward Theodore Wirth Park, Johnson became frightened and
attempted to jump from the car. The man grabbed Johnson and, in the
ensuing struggle, ripped off her T-shirt as she exited the car. The man
followed Johnson and demanded she return the crack cocaine stem he had
given her. The man then unzipped Johnson's pants and pulled them down
around her ankles. He repeatedly told Johnson, “Bitch I'll kill you.”
The man then grabbed Johnson by her pants and tried to drag her across
At that same time, Joan DeMeules and her husband,
George Barrett, were driving home through Theodore Wirth Park and saw
Johnson struggling with a man. DeMeules testified that she heard Johnson
begging the man to let her go. The couple yelled at the man to leave
Johnson alone. When that proved ineffective, DeMeules exited the van and
began hitting the man with an ice scraper. Barrett, armed with a bag of
tomatoes, also exited the van and began hitting Johnson's assailant with
the bag. Eventually Johnson, who by this time had been stripped of all
her clothes, freed herself from the man and went to Barrett's van. The
assailant went to his own car. After trying to salvage his smashed
tomatoes, Barrett picked up Johnson's pants and returned to the van with
DeMeules. Barrett then gave the partially-clothed Johnson his shirt to
wear. DeMeules and Barrett asked Johnson what she wanted them to do.
Because Johnson said she did not want to report the incident, DeMeules
and Barrett drove her to the home of a friend.
In early October, Profit was arrested for the murder
of Bell. Shortly thereafter, Johnson saw a picture of Profit on the news,
recognized him as her assailant, and called the police. The police then
issued public requests asking the two people who had assisted Johnson to
come forward. DeMeules and Barrett saw Profit's picture in the newspaper
and recognized him as Johnson's assailant. When DeMeules and Barrett
heard on public radio that the police were looking for them, they
contacted the police and provided statements. In separate photographic
lineups, DeMeules and Barrett identified Profit as Johnson's assailant.
At trial, Johnson, DeMeules, and Barrett again identified Profit as the
man who had assaulted Johnson.
On October 29, 1996, Profit was indicted for two
counts of first-degree murder and one count of second-degree murder in
connection with the killing of Bell and, in a separate indictment, for
one count of attempted first-degree criminal sexual conduct and one
count of second-degree criminal sexual conduct in connection with the
assault of Johnson. Pursuant to a motion by the state, the district
court joined the two sets of charges for trial.
On April 16, 1997, in response to a defense petition,
the district court issued a Certificate for Out-of-State Summons for
Paul Kelly who had moved to Texas. Prior to trial, the state moved the
court to exclude evidence of the Lavoie, Warfield, and Phothisane
killings (purported serial killings) and “all testimony from/about Paul
Kelly.” The district court partially granted this motion. The court
prohibited any mention of the purported serial killings or of the KARE
11 letter, but stated that “[i]f, in fact, Mr. Kelly has information
relevant to the specific cases before us, * * * Mr. Kelly will obviously
be allowed to testify. And relevance is the relevance to the facts that
are going to be submitted, the issues before the Court on those two
separate charges; not unrelated, uncharged offenses.” The defense
acknowledges that after the court's ruling it ceased any efforts to
bring Kelly to Minnesota.
At trial, it was revealed that Profit had been in
prison as a teenager and was released in 1981 at the age of eighteen. To
support its claims that Profit killed Bell after sexually assaulting her
and that he attempted to sexually assault Johnson, the state presented
evidence of the following prior crimes committed by Profit after his
release in 1981: (1) on September 2, 1981, Profit convinced a 15-year-old
northeast Minneapolis girl to follow him to his apartment where he
produced a knife, ordered her to get undressed, tied and blindfolded her,
and raped her; (2) on September 10, 1981, Profit assaulted a woman at a
north Minneapolis day care center where she worked, threatened the woman
with a knife, tore off her clothes and tried to tie her with them, got
on top of her and tried to kiss her, and was in the process of taking
her out of the building when he was confronted by a parent and fled; and
(3) on September 11, 1981, at a bus stop near Theodore Wirth Park,
Profit forced a 16-year-old girl into his car, drove to an apartment on
the north side of Minneapolis, told the girl to undress, and raped her.
After pleading guilty to reduced charges, Profit served approximately 14
years in prison and was released in January 1996. Profit was in a
halfway house until May 6, 1996, at which time he was released and moved
in with his wife and her mother in Minneapolis.
The state also presented the testimony of a man who
had been incarcerated in 1994 with Profit. This witness said that Profit
spoke to him about the importance of leaving no sperm or other source of
DNA evidence behind after a rape. Another witness, a man who had been in
a sexual offender treatment program with Profit in early 1996, testified
about a conversation in which Profit said it was better to solicit rape
victims of low socio-economic stature because the police would be less
likely to believe such victims. According to this witness, Profit also
said he would go to “extreme measures” to destroy evidence in order to
avoid another rape conviction.
After the close of testimony, the state moved to
amend the date of the offense on the Bell indictment from “on or between
May 21, 1996 and May 23, 1996” to “on or about May 21, 1996.” The court
granted the motion and instructed the jury using the amended date. On
May 8, 1997, the jury returned a verdict convicting Profit on all counts.
The court sentenced Profit to two consecutive life terms. On appeal,
Profit argues that the verdict should be vacated or his convictions
reversed because of the following alleged errors: (1) joining the Bell
and Johnson charges for trial was prejudicially erroneous; (2) the trial
court abused its discretion in excluding evidence of the purported
serial killings and of Paul Kelly's possible involvement therein; (3) it
was prejudicial error to amend the date of the offense on the Bell
murder indictment after the close of testimony; and (4) there was
insufficient evidence to support the jury's verdict of guilty on the
Profit alleges that joinder of the
Bell and Johnson charges for trial was reversible error.
Because this case raises some confusion as to the
appropriate standard to be applied in a joinder analysis, we must look
at the joinder issue in some detail.
Joinder of criminal offenses is governed by Minn. R.
Crim. P. 17.03. Rule 17.03, subd. 1 sets forth the general criteria for
joinder, stating that “[w]hen the defendant's conduct constitutes more
than one offense, each such offense may be charged in the same
indictment or complaint in a separate count.” Rule 17.03, subd. 4 allows
the court, on motion from either party or on its own initiative, to join
offenses that could permissibly have been charged in a single complaint
or indictment under Rule 17.03, subd. 1. While the language of Rule
17.03, subd. 1 contains few express restrictions on joinder, the
Advisory Committee comments following the rule state that the rule
“adopts the provisions of Minn. Stat. § 609.035 (1971) leaving its
judicial interpretations to judicial decision.” Minn. R. Crim. P. 17.03,
cmts. Minnesota Statute section 609.035 (1998), in turn, provides that
“if a person's conduct constitutes more than one offense," all offenses
must be joined in a single prosecution.
We have traditionally analyzed joinder using the same
restrictive test we developed in applying Minn. Stat. § 609.035. See
State v. White, 292 N.W.2d 16, 18 (Minn. 1980). Under both the rule
and the statute, we have required that the joined offenses be part of a
single behavioral incident or course of conduct. See State v. Conaway
, 319 N.W.2d 35, 42 (Minn. 1982); White, 292 N.W.2d at 18;
but see Fed. R. Crim. P. 8(a) (allowing joinder of offenses of the
“same or similar character”). The factors relevant to determining
whether offenses constitute a single behavioral incident are the “time
and place [of the offenses] and * * * whether the segment of conduct
involved was motivated by an effort to obtain a single criminal
objective.” State v. Knight, 260 N.W.2d 186, 187 (Minn. 1977) (citing
State v. Johnson , 273 Minn. 394, 141 N.W.2d 517 (1966)).
