This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1090

 

Scott Lawrence Butterfield, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed March 6, 2001

Affirmed

Halbrooks, Judge

 

Anoka County District Court

File No. KX954699

 

Scott L. Butterfield, MCF/STW #129579, 970 Pickett Street North, Bayport, MN 55003-1490 (appellant pro se)

 

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

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 7th Floor, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant was convicted of first-degree criminal sexual conduct and kidnapping in 1995.  On direct appeal, this court affirmed the conviction, but slightly modified his sentence.  See State v. Butterfield, 555 N.W.2d 526, 528-30 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). 

Appellant, pro se, now appeals from the order denying his postconviction petition.  Appellant identifies the following issues that he argues require reversal:  (1) part of voir dire for jury selection was conducted in appellant’s absence, (2) the trial was partially closed to the public, (3) the aggregate 523-month sentence was cruel and unusual, and the trial court improperly cited an element of a count on which the jury acquitted in support of the upward departure, and (4) he was denied the effective assistance of counsel at trial and on direct appeal.  Because we conclude that a limited in-chambers voir dire was proper under these circumstances, the trial was otherwise open to the public, the sentencing and ineffective-assistance-of-trial-counsel arguments were not raised on direct appeal and are, therefore, waived, and appellant failed to prove ineffective assistance of appellate counsel, we affirm.

FACTS

            On April 19, 1995, appellant Scott Butterfield approached L.L. at a gas station and asked her for a ride to a bar.  She eventually agreed.  As they drove through a secluded area, appellant pulled out a knife and threatened L.L.  Over the next 24 hours, appellant repeatedly sexually assaulted L.L. and held her hostage.  The facts of appellant’s crimes are laid out in this court’s previous decision.  See State v. Butterfield, 555 N.W.2d 526, 528-30 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

Following a 1995 jury trial, appellant was found guilty of two kidnapping charges and six charges of criminal sexual conduct.  He was sentenced to 544 months.  On direct appeal, appellant raised two sentencing arguments.  This court affirmed the sentence but modified it in regard to one of the kidnapping charges.  Id. at 533. 

In March 1999, appellant filed a petition for postconviction relief.  In his petition, appellant argued (1) denial of his due process rights when he was excluded from part of the voir dire process, (2) denial of his constitutional right to a public trial, (3) ineffective assistance of trial counsel, (4) his sentence is cruel and unusual punishment in violation of the Minnesota and United States constitutions, and (5) denial of his rights to equal protection and due process because of the length of his sentence.  The postconviction court granted an evidentiary hearing on the voir dire issue, but denied all of appellant’s other claims.

At the March 16, 2000 hearing, the court took testimony from the court deputy administrator, prosecutor, appellant, and appellant’s trial counsel.  The court also recorded its own recollections of the voir dire process.       

On May 4, 2000, the court released the postconviction findings of fact and order.  The court denied relief, finding that appellant voluntarily chose to be absent during part of the voir dire process.  The court also found that neither appellant nor his attorneys ever objected to his exclusion.  This appeal follows. 

D E C I S I O N

Appellant claims that his due process right was violated when he was excluded from a portion of the voir dire that was conducted in chambers.  Appellant bears the heavy burden of showing that his absence from trial was involuntary.  State v. Cassidy, 567 N.W.2d 707, 710 (Minn. 1997).  The postconviction court, who also presided at trial, ordered an evidentiary hearing on this issue that appellant attended.  Appellant was represented at trial by the county’s chief public defender, a very experienced trial attorney, and an assistant public defender.  Neither attorney made any objection on the record to the appellant’s absence, although both testified that they would have done so if the absence was involuntary.  Following the hearing, the court found that appellant voluntarily chose to be absent.  This court will not overturn the postconviction court’s findings absent an abuse of discretion.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  The findings of the postconviction court are supported by the record. 

Appellant claims that the trial was closed to the public based on the voir dire procedure and an affidavit from his sister stating that she and others were barred from the courtroom by the court staff monitoring a metal detector at the door.  The affidavit concedes that the metal detector was used as a result of appellant’s request.  We acknowledge the significance of the right to a public trial, but we also recognize the importance of protecting jurors from the public disclosure of sensitive personal information during voir dire.  A trial court has the discretion to conduct a portion of voir dire in private if circumstances warrant it.  See Minn. R. Crim. P. 26.03, subd. 6(1).[1] 

The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain.  * * *  Some questions may have been appropriate to prospective jurors that would give rise to legitimate privacy interests of those persons.

