This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-1534

State of Minnesota,

Respondent,

vs.

Shawn Enoch,

Appellant.

Filed May 28, 1996

Affirmed

Randall, Judge

Hennepin County District Court

File Nos. 93002866; 93003217; 93027323; 93097877

Paul R. Scoggin, Assistant County Attorney, Jean Burdorf, Assistant County Attorney, Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Hubert H. Humphrey, Minnesota Attorney General, 1400 NCL Tower, 345 Minnesota Street, Saint Paul, MN 55102 (for Respondent)

Susan K. Maki, Assistant State Public Defender, 95 Law Center, University of Minnesota 55455 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Mulally, Judge.*

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

RANDALL, Judge

Appellant challenges his conviction. He argues the trial court did not have jurisdiction over certain charged offenses, that he was denied his right to an open trial, and that the trial court erred in failing to grant a Schwartz hearing. Appellant further argues the trial court abused its discretion in imposing a sentence of 1,198 months. We affirm.

D E C I S I O N

Following a seven week jury trial in Hennepin County District Court, appellant was convicted of 8 counts of first degree criminal sexual conduct, 12 counts of first degree burglary, and 11 counts of aggravated robbery. These convictions were based on five separate incidents that occurred between September 1991 and December 1992 in which eleven different victims were robbed at gunpoint, and in two instances, raped. Appellant received an aggregate sentence of 1,198 months. This appeal followed.

I.

Appellant argues that the trial court lacked proper jurisdiction to try those offenses committed because they were committed while he was still a juvenile. Appellant contends that because the State waited until after his nineteenth birthday to charge him for those offenses committed while he was a juvenile, the juvenile court no longer had jurisdiction over him, and thus could not properly reference him to adult (district) court.

Where an appellate court has ruled on a legal issue and remands the case for further proceedings, that issue becomes the "law of the case" and will not be reexamined in a later appeal. Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994). The doctrine of "law of the case" has been applied to criminal cases. See State v. Prickett, 221 Minn. 179, 182-83, 21 N.W.2d 474, 475 (1946); State v. Schabert, 222 Minn. 261, 262-63, 24 N.W.2d 846, 848 (1946). Issues raised in a petition for an extraordinary writ, such as mandamus or prohibition, are subject to the doctrine of "law of the case." See Liedtke v. Ferguson III, 370 N.W.2d 477, 478 (Minn. App. 1985) (issue raised in petition for a writ for mandamus may not be raised in subsequent appeal), review denied (Minn. Sept. 13, 1985).

Here, after the juvenile court accepted jurisdiction and ordered appellant referenced to the district court, appellant petitioned this court for a writ of prohibition arguing that the juvenile court lacked proper jurisdiction over him because those offenses committed while he was a juvenile were not charged until after his nineteenth birthday. This court previously rejected appellant's claim. Appellant did not seek further review of that decision in the Minnesota Supreme Court. Accordingly, this court's prior ruling on the issue is the law of the case, and we will not relitigate that issue in this appeal.

Even assuming we decided that the doctrine of law of the case does not apply here, the juvenile court still had jurisdiction over appellant to hold a reference hearing. The "home free" argument advanced by appellant has been repeatedly rejected by Minnesota courts. See State v. Dehler, 257 Minn. 549, 556, 102 N.W.2d 696, 702 (1960)(where defendant commits offense as a juvenile but does not appear before a court for the offense until after he reaches 21 years of age, defendant may still be prosecuted in district court); In re Welfare of S.V., 296 N.W.2d 404, 407 (Minn. 1980)("home free" argument rejected where defendant committed offense as a juvenile, but eluded authorities until over the age of 21); In re Welfare of C.A.N., 370 N.W.2d 438, 442 (Minn. App. 1985)(noting the "home free" argument to be "untenable"). The delay in charging appellant until after his nineteenth birthday was reasonable. The delay in this case was motivated by the delay associated with the completion of DNA testing. A reasonable delay in prosecution caused by DNA testing constitutes good cause to delay a trial. State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990).

We conclude the juvenile court properly exercised jurisdiction over appellant when it held a reference hearing and transferred his case to district court.

II.

Appellant argues his constitutional right to a public trial was violated when the trial court excluded several members of his family from the courtroom during the testimony of Sarah Collins and D.B., and then ordered the courtroom closed when the testimony of D.B. began. We disagree.

Under the United States Constitution and the Minnesota Constitution, a defendant enjoys the right to a public trial. U.S. Const. amend. VI; Minn. Const. art. I, ' 6. However, this right is not an absolute right in the sense that everyone who wants to attend the trial may do so. State v. Schmit, 273 Minn. 78, 81, 139 N.W.2d 800, 803 (1966); State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995). The right is a limited privilege accorded the accused, subject to the inherent power of the court to restrict attendance as the conditions and circumstances reasonably require for the preservation of order and decorum in the courtroom and to protect the rights of the parties and witnesses. Schmit, 273 Minn. at 81, 139 N.W.2d at 803.

[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 201-02 (quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984).

Several federal circuit courts have applied the lesser "substantial reasons" standard in those instances where only a partial closure of the courtroom has been ordered. See Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir. 1992); United States v. Sherlock, 962 F.2d 1349, 1357-59 (9th Cir. 1989), cert. denied 506 U.S. 958 (1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989), cert. denied 493 U.S. 957 (1989); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir. 1984), cert. denied 469 U.S. 1208 (1985). The "less stringent standard [is] justified because a partial closure does not implicate the same secrecy and fairness concerns that a total closure does." Woods, 977 F.2d at 76.

