State v. Hicks
| Decision Date | 19 March 2013 |
| Docket Number | No. SC 92402.,SC 92402. |
| Citation | 394 S.W.3d 422 |
| Parties | STATE of Missouri, Respondent, v. Kevin E. HICKS, Appellant. |
| Court | Missouri Supreme Court |
OPINION TEXT STARTS HERE
Ellen H. Flottman, Public Defender's Office, Columbia, for Appellant.
James B. Farnsworth, Attorney General's Office, Jefferson City, for Respondent.
Kevin E. Hicks appeals the judgment following his convictions and sentences for two counts of first-degree robbery, one count of forcible rape, one count of attempted forcible rape, and five counts of forcible sodomy. On appeal, he claims the trial court erred in admitting into evidence his incriminating statements to police because the statements were made involuntarily in reliance on an agreement the state has failed to honor. Mr. Hicks also claims that there is not sufficient evidence to support his conviction of two separate counts of first-degree robbery, which the state concedes. This Court finds that the trial court did not err in admitting Mr. Hicks' pretrial statements. Based on the state's concession, this Court vacates Mr. Hicks' conviction for the second count of first-degree robbery.
In Kansas City, during the early morning hours of August 5, 1992, Mr. Hicks and five other men, armed with firearms, accosted a male and female on the street outside the male's home.1 Mr. Hicks and his associates ordered the couple into the house. The men kept the male victim downstairs at gunpoint and forcibly stole keys and a videocassette recorder from him. Then, five of the assailants took the female victim to an upstairs room and took turns sexually assaulting her. The six men present that night would change positions, sending one downstairs while another would come up, but five men remained constantly with the female victim. At the end of the attack, the men left the house in a hurry, believing that there were police in the neighborhood.
These crimes remained unsolved until 2008, when DNA collected shortly after the incident from a rape kit matched the DNA of Elbert Hicks, Mr. Hicks' cousin. Investigators were aware that the August 1992 offense involved six African–American male perpetrators. They developed a list of six suspects, including Mr. Hicks, based on Elbert Hicks' known associates in 1992. Five of the six men police identified as suspects in 2008, including both Elbert and Kevin Hicks, had been suspects in the crimes in 1992. Investigators found Mr. Hicks at the Jefferson City Correctional Center, where he was serving time for a series of robberies, an attempted rape, and armed criminal action, all unrelated to the August 1992 crimes. Mr. Hicks was scheduled for release in 2018.
In March 2008, Kansas City police detectives visited the Jefferson City Correctional Center to interview Mr. Hicks. At the beginning of the interview, Mr. Hicks was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He signed a written waiver and agreed to talk. He admitted some involvement in the 1992 incident but was vague and did not provide details. Mr. Hicks also provided information indicating that he had knowledge of other unresolved crimes, including a rape and a murder in Kansas. He told the detectives that he wanted to help them and give closure to the victims but that he also wanted to get the best agreement possible for himself. The detectives suggested that he get an attorney to negotiate an agreement with the prosecutor, but he declined. When the detectives had difficulty making contact with the prosecutor, Mr. Hicks continued to speak to them, volunteering significant information without any reciprocal promise of leniency or any plea agreement.
After the detectives finally made contact with a Jackson County assistant prosecutor, Mr. Hicks was made the following offer in writing:
If Kevin Hicks provides information that leads to the filing of a criminal charge or charges against one or more individuals involved in criminal activities for which he has personal knowledge, in each of the instances in which he has such knowledge, including the August 5, 1992 crimes against [female victim] and [male victim] at 3410 Smart, Kansas City, Jackson County, Missouri, then the Jackson County Prosecutor's Office will agree that Kevin Hicks be sentenced to a term of imprisonment for his involvement and participation in these crimes to be served concurrently with Kevin Hicks' current prison sentences.