 

Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511-12, 104 S. Ct. 819, 825 (1984). 

            Here, the jury panel completed a questionnaire prior to voir dire.  Given the nature of the charges against appellant, some of the questions dealt with jurors’ past experience with sexual assault and their degree of comfort with explicit sexual language.  The trial court was well within its discretion to permit counsel to privately voir dire the potential jurors who responded affirmatively to these questions in order to minimize their embarrassment and ensure complete and accurate responses.

In support of his claim that other portions of the trial were closed, appellant presents only a self-serving affidavit from his sister that reflects her observations as she waited outside the courtroom to testify.  There is nothing in the record that supports her assertion that people were barred from the courtroom.  In response, the state noted that some witnesses were sequestered, which would be consistent with appellant’s sister’s observations but contradicts her conclusion that the trial was closed to the public.  Therefore, we hold the postconviction court did not err in finding that the trial was not closed to the public.  See In re Matter of Boss, 487 N.W.2d 256, 260 (Minn. App. 1992) (self-serving testimony is not adequate evidence to support assertion by defendant), review denied (Minn. Aug. 11, 1992).

Appellant’s sentencing and ineffective-assistance-of-trial-counsel arguments fail because sentencing issues were addressed on direct appeal.  All issues known or raised at the time of direct appeal are precluded from postconviction consideration.  Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Similarly, where a postconviction petitioner brings “a second or successive petition for similar relief” the district court may summarily deny relief.  Minn. Stat. § 590.04, subd. 3 (2000). 

Appellant argues that his appellate counsel was ineffective in failing to raise the alleged errors made by trial counsel.  In determining whether a petitioner had effective assistance of counsel, Minnesota courts have adopted the standard set in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); and King v. State, 562 N.W.2d 791 (Minn. 1997).  Under the Strickland test, appellant must demonstrate (1) that the representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the errors, the outcome of the proceedings would have been different.  Id. at 795 (relying on Strickland, 466 U.S. at 694, 104 S. Ct. at 2064-65, 2068).  Representation falls below the standard if it is not “reasonable in light of all the circumstances.”  Id. (citation omitted).  This court strongly presumes that a counsel’s performance falls within the range of reasonableness.  Id. 

Appellant does not sustain his burden with respect to either factor.  Many of the errors alleged by appellant involve the failure of appellate counsel to raise the issue of his “closed” trial.  However, as discussed above, the trial court’s decision to conduct in-chambers voir dire was a proper exercise of its discretion and there is no evidence, other than a self-serving affidavit, that the trial was closed to the public.  Therefore, raising these issues on appeal would have been unreasonable and without merit.  Appellant also alleges that appellate counsel erred by failing to raise the denial of his right to be present during a portion of jury selection and by failing to make an additional argument concerning his sentence.  Appellant’s sentence was one of the issues in the direct appeal.  Again, we find these arguments without merit.  See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (finding that a matter of trial strategy is not ineffective assistance of counsel).  

Appellant cannot show that a different result would have occurred with different counsel.  Even if counsel had been ineffective, the evidence against appellant was so strong that any alleged errors did not prejudice appellant.  See In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (finding that where “the record contains overwhelming evidence against” appellant, “[t]here is no reasonable probability that the result of the proceeding would have been different had [appellant] been represented by a different attorney.”).

            Affirmed.

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Minnesota Rule of Criminal Procedure 26.03 subd. 6(1) which allows trial closure in limited situations reads as follows: 

 

Grounds for Exclusion of Public.   If the jury is not sequestered, the court * * * may order that the public be excluded from any portion of the trial * * * on the ground that [it] may interfere with an overriding interest including that it is likely to interfere with a fair trial by an impartial jury.  The motion shall not be granted unless it is determined that there is a substantial likelihood of such interference.  In determining the motion the court shall consider reasonable alternatives to closing such portion of the trial and the closure shall be no broader than is necessary to protect the overriding interest involved.