U.S. v. Pettigrew

• Decision Date: 12 October 2006
• Docket Number: No. 05-2187.,05-2187.
• Citation: 468 F.3d 626
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David PETTIGREW, Defendant-Appellant.

468 F.3d 626

UNITED STATES of America, Plaintiff-Appellee, v. David PETTIGREW, Defendant-Appellant.

No. 05-2187.

United States Court of Appeals, Tenth Circuit.

October 12, 2006.

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Michael A. Keefe, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.

Before TACHA, Chief Circuit Judge, SEYMOUR, and BRISCOE, Circuit Judges.

TACHA, Chief Circuit Judge.

Following a jury trial, Defendant-Appellant David Pettigrew was convicted of one count of involuntary manslaughter in violation of 18 U.S.C. §§ 1153 and 1112, two counts of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and one count of assault by wounding in violation of 18 U.S.C. §§ 1153 and 113(a)(4). He was sentenced to 126 months' imprisonment. He now appeals both his conviction and sentence. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

In the morning hours of April 18, 2004, Mr. Pettigrew drove his truck to a friend's house and picked him up to go for a ride. As they drove around the area making various stops, the pair consumed twenty-four beers. Mr. Pettigrew then dropped his friend off at home at 4:30 in the afternoon. Although it is unclear what Mr. Pettigrew did after he dropped off this friend, at approximately 10:00 p.m. Mr. Pettigrew drove to Odell Yazzie's trailer, where Mr. Yazzie lived with his girlfriend and parents. Mr. Pettigrew asked Mr. Yazzie to go with him to buy more alcohol. Mr. Yazzie agreed to go and testified that he got into the passenger side of the truck even after noticing that Mr. Pettigrew was intoxicated. Although Mr. Pettigrew maintains that Mr. Yazzie drove Mr. Pettigrew's truck, and that Mr. Pettigrew was in the passenger's seat, the jury concluded that the evidence supported the Government's position that Mr. Pettigrew was in fact the driver.

The two men headed westbound on Highway 64, a four-lane highway with a posted speed limit of sixty miles per hour. Upon entering the highway, Mr. Pettigrew began swerving and other drivers blared their horns to warn him to "drive right." After traveling a few miles, Mr. Pettigrew abruptly turned left across the dirt median and attempted to drive across the eastbound traffic toward a residence on the South side of the highway. As Mr. Pettigrew crossed the eastbound lanes, Mr. Yazzie noticed a van headed toward the passenger side of the truck. Mr. Yazzie yelled at Mr. Pettigrew to "step on it" but Mr. Pettigrew continued to drive slowly across the lanes. The van swerved to the right in an effort to avoid striking the passenger side of the truck. Consequently, the truck hit the back end of the driver's side of the van, causing it to flip three to four times. The van was occupied by the four members of the Beasley family— Carrie, Jason, and the couple's two young daughters. Carrie died in the accident and the other three Beasleys sustained moderate to serious injuries.

After the collision, Mr. Pettigrew's truck spun out and came to a stop for a few moments. Shortly thereafter, Mr. Pettigrew righted the vehicle and headed east along Highway 64. Mr. Yazzie tried to convince Mr. Pettigrew to stop the truck, but Mr. Pettigrew refused. Mr. Yazzie then grabbed the steering wheel, shifted the car into neutral, pushed on the brakes, and jumped out the passenger side window because the door would not open. Mr. Yazzie started walking back home and Mr. Pettigrew took off again.

Law enforcement officers were dispatched to the scene of the accident. They found Mr. Pettigrew's abandoned truck in a field next to the highway a mile and a half from the crash site. Deputy Anthony Ashcroft, an officer with the San Juan County Sheriff's Department, noticed that the driver's side door was open and saw a set of footprints leading away from that door. He followed the footprints and eventually found Mr. Pettigrew crouching under a bush.

Because they were in Indian country, Deputy Ashcroft did not have jurisdiction to formally arrest Mr. Pettigrew, so the deputy detained him by placing him in handcuffs. When he did so he asked whether Mr. Pettigrew knew what he had done, to which Mr. Pettigrew responded, "Yeah, I fucked up my ride, now I got to get a new one." Deputy Ashcroft then told Mr. Pettigrew that he might have killed someone in the accident. Mr. Pettigrew responded by saying, "I still got to get a new ride" (hereinafter "first statement"). Deputy Ashcroft then escorted Mr. Pettigrew, who had a difficult time walking, back to the field where Mr. Pettigrew left his truck, and handed him over to Navajo Police Officer Ron Williams.

