Hodges v. State

• Decision Date: 29 April 2005
• Docket Number: CR-03-1461.
• Citation: 926 So.2d 1060
• Parties: Richard L. HODGES v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

926 So.2d 1060

Richard L. HODGES v. STATE of Alabama.

CR-03-1461.

Court of Criminal Appeals of Alabama.

April 29, 2005.

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Booker T. Forte, Jr., Tuscaloosa, for appellant.

Troy King, atty. gen., and Michael B. Billingsley and Marc A. Starrett, asst. attys. gen., for appellee.

SHAW, Judge.

Richard L. Hodges was convicted of murder made capital because it was committed during the course of a robbery, a violation of § 13A-5-40(a)(2), Ala.Code 1975, and of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975. He was sentenced to life imprisonment without the possibility of parole for the capital-murder conviction and to 25 years' imprisonment for the robbery conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated the following. Between 10:00 a.m. and 11:00 a.m. on the morning of September 1, 2000, Hodges and his codefendant, Kendrick Thomas, were at Hodges's residence in Nicholsville. Thomas had a pistol with him, and the two discussed committing a robbery. Hodges stated that he knew someone they could rob. Hodges then took Thomas's pistol and walked across the street to the home of his neighbor, 67-year-old Edward Phillips. Thomas followed. Hodges was apparently angry with Phillips for allegedly making derogatory comments about his mother. Hodges knocked on Phillips's front door and, after a brief conversation, shot Phillips three times. Thomas then took Phillips's wallet from his pants pocket and the two returned to Hodges's residence, where they split $200 in cash they found in the wallet. Thomas then threw the pistol and the wallet into the woods behind Hodges's residence.

Phillips's body was discovered by his son late in the afternoon on September 1, 2000, and the Marengo County Sheriff's Department as well as the Alabama Bureau of Investigation ("ABI") were notified and began investigating. ABI Agent Johnny Tubbs was one of the officers at the scene. During his investigation at the scene, Agent Tubbs learned that Hodges lived across the street from Phillips, and he told Hodges that he wanted to speak with him. According to Agent Tubbs, Hodges stated that he did not want to stay in the area near the dead body, but that he would speak with Agent Tubbs at another location. Agent Tubbs and Hodges then agreed to meet at the Marengo County Sheriff's Department later that night. A Marengo County sheriff's deputy transported Hodges to the sheriff's department later that evening, but Agent Tubbs was still at the scene investigating and was unable to speak with Hodges.¹ Hodges was then taken home by another deputy, but was asked to return to the sheriff's department the following day. The following afternoon, on September 2, 2000, Hodges returned to the sheriff's department and spoke with Agent Tubbs, at which time Hodges confessed to the crime. Following Hodges's confession, law-enforcement officials arrested Thomas, who also gave a full confession.² After his confession, Thomas took law-enforcement officials to the woods behind Hodges's residence and showed them where he had disposed of the wallet and the pistol.

I.

Hodges contends that the record on appeal is incomplete and that, therefore, he is entitled to a new trial. He argues that the record does not contain a transcript of the preliminary hearing conducted on February 9, 2001, and does not contain a discussion between his attorney and the trial court that occurred during the trial regarding the failure of two of Hodges's witnesses, Dr. Catherine Boyer and Inez McDaniel, to appear for trial. According to Hodges, absent a transcript of these proceedings, this Court cannot adequately review his claims on appeal.

After the record was submitted on appeal, Hodges filed a motion to supplement the record with the transcripts of hearings he said had been conducted on February 9, 2001, August 8, 2002, October 3, 2003, October 16, 2003, January 27, 2004, and February 13, 2004. The trial court denied the motion, stating that the court reporter had stated that she had nothing with which to supplement the record. Hodges then filed a motion requesting that this Court order the record to be supplemented with the transcripts of the above-listed hearings; this Court denied the motion.

