This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Roberto Delacruz,


Filed February 3, 2004


Minge, Judge


Polk County District Court

File No. K1-02-737



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221

University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.

 U N P U B L I S H E D   O P I N I O N


MINGE, Judge


            Appellant challenges his conviction for first-degree criminal-sexual conduct on the grounds that the district court improperly denied his right to a public trial by closing the courtroom and that it abused its discretion by permitting a support person for the minor victim to sit between the jury and the victim when the victim testified.  Although we find no abuse of discretion in the use and placement of the support person, we conclude that the district court’s determination to close the courtroom was not made in accordance with the statutory procedure and violated constitutional requirements for public trial.  Accordingly, we remand.



            Appellant Roberto Delacruz was tried on several counts of criminal-sexual conduct.  The victim was appellant’s granddaughter, L.P, who was ten years old at the time of the trial.  After jury selection was complete, the prosecutor inquired whether the district court preferred clearing the courtroom of nonessential personnel during L.P.’s testimony, indicating that it would be in L.P.’s best interests to have the courtroom closed while she testified.  The judge then commented: “And I believe that it’s authorized by statute and by case law.  My preference is to do that, but we’ll let [appellant’s counsel] . . . address that at – later at a break.”

            Immediately preceding L.P.’s testimony, the district court explained to those present in the courtroom that “when the minor child testifies, the Court is authorized to clear the courtroom.”  The judge instructed the jury: “My understanding is that the next witness that’s going to be called is going to be a minor child.  The Court is going to basically clear the courtroom of all nonessential personnel.”  The judge then cleared the courtroom and the state called L.P. to testify.  Neither appellant nor his counsel raised any objection to the closure of the courtroom.

            Prior to L.P.’s testimony and outside the presence of the jury, the district court also indicated that it would allow a support person to be present with L.P. during her testimony.  The prosecutor identified its support person, and the judge gave her specific instructions on where to sit and how to conduct herself during L.P.’s testimony.  During the course of this colloquy, neither appellant nor his counsel raised any objection or concern regarding the use or placement of the support person.  After instructing the support person, the judge asked the parties if they had any other preliminary matters for the court to consider before the jury returned.  Appellant’s counsel responded in the negative and, after the jury returned, the court told the jurors the following:

The Court is also going to just advise you that there will be what we call a support person who will be seated in that chair that is between you and the witness.  And that support person has been instructed by the Court that she’s not to attempt to influence the child’s testimony by gesture or by facial expression, she’s just there as a support person, a comfort person, for the minor child.


During L.P.’s testimony, the support person sat in a chair between L.P. and the jury, at a level lower than both the witness stand and the jury space.  At no point did appellant or his counsel raise any objection to the placement of the support person in the courtroom.

            The jury returned a verdict finding appellant guilty of all counts set forth in the criminal complaint.  Appellant filed this appeal, arguing that the district court erred both in closing the courtroom and in its handling of the support person during L.P.’s testimony.




            The United States and the Minnesota Constitutions both provide that criminal trials are to be public proceedings.  U.S. Const. art. VI; Minn. Const. art. 1, § 6; see also Globe Newspaper Co. v. Sup. Ct., 457 U.S. 596, 604-05, 102 S. Ct. 2613, 2618-19 (1982) (discussing the right of public access to criminal trials).  However, the public’s right to have access to criminal trials is not absolute.  Globe Newspaper, 457 U.S. at 606, 102    S. Ct. at 2620.  The state may justify the closure of a courtroom on the basis of an overriding interest that would likely be prejudiced if the proceeding remained open.  Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984).  A trial court must consider reasonable alternatives to closure and the court must make findings adequate to support closure.  Id.  Safeguarding the physical and psychological well-being of a minor is a compelling interest that may justify closure.  Globe Newspaper, 457 U.S. at 607-09, 102 S. Ct. at 2620-21.  The state’s compelling interest in safeguarding the well-being of a minor may be achieved only by means narrowly tailored to protect that interest.  Id. at 608-609, 102 S. Ct. at 2621; see also Waller, 467 U.S. at 48, 104 S. Ct. at 2216 (observing that closure may be no broader than required to protect the interest involved).

