Hodges v. State
| Docket Number: | 2002-DP-00337-SCT Linked Case(s): 2002-DP-00337-SCT2002-DP-00337-SCT |
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| Oral Argument: | 02-07-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 03-10-2005 Holding: Affirmed. |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Prosecution conduct - M.R.A.P. 22 - Closing argument - Prior bad acts - Section 99-19-101(1) - M.R.E. 608 - Ineffective assistance of counsel - Failure to instruct on ineligibility for parole - Defective indictment - Death penalty eligibility - Challenge for cause - Mistrial - Other crimes’ evidence - M.R.E. 404(b) - M.R.E. 403 - Photographs - Lesser offense instructions - Proof of kidnaping - Avoiding lawful arrest aggravator - Double jeopardy - Record of jury instructions - M.R.A.P. 10(b)(5) - Proportionality review |
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| Party Name: | Attorney Name: | |||
| Appellant: | Quintez Wren Hodges |
Andre de Gruy |
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| Appellee: | State of Mississippi | Marvin L. White, Jr.; Melanie K. Dotson; Jim Hood |
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| Topic: | Death penalty direct appeal - Prosecution conduct - M.R.A.P. 22 - Closing argument - Prior bad acts - Section 99-19-101(1) - M.R.E. 608 - Ineffective assistance of counsel - Failure to instruct on ineligibility for parole - Defective indictment - Death penalty eligibility - Challenge for cause - Mistrial - Other crimes’ evidence - M.R.E. 404(b) - M.R.E. 403 - Photographs - Lesser offense instructions - Proof of kidnaping - Avoiding lawful arrest aggravator - Double jeopardy - Record of jury instructions - M.R.A.P. 10(b)(5) - Proportionality review |
| Summary of the Facts: | Quintez Hodges was convicted of capital murder and sentenced to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Prosecution conduct Hodges argues that the State, in conjunction with the Assistant District Attorney, knowingly and willfully concocted a line of examination to demonstrate that Hodges received a lenient sentence recommendation for his prior burglary charge. Hodges claims that the State did not have an evidentiary basis for these questions. The evidence that Hodges submits in support of this claim, consisting of the prior burglary plea hearing, is not contained in the trial record of the case. Therefore, consideration of this evidence is barred. To make it clear what the Court can consider on direct appeal in future cases, M.R.A.P. 22 has been amended to state that issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Hodges is also procedurally barred because this issue was not raised at trial. He has also failed to show that the knowing use of false evidence deprived Hodges of a fair trial and due process. Issue 2: Closing argument Hodges argues that the State made inappropriate remarks in a portion of the closing argument at the sentencing phase by referring to the World Trade Center attacks, which occurred during the course of Hodges’ trial, and Testament Biblical teachings. Although parties are given great latitude in closing arguments an improper closing argument may constitute reversible error if the natural and probable effect of the prosecuting attorney’s argument created unjust prejudice against the accused resulting in a decision inflated by prejudice. Counsel may draw religion material into his argument. In fact, defense counsel made use of Biblical references in his own closing arguments as well. The comments by the State were in rebuttal to defense counsel’s own use of biblical references. The State did not compare Hodges to terrorists or personally vilify him. Hodges’ arguments are without merit and there was no unfair prejudice. Issue 3: Prior bad acts Hodges argues that the court erred in allowing the prosecution, on cross-examination in the sentencing phase, to refer to Hodges’ two escape charges and his previous arrest for the burglary of a school in 1997 and burglary and attempted sexual battery in 1998. While the prosecution has no right to introduce evidence of wrongs and bad acts to prove Hodges' character or to show he acted in conformity therewith, it can introduce competent rebuttal evidence in the face of the showing of Hodges’ good character made on direct examination of a witness. On direct examination, Hodges’ sister testified that Hodges’ character was good, that he respected his elders, did not disobey his parents, and that he was not a violent person and never fought. Another witness also testified on direct that Hodges was soft spoken, easy going, never fought, was never disruptive and he never defended himself. This direct examination testimony opened the door to the State to ask questions about the prior crimes. Hodges also argues that admission of these prior bad acts was prohibited, since they were not relevant to any of the statutory aggravating factors. These prior bad acts were introduced when the defense opened the door to Hodges’ character. Since section 99-19-101(1) allows any evidence that the court deems relevant to sentence and because these acts were relevant to rebut the direct testimony of Hodges’ character, this assignment of error is without merit. Hodges also argues that the court erred when it received into evidence the actual indictment for the previous burglary and sexual battery charge. Under M.R.E. 608, specific instances of conduct may not be proved by extrinsic evidence for impeachment purposes; they may only be inquired about on cross-examination. Although the introduction of the indictment was improper impeachment evidence, such error was harmless. The jury, on many previous occasions throughout the sentencing phase, heard testimony regarding these other crimes. Issue 4: Ineffective assistance of counsel Hodges alleges that he was denied effective assistance of counsel during all stages of his trial. The State challenges Hodges’ exhibits which were not part of the trial record. The Office of Capital Defense Counsel was appointed for this direct appeal. If new counsel on direct appeal is required to assert collateral claims, there must be an opportunity to submit extraneous facts and discovery and evidentiary hearing to develop and prove the allegations. Therefore, the exhibits will be considered. During the culpability phase, Hodges argues