Initially, we note that although Hodges makes a general reference in his brief to the fact that the record does not contain "all of the proceedings held by the trial court" (Hodges's brief at p. 21), he makes an argument about only the February 9, 2001, preliminary hearing and the discussion between his attorney and the trial court regarding two of his witnesses. Hodges mentions in his brief that proceedings conducted on October 3, 2003, and June 7, 2004,³ are not included in the record; however, he does so only in passing. He makes no argument with respect to these proceedings. Hodges does not even mention in his brief the proceedings conducted on August 8, 2002, October 16, 2003, January 27, 2004, and February 13, 2004,⁴ which were included in his motion to supplement the record. Therefore, to the extent that Hodges intended to argue on appeal that the alleged absence from the record of the proceedings conducted on August 8, 2002, October 3, 2003, October 16, 2003, January 27, 2004, February 13, 2004, and June 7, 2004, entitles him to a new trial, he has failed to comply with Rule 28(a)(10), Ala.R.App.P., and any argument in that regard is deemed to be waived.

With respect to the proceedings about which Hodges does make an argument, i.e., the February 9, 2001, preliminary hearing and the discussion between his attorney and the trial court regarding two of his witnesses, he has failed to show that he was prejudiced by the omission of these proceedings from the record.

"Where the transcript or record is incomplete, two rules have evolved. The first applies to the situation where the appellant is represented on appeal by the same counsel that represented him at trial. In that case, the failure to supply a complete record is not error per se and will not work a reversal absent a specific showing of prejudice. In other words, in such a case, the appellant must show that failure to record and preserve the specific portion of the trial proceedings complained of visits a hardship upon him and prejudices his appeal. The second applies to the situation where the appellant is represented by new counsel on appeal. When he is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to warrant reversal. Ex parte Godbolt, [546 So.2d 991 (Ala.1987),] adopting the rule established in United States v. Selva, 559 F.2d 1303 (5th Cir.1977). `We do not advocate a mechanistic approach to situations involving the absence of a complete transcript of the trial proceedings. We must, however, be able to conclude affirmatively that no substantial rights of the appellant have been adversely affected by the omissions from the transcript.' Ex parte Godbolt, 546 So.2d at 997, quoting with approval, United States v. Selva, 559 F.2d at 1305-06."

Ingram v. State, 779 So.2d 1225, 1280-81 (Ala.Crim.App.1999), aff'd, 779 So.2d 1283 (Ala.2000). Here, Hodges is represented on appeal by the same counsel who represented him at trial. Therefore, Hodges must make a specific showing of prejudice resulting from the failure to record and preserve the proceedings he claims should have been included the record on appeal.

With respect to the preliminary hearing conducted on February 9, 2001,⁵ Hodges has failed to make a specific showing of prejudice. He makes only a broad and general allegation that that hearing included testimony "that bears on whether Hodges'[s] confession was voluntary." (Hodges's brief at p. 21.) However, he does not allege what testimony was presented at the preliminary hearing that was relevant to the issue whether his confession was voluntary. Therefore, Hodges has failed to satisfy his burden of showing that the absence from the record of the transcript of the preliminary hearing conducted on February 9, 2001, prejudiced him.

With respect to the alleged discussion between Hodges's attorney and the trial court regarding the absence of Dr. Boyer and Inez McDaniel, Hodges has again failed to make a specific showing of prejudice. He makes a broad and general allegation that the discussion is "mandatory for the efficacy of Hodges's appeal" (Hodges's brief at p. 21), specifically, as to his argument that the absence of Dr. Boyer and McDaniel denied him a fair trial.⁶ He also makes a general allegation that the discussion with the trial court included his attorney's informing the trial court that Dr. Boyer was "on call" and that his attorney had attempted to contact Dr. Boyer by telephone with no success, and his attorney's telling the trial court that he was leaving his cellular telephone on during the trial so that Dr. Boyer could return his call; however, Hodges fails to set forth in his brief any specific details regarding the discussion between his attorney and the trial court that could have aided him in his argument regarding the absence of Dr. Boyer and McDaniel.⁷ Therefore, Hodges failed to satisfy his burden of showing that the absence from the record of a transcript of the discussion regarding two of his witnesses prejudiced him.

In addition, we note that Hodges never moved to supplement the record with this discussion. As noted above, Hodges's motions to supplement filed in the trial court and in this Court included various pretrial hearings; however, he did not mention in his motions the alleged discussions during trial regarding Dr. Boyer and McDaniel. "It is the appellant's duty to point out deficiencies in the record within the time allowed by the Rules of Appellate Procedure. Rule 10(g), Ala.R.App.P." McGriff v. State, 908 So.2d 961, 992 (...