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270 months, which amounts to an additional ten years over the presumptive 150-months sentence, is the appropriate sentence for a peace officer charged with second degree murder resulting from failing to treat a person with respect and the dignity owed to all human beings

MMB Advocates > Uncategorized  > 270 months, which amounts to an additional ten years over the presumptive 150-months sentence, is the appropriate sentence for a peace officer charged with second degree murder resulting from failing to treat a person with respect and the dignity owed to all human beings

270 months, which amounts to an additional ten years over the presumptive 150-months sentence, is the appropriate sentence for a peace officer charged with second degree murder resulting from failing to treat a person with respect and the dignity owed to all human beings


State of Minnesota v Derek Michael Chauvin

No. 27-CR-20-12646 of 2021

District Court of the State of Minnesota

PA Cahill, DCJ

April 20, 2021

Reported by Faith Wanjiku and Bonface Nyamweya

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Criminal law– arrest-refusal of arrest- use of reasonable force to arrest an offender who refused arrest- unreasonable force in holding a handcuffed offender- where the victim who had used a counterfeit $20 bill at Cup Foods in Minneapolis refused arrest claiming he was claustrophobic, anxious and could not breathe- where the victim continued to resist arrest and the defendant placed him in a maximal restraint technique- where two of the defendant’s fellow officers held the victim’s legs and the defendant knelt on the victim’s neck and back- where the defendant continued kneeling on the victim’s neck for more than nine minutes and forty seconds despite the victim’s pleas that he could not breathe-whether the defendant’s kneeling on the victim’s neck for more than nine minutes and forty seconds despite the victim’s pleas that he could not breathe amounted to cruel treatment and abuse of his position of authority by using unreasonable force to hold the handcuffed victim in a prone position leading to positional asphyxia.

Criminal law-offences-murder- second class murder- ingredients for second class murder- where the defendant knelt on the victim’s neck for more than nine minutes and forty seconds despite the victim’s pleas that he could not breathe, thus  using unreasonable force to hold the handcuffed victim in a prone position leading to positional asphyxia- whether the defendant’s act of kneeling on the victim’s neck for more than nine minutes and forty seconds, inhibiting his ability to breathe, amounted to the victim’s murder- what was the defendant’s degree of murder-Minnesota Statutes § 609.175, subdivisions 1 and 2.

Statutes-interpretation of statutory provisions- words and phrases-persons and offenders- where pursuant to the Minnesota Statute § 244.10 subdivision 5a(a) (10), it was a ground for departure where the offender committed the crime as part of a group of three or more persons who all actively participated in the crime- where the Sentencing Guidelines were similar to the provisions of the Minnesota Statute § 244.10 subdivision 5a(a) (10) but narrower by stating that the offender committed the crime as part of a group of three or more offenders who all actively participated in the crime- where inconsistency was created by the Sentencing Guidelines 2012 amendments that replaced the word persons with offenders- whether offenders and persons were synonyms- Sentencing Guidelines 2012 amendments; Minnesota Statute § 244.10 subdivision 5a(a) (10); Minnesota Sentencing Guidelines.

Criminal law-sentencing- aggravated sentencing- factors for aggravated sentencing- whether any of the four aggravated sentencing factors: (a)that the defendant abused a position of trust and authority; (b) that the defendant treated the victim with particular cruelty; (c) that children were present during the commission of the offense; and (d) that the defendant committed the crime as a group with the active participation of three other individuals, demonstrated that the defendant’s conduct in connection with the offense for which he had been convicted rendered his conduct significantly more serious than that typically involved in the commission of such an offense- whether the presence of any of the four aggravated sentencing factors supplied a substantial and compelling reason for imposing an aggravated sentence of more than the 180-months top-of-the-guidelines range- Minnesota Statutes § 609.175, subdivisions 1 and 2; Minnesota Sentencing Guidelines, Murder Second Degree, subdivision 2(1), sentenced 2010-2019.

