State v. Hodge, 13154

• Decision Date: 30 June 1983
• Docket Number: No. 13154,13154
• Citation: 655 S.W.2d 738
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Edward HODGE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 738

655 S.W.2d 738

STATE of Missouri, Plaintiff-Respondent, v. James Edward HODGE, Defendant-Appellant.

No. 13154.

Missouri Court of Appeals,

Southern District,

Division Two.

June 30, 1983.

Motions for Rehearing Overruled and to Transfer to

Supreme Court Denied July 20, 1983.

Application to Transfer Denied

Sept. 20, 1983.

John D. Ashcroft, Atty. Gen., George W. Cox, III, Bruce Farmer, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

William H. Wendt, Scott B. Tinsley, Springfield, for defendant-appellant.

PREWITT, Judge.

Defendant appeals, following his conviction in a jury-waived trial, of assault in the first degree. § 565.050, RSMo 1978. He was sentenced to life imprisonment. Defendant was charged with attempting to kill or to cause serious physical injury to Karlene Hodge, his ex-wife, by shooting at her with a shotgun and striking her in the head with a blunt instrument. The state contended that defendant hired Kenneth McCurdy to commit the assault on her.

Defendant contends that McCurdy's "suicide note" which implicated him in the assault was erroneously admitted in evidence and that without it the evidence was insufficient to support the conviction; that evidence of a prior assault by him upon his ex-wife should not have been admitted as it constituted evidence of an unrelated crime; and that the trial court erroneously admitted evidence of his statements and conduct toward her occurring from approximately April of 1980 to several months before the assault charged because it was too remote.

Defendant and Karlene Hodge were married in August 1958 and divorced in April 1980. Three children were born of their marriage. Prior to the divorce they lived on a farm about one mile from Cassville. After the divorce the farm was sold. There was evidence that defendant did not wish to sell the farm but said he had to because of the divorce and that he complained that the divorce cost him more than it should.

On the morning of October 7, 1981, Karlene Hodge and her daughter lived in a mobile home at Route 1, Monett. Karlene Hodge left her home a little after 7:00 o'clock a.m. to go to work at a sewing factory in Monett, Missouri. At approximately 7:20 a.m. that morning a Barry County deputy received a phone call from the Monett, Missouri police dispatcher. The deputy then went to a location approximately one mile southeast of Monett where he found Karlene Hodge lying near some railroad tracks about ten feet from a road. She was approximately one hundred feet from her car. The windshield of her car appeared to have been hit by pellets from a 12-gauge shotgun and the door glass on the driver's side had been shattered. She was taken by ambulance to a hospital. There she was determined to be in critical condition from a skull fracture consistent with a blow from a blunt object such as the stock of a shotgun. As a result of the injury, she has extensive permanent brain damage. It was stipulated that at the time of Karlene Hodge's injury defendant was at his place of employment in Cassville, which is approximately fifteen miles from Monett.

On March 21, 1981, defendant struck Karlene Hodge several times in the presence of her daughter. He told his oldest son he would have killed her had it not been for the presence of the daughter and that he wanted to kill her but had not had the opportunity. Defendant's youngest son testified that defendant was upset because Karlene Hodge was dating other men and told him that he would kill her and be able to get away with it. He told their daughter that he would kill Karlene Hodge if the two of them did not get back together; that if he could not have her, no one could, and that he would kill her or hire someone who would.

There was evidence that in the late spring or early summer of 1981 on two occasions defendant offered two other people money to have Karlene Hodge beaten and scarred. He said he wanted her face scarred so that no other man would look at her. He also asked them to make harassing phone calls to her. A woman who defendant dated from April 1981 until August 1981 said defendant talked constantly about Karlene Hodge and threatened to kill her or have her beaten up. He told her it would be easy to shoot Karlene Hodge while she was driving. In July of 1981 while Karlene Hodge was driving home, defendant attempted to run her car off the road and then verbally abused her. Also, that summer he threatened a man she was dating. Subsequent to that, Kenneth McCurdy, an acquaintance of defendant, confronted the man and pointed a pistol at him in a deserted parking lot.

