Concealment of Murder Victim Sufficient to Support Departure Based on Particular Cruelty.

State v. Hicks, Minn.Ct.App., 9/3/2013.  The district court convicted Mr. Hicks of second degree unintentional felony murder.  It seems that J.R. went missing back in 2007.  Police undertook an investigation but were unable to make an arrest.  Human remains, which DNA determined were J.R.’s, were found in 2011, after which police charged Mr. Hicks.  He decided to represent himself.  The state’s case was mostly circumstantial, but it did include the testimony of two jail snitches, who claimed that Mr. Hicks had admitted killing J.R.  The court convicted Mr. Hicks of second degree felony murder.  The court also found that by hiding the body Mr. Hicks had committed the crime in a particularly cruel way, so the court imposed a sentence twice what the Guidelines called for.

Mr. Hicks complained on appeal that the district court had violated the Minnesota Code of Judicial Conduct by making a finding – that Mr. Hicks had left a certain voice mail message – for which there were no facts in evidence.  The state offered no evidence, expert or otherwise, about the identity of the voice on the message.  The court, of course, had heard Mr. Hicks’ voice throughout the twelve day trial and during pretrial hearings as well.  That was all the court needed to conclude that it was Mr. Hicks’ voice on the message recording.  His ability thus to recognize Mr. Hicks’ voice came about in his “general judicial capacity” and did not, therefore, violate the Judicial Code.  Mr. Hicks also complained that this finding deprived him on an impartial fact finder, but the court of appeals rejects this argument, and thereby gives defendants everywhere another reason not to represent themselves.

Without objection, and sometimes at  his request, the court closed the courtroom.  One closure occurred during what amounted to a bench conference held in the closed courtroom instead of at said bench or back in chambers.  Another occurred during trial so that Mr. Hicks could review a redacted transcript of his Scales interrogation.  The third closure occurred so that the matter of a waiver of attorney client privilege could be discussed.  The court of appeals said that all of these closures involved discussions of “routine administrative matters traditionally addressed during closed conferences in chambers” and did not violate Mr. Hicks’ right to a public trial.

Finally, Mr. Hicks challenged the durational departure that the court based on concealment of the body.  There is case law saying that such concealment, combined with other factors,  is considered particularly cruel.  State v. Shiue, 326 N.W.2d 648 (Minn. 1982).  In State v. Leja, 684 N.W.2d 442 (Minn.. 2004), the Supreme Court reversed a departure based only on concealment, but the defendant there had not been the actual killer.  And, the holding in Leja did not get four votes.  Maybe Mr. Hicks can see if four members agree or disagree this time.