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Hodges v. State

Supreme Court of Georgia

November 2, 2017

HODGES
v.
THE STATE

          Benham, Justice.

         Appellant Davoris D. Hodges was found guilty of two counts of felony murder, armed robbery, and two counts of aggravated assault related to the shooting death of Khristal Wright, a Johnson County deputy sheriff.[1] He was found not guilty of malice murder.

         Viewed in a light most favorable to the verdict, the evidence shows that prior to the date the victim was murdered, appellant suggested to his friend Kelvin Rozier that they rob the victim, but Rozier declined since he did not want to target a member of law enforcement. At about 9:00 p.m. on March 22, 2013, the victim's body was discovered by passing motorists on a road in Laurens County, just over the county line from Johnson County where appellant picked up the victim that same evening. Apparently, news of the victim's death spread around the community the night of her murder, and appellant's aunt, with whom he was living, knew that appellant had been with the victim that evening. Accordingly, at around 5:00 a.m., appellant's aunt telephoned the victim's aunt, handed appellant the telephone, and instructed him to tell the victim's aunt what he knew about the victim's whereabouts the previous evening. The victim's aunt testified appellant told her the victim had offered him money to drive her from Wrightsville to Dublin and he agreed to do so, but on the way to Dublin, the victim received a phone call and told appellant she no longer needed him to drive there because she had another ride. According to the victim's aunt, appellant told her he turned around, and at about 8:00 or 8:30 p.m., he let her out of his car and watched her get into a vehicle that appeared to be either an SUV or a truck. After speaking to the victim's aunt, appellant voluntarily appeared at the police department at about 5:30 a.m. to give his statement. The audio recording of appellant's first interview was played to the jury, in which appellant gave investigators an account similar to the one he gave the victim's aunt. Additionally, appellant told investigators that he sold the victim some marijuana before agreeing to drive the victim to Dublin, and that he dropped the victim off at the home of one of the victim's friends, where he saw her get into a vehicle that appeared to be either a truck or an SUV with others he could not identify. During this first interview, appellant stated no other person was with him and the victim as they drove toward Dublin.

         After an investigation into his cell phone records revealed his location was inconsistent with his statement, the authorities contacted appellant a couple of hours after he gave his first statement and asked him to return to the police headquarters for a second interview because his earlier story did not check out. The audio recording of this interview was also played to the jury, and it reflects that appellant changed his story and became upset and emotional when he eventually told the investigators that he had witnessed his friend's murder. After he was informed of his rights, he implicated Rozier and told the investigators that Rozier had flagged him down as he was driving to pick up the victim. According to appellant, once the victim was in the car with them, Rozier pulled out a gun and forced appellant and the victim to get out of the vehicle, forced appellant to go through the victim's pockets and take her money, and shot the victim two or three times. Appellant acknowledged that the gun belonged to him, but explained that Rozier had it on the night in question because Rozier had wanted to buy it from him. According to appellant's statement, Rozier forced appellant to take him back to the place appellant picked him up and ordered appellant to discard the evidence. Appellant told the investigators that Rozier threatened to kill him and his family if he implicated Rozier in the crimes. Appellant directed law enforcement to a wooded area where a gun was recovered, and then to a separate location where shell casings were recovered. He also directed them to cash and other property belonging to the victim hidden at the home of his aunt where he was living as well as at other nearby locations. The authorities then charged appellant with the victim's murder.

         Despite appellant's statements to the authorities on Rozier's involvement in the crimes, Rozier had an alibi for the night of the murder. In fact, cell phone records revealed that while the phones of appellant and the victim appeared to be at the same spot around the time of the murder, Rozier's phone appeared to be in Wrightsville, where he testified he was on the evening of the murder. At 8:49 p.m., Rozier texted appellant asking him where he was, and the two carried on a text message conversation between 9:42 p.m. and 9:45 p.m. At trial, appellant called a witness who was the grandmother of one of appellant's friends. She testified that on the night of the victim's murder, appellant came to her door and asked to see her grandson, but the grandson was not at home. She testified that she saw two other people in the vehicle appellant was driving, and while she could not identify the other individuals, she believed they were male. On the other hand, appellant told investigators that he and Rozier had been seen together that evening at a dumpster on high school property and he gave them the names of two witnesses who could confirm that he and Rozier were together. When the investigators interviewed those witnesses they confirmed seeing appellant near the dumpster but said he was alone.

         The medical examiner testified that the victim died from two gunshot wounds to her face fired from less than six inches away. Appellant's clothing tested positive for the presence of gunshot primer residue, and the clothing Rozier said he was wearing on the night of the murder did not. Bullet casings and jackets recovered from the victim's body matched the gun to which appellant led the authorities, which belonged to appellant.

