State v. Tucker, Minn.Ct.App., 01/19/2010. Mr. Tucker and A.G. chased each other around north Minneapolis for a while. When Mr. Tucker wearied of that game he fired a gun shot through A.G.’s windshield in the general direction of where A.G. was sitting. Mr. Tucker left without either ascertaining the result of his shot or reporting the gun shot to anyone.
Instead, he called 911 to report that his gun had been stolen. A.G. died from the gun shot and the state charged Mr. Tucker with second degree intentional murder. Mr. Tucker cut a deal under which he agreed to plead guilty to second degree unintentional murder in exchange for an upward durational departure, based on “particular cruelty” - failure to render assistance and invasion of her zone of privacy.
After a while, from his prison cell, Mr. Tucker decided he’d been flummoxed on the departure so he filed a post conviction petition. The post conviction court agreed that the zone of privacy was a no go, but that the failure to render assistance stood the test of time.
The appellate court comes up with a rather vague, but extraordinarily expansive test, applicable at least to crimes that do not involve the intention to cause injury or death; in those crimes the cruelty is inherent in the intention act. For non-intentional acts, the test is:
When an offender’s conduct is sufficiently egregious that a reasonable person in the same circumstances would suspect that the conduct very likely caused injury to the victim, it is particularly cruel for the offender to fail to take some meaningful step, even anonymously, toward obtaining at least an investigation so as to be able to give medical aid to the victim if an examination reveals that aid is necessary.
It may be time to brush up on your Blakely materials.
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