Tenth Affirms Assault Conviction for DWI, Upward Sentencing Enhancements
U.S. v. Pettigrew, 2006 WL 2076796 (7/26/06) - (1) The admissibility of an unsolicited inculpatory pre-Miranda warning statement, following a voluntary statements made in violation of Miranda, turns on whether the inculpatory statement was knowingly and voluntarily made. In other words, the "fruit of the poisonous tree" doctrine does not apply to Miranda violations. The inculpatory statement was voluntary even considering the lingering psychological effect of the defendant's first two statements obtained in violation of Miranda.
(2) The d.ct. did not abuse its discretion in allowing the government to parade before the jury several times a family photo of the attractive deceased woman when she was alive along with her handsome husband and adorable two daughters. The 10th relied on the admissibility of photos to identify deceased victims, [even though the photo was never admitted and there was no identity issue], the jury instruction not to rely on sympathy, and the fact that all four were victims. The 10th was "troubled" by the government's decision to display a photo of the deceased with the rest of her family, [as opposed to just a photo of her] while saying she didn't make it home that night. That "needlessly pushed the envelope" and might jeopardize a conviction if coupled with other errors not present here. The 10th never mentioned the deliberate successful attempt by the government to prompt the husband to burst into tears in front of the jury by showing him the photo.
(3) There was sufficient evidence to establish assault on the family members who did not die. The jury could reasonably conclude the defendant "intended" the resulting "natural and probable consequences" of his actions when he drove drunk, swerved on the road causing others to honk at him and he continued to cross the highway lanes slowly, despite the passenger's warning to hurry up to avoid the oncoming van. Of course, in reality Mr. Pettigrew was too drunk to know what the heck he was doing.
(4) The upholding of the offense level and criminal history upward departures are the most "troubling" and may have the most horrible effects for our clients. (a) It was okay to depart 2 offense levels for the assault convictions on the grounds that the defendant was excessively reckless because a person can commit assault just by being reckless. The 10th ignored the fact that the typical assault defendant has a mens rea more culpable than excessively reckless. [Please note the defendant got a higher sentence, 126 months, for hitting the people who didn't die than for hitting the one who did die, 7 years for involuntary manslaughter]. (b) A one criminal history category increase was fine based on the serious nature of the defendant's prior offense---second degree murder---even though USSG ยง 4A1.3(a)(1) doesn't specifically authorize a criminal history departure on that basis. Three criminal history points [actually, the defendant got 6, but who's counting] for the prior murder under-represented the seriousness of that offense. So, a green light for a departure where any prior offense is serious. Ugh.
(2) The d.ct. did not abuse its discretion in allowing the government to parade before the jury several times a family photo of the attractive deceased woman when she was alive along with her handsome husband and adorable two daughters. The 10th relied on the admissibility of photos to identify deceased victims, [even though the photo was never admitted and there was no identity issue], the jury instruction not to rely on sympathy, and the fact that all four were victims. The 10th was "troubled" by the government's decision to display a photo of the deceased with the rest of her family, [as opposed to just a photo of her] while saying she didn't make it home that night. That "needlessly pushed the envelope" and might jeopardize a conviction if coupled with other errors not present here. The 10th never mentioned the deliberate successful attempt by the government to prompt the husband to burst into tears in front of the jury by showing him the photo.
(3) There was sufficient evidence to establish assault on the family members who did not die. The jury could reasonably conclude the defendant "intended" the resulting "natural and probable consequences" of his actions when he drove drunk, swerved on the road causing others to honk at him and he continued to cross the highway lanes slowly, despite the passenger's warning to hurry up to avoid the oncoming van. Of course, in reality Mr. Pettigrew was too drunk to know what the heck he was doing.
(4) The upholding of the offense level and criminal history upward departures are the most "troubling" and may have the most horrible effects for our clients. (a) It was okay to depart 2 offense levels for the assault convictions on the grounds that the defendant was excessively reckless because a person can commit assault just by being reckless. The 10th ignored the fact that the typical assault defendant has a mens rea more culpable than excessively reckless. [Please note the defendant got a higher sentence, 126 months, for hitting the people who didn't die than for hitting the one who did die, 7 years for involuntary manslaughter]. (b) A one criminal history category increase was fine based on the serious nature of the defendant's prior offense---second degree murder---even though USSG ยง 4A1.3(a)(1) doesn't specifically authorize a criminal history departure on that basis. Three criminal history points [actually, the defendant got 6, but who's counting] for the prior murder under-represented the seriousness of that offense. So, a green light for a departure where any prior offense is serious. Ugh.
posted by Anonymous at 1:30 PM
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