Appendix — Hodges v. Mississippi (No. 06-1637)

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APPENDIX A — OPINION OF THE

SUPREME COURT OF MISSISSIPPI

DATED DECEMBER 14, 2006

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2005-DR-00632-SCT

QUINTEZ WREN HODGES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/13/2001

TRIAL JUDGE: HON JOHN M.

MONTGOMERY

COURT FROM WHICH APPEAL: LOWNDES COUNTY

CIRCUIT COURT

ATTORNEY FOR PETITIONER: | ROBERT B. MCDUFF

ATTORNEY FOR RESPONDENT: OFFICE OF THE

ATTORNEY GENERAL

BY: MELANIE K.

DOTSON THOMAS

DISTRICT ATTORNEY: FORREST ALLGOOD

NATURE OF THE CASE: CIVIL — DEATH

PENALTY —POST-

CONVICTION

DISPOSITION: PETITION FOR POST-

CONVICTION

RELIEF DENIED — 12/14/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

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Appendix A

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

§1. Quintez Wren Hodges was convicted of capital

murder and sentenced to death for the murder of Isaac

Johnson. Hodges v. State, 912 So.2d 730 (Miss. 2005).

q2. This Court considered the following issues on direct

appeal: (1) admission of evidence of lenient sentencing

recommendation for previous burglary charge; (2)

prosecution’s improper closing argument; (3) admission of

evidence of prior criminal charges; (4) ineffective assistance

of counsel; (5) improper instruction on ineligibility for

parole; (6) defective indictment; (7) death penalty eligibility;

(8) exclusion of prospective juror for cause; (9) denial of

mistrial for admission of previous burglary charge; (10)

admission of evidence of other crimes; (11) admission of

photograph of victim; (12) refusal of lesser offense

instructions; (13) insufficient evidence on kidnaping charge;

(14) submission of avoiding lawful arrest aggravator; (15)

conviction of kidnaping a violation against double jeopardy;

(16) failure to have transcription of instructions in record;

(17) cumulative error. Hodges, 912 So.2d at 747-48. This

Court affirmed the conviction and sentence on March 10,

2005.

43. Hodges’s petition for writ of certiorari was denied

by the United States Supreme Court on November 28, 2005.

Hodges v. Mississippi, 126 S.Ct. 739, 163 L.Ed.2d 579

(2005).

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44. Hodges subsequently filed his Petition for Post-

Conviction Relief with this Court. The State has filed its

Response, and Hodges has filed his Reply Memorandum.

45. The Mississippi Uniform Post-Conviction Collateral

Relief Act contains several procedural bars found in Miss.

Code Ann. § 99-39-21 (2000). Most relevant for the purposes

of this case is the doctrine of res judicata in § 99-39-21(3).

Hodges has raised in his Petition for Post-Conviction Relief

many of the issues he raised on direct appeal. Some of these

issues are supported by information submitted here for the

first time. The State argues that the issues are barred by res

judicata. Hodges states that the procedural bars “generally

do not or should not apply here.” We will discuss the

procedural bar further as it applies to each issue.

§6. Hodges raises the following issues in his Petition

for Post-Conviction Relief:

I. BECAUSE OF PROSECUTORIAL

MISCONDUCT THROUGH IMPROPER

CROSS EXAMINATION AND THE

INTRODUCTION OF FALSE EVIDENCE

DEPRIVED QUINTEZ HODGES OF A

FUNDAMENTALLY FAIR TRIAL AND

MANDATES HIS DEATH SENTENCE BE

VACATED BECAUSE OF PREVIOUS

VIOLATIONS OF HIS SIXTH, EIGHTH,

FOURTEENTH AMENDMENT RIGHTS.

Il. IN ADDITION AND ENHANCEMENT OF

THE PROSECUTORIAL MISCONDUCT

iil.

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AND FALSE TESTIMONY ELICITED BY

THE STATE OF MISSISSIPPI, THE TRIAL

COURT ERRED IN ADMITTING HIGHLY

PREJUDICIAL AND INFLAMMATORY

TESTIMONY AND IMPROPER EVIDENCE

CONCERNING HODGES’S PREVIOUS

CRIMINAL CHARGES AT SENTENCING,

CONTRARY TO THE PROVISIONS OF

RULES 403 AND 404 OF THE MISSISSIPPI

RULES OF EVIDENCE, AND AS A RESULT,

HODGES WAS DENIED A

FUNDAMENTALLY FAIR TRIAL AS

GUARANTEED BY THE UNITED STATES

AND THE MISSISSIPPI CONSTITUTIONS.

QUINTEZ HODGES WAS DENIED

EFFECTIVE ASSISTANCE OF COUNSEL AT

ALL STAGES OF THIS CAPITAL MURDER

PROSECUTION.

