State v. Hicks

229 N.E.3d 172

2023-Ohio-4126

STATE of Ohio, Plaintiff-Appellant,

v.Willie HICKS, Defendant-Appellee.

No. 112513

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released and Journalized: November 16, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-22-672509-A.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar and Andrew Boyko, Assistant Prosecuting Attorneys, for appellant.

Christopher McNeal, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, amicus curiae.

JOURNAL ENTRY AND OPINION

FRANK DANIEL CELEBREZZE, III, P.J.:

{¶ 1} Appellant, the state of Ohio ("the state"), appeals from the trial court’s judgment granting the motion to dismiss filed by defendant-appellee, Willie Hicks ("Hicks"). After careful review of the record and relevant case law, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

I. Procedural and Factual History

{¶ 2} On October 3, 2021, members of the Garfield Heights Police Department responded to an apartment complex located in Garfield Heights, Ohio, at approximately 3:17 a.m. after receiving multiple reports of "shots fired." (Tr. 14, 70). The person that placed the 911 call stated that the "shots were continuous and not stopping." (Tr. 82.) The responding officers were not provided with any information regarding a description of the potential suspects or whether a vehicle was linked to the shooting. (Tr. 113.)

{¶ 3} Upon arrival, Patrolman Peter Stockhausen ("Ofc. Stockhausen") attempted to speak with bystanders in an effort to gauge their involvement in the reported shooting, or, alternatively, determine whether they witnessed the shooting or were injured. Ultimately, Ofc. Stockhausen was unable to gather pertinent information from the individuals he initially approached in the parking lot.

{¶ 4} Thereafter, Ofc. Stockhausen observed an individual, later identified as Hicks, attempting to exit the parking lot of the apartment complex in a red Dodge Challenger. Ofc. Stockhausen used his flashlight to signal for Hicks to stop the vehicle. He then asked Hicks to "turn the car off." (Tr. 20.) Hicks complied with Ofc. Stockhausen’s initial request to stop the vehicle. Hicks, however, refused to turn the car engine off and "said something to the effect that he wasn’t involved" in the incident that the police were investigating at the apartment complex. (Tr. 26.)

{¶ 5} Unsatisfied with Hicks’s response, Ofc. Stockhausen "pulled" on the door handle of Hicks’s driver’s side door to forcibly remove Hicks from the vehicle "because he wasn’t immediately getting out of the car as [Ofc. Stockhausen] asked him to." (Tr. 20.) Hicks immediately accelerated his vehicle and attempted to flee the parking lot by crashing into a police cruiser, which was blocking the exit. Before Hicks could exit the parking lot, however, Patrolman Ronald Dodge ("Ofc. Dodge") of the Garfield Heights Police Department, fired his service weapon 12 times into the front driver’s side of Hicks’s vehicle. Ofc. Dodge later described the circumstances supporting his decision to fire his service weapon as follows:

Several commands were being given that you can’t hear on my body camera for him to stop, exit the car, show his hands. And then at one point I backed up and I yelled at him a couple times, realized that he can’t hear me or figured he couldn’t hear me. And then he looked up — looked right at me and then he gunned the vehicle at me.

* * *

When I was running over, over the radio I heard — I heard more officers call out that they were arriving on scene so I knew they were coming up from behind and they couldn’t have known what was going on at this point you know how it was going to unfold. So they’re in the path of this vehicle and the driver and then he crashed so * * * I was worried he was going to smash into them. He was going to hit them. They weren’t going to see it coming.

(Tr. 86-87.)

{¶ 6} Ofc. Stockhausen did not fire his service weapon, but acknowledged that he had warned Hicks that he would shoot

[b]ecause [Hicks] was driving his car towards [Ofc.] Dodge and I knew that officers were responding and that they would be there fairly shortly so I suspected at the time that if he was to leave from that area there’s a highly likely chance that he would hit another officer that was responding as well, not to mention possibly other pedestrians that might have been walking around as well.

(Tr. 29-30.)

{¶ 7} Hicks was shot eight times in his torso and upper extremities. He lost control of his vehicle and crashed into a nearby building. After the vehicle crashed, Hicks crawled from the vehicle, wounded. Emergency medical treatment was administered on the scene, after which Hicks was placed under arrest and was transported to a hospital for further care. Officers later discovered a firearm on the floorboard of the Dodge Challenger and learned that the vehicle driven by Hicks had been stolen. Video footage of the incident was captured by the body cameras worn by Ofcs. Stockhausen and Dodge.

