Hodges v. State, S95A1079

• Decision Date: 30 October 1995
• Docket Number: No. S95A1079,S95A1079
• Citation: 463 S.E.2d 16,265 Ga. 870
• Parties: HODGES v. The STATE.
• Court: Georgia Supreme Court

Page 16

463 S.E.2d 16

265 Ga. 870

HODGES v. The STATE.

No. S95A1079.

Supreme Court of Georgia.

Oct. 30, 1995.

Reconsideration Denied Nov. 20, 1995.

Thomas L. Hodges, III, Smith & Hodges, Elberton, James E. Hudson, Hudson & Montgomery, Athens, for Hodges.

Lindsay A. Tise, Jr., Dist. Atty., Hartwell, Hon. Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Susan V. Boleyn, Senior Asst. Atty. Gen., Michael D. Groves, Peggy R. Katz, Asst. Attys. Gen., Department of Law, Atlanta, for State.

THOMPSON, Justice.

Leonard C. Hodges was convicted of the malice murder of Kenneth Lee Mayes and sentenced to life in prison. ¹ He enumerates four evidentiary errors on appeal. We find no harmful error and affirm.

An anonymous telephone caller informed the police that he was driving through the Stephen Heard Cemetery in Elbert County and saw what he thought was a body. The caller sounded scared and refused to give his name. Upon investigating the call, the police discovered the dead body of Kenneth Lee Mayes in the cemetery. Mayes' hands were bound behind his back with electrical tape and he was shot once in the chest. A .45 caliber shell casing was found nearby.

Mayes had been living in a trailer with Hodges. The police called on Hodges at the trailer, informed him that Mayes had been killed, and asked him if he would permit them to search the trailer for clues. Hodges gave his consent.

In searching the trailer, the police discovered a pair of Hodges' boots, his .45 caliber pistol, and some electrical tape. The soles of the boots appeared to be similar to footprints left at the scene of the crime. The pistol smelled as if it had been fired recently. The electrical tape was different than the tape used to bind Mayes' hands.

The police also found a will which had been handwritten by Hodges and signed by Mayes one week before his death. In the will, Mayes bequeathed all but one of his rings to Hodges.

Hodges allowed the police to take the items they found. The police asked Hodges if he would accompany them to the police station to answer some questions. He agreed to do so. He was "real cooperative."

Hodges told the police that he spent much of the previous day with Mayes and that he last saw him at about 9:00 p.m. when he dropped him off at the trailer. He added that Mayes had gotten into trouble with some drug dealers and had been worried that they would harm him. He explained that his gun smelled like it had been fired because he had been shooting at a tree in his yard the previous day. Hodges also stated that he can get so violent he can punch holes in walls and not remember what he did.

One of the officers, Det. Thompson, noticed that the tires on Hodges' truck had a tread design which was similar to tire marks found at the cemetery. He took a Polaroid picture of the tread design. Returning to the cemetery, the detective compared the soles of Hodges' boots and the photograph of Hodges' tires with the impressions left at the scene of the crime. Upon making those comparisons, the detective became convinced that Hodges murdered Mayes. The time was approximately 6:00 p.m.

Although he knew that Hodges was at the police station answering questions, and although he had a radio, Det. Thompson did not immediately notify his fellow officers of his findings. Instead, he drove to the police station, arriving there about 7:30 p.m.

Det. Thompson immediately arrested Hodges and advised him of his Miranda rights. Until that time, Hodges had not been placed under arrest and, according to the police, he would not have been stopped if he attempted to leave the stationhouse. Upon being advised of his rights, Hodges invoked his right to counsel and all questioning ceased. Prior to his arrest, Hodges had been answering questions for approximately 40 minutes.

The police later learned that the night before Mayes' body was discovered, Hodges and Mayes stopped at a convenience store; that Hodges went into the store to buy a roll of electrical tape while Mayes waited in the truck; and that unlike the tape that the police found in Hodges' trailer, the tape which Hodges purchased was similar to the tape used to bind Mayes' hands.