THE TRIAL COURT ERRED IN FAILING

TO ACCURATELY INSTRUCT THE JURY

REGARDING HODGES’S INELIGIBILITY

FOR PAROLE, DENYING HODGES AN

ACCURATE AND RELIABLE SENTENCING

DETERMINATION IN VIOLATION OF THE

MISSISSIPPI AND UNITED STATES

CONSTITUTIONS.

THE PROSECUTOR COMMITTED PLAIN

REVERSIBLE ERROR DURING

SENTENCING ARGUMENT BY IMPROPER

VI.

VIl.

VIII.

IX.

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AND UNFAIRLY PREJUDICIAL

COMMENTS AND AS A RESULT, HODGES

WAS DENIED A FUNDAMENTALLY FAIR

TRIAL.

THE CAPITAL MURDER INDICTMENT

WAS FLAWED FOR: FAILURE TO

PROPERLY CHARGE THE OFFENSE AND

DENIED HODGES AN OPPORTUNITY TO

PROPERLY PREPARE A DEFENSE.

THE DEATH SENTENCE IN THIS CASE

MUST BE VACATED BECAUSE THE

INDICTMENT FAILED TO CHARGE A

DEATH PENALTY ELIGIBLE OFFENSE.

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN REMOVING FOR

CAUSE A JUROR QUALIFIED TO SERVE

UNDER CONSTITUTIONAL STANDARDS.

THE TRIAL COURT ERRED IN FAILING

TO GRANT A DEFENSE REQUESTED

MISTRIAL FOLLOWING THE IMPROPER

INTRODUCTION OF OTHER CRIMES,

WRONGS OR ACTS EVIDENCE IN

VIOLATION OF RULES 403 AND 404 OF

THE MISSISSIPPI RULES OF EVIDENCE,

AND FURTHER, ERRED IN FAILING TO

ADMONISH THE JURY TO DISREGARD

SUCH EVIDENCE, OR IN THE

ALTERNATIVE, ERRED IN FAILING TO

XII.

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CHARGE THE TRIAL JURY SUA SPONTE

WITH A LIMITING INSTRUCTION

CONCERNING THE ADMISSION OF SUCH

EVIDENCE.

THE TRIAL COURT COMMITTED PLAIN

ERROR BY ALLOWING THE

INTRODUCTION OF EVIDENCE OF

OTHER CRIMES OF HODGES IN

VIOLATION OF RULES 403 AND 404,

M.R.E. WITHOUT FIRST CONDUCTING A

PROPER PROBATIVE VALUE VERSUS

PREJUDICIAL EFFECT ANALYSIS AND

WITHOUT ANY LIMITING/CAUTIONARY

INSTRUCTION.

THE TRIAL COURT ERRED IN ALLOWING

THE INTRODUCTION OF A PHOTO OF

THE DECEASED WHERE IT WAS

UNNECESSARY TO ESTABLISH A

DISPUTED FACT AND WAS HIGHLY

PREJUDICIAL, DENYING HODGES A FAIR

TRIAL.

THE TRIAL COURT ERRED IN DENYING

DEFENSE REQUESTED LESSER OFFENSE

INSTRUCTIONS ON MANSLAUGHTER

AND TRESPASSING, AS THE SAME WAS

SUPPORTED BY THE EVIDENCE AND

SUCH DENIAL UNFAIRLY PROHIBITED

HODGES FROM PRESENTING EVERY

DEFENSE THEORY OF THE CASE TO THE

XI.

XIV.

XVI.

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TRIAL JURY, IN VIOLATION OF HIS

FUNDAMENTAL RIGHTS AS

GUARANTEED BY THE UNITED STATES

AND MISSISSIPPI CONSTITUTIONS.

THE TRIAL COURT ERRED IN ALLOWING

THE JURY TO CONSIDER’ THE

UNCONSTITUTIONALLY DUPLICATIVE

AGGRAVATING CIRCUMSTANCE OF THE

FELONY OF BURGLARY, WHICH WAS

ALSO USED TO ELEVATE THE CRIME TO

CAPITAL MURDER.

THE TRIAL COURT ERRED IN ALLOWING

THE JURY TO CONSIDER THE INVALID

AGGRAVATOR OF AVOIDING ARREST,

WHICH THE JURY USED IN SUPPORT OF

A SENTENCE OF DEATH, DENYING

HODGES A RELIABLE SENTENCE AS

GUARANTEED BY THE UNITED STATES

AND THE MISSISSIPPI CONSTITUTIONS.

THE TRIAL COURT ERRED IN FAILING

TO MAKE A COMPLETE RECORD OF THE

INSTRUCTIONS OF LAW UPON WHICH

JURORS WERE TO RELY IN

DETERMINING THEIR VERDICTS.

THE AGGREGATE ERROR IN THIS CASE

REQUIRES REVERSAL OF THE

CONVICTION AND DEATH SENTENCE.

