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GETTING IN HIS LICKS

Sixty-nine-year-old John Hickey would rather gamble on a prison term than admit to wrongdoing for breaking the nose of his wife's lover moments after discovering the two flagrante delicto. "Put one man on the jury," Hickey has said, "and there's no way they'll convict me." He'll get a chance to...
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Sixty-nine-year-old John Hickey would rather gamble on a prison term than admit to wrongdoing for breaking the nose of his wife's lover moments after discovering the two flagrante delicto. "Put one man on the jury," Hickey has said, "and there's no way they'll convict me."

He'll get a chance to test that theory February 29 in a Jefferson County courtroom. If found guilty as charged, Hickey will face a mandatory jail term of at least two years.

Hickey, a semi-retired machinist, appears ready to go through with a trial, despite an offer by prosecutors of probation in return for a guilty plea. "My client doesn't believe he's done anything wrong," says Denver attorney Jeff Fossum, while acknowledging that Hickey hit his wife's lover. "They're wasting the taxpayers' money. It never should have been filed. What we've got is a case where [the victim] didn't make it out of the bedroom window in time."

The incident occurred one evening in early June at Hickey's Arvada apartment. According to what neighbors told police, Hickey and his 49-year-old wife, Penny, had been separated for approximately two weeks when Hickey arrived at the apartment unexpectedly at about 7 p.m. According to a police report of the incident, 37-year-old Timothy Lake was performing oral sex on Penny Hickey when John Hickey entered the bedroom.

"He caught me--us--by surprise," says Lake. According to Lake, who had never met John Hickey, "a heavyset man" entered the bedroom, pulled him out of bed by his hair and proceeded to pummel him in the face.

Lake claims he never threw a punch. "I never even had a chance," he says. "Every time I was ready to swing, he laid into me." When Hickey was done with Lake, he allegedly slapped his wife and pushed his way past another woman who'd been sleeping on a sofa in the living room.

Lake was taken to a hospital, where he was treated for cuts and a broken nose.

When Arvada police caught up with Hickey a few hours later, he was far from remorseful, according to the police report. "Is the son of a bitch dead?" Hickey asked the officer who arrested him. "I wish I'd had a sledgehammer. If I had a gun, I would have killed him, my wife and you, if you had come into the apartment." After Hickey bonded out, Lake says, he and Penny Hickey were frightened to hear from a third party that Hickey had threatened to "finish the job he had started." They reported that alleged threat to police.

Because Lake suffered serious bodily injury (a broken nose), Hickey was charged with second-degree assault, a Class 4 felony that carries a mandatory two- to six-year prison term. But Fossum and fellow Hickey attorney Steven "Randy" Barnes contend their client was mischarged.

The state's assault statute allows an act to be prosecuted as a Class 6 felony if it was carried out in "the heat of passion." A Class 6 felony offers a judge more leeway in sentencing, but it can include up to eighteen months in prison.

"I can't think of a more classic heat-of-passion case than this," Barnes.
Although Assistant Jeffco DA Scott Storey says the seriousness of Lake's injuries has convinced him that the Class 4 felony charge is proper, he says he has twice offered Hickey a deal.

"We initially offered him the chance to go into our diversion program," Storey says. "It's under the family-violence intervention program that specifically deals with these kinds of issues. In his case, it would be two years of supervision and a deferred sentence." If Hickey were to successfully complete the program, he would have no record. And even if Hickey were to fail, Storey says, "he would be a likely candidate for probation."

When Hickey declined to participate in the diversion program, Storey says, he offered to allow him to plead guilty to a Class 6 felony, adding that "I wouldn't object to probation in this case." Storey says Hickey rejected that offer as well.

"I've been reasonable," the prosecutor says. "And now he's facing a mandatory sentence if convicted." (Storey and Hickey's attorneys all point out, however, that a jury could still choose to reject the more serious charge and convict Hickey of a Class 6 felony.)

Dropping the charges does not seem to be an option at this time. Although Penny Hickey and Lake both initially told police that they wished to press charges (John Hickey also was charged with domestic assault), Fossum says Penny Hickey is reconsidering whether she still wishes to do so. Lake, however, remains firm in his desire to go forward with the prosecution. "He hurt me pretty bad," he says, "and I lost a day of work." (Neither Penny nor John Hickey could be reached for comment.)

Lake says that he and Penny Hickey broke up about about a month after the incident. Fossum claims that the Hickeys are now back together.

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