State v. Reek, A19-0153

• Decision Date: 22 April 2020
• Docket Number: A19-0153
• Citation: 942 N.W.2d 148
• Parties: STATE of Minnesota, Respondent, v. Kevin REEK , Appellant.
• Court: Minnesota Supreme Court

942 N.W.2d 148

STATE of Minnesota, Respondent,

v. Kevin REEK , Appellant.

A19-0153

Supreme Court of Minnesota.

Filed: April 22, 2020

Keith Ellison, Attorney General, Saint Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, Saint Paul, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

OPINION

ANDERSON, Justice.

A jury found appellant Kevin Reek guilty of first-degree murder. In this direct appeal, Reek asserts several claims. Reek argues that the district court was biased in favor of the State when the court considered revisiting its prior Spreigl ruling without the prompting of either party and that the effect of the court’s actions was to deny Reek his right to an impartial judge. Reek next argues that an incorrect jury instruction on accomplice liability misstated the law; that the prosecutor made misstatements of the law regarding accomplice liability; and that, individually or combined, these unobjected-to errors were reversible plain error. Reek also argues that the district court abused its discretion by granting the State’s motion to admit Reek’s past convictions for impeachment purposes, including by allowing the specific crimes to be disclosed to the jury. Reek makes several additional arguments in his pro se supplemental brief. For the reasons explained in this opinion, we affirm Reek’s conviction for first-degree murder.

FACTS

On January 4, 2017, Myong Gossel, a 79-year-old widow who lived in Saint Paul, was found dead in her basement. The cause of death was determined to be a closed head trauma due to an assault. She also had several bruises and abrasions across various areas of her body. Her home was ransacked, her belongings were rummaged through, and her furniture was overturned. Gossel was last known to be alive on January 2, 2017, when she called a friend at 2:44 p.m. No calls placed to Gossel’s home after 2:44 p.m. were answered.

A police investigation revealed the fingerprints of Richard Joles on a jewelry box, which was found beneath the wreckage of Gossel’s furniture and personal property. At the time of the fingerprint discovery, Joles was in custody on unrelated charges. Police questioned Joles, who identified Perrin Cooper and Reek as involved in the robbery and homicide. Reek was arrested and initially was charged with second-degree murder. A grand jury returned an indictment charging Reek with murder in the first degree.

Before trial, the State sought to introduce Spreigl evidence of a prior crime committed by Reek. That prior crime evidence consisted of testimony from a co-defendant. At a pretrial hearing, the co-defendant stated that she, along with Reek, previously had tied up and physically assaulted an elderly couple. The co-defendant stated that the couple had a safe at their home, that Reek learned of the safe while performing manual labor for the couple, and that the purpose of restraining and assaulting the couple was to obtain money or other assets from the safe. According to the State, these events were similar to the facts associated with the assault and murder of Gossel. The State also sought to impeach Reek with his prior convictions should he testify at trial. The district court made preliminary rulings on the Spreigl and impeachment evidence. Reek ultimately did not testify at trial.

Reek provided notice to the State that he intended to introduce alternative-perpetrator evidence through the testimony of two witnesses, R.E. and J.G., who were former inmates with Joles. The defense claimed that these witnesses would testify that, while incarcerated, Joles made statements that could cast doubt on who was present during the robbery and killing of Gossel. Ultimately, Reek did not call these two witnesses at his trial.

During Reek’s trial, Cooper testified for the State that he was familiar with Gossel because Joles, a longtime acquaintance, had previously performed manual labor for Gossel. Cooper testified that Joles told him that Gossel was generous with her payments for manual labor and thus someone from whom money could be easily obtained. Cooper also testified that, just before Christmas 2016, he and Joles had travelled to Minnesota and received a $20,000 deposit from Gossel for tree trimming work to be performed in the spring. After returning to Indiana, shortly before New Year’s Day, he and Joles discussed a plan to obtain more advance payments from Gossel. It was during this conversation that Reek arrived and it was decided that they would travel to Minnesota to obtain more money from Gossel. Although Reek was a prior acquaintance of Joles, Reek did not know Cooper. The three men decided to make Gossel a target for acquiring money and left Indiana for Minnesota.

