Anoka County District Court File No. 02-CR-11-3045
Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, St. Paul, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Benjamin, J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Chutich, Judge; and Harten, Judge. [*]
A defendant's concealment of his murdered victim's body may constitute the aggravating factor of particular cruelty, justifying an upward departure from a presumptive sentence.
On appeal from his conviction of second-degree unintentional felony murder, appellant Mo Savoy Hicks argues that the district court: (1) violated the Minnesota Code of Judicial Conduct and deprived him of his right to an impartial fact-finder; (2) erred by excluding the public from his trial; and (3) erred by imposing an upward durational departure based solely on concealment of the victim's body. Hicks makes two pro se arguments as well.
Because the district court did not violate the Minnesota Code of Judicial Conduct in making a factual determination or violate Hicks's right to a public trial, we affirm his conviction. Because the record supports the district court's determination that the crime was committed with particular cruelty, we also affirm Hicks's sentence.
On August 22, 2007, R.G. reported her sister, J.R., missing. Several police officers went to J.R.'s apartment in Columbia Heights to conduct a welfare check. The officers entered the apartment and discovered blood stains in the living room, hallway, and bedroom. The following day, officers returned to execute a search warrant for J.R.'s apartment. In the bedroom, the officers found what appeared to be blood on the rug, floor, mattress, and bedroom walls. J.R.'s bed had one purple sheet on it and no pillowcases. The officers also found three bloody shoe prints, later determined to be from a K-Swiss shoe, in the hallway. No evidence suggested that J.R.'s apartment had been broken into or burglarized.
The investigating officers determined that J.R. was last in touch with her daughter, T.F., on August 2, 2007. T.F. told the officers that J.R. was at J.R.'s apartment with appellant Mo Savoy Hicks. Officers conducted a non-custodial interview with Hicks at his residence. During the interview, Hicks denied any involvement with J.R.'s disappearance. When asked if he knew where J.R. might be, Hicks replied, "She's my— she was my friend. I—she is my friend." Hicks voluntarily surrendered keys for J.R.'s apartment and mailbox, claiming that J.R. gave him the keys in April of 2007 to get her mail while she was out of town. Hicks also surrendered a pair of K-Swiss shoes. Hicks voluntarily accompanied the officers to the police station to further discuss the case. There, he told officers that he spent the night of August 3 at J.R.'s apartment and J.R. was fine when he left the following morning.
Officers also interviewed J.R.'s ex-boyfriend, K.R. K.R. told the officers that he and J.R. ended their relationship in 2002 or 2003 but remained friends. Forensic officers swabbed K.R. for blood and other evidence but found no connection to J.R. K.R. denied knowing where J.R. was.
During the investigation, a citizen with the same last name as the victim, R.R., contacted the investigating officers. She explained that, at 11:08 a.m. on August 4, 2007, she received a phone call, but the caller did not leave a message. The citizen received a second call at 11:26, and the caller left a message stating, "If this is [J.R.]'s sister, I just caught up with her; you might want to check on her." The citizen did not know J.R. Officers traced the calls to a pay phone at a SuperAmerica gas station and to a pay phone outside a Walgreens, both in Brooklyn Center.
There was no video surveillance of the two pay phones, so officers reviewed surveillance video taken inside the SuperAmerica and Walgreens around the time the calls were placed. Video from both stores captured a man later identified as L.M. Officers interviewed L.M., who lived near the two stores, and concluded that he had no connection to J.R. or her disappearance.
On August 28, 2007, the Anoka County Medical Examiner, Dr. Janis Amatuzio, determined that J.R. could not have survived after she lost the volume of blood discovered on the mattress, floor, and walls. The following day, officers interviewed Hicks again. Hicks admitted that he had previously lied when he said that he spent the night of August 3 at J.R.'s apartment. Hicks told the officers that he was at the apartment, but he left the apartment to buy cocaine in Minneapolis and did not return until the following morning. He also said that J.R. did not give him her keys in April, but that he got them the morning of August 4. The officers released Hicks after the interview.
The investigating officers made no arrests in the case. In July 2008, a judge declared J.R. legally dead.
Almost three years passed before human remains were discovered buried in a park in Brooklyn Park. DNA analysis revealed that the remains were J.R.'s decomposed body. Authorities arrested Hicks and charged him with second-degree intentional murder and second-degree felony murder.
Hicks waived his right to a jury trial and represented himself at trial. His court trial took place over twelve days. The state called several investigators to testify, including Lieutenant Steven Johnson of the Anoka County Crime Lab. Johnson testified that the tread on the shoes that Hicks surrendered to officers matched the tread pattern of the bloody shoe prints found in J.R.'s hallway. In addition, human blood was discovered on both of Hicks's K-Swiss shoes. The state also called Hicks's mother, who testified that she saw Hicks place a "pinkish or purplish" fitted sheet into the outdoor trash can at the house that she shared with Hicks on either August 5 or August 12, 2007. P.E., Hicks's next-door neighbor, testified that she saw Hicks throw a lavender colored pillow case into her trash can around the same time period. P.E. stated that when Hicks saw her watching him, he moved the pillow case to his trash can.
The state also called K.R. and L.M., the two other men questioned during the investigation. K.R. testified that he last saw J.R. in June 2007. K.R. admitted that he was verbally and physically abusive to J.R. during their relationship, but denied any connection with her disappearance and murder. L.M. also denied any involvement in J.R.'s disappearance. The district court found their testimony credible and persuasive.
Dr. Owen Middleton, Assistant Hennepin County Medical Examiner, examined the skeletal remains and testified that the cause of death was blunt force cranial injury. He could not rule out a hammer as the object that caused the cranial fractures.
The state called two witnesses who were incarcerated with Hicks at the Anoka County Jail. One witness, D.F., testified that Hicks told him he "hit [J.R.] in the head with the steel, " but he did not explain what he meant by "the steel." Another witness, D.T., testified that Hicks told him he hit J.R. on the head with a hammer and then buried her near a place where Hicks had previously lived. D.F.'s and D.T.'s testimony included details that were not available in the complaint or media reports.
The district court convicted Hicks of second-degree felony murder, but acquitted him of second-degree intentional murder. The state sought a sentencing departure, and on February 17, 2012, the district court held a Blakely hearing. The district court found that the crime was committed in a particularly cruel way because Hicks concealed the body. It then sentenced Hicks to 420 months, a double durational departure from the 210-month presumptive sentence. Hicks now appeals his conviction and sentence.
I. Did the district court violate the Minnesota Code of Judicial Conduct? II. Did the district court ...