         1. Although appellant does not challenge the sufficiency of the evidence to sustain the convictions, it is this Court's practice to conduct an examination of the record to determine the legal sufficiency of the evidence in murder cases. Having done so, we conclude the evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. The State sought to introduce a compilation of text messages between Rozier and appellant on the night the victim was murdered. Rozier, who was a participant in the text conversation, testified and authenticated the document's contents. Evidence may be authenticated by the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." OCGA § 24-9-901 (b) (1). This rule applies to the authentication of text messages retrieved from cell phone records. See Glispie v. State, 335 Ga.App. 177, 184-185 (1) (b) (i) (779 S.E.2d 767) (2015), rev'd in part on other grounds, 300 Ga. 128 (793 S.E.2d 381) (2016), and vacated in part on other grounds on remand, 341 Ga.App. 817 (801 S.E.2d 910) (2017). The trial court did not err by admitting into evidence this authenticated compilation of messages between appellant and the authenticating witness.

         3. Appellant's primary defense is coercion, and since he did not testify at trial, the evidence of this defense consists of appellant's statements to police that were recorded and played to the jury. From the second recorded statement a reasonable juror could conclude that appellant stated he did not shoot the victim but that he was forced at gunpoint to gather the victim's property before Rozier allegedly shot her. Appellant's counsel made an oral request for a charge on coercion, but the trial court denied the request. Appellant's counsel renewed the request by raising an exception to the instructions after they were read to the jury, but the trial court again denied the request. Even assuming that the denial of this request for a coercion instruction was error, it was harmless.

         Even if a trial court errs in failing to give a warranted instruction, such an error does not necessarily demand reversal. See Hamm v. State, 294 Ga. 791, 797 (2) (756 S.E.2d 507) (2014) (addressing the trial court's erroneous refusal to give an instruction regarding the need for corroboration of an accomplice's testimony). "A conviction in a criminal case will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict." (Citation and punctuation omitted.) Id. See also Reddick v. State, 301 Ga. 90, 92-93 (1) (799 S.E.2d 754) (2017) (addressing the trial court's alleged error in refusing to give a requested charge on involuntary manslaughter in a murder case). The failure to give a requested charge, even if authorized by the evidence, can be harmless error. See Brown v. State, 289 Ga. 259, 261 (1) (710 S.E.2d 751) (2011) (addressing the trial court's failure to give a requested charge on impeachment of a State's witness by prior conviction).

         The evidence of appellant's guilt, as summarized above, was compelling. Among other things, cell phone records placed appellant at or near the location of the murder at the time it occurred, whereas phone records belied appellant's claim that Rozier was with appellant and the victim. Appellant was in possession of property taken from the victim, and led the authorities to the location of the murder weapon and shell casings. Appellant's clothing tested positive for the presence of gunshot primer residue, whereas Rozier's clothes did not. Appellant first told the victim's aunt, and then the authorities, a similar story about the victim's paying appellant to drive her to another town, but after commencing the trip, being told by the victim that she no longer needed the ride. After the investigators told appellant his story did not add up, appellant changed it to relate the improbable account that, while on his way to pick up the victim, Rozier flagged him down, and when the victim entered the car, Rozier pulled a gun belonging to appellant on the appellant and the victim and forced appellant to take the victim's property. Appellant also told investigators that instead of taking possession of the stolen property himself, however, Rozier forced appellant to take him back to the place he was picked up and left appellant with the property along with the responsibility to dispose of the murder weapon. Although a friend's grandmother testified she saw two other unidentifiable persons in appellant's vehicle the night of the murder, this evidence was inconsistent with appellant's version of events and, in any event, did not require the jury to accept appellant's statement that only Rozier was the perpetrator of the crimes and that appellant was coerced to act.

         The jury heard appellant's statement regarding how the crimes occurred and was properly instructed, among other things, on the presumption of innocence, circumstantial evidence, credibility of witnesses, mere presence, the State's burden to prove every essential element of the charged crimes beyond a reasonable doubt, and the required element of intent. The jury was instructed that

A person is a party to a crime only if that person directly commits the crime, intentionally helps in the commission of the crime, intentionally advises, encourages, hires, counsels or procures another to commit the crime or intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity.

         In this case, "we conclude it is highly probable that the trial court's refusal to charge on [coercion] did not contribute to the verdict, and we affirm appellant's conviction." (Citation and punctuation omitted.) Reddick v. State, supra, 301 Ga. at 93. Assuming, without deciding, that the failure to give a charge on coercion was erroneous, it was harmless error which ...


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