Hicks v. Hepp, No. 15-3865 (7th Cir. 2017)Annotate this Case
Hicks admitted to sexually molesting his former stepson, during a recorded phone call from a police station. During the call, before the confession, the victim repeatedly threatened to harm Hicks and to tell Hicks’s other minor son about the abuse. Hicks’s counsel played the entire recorded conversation to the jury. Later, the prosecutor referred to an earlier case in which Hicks had pleaded guilty after being accused of similar conduct. He asked the jury if it was “fair” that Hicks had been permitted to plea bargain to misdemeanors and receive probation and “Is that what should have happened here or should we deal with this?” Hicks’s counsel did not object. Hicks was sentenced to 25 years’ imprisonment. After a failed state collateral challenge, he sought federal habeas relief. The Seventh Circuit affirmed the denial of relief. While the state court unreasonably determined that Hicks’s counsel was credible when he testified that Hicks told him that he did not feel threatened during the call, Hicks did not suffer prejudice from the tape’s admission, because the other evidence of his guilt was sufficient to sustain his conviction. The court stated that it was “very troubled by the state court’s finding” regarding the prosecutor’s statements and defense counsel’s failure to object, but Hicks did not fairly present that claim to the Wisconsin Supreme Court and procedurally defaulted on the claim for relief.