This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Kevin Terrance Hannon,


Filed July 1, 2003


Lansing, Judge


Stearns County District Court

File No. K8994069



Mike Hatch, Attorney General, Suite 500, 525 Park St., St. Paul, MN  55103; and


Roger S. Van Heel, Stearns County Attorney, Will R. Brost, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for appellant)


John M. Stuart, State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414; and


Joseph Margulies, Special Assistant Public Defender, 2520 Park Avenue South, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


Kevin Hannon was convicted of five counts of murder.  The supreme court reversed the convictions on evidentiary grounds and remanded for a new trial.  On remand the district court granted Hannon’s pretrial motion to suppress the state’s DNA evidence because it was obtained by using a polymerase-chain-reaction (PCR) procedure rather than the restricted-fragment length-polymorphism (RFLP) procedure, which had been accepted as accurate and reliable by the supreme court.  During the pendency of an appeal from the pretrial order, the supreme court ruled in a separate matter that the PCR methodology was a generally accepted procedure in the relevant scientific community as required for admission of scientific evidence.  State v. Traylor, 656 N.W.2d 885 (Minn. 2003).  Because we conclude that suppression of the DNA evidence would have a critical impact on the outcome of the trial, and suppression would be clear error in light of Traylor, we reverse.



A jury found Kevin Hannon guilty of one count of premeditated first-degree murder, two counts of felony murder (kidnapping), one count of felony murder (arson), and one count of second-degree intentional murder in the death of Deborah Tolhurst.  Firefighters found Tolhurst’s badly burned body in the apartment she shared with Hannon.  She had been severely beaten, and her hands, feet, and mouth had been bound with duct tape.

Hannon appealed his conviction, challenging the admissibility of custodial statements that he made after requesting, but not being provided with, an attorney.  The supreme court held that Hannon’s statements had been obtained in violation of his constitutional right to counsel and reversed and remanded for a new trial.  State v. Hannon, 636 N.W.2d 796 (Minn. 2001).

Before his first trial, Hannon had stipulated to the admission of a February 2000 Bureau of Criminal Apprehension (BCA) report analyzing DNA evidence taken from blood on a white shirt that Hannon allegedly wore on the day of the murder.  The shirt had been found in the back of a pickup truck parked at a bar in St. Cloud.  In his statement that was subsequently suppressed as a result of the supreme court appeal, Hannon admitted that he had tossed the white shirt stained with the victim’s blood into the bed of a pick-up truck shortly after Tolhurst’s death.  According to the BCA report, the DNA of the blood on the shirt matched the DNA of the victim. The BCA used the polymerase-chain-reaction (PCR) method of DNA testing on the shirt.  In March 2002, the BCA issued another report, analyzing DNA from scrapings of the shirt.  This report confirmed that the DNA of Hannon also matched the DNA extracted from the shirt. 

After the case was remanded for a new trial, Hannon demanded a speedy trial and moved to suppress the DNA evidence that identified the victim’s blood on Hannon’s shirt.  The district court granted Hannon’s motion to suppress the DNA evidence, noting the uncertainty of the law in the area of DNA testing in view of the then-pending appeals in State v. Traylor, 656 N.W.2d 885 (Minn. 2003), and State v. Roman Nose, 649 N.W.2d 815 (Minn. 2002).

The state appealed the suppression order, and this court stayed the appeal pending the supreme court’s release of its Traylor and Roman Nose decisions.  After the supreme court issued opinions in those cases, the stay was dissolved.  This appeal now proceeds.





A district court’s pretrial suppression order will be reversed only if the state can prove clearly and unequivocally that the district court erred and that the error will have a critical impact on the state’s ability to prosecute the defendant successfully.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  The threshold issue is whether the state has demonstrated that the suppression of the DNA evidence will have a critical impact on the outcome of the trial.  See State v. Kromah, 657 N.W.2d 564, 566 (Minn. 2003).  “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.”  Id. (quoting In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999)).

When analyzing critical impact, we first examine all available admissible evidence to determine the impact of the suppression.  In re Welfare of L.E.P., 594 N.W.2d at 168.  We then evaluate the inherent qualities of the suppressed evidence, including its relevance and probative force, chronological proximity to the alleged crime, effect in filling any gaps in the evidence viewed as a whole, any quality showing a perspective of events different from those that are otherwise available, clarity, and amount of detail and origin.  Id.  “Suppressed evidence particularly unique in nature and quality is more likely to meet the critical impact test.”  Id.

Hannon argues that the DNA evidence is irrelevant to the only issue that will be raised in the second trial, whether he acted with the mens rea necessary to prove the counts of the indictment.  In support of this argument, the defense points out that Hannon admitted at the first trial that he took responsibility for Tolhurst’s death but did not intend to kill her, that the district court ruled that Hannon’s voluntary statements could be used for impeachment purposes, and that three inmates from the Stearns County jail testified in the first trial that Hannon told them he killed Tolhurst.

The supreme court noted, however, that the crime had no eyewitnesses and that neither of the witnesses who testified about noises coming from Tolhurst’s apartment could identify Hannon’s voice.  Hannon, 636 N.W.2d 796, 807.  Thus, the state’s case ultimately rests on circumstantial evidence.  Should Hannon choose not to testify in his own defense at the second trial, his voluntary statements may not be used against him for impeachment purposes.  And the state has established that not all of the inmates who previously testified to Hannon’s earlier confession are available to testify at the second trial.  The supreme court’s conclusion that the evidence of Hannon’s guilt was not so overwhelming that the improper admission of Hannon’s statement was harmless error further confirms that suppressing the DNA evidence could substantially reduce the likelihood of a successful prosecution.  See id. at 799-803, 807.  For these reasons, we conclude that the state has made the necessary showing of critical impact that establishes the reviewability of the district court’s suppression order, and we turn to the question of whether the ruling was clear error.



