State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0640

State of Minnesota,
Respondent,

vs.

Jason Richard Montonye,
Appellant.

Filed April 12, 2021
Reversed and remanded
Smith, Tracy M., Judge

Stevens County District Court
File No. 75-CR-18-167

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Aaron Jordan, Stevens County Attorney, Morris, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Pr esiding Judge; Segal, Chief Judge; and
Smith, Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal, appellant Jason Richard Montonye challenges his convictions
for second-degree driving while impaired (DWI) and driving after cancellation as inimical
to public safety. He argues that the district court (1) violated his right to a public trial by

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closing the courtroom during a portion of voir dire, (2) e rred by admitting a hearsay
statement by Montonye’s wife under the residual exception to the hearsay rule, and
(3) erred by determining that the prosecut or was not a necessary witness after the
prosecutor conducted a pretrial interview of Montonye’s wife about the facts in the case
with no one else present. Because we conclude that the district court closed the courtroom
without justification in viola tion of Montonye’s constitutional right to a public trial, we
reverse and remand for a new trial on all counts.
FACTS
The following facts were established at th e jury trial in this case. At around 5:30
a.m. on May 5, 2018, the Steven s County Sheriff’s Office responded to a single-car roll-
over crash on Highway 9. When officers arrived, the car was empty. The car was registered
to Montonye’s wife, and officers found Montonye’s driver’s license in the car. The officers
learned that Montonye was at a nearby hospital.
Officers spoke to a homeowner who lived cl ose to the scene. The homeowner told
them that Montonye had knocked on his door at around 2:30 that morning. The homeowner
told the officers that he noticed that Montonye was inju red and that he smelled a “little
alcohol” on Montonye. The hom eowner said that he contacted Montonye’s wife, who
picked up Montonye about a half hour later.
Officers went to the hospital and ques tioned Montonye about the accident.
Montonye explained that an unidentified third party was driving the car and that he was a
passenger. He told officers that he would not di sclose the name of the driver, explaining,
“He can’t get a DWI, neither can I.” Montonye never identified the alleged driver. Officers

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testified that they could smell alcohol in the hospital room, and, based on exigent
circumstances, they took a warrantless blood sa mple from Montonye. Officers also took
photos of Montonye’s injuries. While blood appeared to be present on the driver’s side air
bag, no blood was found on the passenger side, and the passenger seatbelt was unused.
Officers spoke with Montonye’s wife at the hospital. Montonye’s wife did not
testify at trial. But an officer testified that she told the officers that, after she picked
Montonye up, they were home together until about 5:00 a.m., when she brought him to the
hospital. The officer further testified that , when he asked Mont onye’s wife whether
Montonye “had consumed any alcohol or drugs after the crash while she was with him[,]
she said he did not.”
Respondent State of Minnesota charged Montonye with two counts of second-
degree DWI (operating a motor vehicle while under the influence of alcohol and operating
a motor vehicle with an alcohol concentration over 0.08 at the time or within two hours of
driving) and one count of driving after cancella tion as inimical to public safety. The jury
found Montonye guilty on all counts, and the district court entered convictions for driving
with an alcohol concentrati on of 0.08 within two hours of diving and driving after
cancellation charges.
Montonye appeals.
DECISION
Montonye raises three issues. We begin w ith his argument that he is entitled to a
new trial because the district court infringed on hi s right to a public trial. Specifically, he