In the present case, the state alleges that a 1990
amendment to Rule 17.03 implicitly relaxed the standards applicable to
our joinder analysis. Prior to 1990, Rule 17.03 contained no express
criteria for when improperly joined offenses must be severed. Instead,
the rule merely provided that “offenses * * * improperly joined shall be
severed for trial.” Minn. R. Crim. P. 17.03, subd. 3 (1989). However, in
1990, subdivision 3(1) was added to Rule 17.03. Subdivision 3(1) sets
forth the following express criteria for severance:
On motion of the prosecuting attorney or the
defendant, the court shall sever offenses or charges if:
(a) the offenses or charges are not related;
(b) before trial, the court determines severance is appropriate to
promote a fair determination of the defendant's guilt or innocence of
each offense or charge; or
(c) during trial, with the defendant's consent or upon a finding of
manifest necessity, the court determines severance is necessary to
achieve a fair determination of the defendant's guilt or innocence of
Minn. R. Crim. P. 17.03, subd. 3(1) (emphasis added).
Under the language added by Rule
17.03, subd. 3(1), a district court must first decide whether the joined
offenses are related. If the court concludes that the offenses are not
related, the court must then sever them for trial. Only if the offenses
are found to be related does the court proceed to decide whether
severance is nonetheless required because the joinder would be
prejudicial. See Conaway , 319 N.W.2d at 42.
In the present case, the district court properly
followed the sequence set forth in Rule 17.03, subd. 3(1). The court
correctly noted that joinder is proper when the charged offenses are
related, but that even related offenses must be severed if joinder would
unfairly prejudice the defendant. Reasoning that “the similarities of
the offenses indicate the presence of a common plan and objective,” the
court concluded that the Bell and Johnson offenses were related. The
court then concluded that because evidence of each offense would be
admissible as Spreigl evidence in a separate trial on the other,
joinder was not prejudicial.
The confusion in this case arises from the use of the
term “related” in Rule 17.03, subd. 3(1). Under our traditional joinder
analysis, joinder of the Bell and Johnson charges would be improper
because the offenses were not part of a single behavioral incident or
course of conduct. The Bell and Johnson offenses were separate crimes
against separate victims. Furthermore, several months passed between the
commission of the Bell murder and the Johnson assault. Cf. State v.
Dukes, 544 N.W.2d 13, 20 (Minn. 1996) (affirming the joinder of
separate crimes against separate victims when the crimes occurred within
one block and fifteen minutes of each other). While the district court
noted similarities in the modus operandi of the Bell and Johnson
offenses, it made no findings that the offenses were motivated by a
single criminal objective, or that either offense was dependent on or
incidental to the other.
The state argues that by requiring severance only if
the joined offenses are not “related,” Minn. R. Crim. P. 17.03, subd.
3(1), loosened the traditional restrictive requirement that joined
offenses be part of a single behavioral incident. Thus, the state
asserts, the district court's finding that the Bell and Johnson offenses
indicated a common plan was sufficient to warrant the denial of Profit's
motion to sever the charges. The history of Rule 17.03 lends some
support to the state's assertion.
The severance criteria of Rule 17.03, subd. 3(1) were
taken from Unif. R. Crim. P. 472(a) (1987), which, in turn, is based on
the ABA Standards for Criminal Justice 13-3.1(a) and (b) (1985). Minn.
R. Crim. P. 17.03, subd. 3, cmts. Unlike our traditional interpretation
of Rule 17.03, subd. 1, the only limits on joinder under the ABA
Standards are that the offenses must be related and their joinder must
not be prejudicial. ABA Standards 13-3.1. The ABA Standards define
“related offenses” to include not only those offenses based on the “same
conduct [or] upon a single criminal episode,” but also those based “upon
a common plan.” ABA Standards 13-1.2. Thus, by adopting the wording of
the ABA Standards, Rule 17.03, subd. 3(1) arguably permits less
restrictive joinder than would be allowed under our traditional “single
behavioral incident” requirement.
We have not yet addressed what, if any, effect Rule
17.03, subd. 3(1) had on our traditional joinder analysis. Our only
substantial analysis of Rule 17.03 since subd. 3(1) became effective
occurred in Dukes, 544 N.W.2d at 13. In Dukes, the
district court joined for trial charges stemming from the murder of one
victim and charges stemming from the attempted murder of a separate,
unrelated victim. Id. at 17. In upholding the district court's
refusal to sever the charges, we continued to espouse the traditional
joinder test without commenting on the provisions of Rule 17.03, subd.
In determining whether there should be separate
trials for separate charges, we look to how the offenses were related
in time and geographic proximity and at whether the actor was
motivated by a single criminal objective. * * * Here, where the time
between the two crimes was a matter of only a few minutes, the
proximity was within one block, and each crime was motivated by the
objective of obtaining money through robbery, the trial court did not
abuse its discretion in refusing to sever the trials.
Id. at 20 (internal citations omitted) .
We acknowledge that under some circumstances,
considerations of efficiency and public policy may support a shift to
less restrictive joinder standards, more in keeping with the standards
espoused by the Federal Rules of Criminal Procedure and ABA Standards.
But in light of our continued reliance on the traditional joinder
analysis in Dukes, and absent a clearer amendment to the
direction of Minn. R. Crim. P. 17.03, we decline to abandon our
traditional joinder standards here. Under that traditional analysis, we
require that joined offenses be part of a single behavioral incident and,
therefore, the existence of a common plan, alone, is simply insufficient
to support joinder. Accordingly, we hold that joinder of the Bell and
Johnson charges was improper.
Was Joinder Prejudicial?
Profit argues that if we conclude that the joined
offenses are unrelated, then we must remand the case for separate trials.
But “the ultimate question in a severance claim * * * is one of
prejudice.” State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996) (quoting
United States v. Foote, 920 F.2d 1395, 1401 (8th Cir. 1990),
cert. denied sub nom. Gardiner v. United States, 500 U.S. 946
(1991)). For that reason, even though joinder was improper, remand is
not required if the district court's denial of the motion to sever was
not prejudicially erroneous. See Conaway, 319 N.W.2d at 42;
Knight, 260 N.W.2d at 187.
In Conaway, this court affirmed the district
court's refusal to sever two charges, stating:
While, as a matter of policy, joinder made sense in
this case, it is stretching things to say that the two offenses were
part of a single course of conduct. Although joinder may have been
technically improper under the rule, it was not, however, prejudicial.
The evidence of each offense would have been admissible Spreigl
evidence in the trial of the other, and the trial court so held. * * *
Thus, there was no prejudicial error in joinder.
Conaway , 319 N.W.2d at 42 (internal citations
omitted) . Thus, in Conaway, we did acknowledge the value
of a Spreigl analysis in determining whether joinder is unfairly
prejudicial. But it is important to note that the purpose of and the
concerns raised by the joinder of criminal offenses are distinct from
those involved in the admission of Spreigl evidence—evidence of
other crimes or bad acts by a defendant offered to show identity, plan,
knowledge, or modus operandi. See generally State v. Spreigl, 272
Minn. 488, 139 N.W.2d 167 (1965).
