DocketNumber： A14-941
Judges： Lillehaug, Hudson
Filed Date： 3/9/2016
Status： Precedential
Modified Date： 10/19/2024
OPINION
Byron David Smith was convicted of two counts of first-degree premeditated murder related to the shooting deaths of two peoplé. On direct' appeal, Smith argues that the district court committed four types of error. The State, in turn, argues that the district court committed error in determining the appropriate restitution for the victims’ families. We affirm the con
I.
This murder case arises out of the deaths of Nicholas Brady and Haile Kifer, who Smith killed in his home on Thanksgiving Day 2012. Smith, who lived in Little Falls, was the victim of a series of burglaries at his home. During a burglary on October 27, 2012, valuable items were taken, including a shotgun and a rifle. Smith notified the police, who investigated the crime. The intruder left a shoe print on the panel of the basement door when kicking- it in. The police were unable to determine who was responsible! for the break-in.
Smith was having trouble sleeping and was unhappy because of the break-ins. Smith suspected that his female neighbor, A.W., and her parents might be responsible for the break-ins. -Smith’s neighbor, W.A., told Smith that he believed A.W. and her parents were watching Smith’s house to see when he came and went. Worried that the burglar would return, Smith Started to carry his gun in. the house.
Around 10:30 a.m. on Thanksgiving morning, November 22, 2012, Smith and W.A. were talking outside of W.A.’s residence when they saw A.W. drive by. Less than an hour later, Smith moved his vehicle from his garage, which faced -the street, and parked it several blocks away, outside of the home of two state troopers. Smith later told investigators that he had. moved his car because he wanted to clean his garage and protect his car from vandalism. Smith then walked back to his residence, returning at 11:45 a.m. He walked through his backyard, which faced the river, ■ instead of approaching the main entry of his house from the street.
Around noon, Smith went down to his basement and turned ón a digital audio recorder. He sat down in an upholstered reading chair facing the side of the basement stairwell. Smith had a novel, a water bottle, and some snack bars. On his belt clip was a nine-shot revolver. Steps away from the reading chair was Smith’s loaded mini-14 rifle. Smith’s outdoor video surveillance system was. running. In the adjacent basement workroom was a screen showing pictures from four security cameras placed around the exterior of Smith’s home.
The events that followed were captured on Smith’s audio .recorder. „ About 11 minutes after turning on the recorder, Smith said, “In your, left eye.”
At 12:33 • p.m., . Nicholas Brady approached Smith’s house,--looked into the windows, and tried the doorknobs. Smith heard .the doorknobs rattling,, saw a shadow in front of the picture window in the basement, and listened, as Brady walked across the deck.. Then glass broke upstairs, which was the sound .of Brady breaking and entering through Smith’s bedroom window. Brady approached the
As Brady descended the stairs, Smith saw Brady’s feet, his knees, and then his hip. Smith shot Brady in the chest with the rifle. Smith later told investigators that he had not seen Brady’s hands when he fired.
Smith shot Brady a second time. Brady tumbled down to the basement floor, face up. Three seconds later, at close range, Smith shot the groaning Brady. The bullet went through Brady’s hand and then through the side of his head. Smith said to Brady, “You’re dead.”
Smith retrieved Brady’s shoes, which had fallen off when Brady fell down the stairs, and put them under his reading chair. Grabbing a tarp from near the basement fireplace, Smith put Brady on the tarp and dragged him to the adjoining workroom. Smith reloaded his rifle.
About 10 minutes after Brady entered and about 8 minutes after the shooting, Haile Kifer entered Smith’s house. Kifer quietly called out, “Nick.” Hearing no re: sponse, she started down the basement stairs. She again said, “Nick.” Just as he had with Brady, Smith fired when he saw Kifer’s hips, but before he saw her hands. Smith later told the police that his first shot was at “what [he] would .consider point blank range.” ‘
Kifer tumbled down'the steps. Smith tried to shoot her again, but his rifle jammed. Smith commented, “Oh, sorry about that.” Kifer exclaimed, “Oh my God!” Smith pulled out his revolver and shot her. Amidst Kifer’s screams, Smith shot her a third timé and a fourth time.
For the next 5 hours after the shootings, Smith stayed in his house. The audio recorder captured Smith talking to himself. His statements included:
“I left my house at 11:30. They were bothdead by 1.”
“Of course. I’m safe now.”
“Cute. I’m sure she thought she was a real pro.”
“You’re dead.”
“I am not a bleeding heart liberal. I felt like I was cleaning up a mess. Not like spilled food. Not like vomit. Not even like ... not even like diarrhea. , The worst mess possible. And I was stuck with it.”
“In some tiny little respect ... in some tiny little respect ... I was doing my civic duty. If the law enforcement system couldn’t handle it, I had to do it. I had to do it.”
“The law system couldn’t handle her and if it fell into my lap and she dropped her problem in my lap ...”
“And she threw her problem- in my face. And I had to clean it up.”
“They weren’t human. I don’t see them as human. I see them as vermin. Social mistakes. Social problems. I don’t see them as ... human. This bitch was going to go through her life, destroying things for-other people. Thieving, robbing, drug use.”
“It’s all fun. Cool. Exciting. Highly profitable. Until somebody kills you.” “It’s a sucker shot. People going down strange stairs naturally watch the steps.”
*319 “Like I give a damn who she is.”
“It’s not a mess like spilled food. It’s not a mess like vomit. It’s not even a mess like diarrhea. It’s far worse. Then they take slice after slice out of me.”
“Five thousand. Five thousand dollar slice. Ten thousand dollar slice. And if I gather enough evidence, they might be prosecuted. If they’re prosecuted it might go to court. If it goes to court, they might be found guilty.”
“If they’re found guilty they might spend ... 6 months, 2 years in jail and then they’re out, and they need money worse than ever and they’re filled with revenge. I cannot live a life like that.” “I cannot have that chewing on me for the rest of my life., I cannot ... I refuse to live with that level of fear in my life. I refuse to live with that level of fear in my life.”
“She’s tough. She’s. eye candy. It’s [inaudible] games. It’s exciting. It’s highly profitable. Until somebody kills you. Until you go too far and somebody kills you. Until you take advantage of somebody who’s not a sucker.”
“Mother and father are semi-psychotic, are both semi-psychotic. I put even odds that one or the other will come over here with a gun.”
Smith did not call law enforcement oh November 22. As he later explained, “I was sitting [there] afraid that most likely the brass plated bitch would nag [him] into it and he would come over with a gun to see what had gone wrong. I was sitting there afraid.”