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asserts that the district court violated his p ublic-trial right when it conducted voir dire of
one potential juror in chambers rather than in open court.
The United States and Minnesota Constit utions, with identical language, grant
criminal defendants the right to a public tr ial: “In all criminal prosecutions, the accused
shall enjoy the right to a . . . public trial . . . .” U.S. Const. amend. VI; Minn. Const. art. I,
§ 6. The right to a public trial applies during a ll phases of trial, in cluding voir dire of
prospective jurors. Presley v. Georgia, 558 U.S. 209, 213, 130 S. Ct. 721, 724 (2010); State
v. Brown, 815 N.W.2d 609, 617 (Minn. 2012).
Despite the text of the Sixth Amendment, the right to a public trial is not absolute.
State v. Taylor , 869 N.W.2d 1, 10 (Minn. 2015) (q uotation omitted). The closure of a
courtroom may be justified if (1) “‘the party seeking to close the hearing . . . advance[s] an
overriding interest that is lik ely to be prejudiced,’” (2) th e closure is “‘no broader than
necessary to protect that interest,’” (3) the district court considers “‘reasonable alternatives
to closing the proceeding,’” and (4) the district court makes “findings adequate to support
the closure.” State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995) (alteration omitted)
(quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984)).1
Whether a district court violated a defe ndant’s right to a public trial is a
constitutional question that we review de novo. See Brown, 815 N.W.2d at 616. And if this
constitutional right is violated, it “is considered a structural error that is not subject to a

1 These factors are commonly called the Waller factors. Minnesota Rule of Criminal
Procedure 26.02, subd. 4(4), governs the process a district court must follow when closing
voir dire to the public and incorporates the Waller factors.

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harmless error analysis.” State v. Bobo , 770 N.W.2d 129, 139 (Minn. 2009) (citations
omitted). Because structural errors call into question “the very accuracy and reliability of
the trial process,” they generally require automatic reversal of a conviction. State v. Brown,
732 N.W.2d 625, 630 (Minn. 2007) (quotation omitted).2
A. A true closure occurred.
The state argues that Montonye’s right to a public trial was not implicated because
a closure did not occur. Not all restrictions on access during a trial raise constitutional
concerns—“[s]ome restrictions on access to the courtroom are so insignificant that they do
not amount to a ‘true clos ure’ of the courtroom.” Petersen, 933 N.W.2d at 551 (quoting
Taylor, 869 N.W.2d at 11-12). To determine whether a “true closure” occurred, courts look
to several factors, including whether: (1) th e courtroom was cleared of all spectators;
(2) the proceedings remained open to the pub lic and press; (3) there were periods where
the public was absent; and (4) th e defendant, the defendant’s family and friends, or other
witnesses were excluded. Id. (citations omitted).

2 The state argues that, because Montonye did not object to the closure at trial, we should
apply a plain-error standard of review and not reverse Montenye’s convictions unless the
error seriously affected the fairness, integr ity, or public reputation of the judicial
proceedings. The state cites State v. Benton, a right-to-public-trial case where the supreme
court applied an invited-error standard of review when defense counsel “actively sought”
closure of the courtroom and the defendant confirmed that he wanted the courtroom to be
closed. 858 N.W.2d 535, 540 (Minn. 2015). But, here, Montonye did not actively seek the
closure. Thus, we review Montonye’s claimed structural error de novo. See State v.
Petersen, 933 N.W.2d 545, 551 (Mi nn. App. 2019) (applying de novo review to an
unobjected-to closing of voir dire and explaining that viol ation of the constitutional right
to a public trial is structural error).

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Here, during voir dire, when prospective ju rors were being interviewed in a group
setting in the courtroom, Juror W. disclosed that he had been in an accident involving a
drunk driver. He explained that the accident ha d injured him and that he had been “pretty
upset” at how the situation was handled. Still, Juror W. said that he did not think the prior
incident would influence his ability to be fair and impartial. During this questioning, the
district court stated, “I don’t want to get into too much details in front of everybody about
what happened. I wonder whether we should ask him questions separate and apart from the
other jurors. Counsel?” The state replied, “P erhaps,” and Montonye’s counsel remained
silent. A few minutes later, the district court a llowed the rest of the prospective jurors to
take a break and said to Juror W., “I guess we could—yeah, we could take you in my office,
my chambers, just ask you a little more deta il about what’s going on and how you feel,
what your experiences might have been . . . .” Counsel thereafter co nducted voir dire of
Juror W. with the judge in ch ambers. Proceedings were held off the record for about half
an hour, and no record was made of the in-chambers voir dire.
The state argues that a “true closure” di d not occur because only one juror was
individually questioned for a short period of time. He contrasts the case with Petersen,
where we concluded that a tr ue closure occurred when the courtroom was closed for
approximately five to six h ours of individualized questi oning of prospective jurors. 933
N.W.2d at 551. While it is true that Petersen involved a more substa ntial closure of the
courtroom, it does not preclude the in-chamber s voir dire here from being a true closure.
And, as we noted in Petersen, cases in which restrictions have been deemed not to be true
closures “generally have involved the limited exclusion of certain identified persons while