Officer Williams transported Mr. Pettigrew to the Shiprock detention center, where Mr. Pettigrew voluntarily submitted to a breath-alcohol test. During this time, an unidentified officer asked Mr. Pettigrew whether he had been drinking that night, to which Mr. Pettigrew responded, "yes, I was drinking" (hereinafter "second statement"). Then, while taking the blood-alcohol test, Mr. Pettigrew asked Officer Williams why he was arrested and what the charges against him were. Officer Williams informed Mr. Pettigrew that he had been arrested for driving while intoxicated and that he might have been involved in an accident in which people were hurt. Mr. Pettigrew stated, "I saw it at the last minute. I hit it and took off" (hereinafter "third statement"). Mr. Pettigrew made all these statements prior to receiving Miranda warnings.¹

The following day, Navajo Tribal Criminal Investigator Sammy Ahkeah attempted to interview Mr. Pettigrew about his involvement in the accident. Investigator Ahkeah informed Mr. Pettigrew of the charges he was facing and explained to him his Miranda rights. Thereafter, Mr. Pettigrew refused to provide a statement and invoked his right to counsel.

Mr. Pettigrew filed a pretrial motion to suppress all his statements made prior to receiving Miranda warnings. He argued that the first two statements were custodial interrogations that must be suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argued that the third statement was either a custodial interrogation or, in the alternative, was fruit of the poisonous tree—the poisonous tree being the first two statements obtained in violation of Miranda— and therefore must also be suppressed. The District Court granted the motion as to the first statement since it was the product of a custodial interrogation. The court did not rule on the admissibility of the second statement based on the Government's assertion that it did not intend to use the admission at trial.² Finally, the court held that the third statement was admissible because Mr. Pettigrew failed to show either that the statement was made in response to "express questioning or its functional equivalent," Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), or that it was tainted by the original unlawful interrogation.

At trial, the Government sought to admit into evidence a photograph depicting all four members of the Beasley family, including Carrie Beasley while she was living. Mr. Pettigrew objected, arguing that it was not offered for any proper purpose and that it would be unduly prejudicial. The District Court stated that it would allow the photo to be admitted for the purpose of identification of the victims. Despite this ruling, the Government did not actually move the photo into evidence. Instead, the Government merely displayed the photo during its opening statement, used it to establish Ms. Beasley's identity through the testimony of Mr. Beasley, and displayed it again during its closing arguments. The jury convicted Mr. Pettigrew on all counts.

Subsequently, the probation office prepared a presentence report ("PSR"). It calculated the adjusted offense level for Mr. Pettigrew's involuntary manslaughter conviction as 22. See U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") § 2A1.4(a)(2)(B). The PSR also determined the adjusted offense level for each of the two assaults resulting in serious bodily injury as 21. See U.S.S.G. § 2A2.2. The assault by wounding conviction, which is a Class B misdemeanor, is not governed by the Guidelines. See U.S.S.G. § 1B1.9. Under the grouping rules in § 3D1.4, the total adjusted offense level for the three felonies was 25. The PSR calculated Mr. Pettigrew's criminal history category as III, based upon a prior conviction for second-degree murder and because he committed the instant offenses less than two years after his release from custody and while still on supervised release. See U.S.S.G. § 4A1.1(a), (d), (e). Accordingly, the PSR determined that the applicable guidelines range was 70-87 months' imprisonment.³ The PSR also noted possible bases existed for an upward departure: Mr. Pettigrew's excessively reckless behavior, see U.S.S.G. § 5K2.0, and Mr. Pettigrew's criminal history category substantially under-represents the seriousness of his criminal history and the likelihood that he will commit future crimes, see U.S.S.G. § 4A1.3(a)(1).

At the sentencing hearing, the District Court adopted the PSR's factual findings, including the adjusted offense level of 25 and criminal history category III. The court then departed upward two offense levels based on Mr. Pettigrew's excessive recklessness, and departed upward one criminal history category on the ground that Mr. Pettigrew's criminal history category substantially under-represents the seriousness of his criminal history. This resulted in a guidelines range of 100-125 months' imprisonment....