WINDOM -- Via phone and in the courtroom, attorneys for the four men involved in the murder of Alberto Samilpa Jr. touched base with Judge Bruce Gross in Cottonwood County District Court to discuss the state's memorandum regarding aggravating factors in the case.
The state has filed a notice of intention to seek an upward departure based on the aggravating factors in the memorandum. An upward departure would make it possible for the state to ask for a sentence above and beyond sentencing guideline requirements.
Gerard Irving Holt, 24, is charged with second-degree murder, while Axel Rene Kramer, 21, is charged with aiding and abetting in that second-degree murder. Lionel Benavidez, 22, and Hans Paul Hottel, 21, were each charged with aiding and abetting in the second-degree murder and aiding an offender -- accomplice after the fact, but the first charge against Hottel has been dismissed.
The body of Samilpa was discovered in November next to a burning Porsche. The body had been partially burned, and an autopsy showed four or five shots to the head and a stab wound on the neck.
The Porsche and another vehicle were stolen from a house near Mankato, along with guns, jewelry, computer equipment and more.
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All four men were arrested within days of the murder.
The state's memorandum regarding the aggravating factors states Samilpa was shot to death by Holt, Benavidez and Kramer, who then threw a flammable liquid on the body and set it and the car on fire.
"A jury could reasonably conclude this was done for the purpose of concealing (Samilpa's) identity," the memorandum states. "This also had the effect of preventing his relatives from viewing his body, leaving them with the uncertainty and grief of not confirming his identity. Although they were told by people they trusted that the body was his, they could never confirm that by their own visual observation."
Attorneys for the three men accused of the aggravating factors stated Thursday they don't believe a factual basis for the factors exists. Although the state claims the family could not view the body, there is no affidavit from the family saying they wanted to do so.
"The burning of the body afterward is an independent, separate crime," said attorney Cecil Naatz, defense for Benavidez. "It is not an aggravating factor."
Holt's attorney, John Scholl, offered the same argument, adding there was nothing to show the actions of the defendants deprived the family of anything.
Minnesota Assistant Attorney General Al Zdrazil said the state's position on that argument is that he doesn't actually have to show that Samilpa's family wanted to see the body.
"You can't charge the aggravating factors for families that care, but non-aggravating for families that aren't around," Zdrazil said. "It should not depend on the characteristics of a victim's family."
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Mutilating a corpse, he added, violates cultural norms.
The defense attorneys will be given until the end of August to file written submissions about the memorandum, and then Zdrazil will have time to reply before Judge Gross makes a decision.
