Opinion handed down February 26,
2013
The
Supreme Court of Missouri denied Kevin Hicks’ appeal to overturn his
convictions of forcible rape, attempted forcible rape, and forcible sodomy.
Hicks argued that the trial court erred in admitting into evidence his
statements to the police because the statements were made on the belief that he
had agreed to a certain plea bargain which the state later failed to uphold.[2]
I. Facts and Holding
In 1992,
Hicks and five other men confronted a male and female outside of the male’s
home and then forced them into the house.[3] While the male was held at
gunpoint downstairs, five men took turns sexually assaulting the female
upstairs.[4] At all times, five men were with the female victim but they took
turns as to who would watch the male victim.[5] After the attack, the men left
the house quickly.[6]
In 2008,
DNA that was collected from the rape kit was batched to Elbert Hicks, a cousin
of Kevin Hicks.[7] Police created a list of six suspects that included Kevin
Hicks.[8] At this time, Kevin Hicks was imprisoned at the Jefferson City
Correctional center for robberies, an attempted rape and armed criminal action.[9]
When police went to interview Hicks, he was given his Miranda v. Arizona[10]
warning regarding his rights and he signed a written waiver and agreed to talk.[11]
He admitted to being involved but did not provide details at the time because
he wanted to get the best agreement for himself while also giving closure to
the victims.[12] While the police attempted to contact the prosecutor, Hicks
continued to voluntarily give information and refused an attorney.[13]
Once the
police talked to the prosecutor Hicks was given a written offer that stated if
he provided information related to the crime in 1992, the Jackson County
Prosecutor’s Office would agree to a term of imprisonment that would be served
concurrently with Hick’s current imprisonment.[14]
At first
Hicks did not want to agree but this was the only deal the prosecutors were
willing to make so eventually he agreed.[15] He then gave details relating to
the incident and named the other five men involved.[16] He stated that he was
armed with a shotgun and did watch over the male victim and although he
witnessed his cousin and two others rape and sodomize the female, he did not
participate in the sexual assault.[17] At the end of the interview when asked
why he agreed to talk, Hicks told the police that he was “ashamed of his
conduct and wanted to be a better person” and that he needed to “admit to his
wrongdoing and deal with it.”[18] On two other dates, Hicks talked to the
police and his statements were videotaped.[19]
Besides
the written offer made by the prosecutor, the detectives involved did not offer
any other promises to Hicks. In October of 2008, Hicks was charged with two
counts of first-degree robbery, six counts of forcible sodomy, one count of
forcible rape and one count of attempted forcible rape.[20] At this point,
Hicks realized his sentences would run consecutively to his current sentence as
required by statute so he filed a motion to suppress his statements because his
agreement with the state had been violated.[21] Hicks argued that his
statements were involuntary because the state made an agreement they could not
possibly complete.[22] The state argued that they had not agreed to a certain
sentence only that it would run concurrently and they were ready to comply.[23]
The trial court overruled Hick’s motion and admitted the statements.[24]
Hicks
was convicted on all nine counts and was sentenced to 15 years for each of the
robbery convictions and 30 years for each of his seven sexual offenses.[25] His
robbery sentences were to run concurrently and his sexual offenses were to run
concurrently to each other but consecutively to the robbery convictions as
required by RSMo 558.026.1.[26]
II. Legal Background
The
Supreme Court of Missouri held that Hicks’ mistaken belief about his sentence
is unreasonable, thus his statements were not involuntary and they were
admissible at trial.[27] The Court held that they will not overturn a
conviction from a guilty plea that was based on a mistaken belief unless the
belief is reasonable.[28] Hicks belief was that in the offer made by the
prosecutors, “a term of imprisonment . . . to be served concurrently. . . ”
meant that he would receive one group of concurrent sentences. However,
Missouri law refers to “a term of imprisonment” as either as an aggregate term
such as “a term of imprisonment totaling sixty years” or as a single sentence
such as “the two convictions resulted in concurrent terms of imprisonment.”[29]
Hicks’
interpretation was mistaken and it was unbelievable because he repeatedly tried
to get a specific guarantee for his sentence and the prosecutor refused to
agree to anything more detailed.[30] Hicks also had spoken to detectives about
being charged with the rape even though he did not actually sexually assault
the female victim.[31] Finally, the Court stated that the agreement clearly
avoided any specifics and only agreed that his new sentences would start
concurrently with his former, not that his release date would remain unchanged.[32]
Hicks’s plea agreement could not have meant anything other than “one aggregate
term of imprisonment composed of multiple sentences” so his conviction could
not be overturned based on an involuntary confession.[33]
It is
well known that a confession must be voluntary to be admissible otherwise the
defendant’s due process rights have been violated.[34] A defendant must waive
their Miranda rights voluntarily
which means that the defendant must be fully aware of the rights and the
consequences of waiving those rights.[35] Flowing from this is that guilty
pleas must also be voluntary and cannot be a result of “the accused [being]
mislead or induced to plead guilty by fraud, mistake, misapprehension, fear,
coercion, or promises.”[36] However, if a defendant is alleging mistake like
Hicks, his mistake must be reasonable.[37] The court will look to the record of
the guilty plea to ascertain whether the defendant’s mistake is reasonable as
was done in the present case when the Court looked to the written offer made by
the prosecution to Hicks.[38]
III. Comment
Although
the Court in the present case seems to think it was a clear cut easy case to
decide, I do not agree. I think it is easy to read the plea agreement as Hicks
did which is that any sentence he was given would run concurrently to his
current imprisonment. I also think that the prosecutors mislead Hicks by making
him believe that it was possible for his sentences to run concurrently when
they knew, or should have known, that a sexual offense would be required to run
consecutively by statute. I agree that the prosecution did not make any
guarantees to Hicks but it is unclear if they explained to him that the judge
is the ultimate decider on his sentence. While the prosecutors could not state
whether Hicks ultimate release date would stay the same, they could have
affirmatively told him that statute required a consecutive sentence. Based on
the facts given, it seems like Hicks would be facing a long prison term whether
his guilty plea was overturned and he started back at the beginning. Maybe the
Court’s holding was influenced more by the prejudice prong rather than the
unreasonableness even though they do not mention it.
- Melissa
Cullmann
[1] No. SC92402 (Mo. Jan. 8, 2013) (en banc),
available at http://www.courts.mo.gov/file.jsp?id=60063. The West reporter
citation is State v. Hicks, 394 S.W.3d 422 (Mo. 2013) (en banc).
[2] Id. at 1.
[3] Id. at 2.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. These actions were unrelated to the
sexual assault in 1992.
[10] 384 U.S. 436 (1966).
[11] Hicks, 2013 WL 811932 at 3.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 4.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 5.
[20] Id.
[21] Id.
[22] Id. at 6.
[23] Id.
[24] Id.
[25] Id. at 7.
[26] Id.
[27] Id. at 13.
[28] Id. at 9.
[29] Id. at 10. Quoting Burnett v. State, 311
S.W.3d 810, 813, 815 (Mo. App. 2009), and State v. Avery, 275 S.W.3d 231, 232
(Mo. Banc 2009).
[30] Id. at 12.
[31] Id. at 11.
[32] Id. at 12.
[33] Id.
[34] Berghuis v. Thompkins, 130 S.Ct. 2250,
2260-61 (2010).
[35] Id. at 2261.
[36] Samuel v. State, 284 S.W.3d 616, 619 (Mo.
W.D. App. 2009)
[37] Smith v. State, 922 S.W.2d 29, 30 (Mo. App.
1996).
[38] Id. at 30.