Brief facts:

On May 25, 2020, Floyd (the victim) used a counterfeit $20 bill at Cup Foods in Minneapolis. Cup Foods reported the victim to the Minneapolis Police Department including that was intoxicated. The Minneapolis Police Department Officers: Alexander Kueng and Thomas Lane arrived and confronted the victim behind a Mercedes steering wheel. The victim attempted to hide fentanyl tablets by swallowing them. After the victim refused to comply with officer directions, Lane drew his firearm and ordered the victim to leave the vehicle for which he refused. Lane pulled the victim from the vehicle and handcuffed him. The officers directed the victim to the sidewalk. Kueng told the victim he was very erratic and asked if the victim ingested drugs. The victim, starting to foam from his mouth, stated he had been hooping. The officers arrested the victim and directed the victim to their police SUV. The victim resisted claiming he was claustrophobic, anxious and could not breathe.  Officers Tou Thao and the defendant arrived to assist. Kueng struggled to get the victim into the police SUV. The defendant tried to get the victim to sit up in the vehicle. The victim continued to state he could not breathe. Lane and Kueng then pulled the victim out of the police SUV and the victim fell to the street.

Because the victim continued to resist, the defendant placed the victim in a maximal restraint technique. Lane laid the victim on his stomach and the victim continued to complain he could not breathe. While Kueng and Lane held the victim’s legs, the defendant knelt on the victim’s neck and back. A crowd gathered and began yelling at the officers and the victim continued complaining he could not breathe. As a result of the victim’s complaints, the officers called for paramedics as a Code 3 emergency. Because of the threatening crowd, the paramedics performed a load and go whereby they loaded the victim in the ambulance and drove three blocks away before providing treatment to the victim. The ambulance then took the victim to the Hennepin County Medical Center (HCMC) where the victim died.

Issues

  1.  Whether the defendant’s kneeling on the victim’s neck for more than nine minutes and forty seconds despite the victim’s pleas that he could not breathe amounted to cruel treatment and abused his position of authority by using unreasonable force to hold a handcuffed the victim in a prone position leading to positional asphyxia. `
  2.  Whether the defendant’s act of kneeling on the victim’s neck for more than nine minutes and forty seconds, inhibiting his ability to breathe, amounted to the victim’s murder, and what was the defendant’s degree of murder?
  3.  Whether offenders and persons were synonyms in accordance with Minnesota Statute § 244.10 subdivision 5a(a) (10).
  4.  Whether any of the four aggravated sentencing factors:
    1. That the defendant abused a position of trust and authority;
    2. that the defendant treated the victim with particular cruelty;
    3.  that children were present during the commission of the offense; and
    4. that the defendant committed the crime as a group with the active participation of three other individuals, demonstrated that the defendant’s conduct in connection with the offense for which he had been convicted rendered his conduct significantly more serious than that typically involved in the commission of such an offense.
  5.  Whether the presence of any of the four aggravated sentencing factors supplied a substantial and compelling reason for imposing an aggravated sentence of more than the 180-months top-of-the-guidelines range.

Relevant provisions of law

Minnesota Statutes § 609.175

Subdivision 1- Intentional murder; drive-by shootings

Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or

(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, paragraph (a), clause (3).

Subdivision 2- Unintentional murders.

Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or

(2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order. As used in this clause, “order for protection” includes an order for protection issued under chapter 518B; a harassment restraining order issued undersection 609.748; a court order setting conditions of pretrial release or conditions of a criminal sentence or juvenile court disposition; a restraining order issued in a marriage dissolution action; and any order issued by a court of another state or of the United States that is similar to any of these orders.

