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Hodges v. Commonwealth6/7/2005
Kenneth Alonzo Hodges, II (appellant), appeals from his jury trial convictions for murder and use of a firearm in the commission of murder. On appeal, he contends the trial court erroneously (1) admitted certain out-of-court statements in violation of the Confrontation Clause and Virginia's hearsay rule; (2) admitted unduly suggestive and tainted out-of-court and in-court identifications; (3) denied his motions for mistrial based on prosecutorial misconduct; and (4) concluded the evidence was sufficient to support his convictions. We hold the trial court's admissions of the challenged statements, only some of which were admitted for their truth, and the eyewitness identifications did not constitute reversible error. We hold further that the trial court did not abuse its discretion in denying appellant's motions for mistrial. Finally, we conclude the circumstantial evidence was sufficient to support appellant's convictions. Thus, we affirm.
I. BACKGROUND
On Sunday, September 1, 2002, Shelly Marie Jackson (the victim) failed to return home as scheduled. On Wednesday, September 4, 2002, police found Jackson's body on property owned by appellant's father. Evidence adduced at trial established the following:
On March 24, 2002, Jackson reported a burglary at her apartment. Police Lieutenant Brian Lovelace, who investigated the report, received "information in from other people that" Jackson had had a gun and a safe taken in the burglary and that Jackson was distributing marijuana for appellant from her apartment. As a result, Lt. Lovelace also was investigating appellant. Lt. Lovelace ultimately recovered a safe and a gun from a Kenneth Edmunds, who made a statement to Lt. Lovelace. On March 28, 2002, Jackson denied Lovelace's assertions that she was selling marijuana and that a safe and firearm had been taken in the burglary, but she gave consent for a search of her apartment, which yielded marijuana.
On March 29, 2002, police executed a search warrant for appellant's residence. During that search, police found half a box of 9 millimeter ammunition in appellant's house under the bed in the master bedroom.
On April 17, 2002, Lt. Lovelace advised Jackson that he had enough evidence, including the statement from Edmunds, to charge her even without her own admission. Jackson then made a written statement in which she said she had been selling marijuana for appellant and that he had supplied her with a safe and a gun to keep in her apartment.
Lt. Lovelace then obtained warrants charging Jackson with distributing marijuana and charging appellant with conspiracy to distribute marijuana. On April 18, 2002, appellant was arrested on that warrant and released. One of the conditions of his bond was that he have no contact with Jackson.
Sometime before appellant's June 24, 2002 preliminary hearing on the drug conspiracy charge, Lt. Lovelace talked to Jackson about "turning state's evidence" against appellant. The day prior to the preliminary hearing, either appellant or his wife, Shanetta, "called [Jackson] and said they needed to meet." Jackson's cousin, Shelly Jones, accompanied Jackson to Cody's Store, where Jackson said "she was going to meet [appellant] to talk to him about court." When Jackson and Jones arrived at Cody's Store, Jones waited in the car while Jackson climbed into appellant's truck and spoke to his wife. Appellant was not in the truck, but before Jackson completed her conversation with Shanetta, Jones saw appellant pacing back and forth on a nearby sidewalk. Also on June 23, 2002, Jackson apparently signed a statement, written in someone else's handwriting, saying she implicated appellant in her earlier confessio
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