Lead Opinion
Leonard C. Hodges was convicted of the malice murder of Kenneth Lee Mayes and sentenced to life in prison.
An anonymous telephone caller informed the police that he was driving through the Stephen Heard Cemetery in Elbert County and saw what he thought was a body. The caller sounded scared and refused to give his name. Upon investigating the call, the police discovered the dead body of Kenneth Lee Mayes in the cemetery. Mayes’ hands were bound behind his back with electrical tape and he was shot once in the chest. A .45 caliber shell casing was found nearby.
Mayes had been living in a trailer with Hodges. The police called on Hodges at the trailer, informed him that Mayes had been killed, and asked him if he would permit them to search the trailer for clues. Hodges gave his consent.
In searching the trailer, the police discovered a pair of Hodges’ boots, his .45 caliber pistol, and some electrical tape. The soles of the boots appeared to be similar to footprints left at the scene of the crime. The pistol smelled as if it had been fired recently. The electrical tape was different than the tape used to bind Mayes’ hands.
The police also found a will which had been handwritten by Hodges and signed by Mayes one week before his death. In the will, Mayes bequeathed all but one of his rings to Hodges.
Hodges allowed the police to take the items they found. The police asked Hodges if he would accompany them to the police station to answer some questions. He agreed to do so. He was “real cooperative.”
Hodges told the police that he spent much of the previous day with Mayes and that he last saw him at about 9:00 p.m. when he dropped him off at the trailer. He added that Mayes had gotten into trouble with some drug dealers and had been worried that they would harm him. He explained that his gun smelled like it had been fired because he
One of the officers, Det. Thompson, noticed that the tires on Hodges’ truck had a tread design which was similar to tire marks found at the cemetery. He took a Polaroid picture of the tread design. Returning to the cemetery, the detective compared the soles of Hodges’ boots and the photograph of Hodges’ tires with the impressions left at the scene of the crime. Upon making those comparisons, the detective became convinced that Hodges murdered Mayes. The time was approximately 6:00 p.m.
Although he knew that Hodges was at the police station answering questions, and although he had a radio, Det. Thompson did not immediately notify his fellow officers of his findings. Instead, he drove to the police station, arriving there about 7:30 p.m.
Det. Thompson immediately arrested Hodges and advised him of his Miranda rights. Until that time, Hodges had not been placed under arrest and, according to the police, he would not have been stopped if he attempted to leave the stationhouse. Upon being advised of his rights, Hodges invoked his right to counsel and all questioning ceased. Prior to his arrest, Hodges had been answering questions for approximately 40 minutes.
The police later learned that the night before Mayes’ body was discovered, Hodges and Mayes stopped at a convenience store; that Hodges went into the store to buy a roll of electrical tape while Mayes waited in the truck; and that unlike the tape that the police found in Hodges’ trailer, the tape which Hodges purchased was similar to the tape used to bind Mayes’ hands.
Based on forensic tests, the police concluded that the .45 shell casing found at the cemetery had come from Hodges’ pistol. They also concluded that Hodges was the anonymous caller who said he discovered Mayes’ body. Finally, the police found a handwritten note inside Mayes’ wallet. The note was signed by Mayes and read: “Leonard C. Hodges did it.”
1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of murder beyond a reasonable doubt. Jackson v. Virginia,
2. Hodges asserts the trial court erred in failing to suppress the statements he made to the police. In this regard, he argues that Det. Thompson had sufficient information to warrant Hodges’ arrest at 6:00 p.m; that the detective’s knowledge was imputed to the other police officers; and that, therefore, any statements made to the police after 6:00 p.m. should have been suppressed.
In effect, Hodges would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, 511 U. S._(114 SC 1526, 128 LE2d 293) (1994). This is so because Miranda was fashioned to redress “ ‘the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions’ ” when the questioning commenced. Id., 114 SC at 1529.
Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.
Id. at 1530. Thus, the proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest. See id. at 1529. See also Lobdell v. State,
Hodges contends he was in custody because the police took his boots, gun and electrical tape before they asked him to accompany them to the stationhouse. He argues that any reasonable person would believe he was under arrest under those circumstances. See Berkemer v. McCarty,
The police simply asked Hodges if he would go with them to the stationhouse so they could “talk better.” They did not demand that he accompany them. He went along willingly and cooperated fully. Moreover, Det. Thompson told Hodges that he was taking the items he found in the house for purposes of eliminating him as a suspect. A reasonable person would not believe he had been arrested under these circumstances. See generally Hardeman v. State,
3. Over Hodges’ objection, a witness was permitted to testify that seven or eight years previously, Hodges told him that if he were a “hit man,” he would bind his victim’s hands behind his back with wire or tape, put him on his knees and shoot him with a “high-powered weapon.”