Held:

  1. The defendant abused his position of authority by using unreasonable force to hold a handcuffed the victim in a prone position on the street—a position that the defendant knew from his training and experience carried with it a danger of positional asphyxia—for more than nine minutes and forty seconds, an inordinate amount of time.
  2. The defendant’s placement of his knee on the back of the victim’s neck was an egregious abuse of the authority to subdue and restrain because the prolonged use of that maneuver was employed after the victim had already been handcuffed and continued for more than four and a half minutes after the victim had ceased talking and had become unresponsive.
  3. The defendant abused his position of trust and authority by not rendering aid, by declining two suggestions from one of his fellow officers to place the victim on his side, and by preventing bystanders, including an off-duty Minneapolis fire fighter, from assisting.
  4. That failure to render aid became particularly abusive after the victim had passed out, and was still being restrained in the prone position, with the defendant continuing to kneel on the back of the victim’s neck with one knee and on his back with another knee, for more than two and a half minutes after one of his fellow officers announced that he was unable to detect a pulse.
  5. It was particularly cruel to kill the victim slowly by inhibiting his ability to breathe when the victim had already made it clear he was having trouble breathing. The prolonged use of the prone position was particularly egregious because the victim made it clear that he was unable to breathe and expressed the view that he was dying as a result of the officers’ restraint. The defendant manifested his indifference to the victim’s pleas for his life and his medical distress by, among other things, not rendering aid; by declining two suggestions from one of his fellow officers to place the victim on his side; by preventing bystanders, including an off-duty Minneapolis fire fighter, from assisting; by failing to render aid even after the victim had passed out; and by continuing to kneel on the back of the victim’s neck for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse.
  6. The slow death of the victim occurring over approximately six minutes of his positional asphyxia was particularly cruel in that the victim was begging for his life and obviously terrified by the knowledge that he was likely to die but during which the defendant objectively remained indifferent to the victim’s pleas. Restraining the victim in the prone position against the hard street surface by kneeling on the back of the victim’s neck with his other knee in the victim’s back, all the while holding his handcuffed arms in the fashion the defendant did for more than nine minutes, was by itself a particularly cruel act. The prolonged nature of the asphyxiation as manifested by the extensive video evidence presented during the trial was also by itself particularly cruel.
  7. The Minnesota Sentencing Guidelines were promulgated to establish rational and consistent sentencing standards that promoted public safety, reduced sentencing disparity, and ensured that the sanctions imposed were proportional to the severity of the offense and the offender’s criminal history. The Minnesota Sentencing Guidelines promoted uniformity, proportionality, and predictability in sentencing. The presumptive guidelines ranges were deemed appropriate for the felonies covered by them.
  8. In most cases, the maximum sentence a district court could impose was the top of the presumptive sentencing range because the sentencing guidelines mandated that district courts pronounced a sentence within the range on the sentencing guidelines grid. However, the Sentencing Guidelines recognized there were cases in which the guidelines sentence could not be appropriate and therefore allowed district courts to depart from the presumptive sentence, although departing courts had to articulate substantial and compelling circumstances justifying the departure. Substantial and compelling circumstances were those demonstrating that the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.
  9. When aggravating factors were present, the judge could depart from the presumptive disposition or duration provided in the Guidelines and stay or impose a sentence that was deemed to be more appropriate than the presumptive sentence. For a defendant with zero criminal history points, the guidelines presumptive range for unintentional second-degree murder — the most serious charge of which the defendant was found guilty by the jury and on which he was being convicted and sentenced by the court — was 128 to 180 months, with the presumptive sentence being 150 months. Consideration of a sentence outside the presumptive guidelines range involved a two-stage process:
    1.  Either a jury or the district court had to make a factual finding that there were one or more aggravating factors present in the commission of the crime apart from the prima facie elements of the charged crime.
    2. The district court was required to explain why the presence of any such aggravating factors created a substantial and compelling reason to impose a sentence outside the presumptive guidelines range.
  10. As to the first stage, at the conclusion of the trial and after return of the jury’s verdicts, the defendant agreed to submit the issue of the existence of aggravated sentencing factors to the court for decision. The state had urged the court to find the existence of five aggravated sentencing factors in light of the evidence presented during the three-week trial between March 29 and April 15, 2021. In the court’s verdict and findings of fact regarding aggravated sentencing factors, the court found that the evidence at trial proved beyond a reasonable doubt the following four aggravated sentencing factors:
    1.  That the defendant abused a position of trust and authority;
    2.  that the defendant treated the victim with particular cruelty;
    3.  that children were present during the commission of the offense; and
