Hodges v. State

• Court: Tennessee Court of Criminal Appeals
• Writing for the Court: DWYER
• Citation: Hodges v. State, 491 S.W.2d 624 (Tenn. Crim. App. 1972)
• Decision Date: 31 July 1972
• Parties: Isadore HODGES, Jr., and Andrew Lewis, Jr., Plaintiffs in Error. v. STATE of Tennessee, Defendant in Error.

Page 624

491 S.W.2d 624

Isadore HODGES, Jr., and Andrew Lewis, Jr., Plaintiffs in Error. v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 31, 1972.

On Petition to Rehear Jan. 12, 1973 Certiorari Denied by Supreme Court March 5, 1973.

Hugh W. Stanton, Sr., Memphis, for plaintiffs in error.

David M. Pack, Atty. Gen., Phillip W. Brooks, Asst. Atty. Gen., Nashville, Thomas F. Graves, Asst. Dist. Atty. Gen., Memphis, for defendant in error.

DWYER, Judge.

OPINION

From a judgment imposed on a jury's verdict of guilty of murder in the perpetration of rape, with a sentence of death by electrocution, the two defendants at the trial through the public defender have seasonably perfected this appeal.

Defendants primarily urge here three assignments of error: the evidence does not support the verdicts; the trial court erred in not granting a severance; and lastly the defendant Hodges was prejudiced by not being allowed to plead guilty. Ancillary to these assignments on appeal we find in the motions for new trial grounds which deal with a search question, the constitutionality of the death sentence, and the court's statement to the jury on voir dire about the death sentence if there were no mitigating circumstances.

The facts from our review of this record reflect one of the most revolting crimes that has been our unfortunate task to review in better than twenty years devotion to our criminal jurisprudence. However, odious individuals are not governed by one law and the remaining citizens by another; all are protected by the same general law of the land. See Vanzant v. Waddel, 10 Tenn. 260, 270.

With the above rule in mind we will narrate the facts as we have found them from this voluminous record. See Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692.

On Sunday morning June 14, 1970, the body of the decedent, a woman of about sixty years of age, was found in an abandoned church on Turley Street in the City of Memphis. One eye had been knocked from its socket, the entire face was covered with tears, abrasions and contusions. All of the upper portion of the torso was in like condition. Her nose was broken, as was the left jaw, the left collar bone, and six ribs on the left side, consistent with having been stomped and hit with a brick. A large laceration was found in the wall of the vagina vault that the medical examiner related was consistent with being inflicted by a kick used to strike a large quart bottle which was found inserted in the vagina. This would caused profuse internal as well as external bleeding. The autopsy revealed to sperm. Death was caused by bruises to the surface of the brain. There was a blood level alcohol content of .27 percent, which reflected decedent was under the influence.

There were at the scene drag marks from the street to the inside of the church. Noted alongside of these drag marks were footprints resembling boots, with cleat marks also apparent. On the deceased's abdomen such a footprint was discernible.

There were six female witnesses who testified they had seen on Saturday night the two defendants together on Beale Street, a new blocks removed from the church. The proof developed that the two defendants accosted and grabbed two members of this group who broke away and entered a store. These witnesses later observed the decedent being accosted by the defendants, and one related that she saw decedent on the ground in front of the church. They all testified they noted the two defendants swing the decedent by her arms and feet and throw her on the steps of the church. The witnesses fled when viewing this event. They related that later the same evening they saw the two defendants in a night club, and noted that they had changed clothing.

The defendants were arrested the next day on Sunday, June 14, 1970, and on June 15, gave oral statements incriminating each other. They were then confronted with each other and both gave written statements inculpating themselves in this heinous crime. At the time of the oral statements Lewis stated he had the same undershorts on that he was wearing at the time of the crime. These shorts reflected a spot of blood identified as human in origin. A search of Hodges' room reflected articles of clothing, consisting of muddy boots with cleats and a shirt, trousers, and shorts which were spotted with human blood. In their statements each defendant states the other had sexual intercourse with the decedent. Hodges' statement admits his own attempted intercourse. Lewis' statement admits his own intercourse. Each stated the other put the bottle in deceased's vagina.

We will discuss first the assignment of error contending that the trial court erred in denying a severance. This is a matter of discretion for the trial court and that discretion will not be disturbed unless we find from the evidence that it was abused. See Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1, 6. Defendants predicate this assignment principally upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The argument notes that Lewis testified and Hodges did not. They then reason that Lewis was deprived of his right of confrontation through cross-examination of Hodges. We note that both gave incriminating statements orally and apart and then written incriminating statements in each other's presence. The learned trial judge held out of the presence of the jury hearings on the admissibility of these statements. The officers testified that all of the Miranda admonitions were given to the defendants and that after a full awareness and acknowledgment of such the defendants made statements. The defendants testified and denied the statements contending force, threats and coercion were used upon them. The learned trial judge found the confessions were made and taken in a full compliance of Miranda. His findings hereon are given the weight of a jury's verdict. See Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754, 756. We see no reason to disturb this ruling and find it is supported by the evidence. The statements are incriminating and accusatory of one defendant to the other's benefit. In short, they each try to alleviate their personal culpability to the other's detriment. The trial court found the statements competent to go to the jury, and required that any reference to Lewis in Hodges' statement was to be omitted and blank substituted and the same regarding Lewis' statement relating to Hodges.

The trial judge instructed the jury as to receipt of these confessions that the statement of each defendant should not be considered as to the other defendant. Unlike in Bruton and its progeny, here both defendants confessed and implicated themselves in the crime. In other words, prior to Lewis testifying his statement as well as Hodges' statement had been submitted to the jury. We hold therefore that Lewis' assignment is outside the ambit of Bruton v. United States, supra. It is true that Hodges did not testify and Lewis was not able to cross-examine him. But under the facts and circumstances where both had incriminated themselves, the admission of the non-testifying codefendant's statement, purged of Lewis' name, was not error. In Bruton the devastating effect of Evans' statement to Bruton's cause was paramount, because there was minimal other evidence to implicate Bruton. But here the effect of Hodges' statement on Lewis' cause was seriously watered down by Lewis' own statement. See Levinson v. United States, 6 Cir., 405 F.2d 971, 987, 988, cert. denied, 395 U.S. 958, 89...