The next day, November 23, Smith spoke to W.A. on the telephone and asked W.A. to find him a lawyer. Later, Smith asked W.A. to contact the sheriffs office. Smith advised W.A. that he had solved the break-ins in the neighborhood.
W.A. called the sheriffs department. Over the course of several conversations with dispatch and department personnel, W.A. asked that Sergeant Luberts, who had investigated the burglaries at Smith’s residence, respond to Smith’s residence as soon as he was available. A short time later, Sergeant Luberts and another deputy arrived.
As the peace officers approached the house, Smith “came 'out of the door with his hands up and said he needed to tell [them] something.” After leading the officers into his home, Smith explained that he was a victim of previous burglaries, the most recent occurring the day before, on Thanksgiving. Smith led’ the officers to his bedroom to see the broken glass. Then Smith told the officers he needed to show them something in the basement. There the officers saw the bodies of Kifer and Brady on the tarp.
Smith told the officers how he shot a man coming down the steps. Smith explained that he wanted the person dead arid shot him until' he was dead before dragging him onto the tarp. Smith described how he shot a woman coming down the steps. Smith -said that he shot the woman again after she fell to the bottom of the steps, this time aiming for her heart. Smith told the officers that after he dragged the woman into the workroom, he noticed she was still gasping for breath, so he shot her. Smith explained that he thought the woman was his neighbor, A.W.
The officers arrested Smith and took him to the sheriffs office for questioning. During Mirandized interrogations, Smith reviewed the burglaries leading up to and
Smith described how he killed-Brady as he came "down the stairs. “I saw his feet, and then I saw his legs, and when I saw his hips I shot.” When the investigator asked whether Smith saw Brady’s hands when Brady came down the steps, Smith added, “I didn’t see his hands at that point.” Smith explained how Brady tumbled to the floor. “And he’s.looking face up at me_ [And] I shoqt him in the face.” “I want[ed] him dead.” After he shot. Brady, Smith sat back .down in the chair and his adrenaline was going — “I just ... wanted to calm down more than anything else.”
Smith also described how he shot Kifer in the hip as she came down the stairs. Again, Smith shot before he saw her hands, and when she fell on the ground, “[h]er hands were open but she would have dropped anything she was carrying.” But he was “not going to ask if there’s a gun.... You know people who steal guns I don’t want to give them the chance to ^hoot me.... She could have or might not have had a gun in her . hands.”
Smith also elaborated on why he killed the'woman he thought was A.W.:
And thinking back on it what happened was — everybody has red buttons. Everybody has sore spots. And I’ve known since grade school that being ganged -up on .is a sore spot with me. I just wasn’t thinking. I didn’t think. I wasn’t thinking. I was just; they’re ganging up on me so I killed her too.
Smith thought that Kifer laughed at him when his rifle jammed. “It wasn’t a very long laugh [be]cause she was already hurting.” He explained, “[T]here was another red ■ button I guess most people would have, so if you’re trying to shoot somebody and they laugh at you, you go again.... I fired more shots than I needed to.” When asked, “Why did you fire' more shots than you needed to do you figure?,” Smith replied, “[A. 22] is a peashooter and I was very, very threatened, unhappy.” Smith was asked, “You were mad, correct?” Smith responded, ‘Yes.”
Smith described how he dragged Kifer to the tarp, and explained: “Ah, after she was on the tarp she was still gasping.... And as much as I hate someone I don’t believe they deserve pain so I gave her a [not discernable]' shot under the chin up inio the cranium.” “I thought she was dead and it turned out she wasn’t— So, ah, I did a good clean finishing shot.” “And, ah, she gave out the death twitch. First time I’ve ever seen it in a human, but it works the same in beaver, aiid deer, and whatever.”
Smith explained how he checked Kifer’s shoes to see if the. tread pattern matched the shoe print left on the basement .door from the October 27 burglary. When he determined Kifer’s shoes did not match, he checked. Brady’s shoes. Smith thought Brady’s tread pattern might match and that law enforcement would need to investigate further.
. Toward the end of the interrogation, Smith recounted the previous burglaries at his home.’ Smith explained that even after he started locking his doors, “the dogs had eaten well enough at the garbage pail they kept returning,” Smith also said that he “now realize[d]” that parking far away was likely the impetus for the burglars to come — “[b]ecause they thought [he] was
Smith was charged by complaint with two counts of second-degree murder. A grand jury then indicted Smith on two counts of first-degree premeditated murder. Smith moved to dismiss the indictment. The district court denied the motion. The court of appeals denied Smith’s petition for discretionary review. State v. Smith, No. A13-2276, Order (Minn.App. filed Jan. 14, 2014), rev. denied (Minn. Mar. 18, 2014).
At trial, Smith’s main- defenses were that he used reasonable force in defense of himself and his dwelling. The judge instructed the jury that the State had the burden of proving beyond a reasonable doubt that Smith did not use reasonable force. Following trial, a jury found Smith guilty of two counts of second-degree murder and two counts of first-degree premeditated murder. The district court convicted Smith of two counts of first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2014), and sentenced him to two concurrent life sentences without the possibility of release.. Smith appealed.
At Smith’s request, we stayed his" appeal pending a restitution hearing. The Brady and Kifer families’ restitution requests •included the estimated cost of a headstone for each victim. The district court initially awarded Kifer’s family the full amount requested, but reserved for hearing the determination of the appropriate amount of restitution for Brady’s" family. The issue was whether restitution should be reduced due to Brady’s alleged involvement in previous burglaries of Smith’s home.
The district court reminded Smith that he needed to submit a detailed, sworn affidavit setting forth all challenges to the restitution requests and- otherwise meeting the requirements of Minn.Stat. § 611A.045, subd. 3(a) (2014). But Smith’s affidavit did not specifically challenge the restitution awards for the headstones, and he did not contest the amount of the awards until after the hearing. The district court ultimately denied the Kifer and Brady families’ requests for restitution to cover the estimated cost of the headstones. Thereafter, the State appealed from the district court’s restitution order, we reinstated Smith’s direct appeal, and wé consolidated the two appeals.'