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FACTS

47. On the night of July 20, 1999, Hodges broke into

the home of his ex-girlfriend, Cora Johnson, in Lowndes

County, Mississippi, and kidnaped Cora Johnson and her

infant daughter. While at the home Hodges shot and killed

Cora Johnson’s brother, Isaac. Hodges then drove Cora and

her daughter to Alabama. Cora testified that while in Alabama

Hodges forced her into the back seat of the car and raped her

at gunpoint. Hodges then drove Cora and her daughter back

to her mother’s home and turned himself in to the police.

DISCUSSION

I. PROSECUTORIAL MISCONDUCT.

78. At his sentencing hearing Quintez Hodges called his

mother, Johnnie Hodges, as a witness and also took the stand

in his behalf. Johnnie Hodges was cross-examined by the

State as to a guilty plea hearing held in 1998 on a burglary

charge for Quintez, cause no. 98-430-CR1, Lowndes County

Circuit Court. The State asked Johnnie Hodges if Bessie

Tatum, mother of Isaac and Cora Johnson, had asked that

Quintez be placed in the RID program. Hodges said that all

she remembered was the State asking for seven years in the

penitentiary. The State asked Johnnie about the presence of

then Assistant District Attorney James Kitchens, at the

hearing, requesting a fifteen-year sentence for Quintez.

Johnnie did not remember anything, except a seven-year

sentence. The State asked the same questions on cross-

examination of Quintez Hodges. He also denied or did not

recall anything about Bessie Tatum not wanting him to go

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the penitentiary or about James Kitchens’s presence at the

hearing.

49. The State then called James Kitchens as a rebuttal

witness. Kitchens testified that he handled Hodges’s plea

hearing for the State in November 1998. Kitchens testified

that he met with Hodges’s attorney, William Bambach, and

that Bambach had talked to Bessie Tatum and she did not

want Hodges to go to the penitentiary. Kitchens testified that

he met with Tatum and she told Kitchens that she did not

want Quintez to go to the penitentiary. Kitchens testified that

Quintez Hodges put on a couple of witnesses to ask for a

lighter sentence, because the State was asking for fifteen-

years. Kitchens testified that at the conclusion of the hearing

William Bambach stated that Bessie Tatum told him that she

did not want Quintez to go to the penitentiary because

Quintez was the father of her grandchild. Kitchens testified

that he stated that he had spoken to Tatum and that was what

she wanted. Kitchens testified that the State retired two other

criminal counts as a result of Quintez’s guilty plea. The State

then, on closing argument at Hodges’s sentencing hearing,

informed the jury that

in November of 1998, whether he [Quintez

Hodges] wants to acknowledge it or not, he was

given a huge measure of grace because rather than

being sent to the penitentiary for 15 years as the

State of Mississippi was seeking, he received

intercession from the most unlikeliest of sources

and through her good will and through her efforts

this defendant was sentenced instead to the

functional equivalent of probation. Three weeks

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after his release from custody, after being given a

second chance of monumental proportions, he

kills and kidnaps.

410. Quintez Hodges raised the issue of prosecutorial

misconduct on direct appeal. Hodges attempted to show that

Kitchens’s testimony at the sentence hearing was false by

comparing it to a transcript of the 1998 plea hearing. This

Court did not consider the November 1998 plea hearing

transcript as it was not part of the appeal record. The Court

stated:

Hodges argues that according to Branch v. State,

882 So.2d 36, 49 (Miss. 2004), this Court is

allowed to consider such extraneous evidence not

in the record. However, this Court in Branch

clearly set forth that such appendices which were

not part of the trial record were io be considered

only on the Atkins and ineffective assistance of

counsel issues. Here, during oral argument,

defense counsel conceded that he was not pursuing

this issue as ineffective assistance of counsel, but

rather was doing so under the theory of

prosecutorial misconduct. Also, this Court has

recently amended Rule 22 of the Mississippi Rules

of Appellate Procedure. Even though this

amendmen does not apply to the case sub judice,

this Court holds that the plea hearing, which is

not in the record, is barred from consideration and

Branch does not allow this Court to consider such

extraneous evidence. To make it clear what this

Court can consider on direct appeal in future

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cases, Rule 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. M.R.A.P. 22 (emphasis added).

Hodges, 912 So.2d at 750. This Court then found that the.

issue was procedurally barred because of lack of defense

objection to the testimony in question but proceeded to

consider the issue on the merits. Jd. at 750-51. This Court

found that while it would have been improper for the State

to ask these questions on cross-examination without

evidentiary basis, the rebuttal testimony of James Kitchens

provided an evidentiary basis. Jd. This Court further stated

that, in order to show a denial of due process, Hodges would

have to show “(1) the testimony was false; (2) the testimony

was material to the verdict, and (3) the prosecutor knew or

believed the testimony to be false,” Jd. at 751 (citing Westley

v. Johnson, 83 F.3d 714, 726 (S" Cir. 1996)). The Court found

that Hodges could not prove these elements. /d.

11. Hodges raises this issue again in his request for

post conviction relief, with the transcript of the plea hearing

attached.