A witness testified that he saw defendant three times during the summer of 1981. He stated the first time that defendant and Kenneth McCurdy came to his home in Bentonville, Arkansas and defendant asked him about beating up a man in Missouri who was dating his ex-wife. At a second meeting the witness said that defendant offered him $500 to beat up Karlene Hodge and "leave her for dead". At the third meeting defendant inquired if the witness had considered his offer and when the witness declined, he asked the witness where he could find Kenneth McCurdy.

Donna Garris testified that in the latter part of September 1981 she and defendant took a trip to Arkansas to look for Kenneth McCurdy. Defendant had said McCurdy owed him $2000. They did not find McCurdy, but she learned that he drove a white pickup truck. Garris stated that defendant lent her $500 and later, while they were outdoors and he was firing a shotgun, he said that she would not have to repay it if she would kill Karlene Hodge. She testified that he told her he had a plan to shoot Karlene Hodge as she went across the railroad tracks at approximately 7:15 in the morning, on her way to work. He said there was a "big brushy embankment" on each side of the road; that she has to stop for the tracks and could be shot from there. Garris testified that defendant said he had watched Karlene Hodge as she drove across the tracks. Garris also called Kansas City at defendant's request to locate a "hit man" and she and defendant also looked locally for a "hit man".

Two days before the assault, defendant told Garris that he had located someone who would do the job for $2700, $700 cash and cancellation of a $2000 loan. He said it was a man who had stayed at his trailer the night before. The man drove a white pickup. On October 6, 1981, defendant and Garris spent the night together. He woke her at approximately 3:00 a.m. the next morning and told her that he had to go home and get ready to go to work. He said, "if I don't see you for a few days, don't be alarmed. It's going to happen. My man got tangled up in the brush this morning, or it would have happened this morning." He then told her to keep her mouth shut. On October 9, 1981, she said defendant was upset on how the assault was done. He said it was "a sloppy job" and should have been done better. He again told her to keep her mouth shut and also told her not to say anything about the white pickup.

On October 26, 1981, the Barry County sheriff questioned Kenneth McCurdy about the assault. McCurdy denied any involvement. The next day McCurdy committed suicide. His wife had left the house that morning at approximately 6:00 o'clock and returned about 7:15 p.m. He left notes at the house for his wife and a note directed to the Barry County sheriff, stating:

"Look no further for a man it was I. James Hodge was guilty of the hiring. I hope this helps put him away. Kenneth McCurdy"

Defendant called two witnesses who testified that Donna Garris had a bad reputation for truthfulness. He presented five witnesses who testified that he had a good reputation for honesty and truthfulness. Defendant also testified at trial. He stated that Karlene Hodge's drinking and running around and his having to sell the farm all upset him at the time of the divorce. He stated that the reason he struck her on March 21, 1981, was because she was drunk and cursing him. He said that in an effort to sober her up he got her into the fresh air and slapped her four or five times about the face. He stated that the reason he went to Arkansas with Donna Garris was to trade his car for a pickup and camper. He denied having made any statements about having Karlene Hodge hurt or killed and denied any involvement in the assault on her.

Defendant's first point asserts that the trial court erred in admitting the note McCurdy left to the Barry County sheriff into evidence as it is hearsay and does not come within any of the exceptions to the hearsay rule. The state contends that the note was properly admitted because it was a declaration against penal interest and bore substantial indicia of reliability in that it exposed the declarant to criminal liability, and that the circumstances of its making proved that none of the hearsay danger was present. The state further contends that the note was as reliable as other analogous exceptions to the hearsay rule because it bore the same assurance of trustworthiness as a dying declaration or a declaration against interest.

The state does not contend that the note comes within any recognized exception to the hearsay rule applicable to criminal proceedings and it appears clear to us that it is not. It is not admissible as the statement of a coconspirator as it was obviously not made in the furtherance of the object of an unlawful combination. See State v. McCollum, 598 S.W.2d 198, 200 (Mo.App.1980). Although it might be considered, at least in part, a statement against the penal interest of Kenneth McCurdy, generally in Missouri declarations against penal interests are not admissible in criminal proceedings. State v. Turner, 623 S.W.2d 4, 8 (Mo. banc 1981), cert. denied 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). The statement would not be admissible as a dying declaration as they are received only in cases of homicide where the death of the deceased is the subject of the...