    4.  that the defendant committed the crime as a group with the active participation of three other individuals, former Minneapolis Police Officers Thou Thao, Thomas Lane, and J. Alexander Kueng, who all actively participated with the defendant in the crime in various ways.
  11. The defendant sought a probationary sentence (a dispositional departure from the presumptive prison sentence under the sentencing guidelines) or, alternatively, a downward durational departure from the presumptive guidelines range for a prison sentence. The court concluded that neither was appropriate in that case. A mitigated dispositional departure (i.e. probation) was not appropriate because there had been no persuasive showing that the defendant was particularly amenable to probation, and because a probationary sentence would be disproportionate and understate the severity of the defendant’s offense. Reversing the trial court’s dispositional departure to probation in first-degree criminal sexual conduct case as an abuse of discretion, rejecting arguments similar to those made by the defendant relying on age, lack of criminal history, and the defendant’s respectful attitude while in court as being far outweighed by other relevant considerations regarding the severity of the offense.
  12. A durational departure had to be based on factors that reflected the seriousness of the offense, not the characteristics of the offender. A downward durational departure was justified only if the defendant’s conduct was significantly less serious than that typically involved in the commission of the offense. A downward durational departure below the bottom of the box 128-months sentence was not appropriate in that case given the court’s finding of the presence of aggravated sentencing factors. The defendant’s continuing insistence that he believed he was simply performing his lawful duty in assisting other officers in the arrest of the victim and was acting in good faith reliance on his own experience as a police officer and the training he had received, was rejected by every supervisory and training officer of the Minneapolis Police Department who testified at trial as well as by the jury.
  13. The Court of Appeal had held that the aggravating factor supplied a substantial and compelling reason for an upward departure where the defendant and victim were in a relationship fraught with power imbalances that could make it difficult for a victim to protect himself and the defendant abused his or her position of trust or authority in committing the crime. The defendant was employed as a licensed peace officer by the City of Minneapolis. As such, he held a position of trust and authority with respect to the community and its members. The trust placed in the defendant included trust that anyone arrested would be treated with respect and only with reasonable force and that medical need would be addressed in a timely fashion.
  14. By virtue of his position as a police officer, the defendant was in a position to dominate and control the victim. That position of control not only allowed the defendant to manipulate the circumstances and commit the crime, but also made it difficult for the victim to protect himself from the defendant’s and his co-defendant officers’ conduct.
  15. The defendant had argued that the aggravating factor did not apply in the instant case because it typically applied only in cases involving criminal sexual conduct, domestic abuse, or both, where the victim had a pre-existing relationship with the offender. But the Court of Appeal had made it clear that the aggravating factor was not so limited. In State of Minnesota v Chad Allen Rourke (Rourke), the defendant made the same basic argument that generally, the cases that had used the defendant’s position of power as an aggravating factor involved a particular type of pre-existing relationship between a victim and an adult authority figure. The Court of Appeal rejected that argument, noting that it had found no cases that limited the application of that factor in that manner. The Court of Appeal then clarified that the key question was whether the relationship between the victim and the defendant was one among the many relationships fraught with power imbalances that could make it difficult for a victim to protect himself, not the existence of a pre-existing relationship or a particular type of offense.
  16. The defendant also claimed that there was no case law in Minnesota, precedential or otherwise, in which a peace officer’s position had triggered the application of that aggravating factor. While perhaps true, that observation was unsurprising precisely because successful prosecutions of police officers in Minnesota had been so rare; research had not disclosed any prior Minnesota cases in which a police officer was convicted of murder and the state sought an upward sentencing departure. It was also legally irrelevant. The Court of Appeal made clear in Rourke that it did not matter if the particular aggravating factor had not routinely been applied to cases involving a particular type of defendant or victim. So long as the relationship between an officer and a victim qualified as a relationship fraught with power imbalances that could make it difficult for a victim to protect himself or herself, Rourke made it clear that that aggravating factor could apply. The defendant did not suggest otherwise, and did not point to any case that foreclosed the application of that factor.
  17. The defendant’s particularly cruel treatment of the victim was also a separate substantial and compelling basis for an upward sentencing departure. An aggravated sentence was appropriate if the victim was treated with particular cruelty for which the offender should be held responsible. Particular cruelty involved the gratuitous infliction of pain and cruelty of a kind not usually associated with the commission of the offense in question. The cruelty of the defendant’s conduct was of a kind not usually associated with the commission of the offenses in question. The defendant’s gratuitous infliction of pain, and psychological cruelty, justified an upward sentencing departure.
