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This opinion is nonprecedential except as provided by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
A21-0216

State of Minnesota,
Respondent,

vs.

Christopher Floyd Boder,
Appellant.

Filed February 28, 2022
Affirmed
Jesson, Judge

St. Louis County District Court
File No. 69DU-CR-19-3572

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Kimberly Jean Maki Hromatka, St. Loui s County Attorney, Du luth, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Johnson, Judge; and
Reilly, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Following a shooting in Du luth, respondent State of Minnesota charged appellant
Christopher Floyd Boder with aiding and abetting second-degree murder. The state alleged
2
that Boder and his accomplice killed a man in retaliation for an attempted robbery earlier
that night. Boder asserts that he is entitled to a new trial because the district court did not
instruct the jury on his accomplice’s right to self-defense. He further contends that he was
denied his right to a speedy trial because of pandemic-related delays, and that he was denied
his right to a public trial because the district court set up a separate viewing area for the
public instead of having spectators physically present in the courtroom. We affirm.
FACTS
Early one September 2019 morning, a methamphetamine purchase led to an
attempted robbery and then a fatal shooting.1 The decedent, T.N., had spent much of the
night driving around with a fri end named J.S. J.S. decide d to meet Boder to purchase
methamphetamine. Because J.S. was already in T.N.’s truck, she asked him for a ride. At
J.S.’s request, T.N. parked a block away fro m Boder’s home, and J.S. walked over to the
house. But Boder did not want to sell in front of his house because other people were
around. As a result, Boder and J.S. drove a short distance away from the house in Boder’s
car.
Boder parked at the end of a dirt road and sat talking with J.S. for a while. During
this time, T.N. drove past Boder’s car twice. All of a sudden, T.N. ran up to Boder’s car
and tried to grab him through his window and said something along the lines of “give me
all you got.” During the attempted robbery, T.N. had something in his hand that looked
like a gun. Boder opened the car door and punched T.N. in the face, and T.N. ran away.

1 The following is a summary of the evidence produced at trial by the state.
3
After the attempted robbery, Boder and J. S. drove back to Boder’s house, passing
T.N.’s truck on the way. At his home, Boder went inside and returned to his car holding a
rifle. James Peterson also came out of the house and sat in th e back seat of Boder’s car.
Then J.S., prompted by Boder and still in his car, called T.N. to ask him why he had
attempted to rob Boder. T.N., who had not realized the identity of the people he attempted
to rob, apologized for the incident. Boder rep lied that “it was fine,” but requested T.N.’s
location so they could “take care of it.” Boder handed the rifle to Peterson. Then, Boder,
Peterson, and J.S. left in Bode r’s car. Boder dropped off J.S. at a liquor store, where she
called T.N. to warn him that Boder and Peterson were “not going to take this lightly.” But
T.N. assured J.S. that “everything would be fine” and then ended the call because he saw
headlights approaching.
Shortly after T.N. ended the call, police received a shots-fired call near Boder’s
house. When the first police officer arrived at the scene, he found T.N. sitting in the front
seat of his truck holding his abdomen. T. N. was conscious but did not respond to the
officer’s questions. Wedged between the drive r’s seat and the front arm rest, the officer
discovered a flare gun that looked similar to a revolver-style pistol.
2
After securing the scene, officers canva ssed the neighborhood to find people who
had heard the shooting. No one claimed to have seen the shooting. But several neighbors
heard a brief argument involving two voices, a gunshot, and then a car driving away. The