Profit correctly points out that if evidence of the
Johnson attack had been offered as Spreigl evidence, the district
court would have been required to provide limiting instructions to
ensure that the jury did not use the evidence in an impermissible manner.
See State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985); see
also 10 Minn. Dist. Judges Ass'n, Minnesota Practice, CRIMJIG
2.01 (3d ed. 1990). In Spreigl evidence cases, such limiting
instructions are necessary to ensure that the jury does not convict the
defendant of the uncharged Spreigl offense rather than for the
crime with which the defendant was charged. But in joinder cases the
defendant is actually charged with both crimes. When a defendant is
charged with and may permissibly be convicted of both crimes, there is
less danger that the jury will try to punish the defendant for one crime
by convicting him of the other.
We do, however, recognize the inherent danger of
district courts proceeding directly to a Spreigl analysis after
paying only marginal attention to the traditional factors limiting
joinder. We therefore remind the courts that if after careful analysis
they conclude the joined offenses do not constitute a single behavioral
incident or course of conduct, they are to sever the charges. While on
appeal we ultimately look to whether the court's decision was
prejudicial, we are certainly more likely to find prejudice when the
joined offenses are unrelated in time, location, or objective. We
therefore caution district courts not to rely on a Spreigl
analysis to circumvent the traditional joinder analysis espoused by this
That said, we proceed with our analysis to determine
if the district court's refusal to sever the Bell and Johnson charges
was prejudicially erroneous. Because our purpose on the appeal of both
Spreigl and joinder issues is to determine whether the
introduction of evidence of other crimes at trial was prejudicial, the
analysis we have developed for Spreigl evidence serves as a
useful framework for evaluating the possible prejudicial effect of
improperly joining offenses. See Conaway , 319 N.W.2d at 47. The
admissibility of Spreigl evidence is governed by Minn. R. Evid.
404(b) and subject to Minn. R. Evid. 403. See Townsend, 546 N.W.2d
at 296. While such evidence may not be used to show the defendant acted
in conformity with bad character, it may be admissible to show motive,
intent, identity, or a common plan. See Minn. R. Evid. 404(b);
State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995). Even if offered
for such legitimate purposes, however, the evidence may be excluded if
its “probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Minn. R.
Evid. 403; see also Townsend , 546 N.W.2d at 296.
In determining the probative value of evidence,
the preferred approach is for the trial court to
focus on the closeness of the relationship between the other crimes
and the charged crimes in terms of time, place and modus operandi. * *
* [T]he closer the relationship, the greater is the relevance or
probative value of the evidence and the lesser is the likelihood that
the evidence will be used for an improper purpose.
State v. Frisinger, 484 N.W.2d 27, 31 (Minn.
1992) (internal citation omitted). While the modus operandi of the
“other” crimes and charged crimes need not be identical, “[t]his court
will readily uphold the admission of so-called `signature crimes' to
prove the identity of the perpetrator.” State v. Whittaker, 568
N.W.2d 440, 449 (Minn. 1997).
The record suggests that the Bell and Johnson
offenses share a common modus operandi. The victims in both of the
offenses were African-American women who, at least reputedly, worked as
prostitutes in the same area of Minneapolis. Both victims ingested crack
cocaine prior to their respective attacks. Both were transported to the
same area in or near Theodore Wirth Park. Eyewitness accounts or
physical evidence linked Profit to that area in both cases. Both of the
victims were left naked. Given these similarities, the jury could
reasonably infer that the same person committed the Johnson assault and
the Bell murder.
Because Profit made identity a relevant issue by
presenting an alibi for both offenses, use of evidence that Profit
committed one crime to imply that Profit also committed the other crime
is legitimate. See State v. Ture, 353 N.W.2d 502, 515 (Minn.
1984) (holding that when the defendant put his identity at issue by
offering an alibi, evidence of “strikingly similar” prior crimes
committed by the defendant was admissible to show identity in the
charged crime). While using the evidence to show identity was harmful to
Profit, evidence is unfairly prejudicial, and thus excludable, only if
used “to persuade by illegitimate means.” Townsend, 546 N.W.2d at
296 (quoting State v. Cermak, 365 N.W.2d 243, 246 n.2 (Minn.
1985)). Because, absent joinder, evidence of either crime could have
been used for legitimate means in a separate trial on each charge, we
hold that joinder, although improper under Minn. R. 17.03, was not
Profit also claims we should reverse
his convictions because the district court excluded evidence of the
purported serial killings and, specifically, of Paul Kelly's possible
involvement in the Phothisane killing. Throughout the course of this
litigation, Profit has relied on several different theories, including
judicial estoppel, curative admissibility, and reverse- Spreigl,
to show that this evidence was improperly excluded . While not
all of these theories were briefed to the district court or to us on
appeal, Minn. R. Crim. P. 28.02, subd. 11 gives us the power to review
any “matter as the interest of justice may require.” Given the important
liberty interests at stake in this case, we will address each of
Profit's various claims.
In his initial response to the state's motion to
exclude evidence of the purported serial killings, Profit argued that
because, in securing search warrants and in presenting its case to the
grand jury, the state alleged that the Bell murder was one of the
purported serial killings, the state was judicially estopped from
claiming that such evidence was irrelevant and therefore inadmissible at
trial. The doctrine of judicial estoppel forbids a party from assuming
inconsistent or contradictory positions during the course of a lawsuit.
See generally 31 C.J.S. Estoppel and Waiver § 139 (1996).
Unlike equitable estoppel, which protects the reliance interests of
parties, the purpose of judicial estoppel is to protect the integrity of
the judicial process from a party who plays “fast and loose with the
courts.” Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir.
1980). For judicial estoppel to apply, however, a party's subsequent
position must be clearly inconsistent with its original position. See
Levinson v. United States, 969 F.2d 260, 264 (7th Cir. 1992); Bay
Area Factors v. Target Stores, Inc., 987 F. Supp. 734, 740 (D. Minn.
1997). Therefore, “[j]udicial estoppel does not apply * * * where
distinct or different issues or facts are involved.” 31 C.J.S.
Estoppel and Waiver § 139; see also Levinson, 969 F.2d at
We have not expressly recognized the doctrine of
judicial estoppel and decline to do so here. The record contains no
evidence that the state ever lied to or attempted to mislead any
judicial body. Furthermore, because of their different purposes, grand
jury and warrant application proceedings may legitimately involve
different evidentiary and procedural considerations than are relevant to
a trial on the merits. See State v. Inthavong, 402 N.W.2d 799,
801 (Minn. 1987); State v. Nolting, 312 Minn. 449, 452-53, 254
N.W.2d 340, 343 (1977). Because of the differing nature of the
proceedings and the lack of bad faith on the part of the state, we
conclude that judicial estoppel, even if recognized, would be
inapplicable in this case.
In his response to the state's motion to exclude
evidence of his participation in the purported serial killings, Profit
also alleged that, because the state introduced such evidence at the
grand jury and warrant application proceedings, other evidence
purporting to exonerate him of the purported serial killings should have
been admitted at trial under the doctrine of curative admissibility. For
curative evidence to be admitted as a matter of right, the original
evidence must have been inadmissible and prejudicial. See Thurman v.
