Hodges v. Com.

• Decision Date: 15 September 2006
• Docket Number: Record No. 051386.
• Citation: 634 S.E.2d 680
• Parties: Kenneth Alonzo HODGES, II, v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

634 S.E.2d 680

Kenneth Alonzo HODGES, II, v. COMMONWEALTH of Virginia.

Record No. 051386.

Supreme Court of Virginia.

September 15, 2006.

COPYRIGHT MATERIAL OMITTED

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

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice G. STEVEN AGEE.

Kenneth Alonzo Hodges, II, appeals from the judgment of the Court of Appeals of Virginia, which affirmed his convictions for first-degree murder, in violation of Code § 18.2-32, and use of a firearm while in the commission of a felony, in violation of Code § 18.2-53.1. Hodges asserts that the Court of Appeals erred in holding that the trial court did not commit reversible error by admitting into evidence certain statements made by the victim, Shelly Marie Jackson, prior to her death. Hodges argues that the admission of these statements violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Virginia's hearsay rules. For the reasons set forth below, we will reverse the judgment of the Court of Appeals.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the trial court. "We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004); see also Burns v. Commonwealth, 261 Va. 307, 313-14, 541 S.E.2d 872, 877-78, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001).

The evidence at trial showed that during the investigation of a burglary at Jackson's apartment, Lieutenant Brian K. Lovelace of the South Boston Police Department uncovered evidence that Jackson was selling marijuana. Jackson was arrested for the distribution of marijuana and, while being questioned by police, wrote a confession ("Jackson's Written Statement"), dated April 17, 2002, in which she claimed that Hodges approached her about selling marijuana for him and provided her with the marijuana she sold.

Hodges was arrested on a charge of conspiracy to distribute marijuana on April 18, 2002,¹ but released on bond, which required that he have no contact with Jackson.

Shelly Jones ("Shelly"²), Jackson's cousin, testified that on the day before Hodges' preliminary hearing on the conspiracy charge, Jackson asked Shelly to accompany her to Cody Store, a local store, because she needed "to talk to [Hodges] about court." According to Shelly, when they arrived at Cody Store, Jackson "went over and . . . started talking" to Hodges' wife. Shelly saw Hodges "walking up and down . . . on the other side of the street" while Jackson and Hodges' wife were talking, but she did not see Hodges and Jackson speak to each other.

Lt. Lovelace testified that at Hodges' preliminary hearing on June 24, 2002, Jackson "decided at that time she wasn't going to testify" and that some of the charges against Hodges were dismissed. However, Lt. Lovelace further testified that he intended to reinstate those charges for the September 2002 grand jury term because he believed Jackson would change her mind about testifying against Hodges.

On August 30, 2002, Jackson met with her attorney regarding the distribution of marijuana charge still pending against her. Jackson's attorney recommended that Jackson cooperate with the Commonwealth's Attorney by testifying against Hodges in order to avoid additional charges, incarceration, or losing custody of her young daughter. Jackson's attorney testified that Jackson did not indicate whether she would testify. That same day, Hodges' wife telephoned the home of Jackson's mother to speak with Jackson, but Jackson was not there to receive the call.

Another of Jackson's cousins, Missy Jones ("Missy"), testified that on August 31, 2002, Jackson told her that although "she didn't really want to testify [against Hodges at his trial,] she had to."

Jackson's sister, Angela Jackson, testified that at 11 a.m. the next day, September 1, 2002, Jackson received a telephone call at the apartment where she and Angela resided. Angela recognized the telephone number listed on the caller identification as Hodges' cellular telephone number.³ Immediately after receiving the telephone call, Jackson left the apartment with her daughter.

Jackson's friend and babysitter, Farah F. Canada, testified that "about twelve noon," Jackson arrived at Canada's residence in order to leave her daughter with Canada. Canada further testified that Jackson said she was going to "meet [Hodges, but] would be right back." This was the last time Jackson was seen alive. Canada also testified that she watched Jackson's daughter on earlier occasions while Jackson said she was meeting Hodges "down the dirt road . . . past his house."