that he received ineffective assistance of counsel by his counsel’s failure to present evidence in support of the motion to suppress an unconstitutional confession; failure to investigate critical prosecution witnesses and to confront those witnesses; and failure to know the law applicable to this case and to properly advise Hodges regarding plea bargaining. The first claim that Hodges raises was that his counsel was deficient because he failed to confront an officer with the Lowndes County Sheriff’s office about an inconsistent statement. However, the officer did not give inconsistent testimony. Therefore, defense counsel was not deficient. There is no evidence that Hodges was coerced into giving the confession when the sole reason he voluntarily went to the police was to give the statement and to tell the police what he had done. Hodges claims that counsel was ineffective for failing to investigate a critical prosecution witness which would have provided impeachment evidence. Even assuming that his attorney failed to make an adequate investigation, there is no prejudice arising from this failure. Excluding this testimony, there was still ample evidence of Hodges’ guilt. Hodges claims his counsel was ineffective for failing to properly advise him of the sentencing possibilities. Hodges cannot prove that but for his attorney’s errors, he would have accepted the plea offer and he cites no evidence to indicate that prior to his conviction he expressed any desire to plead guilty. Hodges also argues that he received ineffective assistance of counsel during the penalty phase by counsel’s failure to present available evidence in mitigation; the trial court’s denial of an overnight recess before closing argument; and counsel’s failure to properly prepare Hodges for his testimony. The first claim Hodges raises is that counsel was ineffective for failing to subpoena an expert witness from the state hospital. The decision not to call this doctor reflected reasonable professional judgment. In addition, the additional mitigation evidence of drug use contained in the report is not so compelling that there is a reasonable probability at least one juror could reasonably have determine that death was not an appropriate sentence. Hodges also claims that counsel was ineffective for failing to subpoena Hodges’ sister and cousin, which would have provided compelling mitigation evidence. However, the facts suggest that any additional character witnesses would have been cumulative. Hodges also claims that defense counsel was ineffective in failing to introduce a victim impact statement. Defense counsel’s decision not to introduce the victim impact statement during the sentencing hearing may have been a deliberate trial strategy. Hodges claims that defense counsel was ineffective for failing to object to the State’s introduction of the conviction and for failing to adequately cross-examine a witness. This evidence supported the State’s aggravator that the capital murder was committed while Hodges was under a sentence of imprisonment. Admission of a sentencing order is an efficient way to prove the under a “sentence of imprisonment” aggravator. Therefore, Hodges’ counsel was not ineffective for failing to object to the introduction of the conviction. Hodges’ claim regarding the trial court’s denial of an overnight recess before closing argument is not an ineffective assistance of counsel claim. The record does not indicate when closing arguments began but if the case was submitted to the jury around dinnertime it could not have been that late. The jurors never indicated that they were tired and did not want to continue. Therefore, the judge did not abuse his discretion in denying defense counsel’s request for an overnight recess. Hodges claims that counsel was ineffective for failing to adequately prepare him for his testimony. Ain There is nothing in the record to suggest that counsel did not discuss his testimony. They were given a thirty minute recess in which to discuss whether or not to testify. Hodges was aware that if he testified, the State could go into his criminal history. Assuming that defense counsel was deficient because Hodges did not know the difference between a charge and a conviction, this information cannot cause prejudice because it was already before the jury. Issue 5: Failure to instruct on ineligibility for parole Hodges argues that the jury was improperly instructed on the verdict form that, “if the jury cannot agree on punishment, the court must sentence the Defendant to a term of life imprisonment with the possibility of parole.” The constitutional right to inform the jury that he was not entitled to parole has not been extended to defendants who are not habitual offenders. Hodges was not entitled to an instruction regarding his ineligibility for parole because he was not a habitual offender. The trial court strictly followed the language of the statutes and the jury was instructed in the verdict form of all three alternatives: death, life imprisonment without parole, and life imprisonment with possibility of parole. Where the jury imposes the death penalty, the fact that the jury was given the option of parole does not constitute harmful error. Issue 6: Defective indictment Hodges argues that the capital murder indictment charging an underlying felony of burglary with the intent to commit an assault was defective for failure to specify the intended victim of that assault. The indictment in this case contains the essential elements of the crime and gives Hodges notice of the charges. Furthermore, as a general rule, an indictment which tracks the language of a criminal statute is sufficient to inform the accused of the charge against him. The indictment of Hodges followed the criminal statute. It charged him with capital murder with an underlying felony of burglary and specified what crime the accused intended to commit - assault. Issue 7: Death penalty eligibility Hodges argues that Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000) require that his sentence be vacated. The Mississippi Supreme Court has previously discussed all of these issues as they relate to Ring and Apprendi and has continuously held that these cases have no application to Mississippi’s capital murder sentencing scheme. Issue 8: Challenge for cause Hodges argues that the court