Smith argues that the district court: (1) erred when it denied his motion to dismiss the indictment; (2) erred when it briefly closed the courtroom to spectators and the press; and (3) violated his constitutional right to present a complete defense by excluding certain evidence. Smith also argues that (4) the prosecutor committed misconduct in his closing argument and the district court erred when it failed to issue a cautionary instruction to the jury. The State contends that the district court abused its discretion by: (1) allowing Smith to challenge the restitution request for the estimated expenses of the victims’ headstones; and (2) denying restitution for the victims’ headstones when estimates were available. We consider each alleged error in turn.
II.
We first must decide whether the district court committed reversible error when it denied Smith’s motion to dismiss the indictment for individual and cumulative errors. Smith raises five separate errors: (1) the indictment was issued without the deliberation and vote of the grand jury; (2) Smith suffered substantial prejudice when the State attempted to impeach a witness; (3) the prosecutor improperly disclosed to the grand jury that- Smith was charged with second-degree murder; (4) the instruction on premeditation erroneously blurred the distinction between first-
“A grand jury determines whether ‘there is probable cause to believe the accused has committed a particular crime.’ ” Dobbins v. State, 788 N.W.2d 719, 731 (Minn.2010) (quoting State v. Greenleaf, 591 N.W.2d 488, 498 (Minn.1999)).' “A presumption of regularity attaches to the indictment and it is a rare case where an indictment will be invalidated.” Id. “[A] criminal defendant bears a heavy burden when seeking to overturn an indictment. The burden is heavier for a defendant who raises the issue on direct appeal after he has received a fair trial and been found guilty beyond a reasonable doubt.” Dobbins, 788 N.W.2d at 731.
'A.
Smith first argues that the indictment was issued without the vote and deliberation of the grand jury because, when they deliberated, the grand-jury members did not have the formal indictment, which differed from the proposed indictment the State read to the jurors before their deliberation. “An indictment may only issue if at least 12 jurors concur. The indictment must be signed by the foreperson, whether the foreperson was one of the 12 who concurred or not, and delivered to a judge in open court.” Minn. R.Crim. P. 18.06.'
During the grand-jury proceedings, the State displayed to the grand jury on a screen, and read aloud, a proposed indictment. The State also placed paper copies of the proposed indictment on the table for the jurors to consider during deliberations. Count I of the proposed indictment read, in material part:
Byron Smith, on or about November 22, 2012, in Morrison County, did wrongfully, unlawfully, cause .the death of a human being, to-wit: Nicholas Brady, with premeditation and with intent to effect the death of Nicholas Brady, said defendant using, a firearm as a deadly weapon at the time of the offense.
(Emphasis added.) Count 2, relating to Kifer, was otherwise identical. •
After deliberations and in the presence of the grand jury, the foreperson announced that the grand jury had reached a decision to indict. The State then prepared the formal indictment. Substantively, the content of the formal indictment was the same as the proposed indictment, except that the references to “wrongfully” and to “defendant using a firearm as a deadly weapon” were removed from the formal indictment..
In the presence of the grand jury, the prosecutor inquired whether “at' least 12 members of the grand jury [were] in agreement with the decisions to indict on Counts ! and 2-, First Degree Murder for the deaths, of Haile Kifer. and Nicholas Brady.” The foreperson responded, “Yes.” The State read the formal indictment to the grand jury. The State verified with the foreperson, again in the presence of the grand jury, that the formal indictment was “consistent with the decision of the grand jury.” Then, in front of both the judge and the grand jury, the State verified that it read the language of the indictment to the grand jury “word for word” and that the indictment “accurately reflected [the grand jury’s] decision in this matter.” The foreperson answered.“yes” to both questions.
Smith relies primarily on State v. Grose to support his argument that - the grand jury did not separately deliberate and vote
As the State points out, Grose is readily distinguishable from this case. Here, the State read the formal .indictment to the grand jury “word for word” and then verified with the foreperson, in the grand jury’s presence, that the “language accurately reflected its decision in this matter.” Further, unlike Grose, the change to the proposed indictment was not “substantial” and did not relate to the “crucial1 allegations” that Smith, on or about November 22, 2012, caused the death of two persons, Brady and Kifer; that he did so with the intent to cause their deaths; and that he did so with premeditation. The grand jury had already voted for each one of these allegations. All changes were immaterial and related to facts not disputed at trial. Therefore, we conclude that the grand jury concurred in the indictment, voting for each and every material allegation contained within it, and the district court did not err when it denied Smith’s motion to dismiss the indictment.
B.
Smith next argues that the district court erred when it held that the State’s attempt to impeach W.A., Smith’s friend and neighbor, although improper, did not warrant dismissal of the indictment. The State’s line of questioning before the grand jury dealt with a phone conversation between W;A. and Smith on November 23, the day after the shootings. W.A. told investigators that Smith had asked him, “Gould you contact a lawyer for me and get a lawyer down here [so] I could talk to a lawyer?” In the grand jury, W.A. recounted that Smith-had asked him to find a lawyer. The State asked W.A. if Smith had told him “what1 kind of lawyer he needed?” When W.A. said “No,” the State asked repeatedly if he was sure he did not recall telling law enforcement that Smith had asked him for “a defense lawyer.” The State also tried unsuccessfully to refresh W.A.’s recollection in that regard.
Smith argues that the State’s line of questioning tarnished W.A.’s credibility with the grand jury and gave the jurors the impression that Smith had asked for a defense lawyer because he had committed a crime. The State contends that the line of questioning did not have a substantial influence on the grand jury’s decision to indict. ...
To determine whether the district court erred, we apply the Montanaro test to allegations of prosecutorial misconduct in front of the grand jury. State v. Montanaro, 463 N.W.2d 281 (Minn.1990) (or der). A district court should dismiss an indictment if: (1) “it is clear that the prosecutor knowingly committed misconduct in the presentation of evidence to the [g]rand [j]ury;” and (2) “if the misconduct substantially influenced the [g]rand [j]ury’s, decision to indict in the way it did or if the court is left with grave doubt that the decision to indict was free of any influence of the misconduct.” Id.
Although we find the prosecutor’s persistent line of questioning troubling, it did not substantially influence the grand jury’s
Second, Montanaro is distinguishable. In Montanaro, the statements the defendant made to the police after a murder, which contained direct evidence of the defendant’s state of mind, were withheld -entirely from the grand jury. 463 N.W.2d at 281. By contrast, in this case, the grand jury had all of the information available regarding Smith’s state of mind at the time of the shootings — the audio recordings, his statements to the police,' W.A.’s testimony, and other evidence. Additionally, W.A. successfully resisted the prosecutor’s line of questioning. The procéed-ings were not tainted.