Initially, Mr. Hicks was dissatisfied with the agreement as presented. He explained that he did not want to serve any additional time as a result of the offenses in which he was prepared to implicate himself and wanted a guarantee from prosecutors that he could keep his current “outdare” ( i.e., the date he would be released from prison), scheduled for 2018. After speaking further with the prosecutor's office, the detectives told Mr. Hicks that the written agreement was the only offer prosecutors were willing to make. The detectives told Mr. Hicks that “they're not going to specify a date or anything like that because they don't know exactly what you're gonna tell us.” Mr. Hicks agreed to talk.
Mr. Hicks then gave the detectives a detailed account of the August 5, 1992, incident, including the identity of his five accomplices. He acknowledged being armed with a shotgun, that he guarded the male victim downstairs and looked for things to steal, and that he observed his cousin and two others rape and sodomize the female victim, although he denied personally engaging in any sexual contact with her. Toward the end of the interview, the detectives asked Mr. Hicks why he had given them this information. Mr. Hicks said he had taken classes and participated in programs while in prison that advised inmates to take responsibility for their actions and that he felt empathy for the victims, was ashamed of his conduct, and wanted to be a better person. He agreed that by cooperating he could “help [himself] heal from the wrongs [he] had done to others.” He said he knew he could have gotten a lawyer and refused to talk, but decided he had to admit his wrongdoing and deal with it. Mr. Hicks said he was “glad to have this off [his] chest.”
On two later occasions, in July and September 2008, the detectives spoke to Mr. Hicks and videotaped his statements. Before each interview, Mr. Hicks was advised of his Miranda rights and signed a written waiver, See384 U.S. 436, 86 S.Ct. 1602 (1966). At the end of the first of these interviews, Mr. Hicks again stated that he was cooperating because “it's the right thing to do” and because he had come to empathize with the victims.
The detectives were not armed during the interviews and testified that they never threatened or coerced Mr. Hicks. Aside from the written agreement from the prosecutor, the detectives made no promises regarding any benefit Mr. Hicks might receive by cooperating. On October 24, 2008, Mr. Hicks was charged by indictment with two counts of first-degree robbery, six counts of forcible sodomy (one of which was dismissed before submission), one count of forcible rape, and one count of attempted forcible rape.
Subsequent to his indictment, it became apparent that, if convicted on all counts, Mr. Hicks' sentences for any sexual offenses would have to run consecutively to his sentences for the robbery counts by operation of section 558.026.1.2See generally Williams v. State, 800 S.W.2d 739, 740 (Mo. banc 1990). Mr. Hicks filed a motion to suppress his pre-trial statements, claiming such mandatory consecutive sentencing would violate his agreement with the state.
The trial court held a hearing regarding Mr. Hicks' motion to suppress. The only testimony at the suppression hearing was offered by the two detectives who negotiated the agreement with Mr. Hicks. The trial court took the motion under advisement to review the evidence in one video-recorded and three audio-recorded recordings of Mr. Hicks' encounters with the detectives over the course of four days.
Defense counsel argued that Mr. Hicks made his statements because he expected that, in return for his cooperation, he would receive “one sentence that goes concurrent with ... all of the various sentences that he is doing.” Because section 558.026.1 requires that sentences for the sex offenses run consecutively to the other offenses, Mr. Hicks' counsel argued that the state would be unable to fulfill its part of the bargain. Accordingly, Mr. Hicks contended that his statements were involuntary because they were induced by an agreement the state could not honor.
In response, the state argued that there was no agreement as to any particular sentence arising from the charges in this case. The state contended that the only agreement was that the term of imprisonment from this case would run concurrently with the sentences Mr. Hicks was already serving, and the state stood ready to comply with that agreement.
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...induced by fraud, mistake, misapprehension, fear, coercion, promises, or because the accused was misled are not voluntary." State v. Hicks , 394 S.W.3d 422, 426 (Mo. banc 2013). Because involuntary pleas implicate the pleader's fundamental constitutional rights, "[i]f the accused has been m......