While driving to Minnesota in Reek’s truck, the three men smoked methamphetamine. During this trip, Reek suggested to Cooper that he gain Gossel’s trust at her door so they could tie her up in the basement and no one would hear her scream. Cooper thought Reek was "acting super paranoid" and "was off his rocker." When they stopped for gas in Baldwin, Wisconsin, Cooper and Joles left Reek at the gas station and continued to Minnesota without him.

After arriving in Minnesota, Joles and Cooper went to Gossel’s home. Gossel resisted their verbal demands for money and they were able to obtain only between $250 and $300. Cooper later pleaded guilty to simple robbery for these actions.

That same day, Reek, who was still in Baldwin, called and texted Cooper and Joles, demanding that they come get him. Cooper and Joles drove to Baldwin. They made up a story about getting arrested, which Reek did not believe; Reek was furious and thought that they had cut him out of the money they were supposed to get from Gossel. The group then returned to Minnesota.

On January 2, 2017, a neighbor’s security camera showed Reek’s truck driving past Gossel’s home. The group—Reek, Cooper, and Joles—visited the Dollar Tree where Reek purchased latex gloves. The group returned to Gossel’s neighborhood but abandoned the plan to obtain money from Gossel after concluding that they had been seen in the neighborhood. Two days later, on January 4, Gossel was found dead in her basement. A police investigation later determined that a cellular phone with which Reek was associated was located near Gossel’s home at the time of the murder; that Cooper’s cell phone was not near the home; and that Reek’s DNA was on the front of Gossel’s sweatshirt, on her refrigerator, and on the walls of her home. Police investigators also found latex gloves in the basement. Cooper’s sister, C.C., testified that Reek had called her and said, "Yeah, I killed that f’ing lady, tell them they will never get another dime from her. And tell your brother and Richard [Joles] I said that, when I see them, I will put a bullet into them."

The jury returned guilty verdicts on all counts. Reek was convicted of first-degree murder while committing or attempting to commit aggravated robbery and was also convicted of second-degree murder. Reek was sentenced to life with the possibility of release after 30 years for the first-degree murder conviction. Reek directly appeals his conviction to this court as of right.

ANALYSIS

I.

Reek’s first claim is that he was denied a fair trial before an impartial tribunal, in violation of the Due Process Clause of the Fourteenth Amendment and the Minnesota Code of Judicial Conduct, because the district court judge failed to recuse himself after allegedly becoming partial to the State. Reek’s claim of judicial bias is based on how the court handled the issues surrounding the admission of the Spreigl evidence.

At the pretrial hearing, the State argued for the admission of Spreigl evidence to prove identity and modus operandi of the perpetrator. The district court took the motion under advisement.¹ During trial, after the State called its last non-Spreigl witness, the jury was excused and the parties re-argued the Spreigl issue. Finding that the admission of the evidence was a "close call," the court ruled that it was excluding the Spreigl evidence.

After the ruling, the parties and the district court discussed the testimony of the defense’s two witnesses with whom Joles had conversations while they were incarcerated. Defense counsel reported that their testimony would be that Joles had made statements to them, which implicated himself and a relative of his, not Reek, in the murder of Gossel. As a result, the court stated: "If I were to allow [either of the two witnesses] to testify, I might very well have to reconsider the Spreigl motion by the State because then it makes identification all the more pertinent." The court also said that it would need "to give some serious thought to all of this tonight, gentlemen. You do the same, and let’s -- let’s just do this right, all right?" The court stated that it did not want "to try this case twice" and that it wanted "to get it right the first time." Reek’s counsel replied, "Your Honor, I -- I appreciate and understand your considerations and I will take them into account as I strategize as to how I may or may not try and present this evidence, and of course I'll be discussing this issue with my client."

The next morning, Reek’s counsel stated that he had made the "tactical" decision not to call Joles’s former fellow inmates. In its ruling that the Spreigl evidence was not admissible, the district court explained the concern that it had articulated the day prior, stating that, "[w]hen the Defense indicated that it might call the two informants," doing so "might shed a different light on" its "ruling to not allow the Spreigl evidence," and that its position had not changed because admitting such evidence "might very well open the door to the Spreigl evidence." The court repeated its prior ruling that the "State will not be allowed to [intr...