A three-judge panel of the Ohio Eighth District Court of Appeals recently heard oral arguments in the case of Joaquin Hicks, who is serving 61 years to life in prison as the alleged ring leader that planned a robbery that led to the murder and attempted murder two years ago of two Cleveland Clinic employees in an outdoor park plaza across from a downtown Cleveland night club.

 

Hicks, 31, was charged in Sept 2009 in an eight-count indictment alleging one count of aggravated murder, two counts of kidnapping, two counts of aggravated robbery, and one county of attempted murder, all having gun specifications of one to three years. After a two-week trial that ended last March a Cuyahoga County jury found Hicks guilty of two counts of aggravated robbery and Cuyahoga County Court of Common Pleas Judge Daniel Gaul, who this year completed probation for six months for unethical charges sanctioned by the Ohio Supreme Court in Oct., issued the 61-year sentence. Hicks' family then hired new counsel to file an appeal.  

 

Cleveland Attorney David Doughton, Hicks's appellate lawyer, told the three-judge appellate panel of Judges Melody Stewart, Mary Eileen Kilbane and Mary Boyle that Hicks' convictions should be overturned because Gaul erred when he failed to hold a hearing when defense counsel told him on record that jurors might have deliberated with the assistance of cell phones and when Asst. Cuyahoga County Prosecutor Dan Clearly said, also on record, that he overheard defense counsel allegedly telling witnesses for the defense what to testify to. And he argued that the waitress at the night club that testified at trial that another man and not Hicks was there that night had nothing to lose in being truthful. Doughton also said that since Hicks had $21 thousand from his deceased mother's life insurance policy he had no reason to spearhead a robbery that led to murder.

 

Stewart asked Cleary if defense counsel had  told witnesses for Hicks what to testify to as he had alleged to Gaul would he see that as  unethical and grounds to reverse the convictions, and Boyle asked why Hicks would rob anybody since he has $21 thousand in the bank and why the waitress with nothing to lose or gain would lie about her testimony that Hicks was not at the bar that night. The esteemed judges on the appellate panel that will decide Hicks' fate, including Kilbane, seem to agree that Gaul erred when he did not hold inquires on the claim of cell phone use during jury deliberations and the prosecutor's allegation that Hicks' trial  counsel told witnesses for the defense what to say, regardless of which side might have  benefited from the alleged activity. 

 

Cleary appeared uncomfortable and had little explanation for the scholarly appellate panel consisting of all women, though he suggested that the waitress that testified in Hicks' favor at trial might have had a reason to lie to the jury.

 

"She could have been angry at her employer," said Clearly to the appellate panel, though to little fanfare. 

 

Doughton did not buy it.

 

"We ask this Honorable Court to grant our assignments of error and to overturn the convictions of Joaquin Hicks," he said before an appellate court oral arguments that was filled to capacity with supporters for Hicks and for the two Cleveland Clinic victims.

 

At trial last year Hicks' trial attorneys told the 12-member predominantly White jury that he was not even at Scorcher's nightclub on 12th St. and Chester Ave the night of the crimes, and his family members took the stand and testified that he was at an aunt's house on Cleveland's East Side with relatives and bathing with a girlfriend after a party held there that night. The girlfriend also testified as to Hick's alibi. 

 

Clearly said during his 15 minute oral argument that cell phone records put Hicks calling his girlfriend when the alibi testimony said that they were allegedly together at Hick's aunt's house the night of the turmoil, though the appellate judges said that cell phone data can be off track and is not totally reliable, particularly in an instance where robbery, murder and a defendant's freedom are at the forefront of the controversy. 

 

Trial testimony revealed that Pechanec and Aebly went outside of the bar and across the street to the plaza to buy marijuana and were allegedly robbed by the group of Black men, and eventually shot by Ralfael King, a teenager at the time. Both were shot in the head, and while the bullet killed Pechanec, Aebly survived, in what doctors branded a miracle. He did not completely recover, though he took the stand and testified against Hicks at last year's trial. 

 

Unlike Hicks, the three men and the teen accused of crimes along with Hicks all took plea deals for their roles, after Hicks was convicted. They were also sentenced by Gaul, claiming afterward that the controversial judge broke a promise on a plea deal for lessor time.

 

Shooter Ralfeal King, 17 at the time but prosecuted as an adult, was sentenced to 46 years to life for aggravated murder, attempted murder, aggravated robbery and kidnapping. And Perry King, 20, a lesser accomplice in the crime, was sentenced to 12 years in prison for driving the getaway car.

 

Cornelius King, 26, who pleaded guilty to murder for his actions in the crimes, was sentenced to 15 years to life in prison. He took the stand against Hicks at trial saying Hicks organized the robbery that led to the murder and attempted murder, a claim Hicks denied under oath and said was leveled in exchange for plea deals that the others accused in the scenario were to receive. 

 

Reginald Day, who also pleaded guilty to murder, got 21 years to life. 

 

An appellate decision is expected no later than next month.

 

Hicks family members are optimistic about the outcome.

 

"My nephew is innocent and if the appeals judges follow the law they will reverse the unfair convictions and set him free," said Denise Taylor, 54,"  Hicks' aunt on his mother's side of the family and now a community activist. 

 

Hicks is no angel, having served time for aggravated robbery in an unrelated case. If his convictions are upheld and he loses a separate appeal for a new trial he is eligible for parole after serving 61 years.

 

The case has also been complicated since Cornelius King, who testified against Hicks at trial,  and Perry King, both related to each other and to shooter Raphael King, and Day, have recanted in writing for Gaul, saying that Hicks was not at the scene of the crime that night and that they had allegedly been manipulated either by police, prosecutors or others to say otherwise, whether on or off record. Gaul, however, denied Hicks' motion for a new trial on those letters and other alleged errors at trial, and that order is also on appeal in separate proceedings.

 

If The Eighth District Court of Appeals rules against Hicks, he can file an appeal to the Ohio Supreme Court, which has the option in this case of either accepting jurisdiction and subsequently hearing the appeal, or refusing to hear it at all.