In Maxwell v. State,
As in Maxwell, the statement made by Hodges did not concern the victim; but, unlike Maxwell, the victim was killed in the manner described by Hodges. Thus, the statement in this case shed light on Hodges’ course of conduct, plan, scheme or bent of mind. See Barnes v. State,
4. A defense witness was allowed to testify that on more than ten occasions she saw tape marks and rope burns on Mayes’ wrists and that when she asked Mayes about the marks he explained that he was having “kinky” sex with Diane Hopkins, a “rough lady biker” who tied him up. During an offer of proof, the witness testified that on several occasions she saw Hopkins get mad and threaten to kill Mayes. However, the trial court sustained the state’s hearsay objection to the proffered testimony. Hodges contends the witness should have been permitted to testify that Hopkins threatened to kill Mayes. We agree.
Evidence that Hopkins threatened to kill Mayes was not hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). The proffered testimony was not offered to prove the truth of the matter asserted therein. Indeed, the statement contained no factual predicate; it was simply a verbal act demonstrating ill will and animosity on the part of Diane Hopkins toward Mayes. Perry v. State, 255, Ga. 490, 493 (4) (
Citing Neal v. State,
In this case, unlike Neal, defendant proffered evidence which pointed to the culpability of a specific person, Diane Hopkins. Furthermore, the evidence does more than cast a bare suspicion on Hopkins. Cf. Bradford v. State,
Hodges’ sole defense was that someone else murdered Mayes. The proffered evidence raises the inference that Hopkins murdered Mayes more probable than the inference would have been in the absence of the proffered evidence. Henderson v. State,
5. A previous jury mistried the case and Hodges asserts the trial court should have allowed a member of that jury to testify that during deliberations an electrical plug was discovered in Hodges’ boot. According to Hodges, the juror’s testimony would show that Hodges could not have worn the boot on the night of the murder and that the state’s expert could not have examined the boot carefully. The value of this testimony was slight, at best, and outweighed by its potential for prejudice. We find no error.
Judgment affirmed.
Notes
The victim was murdered between May 29, 1993 and May 30, 1993. Hodges was indicted on July 27, 1993, tried on August 18-20, 1994, and convicted and sentenced on August 20, 1994. His timely filed motion for new trial was denied on February 28, 1995, and his notice of appeal was filed on March 17, 1995. The case was docketed in this Court on April 4, 1995, and orally argued on July 10, 1995.
Dissenting Opinion
dissenting.
I cannot agree that Hodges’ statement of eight years earlier regarding how he would kill someone if he were a hit man is relevant; nor can I agree that excluding relevant evidence that supports Hodges’ sole defense is harmless error. Therefore, I dissent.
1. The majority concludes that Hodges’ statement regarding how he would kill someone if he were a hit man is relevant to “Hodges’ course of conduct, plan, scheme or bent of mind.”
Finally, the majority’s reliance upon Barnes v. State
2. I agree with the majority that it was error to exclude the testimony of Amber
The majority’s reliance on harmless error, however, is baffling. Hodges had one defense and this testimony supported that defense. The state’s theory of how Hodges committed the murder was barely plausible and the evidence of Hodges’ guilt was far from overwhelming. For example, the tire and boot prints found at the scene had no uniquely identifying features and could have been made by numerous other tires or boots. Additionally, far from “concluding” that Hodges was the anonymous caller who discovered the body, the dispatcher testified that “I’m not saying that was [Hodges],” but only that the voice was “familiar.” Finally, the majority’s view of the record is belied by the fact that a previous jury failed to agree on a verdict and a mistrial was declared.
I would reverse based on these two prejudicial errors. I am authorized to state that Justice Sears joins in this dissent.
Majority op. at 873.
Farley v. State,
The state argues by rote that this evidence was also relevant to motive and intent. The statement, however, cannot be connected to motive because the state admitted that it did not attempt to prove motive. Nor does the statement tend to illuminate Hodges’ intent to kill where Hodges has not raised a defense of accident or justification.
Perry v. State,