2 Although the flare gun was shaped like a pist ol, the officer concluded that it was a flare
gun because it was painted bright orange.
4
neighbors remembered the argument differently , but they all remembered an angry voice
demanding something and a frightened voice replying.
T.N. died shortly after police arrived at the scene. The me dical examiner who
conducted his autopsy opined that the cause of death was a single gunshot. A blood test
revealed that T.N. had “6,900 NG per ML” 3 of methamphetamine in his system. The
medical examiner in her report observed that: “Blood levels of 200 to 600 [NG per ML]
have been reported in methamphetamine users who had exhibited violent and/or irrational
behavior.”
Around four in the morning, Peterson contacted J.S. on Facebook, and she called
him. Peterson told J.S. that T.N. “was rushing” at him and Boder, and “that he pulled the
trigger.” Peterson told J.S. that he needed to leave town, and she never heard from him or
Boder again. The next day, J.S. told police about the attempted robbery on the night of the
incident.
Less than a week after the shooting, the state charged Boder with aiding and abetting
second-degree intentional murder.
4 Boder demanded a speedy trial on March 4, 2020. But
Boder’s original trial date was postponed because of the COVID- 19 pandemic. On
March 20, 2020, the Chief Justice of the Minnesota Supreme Court suspended all jury trials
that were not currently underway. 5 The district court ultima tely continued Boder’s trial

3 “NG per ML” means the number of nanograms of a given substance that is found per one
milliliter of a person’s blood.
4 The state charged Peterson with second-degree intentional murder separately.
5 Order Continuing Operations of the Courts of the State of Minnesota Under a Statewide
Peacetime Declaration of Emergency , No. ADM20-8001 (Minn. Mar. 20, 2020). While
some counties were allowed to conduct jury trials in the summer of 2020 under a pilot
5
until October 6, 2020, the first available time that it was authorized to conduct a jury trial.
And because of the pandemic-related safety protocols, a camera with a live feed was set up
in a viewing area so members of the public could watch the trial remotely instead of being
inside the courtroom. Boder did not object to this procedure.
At trial, Boder requested that the district court instruct the jury on Peterson’s right
to self-defense. The district court denied the requested self-defense instruction. The jury
found Boder guilty of aiding and abetting second-degree murder.
Boder appeals.
DECISION
Boder argues that he is entitled to a new trial because the district court: (1) abused
its discretion by denying his request for a self-defense jury instruction, (2) violated his right
to a speedy trial, and (3) violated his right to a public trial. We address each contention in
turn.
I. The district court did not abuse its discretion by denying Boder’s requested
self-defense instruction.
Minnesota law authorizes the use of “r easonable force” in certain situations,
including “when used by any person in resisting . . . an offense against the person.” Minn.
Stat. § 609.06, subd. 1 (2018). But to raise this self-defense claim, a defendant must first
provide reasonable evidence showing each of the following four elements: (1) the absence

