1. The first-degree domestic abuse murder statute, Minn. Stat. § 609.185(a)(6) (2004), does not impermissibly overlap with the third-degree depraved mind murder statute, Minn. Stat. § 609.195(a) (2004), or create an arbitrary classification of domestic abusers, and thus does not violate the Equal Protection Clause of the Minnesota Constitution.
2. The district court did not abuse its discretion in denying a defendant's motion for a continuance to secure an expert witness to refute the state's expert testimony where the motion was made at the close of the state's case and was not supported by a showing of good cause.
3. The appellant's pro se arguments are without merit.
The opinion of the court was delivered by: Hanson, Justice.
Heard, considered, and decided by the court en banc.
Appellant Charles Ray Barnes appeals from his conviction of first-degree domestic abuse murder, Minn. Stat. § 609.185(a)(6) (2004). He argues that domestic abuse murder violates the Equal Protection Clause of the Minnesota Constitution because the elements of the crime overlap with those of third-degree depraved mind murder, Minn. Stat. § 609.195(a) (2004), but domestic abuse murder provides for significantly greater penalties. He also requests a new trial based on several claims of procedural error. We affirm.
Minutes before midnight on July 13, 2004, Barnes called 911 from his Burnsville apartment reporting that he had just arrived home and found his ex-wife, Erin Rooney, unconscious and not breathing. He told the dispatcher that he thought she had overdosed on drugs or alcohol. He said he dragged her from the living room to the bathroom to try to wake her up with water because he thought she had just passed out. Barnes performed some chest compressions at the dispatcher's direction.
Two police officers attempted CPR by administering chest compressions and tilting Rooney's head to open her airway. The paramedics arrived shortly thereafter and learned that Rooney had been in this state for 20 to 30 minutes before Barnes called 911. The officers stopped resuscitation efforts a few minutes later when paramedics pronounced her dead.
One officer observed a syringe with a small amount of liquid inside and a rolled-up dollar bill on a table in the living room. When the officer asked Barnes about it, he said it belonged to Rooney and that she was a heroin addict. Rooney had a puncture mark on her inner right arm that appeared to be from a needle. An officer then briefly interviewed Barnes and his version of what happened changed slightly from what he had told the dispatcher. He said he and Rooney ate dinner together and that he went to bed around 9:00. He said he woke up a few hours later and found Rooney unconscious. The officers acknowledged that there was no sign of a struggle in the apartment and that they initially treated the case as a death investigation, not a homicide. Although they took some photographs, they did not change the locks on the apartment or otherwise secure it, they allowed Barnes to leave with his relatives, and they collected no evidence.
An investigator at the coroner's office responded to the death scene. With the assistance of five or six police officers, she secured Rooney's body in a body bag and loaded it into the investigator's personal vehicle. The investigator drove to the morgue and unloaded Rooney's body onto a gurney by herself.
The next day the medical examiner, Dr. Lindsey Thomas, performed an autopsy on Rooney's body and documented numerous injuries: (1) several bruises and abrasions; (2) defensive injuries on her hands; (3) hemorrhaging in her neck; (4) a broken hyoid bone (in her neck); (5) petechiae (ruptured blood vessels) in her eyes; (6) swelling and congestion in her face; (7) injuries to her lips and tongue; and (8) a contusion under her chin. At trial Dr. Thomas conceded that until she discovered the neck injuries, the numerous other injuries on Rooney's body were consistent with a drug overdose. It was not until Dr. Thomas found the broken hyoid bone and hemorrhage in Rooney's neck that the police began treating the investigation as a homicide.
Barnes was arrested that evening at his mother's house. The only injury officers found on Barnes was a scratch on his back. Police executed a search warrant on the apartment but found nothing else of significance. At trial, the state introduced medical evidence through the medical examiner who performed the autopsy, Dr. Thomas, and a forensic pathologist who reviewed Dr. Thomas' conclusions, Dr. Dean Hawley. The state's theory was that Barnes strangled Rooney during the course of a domestic assault, and then injected her with heroin to create the appearance of a drug overdose.*fn1 Dr. Hawley gave his opinion that each of Rooney's injuries occurred while she was still alive and that she died from asphyxiation due to manual strangulation.
