Court of Appeals.
The district court may use the defendant's concealment of the victim's body as an aggravating factor to justify an upward durational departure from the presumptive sentence for homicide offenses.
For Respondent: Lori Swanson, Attorney General, Saint Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, Minnesota.
For Appellant: Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, Saint Paul, Minnesota.
Dietzen, J. Dissenting, Wright and Page, JJ.
This case presents the question of whether the district court may use the defendant's concealment of the victim's body as an aggravating factor to justify an upward durational departure from the presumptive sentence for a homicide offense.
Appellant Mo. Savoy Hicks was convicted of second-degree unintentional murder for the death of Judy Rush. After Hicks waived his right to a sentencing jury, the district court imposed a 420-month sentence, which is an upward durational departure of 168 months. The court concluded that disposal and concealment of the victim's body constituted particular cruelty. The court of appeals affirmed Hicks's sentence. Because concealment of a murder victim's body is an aggravating factor on which a district court may base an upward departure, we affirm the court of appeals.
On August 22, 2007, Judy Rush's sister reported that Rush was missing. Police went to Rush's apartment to check on her. They entered the apartment and found blood stains in the living room, hallway, and bedroom. The next day, the police executed a search warrant at the apartment. The officers saw what appeared to be blood on the rug, floor, mattress, and bedroom walls. On August 28, 2007, the Anoka County Medical Examiner determined that Rush could not have survived after she lost the volume of blood discovered in her apartment. In late July 2008, the court declared Rush legally dead.
At the time of Rush's disappearance, Rush and Hicks were friends. The police spoke to Hicks about Rush on several occasions. He gave conflicting stories about being with Rush on the day police believed she was murdered.
Nearly 3 years after Rush's disappearance, human remains were discovered buried in a shallow grave in a park in Brooklyn Park. DNA analysis identified the remains as Rush. After examining her skeletal remains, a medical examiner determined that Rush had died as the result of a blunt force cranial injury.
Respondent State of Minnesota charged Hicks with second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2014), and second-degree unintentional murder, Minn. Stat. § 609.19, subd. 2(1) (2014). Hicks waived his right to a jury trial. He also waived his right to counsel and represented himself at trial.
During the court trial, the State presented physical evidence connecting Hicks to Rush's murder. In addition, two people with whom Hicks had been incarcerated at the Anoka County Jail testified that Hicks told them that he had hit Rush on the head with a " steel" or a hammer and then buried her near a place where Hicks used to live. The district court found Hicks guilty of second-degree unintentional murder but acquitted him of second-degree intentional murder.
Prior to trial, the State gave written notice that it intended to seek an upward durational sentencing departure. Its stated reasons for the departure included that the victim was treated with particular cruelty and that the victim's body was concealed. At the sentencing hearing, the State indicated that these two reasons for a departure " dovetail together" and " really go kind of hand and foot" because some appellate decisions mention concealment of a body as an aggravating factor while others " have stated that concealment is a form of particular cruelty." After consulting with standby counsel about his right to a sentencing jury, Hicks signed a written waiver of his right to a sentencing jury and orally waived that right at the sentencing hearing.
Rush's daughter testified at the sentencing hearing. She described the lengthy search for her mother and the grief her family experienced. She testified that it was especially difficult not having her mother's body because she felt no closure, often holding on to hope that her mother might be alive. She explained
that she went to several parks with a shovel and dug in places where the ground had recently been disturbed in the hope of finding her mother's remains, and inadvertently disturbed the remains of pets that people had buried, which troubled her.
Rush's daughter testified that the family held two funerals for Rush--one after she was declared legally dead and a second after her remains were located. The second funeral was delayed by many months because the medical examiner needed the help of a forensic anthropologist to determine the cause of Rush's death due to the decomposed state of the body. This delay caused the daughter additional grief and trauma; she was forced to wait to be with and say goodbye to her mother while her mother's remains were in multiple locations being studied by different people who were trying to determine how she died.
The district court found, in part, that the State proved " beyond a reasonable doubt that the disposal and concealment of Judy Rush's body constitutes particular cruelty under the facts." The court granted the State's request for an upward durational departure. It sentenced Hicks to 420 months in prison, which was an upward durational departure of 168 months. See Minn. Sent. Guidelines IV (2007) (listing 252 months as the longest presumptive sentence for second-degree unintentional murder for a defendant with a criminal history score of four).