Because the second part of the Mon-tanaro test is not met, the district court did not err when it declined to dismiss the indictment for prosecutorial misconduct.
C.
Smith next argues that the State improperly disclosed to the grand jury that Smith had already been charged with second-degree murder. A grand juror asked the prosecutor, “Can you tell us what [Smith] is currently charged with?” The prosecutor responded, “He was charged by Complaint with two counts of Second Degree Intentional Murder. In order to hold someone to account for premeditated murder in the State of Minnesota, it must be done by grand jury indictment. - We cannot charge that by Complaint and sustain it.” On Smith’s motion to dismiss the indictment, the district court determined that the prosecutor’s explanation of the charges was “a clear and proper statement of fact and law.” We agree.
Further, the prosecutor’s accurate answer did not ’substantially influence the grand jury’s decision to indict. As previously discussed, the grand jury had overwhelming ' evidence of probable ’ cause. There is no reason to believe that the grand jury indicted Smith because he had already been charged by complaint.
D.
Next, Smith argues that the grand-jury instructions on premeditation failed to distinguish first-degree murder from second-degree murder, and therefore the district court should have dismissed the indictment.
The prosecutor instructed the jury both orally and in writing. The prosecutor’s oral.instruction to the grand jury stated:
Premeditation means that- Byron Smith considered, planned, prepared for, or determined to commit the act before he committed it. Premeditation, being a process of the mind, is wholly subjective and hence not always susceptible to proof by direct evidence. It may be inferred from all of the circumstances surrounding the event. It is not necessary that premeditation exist for any length of time. A premeditated decision to kill may be reached in a short period of time. However, an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated.
(Emphasis added.) • The State should have said, “It- is not necessary that premeditation exist for any specific length of time.”
When a prosecutor has given erroneous instructions to the grand jury, we invalidate an indictment only with a showing of prejudice. State v. Inthavong, 402 N.W.2d 799, 802 (Minn.1987). For Smith to prevail, the grand jury instructions must have been “so egregiously misleading or deficient that the fundamental integrity of the indictment process itself is compromised.” Id. That was not the case here.
Examining the effect of the erroneous oral instruction on the jury instructions as a whole, see id. (noting that instructions to the grand jury should be considered as a whole), the prosecutor’s statement was followed by two' sentences that spoke to the correct premeditation standard. The prosecutor stated that premeditation “may be reached in a short period of time” and that an “unconsidered or rash impulse ... is not premeditated.” Both of these sentences indicate that premeditation does not have to exist for any specific length of time. Further, the grand jurors had the correct instruction in writing. Therefore, the district court did not err when it declined to dismiss the indictment on this ground.
E.
. Smith next argues that the spark-of-life evidence the State obtained from the victims’ mothers during the grand-jury hearing was entirely irrelevant and tainted the proceeding. Spark-of-life evidence consists of biographical .testimony about the victim, including “a photograph of the victim before the injury occurred.” State v. Fairbanks, 842 N.W.2d 297, 305 (Minn. 2014).
During the grand-jury proceeding, Ki-fer’s mother testified about her daughter’s activities and involvement in high school. She identified her daughter in three photographs, which were submitted as exhibits to the grand jury. The photographs were from Kifer’s junior year in high school, from a gymnastics event, and from a cousin’s wedding. Brady’s mother similarly testified about her son’s life, particularly what he loved to do. She explained the significance of three photographs of Brady, depicting him in eleventh grade, standing up for his uncle’s wedding, and with Kifer and his sister.
Whether spark-of-life evidence is admissible in a Minnesota grand-jury proceeding is an issue of first impression. The district court held that the spark-of-life evidence was not admissible in grand-jury proceedings under .current law and the admission of the evidence in this case violated the State’s responsibility to ensure that the charges were not improperly motivated. Ultimately, however, the district court declined to dismiss the indictment. The State disagrees with the determination that the evidence Was inadmissible, and urges us to adopt the same rule that exists for spark-of-life evidence in criminal trials. We have allowed such evidence at trial “so long as it is not an attempt to invoke undue sympathy or inflame the passions of the jdry,” State v. Morrow, 834 N.W.2d 715, 727 (Minn.2013) (citing State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985)). In justifying this rule, we have acknowledged - that although “the quality or personal details of the victim’s life are not strictly relevant1 to the issue of who murdered the victim, it would seem to tie
Although spark-of-life evidence is not highly probative and has .the potential .for prejudice, we decline to carve out an exception for grand-jury proceedings. We allow spark-of-life evidence in criminal trials, subject to limitations. If we were to hold otherwise for grand jury proceedings, we - would, be treating this evidence in a unique manner. Indeed, the grand jury is allowed to consider evidence that is inadmissible at trial. See Minn. R.Crim. P. 18.05, subd. 1 (listing six types of evidence that are admissible in a grand-jury proceeding but not at trial). It would be odd to hold that the grand jury, solely for spark-of-life evidence, cannot hear evidence that is admissible at trial, particularly when the grand jury must only determine probable cause for the charge — a lesser standard than guilt beyond a reasonable doubt.'
Thus, we hold that the prosecutor may present evidence to the grand jury showing that the victim existed and was imbued with the spark of life. We caution, however, that prosecutors must use this potentially inflammatory tool with care. A prosecutor who unreasonably relies on spark-of-life. evidence to tip the grand jury’s decision risks dismissal of the indictment.
In this case, the spark-of-life evidence presented to the grand jury did not taint the indictment. We have previously “affirmed the admission of spark of life photographs “where the photographs were used to -provide background information about the family and to personalize [the victim] and where the number of photographs used for these purposes was small.’ ” Morrow, 834 N.W.2d at 727 (quoting State v. Scales, 518 N.W.2d 587, 593 (Minn.1994)). Here, the prosecutors introduced three photos of each victim and did not use them inappropriately. Similarly, the mothers’ biographical testimony was not unreasonable. Further, there was no prejudice, as the other evidence supporting probable cause was more than sufficient.
F.
Finally, Smith argues that even if each grand-jury error was individually harmless, the cumulative effect of the errors deprived him of a fair proceeding. “ ‘Cumulative error exists when the cumulative effect of the ... errors and indiscre.-tions, none of which alone might have been enough to tip the scales, operate to the defendants prejudice by producing a biased [grand] jury,’” State v. Penkaty, 708 N.W.2d 185, 200 (Minn.2006) (quoting State v. Johnson, 441 N.W.2d 460, 466 (Minn.1989) (internal quotation marks omitted)). On the other hand, where sufficient admissible evidence exists to support a finding of probable cause, coupled with repeated reminders to the grand jury of its independence, the district court’s denial of a motion to dismiss an indictment for cumulative error is proper. Penkaty, 708 N.W.2d at 200.