Pepsi-Cola Bottling Co., 289 N.W.2d 141, 144 (Minn. 1990) (citing
Busch v. Busch Contr., Inc., 262 N.W.2d 377, 387 (Minn. 1977)).
Because the general rules of evidence do not apply to either the grand
jury proceedings or warrant affidavits, Profit cannot make the requisite
showing that the evidence introduced by the state at either proceeding
was inadmissible. More importantly, because evidence of Profit's
involvement in the purported serial killings was never presented to the
petit jury, Profit suffered no prejudice at trial from the state's
references to the purported serial killings in the grand jury and
warrant application proceedings. Therefore, we conclude that the
doctrine of curative admissibility is not applicable to the facts of
Profit alleges that the district court impermissibly
excluded evidence essential to his defense. While on their face Profit's
claims may appear persuasive, an analysis of the record leads us to
conclude that: (1) the district court did not exclude nearly as much
evidence as Profit asserts; and (2) based on the foundational evidence
the court had before it, the court did not abuse its discretion in
excluding the evidence that was suppressed.
“[E]very criminal defendant has the right to be
treated with fundamental fairness and `afforded a meaningful opportunity
to present a complete defense.'” State v. Richards, 495 N.W.2d
187, 191 (Minn. 1992) (citing California v. Trombetta, 467 U.S.
479, 485 (1984)); accord U.S. Const. amend. XIV; Minn. Const.
art. I, § 7. However, “the accused `must comply with established rules
of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.'” Richards,
495 N.W.2d at 195 (quoting Chambers v. Mississippi, 410 U.S.
284, 302 (1973)). Thus, even when a defendant alleges that his
constitutional rights were violated, evidentiary questions are reviewed
for abuse of discretion. See State v. Gustafson, 379 N.W.2d 81,
84 (Minn. 1985).
Contrary to Profit's allegations, the district court
did not prohibit him from asserting that Kelly killed Bell. Testimony
concerning Kelly's access to the Grand Am and Profit's wallet was
admitted, as was evidence that Kelly had left the state. In his closing
argument, Profit's counsel reiterated the evidence linking Kelly to the
Bell killing and argued that “[i]f you look closely at the evidence in
this case there is more evidence * * * to suggest that Paul Kelly is
involved in this case than there is Mr. Profit himself.” Moreover, the
district court did not prevent Kelly from testifying. In ruling on the
state's motion in limine, the court said, “[i]f, in fact, Mr. Kelly has
information relevant to the specific cases before us, * * * Mr. Kelly
will obviously be allowed to testify.”
Profit has admitted that the reason Kelly did not
testify at trial was that the defense ceased its efforts to bring Kelly
to Minnesota after the trial court's ruling on the state's motion in
limine. Profit claims that there was no longer any purpose in bringing
Kelly to Minnesota if he could not question Kelly about the KARE letter
in which Kelly allegedly confessed to one of the purported serial
killings—that of Phothisane.  But it must
be remembered that the issue in the case was not whether Kelly was
involved in the Phothisane killing. The issue was whether Profit killed
Bell. Thus, evidence of the purported serial killings and Kelly's
possible participation in the Phothisane killing is only relevant
insofar as it tends to show that Profit did not murder Bell.
We have recognized that “a defendant may seek
to introduce evidence of other crimes or misconduct of a third person
to prove that the third person, rather than the defendant, committed
the crime charged.” State v. Johnson, 568 N.W.2d 426, 433 (Minn.
1997); see generally Minn. R. Evid. 404(b). Before such “reverse-
Spreigl ” evidence will be admitted, however, the defendant must
(1) clear and convincing evidence that [the third
person] participated in the [reverse-] Spreigl incident; (2)
that the [reverse-] Spreigl evidence is relevant and material
to the [defendant's] case; and (3) that the probative value of the
[reverse-] Spreigl evidence outweighs its potential for unfair
Johnson , 568 N.W.2d at 433 (holding that the
foundational requirements for reverse- Spreigl evidence are the
same as for traditional Spreigl evidence).
“To satisfy the relevancy requirement when reverse
Spreigl evidence is offered to establish the identity of the
perpetrator, the reverse Spreigl incident must be similar to the
charged offense either in time, location, or modus operandi.”
Whittaker, 568 N.W.2d at 449 (citing Johnson , 568 N.W.2d at
428). We acknowledge that the record reveals numerous similarities
between the Bell murder and the purported serial killings and that the
police investigation of the Bell murder as one of the purported serial
killings indicates the crimes bore “signature” elements.
 However, while such similarities may
permit an inference that the same person committed all of the killings,
this inference was of little value to Profit unless he also provided
clear and convincing evidence that someone other than he—in this case,
Kelly—committed the killings.
Providing clear and convincing evidence of Kelly's
participation in the Phothisane killing is a threshold requirement for
the admission of that evidence. See State v. Shannon , 583 N.W.2d
579, 584 (Minn. 1998). Clear and convincing evidence is “more than a
preponderance of the evidence but less than proof beyond a reasonable
doubt.” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). The
evidentiary burden is met when the truth of the facts sought to be
admitted is “highly probable.” Id. Clear and convincing evidence
of participation in a crime has been found “on the strength of a
conviction, a victim's clear identification of the defendant as the
assailant, or the defendant's own confession of participation in the
incident.” Shannon , 583 N.W.2d at 584. We have refused to admit
Spreigl evidence when the foundational evidence presented did not
clearly show the person's direct participation in the other crime. Id.
On appeal, Profit crafts a well-packaged argument
attempting to link Kelly to the Phothisane murder. However, our function
as a reviewing court is not to determine the factual merits of Profit's
claim. That job belongs to the district court. Our function is to look
at the evidence presented to the district court and determine whether,
in light of the record, the district court clearly abused its discretion
in suppressing evidence of the purported serial killings.
In analyzing the evidence that was actually presented
at trial, we first note that Profit never briefed the reverse-
Spreigl issue to the district court, but only raised the issue as an
oral objection well after the court had already ruled on the state's
motion in limine. More importantly, the evidence that Profit provided to
the district court did little to support his claims that Kelly or anyone
other than Profit committed the purported serial killings.
Profit offered very little evidence about Paul Kelly,
the man whom he accuses of committing the purported serial killings. The
record shows that the defense knew where Kelly was and had hired counsel
in Texas to serve process on Kelly. Yet, although Profit alleges that
evidence of Kelly's involvement in the purported serial killings was
essential to his defense, he never brought Kelly to Minnesota to testify
at the pretrial evidentiary hearing so that the district court could
hear what Kelly would say. No formal statements from Kelly appear in the
record. No testimony showing that Kelly had either the motive or the
opportunity to kill Phothisane was offered. Instead, to support his
claim that Kelly killed Phothisane and therefore Bell, Profit relies
almost exclusively on (1) an alleged alibi for one of the purported
serial killings, which alibi first surfaced on appeal, and (2) the KARE
letter and police affidavits discussing the origins of the letter.
On appeal, Profit claims that he had an alibi for the
night of one of the purported serial killings. But Profit never raised
this claim at trial, and on appeal he fails to cite any evidentiary
support in the record for the claim. Because the district court never
heard Profit's alibi claim, and because the claim is completely
unsubstantiated by the record, we give little weight to the claim in our
analysis of whether the district court abused its discretion.
