This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1853

 

Shannon L. Christianson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent

 

Filed June 30, 2006

Affirmed in part and remanded in part

Peterson, Judge

 

Hennepin County District Court

File No. 02063212

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

In this appeal from an order denying a postconviction petition challenging his conviction of second-degree unintentional murder and first-degree aggravated robbery, appellant Shannon L. Christianson argues that the district court violated his right to a public trial by closing the courtroom to the public during his accomplice’s testimony and abused its discretion in instructing on the lesser-included offenses of second-degree intentional murder and second-degree unintentional murder.  Appellant also contends that the postconviction court abused its discretion in finding that his postconviction petition was untimely.  We affirm in part and remand in part.

FACTS

            On February 21, 2002, appellant was riding in a car with La Monica Bryan and Cory Collins and suggested going to Vivian Dotson’s house.  Collins testified that upon arriving at Dotson’s house, appellant and Dotson went into her bedroom to talk, and he waited in the living room with Jonathan Thomas, Julius Moore, and Lorenzo McClellon.  Bryan testified that when appellant and Collins came back to the car, appellant discussed robbing the people in the house.  Collins testified that appellant said that they would need a gun and that if anyone acted stupid he would hit them with the gun.  Bryan testified that appellant said that if he was going to shoot anyone, he would shoot them in the arm or leg.  According to Collins, Dameon Henderson provided appellant with a gun and joined them.

            Collins and appellant returned with Henderson to Dotson’s house, and Bryan waited in the car.  Three people testified about what happened in the house: Collins testified that appellant walked into the living room, pulled out a gun, pointed it at everyone and told them to strip.  McClellon hit appellant’s arm out of the way, appellant swung his arm back and shot McClellon.  Thomas testified that appellant, Collins, and Henderson smoked marijuana in the living room.  McClellon started coughing and went to the kitchen for some water, when he returned to the living room, appellant pulled out a gun.  McClellon said, “What . . . are you doing Shannon, it doesn’t have to be like this,” and appellant shot him.  Dotson testified that appellant asked to speak to McClellon alone, and they went to her bedroom.  McClellon came out first and sat down in the living room.  Appellant then walked up to McClellon, pulled out a gun, and put it in McClellon’s face.  McClellon asked what appellant was doing and appellant answered, “I’m robbing you . . . .”  McClellon raised his arms, and appellant shot him. 

Appellant was arrested and charged with first-degree murder in violation of Minn. Stat. § 609.185(3) (2000); attempted first-degree murder in violation of Minn. Stat. §§ 609.185(3), .17 (2000); and first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2000).  Upon the prosecutor’s request, the district court closed the courtroom while Collins testified.  At the close of the state’s case, appellant moved for a judgment of acquittal, and the district court denied the motion.  Before closing arguments, the state requested jury instructions on the lesser-included offenses of second-degree intentional murder and second-degree unintentional murder.  The district court gave the requested instructions.  The jury found appellant guilty of second-degree unintentional murder and first-degree aggravated robbery, and the district court imposed concurrent sentences of 165 and 178 months in prison.  Sixteen months after sentencing, appellant petitioned the district court for postconviction relief.  The district court denied his petition.  This appeal followed.

D E C I S I O N

On appeal from a summary denial of postconviction relief, we consider whether sufficient evidence exists to support the postconviction court’s findings and will not reverse those findings absent an abuse of discretion.  Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003).  An evidentiary hearing on a postconviction petition “is not required unless there are material facts in dispute that must be resolved to determine the postconviction claim on its merits.”  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995)).  Accordingly, we also review the district court’s decision to determine whether any of the alleged grounds for relief necessitates a hearing.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003); Tsipouras v. State, 567 N.W.2d 271, 274 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997).

1.         Closing the Courtroom

            Appellant argues that the district court violated his right to a public trial when it closed the courtroom while Collins testified without first finding that closure was necessary to protect an overriding state interest and without considering alternatives to closure.  Both the United States Constitution and the Minnesota Constitution provide that in all criminal prosecutions “the accused shall enjoy the right to a speedy and public trial.”  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  But the right to a public trial is not absolute.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 2620 (1982).

[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.  Such circumstances will be rare, however, and the balance of interests must be struck with special care.

 

Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984).

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

 

Id. (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)).

Under Press-Enterprise, the 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.

 

Id.at 48, 104 S. Ct. at 2216.

The United States Court of Appeals for the Eighth Circuit has recognized an exception from Waller’s “overriding interest” requirement that has been recognized in other federal circuits and that applies when a trial judge orders a partial, rather than a total, closure of a court proceeding.  United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994).  A “substantial reason,” rather than an “overriding interest,” will justify a partial closure “because a partial closure does not ‘implicate the same secrecy and fairness concerns that a total closure does.’”  Id. (quoting Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir. 1992)).  But the court must nonetheless “make sufficient findings to allow the reviewing court to determine whether the partial closure was proper.”  Id.; see also State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995) (to avoid blanket exclusion of people from courtroom, trial court must articulate findings with specificity and detail supporting need for closure).