412. The State argues that this issue is barred by res

judicata, stating that it was considered on direct appeal by

this Court on its merits. The State cites Crawford yv. State,

867 So.2d 196, 202 (Miss. 2003), where this Court stated:

Post-conviction review is a limited proceeding

whereby this Court will only review “those

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objections, defenses, claims, questions, issues or

errors which in practical reality could not or

should not have been raised at trial or on direct

appeal.” Cabello v. State, 524 So.2d 313, 323

(Miss. 1988) (quoting Miss. Code Ann. § 99-39-

3(2) (Supp. 2003)).

Claims and theories that could have been but were

not presented to the trial court or to this Court on

direct appeal are procedurally barred from being

reviewed by this court on post-conviction review.

Locketi v. State, 614 So.2d 888, 893 (Miss. 1992).

Likewise, all issues, both factual and legal, that

were decided at trial and/or on direct appeal are

barred from review as res judicata. Miss. Code

Ann. § 99-39-21(3) (Supp. 2003).

The burden of proving that no procedural bar

exists falls squarely on the petitioner. Lockett, 614

So.2d at 893. For this Court to hear claims or

theories that were not presented at trial or on direct

appeal, the petitioner must show cause for not

having already brought the claim and that this

caused actual prejudice to his case. Lockett v.

State, 614 So.2d at 893. To create an exemption

from the procedural bar under res judicata

principles, petitioner must show that his “claim

is so novel that it has not previously been

litigated” or that “an appellate court has suddenly

reversed itself on an issue previously thought

settled.” /d. (quoting /rving v. State, 498 So.2d

305, 311 (Miss. 1986)). Petitioner will also defeat

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procedural bar if he can demonstrate that “he has

evidence, not reasonably discoverable at the time

of trial, which is of such nature that it would be

practically conclusive that had such been

introduced at trial it would have caused a different

result in the conviction or sentence.” Miss. Code

Ann. § 99-39-23(6).

413. Hodges relies on Havard v. State, 928 So.2d 771

(Miss. 2006), where this Court cited its decision in Hodges

and discussed whether the Court would consider documents

not in the appeal record in support of issues raised by the

defendant. This Court held that documents which were not

included in the appeal record would not be considered.

Havard, 928 So.2d at 785-86.

414. The law supports the State’s argument. On direct

appeal, the Court considered and decided the issue of

prosecutorial misconduct on the merits. Therefore, res

judicata bars Hodges from raising this issue again.

Ii. ADMISSION OF EVIDENCE OF OTHER

OFFENSES.

415. Hodges next argues that the trial court erred in

allowing the State to improperly cross-examine him and his

witnesses presented during the sentencing hearing. Each

witness will be discussed separately.

416. Lisa Hodges - Lisa Hodges is Quintez Hodges’s

sister. During cross-examination by the State she was asked

about Quintez escaping from jail twice. Hodges argues that

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evidence of escape attempts was not relevant to any of the

statutory aggravating factors and was improper rebuttal to

Lisa Hodges’s testimony. Hodges argues that it could have

improperly influenced the jury as to sentencing because of

the implication of future dangerousness. As the State points

out, this issue was raised by Hodges on direct appeal. This

Court stated:

The prosecution has no right to introduce evidence

of wrongs and bad acts to prove Hodges’s

character or to show he acted in conformity

therewith, unless it is competent rebuttal evidence

in the face of the showing of Hodges’s good

character made on direct examination of this

witness. Hansen v. State, 592 So.2d 114, 148

(Miss. 1991) (citing Simpson v. State, 497 So.2d

424, 428-29 (Miss. 1986); Winters v. State, 449

So.2d 766, 771 (Miss. 1984)). M.R.E. 404(b)

provides that:

Evidence of other crimes, wrongs, or

acts is not admissible to prove the

character of a person in order to show

that he acted in conformity therewith. It

may, however, be admissible for other

purposes such as proof of motive,

oppertunity, intent, preparation, plan,

knowledge, identity, or absence of

mistake or accident.

The State questioned Hodges’s sister about a prior

bad act, the two attempts to escape jail. On direct

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examination, Hodges’s sister testified that

Hodges’s character was good, that he respected

his elders, did not disobey his parents, and that

he was not a violent person and never fought. Her

direct examination testimony opened the door to

the State to ask these questions. There was

testimony on direct that he was a good boy that

respected his elders. The introduction of the two

prior escapes from the jail was not error.

Hodges, 912 So.2d at 755.

417. Chris Hodges - Chris Hodges is Quintez Hodges’s

nephew. During cross-examination by the State Chris was

questioned about Quintez Hodges’s arrests for burglary of a

school in 1997 and burglary and attempted sexual battery in

1998. Quintez Hodges argues that evidence of these arrests

was not relevant to any statutory aggravating factor, nor was

it proper rebuttal to Chris Hodges’s testimony. As the State

points out, this issue was raised by Hodges on direct appeal.

