Remand To Make Findings on Why Trial Court Removed Spectators From Courtroom

State v. Infante, Minn.Ct.App., 4/19/2011.  During Mr. Infante’s jury trial for second degree assault the trial court booted his sister and a young child from the courtroom during the prosecutor’s closing argument.  Apparently, when sister and child came into the courtroom the prosecutor complained that their arrival threw him (or her) off his (or her) game.  The bailiff tossed them out into the hallway.

The judge can’t just toss people out of a public courtroom; there are rules about this:  Waller v. Georgia, 467 U.S. 39 (1984).  Tossing people improperly is a structural error – a defendant’s right to a public trial – that is not subject to harmless error.  State v. Bobo, 770 N.W.2d 129 (Minn. 2009).  To overcome the presumption that the courtroom is open to everyone:

(1) the party seeking closure must “advance an overriding interest that is likely to be prejudiced” if closure is denied, (2) “the closure must be no broader than necessary to protect that interest,” (3) the district court “must consider reasonable alternatives to closing the proceeding,” and (4) the court “must make findings adequate to support the closure.”

Here, there is nothing in the record to satisfy any of these four factors.  Although on appeal the state offered up some possible explanations, they were not supported by anything in the record.  So, the court sends the case back to the trial court for a redo, to see if that court can support the exclusions.

Mr. Infante also complained that the jury should have been instructed that they had to reach a unanimous decision about which of two acts constituted the assault.  The appellate court reviewed this claim under plain error and found none.  A statute that establishes alternative means for satisfying an element, unanimity on the means is not required.  State v. Ihle, 640 N.W.2d 910 (Minn. 2002). See State v. Dalbec, 789 N.W.2d 508 (Minn.Ct.App., 2010).  Mr. Infante’s two actions occurred at the same place and involved the same victim and were thus part of a single behavioral incident.  Each of the actions was a means for accomplishing an element of the offense.