Appellant does not dispute that only a substantial reason, rather than an overriding interest, is needed to justify a partial closure; he argues that the postconviction court erred when it determined that there was only a partial closure of the courtroom and that an overriding interest was needed to justify the closure because it was a total closure.  The postconviction court determined “that the partial courtroom closure during the testimony of one witness was no broader than necessary to protect the interest and concerns expressed by the prosecution.”  But nothing in the postconviction court’s order or the attached memorandum indicates why the court determined that the closure was a partial closure. 

Although it seems reasonable to conclude that closure during the testimony of only one witness is a partial closure because only part of the trial is closed, we have not found, and the state does not cite, any authority that applies the term “partial closure” to a closure that excludes all spectators from the courtroom during part of a trial.[1] Instead, every authority that we have found that addresses what distinguishes a total closure from a partial closure has indicated that a total closure occurs when all spectators are excluded from court, and a partial closure occurs when some spectators are excluded from court but other spectators are allowed to remain.  For example, in Douglas v. Wainwright, 739 F.2d 531 (11th Cir. 1984), the court compared the closure that occurred in Waller with the closure that occurred in Douglas v. Wainwright, 714 F.2d 1532 (11th Cir. 1983), vacated, 468 U.S. 1206, 104 S. Ct. 3575 (1984), and explained:

The most important distinguishing factor is that Waller involved a total closure, with only the parties, lawyers, witnesses, and court personnel present, the press and public specifically having been excluded, while Douglas entailed only a partial closure, as the press and family members of the defendant, witness, and decedent were all allowed to remain.  Moreover, the closure in Waller was for the entire seven days of the suppression hearing although the playing of the disputed tapes lasted only two-and-one-half hours, whereas in Douglas the partial closure was limited to the one witness’ testimony.

 

Douglas, 739 F.2d at 532.  According to this explanation, a closure that excludes all spectators from the courtroom during the testimony of only one witness is not a partial closure, even though only a part of the trial is closed.

            The record indicates that before the district court closed the courtroom, counsel for both parties presented arguments to the court regarding closure, but no contemporaneous record of the arguments was made.  After the prosecution rested, counsel made a record of the arguments that had been made before the closure.  It appears from this record that at the beginning of trial, the prosecutor asked the district court to consider using metal detectors outside the courtroom because of the nature of the case and the nature of some of the spectators who would be watching the trial.  The district court did not feel that metal detectors were appropriate, and the prosecutor raised the possibility of closing the courtroom to spectators when Collins testified.  The prosecutor later requested as an alternative to metal detectors that the public be excluded from the courtroom when Collins testified because Collins had told the prosecutor about threats that were made in the past by members of appellant’s family who were present in the courtroom and because Collins was a member of a gang and there were other members of the gang in the courtroom.  Defense counsel responded that Collins had not alleged that he had been threatened by a gang and that there had not been any alleged threats by appellant’s family for almost two years. 

            The district court responded to the restatements of counsels’ arguments as follows:

The Court did have to consider the request made by the prosecution to have metal detectors outside of the courtroom.

 

I felt that that was not appropriate, but also -- but in the alternative, said that I would consider closing the courtroom during the testimony of one witness.

 

I think that [appellant] has a right to see and confront . . . all of his accusers, that does not go to the public.[[2]]

 

[Appellant] was able to see [Collins’s] testimony, and able to hear [Collins’s] testimony, and I think the Court, rather than inconvenience everyone on a daily basis, closing the door for one witness was not inappropriate. 

 

On its face, the district court’s statement that “closing the door for one witness was not inappropriate” indicates that the district court excluded the entire public while Collins testified.  It is not apparent why the postconviction court concluded that the closure was a partial closure.

The state argues that because appellant acknowledges that witness protection can constitute an overriding interest, it is irrelevant whether the closure was a partial or a total closure.  But although the postconviction court found that the district court closed the courtroom because the district court “was concerned for the safety of the witness as well as the general public,” neither the trial court nor the postconviction court stated any reason why these concerns made it necessary to exclude all spectators.  Even if we assume that the safety of the witness and the general public are overriding interests that justify excluding some spectators, it is not apparent why these interests justify excluding all spectators, rather than only spectators who have been involved with threatening the witness or who present a reasonable threat of disrupting the trial.  Therefore, it is not irrelevant whether the closure was a partial or a total closure.