Barnes' theory was that Rooney died from an overdose of heroin and alcohol. On cross-examination of the state's witnesses, he tried to show that all of Rooney's injuries could be explained by other causes. He argued that the drugs and alcohol she consumed caused her to fall down and bump into things, which caused all of her bruises and abrasions. He also suggested that the hyoid bone either broke when Rooney fell and hit some furniture, or when the coroner's investigator mishandled Rooney's body. Finally, he suggested that the neck hemorrhages were the result of an improper autopsy procedure.
Because of the importance of the medical testimony, defense counsel applied to the court for, and was granted, state funds to hire two different medical experts.*fn2 The court carved out an exception to its sequestration order allowing Barnes' expert to be present during the state's medical testimony to aid in cross-examination. Barnes did not take advantage of this authorization. Barnes listed only one of the two experts as a potential witness. After the state closed its case, Barnes reported that the listed expert witness was unable to appear. Barnes moved for a mistrial or for a continuance, suggesting that the time was needed to retain another expert. Barnes only gave a vague reason why the listed witness was unable to appear, and did not explain why the other expert he had retained was not listed as a witness, or who he would now seek to retain. The court denied his motion.
Barnes was found guilty of first-degree domestic abuse murder, Minn. Stat. § 609.185(a)(6); second-degree unintentional felony murder, Minn. Stat. § 609.19, subd. 2(1) (2004); and first-degree felony assault, Minn. Stat. § 609.221, subd. 1 (2004), but not guilty of second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2004). He was sentenced to life in prison based on the first-degree domestic abuse murder conviction. This appeal followed.
Barnes first argues that his sentence for first-degree domestic abuse murder should be vacated and a new sentence imposed for the second-degree murder conviction. He argues that the domestic abuse murder statute violates the Equal Protection Clause, article 1, section 2 of the Minnesota Constitution.*fn3 Unless a fundamental right or suspect class is involved, statutes are presumed to be constitutional. Rio Vista Non-Profit Housing Corp. v. County of Ramsey, 335 N.W.2d 242, 245 (Minn. 1983). We will hold a statute unconstitutional "only when absolutely necessary." State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997). The constitutionality of a statute is a question we review de novo. State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998).*fn4
Barnes makes two equal protection arguments. First, he claims that first-degree domestic abuse murder impermissibly overlaps with third-degree depraved mind murder. Second, he argues that first-degree domestic abuse murder singles out domestic abusers for harsher punishment without a rational basis.
Section 609.185(a)(6), the domestic abuse murder statute, makes it first-degree murder to cause "the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim * * * and the death occurs under circumstances manifesting an extreme indifference to human life." Section 609.195(a), the depraved mind murder statute, makes it third-degree murder to, without intent to effect the death of any person, cause "the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard to human life." The penalty for first-degree domestic abuse murder is life imprisonment and the penalty for third-degree depraved mind murder is a maximum of 25 years in prison, with a presumptive sentence under the sentencing guidelines of 150 months in this case. Barnes argues that "there is no significant difference in the culpable mental state required by these statutes" and that "the lack of a meaningful variance between the two does not justify the huge disparity in the two sentences under the equal protection provisions of the Minnesota Constitution."
Barnes relies in part on the equal protection analysis of Professor Wayne R. LaFave, who classifies three types of overlapping statutes and discusses the differing equal protection implications of each:
(1) where one statute defines a lesser included offense of the other and they carry different penalties (e.g., whoever carries a concealed weapon is guilty of a misdemeanor; a convicted felon who carries a concealed weapon is guilty of a felony); (2) where the statutes overlap and carry different penalties (e.g., possession of a gun by a convicted felon, illegal alien or dishonorably discharged serviceman is a misdemeanor; possession of a gun by a convicted felon, fugitive from justice, or unlawful user of narcotics is a felony); (3) where the ...