The statutes of this state provide that a district court may exclude the public from the courtroom during the testimony of an underage crime victim upon a showing that closure is necessary to protect the witness or ensure fairness in the trial, so long as the court gives the prosecutor, the defendant, and the public the opportunity to object to the closure.  Minn. Stat. § 631.045 (2002).  The law requires that the judge “specify the reasons for closure in an order closing all or part of the trial.”  Id.  “Requiring the trial court to be specific in its justification for closure avoids a blanket exclusion of people from the courtroom simply because a minor testifies.”  State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995) (citation omitted).  A district court determines on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim, considering factors such as the nature of the crime, the desires of the victim, the interests of parents and relatives, and the minor victim’s age, psychological maturity, and understanding.  Id.  While Minnesota law recognizes the need for closure of the courtroom to protect sexual-abuse victims who are minors, the propriety of a closure is ultimately a constitutional issue.  Id. at 201.    

A district court’s failure to make findings regarding closure is error.  State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000).  In Waller, the United States Supreme Court held that a trial court must justify closure with adequate findings and consider reasonable alternatives to closing the proceeding.  467 U.S. at 48-49, 104 S. Ct. at 2216-17.  Following the requirements of Waller, the Minnesota Supreme Court held in Fageroos that a district court’s failure to make adequate findings on courtroom closure during a minor crime victim’s testimony affected the criminal defendant’s right to a public trial.  531 N.W.2d at 202-03.  The court held that the mere fact that a child sex-abuse victim is testifying does not by itself justify closure of a courtroom in contravention of a criminal defendant’s right to a public trial, even in the absence of an objection to closure.  Id. at 202. 

Here, the district court’s closure of the courtroom was not supported by findings in an order.  The prosecutor did not attempt to show that closure was necessary to protect the witness or to ensure fairness in the proceedings.  The only reference in the record to any attempted justification for closure offered by the prosecutor was a conclusory statement that it would be in L.P.’s best interests.  Furthermore, the district court failed to make any findings specifying its reasons for closure as required by Minn. Stat. § 631.045.  Accordingly, we conclude that the closure of the courtroom was in error.

The state argues that even if closure was error, appellant has the burden of establishing that he was prejudiced by the closure of the courtroom, that he has not met that burden, and that this court should affirm the district court’s closure.  This is the so-called “plain error” rule.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (discussing a reviewing court’s discretion to consider an unobjected-to error if the error was plain and affected substantial rights).  The state’s analysis is mistaken.  In Waller, thesupreme court recognized that an unjustified courtroom closure is an inherently prejudicial error affecting a criminal defendant’s right to a public trial.  467 U.S. at 43-48, 104 S. Ct. at 2214-16.  The court stated that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.”  Id. at 49, 104 S. Ct. at 2217.  Denial of the Sixth Amendment right to a public trial is therefore not subject to the harmless error analysis argued by the state.  Id. at 49-50, 104 S. Ct. at 2217; State v. McRae, 494 N.W.2d 252, 260 (Minn. 1992).

The state also claims appellant waived his right to object to closing the courtroom.  This position is troublesome for two reasons.  First, it assumes that the criminal defendant can waive the public interest in a public trial.  As already noted in this opinion, the policy of openness is a public interest that is constitutionally mandated.  See­­­­­­­­­­­­­­­­­­ Globe Newspaper, 457 U.S. at 605, 102 S. Ct. at 2619 (“This uniform rule of openness has been viewed as significant in constitutional terms not only ‘because the Constitution carries the gloss of history,’ but also because ‘a tradition of accessibility implies the favorable judgment of experience.’” (citation omitted)). 

Second, waiver requires more than failure to object.  Such passive failure alone does not constitute consent to the closure.  In State v. Bashire, this court considered whether an appellant waives a claim of error resulting from the closure of a courtroom where the prosecutor moved without objection to close the courtroom to spectators unrelated to the case during the testimony of juvenile witnesses.  606 N.W.2d at 451-52.  There, the defendant had explicitly agreed to limited closure of the courtroom.  Id. at 451.  This court held that, although closure was improper, the appellant had waived his claim of error both by failing to object to the closure and by agreeing to limited closure.  Id. at 452. 