Although the trial court ordered a partial closure of the courtroom, appellant still received an open trial. The trial court excluded only a small set of individuals, one to three, who were reasonably associated with threats made to one witness and found to be intimidating to another vulnerable, wheelchair bound witness. In the one instance, the night before she was to testify, Sarah Collins was confronted at a local store by a woman who appeared to be appellant's aunt. The next day Collins received several threatening telephone calls at work warning her not to testify. Collins had to be escorted to the courtroom by the police. In the other instance, D.B., who was raped and robbed by appellant, suffers from "brittle bone" disease, stands only 3'2" tall, weighs approximately seventy pounds, and is confined to a wheelchair. The trial court found members of appellant's family to be intimidating to the witnesses and that their presence would hamper their ability to testify "fully and freely."

A victim's fear of retaliation and need for protection provides a "substantial reason," or in some cases an "overriding interest," justifying the partial closure of the courtroom. Woods, 977 F.2d at 76. In addition, requiring interested parties to be on time for a particular session of court and to remain seated during testimony does not amount to an infringement of constitutional rights. See Herring v. Meachum, 11 F.3d 374, 379-80 (2nd Cir. 1993) (a defendant's right to a public trial within the meaning of the Sixth Amendment was not violated where the doors to the courtroom were locked during the charge to the jury), cert denied 114 S. Ct. 1629 (1994). The trial court's order that spectators arrive prior to the start of what concededly was a difficult piece of testimony was easily within its discretion. Members of the public were allowed to attend provided they arrived before the testimony began. The trial court's order was proper to protect order in the courtroom during a difficult piece of testimony.

Further, the trial court's partial closure was reasonably suited to circumstances. The trial court excluded only a few members of appellant's family. The courtroom was open to all other members of the public, including appellant's friends. The partial closure lasted only one morning session during a seven week trial. There is a discernible difference between excluding a few individuals from a trial that drew dozens, and was covered extensively and openly by the news media, versus a true closed trial "where only the court reporter knows." Secrecy concerns underlying the right to an open trial were not involved in this case.

We find the trial court properly protected appellant's constitutional right to a public trial.

III.

Appellant argues next that the trial court abused its discretion by refusing to grant a Schwartz hearing to determine if members of the jury had been exposed to extra-judicial information during its deliberations. We disagree.

Appellant must establish a prima facie case of jury misconduct before a Schwartz hearing will be granted. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979), cert. denied 444 U.S. 973 (1979). Appellant must submit sufficient evidence that, when standing alone and unchallenged, would warrant the conclusion of jury misconduct. Id. The granting of a Schwartz hearing is within the sound discretion of the trial court. Id.

Here, four days after appellant was sentenced, a juror contacted the court stating that another juror said that he had heard appellant say something incriminating during trial. The complaining juror did make it clear that the overheard comment played no part in the jury's deliberations. We note further that during trial, appellant's attorney stated that, "[w]e are simply trying to find out more information, so we can try and determine whether misconduct did occur." This statement concededly admits that the juror's allegations, standing alone and unchallenged, did not establish jury misconduct. Appellant simply failed to make a prima facie showing of jury misconduct. See State v. Starkey, 507 N.W.2d 8, 15 (Minn. App. 1993) (where one juror admitted hearing several bench conferences, defendant failed to make prima facie case of jury misconduct where he failed to show that any juror improperly considered the bench conferences), aff'm as modified 516 N.W.2d 918, 929 (Minn. 1994). Although it would not have been error for the trial court to have granted a Schwartz hearing on these facts, we cannot say the trial court abused its discretion by refusing to grant appellant a Schwartz hearing.

IV.

Finally, appellant argues that the trial court abused its discretion in imposing a sentence of 1,198 months or 99 years and 10 months. Appellant argues the extended sentence unfairly exaggerated the criminality of his conduct.

A reviewing court may reverse or modify consecutive sentences that exaggerate the criminality of a defendant's conduct. State v. Norris, 428 N.W.2d 61, 70-71 (Minn. 1988). This limitation is generally applied where consecutive sentences are imposed based on a single behavioral incident in which there are multiple victims. Id. at 71 (aggregate sentence of 300 months for aggravated assaults against several victims in same incident exaggerated criminality). With multiple victims, consecutive sentences are not a true upward departure. Minn. Sent. Guidelines II.F.2. The prohibition against consecutive sentences ad infinitum is the subjective Norris standard, "should not unfairly exaggerate the criminality of the defendant's conduct."

Here, Norris supports our conclusion that appellant's sentence did not exaggerate his criminality, but rather reflected the seriousness and separate nature of the crimes committed. The aggregate sentences imposed are based on separate behavioral incidents. In addition, the trial court found divisible intent on all of the aggravated robbery and sexual assault counts. See State v. Edwards, 380 N.W.2d 503, 511 (Minn. App. 1986) (appellant's action to rob and rape disparate enough to justify multiple sentencing). Aggravating factors common to each case included particular cruelty (taunting and death threats), invasion of the victims' zone of privacy, severe psychological and emotional injury to each victim, physical injuries suffered by the victims, multiple sexual penetrations of the victims, and vulnerability of the victims (both rapes occurred while the victims were sleeping, and in one case, the victim was disabled). See State v. Allen, 482 N.W.2d 228, 233-34 (Minn. App. 1992) (psychological/emotional injury, taunts, multiple penetrations), review denied (Minn. Apr. 13, 1992); State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (physical injury); State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (zone of privacy), cert. denied 466 U.S. 974 (1984); State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981) (vulnerability of victim).

While the aggregate sentence in this case is 100 years for appellant, we cannot say that as a matter of law it unfairly reflects the criminality of his conduct. We conclude the trial court treated appellant properly and fairly when imposing sentence.

Affirmed.


Footnotes

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