Profit also relies on the KARE letter, which he calls
a confession, as clear and convincing evidence that Kelly killed
Phothisane. In the past, we have held that a confession by a defendant
may be admitted as Spreigl evidence, even when that confession
was subsequently retracted by the defendant. See State v. Spaeth,
552 N.W.2d 187, 195 (Minn. 1996). In Spaeth , the defendant, as
part of an arrangement set up by his attorneys and the police, provided
a statement to the police admitting to two burglaries in return for the
promise that he would not be prosecuted for those burglaries. Id.
at 193. When the state subsequently sought to use those confessions as
Spreigl evidence in a different case, the defendant denied
committing the burglaries, saying he only confessed because he was
pressured by the police into doing so. Id. at 194. At the hearing,
however, the defendant's former attorney testified that the defendant
was never required to speak to police about the burglaries and that no
harm would have befallen him had he not confessed. Id. Thus, the
validity of the confession admitted in Spaeth was supported by
the fact that the confession itself was an express and unequivocal
admission of guilt by the defendant and extrinsic evidence showing that
the defendant's subsequent retraction of that confession was baseless.
In contrast to the Spaeth confession, the
circumstances surrounding the KARE letter, at least insofar as they are
reflected in the record, do little to ensure its validity. Because Kelly
was not brought to Minnesota to testify and no witness testified as to
the circumstances surrounding the KARE letter's creation, the only
evidence in the record putting the KARE letter into context are police
affidavits supporting warrants to search Profit's property.
The police affidavits show that Kelly wrote the KARE
letter and that he provided police with information linking Profit to
the crime. But despite the fact that both Profit and the dissent have
labeled the KARE letter a confession, the affidavits indicate that Kelly
never actually told anyone that he committed the Phothisane killing.
According to the affidavits, even after he admitted to writing the
unsigned KARE letter, Kelly told police that he wrote the letter only
because Profit ordered him to do so. From the affidavits, it appears
that the police investigated Kelly's story, believed him, and then
relied upon Kelly's information to investigate and subsequently charge
Profit. The affidavits indicate that the police suspected Profit, not
Kelly, had committed the killings. Although Profit relies almost
exclusively on these affidavits to put the KARE letter into context, he
fails to offer any evidence to counter the affidavits' conclusions that
Profit, not Kelly, was the serial killer.
Without any evidence of what Kelly would say if
called to testify, the import of the KARE letter is further reduced. The
KARE letter is an out-of-court statement offered to show that its author
killed Phothisane. Thus, the letter is hearsay. See Minn. R. Evid.
801(c). As such, not only is the KARE letter's veracity inherently
suspect, but the letter itself would be inadmissible except to impeach
Kelly's testimony. Minn. R. Evid. 801(d)(1), 802. If Kelly was
unavailable to testify, which Profit did not show, the KARE letter would
not be admissible under any exception to the hearsay prohibition absent
some independent guarantee of trustworthiness. See Minn. R. Evid.
804(b)(3) (providing that a hearsay statement against the declarant's
interest is admissible only if the declarant is unavailable and
“corroborating circumstances clearly indicate the trustworthiness of the
statement”). Because the only evidence in the record supplying context
to the unsigned, barely legible KARE letter was police affidavits
suggesting that the letter was not what Profit asserted it to be, a
confession by Kelly, the necessary indicia of trustworthiness were
simply not present.
In addition to exposing the weaknesses in the KARE
letter, the record contains additional, circumstantial evidence linking
Profit, and not Kelly, to the purported serial killings. On cross-examination,
Profit admitted that he had been familiar with Theodore Wirth Park. He
grew up in that area and, in 1981, picked up one of his rape victims
near there. In addition, at the hearing on the motion in limine, the
state indicated that Kelly had an alibi for the night of the Phothisane
killing. While this claim was not detailed, let alone conclusive, the
defense presented no evidence to counter the inferences suggested by the
If the record contained additional or different
evidence implicating Kelly as Phothisane's killer, our conclusion
concerning the district court's exclusion of the KARE letter might well
be different. However, taken as a whole, the record does more to suggest
that Profit committed all of the purported serial killings than to show
clear and convincing evidence that Kelly participated in any of them. In
evidentiary matters, we accord great deference to the discretion of the
district court. We refuse to second-guess the court based on the
speculative and untrustworthy nature of the evidence contained in the
record before us. Accordingly, we hold that the court did not abuse its
discretion in excluding evidence of the purported serial killings.
After the close of testimony, the
district court, pursuant to a motion by the state, changed the dates of
the offenses on the Bell murder indictment from “on or between May 21,
1996 and May 23, 1996” to “on or about May 21, 1996.” The court then
instructed the jury using the amended timeframe. Profit claims that the
amendment was an “impermissible response to defense tactics” made after
the defense had closed its case.
We review amendments at trial of an indictment for an
abuse of discretion and will only reverse such decisions upon a showing
of prejudicial error. See State v. Ostrem, 535 N.W.2d 916, 922 (Minn.
1995). A district court may permit an indictment to be amended “at any
time before verdict or finding if no additional or different offense is
charged and if substantial rights of the defendant are not prejudiced.”
Minn. R. Crim. P. 17.05. “[I]n order to prejudice the substantial rights
of the defendant, it must be shown that the amendment either added or
charged a different offense.” Gerdes v. State, 319 N.W.2d 710,
712 (Minn. 1982).
In Gerdes, we addressed a question similar to
the one presented here. In Gerdes, the state moved to amend the
date of the alleged offense after the defendant's testimony showed that
he could not have committed the charged crime on the date set forth in
the original complaint. Id. at 711-12. We recognized that “where
the date is not the essential element of the crime the trial court may
properly allow an amendment of the complaint so that it comports with
the evidence presented at trial.” Id. at 712. Accordingly, we
held that the district court did not abuse its discretion in permitting
the complaint to be amended. Id.
Contrary to Profit's claims, the amendment to the
Bell indictment did not represent a fundamental shift in the
prosecution's theory. As early as its opening arguments, the state
conceded that “it's somewhat difficult to determine exactly when [Bell]
died” and that the murder could have occurred “within one day to one
week before her body [was] recovered.” Dr. Morey, a state's witness,
said Bell could have been killed up to a week before her body was
discovered on May 23. Bell's mother testified that she last spoke to
Bell on May 18, 1996. Because the amended date on the Bell indictment is
consistent with the case the state presented throughout the course of
the trial, we conclude that Profit suffered no prejudice from amending
the indictment after the close of testimony.
Profit challenges the sufficiency of
the state's circumstantial evidence to support the jury's verdict
finding him guilty of Bell's murder. Profit was found guilty of two
counts of first-degree murder under Minn. Stat. § 609.185(1) and (2)
(1998) and one count of intentional second-degree murder under Minn.
Stat. § 609.19, subd. 1(1) (1998). Section 609.185(1) requires the state
to prove that the defendant killed a human being with premeditation and
intent. Section 609.185(2) requires the state to prove that the
defendant killed a human being “while committing or attempting to commit
criminal sexual conduct in the first or second degree with force or
violence.” Section 609.19, subd. 1 requires a showing that the defendant
“cause[d] the death of a human being with intent * * * but without
“While a conviction based only on circumstantial
evidence warrants stricter scrutiny, such `evidence is entitled to the
same weight as any evidence so long as the circumstances proved are
consistent with the hypothesis that the accused is guilty and
inconsistent with any rational hypothesis except that of guilt.'”
