Defense lawyer seeks concurrent sentences, claims state failed to protect victim
By TIM CARPENTER
Kansas Reflector
TOPEKA — Mickel Cherry interrupted his confession to smothering and sexually assaulting a child to ask a Topeka police detective to execute him.
Video of that October 2023 interrogation, recordings of questioning by other law enforcement officers and a series of letters written by the defendant while in custody at the Shawnee County Jail were presented Monday by the district attorney to build the foundation for sentencing Cherry to consecutive 25-year-to-life terms for the murder of 5-year-old Zoey Felix.
“Shoot me in my head,” Cherry urged Detective Cory Deedrick, hours after law enforcement descended on the Topeka crime scene and began undermining Cherry’s false allegation that a Hispanic man in black clothing attacked the girl.
“I never wanted to hurt her,” said Cherry, who tapped his forehead on a desk. “I wasn’t myself when it happened. I just want to f***ing die.”
In the jailhouse letters placed into evidence, Cherry asserted his mind was slipping deeper into a dark void. He sought family forgiveness for his actions. In hard-to-read script, he said he was preparing for his own death. He wrote that he was haunted by the voice of a child who had started referring to her part-time babysitter as an “uncle.”
“I still hear her voice calling me, ‘Why uncle?’ ” one of Cherry’s letters said.
Cherry, 27, avoided capital punishment by entering guilty pleas in late 2024 to first-degree felony murder and rape of the 63-pound child with a bubbly personality.
The remaining legal battle in the prosecution of Cherry centers on what minimum length of time must elapse before he could be considered for parole from a Kansas prison. The answer could come Tuesday from District Judge Jessica Heinen on the hearing’s second day.
The legal battle
The judge must decide whether Cherry received concurrent or consecutive “hard 25” sentences.
District Attorney Mike Kagay’s sentencing brief said there was no rigid blueprint for determining when consecutive sentencing was appropriate, but case law suggested it was acceptable when “not arbitrary or based on an error.”
“Kansas courts defer heavily to the sentencing judge’s discretion, especially when the record reflects heinous crimes or distinct criminal conduct justifying a consecutive sentence,” he said.
Defense attorney Peter Conley said records from the Texas foster care system showed Cherry’s abusive upbringing before and while placed in the Texas foster care system should be taken into account and allow for the sentences on the murder and rape charges to run at the same time.
Conley said the Kansas Department for Children and Families investigated Zoey’s welfare seven times but didn’t do what was necessary to place the girl in protective custody.
“The failures of these systems increased her vulnerability,” Conley said.
He said he attempted to subpoena a DCF records custodian to testify on Monday, but nobody from the state agency responded.
In a separate matter, the district attorney’s office denounced a presentencing brief filed by Conley that concluded Kagay’s office had directed DCF not to proceed with a child-in-need-of-care investigation into Zoey’s well-being.
Attorney Keith Henderson, on behalf of the district attorney, said Conley’s statement was “factually and legally inaccurate” and fell “far below the standard of candor and integrity expected of an officer of the court.”
“Defense counsels’ statements in that portion of their brief are dangerous and disingenuous,” wrote Henderson, who sought a correction. “They are unworthy of a member of the bar.”
In court, Conley said the statement in the defense brief needed to be clarified to say either the district attorney or law enforcement officers in Topeka were complicit in the decision not to proceed with a process that could have saved Zoey from harm.
Focusing on Zoey
Aimee Slusser, who described herself as a mentor to Zoey, said during a victim impact statement that she didn’t want squabbling about Cherry’s mental health challenges to be the focus of sentencing.
“I want everyone to remember who she was,” Slusser told the court. “This is about a little girl’s life.”
During the hearing, several people in the gallery wept while law enforcement officers and medical personnel presented evidence drawn from telephone records, interviews with witnesses and forensic examinations.
Cherry wore yellow jail coveralls and was shackled with chains that remained on despite the presence of six law enforcement officers in the courtroom. He periodically slumped forward to peer at the floor and tilted his head back to stare at ceiling lights. There were times when Cherry nodded his head as if agreeing with the prosecution.
Law enforcement narrated a triangulated set of surveillance videos taken from the perspective of a grocery store, fuel station and restaurant.
Witnesses filled in blanks of a five-hour period that began when Zoey’s father, Ezequiel Felix, entrusted her to Cherry’s care. One segment of the video captured Zoey and Cherry walking side-by-side. It ended with Cherry carrying the girl’s lifeless body, apparently from the two-tent homeless camp, to the gas station where the girl’s father worked.
Next to gasoline pumps, a good Samaritan and later a Topeka emergency crew responding to a 911 call attempted CPR. She was pronounced dead at Stormont Vail Health.
Cherry was questioned by Topeka officers at the scene, where a police body camera first recorded Cherry blaming a Hispanic man for harming the girl while she slept in a blue car. He claimed to have ran the man off. He asserted that he found Zoey not breathing inside the vehicle.
Cherry, who wasn’t wearing a shirt, was asked about a spot of blood that appeared on his stomach.
“I honestly don’t know,” he said. “I have a condition that sometimes I bleed from the belly button.”
He later admitted under questioning by police at the station that the story blaming an unknown assailant was a lie and his assault on Zoey occurred in a tent where homeless people had taken refuge. He said he suffocated the girl with a pillow.
“Something came over me and I did the unimaginable,” Cherry told Detective Deedrick. “Something I thought I’d never do.”