erroneously removed a venire member on the grounds that his views on the death penalty seemed unclear. The test for determining when a prospective juror’s views on the death penalty justify his removal is whether the court finds that the juror’s views would prevent or substantially impair the performance of his duties in accordance with his instructions and his oath and leaving the court with definite impression that a prospective juror would be unable to faithfully and impartially apply the law. Here, the judge properly excluded the prospective juror because of his contradictory responses to the questions regarding the death penalty. Issue 9: Mistrial Hodges argues that the court erred in denying his request for mistrial or preventing the jury from considering testimony that Hodges had been incarcerated for burglarizing a home. A witness’ reference to another possible crime committed by the defendants does not warrant a reversal where the witness alluded to other crimes only once and the prosecution did not deliberately ask or infer about whether the defendants had been involved in other offenses. Here, the prosecution did not deliberately elicit testimony regarding this other crime. Hodges also argues that it was error for the judge not to provide the jury with a limiting instruction, since the evidence was introduced. The trial court is not required to issue a sua sponte limiting instruction when other crimes evidence has been admitted and the defense counsel has the burden of requesting such instruction. Hodges failed to request a limiting instruction. Issue 10: Other crimes’ evidence Hodges argues that the court erred in allowing the introduction of evidence that Hodges raped a witness during the time he kidnaped her from her home. Where proof of other crimes or acts of the defendant is offered into evidence pursuant to M.R.E. 404(b), it is still subjected to the requirement that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice under M.R.E. 403. The rape arose out of a common nucleus of operative facts and was integrally intertwined with what happened to the victim. Therefore, the court did not err in admitting evidence of the rape. Issue 11: Photograph Hodges argues that the court erred in admitting a photograph depicting the victim’s midsection, where the victim was shot, after it had been cleaned and washed. The discretion of the trial judge runs toward almost unlimited admissibility of photographs regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. The photograph at issue accurately depicts the wound inflicted upon the victim and the cause of death. There is absolutely no blood anywhere in the photo, and there is nothing gory, gruesome or inflammatory about the picture. Photographs have evidentiary purpose when they describe the circumstances and cause of death. Issue 12: Lesser offense instructions Hodges argues that the court erred in denying his request that the jury be instructed on the lesser offense of manslaughter and trespass. The accused is entitled to have the jury instructed that it may consider convicting him of a lesser offense only where there is in the record an evidentiary basis therefor. When a defendant kills the victim during the commission of a burglary, he is not entitled to a manslaughter instruction. The evidence is clear that the victim in this case was murdered during the commission of a burglary. Furthermore, since there was no evidentiary basis in the record for the lesser instruction of trespass, the court did not err in denying that instruction. Issue 13: Proof of kidnaping Hodges argues that the State failed to meet its burden of proof on the kidnaping charge. However, there is ample evidence presented by the State to establish that the victim was taken against her will. Issue 14: Avoiding lawful arrest aggravator Hodges argues claims that the jury was improperly instructed to consider the avoiding lawful arrest aggravating factor, because there was no evidence to support the inference that a substantial reason for killing the victim was to conceal the identity of the killer or to cover his tracks so as to avoid arrest or apprehension. Jurors are entitled to make the logical connection between the injuries suffered and finding an inference that the defendant murdered his victim to avoid arrest. The defendant’s efforts to avoid arrest after the murder may also be considered in connection with this aggravator. The jury could have easily concluded that Hodges disguised himself in order to conceal his identity and when the victim still recognized him, Hodges shot him in order to avoid apprehension and eventual arrest. In addition, there is ample evidence of Hodges’ continued attempts to avoid arrest. Issue 15: Double jeopardy Hodges argues that using Count II of kidnaping as an aggravating circumstance is punishing Hodges for the crime of kidnaping twice. Hodges was convicted of capital murder with the underlying felony of burglary and was also convicted of kidnaping. The crimes of kidnaping and burglary are separate and distinct acts constituting two separate circumstances. Therefore, they were properly before the jury to assist in determining whether to impose the sentence of death. Issue 16: Record of jury instructions Hodges claims error in the fact that the jury instructions were not transcribed as part of the trial record, even though such action was requested by the attorneys at trial. Hodges failed to comply with M.R.A.P. 10(b)(5), which required him to bring such issue to the court reporter’s attention within fourteen days. In addition, Hodges does not claim any specific error from the proceedings which were missing. Therefore, he is not prejudiced by the missing portions of the record. Issue 17: Proportionality review There is no evidence supporting a finding that the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. The evidence supports the trial court’s finding that the statutory aggravating factors of burglary, kidnaping, avoiding or preventing a lawful arrest and under a sentence of imprisonment were proven beyond a reasonable doubt. Upon comparison to other factually similar cases where the death sentence was imposed, the sentence of death is not disproportionate in this case. Hodges was 18 years old when he committed the crime of capital murder. |
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