Angela reported to police her sister was missing on the evening of September 2, 2002. On September 4, 2002, the police discovered Jackson's body on rural property in Halifax County owned by Hodges' parents. The medical examiner testified that Jackson had sustained four gunshot wounds, but was not able to determine what type of gun caused the injuries, nor was she able to establish the precise date or time of Jackson's death.

Police also discovered the car Jackson had driven after leaving Canada's home in the parking lot of a Ramada Inn in Reidsville, North Carolina. A cashier at a gas station adjacent to the Ramada Inn testified that Hodges was in his store the afternoon of September 1, 2002.

At trial, the Commonwealth presented evidence from an expert in forensic biology who performed DNA analysis on items retrieved from the crime scene. Hodges "could not be eliminated" as one of the contributors to DNA located on a knife found at the scene of the crime. The Commonwealth also presented evidence regarding Hodges' cellular telephone use on the afternoon of September 1, 2002. Numerous calls were placed between Hodges' cellular telephone and his home telephone and his wife's cellular telephone. Telephone records indicated that the earliest calls were routed through "South Boston area" telephone switches, while later telephone calls were routed through Danville, then Henderson, North Carolina, and later Reidsville, North Carolina.

At trial, the Commonwealth introduced into evidence statements made by Jackson prior to her death to support its theory that Hodges killed Jackson in order to prevent her from testifying against him on the marijuana conspiracy charge. Over Hodges' objection, Lt. Lovelace was permitted to read Jackson's Written Statement to the jury. During cross-examination of Lt. Lovelace, Hodges introduced into evidence a written statement dated June 23, 2002, the date of the Cody Store meeting, which purportedly bore Jackson's signature, and stated that Jackson's Written Statement implicating Hodges in the sale of marijuana was "false[]" and made only because of police pressure. Missy, Shelly, and Canada were each permitted to testify regarding the statements Jackson made regarding her meetings with Hodges prior to her disappearance, her decision to testify against Hodges, and about her intended meeting with Hodges on the day of her disappearance.

Twice during its closing argument, the Commonwealth referred generally to Jackson's statements. First, the Commonwealth contended the statements were "direct evidence" from Jackson "to the extent that she is present to argue for herself." Later, the Commonwealth argued that Jackson's statements were "direct evidence" in the case against Hodges and "Shelly Jackson is saying things from the grave as it were."

A jury found Hodges guilty of first-degree murder and fixed his punishment at 32 years' imprisonment. The jury also convicted Hodges of use of a firearm while committing or attempting to commit murder, for which they fixed his punishment at three years' imprisonment. The trial court entered judgment against Hodges in accordance with the jury's verdict.

On appeal to the Court of Appeals, Hodges contended, inter alia, that the admission of each statement purportedly made by Jackson was reversible error. The Court of Appeals affirmed Hodges' convictions, holding that the admission of each challenged statement was either proper or did not constitute reversible error.⁴ Hodges v. Commonwealth, 45 Va.App. 735, 613 S.E.2d 834 (2005).

II. ANALYSIS

On appeal to this Court, Hodges first contends the admission of Jackson's Written Statement violated the Confrontation Clause and Virginia's hearsay rules. Hodges also contends the Commonwealth should not have been permitted to introduce Jackson's oral statements to Missy, Shelly, and Canada because these statements were inadmissible hearsay and their admission also violated the Confrontation Clause. Hodges further asserts the trial court should have given a limiting instruction that Missy's testimony was not admitted for the truth of the matter asserted. Lastly, Hodges contends the Court of Appeals erred in holding that the trial court committed harmless error when it improperly admitted Canada's testimony about Jackson's statements about meeting with Hodges prior to September 2002.

A. Jackson's Written Statement

Hodges filed a motion in limine to exclude Jackson's Written Statement, which the trial court denied because

the purpose of offering this evidence or this statement is not to show the truth or falsity of her description or Ms. Jackson's description of Mr. Hodges as having been one who is involved with her in the drug offenses but rather to show the motive for the killing of Ms. Jackson.

The trial court concluded the admission of Jackson's Written Statement did not "violate[] the Defendant's constitutional right to confront witnesses against him and [is not admitted] for...