This Court stated:

As stated previously, the prosecution has no right

to introduce evidence of wrongs and bad acts to

prove Hodges’s character or to show he acted in

conformity therewith, unless it is competent

rebuttal evidence in the face of the showing of

Hodges’s good character made on direct

examination of this witness. Hansen, 592 So.2d

at 148. On direct examination, Chris testified that

Hodges’s character was good and that he was not

disruptive and not the kind of person to commit

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this crime. He also testified that Hodges did not

have problems with the law prior to the charge of

burglary of Cora’s house and that the problems

with the law stemmed from his relationship with

Cora. This direct testimony opened the door to

bring in the prior bad acts that occurred prior to

the burglary of Cora’s house and the bad acts that

had nothing to do with Cora. The introduction of

these other burglaries and the sexual battery was

not error.

Hodges, 912 So.2d at 755.

418. Quintez Hodges - Quintez Hodges testified at the

sentencing phase that he had been charged with one other

crime, the burglary of Cora Johnson’s house. On cross-

examination the State questioned Hodges about other charges,

and introduced into evidence an indictment in cause no. 98-

432-CR1, charging Hodges with breaking into the dwelling

house of Tasha Martin and attempted sexual battery of Tasha

Martin. Hodges did not object to the introduction of the

indictment at trial. Hodges now argues that this amounted to

plain error, as an indictment cannot be used for impeachment

or rebuttal. As the State points out, this issue was raised by

Hodges on direct appeal. This Court stated:

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. Hodges was not

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denied a substantial right by the introduction of

this indictment.

The State argues that the introduction of this

indictment was not improper because it was used

to rebut Hodges’s inferences and direct statements

that his prior criminal history was insignificant.

Indeed, this Court has held that “the State is

allowed to rebut mitigating evidence through

cross-examination, introduction of rebuttal

evidence or by argument.” Wiley v. State, 750

So.2d 1193, 1202 (Miss. 1999) (quoting Turner

v. State, 732 So.2d 937 at 950).

Notwithstanding the procedural bar, this issue is

without merit.

Hodges, 912 So.2d at 757-58.

419. The State argues that all three parts of this issue

were raised on direct appeal and Hodges is barred by res

judicata from raising the issue here again on the post-

conviction level. Miss. Code Ann. § 99-39-21(3). This Court

agrees that Hodges is barred by res judicata from again raising

this issue.

Ill. ASSISTANCE OF COUNSEL.

420. Hodges next argues that he was denied effective

assistance of counsel. He does not differentiate between his

two trial lawyers but most of his argument is directed toward

the actions of Michael D. Miller. This Court has stated the

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following on ineffective assistance of counsel and the

standard provided in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

“The benchmark for judging any claim of

ineffectiveness [of counsel] must be whether

counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial

cannot be relied on as having produced a just

result.” Strickland v. Washington, 466 U.S. 668,

686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A

defendant must demonstrate that his counsel’s

performance was deficient and that the deficiency

prejudiced the defense of the case. /d. at 687, 466

U.S. 668, 104 S.Ct. 2052. “Unless a defendant

makes both showings, it cannot be said that the

conviction or death sentence resulted from a

breakdown in the adversary process that renders

the result unreliable.” Stringer v. State, 454 So.2d

468, 477 (Miss. 1984) (citing Strickland vy.

Washington, 466 U.S. at 687, 104 S.Ct. 2052).

The focus of the inquiry must be whether

counsel’s assistance was reasonable considering

all the circumstances. Jd.

Judicial scrutiny of counsel’s

performance must be highly deferential.

(citation omitted) ... A fair assessment

of attorney performance requires that

every effort be made to eliminate the

distorting effects of hindsight, to

reconstruct the circumstances of

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counsel’s challenged conduct, and to

evaluate the conduct from counsel’s

perspective at the time. Because of the

difficulties inherent in making the

evaluation, a court must indulge a strong

presumption that counsel’s conduct falls

within the wide range of reasonable

professional assistance; that is, the

defendant must overcome the

presumption that, under. the

circumstances, the challenged action

‘might be considered sound trial

strategy.’

Stringer, 454 So.2d at 477 (citing Strickland, 466

U.S. at 689, 104 S.Ct. 2052). Defense counsel is

presumed competent. /d.

Then, to determine the second prong of

prejudice to the defense, the standard is

“a reasonable probability that, but for

counsel’s unprofessional errors, the

result of the proceeding would have

been different.” Mohr v. State, 584 So.2d

426, 430 (Miss. 1991). This means a

“probability sufficient to undermine the

confidence in the outcome.” Jd. The

question here is:

whether there is a reasonable

probability that, absent the errors,

the sentencer-including an

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appellate court, to the extent it

independently reweighs the

evidence-would have concluded

that the balance of the aggravating

and mitigating circumstances did

not warrant death. Strickland, 466

U.S. at 695, 104 S.Ct. at 2068.

There is no constitutional right then to

errorless counsel. Cabello v. State, 524

So.2d 313, 315 (Miss. 1988): Mohr v.