  18. The court had already concluded that those factual findings provided a substantial and compelling basis for an aggravated sentencing departure, because they demonstrated that the defendant’s conduct was significantly more serious than that typically involved in the commission of the crimes in question. The defendant’s actions inflicted gratuitous pain, by inhibiting the victim’s ability to breathe when the victim had already made it clear he was having trouble breathing and after he expressed the view that he was dying as a result of the officers’ restraint. And the defendant’s actions caused the victim significant psychological distress, because the defendant objectively remained indifferent to the victim’s pleas even as the victim was begging for his life and obviously terrified by the knowledge that he was likely to die.
  19. The defendant’s prolonged restraint of the victim was also much longer and more painful than the typical scenario in a second-degree or third-degree murder or second-degree manslaughter case. The prolonged nature of the asphyxiation made the offense different in kind than, for example, a near-instantaneous death by gunshot, which was one typical scenario for that type of offense. The conduct the court had deemed particularly cruel also occurred over a longer period and was substantially more painful than a typical third-degree assault, the predicate felony offense for the defendant’s second-degree murder conviction.
  20. The defendant’s conduct went beyond just inflicting substantial bodily harm. It killed the victim slowly—over the course of almost ten minutes—by inhibiting his ability to breathe when the victim had already made it clear he was having trouble breathing. Indeed, the defendant’s continuation of the assault after the victim was no longer conscious and no longer had a pulse—the defendant continued to kneel on the back of the victim’s neck for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse—plainly set the defendant’s conduct apart from the typical case involving a felony assault that resulted in substantial bodily harm and death to the victim.
  21. Against the overwhelming weight of the evidence, the defendant argued that his conduct was not particularly cruel because the assault of the victim occurred in the course of a very short time, and because his conduct involved no threats or taunting. But the court had already concluded that the assault occurred over an inordinate amount of time, that the video evidence at trial coupled with the trial testimony of medical experts called by the state demonstrated that the defendant’s and his fellow officers’ actions killed the victim slowly, and that the prolonged nature of the asphyxiation was by itself particularly cruel.
  22. Although the defendant identified no reason why particular cruelty necessarily required threats or taunting, particularly where the defendant objectively remained indifferent to the fact that the victim was begging for life and was obviously terrified by the knowledge that he was likely to die, the trial evidence demonstrated that the defendant did taunt the victim by responding dismissively to his pleas. The video evidence presented at trial captured the defendant dismissively responding: uh huh at least a couple times in response to the victim’s pleas, and also commenting, in response to the victim’s pleas that he could not breathe, that, it took a heck of a lot of oxygen to say things.
  23. The defendant also noted that the officers had called for an ambulance and upgraded the urgency of the request during the course of their restraint of the victim. While true, that argument ignored the evidence that the defendant disregarded two inquiries from Mr. Lane about rolling the victim onto his side into the recovery position roughly halfway through the restraint period after he had concluded that the victim had passed out, ignored the information from Mr. Kueng that he was unable to detect a pulse at roughly 8:26 p.m., and ignored the repeated pleas from several of the onlookers, including Donald Williams and Genevieve Hansen, among others, over several minutes that the victim was no longer breathing and had become nonresponsive. Rather than ending the restraint when it was obvious that the victim not only was no longer offering any resistance but was in medical distress and starting CPR, the defendant instead chose to continue to restrain the victim as he had since the victim was initially restrained prone on Chicago Avenue at 8:19:15 p.m. for several additional minutes until the EMS crew rolled the victim onto a stretcher at 8:28:42 p.m.
  24. Although the court found that children were present during the commission of the offense, the court concluded that the presence of that factor did not, under all the facts and circumstances of that case, present a substantial and compelling reason for an upward durational departure. The state presented testimony at trial from three young women who were 17 at the time of the incident on May 25, 2020 (Darnella Frazier, Alyssa Funari, and Kaylynn Gilbert) and a girl who was 9 at the time (JR). Although all four were present on the sidewalk adjoining Chicago Avenue for portions of the nine minute and a half minute interlude in which the defendant, Lane, and Kueng restrained the victim prone on Chicago Avenue while Mr. Thao maintained a watchful eye on the on-looking bystanders, none was a victim in the sense of being physically injured or threatened with injury so long as they remained on the sidewalk and did not physically engage or interfere with the defendant and his co-defendant officers. None of them had been present when the officers were struggling with the victim to get him into the squad car and only came upon the scene after he had already been subdued and was being restrained prone on the street.
  25. The defendant was correct that those young women were free to leave the scene whenever they wished, were never coerced or forced by him or any of the other officers to remain a captive presence at the scene, and did not know any of the officers or the victim, and that that weighed against using that factor as the basis for an aggravated departure.