State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (quoting State v.
Bias , 419 N.W.2d 480, 484 (Minn. 1988)) (additional citations
omitted). In analyzing a challenge to the sufficiency of the state's
evidence, we review the record “to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient to
permit the jurors to reach the verdict which they did.” State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). In so doing, we must “recognize
that the jury is in the best position to evaluate the credibility of
witnesses” and assume that, after due consideration, the jurors believed
the state's witnesses. See Ashby, 567 N.W.2d at 27; State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989).
In the present case, the state offered the testimony
of Dr. Morey who concluded that Bell's death was a homicide. The
evidence linking Profit to that crime included the following: Profit's
wallet was found within several feet of where Bell's body had been
discovered; Profit drove the Grand Am in which police discovered threads
and fibers that experts concluded were indistinguishable from threads
and fibers found on the ligature used to strangle Bell; and Profit told
investigators that he “always” drove the Grand Am because it was the
“only car he was insured under.” A natural inference from this evidence
is that Profit killed Bell.
This inference is buttressed by the state's
Spreigl evidence and the state's evidence of the Johnson assault,
which the district court found was sufficiently similar to the Bell
murder to indicate a common plan. The Spreigl evidence showed
Profit's pattern of abducting women, removing their clothes, tying them
up with their clothes, and then raping them. Johnson, an African-American
prostitute from the Broadway Avenue area of Minneapolis was picked up in
that area and induced to smoke crack cocaine, taken to Theodore Wirth
Park, assaulted, and left nude. The state's evidence suggested that Bell,
an African-American woman, was a prostitute who worked in the Broadway
Avenue area of Minneapolis; that she used cocaine within a few hours
before her death; that her nude body was found in Theodore Wirth Park;
and that a ligature resembling the waistband from an article of clothing
had been tied around her head and neck. From these similarities, the
jury could reasonably infer that if Profit committed the Spreigl
and Johnson crimes, he also killed Bell.
To support the verdicts, however, the state also had
to show that Profit killed Bell intentionally, with premeditation, and
while committing or attempting sexual assault. “[T]he jury may infer
that a person intends the natural and probable consequences of his
actions.” State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). A
jury may also infer the defendant's intent to kill from the nature of
the killing. Id.
Premeditation may also be inferred from the nature of
the crime. State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992). To
support a verdict of premeditated murder, however, the state's evidence
must show that the defendant considered, planned or prepared for, or
determined to commit, the act prior to its commission. Minn. Stat. §
609.18 (1998). “A finding of premeditation does not require proof of
extensive planning or preparation to kill, nor does it require any
specific period of time for deliberation.” Cooper , 561 N.W.2d at
180. Rather, “[t]he requisite plan to commit first degree murder can be
formulated virtually instantaneously.” State v. Pilcher, 472 N.W.2d
327, 335 (Minn. 1991).
In the present case, the manner of the killing
sufficiently supports findings of both intent and premeditation. Dr.
Morey testified that the ligature used to strangle Bell was “wrapped
tightly around [Bell's] neck once and secured behind her neck * * * with
a knot,” and that one end of the ligature “went across [Bell's] mouth
and * * * underneath her tongue within her mouth.” Dr. Morey also
testified that the loop around Bell's neck was approximately five inches
shorter than the circumference of her neck, left a one-half inch deep
furrow in her neck, and was secured so tightly that he had difficulty
inserting his fingers between it and her neck.
While the strangulation alone does not support an
inference of premeditation, such an inference may be supported by the
circumstances surrounding the strangulation. See Pilcher, 427 N.W.2d
at 335. The natural consequences of tying an elaborate noose around a
person's neck and tightening it to such extremes would be the death of
that person. The intricate manner in which the ligature was looped and
tied indicates that some appreciable time must have passed between the
beginning of the strangulation and the end. The tightness of the
ligature and the fact that it was knotted in that position suggest that
the assailant was determined to kill Bell. In addition, according to
state witnesses, Profit had said he would go to extreme measures to
destroy evidence of his rapes. Such evidence reasonably supports
findings of intent and premeditation.
Although it presents a closer question, we also
conclude that the evidence was sufficient for the jury to convict Profit
of killing Bell while engaged in or attempting to commit criminal sexual
conduct. Profit asserts that, because there were no injuries to Bell's
vagina or any place other than her neck, and because no semen was found,
there was insufficient evidence of criminal sexual conduct. Profit
alleges that even if the jury could reasonably have inferred that Bell
had sex prior to her death, the state presented no evidence that the sex
was not consensual.
For the jury to find a defendant guilty under Minn.
Stat. § 609.185(2), the state must show the defendant killed the victim
while committing or attempting sexual penetration or sexual contact by
force or violence. See Minn. Stat. § 609.343 (1998) (defining
second-degree criminal sexual conduct). Like premeditation and intent,
the existence of such sexual conduct can be inferred from the manner of
the crime. See Pilcher, 427 N.W.2d at 336 (holding that evidence
of “the position of the body, dirt and debris found in the buttocks and
pubic area, the blood stained undergarments, the disheveled clothes, the
manual strangulation, and the bruising in the left breast area” was
sufficient to support a conviction of murder under Minn. Stat. §
The inference that Bell had sexual contact prior to
her death is reasonably supported by the fact that she was a reputed
prostitute, was found naked, and had mud packed onto her vaginal area
and upper torso. The fact that no seminal fluid or vaginal injuries were
found is not dispositive, especially in light of Dr. Morey's testimony
that the decomposition of Bell's body and the waters of Basset Creek
could have destroyed such evidence. Furthermore, the testimony of two
witnesses indicated that Profit knew the importance of not leaving
physical evidence behind after a rape.
The conclusion that there was sexual contact and that
it was forced rather than consensual is also supported by the state's
Spreigl evidence. The evidence of Profit's prior crimes showed that
his pattern was to abduct, strip, bind, and then rape his victims. The
state showed many similarities between the Bell killing and Profit's
prior rapes, including evidence that Bell was naked, had been bound with
an article of clothing, and was from north Minneapolis. While the
Spreigl crimes occurred 15 years prior to Profit's trial, Profit
spent the vast majority of those 15 years in prison. The passage of time
between the Spreigl and charged crimes has little effect on the
relevance of the Spreigl crimes if, during that time, the
defendant was in prison without any opportunity to commit subsequent
crimes. See State v. Scott, 323 N.W.2d 790, 793 (Minn. 1982).
Furthermore, testimony indicated that even while confined Profit
continued to plan and strategize rapes. Based on this evidence, we hold
that the jury could reasonably conclude beyond a reasonable doubt that
Profit killed Bell while committing or attempting to commit criminal
C O N C U R R E N C E / D I S S E N
ANDERSON, Russell A., Justice (concurring
in part, dissenting in part).
I respectfully dissent from the court's decision
affirming Profit's conviction for the murder of Renee Bell.
The murder of Renee Bell on or about
May 21, 1996, was one of a series of murders that occurred during the
summer of 1996 in or near Theodore Wirth Park in Minneapolis. It is
readily apparent from the record before us that during its investigation
of the killings in or near Theodore Wirth Park, the state considered the
murders to have been committed by one person. Law enforcement officials
investigated these crimes as signature crimes, believing that they were
dealing with a serial killer who also was attempting to destroy evidence
of sexual assault. The state created a task force to investigate the
killings and relied upon the serial nature of the crimes when seeking
search warrants. One police affidavit described the crime scenes in the
Keoourdorn Phothisane murder and an earlier murder as “almost identical.”