State, 584 So.2d 426, 430 (Miss. 1991)

(right to effective counsel does not

entitle defendant to have an attorney

who makes no mistakes at trial;

defendant just has right to have

competent counsel). If the post-

conviction application fails on either of

the Strickland prongs, the proceedings

end. Neal v. State, 525 So.2d 1279, 1281

(Miss. 1987); Mohr v. State, 584 So.2d

426 (Miss. 1991).

Davis v. State, 743 So.2d 326, 334 (Miss. 1999)

(citing Foster v. State, 687 So.2d 1124, 1130

(Miss. 1996)).

Brown v. State, 798 So.2d 481, 493-94 (Miss. 2001).

421. Hodges presents at least twelve arguments under

this issue, but like the rest of his Petition, most of the issue

repeats what was raised and rejected by this Court on direct

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appeal. The State argues that Hodges’s argument is barred

by res judicata, citing Sanders v. State, 846 So.2d 230, 239

(Miss. Ct. App. 2002), where the Court of Appeals stated:

“Rephrasing direct appeal issues for post-conviction purposes

will not defeat the procedural bar of res judicata.” This quote

referred to a search aid seizure issue. We have treated

ineffective assistance of counsel differently. Once again

Hodges cites Havard, where this Court considered Havard’s

ineffective assistance of counsel claims. The questions raised

in Havard were whether to consider the ineffective assistance

claims on direct appeal or defer consideration until the post-

conviction stage, and whether to consider extraneous

materials not found in the appeal record. This Court

considered the claims but not the extraneous materials. This

Court further found: “Having raised this issue with different

counsel on direct appeal, Havard has preserved his right to

raise this issue, supported by affidavits, in future post-

conviction proceedings..” Havard, 928 So.2d at 786; see also

McGee v. State, 929 So.2d 353, 365 (Miss. Ct. App. 2006)

(same). Where Hodges raised ineffective assistance of

counsel on direct appeal, and raises it again here, supported

by extraneous materials that were not available on direct

appeal, our consideration of the issue is not barred by res

judicata. Where Hodges raises ineffective assistance of

counsel at the post-conviction stage, and it is the same issue

raised on direct appeal but only rephrased, res judicata will

apply.

A. Failure to support motion to suppress confession

422. Hodges first argues that trial counsel was

ineffective where he made a motion to suppress Hodges’s

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confession, but did not properly support the motion with

sufficient evidence so that it would be granted. Keven Pitre,

Lowndes County Sheriff Department, took Hodges’s

statement in which he confessed to shooting Isaac Johnson.

Hodges claims that Pitre testified at Hodges’s preliminary

hearing that he told Hodges that he was facing a possible

death sentence or life imprisonment for shooting Johnson.

Hodges argues that Pitre then testified at the suppression

hearing that Hodges didn’t ask any questions before signing

the statement and rights form. Hodges raised this allegation

of inconsistent testimony on direct appeal. This Court found

that Pitre did not give inconsistent testimony, as the

preliminary hearing testimony dealt with Hodges’s answers

once he was being questioned, while the suppression hearing

testimony dealt with Hodges’s conduct while being read his

rights, before the questioning began, and counsel was not

deficient. Hodges, 912 So.2d at 760-61.

B. Failure to investigate and confront prosecution

witnesses

23. Hodges argues that his trial counsel should have

impeached prosecution witness Anthony Betts with his guilty

plea to a charge of burglary. Hodges argues that Betts’s

testimony that Hodges’s “was going to buy a gun and shoot

somebody” was crucial evidence as to Hodges’s intent to

assault. This Court found that Betts’s testimony was mostly

cumulative, and without it there was ample testimony to

support a conviction. Hodges, 912 So.2d at 762-63.

424. In addition, Hodges now argues that his counsel

was also ineffective for failure to investigate and confront

23a

Appendix A

Cora Johnson at trial. Hodges argues that Cora Johnson wrote

to Hodges numerous times while he was incarcerated, and

the letters would have shown that she at one moment stated

that she loved Hodges and another stated that she had moved

on to other men. Hodges further states that his niece, Lakasha

Hodges, would have testified that Cora Johnson called

Hodges repeatedly on the night of the shooting. While this

information might have been helpful, and defense counsel

should have been aware of it, its persuasive effect is

questionable. However unfair or manipulative Cora Johnson

might have been in their relationship, Hodges still broke into

her house and killed her brother.

C. Failure to properly advise on plea bargain

425. Hodges argues that although the only two possible

sentencing options in the event he was convicted of capital

murder were death and life imprisonment without parole, he

was incorrectly informed by his counsel and the trial court

that a third option in the event of conviction was life

imprisonment with parole. Hodges stated trial counsel told

him that the State had offered a plea of life without parole,

but he had rejected it because of the possibility of life with

parole. On direct appeal this Court found that Hodges did

not prove that he would have accepted the plea offer if he

had been advised correctly, and counsel was not ineffective.

Hodges, 912 So.2d at 763.

