Hennepin County District Court File No. 27-CR-11-18537
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Smith, Presiding Judge; Cleary, Judge; and Hooten, Judge.
On appeal from his conviction of two counts of first-degree aggravated robbery involving two victims, appellant argues that (1) he is entitled to a new trial because the district court erred in admitting into evidence identification from a photographic lineup that did not use the double-blind sequential method; (2) the court improperly admitted, over his objection, prejudicial Spreigl evidence for which the state had provided no notice; (3) his constitutional right to a public trial was violated when the district court announced that the courtroom doors would be closed during jury instructions; (4) the court's sentencing order imposing an aggregated sentence of 162 months in prison unfairly exaggerated the criminality of his act; and (5) the district court judge violated the Code of Judicial Conduct. We affirm.
In the early-morning hours of June 8, 2011, O.C.L. and A.G.P. were working at a gas station in northeast Minneapolis when a man, later identified as appellant John Christian Richmond, entered the store holding a gun. It was approximately 1:30 a.m., and although appellant was wearing a sweater or jacket with the hood pulled up, O.C.L. could clearly see his whole face. Appellant approached the employees, who were sitting near the store's two cash registers, and yelled at them to give him money. O.C.L. thought appellant was going to kill him, so he opened the registers and gave appellant the money right away. Appellant demanded more money and asked if there was a safe in the store. O.C.L. said there was no safe, and appellant became even more agitated and fired his gun. The bullet struck the paper roll in the cash register located between the employees. Neither employee was hit by the bullet, but O.C.L.'s hearing was affected.
Appellant then ordered the employees to the back of the store, thinking there would be a safe there. O.C.L. hurried to the back of the store, hoping that he might be able to call the police, but appellant yelled at O.C.L. that he would kill him if he ran. Appellant realized that there was not a safe in the store and, while continuing to point the gun at both employees, told them to empty whatever they had in their pockets. Appellant then ordered the employees into the corner, threatened to shoot them if they moved, and left the store. A.G.P. called the police and told the emergency operator that they had just been robbed by a 40-year-old black male wearing a black sweater.
On the evening of June 9, L.H. was at her family's deli in northeast Minneapolis. She had arrived at the deli around 7:15 p.m. and was helping with closing duties. Around 8:10 p.m., she was standing by the windows when she saw a person outside. At trial, L.H. testified that the person caught her attention because although it was early summer and warm, he was wearing a heavier coat with the hood up and although it was dusk, he was putting on sunglasses. The following day, June 10, L.H. was looking at the Star Tribune website and noticed an article about a robbery that occurred near the deli. The article included a still photograph of the gas station robber taken from the gas station's surveillance camera, and L.H. believed the man in the photograph resembled the man she had seen outside the deli the night before. L.H. then called the number included in the article and spoke with Sergeant Carlson of the Minneapolis police department regarding the man that she had seen on June 9. At trial, Sergeant Carlson testified that it was, in part, the information from L.H. regarding the man she saw outside the deli that helped the police department suspect that appellant was involved in the gas-station robbery.
On June 14, police officer David Burbank administered a photographic lineup to O.C.L. and A.G.P. separately. When he administered the lineup, Officer Burbank knew that appellant was a suspect and that one of the photographs depicted him. He showed O.C.L. six pictures, one by one, and asked O.C.L. whether he recognized any of the men in the pictures as the person who had robbed him. O.C.L. selected appellant's photograph and was confident of his identification. Officer Burbank then showed
A.G.P. six pictures, one by one, and asked whether he recognized any of the pictures as the person who was involved in the robbery. A.G.P. also selected appellant's photograph and had no doubt that appellant was the person who had committed the robbery. The two employees were separated during the administration of the photographic lineups and did not speak with each other until after Officer Burbank had left. A.G.P. testified that Officer Burbank did not tell him to pick any particular photograph or use body language to suggest or otherwise influence which photograph to select. On June 24, L.H. was shown a photographic lineup by police officer Matthew McLean. Officer McLean was not aware which photograph in the lineup was the suspect. L.H. identified appellant's photograph.
Appellant was charged with two counts of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2010). Before trial, appellant moved to exclude the photographic lineups to A.G.P. and O.C.L. as unnecessarily suggestive and the testimony of L.H. as prejudicial, other-act evidence. The district court ruled that the lineup evidence would be admissible at trial and that L.H.'s testimony regarding what she saw at the deli would be admissible to show how appellant came to the attention of police. During trial, after counsel concluded closing arguments, the district court judge closed and locked the courtroom doors. In so doing, the judge stated that "I'm now going ...