This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
St. Louis County District Court
File No. K602600393
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, Minnesota Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Schumacher, Judge; and Forsberg, Judge.*
Appellant Thaddeus Smith challenges his convictions of second-degree intentional murder and attempted second-degree intentional murder, arguing that the district court abused its discretion by refusing to grant continuances and violated his constitutional right to a public trial by closing the courtroom to minors under Minn. Stat. § 631.04 (2000), which was held to be unconstitutional by the supreme court in 2000. Because the district court did not abuse its discretion by denying appellant’s requests for continuances and because the exclusion of minors from the courtroom did not deny appellant a public trial, we affirm.
During a confrontation over a marijuana sale, Katon Bowman and Jerome Bowman were shot. Katon Bowman left the apartment where the confrontation initially occurred and was preparing to fight appellant outside the apartment when he saw a “blue flame” at appellant’s hip and felt a bullet strike him. He was able to run off with the assistance of Jason Smith. Katon Bowman heard two more shots as he ran and felt bullets strike his legs.
Andrea Williams, in whose apartment the altercation began, witnessed the shooting. According to Williams, after appellant shot Katon Bowman, he shot Jerome Bowman twice, then appellant and his companion, Ken McElderry, ran out of Williams’s apartment. Jerome Bowman died at the scene.
When the police arrived, Katon Bowman was lying in the doorway of a nearby apartment building. He told the officers that “D,” later identified as appellant, shot him. The police located appellant leaving an apartment building near the scene. Appellant and Ken McElderry were arrested. Neither possessed a gun at the time of arrest. After appellant and McElderry were processed at the police station, their hands were tested for residue. An officer had observed appellant rubbing his hand with “mucus” prior to this testing.
Appellant was charged with the second-degree intentional murder and second-degree felony murder of Jerome Bowman and the attempted second-degree intentional murder, first-degree assault, and second-degree assault of Katon Bowman.
Learning that backlogs at the BCA laboratory would delay getting results from the residue tests, the state determined that it would proceed without the test results because Katon Bowman, Andrea Williams, and Jason Williams each witnessed at least some portion of the shootings and residue-test results were not dispositive of any issues in the case. Because appellant’s counsel indicated that he believed the test results were critical to the defense, the state, as an accommodation to the defense, asked the FBI laboratory, as a courtesy, to conduct the tests, although it was known that the testing might not be completed before the scheduled trial date. The state noted on the record at a pretrial
hearing that the defense was free to have the kits independently tested immediately and the state would stipulate to the admission of such test results. Appellant’s counsel did not pursue independent testing. At a subsequent pretrial hearing, less than a month before the scheduled trial date, defense counsel requested a continuance until the results were received. The district court denied appellant’s request for a continuance.
In a pretrial order addressing courtroom security, the district court excluded minors under the age of 17 from the courtroom “in accordance with Minnesota Statute § 631.04, with the exception of statutory exemptions or by the express order of the Court.”
Four days before trial, appellant requested a continuance to retain private counsel. The district court denied appellant’s request, and the trial proceeded as scheduled. A jury found appellant guilty as charged. Appellant was sentenced for the attempted second-degree intentional murder of Katon Bowman and the second-degree intentional murder of Jerome Bowman. This appeal followed.
A ruling on a request for a continuance is within the district court’s discretion, and a conviction will not be reversed for the denial of a motion for a continuance unless the denial is a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). “The reviewing court must examine the circumstances before the trial court at the time the motion [for continuance] was made to determine whether the trial court’s decision prejudiced defendant by materially affecting the outcome of the trial.” State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). Therefore, the “test is whether the denial of a continuance prejudices the outcome of the trial.” State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990) (citations omitted).
a. Request for continuance to retain private counsel
The U.S. Const. Amend. VI and Minn. Const. art. 1, § 6, provide a criminal defendant in this state the right to have the assistance of counsel for his defense. This right includes a fair opportunity to secure counsel of his choice. An indigent defendant has the right to be provided competent counsel in all criminal proceedings. However, the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his choice. Although he may request a substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.
State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977) (affirming denial of continuance to accommodate defendant’s desire to retain private counsel based, in part, on his fear that heavy public defender caseload would affect quality of defense).
Appellant requested a continuance to obtain private counsel only four days before his jury trial was scheduled to begin. The district court determined that the request for the continuance was not timely and that appellant could not show that any prejudice would result from a denial of the request because the court found his existing counsel had represented appellant “to the best of their ability and provided adequate representation[.]”