In its presentation of evidence to the grand jury, the state referred to
the suspect as a “serial killer.” All of the victims were alleged to be
prostitutes and their bodies were either burned, or in the case of Bell,
packed with mud, arguably to hide evidence of sexual assault. Police
considered Profit to be a suspect in these serial killings.
The only direct evidence that Profit murdered Bell
consisted of (1) fibers found in the trunk of Profit's car which were
similar to fibers in the ligature used to strangle Bell, and (2) the
discovery of Profit's wallet more than 50 days after Bell's murder in an
area close to where Bell's body was found. At trial, Profit and members
of his family testified that Paul Kelly had access to and drove Profit's
car around the time of Bell's killing. Testimony also was presented that
Profit always kept his wallet in his automobile. In his closing argument,
Profit's defense counsel argued that the evidence pointed to Paul
Kelly's involvement in the murder of Bell.
Before trial, the state moved to
exclude evidence of the other serial killings from Profit's trial and
also moved to preclude all testimony from Kelly. The trial court granted
the motion except as to Kelly, ruling that Kelly could testify regarding
the Bell murder and the Johnson assault, but not as to unrelated,
uncharged offenses. This ruling prevented Profit from calling Kelly to
testify about a letter that Kelly wrote to KARE 11 TV in which he
confessed that he killed, broke the neck of, and burned, one of the
serial victims, Phothisane, a male transvestite. Phothisane's body was
found on July 20, 1996, 1½ blocks away from where Bell's body was found.
The issue, then, is whether the trial court abused
its discretion by ruling that Profit could not call Kelly to testify
concerning his confession to the Phothisane murder, and, if error
occurred, whether it was prejudicial.
Trial court decisions concerning the admissibility of
evidence are reviewed for abuse of discretion. See State v. Gustafson
, 379 N.W.2d 81, 84 (Minn. 1985). Constitutional errors are
reversible unless they are found harmless beyond a reasonable doubt.
See State v. Fossen , 282 N.W.2d 496, 511 n.12 (Minn. 1979) (citing
Chapman v. California , 386 U.S. 18, 24 (1967)). An error is
prejudicial if there is “`reasonable possibility that the [error]
complained of might have contributed to the conviction.'” Chapman
, 386 U.S. at 23 (quoting Fahy v. Connecticut , 375 U.S. 85,
Our Minnesota and United States Constitutions are
protectors of the basic right to present a defense in a criminal trial.
See U.S. Const. amend. XIV; Minn. Const. art. I, § 7. A
defendant's right to present a defense includes providing a forum for
the defendant to develop his or her own version of the facts. See
Washington v. Texas , 388 U.S. 14, 19 (1967). “The right to offer
the testimony of witnesses * * * is in plain terms the right to present
a defense, the right to present the defendant's version of the facts as
well as the prosecution's to the jury so it may decide where the truth
lies.” State v. Richards , 495 N.W.2d 187, 194 (Minn. 1992) (quoting
Washington , 388 U.S. at 19). Trial courts must allow defendants
to present favorable evidence which is material to their cases. See
United States v. Valenzuela-Bernal , 458 U.S. 858, 867-68 (1982).
We have made clear that when evidence
of other crimes is relied upon by the state to prove identity, the
defendant is also entitled to introduce similar other crime evidence to
cast doubt upon the state's identification of the defendant as the
individual who committed the charged crime. State v. Bock , 229
Minn. 449, 458, 39 N.W.2d 887, 892 (1949). In Bock , we stated:
Where the state has introduced evidence of other
crimes to establish identity, the defendant is entitled to rebut the
inference that might be drawn therefrom by showing that the crimes
have been committed by someone else. He should also have the right
to show that crimes of a similar nature have been committed by some
other person when the acts of such other person are so closely
connected in point of time and method of operation as to cast doubt
upon the identification of defendant as the person who committed the
crime charged against him .
Id. (emphasis added) (internal citations
Kelly's written confession that he killed Phothisane
is “other crimes” evidence and its admissibility is all the more
compelling because the state relies upon an “other crimes” analysis to
justify joinder of the Bell and Johnson cases. 
Profit, accused of a murder that is part of a serial pattern, should
have been allowed to present to the jury evidence that Kelly confessed
in writing  to killing a victim under
nearly identical circumstances a few weeks later, 1½ blocks away from
the site where the victim in the charged crime was found. That such
evidence should have been admitted is particularly compelling when, as
here, there is evidence circumstantially linking Kelly to the Bell
murder; namely, that Kelly drove Profit's car and had access to Profit's
Furthermore, the court's analysis
allows the Bell murder and the Johnson assault to be considered
signature crimes for purposes of analyzing the impact of improper
joinder but does not allow Profit the opportunity to present as part of
his defense the serial nature of the Bell and Phothisane killings. This
analysis is troubling, particularly when the crime confessed to by Kelly,
the killing of Phothisane, has more similarities to the Bell murder than
does the Johnson assault.
The court's opinion does not dispute that the trial
court's ruling on the state's motion to exclude the testimony of Kelly
prevented Profit from calling Kelly to testify concerning Kelly's
handwritten confession in which he admitted that he killed Phothisane.
The court concludes, however, that the handwritten confession of Kelly
is inadmissible because it is hearsay. I agree that without Kelly's
testimony, the confession is hearsay, but it is made inadmissible
hearsay only by the trial court's ruling, affirmed by the court, which
denied Profit the right to call Kelly to testify concerning the
In my opinion, the trial court committed prejudicial
error when it ruled, in response to a pretrial motion of the state, that
Profit could not present “other crimes” evidence regarding the KARE 11
confession and Kelly's involvement in the murder of Phothisane. The
trial court should have allowed Profit to present the testimony of Kelly
to the jury and should have allowed the jury to determine the truth of
the matter.  The trial court's ruling, now
affirmed by the court, denied Profit his constitutional right to present
a defense. On review, there is a reasonable possibility that the trial
court's error might have contributed to the conviction of Profit for the
murder of Bell. Therefore, I would remand the Bell case to the district
court for a new trial.
I would affirm Profit's conviction for the assault
against Johnson based upon the overwhelming direct evidence of guilt
presented at trial. The error that I write of is not prejudicial as to
Profit's conviction for assault against Johnson because there is no
reasonable possibility that the error contributed to Profit's assault
The manner in which the jury was
instructed with regard to the joined cases is also troubling. If the
trials had been severed but evidence of the other crime had been
admitted as Spreigl evidence, the jury would have been cautioned
against using one alleged crime to convict Profit of the other. See
10 Minn. Dist. Judges Ass'n, Minnesota Practice , CRIMJIG 2.01 and
3.16 (3d ed. 1990).
Here, no such cautionary instruction
was given regarding the Bell and Johnson charges, even though the trial
court did instruct the jury that “other crimes” evidence from acts
committed in 1981 had been admitted for the limited purpose of assisting
the jury in determining if Profit committed the crimes charged. The
jurors were instructed that they could not convict Profit on the basis
of “other crimes” that occurred in 1981.