program, St. Louis County was not included in the pilot program. Order Governing the
Operations of the Minnesota Judicial Branch Under Executive Emergency Order Nos. 20-
53, 20-56, No. ADM20-8001 (Minn. May 15, 2020); see also Minnesota Judicial Branch
COVID-19 Preparedness Plan (Minn. May 15, 2020) (plan developed in response to
pandemic for safely conducting court operations including jury trials).
6
of aggression or provocation, (2) an actual and honest belief that the defendant was in
imminent danger of death or great bodily harm, (3) reasonable grounds for that belief, and
(4) the absence of a reasonabl e possibility of retreat. State v. Johnson, 719 N.W.2d 619,
629 (Minn. 2006); State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997). If a defendant
meets this burden, the state bears the burden of disproving one or more of those elements
beyond a reasonable doubt. Johnson, 719 N.W.2d at 629.
The defense theory was that T.N.—acting erratically due to the high concentration
of methamphetamine in his system—ambushe d Boder and Peterson in a second robbery
attempt, and Peterson shot T.N. in self-defense. The district court denied Boder’s requested
self-defense instruction because it concluded that he had not met his burden of producing
evidence supporting three of th e four elements of self-defense. We review this
jury-instruction decision for an abuse of discretion. State v. Huber, 877 N.W.2d 519, 522
(Minn. 2016).
We discern no error in the district court’ s decision to deny the instruction. While,
as the district court acknowledged, there was evidence that T.N. lunged at Peterson, there
was no absence of aggression or provocation on Peterson’s part, which is the first required
element of a self-defense claim. Rather, the men obtained a fi rearm, had J.S. call T.N. to
obtain his location, and traveled to confront T.N. after taking steps to leave behind a
potential witness. See State v. Radke, 821 N.W.2d 316, 324-25 (Minn. 2012) (concluding
defendant “was the aggressor w ho provoked the even ts leading to [the victim’s] death”
7
because defendant traveled to victim’s home with a loaded rifle and did not attempt to
diffuse the situation before shooting victim).6
Still Boder argues that even if he and Peterson were the original aggressors,
Peterson’s right to self-defense “revived” be cause he “withdrew” from the conflict. An
initial aggressor who withdraws from the conflic t in good faith and communicates that
withdrawal to the intended victim has a right to use reasonable force to resist a subsequent
offense against their person. Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986). But
there is no evidence that Boder and Peterson a ttempted to withdraw from the conflict, or
that they communicated that withdrawal to T.N. Acco rdingly, Boder has not shown the
first element required by his requested self-defense instruction.
A defendant who fails to produce evidence supporting any of the four elements is
not entitled to a self-defense instruction. State v. Graham , 371 N.W.2d 204, 209
(Minn. 1985). Because Boder did not show an absence of provocation or aggression on
the part of him or Peterson, the district court did not abuse its discretion by denying Boder’s
requested instruction.
II. Boder’s right to a speed y trial was not violated.
Boder argues next that he was denied his right to a speedy trial because his trial was
delayed for 216 days after his speedy-trial demand. He ack nowledges that the pandemic
provided good cause for “some delay” in this case—but not a delay of this duration. His

