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State v. Carney

August 22, 2002

STATE OF MINNESOTA, RESPONDENT,
v.
MARK JOHN CARNEY, APPELLANT.



SYLLABUS BY THE COURT

1. The district court did not err in refusing to instruct a jury on heat-of-passion first-degree manslaughter based on its conclusion that no rational basis existed for the jury to find that appellant committed the killing in the heat of passion.

2. The district court did not abuse its discretion and appellant was not denied a fair trial by admitting in evidence a photograph of the victim with his family.

3. The district court did not abuse its discretion in refusing to admit in evidence testimony that was cumulative and violated Minnesota Rule of Evidence 1002.

Affirmed.

The opinion of the court was delivered by: Stringer, J.

Heard, considered, and decided by the court en banc.

OPINION

Mark John Carney (appellant) was convicted of premeditated first-degree murder for killing John Voeller (Voeller) after confirming that Voeller was having an affair with appellant's wife Sheila Carney. At trial appellant requested a jury instruction on the lesser-included offense of first-degree heat-of-passion manslaughter under Minn. Stat. §á609.20 (1) (2000). The district court denied the request and the jury found appellant guilty of first-degree premeditated murder. On direct appeal appellant seeks a new trial based on claimed error in denying his request for a heat-of-passion manslaughter jury instruction as well as two evidentiary rulings. We affirm.

Appellant and his wife Sheila were married in 1983 and over the next few years they had two sons. In 1999, appellant became depressed over his career and matters relating to home renovations and repairs, and, although he changed jobs, his depression persisted. He took antidepressants for a short time but stopped due to negative side effects. In January of 2000, through Sheila's job with Stop-n-Go stores, a close working relationship developed between Sheila and Voeller as they worked together to open Tobacco City stores. Over the next several months Sheila and Voeller became confidants spending at least 800 minutes a month talking to one another on their cell phones in May and June. A mutual attraction developed, although when appellant asked Sheila about her relationship with Voeller, she told him it was work-related and that "nothing was going on."

In May, two days after Sheila met friends at a bar and did not return home that night, appellant called her and threatened suicide. He began taking antidepressants again and he and Sheila attended family counseling sessions. Sheila continued to insist that her relationship with Voeller was work-related and not an issue. She and appellant decided to live separately but they stayed together three or four times a week and were frequently intimate.

One night in late June appellant and Sheila met at a bar and had several drinks. They agreed that appellant would follow Sheila as she drove home in her car because of her alcohol consumption. While driving Sheila called Voeller on her cell phone. When they arrived home, appellant pressed redial on Sheila's cell phone and saw that she had called Voeller. An argument ensued, Sheila reiterated that her relationship with Voeller was not an issue, and she then left for her mother's house with their younger son. Appellant was distraught and again threatened suicide. After talking with his family he checked himself into a clinic for psychiatric evaluation but stayed only until the next day. Shortly thereafter, at a mental health professional's suggestion, appellant moved his firearms to his aunt and uncle's home, forgetting two at home. Appellant's aunt described his behavior in July as erratic. She said that he had trouble sleeping and concentrating, he was not eating, and he was sluggish. Meanwhile Sheila continued to tell appellant's family that her relationship with Voeller was not an issue.

Appellant arrived at Sheila's office after lunch one day in July and saw Sheila getting out of Voeller's car. Appellant told Voeller to stay out of his marriage and poked Voeller in the chest. Voeller laughed off the comment. In August, another confrontation occurred when Sheila had not invited appellant to her company picnic, an event he had attended for the prior 20 years. He became upset and appeared anyway, and after the picnic had ended, he found Sheila and Voeller alone in the parking lot, talking near their cars. When Sheila saw appellant she drove away immediately. Voeller got in his car and when approached by appellant, Voeller asked him "[W]hat are you doing now fat boy?" Appellant punched Voeller in the face through the open window, Voeller got out of his car and the two scuffled.

Although Sheila continued to deny she was having an affair with Voeller, appellant often followed her, showed up unannounced at her office, and called her numerous times during the day demanding to know where she was, whom she was with and where she was going. On several occasions appellant took Sheila's cell phone and waited for Voeller to call. Sheila considered this behavior, as well as appellant's suicide threats, as controlling and manipulative.

Appellant telephoned Voeller's wife in August and was told that she did not know what their spouses were doing and that if Sheila and Voeller wanted to be together, appellant should move on. Later appellant told a friend that appellant could not be happy with Voeller around, told his boss something like he wanted to "beat the hell out of" Voeller, and wrote his wife a note instructing her to not come back "until there is no such thing as [Voeller]."

On August 13 appellant and Sheila had dinner with appellant's aunt and uncle to talk about the future of appellant and Sheila's marriage. Appellant's aunt was concerned that Sheila was giving appellant a false hope that their marriage could succeed. Three days later appellant's spirits were lifted because he and Sheila were intimate that morning, they later had lunch, he sent her flowers and appellant scheduled a job interview. Despite these positive signs however, later that day appellant purchased equipment at an electronics store to enable him to record telephone conversations and he installed the machine that day at the family home where Sheila was staying. Appellant testified that he bought the equipment to confirm what Sheila and his family told him: that the affair was "in his head."

That night the machine recorded a conversation between Sheila and Voeller in which Voeller referred to appellant as "shit for brains," and they discussed a variety of subjects, including a bet between them as to whether appellant would come home that night. Most important however, they discussed Sheila and Voeller's plans to go away for the coming weekend. Voeller described how he had bought liquor for the trip that made Sheila "crazy" and joked that appellant had probably tapped the phones. The machine also recorded a call from appellant to Sheila while she and Voeller were talking and recorded Sheila's click over to call waiting to speak ...


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