Failure of Defendant to Provide Assistance to His Victim Not a Basis For Departure, Overruling Court of Appeals

Tucker v. State, Minn.S.Ct., 6/29/2011.  I wrote about this case here when the court of appeals had it.  The court of appeals had affirmed the denial of Mr. Tucker’s post conviction petition, agreeing with the trial court that Mr. Tucker’s failure to render aid to his victim constituted particular cruelty.  The supreme court disagrees and reverses.

Recall that Mr. Tucker pled guilty to unintentional second degree murder; as part of the plea he agreed that his failure to have rendered assistance to the victim was “particular cruelty.”  The court of appeals had this to say about not providing assistance in prosecutions for non-intentional criminal acts:

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.

The supreme court begins by saying that it doesn’t matter in this case whether the trial court based the departure on particular cruelty, or on failure to render aid as a separate basis; the trial court abused its discretion in either event by imposing the departure.  The court then reminds everyone of what “particular cruelty” is:

‗[P]articular cruelty‘ involves the gratuitous infliction of pain and cruelty of a kind not usually associated with the commission of the offense in question.

Mr. Tucker’s actions fail this test.  Fleeing the scene and abandoning the victim is typical behavior for defendants convicted of second degree unintentional felony murder. 

Justice Page agreed with the majority’s analysis but he also thought that the departure was based on an uncharged offense and thus an invalid basis for departure.  See Minn.Stat. 609.662, subd. 2:

―[a] person who discharges a firearm and knows or has reason to know that the discharge has caused bodily harm to another person, shall: (1) immediately investigate the extent of the person‘s injuries; and (2) render immediate reasonable assistance to the injured person.

Justice G. Barry Anderson, with Gildea and Dietzen joining, concurred in the result but he also ripped the court of appeals for inventing this “reasonable person” rule.  Justice Anderson points out that both the Guidelines and case law have required departures to be based on what additional facts a defendant admits or what a fact finder determines.  There is no support for a departure based on what a defendant “should have known.”