Where Concealment of Body is Part of Single Behavioral Incident and Committed in Particularly Serious Way Then Guidelines Authorize Upward Departure

State v. Hicks, Minn.S.Ct., 6/3/2015.  Judy Rush went missing in August, 2007.  Initial investigation suggested that if the large amount of blood found in her apartment were Judy's then she was dead. Three years later, Ms. Rush's remains were discovered in a shallow grave in a park in Brooklyn Park.  The state charged Mr. Hicks with second degree intentional and unintentional murder.  The court - Mr. Hicks waived both his right to a jury trial and to counsel - convicted him of second degree unintentional murder.

The court then granted the state's motion for an upward durational departure.  The court determined that the disposal and concealment of the body constituted particular cruelty "under the facts."  The court of appeals affirmed.  That court reasoned that concealment of the body is particularly cruel and thus supports a departure.  That court also rejected Mr. Hicks' argument that the concealment was a separate, uncharged offense that could not be used to justify an upward departure.

Justice Dietzen, writing for five members of the court - Justices Wright and Page dissented - admitted that the court's past pronouncements on whether concealment of a victim's body would support a departure have not been free from confusion.  In its most recent iteration on the subject, State v. Leja, 684 N.W.2d 442 (Minn. 2004), the court could not muster a majority opinion.  Justice Paul Anderson's plurality opinion garnered only three votes for rejecting a departure based only on the concealment of the body.  Chief Justice Blatz got three votes for authorizing a departure on that basis. Justice Russell Anderson concurred in the result but for the reason that the concealment was a separate offense that could not be used to authorize the departure. 

Justice Dietzen gets five votes to authorize a departure on the single factor of concealment of a homicide victim's body.  Concealment of the body makes the offender's conduct:

more serious than the typical second-degree unintentional murder because family and friends of a victim suffer additional trauma by not knowing whether their relative or friend is dead or alive, and concealment is contrary to the proper, respectful treatment due to the remains of a deceased person.

Justice Dietzen insists that this is not about particular cruelty; it's about a-typicality. (But, then again, a homicide followed by concealment of the body make up a pretty small subset of all homicides, so it's fair to anticipate that the state is going to assert in just about every homicide followed by concealment of the body that the offense qualifies for a departure.  Moreover, the precise "a-typicality" is the "cruelty" to the survivors, which is always going to be present, at least in the court's mind.)

There's more.  Those harmed by the offender's conduct no longer must be present during the commission of the crime.

The court does place some restrictions on the availability of a departure based on concealment of the body.  The court concluded that Mr. Hicks's concealment of the body was part of a "single behavioral incident" so if that's not the case then a departure may not be authorized.   Where the concealment is part of a single behavioral incident then all of those facts must show that the offender committed the offense that is being sentenced in a "particularly serious way" to support a departure.

Justice Wright, joined by Justice Page, dissented.