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persons already present in the courtroom were allowed to remain.” Id. at 552 (citing State
v. Zornes, 831 N.W.2d 609, 620-21 (Minn. 2013) (concluding that removing the victim’s
brother, who was on the witness list, from the courtroom was not a true closure); Brown,
815 N.W.2d at 617-18 (concluding that lo cking the courtroom doors during jury
instructions was not a true closure); State v. Lindsey , 632 N.W.2d 652, 660-61 (Minn.
2001) (concluding that removing two minor children was not a true closure); State v. Hicks,
837 N.W.2d 51, 61-62 (Minn. App. 2013) (c oncluding that closures for administrative
proceedings typically held in chambers but conducted in the courtroom were not true
closures)).
Montonye argues that applying the relevant factors yields the conclusion that a true
closure occurred here. We agree. While the di strict court did not clear the courtroom of
spectators, the courtroom proceeding of voir dire took place away from the courtroom, in
chambers, where spectators had no access. See Petersen, 933 N.W.2d at 552 (concluding
that the “complete exclusion” of spectators from voir dire constituted a true closure). The
proceeding was not open to the public or the pre ss, and both were absent. See id. And,
although it is unclear from the record whether Montonye, the defendant, was present, it is
clear that Montonye’s family and friends and other witnesses were excluded. See id. Thus,
the in-chambers questioning of Juror W. was a true closure.
B. The closure was not justified.
The next question in determining whether Montonye’s Sixth Amendment right to a
public trial was violated is whether the closure was justified under the Waller factors.

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We note first that the district court did not satisfy the fourth Waller factor—
specifically, it did not make findings adequate to support the closure. See Fageroos, 531
N.W.2d at 201-02; see also Minn. R. Crim. P. 26.02, subd . 4(4)(f). In general, in a
courtroom-closure case, if a remand to the district court for additional findings “on whether
there was a specific basis for closure” could remedy the improper closure, “then the initial
remedy is a remand, not a retrial.” State v. McRae, 494 N.W.2d 252, 260 (Minn. 1992); see
also Petersen , 933 N.W.2d at 553 (remanding for th e district court to make findings
concerning whether a closure wa s justified). On the record here, however, remanding for
additional findings is unwarranted because two of the Waller factors cannot be met.
In deciding to conduct in-cha mbers voir dire of Juror W., the district court stated
that it did not “want to get into too much details in front of everybody about what
happened” during Juror W.’s accident with a drunk driver and questioned whether voir dire
of Juror W. should oc cur “separate and apart from the othe r jurors.” The district court’s
expressed concern reasonably fits within the first Waller factor—that the closure would
advance an overriding interest that would be otherwise prejudiced. See Fageroos , 531
N.W.2d at 201-02. The interest was that other jurors not be biased by Juror W.’s description
of his negative experience.
But the record provides no basis to find that the second and third Waller factors
were met—namely, that the closure was no broader than necessary and that there were no
reasonable alternatives to the closure. See id. It is clear on this record that the district court
could have protected the interest of not letting Juror W.’s experience bias the other
prospective jurors by excusing them from the courtroom and individually questioning Juror

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W. in open court. Because , on this record, the Waller factors cannot be satisfied, the
appropriate remedy for the courtroom closure is a new trial and not a remand for additional
findings.
Because Montonye’s constitutional right to a public tria l was violated, we reverse
his convictions and remand this case to the di strict court for a new trial on all counts.
Because our resolution of Montonye’s courtr oom-closure argument is dispositive, we do
not address the merits of his other two arguments claiming trial error.
Reversed and remanded.