In this case, even assuming all of the errors argued by Smith were in fact errors, the prosecutors submitted more than sufficient evidence to the grand jury to establish probable cause. During the course of the proceedings, the district court also reminded the grand jury of its independence.. • The court told the grand jury it was a “completely independent body, answerable to no one.” The court explained that the determination of wheth
III.
We next consider Smith’s argument that the district court violated his Sixth Amendment right to a public trial when it closed the courtroom to the public
The closure was the sequel to a pretrial hearing on April 17, 2014, which’ was open to the public. That hearing was on motions in limine, including the issue of the extent to which Smith could offer evidence of the previous burglaries of his house. Smith argued that he should be able to call Brady’s mother and Brady’s friends, C.K. and J.K., as witnesses to testify to Brady’s involvement in the previous burglaries. Defense counsel discussed Brady’s alleged co-participants by name at the hearing, so those names were in the public record.
On Monday, April 21, 2014, the day the parties would present opening statements and witnesses to the jury, the deputy court administrator called the case. The court then closed the courtroom to. all except the attorneys, the defendant, and court staff. The court said: “We have just cleared the courtroom just for a quick moment from the spectator gallery.” Defense counsel then stated: “Your Honor, this is a — I thought about the court’s suggestion, and I would ask the court to reconsider.” Defense counsel asked that the public be allowed to be present, including media, because “[t]o not allow that would infringe upon the freedom of the public to be present as well as the free press. [Smith] has that right to a public trial.”
The district court proceeded to discuss the “pretrial ruling of the court” and advised the parties and Smith that the court had ruled to exclude some of the evidence of Brady’s prior bad acts. As part of the ruling, the ■ court explained that defense counsel could not “disclose the names of [J.K., C.K.] or Brady involved in prior burglaries before November 22, 2012.” The court stated that the evidence was inadmissible because Smith did not know the identity of those who broke into his home before Thanksgiving.' The court then explained its reasoning for closing the courtroom:
And for that reason — that was the reason that the court is not allowing the press in for this ruling, because otherwise it could be printed, and indeed, while the jurors hopefully will follow the admonition not to read or hear anything in the press and TV and such in the meantime while this case is pending, certainly the media would publish and print the substance of the court’s pretrial ruling, and then of course it runs the risk of getting to the jury if for some reason they don’t adhere to their oath.
Defense counsel then clarified whether he could call C.K. as a witness and asked: “Your Honor, if I — are we done with the record?” Counsel and the court had a discussion off the record. Then the court
Immediately after the closed proceeding, at 10:00 a.m., the judge filed a written order on the motion in limine heard on April 17 and then discussed briefly in the closed courtroom. The order, publicly available, ruled that evidence of prior bad acts by Brady or Kifer, of which Smith was not aware at the time of the shooting, would be inadmissible at trial. The order explained that “insofar as the [evidence that Smith was the victim of prior burglaries occurring before the shooting, that forcible entry was made, and that weapons were taken that were not recovered at the time of: the shooting] may be received through the testimony of Deputy Luberts or other law enforcement agents, there will be no need to seek its 'admission through more prejudicial means (ie., through the testimony of Brady’s mother or of a perpetrator of the prior break-ins).” The order did not name J.K. or C.K., the alleged co-perpetrators of the prior burglaries. At 10:03 a.m., the jury: entered the courtroom to be sworn and to hear opening statements.
Smith argues that this' closed proceeding violated his right to a public trial under the Sixth Amendment to the U.S. Constitution and its state counterpart, Article I, Section 6 of the Minnesota Constitution. “Whether the right to a public trial has been violated is a constitutional issue that we review de novo.” 'State v. Brown, 815 N:W;2d 609, 616 (Minn.2012). Although structural errors typically require automatic reversal; State v. Everson, 749 N.W.2d 340, 347 (Minn.2008), the remedy for denying a defendant’s right to a public trial “should be appropriate to the violation, and a retrial is hot required if a remand will remedy the violation.” State v. Bobo, 770 N.W.2d 129, 139 (Minn.2009); see Waller.v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (remanding a case for a public suppression hearing when the closure of the previous suppression hearing violated defendant’s right to a public trial and holding that if the same evidence was not suppressed at the new hearing, there would be no new trial).
A.
“Both the- U.S. and Minnesota Constitutions provide: ‘In all criminal prosecutions,'the accused shall enjoy the right to a ... public trial...’” State v. Benton, 858 N.W.2d 535, 540 (Minn.2015) (quoting U.S. Constamend. VI; Minn. Const, art. I, § 6).' The right to a public trial is ‘“for the benefit of the accused; that the public may see [the defendant] is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and the importance of their functions.’ ” State v. Lindsey, 632 N.W.2d 652, 660 (Minn.2001) (quoting Waller, 467 U.S. at 46, 104 S.Ct. 2210).
“ ‘[T]he public trial guarantee applies to' all phases of trial.” ” Benton, 858 N.W.2d at 540 (quoting Brown, 815 N.W.2d at 617). The phases of trial en compass preliminary hearings, Benton, 858 N.W.2d at 540; Press-Enter. Co. v. Superior Court, 478 U.S. 1, 10-13, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); voir dire, Presley v. Georgia, 558 U.S. 209, 213-14, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010); witness testimony, Bobo, 770 N.W.2d at 139; State v. Mahkuk, 736 N.W.2d 675, 683-85 (Minn. 2007); State v. Fageroos, 531 N.W.2d 199, 201 (Minn.1995); closing arguments, State v. Silvernail, 831 N.W.2d 594, 601 (Minn. 2013); jury instructions, Brown, 815 N.W.2d at 616-18; and returning of the verdict. In Waller, the United States Supreme Court held that the right to a public
When determining whether the district court’s closure of the courtroom was proper, we have adopted the test the Supreme Court set forth in Waller, which provides:
[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Fageroos, 531 N.W.2d at 201 (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210).