In State v. Knight , we rejected a defendant's
argument that joinder was prejudicial based upon – at least in part –
the fact that the trial court separated the issues and instructed the
jury to treat the two offenses separately. 260 N.W.2d 186, 187 (Minn.
1977). Similar instructions should have been given here. Instead, the
instructions given by the trial court did not direct the jury to treat
the Bell and Johnson cases separately. This error is compounded by the
fact that the trial court instructed the jury on how to regard the 1981
“other crimes” evidence, but left the jury to speculate as to how the
evidence of the Bell murder related to the evidence of the Johnson
assault, and how evidence of the Johnson assault related to the evidence
of the Bell murder. This jury could have deliberated with the
understanding that the strong evidence of guilt in the Johnson case
could be used as evidence that Profit committed the Bell murder even
though the evidence of identity in the Bell case was circumstantial and
weak.  Minnesota's jury instruction
guidelines does not contain a cautionary instruction when crimes have
been joined for trial, but I would urge trial judges to give a jury
instruction patterned after the federal jury instruction when charges
are joined. 
PAGE, Justice (dissenting and concurring).
I join in the dissent and concurrence of Justice
Russell A. Anderson.
STRINGER, Justice (dissenting and concurring).
I join in the dissent and concurrence of Justice
Russell A. Anderson.
We find Profit's failure to subsequently subpoena Kelly
as a witness despite the trial court's ruling puzzling in light of
Profit's argument on appeal. Profit claims that evidence of Kelly's
supposed involvement in the Phothisane murder and of the KARE letter
were essential to his defense. Again, however, the issue at trial was
not Kelly's guilt or innocence of the Phothisane killing, but Profit's
guilt or innocence of the Bell murder. Therefore, evidence of Kelly's
alleged participation in the Phothisane killing was irrelevant unless it
was also possible that Kelly killed Bell. If there was any validity to
Profit's claim that Kelly killed Bell, then summoning Kelly as a witness
to testify as to his own whereabouts on the night of Bell's killing, his
access to Profit's car and license, and other details of the Bell
killing would certainly have been valuable to Profit's defense.
 The dissent finds the
majority's reverse- Spreigl analysis “troubling” because of our
earlier conclusion that joinder of the Bell and Johnson offenses was not
prejudicial. We believe that the dissent misconstrues our analysis. We
recognize that the purported serial killings may be just as, if not
more, similar to the Bell killing than was the Johnson assault. However,
regardless of how many signature elements the Bell killing and the
purported serial killings share, the evidence of the serial killings is
not relevant for the purposes for which Profit seeks to admit it absent
a foundational showing, by clear and convincing evidence, that Kelly,
and not Profit, killed Phothisane. It is on this foundational
requirement that we focus our analysis.
 We find it necessary to
comment briefly on the burden of proof and standard of review in this
case. In the past, this court and certain individual justices have
suggested that there should be a higher burden for admitting reverse-
Spreigl evidence than there is for Spreigl evidence. See
State v. Hawkins , 260 N.W.2d 150, 159 (Minn. 1977) (holding that
before evidence of past bad acts of a third party could be introduced,
the defendant must make a foundational showing connecting the third
party to the actual commission of the charged crime); Johnson ,
568 N.W.2d at 438 (Tomljanovich, J., concurring specially). While we
need not decide here whether the defense should have a greater burden,
our holding that the district court did not abuse its discretion in
excluding the evidence of the purported serial killings is based on a
recognition that the defense's burden in introducing reverse- Spreigl
evidence should be no less than the state's burden in introducing
Spreigl evidence. Had the state offered similar evidence against
Profit as Spreigl evidence, the state would have been required to
meet each element of the three-prong test and, in addition, would have
had to abide by various procedural and notice requirements. See
Johnson , 568 N.W.2d at 438; State v. Bolte , 530 N.W.2d 191
(Minn. 1995). Yet, in seeking to admit evidence of the purported serial
killings, Profit relied on a mixture of unrelated arguments including
judicial estoppel and curative admissibility. The reverse- Spreigl
theory was never formally briefed to the district court and was
mentioned orally without prior notice. Therefore, we do not find the
district court's lack of specific findings concerning each element of
the reverse- Spreigl analysis as troubling as does the dissent.
Rather, on appeal, our duty is to look to the record as a whole to
determine whether, in light of the evidence therein, the district court
acted “arbitrarily, capriciously, or contrary to legal usage.”
Kroning v. State Farm Auto. Ins. Co. , 567 N.W.2d 42, 46 (Minn.
 In total, the
handwritten KARE letter stated:I am writing about the the he she I kill
Saturday I kill it because it was bad. I broke its neck and burned it I
saw it on the TV and you thank I kill all them people but I did not I
keep its clothes and purse for memories I have aids and I will die soon
but until I do I will half got ride of all the bad people I want you to
tell everybody that I am not bad God Bles you
 For purposes of this
dissent, I accept the court's analysis that evidence of the Bell murder
and evidence of the Johnson assault would have been otherwise admissible
to prove identity and modus operandi under an “other crimes” analysis
had these cases been tried separately. However, I question whether
evidence of the Bell murder would have been admissible as Spreigl
evidence in the Johnson assault case, given the overwhelming evidence of
Profit's identity in the Johnson case.
 While the court would
like to characterize Kelly's participation in the investigation as
cooperative so as to imply his innocence, it is not disputed that Kelly
only told investigators that he authored the KARE 11 confession after a
state handwriting expert identified the handwriting as Kelly's.
 The court rejects the
KARE 11 confession on grounds that it lacks “indicia of trustworthiness.”
On its face, it seems apparent that a handwritten confession, by itself,
is sufficient to allow the evidence to be presented to a jury. The trial
court made no findings regarding the trustworthiness of the confession.
 The court points to the
circumstantial evidence linking Profit, not Kelly, to the serial
killings, writing: “If the record contained additional or different
evidence implicating Kelly as Phothisane's killer, our conclusion
concerning the district court's exclusion of the KARE letter might well
be different.” The trial court's ruling on the state's motion in limine
made no findings and contained little analysis regarding Profit's
attempt to introduce the KARE 11 confession and other evidence of
Kelly's involvement in the Theodore Wirth Park killings. Instead, the
trial court rejected the evidence that Profit sought to introduce on
grounds that it was not relevant.
 The court concludes that
“[w]hen a defendant is charged with and may permissibly be convicted of
both crimes, there is less danger that the jury will try to punish the
defendant for one crime by convicting him of the other.” The court cites
no precedent for this statement. If there is danger that “other crimes”
evidence will prejudice a jury so that we require trial courts to
instruct jurors on how to view this evidence, it seems logical to
require similar safeguards when the offenses are joined.
 A sample federal jury
instruction for a single defendant charged with multiple counts reads:
“A separate crime is charged in each count of the indictment. Each
charge, and the evidence pertaining to it, should be considered
separately by the jury. The fact that you may find [the] defendant
guilty or not guilty as to one of the offenses charged should not
control your verdict as to any other offense charged.” Edward J. Devitt,
et al., 1 Federal Jury Practice and Instructions , § 12.12 (4th
ed. 1992). The model instruction used by the Eighth Circuit states:
“Keep in mind that each count charges a separate crime. You must
consider each count separately, and return a separate verdict for each
count.” Eighth Circuit Manual of Model Jury Instructions (Criminal), §