State v. Hicks
| Decision Date | 17 January 2012 |
| Docket Number | WD71650 |
| Parties | STATE OF MISSOURI, Respondent, v. KEVIN E. HICKS, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County
The Honorable Sandra Carol Midkiff, Judge
Before: Lisa White Hardwick, C.J., and James M. Smart, Jr., Joseph M. Ellis, Victor C.
Howard, Thomas H. Newton, James E. Welsh, Alok Ahuja, Mark D. Pfeiffer, Karen King
Mitchell, Cynthia L. Martin, and Gary D. Witt, JJ.
After a jury trial, Kevin Hicks was convicted in the Circuit Court of Jackson County of two counts of first-degree robbery, one count of forcible rape, one count of attempted forcible rape, and five counts of forcible sodomy. Hicks appeals, raising two arguments. First, he contends that the trial court erred in failing to exclude from evidence his inculpatory pretrial statements because those statements were involuntary, and were made to police detectives in reliance on an agreement the State has failed to honor. Second, Hicks argues that the facts here do not support conviction of two separate counts of first-degree robbery. The State concedes that Hicks is entitled to relief on this second claim. We reject Hicks' arguments concerning the admission of his pretrial statements. Based on the State's concession, we vacate Hicks' conviction and sentence on the second robbery count.
Factual Background
In the early morning hours of August 5, 1992, Hicks and five other men, armed with firearms, accosted a male and female adult couple on the street outside the male's home.1 Hicks and his compatriots 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. The assailants took the female victim to an upstairs room, where multiple members of the group took turns sexually assaulting her.
The crimes went unsolved for many years. In 2008, DNA testing revealed a match between Elbert Hicks, a cousin of Appellant Kevin Hicks, and DNA collected from the female victim shortly after the incident. Police were aware that the August 1992 offense involved six African-American male perpetrators. They developed a list of six suspects - including Appellant Kevin Hicks - based on information they possessed concerning 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.
Hicks had been arrested for unrelated offenses the day after the August 5, 1992 incident. He had been convicted and sentenced for a series of robberies, an attempted rape, and armed criminal action. Hicks was scheduled for release on his existing convictions in 2018.
On Friday, March 14, 2008, Kansas City police detectives visited the Jefferson City Correctional Center to interview Hicks. At the beginning of the interview Hicks was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (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. Hicks also provided information indicating that he had knowledge of otherunresolved crimes, including a rape, and a murder in Kansas. He told the detectives he wanted to help them and give closure to the victims, but that he also wanted to get the best deal possible for himself.
The detectives, unfamiliar with the sort of agreement Hicks was proposing, initially told him that he would have to have an attorney to negotiate a deal with the prosecutor. Hicks said he did not want an attorney because he thought that would mean that he would have to stop speaking with the police. The detectives ultimately contacted an assistant prosecutor, who told them that if Hicks provided information that led to criminal charges being filed against other perpetrators of the crimes of which he had knowledge, the State would agree that "the term of imprisonment" Hicks received "for his involvement and participation in these crimes" would "be served concurrently with [his] current prison sentences." Upon being informed of this, Hicks stated that he was still interested in talking, but wanted an agreement in writing. The detectives were unable to have a written agreement faxed to the prison on March 14. They told Hicks that they would return the following Monday (March 17, 2008) with a written agreement in hand.
When the investigators returned, they again gave Hicks his Miranda warnings, and he once again waived his rights and agreed to talk. The detectives presented Hicks with a letter from the prosecutor's office, which memorialized the agreement the State had offered the previous Friday.
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 now prepared to implicate himself, and wanted a guarantee from prosecutors that he could keep his current "out-date" (i.e., the date he would be released from prison), scheduled for 2018. The detectives took abreak to contact the prosecutor's office for clarification. Hicks again stated that he wanted to talk, but that he also wanted to get the best deal he could.
After speaking further with the prosecutor's office, the detectives told Hicks that the written agreement offered to him that morning, which was identical to the oral agreement offered on March 14, was the only offer prosecutors were willing to make; "and that is that your sentences, whatever your sentence is to run concurrent with the one that you got for the original charges." The detectives stated 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." The detectives then asked:
Hicks then gave the detectives a detailed account of the August 5, 1992 incident, including the identity of his five accomplices. Hicks acknowledged being armed with a shotgun. He stated that he guarded the male victim downstairs and looked for things to steal. Hicks said 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 Hicks why he had given them this information. 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. Hicks said he was "glad to have this off [his] chest."
On two later occasions, in July and September 2008, the detectives spoke to Hicks and videotaped his statements. Before each interview, Hicks was advised of his Miranda rights, and signed a written waiver. At the end of the first of these interviews, 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 Hicks. Aside from the written agreement from the prosecutor, the detectives made no promises regarding any benefit Hicks might receive by cooperating.
On October 24, 2008, 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, Hicks' sentences for any sexual offenses would have to run consecutively to his sentences for the robbery counts by operation of § 558.026.1, RSMo. See generally Williams v. State, 800 S.W.2d 739, 740 (Mo. banc 1990). 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 on Hicks' suppression motion. The only testimony offered at the suppression hearing was by the two detectives who negotiated the agreement with Hicks in March 2008; Hicks did not testify. Sound recordings of the entirety of the officers' encounters with Hicks on March 14 and 17 had been made, and the recordings, as well as a transcript of the March 17 afternoon recording, were also offered into evidence.
Defense counsel argued that Hicks made his statements because he expected that, in return for his cooperation, he would receive "one sentence that goes concurrent with . . . all ofthe various sentences that he is doing." Because § 558.026.1, RSMo requires that sentences for the sex offenses run consecutively to the other offenses, Hicks' counsel argued that the State would be unable to fulfill its part of the bargain. Accordingly, 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 aggregate sentence from this case would run concurrently with the sentences Hicks was already serving, and that the State stood ready to comply with that agreement.
The trial court made an oral ruling denying Hicks' motion to suppress before trial; after trial, the court issued a written order memorializing its decision. The court's written order found that "[a] review of the recorded statements made by the defendant leads to the inescapable conclusion that defendant made each...
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