Hodges v. State

Decision Date23 January 1992
Docket NumberNo. 74671,74671
Citation595 So.2d 929
PartiesGeorge M. HODGES, Appellant, v. STATE of Florida, Appellee. 595 So.2d 929, 17 Fla. L. Week. S74
CourtFlorida Supreme Court

James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

George Hodges appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the conviction and sentence.

In November 1986 Plant City police arrested Hodges for indecent exposure based on the complaint of a twenty-year-old convenience store clerk. Around 6:00 a.m. on January 8, 1987, the day Hodges' indecent exposure charge was scheduled for a criminal diversion program arbitration hearing, the clerk was found lying next to her car in the store's parking lot. She had been shot twice with a rifle and died the following day without regaining consciousness.

Hodges worked on the maintenance crew of a department store located across the road from the convenience store. A co-worker told police that she saw Hodges' truck at the convenience store around 5:40 a.m. on January 8. Hodges, however, claimed to have been home asleep at the time of the murder because he did not have to work that day. His stepson, Jesse Watson, and his wife, Jesse's mother, supported his story. The police took a rifle from the Hodges' residence that turned out not to be the murder weapon. The investigation kept coming back to Hodges, however, and the police arrested him for this murder in February 1989.

At trial Watson's girlfriend testified that, during the summer of 1988, she asked Hodges if he had ever shot anyone. She said he responded that he had shot a girl and had given Watson's rifle to the police and had disposed of his. Hodges' wife, contrary to her original statement to the police, testified that she did not know if Hodges had been in bed all night or when he had gotten up, that her son and husband had identical rifles, and that she did not know that Hodges had been arrested for indecent exposure.

As did his mother's, Watson's trial testimony differed from his original statement. He testified that he and Hodges had identical rifles and that his, not Hodges', had been given to the police. He said that he awakened before 6:00 a.m. the morning of the murder and heard Hodges drive up in his truck. Hodges then came into the kitchen carrying his rifle. When asked why he did not originally tell the police about this, he responded that he had wanted to protect Hodges. Watson also said that, two months after the murder, he saw the rifle in the back of Hodges' truck, wrapped in dirty plastic, and that there was a hole in the ground near the toolshed. He also testified that, several months later, Hodges told him that he had shot the girl at the convenience store.

The jury convicted Hodges as charged, and the penalty proceeding began the following day. At the end of the defense presentation counsel told the court that Hodges had become uncooperative, and Hodges stated on the record that he did not want to testify in his own behalf. After the jury retired to decide its recommendation, it sent a question to the court regarding the instructions. The court had the parties return to discuss the jury's request, but, shortly before that, Hodges had attempted to commit suicide in his holding cell. Defense counsel moved for a continuance and said that he could not waive Hodges' presence. The court, however, held that Hodges had voluntarily absented himself, told the jury that Hodges was absent because of a medical emergency, and reread the instructions on aggravating and mitigating circumstances. When the jury returned with its recommendation of death, Hodges was still absent.

After accepting the jury's recommendation, the court appointed two mental health experts to determine Hodges' competency to be sentenced. These experts' reports cautioned that Hodges might attempt to commit suicide again because of his anger and frustration, but concluded that he was competent to be sentenced. After considering these reports and hearing argument on the appropriate sentence, the court sentenced Hodges to death.

In the guilt phase the court allowed two detectives to testify, over objection, that the victim was adamant about prosecuting Hodges for indecent exposure. These detectives repeated that testimony in the penalty phase and also testified that the victim told them Hodges had been trying to get her to drop the indecent exposure charge. The victim's sister also testified to those matters, over objection, in the penalty phase. Hodges now argues that what the victim thought and said about prosecuting him was inadmissible hearsay. We agree that this hearsay should not have been admitted in the guilt phase.

Subsection 90.801(1)(c), Florida Statutes (1989), defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The victim's statements were admitted to prove that she desired prosecution of Hodges. The State used the statements to prove that Hodges had a motive to kill the victim. The truth of the matter asserted was the victim's adherence to her desire to prosecute and, thus, the statements fall within the definition of hearsay.

The State suggests that if the statements were hearsay, an exception to the prohibition of their admission exists because they were used to prove a state of mind. In Bailey v. State, 419 So.2d 721 (Fla. 1st DCA 1982), the district court correctly held that statements of a victim cannot be used to prove the state of mind or motive of a defendant because the hearsay exception created by subsection 90.803(3)(a) Florida Statutes (1989), does not apply to such a situation. We conclude, therefore, that the admission of the detectives' testimony as to statements made by the victim was error.

We then must determine whether the admission was harmless error. On the day of the homicide Hodges was scheduled for a pretrial diversion interview on the indecent exposure charge which had been initiated by the victim's complaint. On that date, but sometime after the homicide, Hodges called the mediator of the Community Mediation Program, told her there was no reason for him to come through diversion, and asked for the case to be sent back to the state attorney's office. Thus, it appears clear that Hodges knew of his continued prosecution. The victim's statements of her desire to continue prosecution become cumulative and could not have, in and of themselves, been a critical factor in the jury's deliberation. We, therefore, conclude that admitting the detectives' testimony was harmless error.

As stated earlier, the stepson's testimony at trial differed from his earlier statements. On cross-examination defense counsel impeached his testimony using his prior statements and letters he wrote to Hodges. During that cross-examination, Watson repeatedly stated that he was now telling the truth. On redirect examination the State asked Watson if the state attorney had accused him of not telling the truth in his original statement, and Watson answered in the affirmative. As one of its witnesses, the defense called a detective who had been present in the state attorney's office during Watson's first statement and questioned him about that interview and resultant statement. On cross-examination the State asked this detective if he and the state attorney did not make it clear to Watson that they did not believe his story. Defense counsel objected to this question as being irrelevant, but the court overruled that objection.

Now, Hodges claims that allowing the detective to answer improperly allowed the prosecutor to state his personal belief in Hodges' guilt. The defense, however, opened the door to what happened at that interview by questioning the detective about it. The question on cross-examination did not exceed the scope of direct examination and also related back to Watson's testimony. We find no error in this issue.

The evidence is sufficient to support Hodges' conviction of first-degree murder, and we affirm that conviction.

Turning to the penalty phase, Hodges argues that, after his suicide attempt, the court should have halted the proceedings and conducted a competency hearing rather than ruling that Hodges had absented himself voluntarily and continuing with the penalty phase. The cases that Hodges relies on, however, are distinguishable. E.g., Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (defendant shot himself during trial, pretrial report noted antisocial behavior and depression and recommended psychiatric treatment); Nowitzke v. State, 572 So.2d 1346 (Fla.1990) (defendant found incompetent to stand trial, later declared competent after treatment and tried in spite of recurring aberrant behavior and defense request for another competency examination); Pridgen v. State, 531 So.2d 951 (Fla.1988) (pretrial examination concluded defendant competent to stand trial, prepenalty phase examination showed that condition had worsened, trial court erred in refusing to grant continuance). In the instant case, prior to the suicide attempt, Hodges' conduct gave no indication that his competency might be of concern, and his attempted suicide surprised everyone connected with the case. Thus, there were no reasonable grounds to question his competency.

"A defendant has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence." Peede v. State, 474 So.2d 808, 812 (Fla.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 575 (1986). Here Hodges' trial had been concluded, and the penalty phase...

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