2008-M-094        State of Minnesota, Respondent, vs. Nicholas E. Bartylla, Appellant.

Appellant Nicholas E. Bartylla was convicted of murder in the first degree while committing criminal sexual conduct in violation of Minn. Stat. § 609.185(a)(2) (2006), and was sentenced to life imprisonment for the November 9, 2002, murder of May Mary Pelto.  At Bartylla‟s trial, the State presented evidence indicating that the profile of DNA left at the Pelto crime scene was a “cold hit” match to the profile of Bartylla's DNA, which had been entered into a state-mandated DNA database of known DNA providers.  In this direct appeal, Bartylla argues through counsel that:  (1) the taking of his DNA sample under Minn. Stat. § 609.117 (2002) was a warrantless, suspicionless search in violation of the Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution; (2) the trial court erred in allowing an expert to use the “product rule” to describe the statistical significance of the cold hit DNA match; and (3) admission of evidence of Bartylla's previous burglary conviction prejudiced Bartylla's right to a fair trial.  In his pro se supplemental brief, Bartylla alleges 14 additional trial errors.  We affirm.

 On November 8, 2002, Gary McCullum had dinner and watched television with his 88-year-old mother, May Mary Pelto, who lived alone in a four-plex in Maple Grove, Minnesota.  He went home around 9:30 p.m.  Pelto called McCullum at 12:30 a.m. and said she was going to bed.  McCullum called Pelto at about 10 a.m. on November 9 to remind her to take her prescription medicine, but the line was busy.  He continued calling Pelto for the next 2 hours to no avail.  He eventually went to her home. As he approached Pelto‟s home, McCullum noticed the blinds in her bedroom were down, which was unusual.  According to McCullum, although he used a key to enter the home, he did not think the front door was locked at the time because there was a lack of resistance when he turned the key to unlock the door.  He found Pelto lying on her bed on her back, with the covers pulled up.  When he saw injuries on her face, he called 911.  He went downstairs and noticed that the sliding glass door, which his mother did not use, was open 3 to 4 inches, although the drapes on the door were closed.  Officers responding to the 911 call found Pelto lying on the bed with no pulse.  She had a black eye, “blood [was] coming from either her mouth or her nose area,” and there was what appeared to be blood on the wall next to the bed.  They also observed the partially open sliding glass door.  A crime lab technician on the scene testified that, although Pelto's purse with cash in it was in plain sight, it appeared that nothing had been  taken from the home. 

Investigators from the medical examiner's office took photographs documenting the “essentially undisturbed” crime scene.  The position of Pelto's body in the bed suggested that she had been sexually assaulted.  A sexual assault kit collected during Pelto's autopsy revealed the presence of semen, confirming that Pelto had been sexually assaulted.

Page (Paul Anderson, Meyer, Barry Anderson, Gildea, and Dietzen)

               Took no part:  Magnuson

[MURDER}