Hicks appealed both his conviction and sentence. The court of appeals affirmed. State v. Hicks, 837 N.W.2d 51, 55 (Minn. App. 2013). With respect to his sentence, the court concluded that " [o]ne compelling circumstance that can support an upward durational departure is when a defendant treats a victim with particular cruelty" and that " [a] defendant's concealment of the victim's body is considered particularly cruel." Id. at 62-63. It further reasoned that the fact that Hicks's concealment of Rush's body could constitute a separate, uncharged offense did not preclude the use of that fact to justify an upward durational departure. Id. at 64. We granted review on the issue of Hicks's aggravated sentencing departure.
Hicks argues that the district court abused its discretion in imposing a 420-month executed sentence, which is an upward durational departure of 168 months. Specifically, Hicks contends that concealing a murder victim's body is not an aggravating factor upon which a district court may base an upward departure. According to Hicks, concealing a murder victim's body amounts to a separate uncharged offense that is not a valid basis for a sentencing departure.
We review a district court's decision to depart from the presumptive guidelines sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585-86 (Minn. 2011). " If the reasons given for an upward departure are legally permissible and factually supported in the record, the departure will be affirmed. But if the district court's reasons for departure are 'improper or inadequate,' the departure will be reversed." State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009) (quoting State v. Jackson, 749 N.W.2d 353, 357 (Minn. 2008)).
The Minnesota Sentencing Guidelines promote uniformity, proportionality, and predictability in sentencing. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002). The guidelines permit departures from the presumptive sentence, but a court departing from the guidelines must articulate " substantial and compelling" circumstances justifying the departure. See Jackson, 749 N.W.2d at 360; Minn. Sent. Guidelines 2.D.1.
" 'Substantial and compelling circumstances are 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.'" Tucker, 799 N.W.2d at 586 (emphasis omitted) (quoting State v. Jones, 745 N.W.2d 845, 848 (Minn. 2008)). The guidelines contain a " nonexclusive list of factors that may be used as reasons for departure." Minn. Sent. Guidelines 2.D.3. One of the aggravating factors listed in the guidelines is that " [t]he victim was treated with particular cruelty for which the individual offender should be held responsible." Minn. Sent. Guidelines 2.D.3.b.(2). We have occasionally recognized new aggravating factors that are not included in the list of aggravating factors in the guidelines. See, e.g., State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (upholding upward durational sentencing departure when the defendant " invaded the zone of privacy which surrounded [the victim's] home" ); State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (upholding upward durational sentencing departure because the offense was committed at a daycare in front of children).
To answer the question presented, we will first review our existing case law to determine whether concealment of a homicide victim's body is a legally permissible basis for departure under the sentencing guidelines. Generally, the district court may impose an upward durational sentencing departure if the evidence shows that the defendant committed the offense in a particularly serious way. Tucker, 799 N.W.2d at 586. But the court may not do so " if the sentence will unfairly exaggerate the criminality of the defendant's conduct, or punish a defendant twice for the same conduct." Edwards, 774 N.W.2d at 601.
We have considered whether the concealment of a body is an aggravating factor that supports an upward sentencing departure in four cases. State v. Griller, 583 N.W.2d 736, 738-39, 744 (Minn. 1998); State v. Folkers, 581 N.W.2d 321, 323, 327 (Minn. 1998); State v. Schmit, 329 N.W.2d 56, 58 (Minn. 1983); State v. Ming Sen Shiue, 326 N.W.2d 648, 654-55 (Minn. 1982). In Shiue , the district court imposed a greater-than-double upward durational sentencing departure for a second-degree murder conviction when the defendant abducted a six-year-old boy, put him in the trunk of his car and drove around for an hour, and then killed him with a crowbar in a deserted area. 326 N.W.2d at 649-50. The defendant left the body hidden in dense brush in this remote location. Id. Several months after the boy was reported missing, the defendant agreed to tell law enforcement where the body was located in exchange for not being charged with first-degree murder. Id. at 650.
In affirming the upward durational departure, we stated that " the concealment [of the body] was an aggravating factor to be considered." Id. at 655. We reasoned that " [f]or five months, [the victim]'s family suffered a great deal of trauma, not knowing whether their son was dead or alive." Id. " The inclusion of concealment as an aggravating factor [was] justified not only by the trauma to close relatives, but ...