In Minnesota, the two-pronged Frye-Mack standard governs admissibility of scientific evidence, including DNA evidence.  State v. Kromah, 657 N.W.2d 564, 565 n.2 (Minn. 2003).  The first prong of the Frye-Mack standard requires that the technique used to produce the scientific evidence have ‘“general acceptance in the particular field in which [the scientific principle or discovery] belongs.”’  State v. Roman Nose, 649 N.W.2d at 818 (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)).  Under the second prong, the results of testing are admissible when “‘the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.’”  Id. (quoting State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980)).  In other words, the Frye-Mack standard requires, first, that experts in the field widely share the view that the testing results are scientifically reliable, and second, that the laboratory conducting the specific test complied with appropriate standards and controls.  Id. at 819. 

Early forensic DNA testing was performed using a method known as restricted-fragment-length polymorphism (RFLP) testing, which the supreme court accepted as accurate and reliable in State v. Schwartz, 447 N.W.2d 422 (Minn. 1989).  But the supreme court has recently ruled that the PCR method is also generally accepted in the scientific community, as required under the first prong of the Frye-Mack standard.  Traylor, 656 N.W.2d 885.  Therefore, under current Minnesota law, the PCR method of DNA testing meets the requisite evidentiary standards for admissibility.

At the time the district court issued its suppression order, the supreme court had not yet issued its ruling in Traylor.  The district court noted that the state of the law was “in flux” because this court’s prior decision in Traylor, 641 N.W.2d 335 (Minn. App. 2002), was under review by the supreme court, but decided to grant the suppression motion “[g]iven the uncertainty of the law in this area, and in the interest of judicial economy.”

Hannon argues that the district court did not err by issuing the suppression order on the basis of the law as it existed at the time of the order.  But in this case the law was clearly in flux, and the district court did not base its suppression order on the law as it existed in the first Traylor decision, but rather on the principle that the law was undecided because review had been granted in Traylor, and that the order was required immediately because Hannon had made a demand for a speedy trial.  We stayed Hannon’s appeal of the suppression order pending the decisions of the supreme court in Traylor and Roman Nose.  

Hannon acknowledges that if the supreme court’s decision in Traylor controls this case, the PCR method of testing used in this case is valid as a matter of law.  Therefore, determining whether the district court erred in suppressing the evidence of DNA testing conducted by the PCR method requires that we address the issue of the retroactive application of the supreme court’s decision in Traylor.  Whether a decision applies retroactively is a legal question reviewed de novo by this court.  State v. Baird, 654 N.W.2d 105, 110 (Minn. 2002).

The rulings of the Minnesota Supreme Court are generally given retroactive effect.  See Baker v. State, 590 N.W.2d 636, 640 (Minn. 1999).  In Baird, the supreme court accorded retroactive effect to its decision in State v. Glowacki, 630 N.W.2d 392 (Minn. 2001).  Glowacki established the rule that when acting in self-defense, a person has no duty to retreat from one’s own home even if the aggressor is a co-resident.  The court in Baird noted that Glowacki was on appeal at the time of Baird’s trial and that to hold that Glowacki did not apply to Bairdwould be to treat similarly situated defendants differently.  Baird, 654 N.W.2d at 112.  The court further observed that it could find no rationale for excepting Glowacki from the general rule of retroactivity.  Id. at 113.

Similarly, in this case no rationale exists for departing from the general rule of retroactivity.  Traylor was on appeal to the supreme court at the time that the district court issued its suppression order in Hannon.  The issue of the methodology of DNA testing affected defendants Hannon and Traylor in a similar manner.  To treat Hannon differently from Traylor would amount to different treatment of similarly situated defendants.  In addition, retroactive application of Traylor would fully recognize the advances in DNA technology that have been approved by the scientific community as accurate and reliable.  It would be unreasonable to expect the technology of DNA testing to freeze and not to allow for subsequent scientific developments in the field.  The PCR method used to analyze the DNA evidence in this case has been employed by the BCA since February 1999.  Roman Nose, 649 N.W. 2d at 821.  Even before Traylor, the supreme court considered and upheld a conviction that relied in part on PCR-based testing.  See State v. Schneider, 597 N.W.2d 889, 893-94 (Minn. 1991) (discussing testing procedures but not ruling on admissibility of PCR test results).  Therefore, we conclude that it was clear error to suppress the PCR-based DNA evidence. 

We note that the Minnesota Supreme Court has encouraged district courts to be mindful of the potentially prejudicial nature of quantitative statistical probability evidence, to ensure that DNA evidence is not presented in a “misleading or unfairly prejudicial way.”  Kromah, 657 N.W.2d at 567.  But there is no indication in this case that the DNA evidence would be presented in a misleading or unfair fashion at trial.   We reverse, as a matter of law, the district court’s suppression order.

Lastly, we deny as moot Hannon’s motion to strike an affidavit appended to the state’s reply brief.  The affidavit, explaining the BCA’s reason for not conducting other forms of DNA testing, is immaterial given the state of the law after Traylor on the admissibility of DNA evidence obtained by the PCR method.  It is irrelevant to our analysis and was not considered in reaching our decision.