24a

Appendix A

D. Failure to present available evidence in

mitigation

26. Hodges make a general argument here, and it

appears that this issue serves as an introduction to the specific

arguments made in the next four issues. Hodges does argue

that an instruction offered by his trial counsel contained four

mitigating circumstances and the trial court erred in refusing

the instruction. Hodges states that the trial court only allowed

one mitigating circumstance to go to the jury, but also states

that “[t]here was no evidence nor argument offered at trial

to support the first three factors.”

427. In his Reply/Supplement Hodges identifies

numerous members of his family that have attached affidavits

and say now that they would have testified if they had been

called as witnesses. Their testimony would have included

Quintez’s family history and his relationship with his mother

and his relationship with Cora Johnson. Hodges also states

that his cousin, Lakasha Hodges, could have disputed the

testimony of prosecution witness Anthony Betts as to events

of the night of the shooting. Betts testified that Quintez

Hodges had stated the weekend before the shooting that he

was going to buy a gun and kill somebody. This was the real

value of Betts’s testimony and Lakasha Hodges does not

claim to be able to dispute this. In addition, each time one of

the proposed witnesses testified that Quintez Hodges was a

good, peaceful, misunderstood person, they would have

opened the door for cross-examination and renewed emphasis

by the State on Hodges’s prior criminal actions, as happened

to Lisa and Chris Hodges, who testified during sentencing.

25a

Appendix A

E. Failure to subpoena an expert witness from

Whitfield

428. Hodges next argues that his trial counsel should

have called a witness from Whitfield as an expert in

mitigation. Hodges states that trial counsel was having some

communication with psychiatrist Dr. Phillip Meredith during

the trial. Hodges specifically argues that mental health experts

could have provided helpful testimony concerning his youth,

his prior escape from county jail, his history of drug abuse,

his limited education and his difficult relationship with Cora

Johnson. When considered on direct appeal this Court found

that this evidence was presented to the jury through other

witnesses except for evidence of drug abuse, which this Court

found was “not so compelling that there is a reasonable

probability at least one juror could reasonably have

determined that death was not an appropriate sentence.”

Hodges, 912 So.2d at 766.

429. Hodges now supplies additional opinions from

mental health experts. Dr. Karen S. Wiviott, a psychiatrist,

evaluated Hodges in June 2006 and found that

Hodges was an immature and impulsive |8-year-

old who came from a background of poverty and

emotional deprivation. Disruption in both of his

parental relationships during his early years left

him with rejection sensitivity and vulnerability to

abandonment. Only three weeks out of prison, he

was especially vulnerable to rejection by Cora

Johnson, who was central to his hopes for the

future. Her inconsistency in the preceding months

26a

Appendix A

and weeks and her betrayal on the night of July

20, 1999 had a profound effect on Mr. Hodges

that contributed significantly to his actions on that

night.

430. Dr. Wiviott’s psychiatric evaluation is also

interesting for what it does not include. Unlike so many

capital cases, there is no allegation of child abuse endured

by Hodges; Hodges’s father did not live with Quintez and

his mother but did have a relationship with Hodges when

Hodges was growing up. Hodges’s mother reportedly was

an alcoholic, but she stopped drinking when Quintez was

young and he did not remember these episodes. Quintez used

marijuana regularly, and alcohol less so in his teenage years,

but nothing tied this use to any of his problems with the law.

There is no allegation of retardation or insanity. Hodges’s

witnesses agree that Hodges’s behavior worsened when his

family moved from Columbus to Caledonia when he was

thirteen.

431. Dr. Marc Zimmerman, a psychologist, also

performed a psychological evaluation of Hodges in June

2006. Dr. Zimmerman found that Hodges was suffering from

post-traumatic stress disorder. We find that even if counsel

had been able to produce these evaluations at the time of

trial, the evaluations are not that compelling, particularly in

the context of a death penalty case.

27a

Appendix A

F. Failure to introduce the victim impact

statement

432. Hodges next argues that his counsel was ineffective

for failure to introduce the victim impact statement of Bessie

Tatum, the mother of Isaac and Cora Johnson. Hodges argues

that the statement shows that Bessie Tatum did not want him

put to death and this might have influenced the jury. On direct

appeal this Court found that the statement was not that

helpful, and that the decision not to make the jury aware of

the statement was acceptable trial strategy. Hodges, 912

So.2d at 766-67.

G. Failure to adequately confront prosecution

witness Johnny Robbins

933. Johnny Robbins, a probation officer from the

MDOC, was called as a witness for the sole purpose of

introducing Hodges’s prior burglary conviction into evidence

at sentencing. Hodges argues that trial counsel should have

objected to the introduction of the copy of the conviction

and should have brought out personal information about

Hodges on cross-examination. On direct appeal this Court

found that the copy of the conviction was properly admitted,

so counsel was not ineffective for failure to object. This Court

further found that “there is no indication that Robbins knew

Hodges personally and could have testified to” information

of a personal nature. This Court further found that, assuming

trial counsel failed to adequately cross-examine Robbins,

there was no prejudice. Hodges, 912 So.2d at 767.