Smith argues that an analysis of the four Waller factors demonstrates that his Sixth Amendment right was violated. However, “before we can apply the Waller test to determine if a closure is justified, we must determine whether a [Sixth Amendment] closure even occurred.” State v. Taylor, 869 N.W.2d 1, 11 (Minn. 2015). We have previously recognized that “the right to a public trial is not an absolute right.” Fageroos, 531 N.W.2d at 201. Some situations warrant restrictions on public access, Taylor, 869 N.W.2d at 10, and other courtroom restrictions do not implicate a defendant’s right to a public trial. Id. at 11 (citing Brown, 815 N.W.2d at 617). In Lindsey, for example, we determined that some closures are “ ‘too trivial to amount to a violation of the [Sixth] Amendment.’ ” 632 N.W.2d at 660-61 (alteration in original) (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.1996)). Other nonpublic proceedings simply may not implicate the Sixth Amendment right to a public trial, depending on the nature of the proceeding.
In Waller, the United States Supreme Court made clear that a suppression hearing is of comparable status to a trial. But courts have distinguished suppression hearings from other “administrative” proceedings that do not implicate the Sixth Amendment right to a public trial. Contrary to what the “administrative” label suggests, such proceedings are not limited to purely administrative procedures before the court, such as Scheduling. Instead, courts have also treated routine evidentia-ry rulings and matters traditionally addressed during private bench conferences or conferences in chambers as routine administrative proceedings. U.S. v. Norris, 780 F.2d 1207, 1209-11 (5th Cir.1986); State v. Hicks, 837 N.W.2d 51, 61 (Minn. App.2013), aff'd on other grounds, 864 N.W.2d 153 (Minn.2015). It is the type of proceeding, not the location of the proceeding, that is determinative. See Ever-son, 749 N.W.2d at 352 (explaining how the courtroom was transformed into the jury room by the judge’s instructions); Hicks, 837 N.W,2d at 60-61 (determining that the district court held a “chambers conference” in the courtroom).
In administrative proceedings, “Mon-public exchanges between counsel and the court bn such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials.” Norris, 780 F.2d at 1210, In contrast to- a suppression hearing, these administrative exchanges “ordinarily relate to the application of legal principles to admitted or assumed facts so that no fact finding function is implicated. A routine evidentiary ruling is rarely determinative of the accused’s guilt or innocence.” Id. at 1210. Additionally, “such evidentiary rulings ordinarily pose no threat of judicial, prosecutorial, or public abuse that a public
Thus, courts have allowed nonpublic proceedings for evidence-related proceedings such as: deciding whether a witness will testify under threat of contempt, State v. Reed, 302 Kan. 227, 352 P.3d 530, 534-35, 542 (2015), cert. denied,-U.S.-, 136 5.Ct. 344, 193 L.Ed.2d 232 (2015); determining the scope of witness immunity, People v. Olivero, 289 A.D.2d 1082, 735 N.Y.S.2d 327, 328 (2001); sidebar conferences on evidentiary rulings, State v. Smith, 181 Wash.2d 508, 334 P.3d 1049, 1052-55 (2014); and consideration of offers of proof, United States v. Vázquez-Botet, 532 F.3d 37, 51-52 (1st Cir.2008). We, too, have distinguished between the key phases of trial, on the one hand, and the concept of bench and chambers conferences, on the other. Minneapolis Star & Tribune Co, v. Kammeyer, 341 N.W.2d 550, 560 (Minn. 1983). We have held that bench and chambers conferences may occur, so long as a record is made and the record is available to the press and the public,
B.
In this ease, the district court’s nonpublic proceeding was administrative in nature and did not constitute a closure implicating Smith’s Sixth Amendment right to a public trial; The brief proceeding Was an outgrowth of two previous public hearings, held on March 25 and April 17, on the subject of evidence of other burglaries. These hearings resulted in public orders dated April 4 and April 21.
Third, Smith argues ■ that the district court erroneously excluded four' pieces of evidence, thereby violating his constitutional right to present a complete defense. Smith points to the following evidentiary rulings: (1) the exclusion of witnesses who would have testified about the prior burglaries at Smith’s house; (2) the exclusion of evidence of a shotgun taken from Smith’s home in a prior burglary; (3) the exclusion of testimony from an expert witness, Glenn Negen, that Smith was suffering from critical-incident stress at the time of the second shooting; and (4) the exclusion of testimony linking Brady to a prior burglary at Smith’s home. The State responds that the district court did not abuse its discretion, and even if it did, any error was harmless beyond a reasonable doubt because it would not have changed the verdict. ,
Due process requires that every defendant be “ ‘afforded a meaningful opportunity to present a complete defense.’” State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984))'. “The defendant has the right ‘to present the defendant’s version of the facts through the testimony of witnesses.’” State v. Munt, 831 N.W.2d 569, 583 (Minn.2013) (quoting State v. Richardson, 670 N.W.2d 267, 277 (Minn.2003)). However, “both the accused and the state must comply with procedural and evidentiary rules designed to ensure ‘both fairness and reliability in the ascertainment of guilt and innocence.’ ” State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quoting Richards, 495 N.W.2d at 195).
“If a trial court’s evidentiary ruling is: determined to be erroneous,, and the error-reaches the .level, of a constitutional error, such as denying the defendant the right to present a defense, our standard of review is whether the exclusion of evidence was ‘harmless beyond a reasonable doubt.’” Richardson, 670 N.W.2d at 277 (quoting State v. Post, 512 N.W.2d 99, 102 (Minn.1994)). ■ ■ Under this standard, we “must be satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (ie., a reasonable jury) would have reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn.1994) ■ (footnote omitted). “If, on the other hand, there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, then the erroneous exclusion of the evidence is prejudicial.” Id..
A.
The district court properly admitted evidence that Smith’s house had been burglarized prior to Thanksgiving Day. But Smith argues that the district court abused its discretion when it excluded witnesses who would have .testified in more detail about the prior burglaries. Smith sought to offer evidence of Brady’s, and Kifer’s prior bad acts, especially witness testimony that Brady was involved in a previous burglary of Smith’s home. As discussed above, the district court issued a written order that the evidence of Brady’s and JUfer’s involvement was inadmissible at trial under Minn. R. Evid. 403, on the ground that the jury must judge the reasonableness of Smith’s actions based on “his state of mind at the time of the shoot
Under Miiin. R. Evid. 403, the district court has broad discretion in weighing probative value against unfair prejudice. Doe 136 v. Liebsch, 872 N.W.2d 875, 882 (Minn. 2015); see State v. Schulz, 691 N.W.2d 474, 477 (Minn.2005). On this issue, the district court did not abuse that broad discretion.