  26. Although the state contended that all four of those young women were traumatized by witnessing that incident, the evidence at trial did not present any objective indicia of trauma. To the contrary, Ms. Frazier, who recorded several minutes of the victim’s restraint on her cellphone and subsequently posted that video to a social network site, Ms. Funari, who also recorded several minutes of the restraint using Ms. Gilbert’s cellphone, and JR were observed smiling and occasionally even laughing over the course of the several minutes they observed the defendant, Kueng, and Lane restraining the victim prone on Chicago Avenue. While the presence of children was an aggravated sentencing factor and a permissible ground for departure for purposes of the first stage analysis, under the second stage of the analysis, the court did not find that specific facts in that case were so substantial and compelling to warrant an upward durational departure on that ground.
  27. Pursuant to the Minnesota Statute § 244.10 subdivision 5a(a) (10), it was a ground for departure where the offender committed the crime as part of a group of three or more persons who all actively participated in the crime. The Sentencing Guidelines were similar but narrower by stating that the offender committed the crime as part of a group of three or more offenders who all actively participated in the crime. That inconsistency was created by the Sentencing Guidelines 2012 amendments, replacing the word persons with offenders. Although the statute had remained the same, it was also true that amendments to the Guidelines were effective unless the Legislature by law provided otherwise.
  28. The state sought to explain the conflict between the statute and Sentencing Guidelines by stating that the Sentencing Guidelines change was merely stylistic. That might be true if the words persons and offenders were synonyms but they were not. The word offenders was clearly a subset of persons and both terms should be given their ordinary meanings. Although the court found the three other officers were actively involved in the incident, the court made no finding that Officers Lane, Kueng, and Thao had the requisite knowledge and intent to be considered offenders. That was not to say that there had to be a conviction before three other persons could be offenders, only that it was not proven during the trial that Officers Lane, Kueng, and Thao could be labeled as such.
  29. When a sentencing trial court had found that one or more aggravated factors were present, the court could, in the exercise of its discretion if substantial and compelling circumstances warranted, impose a sentence that was up to double the presumptive sentence length. The existence of a single aggravating factor was sufficient to justify the imposition of a sentence double the upper limit of the presumptive range. The state was asking the court to sentence the defendant to 360 months, which represented a double upward durational departure from the 180 months at the top of the box of the presumptive guidelines range.
  30. Determining the appropriate length of any felony sentence was not a mathematical calculation. Nor should it be a reflexive doubling of the presumptive sentence once aggravating factors were proven and found by the court to be substantial and compelling. Each sentence should be an application of the law to the facts of the individual case without regard to sympathy, bias, passion, or public opinion. While every case was different and had to be considered carefully and individually, examination of sentences imposed in similar cases was also relevant if the court was to effectuate the Minnesota Sentencing Guidelines policy of reducing sentencing disparity.
  31. Attached to the memorandum was the Minnesota Sentencing Guidelines Commission data from the last ten years analyzing aggravated durational departures imposed throughout Minnesota for Murder in the Second Degree (Unintentional Killing during a Felony). The data showed that of all the sentences imposed, 67% were within the presumptive guidelines range. For a defendant with a criminal history score of zero, which was the defendant’s score, the guidelines sentence was, and had been since 2005, 150 months with a presumptive range of 128 months to 180 months. Any sentence within that range was not a departure.
  32. For all cases where sentences were imposed, 20% of the sentences were aggravated durational departures and 13% were mitigated durational departures (i.e. departures imposingless prison time than the sentencing guidelines range). The most common aggravated sentence had been 240 months, followed by 300 months. The average aggravated departure imposed on defendants with a zero criminal history score was 278.2 months.
  33. There were only two cases where the defendant’s criminal history score was zero, and both abuse of a position of trust or authority and particular cruelty were cited as aggravating factors. Unlike the instant case, however, those cases involved particularly vulnerable victims, specifically, three-year-old children. The defendant in 27-CR-18-18213 was originally charged with murder in the first degree and pleaded guilty to murder in the second degree (unintentional killing during a felony) for an agreed-upon range of 300 to 420 months and was sentenced to 384 months. The defendant in 27-CR-15-25934 pleaded guilty to the charge with an agreed-upon sentence of 300 months. In both cases, the cruelty inflicted on the children was horrific, even more severe than the cruelty inflicted on the victim.
  34. The defendant did not plead guilty, but he could not be punished for exercising his constitutional right to a jury trial. Nevertheless, he had to be held accountable for the death of the victim and for doing so in a manner that was particularly cruel and an abuse of his authority. In consideration of all the facts presented at trial, the court’s experience, and the collective experience of the entire court over the last ten years, the court found the appropriate prison sentence for the defendant was 270 months.Part of the mission of the Minneapolis Police Department was to give citizens voice and respect. The defendant, rather than pursuing the Minneapolis Police Department mission, treated the victim without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the court’s view, 270 months, which amounted to an additional ten years over the presumptive 150-months sentence, was the appropriate sentence.