Based on forensic tests, the police concluded that the .45 shell casing found at the cemetery had come from Hodges' pistol. They also concluded that Hodges was the anonymous caller who said he discovered Mayes' body. Finally, the police found a handwritten note inside Mayes' wallet. The note was signed by Mayes and read: "Leonard C. Hodges did it."

1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Hodges asserts the trial court erred in failing to suppress the statements he made to the police. In this regard, he argues that Det. Thompson had sufficient information to warrant Hodges' arrest at 6:00 p.m.; that the detective's knowledge was imputed to the other police officers; and that, therefore, any statements made to the police after 6:00 p.m. should have been suppressed.

In effect, Hodges would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). This is so because Miranda was fashioned to redress " 'the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions' " when the questioning commenced. Id., 114 S.Ct. at 1529. "Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest." Id. at 1530. Thus, the proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest. See id. at 1529. See also Lobdell v. State, 256 Ga. 769, 773(6), 353 S.E.2d 799 (1987) (Miranda does not apply unless a person is "taken into custody or otherwise deprived of his freedom ... in some significant way").

Hodges contends he was in custody because the police took his boots, gun and electrical tape before they asked him to accompany them to the stationhouse. He argues that any reasonable person would believe he was under arrest under those circumstances. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (relevant inquiry is how reasonable person in suspect's position would perceive his situation). We disagree.

The police simply asked Hodges if he would go with them to the stationhouse so they could "talk better." They did not demand that he accompany them. He went along willingly and cooperated fully. Moreover, Det. Thompson told Hodges that he was taking the items he found in the house for purposes of eliminating him as a suspect. A reasonable person would not believe he had been arrested under these circumstances. See generally Hardeman v. State, 252 Ga. 286, 313 S.E.2d 95 (1984) (defendant is not in custody because he accompanies police to stationhouse); Ingle v. State, 123 Ga.App. 56, 179 S.E.2d 305 (1970) (defendant not in custody when questioned in his house even though police were armed with search warrant).

3. Over Hodges' objection, a witness was permitted to testify that seven or eight years previously, Hodges told him that if he were a "hit man," he would bind his victim's hands behind his back with wire or tape, put him on his knees and shoot him with a "high-powered weapon."

In Maxwell v. State, 262 Ga. 73, 75(3), 414 S.E.2d 470 (1992), this Court held that it was error to allow the state to introduce evidence that defendant had engaged in two conversations in which he explained how he would kill someone. Neither conversation concerned the victim and there was no evidence that the victim was killed in the manner described.

As in Maxwell, the statement made by Hodges did not concern the victim; but, unlike Maxwell, the victim was killed in the manner described by Hodges. Thus, the statement in this case shed light on Hodges' course of conduct, plan, scheme or bent of mind. See Barnes v. State, 245 Ga. 609, 610, 266 S.E.2d 212 (1980) (statement that defendant killed once and did not mind killing again was relevant to show motive, plan, intent, scheme, bent of mind and course of conduct). The mere fact that the statement was made seven or eight years previously did not render it inadmissible. See generally Gilstrap v. State, 261 Ga. 798, 799, 410 S.E.2d 423 (1991) (similar transaction evidence not inadmissible solely because of lapses of time of 11 or 19 years). Simply put, the statement was relevant and the trial court did not err in allowing it into evidence.

4. A defense witness was allowed to testify that on more than ten occasions she saw tape marks and rope burns on Mayes' wrists and that when she asked Mayes about the marks he explained that he was having "kinky" sex with Diane Hopkins, a "rough lady biker" who tied him up. During an offer of proof, the witness testified that on several occasions she saw Hopkins get mad and threaten to kill Mayes. However, the trial court sustained the state's hearsay objection to the proffered testimony. Hodges contends the witness should have been permitted to testify that Hopkins threatened to kill Mayes. We agree.

Evidence that Hopkins threatened to kill Mayes was not hearsay. "Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons." OCGA § 24-3-1(a). The proffered testimony was not offered to prove the truth of the matter asserted therein. Indeed,...