{¶ 8} Hicks survived his injuries, and on July 21, 2022, he was named in a five-count indictment. Count 1 charged Hicks with felonious assault in violation of R.C. 2903.11(A)(2), with a furthermore specification that the victim was a peace officer. As described in the indictment, Hicks was charged with attempting to harm Ofc. Dodge with a motor vehicle. Count 2 charged Hicks with receiving stolen property in violation of R.C. 2918.51(A) and pertained to the 2020 Dodge Challenger that Hicks was operating at the time of the incident. Count 3 charged Hicks with vandalism in violation of R.C. 2909.05(B)(2), with a furthermore specification that the value of the property or the amount of physical harm involved is $7,500 or more but less than $150,000. As described in the indictment, Hicks caused harm to property that was owned, leased, or controlled by a governmental entity: the police cruiser that he drove into while attempting to flee. Count 4 charged Hicks with criminal damaging or endangering in violation of R.C. 2909.06(A)(1), with a furthermore specification that the offense created a risk of physical harm to another and described that the damage was to a 2016 Ford Flex, located in the parking lot of the incident. Count 5 charged Hicks with improperly handling a firearm in a motor vehicle in violation of R.C. 2923.16(B), with a forfeiture specification.

{¶ 9} On November 7, 2022, Hicks filed a motion to suppress evidence of his conduct following the initial stop, arguing that Ofc. Stockhausen’s conduct amounted to an unlawful seizure that was made without probable cause to believe that Hicks had committed a crime or witnessed a crime being committed. Hicks further argued that Ofc. Dodge’s use of deadly force was unlawful and objectively unreasonable. Finally, Hicks sought to dismiss his criminal case "due to outrageous government misconduct." In support of this position, Hicks stated that Ofc. Dodge’s conduct was so egregious that it violated principles of fairness and shocked the universal sense of justice such that the government should be barred from invoking judicial process to obtain a conviction.

{¶ 10} The state opposed Hicks’s motion to dismiss, arguing that the responding officers had probable cause to stop Hicks’s vehicle for investigative purposes because he was observed leaving the area where shots were reportedly fired. The state further claimed that even if the initial stop and detention of Hicks was unlawful, the exclusionary rule would not apply to exclude evidence of Hicks’s independent criminal conduct. Lastly, the state asserted that the officer’s use of force was reasonable under the circumstances and that a claim of "outrageous government conduct" is not a legally viable way to dismiss a criminal indictment.

{¶ 11} On March 3, 2023, the trial court held a hearing to address Hicks’s motions. On March 9, 2023, the trial court issued a judgment entry granting Hicks’s motion to suppress and dismissing his case with prejudice. The entry pertinently provides:

Court finds the initial stop of the defendant’s vehicle coupled with the attempt to open the door of the defendant was a seizure lacking probable cause and violation of the [Fourth] Amendment; Motion to suppress is well taken and granted. Court further finds that the Garfield Heights Police Department created the situation that led to the subsequent events; Motion to dismiss is well taken and granted.

{¶ 12} The trial court’s judgment did not assess whether Ofc. Stockhausen possessed a reasonable, articulable suspicion of criminal activity to conduct an investigatory stop, nor did the trial court’s judgment address the reasonableness of Ofc. Dodge’s use of force.

{¶ 13} The state timely appealed from the trial court’s judgment, assigning two errors for our review.

1. The trial court erred in granting Hicks’s motion to dismiss based on the defense of "outrageous government conduct."

2. The trial court erred in granting Hicks’s motion to suppress.

II. Law and Analysis

A. Motion to Dismiss

{¶ 14} In the first assignment of error, the state argues that the trial court erred in granting Hicks’s motion to dismiss based on the defense of outrageous government conduct. The state contends that the defense is inapplicable to this case because (1) the government "did not create, manufacture, or assist in the criminal conduct that Hicks voluntarily engaged in," and (2) the government "did not coerce, force, or induce Hicks into committing any of the crimes he was charged with." The state maintains that by erroneously applying the doctrine of outrageous government conduct, the trial court did nothing but "incentivize and sanction violence and criminality as an acceptable response to perceived improper police conduct."

[1] {¶ 15} We review a trial court’s decision to dismiss an indictment de novo,...