In State v. 'Penkaty, we held that evidence of a victim’s prior violent acts “is admissible to show that the defendant was reasonably put in apprehension of serious bodily harm, -provided that the defendant knew of the prior act's.” 708 N.W.2d 185, 202 (Minn.2006) (emphasis added). Pen-katy’s proviso applies here. Smith suspected that his neighbor, A.W., rather than Brady or Kifer, was committing the burglaries. The district court did not limit Smith from presenting evidence related to “the relevant facts of prior burglaries, including that they occurred, the form of entry into [his] property, if known, and items taken.” All of these factors went to Smith’s state of mind at the time of the shooting and the reasonableness of his actions. But, particular information about Brady and Kifer that Smith did not then know was of limited, if any, probative value and posed a risk of unfair prejudice. Specifically, the jury could have become confused about what Smith knew at the time of the shooting,- thereby giving Smith an “unfair advantage.” Minn. R. Evid. 403; see also Schulz, 691 N.W.2d at 478.
B.
Smith next argues that the district court improperly excluded evidence of a shotgun stolen from Smith’s house before November 22. Two guns were stolen from Smith’s house, but neither of the guns was used on Thanksgiving Day. The stolen shotgun was later recovered by law enforcement.’' Smith identifies error in two rulings regarding the shotgun. First, the district court excluded the shotgun itself and instead admitted a photograph of the gun and testimony describing' it. Second, the district court prevented testimony from the deputy sheriff that the stolen gun, when recovered, was fully functional and was likely functional on Thanksgiving Day.
The district court did not abuse its broad discretion by excluding the shotgun. The district court reasonably determined that it was not necessary for the jury to see the gun itself to understand its deadly potential. A photograph of the shotgun was sufficient. The district court explained that “[i]t [was] not relevant to wave the gun around” when Smith’s fear was not tied to a particular gun, but to the fact that “people who steal guns .use guns.” Although the district court did not cite a specific rule of evidence, it made a Rule 403 ruling. Minn. R. Evid. 403. The additional probative value of the jury seeing the shotgun, as opposed to the photograph of the shotgun admitted into evidence, was minimal, and the defense lawyer displaying the shotgun in court could have been unfairly prejudicial.
Under Rule 401, evidence is relevant if it has “any tendency to make the existence of any fact that .is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. Evidence that is only “ ‘marginally relevant,’ ” however, may be excluded. State v. Quick, 659 N.W.2d 701, 713 (Minn.2003) (quoting Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). Here, Smith was afraid that the burglars would use his stolen guns. Whether his stolen shotgun was functional went to the reasonableness of Smith’s fear that the shotgun could be used against him. This evidence was of more than marginal relevance and should have been admitted.
The error, though, does not require reversal, as it was harmless beyond a reasonable doubt. A reasonable jury would have reached the same verdict had the district court admitted evidence that the shotgun was functioning and the potential damage of that evidence was fully realized. The jury heard considerable evidence that Smith-was very afraid that his guns were in the hands', of the burglars. There was no evidence presented that the stolen guns were not functional. The jury also had the opportunity to consider the audio recordings of the shooting, Smith’s statements to law enforcement, and all of the other evidence presented at trial. We therefore hold that the erroneous exclusion of the evidence about the shotgun’s functionality was not prejudicial. ■
C.
Smith also argues-that the district court abused its discretion when it excluded the testimony of Glenn Negen, an expert who would have testified that Smith suffered from “critical-incident stress,” which impaired his ability to "hear the events leading up to the'second shooting. For instance, Negen would have testified that Smith did not hear Kifer when she entered the residence and that Smith may have been surprised when, she came down the stairs. The distinct .court ruled from the bench (and later by -written order) that Negen would not be allowed to testify about the audio-visual impairment caused by critical-incident stress.
Assuming without deciding that the district court abused its discretion, the exclusion of Negeris expert testimony was harmless beyond' a reasonable doubt. ■ A reasonable jury, even after ‘ hearing the expected testimony, would have- reached the same verdict. As' the district court determined, the expert’s proffered testimony that Smith’s hearing was impaired was “contradicted by evidence tending to show that [Smith] did hear Kifer before she descended the stairs.” "Smith’s statements to law enforcement after the shooting demonstrated his ability to hear. The jury also would have likely discounted Negen’s testimony on critical-incident stress using other evidence in the record, including the
D.
Fourth, Smith alleges that the district court erred when it excluded evidence of who might have kicked in the basement door panel during the October 27 burglary. The evidence showed a connection between the tread pattern on the door panel and the shoes Brady was wearing when Smith shot him.. Smith argues that the evidence goes to his state of mind when he saw Brady and then Kifer descending the stairway, because he told investigators on November 23 that he saw Brady’s feet first, shot him, and then put the shoes to the side.
We conclude' that the district court did not abuse its discretion-in excluding the tread-pattern evidence linking Brady to the October 27 burglary. The district court reasonably determined that, at the time of the shooting, Smith had no accurate knowledge of precisely who committed the previous burglaries. Smith repeatedly told the police that he suspected his neighbor, A.W., was responsible for the burglaries and that he thought the woman he killed was A.W. Although Smith set Brady’s shoes to the side before shooting Kifer, Smith told investigators that he connected Brady’s shoes to the previous burglary only after he shot Kifer and checked her shoes. The tread pattern on Brady’s shoes was of no relevance to Smith’s assertion that he acted in defense of person or property.
V.
Next, we address whether the prosecutor committed misconduct in his closing argument, and if so, whether the district court plainly erred when it failed to issue a cautionary instruction to the jury. Smith argues that the prosecutor committed misconduct by asking the jury members to consider whether they heard Kifer say “I’m sorry” on the audio recording between the third and fourth shots. Smith alleges that the prosecutor disregarded the court’s original ruling, which changed the words “I’m sorry” in the recording transcript to “unclear.” Smith further contends that the district court erred when it failed to give a promised' curative instruction after ruling the prosecutor’s conduct was prejudicial.
Determining whether the district court erred on an issue of prosecutorial misconduct is a two-step analysis. We first address whether there was misconduct, and second, consider whether that misconduct entitles the defendant to a new trial. State v. Wren, 738 N.W.2d 378, 390 (Minn.2007).
A.
In determining whether misconduct occurred, we look at whether the prosecutor’s acts “have the effect of materially undermining the fairness of a trial.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). “A prosecutor engages in prosecu-torial misconduct when [the prosecutor]
B.