Here, the record reflects that appellant was given an opportunity to object to the closure but failed to do so.  However, although appellant failed to object to closure, there is no indication that he agreed to the closure in any way.  Under the requirements set forth in Bashire, we conclude that appellant did not waive his claim of error because he did not agree to closure.

            The question then becomes whether the error in closing the courtroom requires a new trial.  Minnesota case law is clear on the issue of remedy.   In Fageroos, the Minnesota Supreme Court held that the record did not support closure of the courtroom and remanded the case for an evidentiary hearing so that the state would have an opportunity to establish that closure was necessary.  531 N.W.2d at 203.  “If a remand for a hearing on whether there was a specific basis for closure might remedy the violation of closing the trial without an adequate showing of the need for closure, then the initial remedy is a remand, not a retrial.”  Id. (quoting McRae, 494 N.W.2d at 260); see also State v. Biebinger, 585 N.W.2d 384, 385 (Minn. 1998) (reversing the court of appeals’ order for retrial because, where the district court has failed to make specific findings to justify courtroom closure, “the appropriate initial remedy in this situation is a remand for an evidentiary hearing, not retrial.”). 

            In this circumstance, appellant is entitled to the remedy prescribed by the Minnesota Supreme Court in Fageroos and Biebinger.  Accordingly, we remand appellant’s case to the district court for an evidentiary hearing on the issue of whether closure of the courtroom during L.P.’s testimony was justified.  Based on that hearing, the district court is required to make specific findings in accordance with the statute and the case law on the appropriateness of closure.  If the findings support closure, the conviction can stand.  If the court determines the courtroom should not have been closed, a new trial should be ordered.  See Fageroos, 531 N.W.2d at 203; Biebinger, 585 N.W.2d at 385.  Finally, we note that while we do not retain jurisdiction in remanding this case to the district court for an evidentiary hearing, appellant maintains the right to appeal a final order resulting from that hearing.


The second issue we face is whether the district court abused its discretion by permitting a support person to sit between L.P. and the jury during L.P.’s testimony or by giving an improper instruction to the jury.  When a criminal defendant challenges a courtroom arrangement as eroding the presumption of innocence, this court inquires whether the arrangement presented an unacceptable risk of impermissible factors coming into play.  State v. Bowles, 530 N.W.2d 521, 529 (Minn. 1995).  If a courtroom arrangement presents such a risk, then the arrangement is inherently prejudicial and may be justified only by an essential state interest.  Id.  If an arrangement is not inherently prejudicial, then this court employs a case-by-case approach to determine whether a particular arrangement actually prejudiced a criminal defendant.  Id.

            Under Minnesota law, a prosecuting witness under the age of eighteen in a child-abuse case may choose to have in attendance or to be accompanied by a parent, guardian, or other supportive person when giving testimony at trial.  Minn. Stat. § 631.046, subd. 1 (2002).  If the support person chosen is not a witness at trial, the statute does not require a pretrial motion or hearing on the issue of whether to permit the support person to attend or to accompany the child during their testimony.  See id.  This court has held that the placement of a support person in the courtroom is within the discretion of the district court and is reviewed for abuse of that discretion.  State v. Ross, 451 N.W.2d 231, 236 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).   

            Here, the district court permitted the use of a support person and specifically instructed her on where to sit and how to conduct herself so as not to influence L.P.  Appellant argues that the placement of L.P.’s support person between L.P. and the jury undermined appellant’s presumption of innocence.  Appellant also argues that the district court’s brief instruction to the jury regarding the support person enhanced L.P.’s credibility and undermined appellant’s presumption of innocence.  Appellant failed to raise any objection to the district court regarding its explanation of the support person to the jury.  Further, appellant has not shown how the placement of L.P.’s support person was an abuse of discretion or prejudiced him in a manner that affected his substantial rights.  Rather, the substance of the court’s comment to the jury served as a cautionary instruction intended to eliminate the precise prejudice that appellant argues the comment created.  We determine that the district court did not abuse its discretion concerning the use and placement of the support person.