6 While we need not move bey ond examination of the first elem ent, the fact that the two
men traveled to confront T.N. also establishes record support for the district court’s finding
that Boder failed to establish that he attempted to retreat or otherwise withdraw from the
situation, the fourth required element of a self-defense claim. Johnson, 719 N.W.2d at 629.
8
claim is grounded on the right each accused has to a “speedy and public trial” in all criminal
prosecutions under both the Sixth Amendmen t to the United States Constitution and
Article 1, Section 6, of the Minnesota C onstitution. We review de novo whether a
defendant’s speedy-trial right was violated. State v. Taylor , 869 N.W.2d 1, 19
(Minn. 2015).
To determine whether a defendant’s right to a speedy trial has been violated, we
consider nonexclusive factors used by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). The factors are (1) the length of the delay, (2) the reason for the
delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the prejudice to
the defendant as a consequence of the delay. State v. Mikell , 960 N.W.2d 230, 245
(Minn. 2021). Finally, we balance the above factors to determine whether the defendant’s
speedy-trial right was violated. Id.
A. Length of the Delay
First, the 216-day delay he re is presumptively prejudici al. A defendant must be
tried within 60 days of a speedy-trial demand following a not guilty plea “unless the court
finds good cause for a later trial date.” Minn. R. Crim. P. 11.09(b). As a result, a delay of
more than 60 days is presumed to be prejudicial. Mikell, 960 N.W.2d at 246. But we must
consider the remaining Barker factors to determine whether the delay was justified. Id.
at 250.
B. Reason for the Delay
Second, we consider whether the state or the defendant was re sponsible for this
pandemic-related delay. In a recent opinion, we determined that when the delay is “solely
9
attributable to the COVID-19 pandemic,” the delay “is not attr ibutable to either party.”
State v. Jackson , 968 N.W.2d 55, 61 (Minn. App. 2021), rev. granted (Minn. Jan. 18,
2022). Here, the parties agre e that the initial delay was, indeed, attributable to the
pandemic. Boder, however, argues that the existence of pilot jury trials in the summer of
2020 (in select Minnesota counties) shows that at least a limited number of trials were
possible before October 2020. Accordingly, he asserts that the entirety of the 216-day
delay was unjustified and must weigh against the state.
We disagree. Between June and Oct ober 2020—as Boder acknowledges—only
limited pilot jury trials took place becaus e of the pandemic. Our reasoning in Jackson,
controls. Jury trials were limited because of the COVID-19 pandemic . As a result, the
delay here—where no one disputes that October 6 was the first available time this district
court was authorized to conduct a jury trial since March 20, 2020—is not attributable to
either party.
C. Assertion of Right
Third, we consider the nature of Boder’s assertion of his right to a speedy trial. A
demand for a speedy trial is evidence that th e defendant believes a delayed trial will be
harmful. Mikell, 960 N.W.2d at 252. We consider the defendant’s assertion of the right in
the context of “other signals in the case to assess whether a demand for a speedy trial is
serious.” Id.
Here, Boder inconsistently asserted his right to a speedy trial. He first demanded a
speedy trial in March 2020. And at a motion h earing in June, he demanded a speedy trial
again. But when the district court found good cause to continue Boder’s trial at his pretrial
10
hearing in July, he agreed to the October trial date as the closest realistic date that his trial
could begin. Accordingly, this factor weighs weakly in Boder’s favor.
D. Prejudice
Fourth, we consider whether Boder wa s prejudiced by reference to three
interests: “(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) preventing the possibility that the defense will be
impaired.” Id. (quoting State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999)). Generally,
impairment to the defense is the most seri ous of these interests and is measured “by
memory loss or witness unavailability.” Taylor, 869 N.W.2d at 20. But the prejudice must
be caused by the delay. State v. Osorio, 891 N.W.2d 620, 631 (Minn. 2017).
Here, Boder undoubtedly suffered anxiet y while incarcerated during the pandemic,
which infected many incarcerated persons. But the reason that his pretrial incarceration
was more oppressive or anxiety-inducing th an usual is the pandemic, which is not
attributable to the state. Jackson, 968 N.W.2d at 61. And Boder does not point to any loss
of memory by the witnesses, nor any witness becoming unavailable. Boder does not need
to allege specific instances of prejudice because excessive delay is presumptively
prejudicial. Doggett v. United States, 505 U.S. 647, 655 (1992). But because Boder rests
on presumed prejudice rather than showing how he was prejudiced by the delay, this factor
weighs only weakly in his favor.
E. Balancing the Factors
Finally, we balance the above factors to determine whether the state brought Boder
to trial “quickly enough so as not to endanger the values that the speedy trial right protects.”
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Mikell, 960 N.W.2d at 255. The length of th e delay here, 216 days, is presumptively
prejudicial. Id. at 246. The reason for the delay is not attributable to either party. Jackson,
968 N.W.2d at 61. Boder’s inco nsistent assertion of his right to a speedy trial, due to his
recognition that no jury trial was possible un der the then-effective orders of the Chief
