Hodges v. the State., A11A0720.

• Decision Date: 30 November 2011
• Docket Number: No. A11A0720.,A11A0720.
• Parties: HODGESv.The STATE.
• Court: Georgia Court of Appeals

311 Ga.App. 46

714 S.E.2d 717

11 FCDR 2560

HODGES

v.The STATE.

No. A11A0720.

Court of Appeals of Georgia.

July 14, 2011.Certiorari Granted Nov. 30, 2011.

Lee William Fitzpatrick, Kennesaw, for appellant.Patrick H. Head, Dist. Atty., Jason Ross Samuels, Anna Green Cross, Asst. Dist. Atty., for appellee.BARNES, Presiding Judge.

A jury convicted Mario Hodges of misdemeanor involuntary manslaughter as a lesser included offense of felony murder, aggravated assault, and possession of a firearm during the assault.¹ Following the denial of his motion for new trial, Hodges appeals, arguing that the trial court erred by excluding evidence regarding Hodges' state of mind when he shot the victim. Because the exclusion of this evidence was harmful error, we reverse.

We view the evidence in the light most favorable to the verdict. Early v. State, 170 Ga.App. 158, 164(6), 316 S.E.2d 527 (1984). So viewed, the evidence showed that Hodges called 911, reported his location, and said he had shot a man named Rudy Turner while defending himself. Police officers were dispatched to the scene and the first officer on the scene found Hodges standing outside of his house holding a shotgun. Hodges put the gun down as directed and was placed in the back of a patrol car. Two officers went into the house and found Turner upstairs, deceased from a shotgun blast. A knife was located about six feet from Turner's body.

The police took Hodges to be interviewed at the Crimes Against Persons Unit, and after Hodges waived his Miranda rights, two detectives took his statement. Hodges said the incident began when Turner threatened Hodges and Hodges' daughter, and explained that he had been friends with Turner for about five years. Turner was in and out of jail and had lived with Hodges previously, but Hodges had kicked him out. Seven months before, Turner had come to Hodges' previous apartment demanding money and the two men had gotten into a fistfight, but apparently had “patched up” their relationship after that. Turner had been staying with mutual friends when he called and asked Hodges to come pick him up because he and the friends had “gotten into a disagreement.” Hodges did so and Turner slept at Hodges' home that night. The next day, Turner told Hodges that he wanted to collect money from various people who were in his debt, including Hodges, and became angrier as the day went on. Turner demanded that Hodges pawn a television to repay the debt Hodges owed him, then told Hodges that he was “going to get” the people who owed him money and if they failed to pay, he would “go after their relatives or the people they love.”

Hodges had a collection of weapons in his upstairs home office. Turner retrieved a “ball and chain”—a flail with spiked metal balls attached to it—from Hodges' office and brought it downstairs, saying he could use it to go after the people who owed him money. Hodges told Turner to put the weapon away, and Turner went upstairs again. He came back downstairs with a machete and made similar comments of a threatening nature. At that point, Hodges told Turner to pack up his belongings and leave the residence.

After Turner went upstairs with the machete, Hodges retrieved a loaded pump-action shotgun and placed it near his seat in the living room. When Turner came downstairs a third time he was armed with a large Arabian knife, and Hodges testified that Turner “just snapped,” went “berserk,” and approached Hodges, who said he thought Turner meant to harm him with the weapon. Hodges shot Turner, who turned and ran up the stairs. Hodges testified that he did not think he hit Turner because if he had Turner would not have been able to run away. Hodges testified that he did not know what weapons Turner had, as “he [was] known to carry guns.” He followed Turner upstairs and shot at him a second time. Hodges testified he thought this second shot hit Turner because he fell then, and when Turner “made a move” on the floor Hodges hit him with the gun, which discharged a third time. Evidence at trial established that Hodges actually hit Turner with his first shot, which was the fatal strike, and missed him with the second and third shots.

The murder charges against Hodges were based on the first shot Hodges fired at Turner, and the two aggravated assault charges were based on the first and second shots that Hodges fired. At trial, Hodges presented a justification defense pursuant to OCGA § 16–3–21. The jury found Hodges guilty of misdemeanor involuntary manslaughter, aggravated assault based upon the second shot, and possession of a firearm during the commission of that aggravated assault.