Relevance to the Kenyan jurisprudence

Article 26 of the Constitution of Kenya, 2010, talks of the right to life as inherent in every person and prohibits intentional deprivation of life except to the extent authorised by the Constitution or other written law. Article 47 of the Constitution of Kenya, 2010, presents the right to fair administrative action in making it clear that:

1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

3. Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall-

a. provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

b. promote efficient administration. Moreover, article 48 evinces the right to access to justice while article 49 enumerates the rights of arrested persons.

The National Police Service Act, 2011, in the sixth schedule part A, explains about reasonable use of force, conditions as to the use of force, and what happens to the police officer’s use of force resulting to death or serious injury. In Mutua v Republic [2020] eKLR, the Court of Appeal upheld the death sentence of a senior police officer for the offence of murder caused by impunity and abuse of power.

The Penal Code of 1986 (Rev 2018), in section 202 talks about manslaughter; section 203 explains on murder; section 204 expounds punishment of murder and section 205 presents the punishment of manslaughter. In Republic v Alice Nyabonyi Ondiba [2021] eKLR, the defendant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. After a plea bargain, the charge was reduced to one of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In Titus Ngamau Musila Katitu v Republic [2020] eKLR, while dismissing the appeal, the Court of Appeal noted that:

 Considering that the deceased was not armed, that he was in fact subdued and on the ground and bearing in mind that he had even raised his hands in defenseless submission, we have no doubt that by shooting the deceased on the head at point blank position, the appellant acted with malice aforethought. His actions violated guidelines contained in the Sixth Schedule of the National Police Service Act, which enjoin police officers in effecting arrest to always attempt to use non-violent means first and only resort to force when non-violent means are ineffective. It directs that if force is used, it must be proportional to the objective to be achieved, to the seriousness of the offence committed, and to the resistance by the person against whom force is used.

The case is therefore jurisprudential in Kenya since it mostly expands her laws regarding unreasonable use of force during the arrest of an offender and the factors for aggravation of a sentence in a second class murder case.





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