The state concedes that the district court failed to comply with the requirement that it make specific findings in support of closure, but it contends that because the record supports the closure, under Farmer, 32 F.3d at 371-72, this court may affirm the district court based upon the record.  However, the limited record created at trial with regard to the closure does not provide a basis for us to clearly identify the interest that warranted the closure, determine whether the closure was broader than necessary to protect that interest, and determine whether the district court considered any alternatives to closure other than metal detectors.  The record simply does not indicate whether the parties or the district court considered whether the closure was broader than necessary or whether there were alternatives that would have permitted a more limited closure.  Therefore, we remand to permit the postconviction court to conduct an evidentiary hearing to determine whether the closure was necessary and to make findings that permit a reviewing court to determine whether the closure was proper.  If the closure was not necessary, appellant is entitled to a new trial because a denial of the right to a public trial is not subject to harmless-error-impact analysis.  Fageroos, 531 N.W.2d at 203.

2.         Jury Instructions

Appellant argues that his conviction of second-degree unintentional murder must be reversed because the district court abused its discretion in submitting this offense to the jury.  “The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).  An instruction on a lesser-included offense must be submitted to the jury “when 1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.”  State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005). 

In Dahlin, the supreme court held “that in evaluating whether a rational basis exists in the evidence for a jury to acquit a defendant of a greater charge and convict of a lesser, trial courts must henceforth view the evidence in the light most favorable to the party requesting the instruction.”  Id. at 597.  Citing this holding, appellant correctly contends that in determining whether to instruct the jury on the second-degree murder offenses, the district court was required to view the evidence in the light most favorable to the state, which requested the instructions.  Appellant also correctly contends that, under State v. Slaughter, 691 N.W.2d 70, 75 (Minn. 2005), when considering a motion for a judgment of acquittal, the district court must view the evidence in the light most favorable to the state, and that, under United States v. Richards, 967 F.2d 1189, 1196 (8th Cir. 1992) (quotation omitted) (emphasis omitted), “[a] motion for acquittal should be granted only where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.”[3] Citing this standard, appellant contends further that, when the district court denied his motion for a judgment of acquittal, it determined that when the evidence was viewed in the light most favorable to the state, no reasonably minded jury could harbor a reasonable doubt as to the existence of any of the essential elements of the first-degree-murder offense that was charged.  Therefore, appellant argues, because the state prevailed when appellant moved for acquittal, the state could not then turn around and claim that the evidence is sufficiently weak on the elements of first-degree murder to justify instructions on the second-degree murder offenses.

But a denial of a motion for acquittal under the standard set forth in Slaughter and Richards does not mean that the district court has determined that no reasonably minded jury could harbor a reasonable doubt as to the existence of any of the elements of the charged offense.  A denial of a motion for acquittal means that the district court has determined that when the evidence is viewed in the light most favorable to the state, a reasonably minded jury does not have to find that there is reasonable doubt as to the existence of at least one of the elements of the charged offense. 

The reason why the district court must view the evidence in the light most favorable to the state is that the decision to convict or acquit is for the jury.  When it grants a motion for acquittal, the district court takes this decision away from the jury.  Therefore, the district court may only grant the motion when the jury could not find the defendant guilty, and the district court can only determine that the jury could not find the defendant guilty if it views the evidence in the light most favorable to the state.  The district court may not weigh the evidence or make credibility determinations when determining whether a lesser-included-offense instruction should be given.  Dahlin, 695 N.W.2d at 598. 

However, unlike the district court, the jury is not required to view the evidence in the light most favorable to the state.  The jury can accept or reject the state’s evidence, and depending on what evidence it accepts or rejects, the jury may acquit a defendant of a greater charge and convict the defendant of a lesser charge.  Consequently, when the district court considered the state’s request for instructions on the second-degree murder offenses, the requirement that it view the evidence in the light most favorable to the state did not mean that the district court was required to assume that the jury would view the evidence in the light most favorable to the state.  Instead, the district court was required to view the evidence in the light most favorable to the state and determine whether, if the jury rejected some of the state’s evidence, there was a rational basis for the jury to acquit appellant of first-degree murder and convict him of second-degree murder.  

Appellant offers no argument why the district could not conclude that if the jury rejected some of the state’s evidence about appellant’s intent, the jury could acquit appellant of first-degree murder but still convict him of second-degree unintentional murder.  There was evidence that appellant planned to go to Dotson’s house and rob the people who were there.  He believed that he needed a gun to complete the robbery, and he told Collins and Bryant that he was going to use the gun to hit someone or to shoot someone in the arm or leg.  When Bryant asked appellant why he had not shot McClellon in the arm or the leg, appellant said that “[e]verything was crazy and that somebody grabbed him.”  If the jury accepted this evidence, it could acquit appellant of intentional murder but still convict him of unintentional murder.

3.         Delay in filing

            Appellant argues that the district court erred in determining that his postconviction petition was untimely.  Review of the district court’s postconviction memorandum reveals that the district court did not dismiss the petition because it was untimely.  The court merely noted that the delay was unnecessary.  Thus, we do not address this issue.

            Affirmed in part and remanded in part.