Hodges v. Com.

Decision Date07 June 2005
Docket NumberRecord No. 0120-04-2.
Citation45 Va. App. 735,613 S.E.2d 834
CourtVirginia Supreme Court
PartiesKenneth Alonzo HODGES, II v. COMMONWEALTH of Virginia.

Frank K. Friedman (Glenn L. Berger; Woods Rogers PLC; Berger & Thornhill, on briefs), Roanoke, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ELDER, Judge.

Kenneth Alonzo Hodges, II (appellant), appeals from his jury trial convictions for murder and use of a firearm in the commission of murder. On appeal, he contends the trial court erroneously (1) admitted certain out-of-court statements in violation of the Confrontation Clause and Virginia's hearsay rule; (2) admitted unduly suggestive and tainted out-of-court and in-court identifications; (3) denied his motions for mistrial based on prosecutorial misconduct; and (4) concluded the evidence was sufficient to support his convictions. We hold the trial court's admissions of the challenged statements, only some of which were admitted for their truth, and the eyewitness identifications did not constitute reversible error. We hold further that the trial court did not abuse its discretion in denying appellant's motions for mistrial. Finally, we conclude the circumstantial evidence was sufficient to support appellant's convictions. Thus, we affirm.

I. BACKGROUND

On Sunday, September 1, 2002, Shelly Marie Jackson (the victim) failed to return home as scheduled. On Wednesday, September 4, 2002, police found Jackson's body on property owned by appellant's father. Evidence adduced at trial established the following:

On March 24, 2002, Jackson reported a burglary at her apartment. Police Lieutenant Brian Lovelace, who investigated the report, received "information in from other people that" Jackson had had a gun and a safe taken in the burglary and that Jackson was distributing marijuana for appellant from her apartment. As a result, Lt. Lovelace also was investigating appellant. Lt. Lovelace ultimately recovered a safe and a gun from a Kenneth Edmunds, who made a statement to Lt. Lovelace. On March 28, 2002, Jackson denied Lovelace's assertions that she was selling marijuana and that a safe and firearm had been taken in the burglary, but she gave consent for a search of her apartment, which yielded marijuana.

On March 29, 2002, police executed a search warrant for appellant's residence. During that search, police found half a box of 9 millimeter ammunition in appellant's house under the bed in the master bedroom.

On April 17, 2002, Lt. Lovelace advised Jackson that he had enough evidence, including the statement from Edmunds, to charge her even without her own admission. Jackson then made a written statement1 in which she said she had been selling marijuana for appellant and that he had supplied her with a safe and a gun to keep in her apartment.

Lt. Lovelace then obtained warrants charging Jackson with distributing marijuana and charging appellant with conspiracy to distribute marijuana. On April 18, 2002, appellant was arrested on that warrant and released. One of the conditions of his bond was that he have no contact with Jackson.

Sometime before appellant's June 24, 2002 preliminary hearing on the drug conspiracy charge, Lt. Lovelace talked to Jackson about "turning state's evidence" against appellant. The day prior to the preliminary hearing, either appellant or his wife, Shanetta, "called [Jackson] and said they needed to meet." Jackson's cousin, Shelly Jones, accompanied Jackson to Cody's Store, where Jackson said "she was going to meet [appellant] to talk to him about court."2 When Jackson and Jones arrived at Cody's Store, Jones waited in the car while Jackson climbed into appellant's truck and spoke to his wife. Appellant was not in the truck, but before Jackson completed her conversation with Shanetta, Jones saw appellant pacing back and forth on a nearby sidewalk. Also on June 23, 2002, Jackson apparently signed a statement, written in someone else's handwriting, saying she implicated appellant in her earlier confession because the police pressured her into doing so and that what she said about appellant was not true.

On June 24, 2002, Jackson appeared at appellant's preliminary hearing with her attorney, Tracy Quackenbush, but chose not to testify. As a result, some of the charges against appellant were dismissed. However, after Jackson's preliminary hearing, Lt. Lovelace thought Jackson might change her mind about testifying against appellant. Lt. Lovelace said that, as a result, the Commonwealth planned to indict appellant at the September 2002 term of the grand jury.