Justice, “dilutes the impact of [his] initial strong demand for a speedy trial” in the overall
balancing. Mikell, 960 N.W.2d at 253. And because Bo der’s only claim of prejudice is
the prejudice that is presumed to flow from delay in ways that are difficult to quantify, this
factor also weighs weakly in his favor. Balancing the factors, with Mikell in mind, we
conclude that the delay here did not “enda nger the values that th e speedy trial right
protects.” Id. at 244. Accordingly, Boder has not shown that his speedy-trial right was
violated.
III. Boder’s right to a public trial was not violated.
Lastly, Boder asserts that because the a udience watched his trial from a separate
room through a video feed, his right to a public trial was violated. Like the speedy-trial
right, the right to a public trial is guara nteed by the United States and Minnesota
Constitutions. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But the right is not absolute.
Taylor, 869 N.W.2d at 10. Not all restrictions on access to a courtroom amount to a true
closure. State v. Peterson, 933 N.W.2d 545, 551 (Minn. App. 2019). A closure may still
be justified if: (1) the party se eking closure advances an overri ding interest likely to be
prejudiced, (2) the closure is not broader than necessary to protect the interest, (3) the court
considers reasonable alternatives to closure, and (4) the court makes findings adequate to
support the closure (the Waller factors). Waller v. Georgia, 467 U.S. 39, 46 (1984). We
12
recently considered, and rejected, a nearly identical challenge to a district court’s use of a
viewing room to allow spectators to view the trial while reducing the risk of spreading the
virus. State v. Modtland, ___ N.W.2d ___, ___, 2022 WL 433245, at *6-8 (Minn. App.
Feb. 14, 2021).
The state argues that because Boder did not object to the court’s viewing-room
procedure, we should review his claim for pl ain error, while Boder argues that we should
review this issue de novo. The standard of review for an unobj ected-to-public-trial
violation is unsettled. Id. at *6 n.4. But we need not decide which standard applies here
because we conclude that Boder’s right to a public trial was not violated even on de novo
review. Id. at *6-8.
Because Boder did not object to the proposed closure of the courtroom to the public,
the court did not specifically address the Waller factors on the record. But the district court
noted that “we are follo wing our pandemic jury trial plan, which includes having a live
feed for the—to a public viewing area.” And when Boder’s counse l requested that the
jurors be allowed to remove their masks du ring voir dire, the court denied the request
because it was “not consistent with orders fro m the Governor or our Chief Justice or our
pandemic plan that has been developed in conjunction with the Minnesota Department of
Public Health.” The district court’s on-the-record descrip tion of its pandemic protocols
implicitly addressed the Waller factors. See id. at *8 (concluding that district court’s
implicit findings were sufficient to permit review of its decisi on). With this context in
mind, we turn to the Waller factors.
13
Under the first factor, a cl osure is justified when th e party seeking the closure
advances an overriding interest. Waller, 467 U.S. at 48. “We have already established that
preventing the spread of COVID-19 is undoubtedly an overriding interest.” Modtland, ___
N.W.2d at ___, 2022 WL 433245, at *7.
Second, the district court’ s procedures were not broade r than necessary to prevent
the spread of the virus. The record shows that the district court’s procedure was based on
the county’s “pandemic jury trial plan,” wh ich was in turn based on orders from the
governor and chief justice, as well as gui dance from the health department. And the
viewing room allowed the public to witness th e trial while reducing the risk of the virus
spreading. Id.
Third, the record suggests that the district court co ncluded that there were no
realistic alternatives to the cl osure. As noted, the district court had to comply with the
St. Louis County plan for co nducting jury trials, which wa s created in concert with
guidance from the statewide Preparedness Plan. See Minnesota Judicial Branch
COVID-19 Preparedness Plan (Minn. May 15, 2020).7 The court remarked that, following
those recommendations, “on a statewide basis, a number of jury trials have been done
successfully” and that the court had “worked very carefully with the public health officials
to make sure we can do this in a safe wa y for everyone.” Because the Preparedness Plan
required all persons in a court facility to socially distance, alternatives to a “viewing room”

7 The Plan notes that “remote video participation, when technically feasible, should remain
an option when social distancing is not maintained.” Id.
14
were limited, particularly without a continuance in a matter where Boder asserted his right
to a speedy trial.
Finally, we conclude that the district court’s “reliance on the Chief Justice’s
guidance adequately supported its decision to limit public access to the courtroom.”
Modtland, ___ N.W.2d at ___, 2022 WL 433245, at *8. Although the district court did not
make explicit findings on the record—because Boder did not object to the closure—the
record permits review of the court’s decision. See Waller, 467 U.S. at 45 (noting that
findings must be specific enough that reviewing court can determine whether closure was
proper). Accordingly, on this record we conclude that the use of a viewing area in lieu of
live spectators in the courtroom did not violate Boder’s right to a public trial.
Affirmed.