Before trial, Hodges sought permission to introduce evidence that Turner had acted violently toward other people on several occasions, all of which Hodges had heard about before he killed Turner. Two of the three incidents involved Turner's violent acts against the friends with whom he had been living before Hodges picked him up the evening before the shooting, and one of the incidents precipitated Turner's departure from the friend's house.

As to the third incident, Hodges also sought to testify that after his fight with Turner seven months before Turner died, a friend told him that Turner had shot at the friend and her daughter. Hodges argued that he should be allowed to explain his state of mind and fear for his personal safety based on his knowledge or belief that Turner committed this shooting, but the court held that Hodges' state of mind testimony was inadmissible because Hodges did not present independent evidence that Turner had shot at the friend and her daughter.

1. On appeal, Hodges enumerates the refusal of the trial court to permit him to testify about this third act as error, contending that testimony that he believed Turner had shot at two people helped establish his state of mind when he shot Turner.

Hodges' entire defense was justification. He wanted to testify that he shot the victim because he was afraid of him. One reason he was afraid was because, in addition to knowing about the victim's other acts of violence, he thought the victim had shot at a woman and her daughter less than a year before. That belief, combined with the victim's erratic behavior, explained Hodges' state of mind. Hodges' testimony in this regard was not hearsay, as it was not offered to prove that the victim shot these other people but to explain his conduct. It was original, admissible, competent evidence of his state of mind which went to the heart of the matter being tried.

Black's Law Dictionary (5th Ed. 1979) defines “hearsay evidence” as “testimony in court of a statement made out of the court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” OCGA § 24–3–2 defines what is not hearsay: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” This statute is applicable when “the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial)....” Momon v. State, 249 Ga. 865, 867, 294 S.E.2d 482 (1982). Hodges' conduct and motives were not just relevant to the issues being tried; they were the only issues being tried, as Hodges admitted he shot the victim. Hodges did not offer the excluded testimony to prove that the victim shot at a woman and her daughter; he offered it to explain why he responded to the victim's show of force the way he did.

In Chandler v. State, 261 Ga. 402, 407(3)(b), 405 S.E.2d 669 (1991), our Supreme Court for the first time held that a defendant who claimed justification could present evidence of prior acts of violence by a victim against third persons. In doing so, the court did not specifically address the evidence in light of establishing the defendant's state of mind, but found persuasive Justice Weltner's special concurrence in Lolley v. State, 259 Ga. 605, 607–610, 385 S.E.2d 285 (1989). In Lolley, Justice Weltner noted the general soundness, in a vacuum, of the principle that a homicide victim's reputation for violence is irrelevant in a murder trial “because it is just as unlawful to murder a violent person as it is to murder a nonviolent person.” Id. at 608(3)(a), 385 S.E.2d 285. But he then reasoned that, “ [i]n differing circumstances, ... evidence of the violent nature of a victim can be critically important to the discovery of truth,” and gave the following example of such a circumstance:

The town ruffian, in a drunken and enraged state, advances upon a peaceable householder and threatens him with mayhem. The householder shoots him dead, even though no other weapon was in sight, and the erstwhile assailant was several yards distant from the householder. Where the defense is justification under OCGA § 16–3–21, what a defendant “reasonably believes” may be viewed by the factfinder in the light of what the defendant knew as to the decedent's character for violence. Logically, that knowledge is relevant, whether it was obtained by the defendant's painful personal experience at the hands of the decedent; by his observation of violent acts committed by the decedent upon another; by hearing of other specific acts of violence by decedent that were not committed in his presence; or by knowledge of the decedent's reputation for violence, unconnected to any specific act.

(Emphasis supplied.) Id. at 608–609, 385 S.E.2d 285. Thus, for example, evidence of a death threat against the defendant was not hearsay when it was offered to explain the defendant's reason for purchasing a gun. Strickland v. State, 257 Ga. 230, 232(2), 357 S.E.2d 85 (1987); accord Woods v. State, 269 Ga. 60, 63–64(5), 495 S.E.2d 282 (1998) (evidence of victim's reputation for...