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State v. Petersen

Court of Appeals of Minnesota

September 3, 2019

State of Minnesota, Respondent,
v.
Gary Christopher Petersen, Appellant.

          Anoka County District Court File No. 02-CR-17-2064

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Hooten, Judge.

         SYLLABUS

         A criminal defendant's constitutional right to a public trial applies throughout voir dire proceedings. If a district court closes the courtroom without making adequate findings concerning the reasons for the closure, the necessary breadth of the closure, and the existence or absence of reasonable alternatives to closure, as required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), the appropriate initial remedy is a remand to the district court for an evidentiary hearing and findings concerning whether the closure was justified.

          OPINION

          JOHNSON, JUDGE

         An Anoka County jury found Gary Christopher Petersen guilty of three criminal offenses. During a portion of the jury-selection process, the district court closed the courtroom without making adequate findings concerning the reasons for the closure, the necessary breadth of the closure, and the existence or absence of reasonable alternatives to the closure. Therefore, we remand to the district court for an evidentiary hearing and findings concerning whether the courtroom closure was justified.

         FACTS

         In September 2016, Anoka County detectives searched a cellular telephone that was seized during a traffic stop and, by happenstance, discovered video-recordings of several persons assaulting a man. Detectives identified the perpetrators in the video-recordings as Petersen and four other persons. Detectives also identified the victim of the assault. Detectives contacted the victim, but he initially did not want law-enforcement officers to become involved. Approximately six months later, however, the victim contacted a detective and said that he wished to give a statement about the incident. A few days later, the victim gave a statement that was consistent with the video-recordings, which he had not seen.

         In April 2017, the state charged Petersen with three offenses. In March 2018, the state amended the complaint by adding a charge. The amended complaint charged Petersen with aiding and abetting first-degree criminal sexual conduct, in violation of Minn. Stat. §§ 609.05, subd. 1, 609.342, subd. 1(e)(i) (2016); aiding and abetting second-degree criminal sexual conduct, in violation of Minn. Stat. §§ 609.05, subd. 1, 609.343, subd. 1(e)(i) (2016); aiding and abetting kidnapping, in violation of Minn. Stat. §§ 609.05, subd. 1, 609.25, subd. 1(2) (2016); and aiding and abetting second-degree assault, in violation of Minn. Stat. §§ 609.05, subd. 1, 609.222, subd. 1 (2016).

         The case was tried to a jury in April 2018. During the jury-selection process, prospective jurors were asked to complete written questionnaires, which asked whether, among other things, they or anyone close to them had ever been a victim of physical abuse, sexual abuse, or another crime. Based on the completed jury questionnaires, the parties identified the prospective jurors whom they wished to question individually, outside the presence of other jurors. Before the first prospective juror was questioned individually, the prosecutor asked the district court to close the courtroom, stating, "Some of the answers in this questionnaire lead me to think that's what the jurors would be more comfortable with." The district court asked Petersen's attorney whether there was an objection. She responded by noting that "only one or two . . . stated they had concerns about the contents of what they'd be viewing," by questioning whether it was "necessary to exclude everyone during all individual questioning," and by suggesting that closure might be appropriate only "for those people who express[ed] concern in their jury questionnaire." After the district court referred to "the confidentiality issues," Petersen's attorney reiterated that "there's only a handful of people within these jury questionnaires who stated that they had concerns about sharing information publicly" and that she "didn't think it was necessary." She added, "[B]ut if the Court feels more comfortable excusing everyone from the courtroom, that's fine as well." The district court stated that it would close the courtroom "at least as to these first three" prospective jurors and asked persons sitting in the gallery to leave the courtroom. The district court did not re-open the courtroom throughout the remainder of voir dire, during which time the parties' attorneys individually questioned 28 of the 46 prospective jurors on a variety of topics.

         During the evidentiary phase of trial, the state called six witnesses and introduced 12 exhibits, including the video-recordings that were found on the cellular telephone. Peterson called only one witness and did not present any other evidence.

         The jury found Petersen not guilty of aiding and abetting first-degree criminal sexual conduct and found him guilty of aiding and abetting second-degree criminal sexual conduct, aiding and abetting kidnapping, and aiding and abetting second-degree assault. The jury also found three aggravating factors. In June 2018, the district court granted the state's motion for upward durational departures on the convictions of aiding and abetting second-degree criminal sexual conduct and aiding and abetting kidnapping. The district court imposed sentences of 120 months ...


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