Appellant argues that the district court abused its discretion by denying the continuance because he was not attempting to delay the trial. See State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (concluding that defendant may not demand a continuance to delay the proceedings). In this case, the district court denied the motion for a continuance because it was untimely, and appellant failed to demonstrate that any prejudice would result from the denial. Worthy does not stand for the proposition that a continuance must be granted if a defendant is not motivated by an intent to delay the proceedings. Appellant failed to offer any specific reason why he was dissatisfied with his attorneys. Appellant said only that he “didn’t like the way that my case was being represented at this point in time, and I [don’t] feel comfortable with the situation.”
Appellant now argues that his uneasiness was delayed because he did not have extensive contact with his attorneys until just prior to trial. But there is nothing in the record to support this claim or to explain what made appellant “uneasy” other than appellant’s statement that he did not believe that his attorneys were representing him to the best of their ability. Even on appeal, appellant has not identified in what way he thinks his representation was insufficient. A defendant may not arbitrarily attempt to substitute another attorney at the time of trial. Id.; see State v. Fagerstrom, 286 Minn. 295, 299-300, 176 N.W.2d 261, 265 (1970) (noting “since defendant alleged no specific reason why he felt the public defender could not adequately defend him, he has not shown that any prejudice resulted from the refusal to grant him a continuance”). Because appellant has failed to show that he was prejudiced by his attorneys’ representation, and the motion for continuance was untimely, the district court did not abuse its discretion by denying appellant’s motion for a continuance to obtain private counsel.
Appellant argues that the district court abused its discretion by denying his motion for a continuance until the FBI laboratory completed the gunshot-residue tests. Police used gunshot-residue kits to test the hands of appellant, McElderry, and Jerome Bowman. The state decided not to pursue the residue test results because it did not believe the residue tests had significant evidentiary value. As an accommodation to the defense, the state agreed to ask the FBI to conduct the tests. Appellant did not ask to have the kits independently tested.
The district court questioned the significance of the test results to the defense and noted that if appellant’s attorneys considered the testing “critical” to the defense, they should have “secure[d] testing on their own” instead of relying on the “good nature of the State” to procure the tests. The record strongly suggests that appellant’s failure to independently test the gunshot-residue kits was a tactical decision. In closing arguments, appellant’s counsel repeatedly argued that the state failed to make its case because it did not fully test the evidence. We conclude that the district court did not abuse its discretion by denying appellant’s motion for a continuance.
The district court referred to Minnesota Statute § 631.04 in the order closing the court to minors under the age of 17 (with some exceptions). Minn. Stat. § 631.04 (2000) provides, in pertinent part:
A minor under the age of 17 who is not a party to, witness in, or directly interested in a criminal prosecution or trial before a district, county, or municipal court, may not be present at the trial. A police officer, constable, sheriff, or other officer in charge of a court and attending upon the trial of a criminal case in the court, shall exclude a minor under the age of 17 from the room in which the trial is being held. This section does not apply when the minor is permitted to attend by order of the court before which the trial is being held.
Appellant argues that because the supreme court, in State v. Lindsey, 632 N.W.2d 652 (Minn. 2001), declared Minn. Stat. § 631.04 an unconstitutional violation of the doctrine of separation of powers, the district court erred by relying on the statute to close the courtroom and violated appellant’s right to a public trial, entitling him to a new trial.
The requirement of a public trial is for the benefit of the accused; that the public may see he 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 to the importance of their functions . . . .
Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215 (1984). “In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.” Id.
Based on these principles, the Minnesota Supreme Court held that Minn. Stat. § 631.04 “unconstitutionally encroache[d] upon a judicial function[.]” Lindsey, 632 N.W.2dat 659. In Lindsey, two minor children of unknown age and of unknown relationship to the defendant were excluded from the courtroom. Id. at 661. The supreme court held, however, that the exclusion in Lindsey did not amount to “a true closure, in the sense of excluding all or even a significant portion of the public from the trial,” even though it was error for the district court to rely on Minn. Stat. § 631.04. Id. at 660.
In this case, there is no allegation that any minor, or any other person, was actually excluded from the courtroom during the trial. And Lindsey does not hold that minors cannot be excluded from a courtroom, only that the legislature cannot mandate such an exclusion. Although the district court improperly relied on Minn. Stat. § 631.04, we conclude that the district court’s order excluding minors from the courtroom did not deny appellant’s right to a public trial and does not require a new trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Five spent shell casings and a spent bullet were found at the scene. About three weeks after the shootings, police found a handgun that had washed down a ravine near the scene. These items were sent to the Minnesota Bureau of Criminal Apprehension for testing. A BCA scientist testified that the bullets and casings found by police came from this handgun.