Prior to any indictment, Attorney Quackenbush received a copy of the statement Jackson had made to Lt. Lovelace on April 17, 2002. Quackenbush also received a call from the Commonwealth's Attorney's office indicating that "if [Jackson] did not cooperate[,]... the Commonwealth would be seeking a jury trial and would plan to bring on conspiracy charges and possibly another charge." On Friday, August 30, 2002, Quackenbush advised Jackson of the risks of not testifying about the contents of her confession and said "she should seriously consider cooperating." Quackenbush reported the conversation to the Commonwealth's Attorney, but she never received a final answer from Jackson about what Jackson intended to do.

That evening, Jackson's brother answered the phone at Jackson's mother's house. Appellant's wife was on the phone and wanted to speak to Jackson, but Jackson was not there.

On Saturday, August 31, 2002, Jackson told her cousin, Missy Jones, she "was going to" testify at appellant's trial and "that she didn't really want to testify, but she had to."3

At 11:00 a.m. on Sunday, September 1, 2002, appellant used his cell phone to call Jackson at the residence she shared with her sister, Angela Jackson. Immediately thereafter, Jackson dressed herself and her two-year-old daughter, and they drove away from the residence in Jackson's car at "close to eleven-thirty." That same morning, Jackson telephoned her friend, Farah Canada, and asked Canada to watch her daughter, as Canada often did. At around 12:00 noon, Jackson dropped her daughter off at Canada's and said she was going to meet appellant "down the dirt road past [appellant's] house."4 Jackson said "she would be right back" and drove off in her car. Jackson never returned.

Later that same day, police in Reidsville, North Carolina, located Jackson's car at a Ramada Inn. On Monday, September 3, 2002, "it was still positioned in the same place." The location where the car was found was about 58 miles from where Jackson's body later was found and took about one hour seven minutes to reach by car.

On the evening of Monday, September 2, 2002, Angela Jackson reported her sister's disappearance to the police. The investigator who took Angela Jackson's statement retrieved a particular telephone number from the home's caller i.d. device. When the investigator dialed the number, she reached appellant on his cellular telephone. Appellant told the investigator "he kept that phone with him all the time" "unless it's on the charger inside the home."

On Wednesday, September 4, 2002, the police looked for Shelly Jackson's body on a piece of land owned by appellant's parents on which appellant lived. As they walked down a path in that area, they saw lying on the ground "a white plastic piece that a lady would use in her hair." In the same "little area," they found a pocketknife, a dark stain later identified as blood, and an earring later identified as one Jackson had been wearing when she left her residence on Sunday, September 1, 2002. Nearby, they located Jackson's body. On the ground within a six-to-eight-foot radius of Jackson's body, the police found three Winchester 9 millimeter caliber shell casings. It was later determined that Jackson died of gunshot wounds to her head and right thigh. The medical examiner was unable to determine what type of gun caused Jackson's injuries. The precise date and time of Jackson's death also were not determinable.

At the time of Jackson's death, she was pregnant. The father of her unborn child was a man named Roger Owen. Owen was "staying back and forth with his father in North Carolina and his mother... in South Boston[, Virginia]." Police interviewed Owen on at least two occasions after Jackson's death, but Investigator Sheldon Jennings, who spoke to him on one of those occasions, testified, "I don't think he was a suspect."

After Jackson's body was found on Wednesday, September 4, 2002, Halifax investigators traveled to the Ramada Inn in Reidsville, North Carolina, where Jackson's car had been found. Adjacent to the Ramada Inn was a Chevron gas station and convenience store. The investigators spoke to cashier Mohammed Al-Rammal, who selected appellant's photograph from a photo array and said appellant had come into the store on Sunday, September 1, 2002, between about 2:00 and 4:00 p.m.5 At trial, Al-Rammal again identified appellant as a person who had come into the store on the afternoon of Sunday, September 1, 2002. Appellant attempted to impeach Al-Rammal's testimony with a video surveillance tape from the convenience store, but the time and date stamps on that tape indicated the tape for September 1, 2002, "start[ed] at five" p.m. and did not show what happened in the store between noon and 4:00 p.m.

DNA analysis of blood found on the ground at the murder scene indicated that Jackson could not be eliminated as having been a contributor to the DNA. The hair pick bore evidence of Jackson's DNA and the DNA of a third party other than appellant. DNA found on the gear shift of Jackson's car, determined not to belong to Jackson, also did not belong to appellant. DNA found under Jackson's fingernails...

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