Douglas Hicks v. Randall Hepp
2017 U.S. App. LEXIS 17301
| 7th Cir. | 2017Background
- Victim E.J. recorded a 43-minute call from a sheriff’s station in which Hicks at times denied abuse but ultimately said, “I’m sorry for molesting you,” after repeated threats by E.J., including threats to tell Hicks’s minor son and threats of violence. Investigator Janus had coached and recorded the call; E.J. acted at the investigator’s suggestion.
- Hicks was charged with repeated sexual assault; prior related allegations produced a hung jury, and Hicks later entered an Alford plea to reduced misdemeanors and received probation in that earlier matter.
- At trial Hicks’s counsel played the full recorded call to the jury; the jury heard detailed testimony from E.J. and two other witnesses who described prior abuse. The prosecutor, in rebuttal, referenced Hicks’s Alford plea and asked whether plea-bargaining down earlier felonies to misdemeanors was “fair.” Defense counsel did not object to that comment.
- Postconviction, Hicks argued trial counsel was ineffective for (1) failing to move to suppress the recorded confession and (2) failing to object to the prosecutor’s improper closing remarks. The Wisconsin courts mixed rulings: appellate court found the recording admissible and later credited trial counsel’s testimony over Hicks’s, but also found the prosecutor’s comments improper yet not warranting a new trial.
- Hicks sought federal habeas relief under 28 U.S.C. § 2254. The district court and now this panel concluded the state court unreasonably credited trial counsel’s testimony regarding coercion (so Strickland deficiency established for failing to move to suppress), but that admission of the tape was not prejudicial given the other overwhelming evidence. The panel found the ineffective-assistance claim based on failure to object procedurally defaulted because Hicks did not fairly present it to the Wisconsin Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Counsel ineffective for failing to move to suppress recorded confession | Hicks: recording was involuntary because E.J., acting as a police agent, made threats that coerced a confession; counsel unreasonably failed to challenge admissibility | State: appellate courts reasonably concluded statements were voluntary; counsel’s inaction was strategic | Court: State court unreasonably credited trial counsel over Hicks on threat issue (Strickland deficiency proven), but no prejudice — overwhelming independent evidence; habeas denied on merits |
| Counsel ineffective for failing to object to prosecutor’s rebuttal referencing prior Alford plea | Hicks: prosecutor’s comments were improper and prejudicial; counsel’s failure to object was unreasonable | State: comments were brief and did not alter verdict; alternatively, claim not fairly presented to highest state court (procedural default) | Court: Remarks were improper and troubling, but claim is procedurally defaulted because Hicks failed to fairly present it to Wisconsin Supreme Court; federal habeas barred |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- O’Sullivan v. Boerckel, 526 U.S. 838 (fair presentation/exhaustion requirement for state remedies)
- Lynumn v. Illinois, 372 U.S. 528 (threats involving family can render confession involuntary)
- Arizona v. Fulminante, 499 U.S. 279 (coercive government agent threats can invalidate confession)
- Colorado v. Connelly, 479 U.S. 157 (police coercion is necessary predicate for due-process involuntary-confession claim)
- Schneckloth v. Bustamonte, 412 U.S. 218 (totality-of-circumstances test for voluntariness of statements)