Here, the prosecutor’s statement — a question for the jury to consider — did not constitute misconduct, and therefore the district court did not err in failing to issue a curative instruction. The prosecutor did no more than argue an inference from the evidence. Listeners can reasonably disagree on the words or sounds that Kifer uttered between the third and fourth shots. That issue was for the jury, and the prosecutor’s reference, which allowed the jury to consider it, did not rise to the level of misconduct.
Smith’s argument that the prosecutor violated the court’s previous ruling is also without merit. Smith is correct that the district court, upon listening to the recording, stated that the female voice did not say “I’m sorry” and that the words “I’m sorry” should be replaced with the word “unclear” in the transcript of the audio recording unless counsel could agree on what was said. In its later ruling from the bench, however, the district court clarified that its original statement was not meant to decide affirmatively what Kifer said because the sounds were ambiguous. The court’s comments suggested that the sounds were subject to debate. Both sides were free to argue their reasonable interpretations to the jury.
VI.
Finally, we address whether the district court erred by allowing Smith to challenge the restitution request for the estimated headstone expenses. The State argues that Smith waived his right to challenge the restitution for the headstones under MinmStat. § 611A.045, subd. 3(a) (2014) because: (1) his affidavit was untimely; and (2) he failed to meet his burden of production. Smith counters that the State failed to preserve both arguments for appeal.
A.
Smith’s argument that the State forfeited its timeliness and pleading arguments fails. “A reviewing court must generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.’ ” Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (quoting Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982)). In the district court, the State argued in its memorandum of law in support of the families’ request for restitution that the only issue before the court was whether the Brady family’s claim for restitution could be offset by the losses Smith incurred from the previous burglaries. The State’s argument was based on its assertion that Smith did not meet his burden of production under Minn.Stat. § 611A.045, subd. 3(a). In its memorandum of law to the district
B.
We now turn to whether Smith waived his right to challenge the .restitur tion for the headstones under Minn.Stat. § -611A.045, subd. 3(a). “Statutory interpretation presents a question of law, which we review de novo.” State v. Riggs, 865 N.W.2d 679, 682 (Minn.2015). Our objective when engaging “in statutory interpretation is to ‘effectuate the intent- of the legislature.’ ” Id. (quoting State v. Jones, 848 N.W.2d 528, 535 (Minn.2014)); see also MinmStat. § 645.16 (2014). We first look to a statute’s plain and unambiguous language to discern ,the Legislature’s intent. Riggs, 865 N.W.2d at 682.
Under MinmStat. § 611A.045, subd. 3(a), the offender bears the initial burden of production to challenge a restitution request. The timing of that burden is plain and unambiguous:
[T]he offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts. ■ This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from thé amounts requested by the victim or victims. The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing.
Id. (emphasis added).
Applying the plain words of the statute, the district court erred when it determined that Smith’s affidavit was timely. Smith should have served the State and the court with his restitution affidavit at least 5 business days before the hearing. He did not. The restitution hearing was set for Tuesday, August 26, 2014. The phrase “business days” excludes the weekend. Smith therefore needed to serve the State with his affidavit on or before Tuesday, August 19. The affidavit of service shows that Smith served the State via U.S. mail on August 20, one day late, and the district court received ■ Smith’s affidavit on August 21, two days late. Therefore, Smith failed to timely contest the- headstone restitution request. Accordingly, we reverse the district court on this issue and order the court to award $10,049.46 in restitution for Brady’s headstone and $9,400.16 for Ki-fer’s headstone.
Because Smith’s affidavit was untimely, we need not address whether Smith failed to meet his burden' of production under Minn.Stat. § 611A.045, subd. 3(a), or whether restitution is allowed for anticipated future expenses.
VII.
For the foregoing reasons, we affirm Smith’s first-degree murder convictions and reverse the district court’s, denial of restitution for the victims’ headstones.
Affirmed in part and reversed in part.
. One of the shots Smith later fired struck Kifer by her left eye.
. B. is Smith’s brother. Smith did not call his brother until much later in the evening. The prosecution's theory was" that Smith was rehearsing what he would say after he encountered burglars.
. The prosecution and defense disagree on whether Kifer also said "I'm sorry” between the third and fourth shots. We discuss this disagreement below.
. Smith seemed to be referencing A.W.'s parents.
. Star Tribune Media Company, LLC is a nonparty amicus, and therefore we need not reach its separate First Amendment argument. See League of Women Voters Minn. v. Ritchie, 819 N.W,2d 636, 645 n. 7 (Mima. 2012) ("Generally, we do not decide issues raised by an amicus that are not raised by the litigants themselves.”).
. The concurrence casts doubt on Norris by pointing to an earlier Fifth Circuit case, Rovinsky v. McKaskle, 722 F,2d 197 (5th Cir. 1984). In Rovinsky, the Fifth Circuit held that the defendant's Sixth Amendment right to a public trial was violated when the district court conducted private, in-camera hearings on a motion in limine during the course of the trial. Id. at 200-02. The prosecution’s motion in limine sought to restrict defense counsel’s cross-examination of prosecution witnesses. Id. at 199. But the facts in Rovinsky are distinguishable from this case. Here, the pretrial hearing on the motions in limine was open to the public and did not occur behind closed doors. Therefore, regardless of the similarity in the subject matter of the motion in this case and that in Rovinsky, Rovinsky does not substantially' undermine the later Norris decision.
.. Justice Brennan’s concurrence in Richmond Newspapers, Inc. v. Virginia, also drew a distinction between bench ,and chambers conferences, on the one hand, and trial proceedings, on the other hand. 448 U.S. 555, 598 n, 23, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Bren- . nan, J„ concurring in judgment). We are unaware of any support (much less from the United States Supreme Court) for the concurrence’s notion that sidebar conferences are “constitutionally distinct” from chambers conferences such that the public must be able to view the silent "conduct” of attorneys and the judge.
. The district court’s stated reason for closing • the April 21 proceeding was to prevent further dissemination of the names of J.K. and C.K, Given that the names were in the public record as of April 17, we do not understand the district court's rationale for closing the proceeding to the public. But any error in doing so was not of constitutional magnitude.
. The concurrence discusses at length'several issues relátivé to the public trial right that we ■ need not decide today. Because the closed proceeding in this case was similar to a chambers or bench conference, there is no
. Smith objected to the prosecutor referencing the statement "I’m sorry” in closing argument and moved for a mistrial. The district court denied Smith’s request for a mistrial, but stated a cautionary instruction was required. None was given. Because Smith did not object to the lack of a curative instruction, we review for plain error.