Mickel Cherry charged with rape, murder in Zoey Felix death. DA could pursue death penalty

Mickel Cherry has been criminally charged in the death of Topeka 5-year-old Zoey Felix, and prosecutors could seek the death penalty.

Shawnee County District Court records released Thursday show Cherry is charged with capital murder, first-degree murder and rape. He is being held in the Shawnee County jail on a $2 million bond. The court has set a scheduling conference for Oct. 12.

The capital murder charge alleges Cherry "feloniously, intentionally and with premeditation" killed Zoey "in the commission of, or subsequent to" a rape or other sex crime. The rape charge alleges Cherry did "engage in sexual intercourse with a child under 14 years of age."

Kansas sentencing laws allow the death penalty for capital murder convictions. Prosecutors must file a written notice if they intend to seek capital punishment.

District Attorney Mike Kagay hasn't filed such a notice with the court, at least not yet.

"That's not a decision we make right now," he said.

DA Mike Kagay to make decision after preliminary hearing

"We would do that — again, if we were going to seek the death penalty — after the conclusion of the preliminary hearing," he said.

The charging of capital murder and first-degree murder gives a jurors options of which to choose based on the evidence, were they to convict Cherry.

"Depending on how the evidence comes out and how the evidence is presented and in which way the jury wants to take it," Kagay said. "Ultimately, that's a question for them to decide. Felony murder is structured a little bit differently than capital murder is."

Kagay said he is pursuing the capital murder charge "because it qualifies; it seemed appropriate given the circumstances, given the facts of this case."

Kansas has not executed a prisoner since 1965. The death penalty statute was struck down in 1972, then reinstated with a new law in 1994. While multiple defendants have been sentenced to death since then, none have been executed, which would be done in Lansing Correctional Facility's lethal injection chamber.

It is unclear if Gov. Laura Kelly, who wants to abolish the death penalty, could or would stop the Kansas Department of Corrections under her administration from executing prisoners.

The Topeka community has been particularly outraged by Zoey's death, which has garnered significant media coverage. Kansas law would allow a defense attorney to make a motion to transfer the prosecution to another county if the court were to find that Shawnee County has "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county."

Kagay maintained that Cherry would get a fair trial in Shawnee County.

"I think I'm taking those steps right now," he said. "I think we take those steps every time we file charges. The defendant is presumed innocent unless and until proven guilty in court of law."

Mark Manna, the chief attorney at the Kansas Death Penalty Defense Unit, said his office will be appointed to represent Cherry. He declined to comment further.

Holly Felix's plea agreement barred contact with victims

Zoey's mother, Holly Felix, is on probation for aggravated battery and DUI, with court records indicating Zoey was the victim.

This summer, Shawnee County District Court Judge Jason E. Geier suspended Holly Felix's prison sentence and imposed 18 months of probation after Kagay's office gave her a plea deal that dropped four of six charges.

One of the terms of the plea deal was that Holly Felix wasn't allowed to have contact with the victims, but it was unclear from the court documents if that explicitly included Zoey.

The probation order simply copied "you will not have contact with victims" from the district court's standard conditions of probations, while the plea agreement specifically named Zoey's father, Ezequiel Felix Guerrero, and her half-sister, Katelenn, but made no mention of Zoey.

Kagay declined to answer whether his office's plea deal barred Holly Felix from having custody of Zoey or contacting her.

"We don't name our victims; I'll let you figure that out," Kagay said.

Neighbors have alleged that Holly Felix evicted her 5-year-old daughter, the girl's father, her teenage sister and Cherry from the house where they lived together in the 2200 block of S.E. Market, which was disconnected from utilities around the same time. The expelled group then lived in a nearby homeless camp.

Holly Felix, Felix-Guerrero and Katelenn Marie Cain are all listed on the witness list for Cherry's case.

Cherry and Zoey were acquaintances, Kagay said, but had no other relationship.

Kansas DCF continues review of Zoey Felix case

The Department for Children and Families has not provided information to the public on reports by neighbors, police and possibly school social workers. The agency first must determine there was abuse or neglect.

DCF spokesperson Mike Deines said the filing of criminal charges does not change the status of the agency's review of the case.

It is unclear if Zoey's parents could also face criminal charges.

Kagay said he is not aware of an investigation into her parents.

"But even if I was, I wouldn't be able to comment on it," he said.

And it appears the immediate criminal investigation is wrapping up.

"I think the investigation to the murder and rape of this 5-year-old girl is fairly complete," Kagay said. "TPD did an excellent job of allocating I would say every possible resource into making sure this investigation was done thoroughly and quickly and I appreciate their efforts there."

Still, Kagay said, he would consider charging other people in connection to Zoey's death if police made the case to do so.

"I'm willing to consider any actionable investigation that's brought to me," Kagay said. "It's not my job to go out there and investigate the cases. That's a law enforcement role; law enforcement officers, TPD, sheriff's office, etc.

"My job is to review those investigations when they're brought to me and make the appropriate charging decision."

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Mickel Cherry charged with capital murder and child rape of Zoey Felix