28a

Appendix A

434. Hodges argues that defense counsel should have

brought out, through Johnny Robbins or some other

corrections officer, that Hodges exhibited no behavioral

problems during his time in RID. While this might have been

helpful, it also might have reminded the jury that Hodges

was given an opportunity to avoid the conduct which resulted

in his death sentence and wasted it. "

H. Denial of overnight recess before closing

argument

435. Hodges argues that trial counsel was rendered

ineffective by the trial court’s failure to allow a recess after

the close of evidence at the sentencing phase. Hodges states

that it was error not to allow counsel a reasonable time to

prepare and the jury some time to rest before closing

arguments and deliberations as to sentence. On direct appeal

this Court found no error in stating that “[t]here is no evidence

in the record of an undue burden upon counsel in continuing

the case to conclusion and no indication in the record that

the jury had difficulty in proceeding with the case.” Hodges,

912 So.2d at 767-68.

I. Failure to properly prepare Hodges for his

testimony

936. Hodges argues that counsel was ineffective for

failure to prepare him as a witness for his sentencing hearing

once Hodges decided to testify. Hodges states that because

of this lack of preparation, he was “opened up on cross-

examination to all prior charges because defense counsel

failed the explain the difference between a ‘charge’ and a

29a

Appendix A

conviction.” On direct appeal this Court found that, even

assuming defense counsel was deficient in not making sure

Hodges knew this difference, Hodges still had not shown

prejudice. Hodges, 912 So.2d at 768-69.

J. Lead trial counsel was ineffective in this matter

because of inadequate experience, time,

resources and personal circumstances

437. Hodges next discusses why Michael D. Miller was

ineffective. Hodges states that Miller was ineffective because

of his inexperience, in that he had been admitted to the Bar

less than a year before Hodges’s trial and had not previously

tried a case before a jury in circuit court. Hodges states that

Miller was suffering from bi-polar disorder. Hodges states

that Miller was using various prescription and non-

prescription drugs around the time of Hodges’s trial,

including marijuana, methamphetamine and cocaine. After

the trial Miller’s parents sought to have him committed

because of his suicidal thoughts and paranoid delusions. In

January 2003, Miller was found to be a “mentally ill person

who poses a substantial likelihood of physical harm to

himself” and was committed by the Chancery Court of

Lowndes County to East Mississippi State Hospital.

438. Hodges cites Jermyn v. Horn, 266 F.3d 257 (3"

Cir. 2001), where the United States District Court granted

Jermyn another sentencing hearing after finding that his

counsel was ineffective in failing to timely prepare and

investigate possible claims involving his client’s mental

health. Hodges states that the comparisons with his case and

Jermyn are “exact,” except that in Jermyn’s case there was a

30a

Appendix A

wealth of information to find by investigation, including

mental health professionals who had found Jermyn to be

schizophrenic and evidence of a horrific childhood filled with

physical and mental abuse committed by Jermyn’s father.

There are no such factors present in Hodges’s case.

39. The State argues that if Michael Miller provided

ineffective assistance of counsel, as this Court found on direct

appeal, then a new or more compelling explanation for the

same behavior is irrelevant. The State argues that what is

important in an ineffective assistance claim is the behavior,

not the explanation for the behavior. In Berry v. King, 765

F.2d 451, 454 (5" Cir. 1985), the Fifth Circuit noted that

whether Berry’s attorney had used drugs during Berry’s trial

was disputed, and added: “In any case, under Strickland the

fact that an attorney used drugs is not, in and of itself, relevant

to an ineffective assistance claim. The critical claim is

whether, for whatever reason, counsel’s performance was

deficient and whether that deficiency prejudiced the

defendant. We therefore concentrate on Berry’s specific

allegations of deficient performance and prejudice.” See also

Guy v. Cockrell, No. 01-10425, 2002 WL 32785533, 2002

U.S. App. LEXIS 28184, at *10 (5" Cir. July 23, 2002)

(counsel’s admitted drug use during trial only relevant if

inmate could show where counsel’s performance was

deficient because of drug use, citing Berry); Burnett v.

Collins, 982 F.2d 922 (5" Cir. 1993) (same); Gonzales v.

State, 915 So.2d 1108, 1111 (Miss. Ct. App. 2005) (failure

to show prejudice from attorney’s alleged drug use). This

evidence of drug use and illness may explain some of Michael

Miller’s behavior before and during Hodges’s trial, but it

3la

Appendix A

does not change this Court’s finding on direct appeal that

Michael Miller provided ineffective assistance of counsel.

K. Trial counsel was ineffective for failure to

adequately argue for investigative assistance and

was likewise rendered ineffective by the trial

court’s denial of investigation assistance

440. Hodges argues that Michael Miller requested that

the circuit court appoint an investigator, but failed to present

to the court ample reason with supporting evidence as to why

an investigator was needed. This Court cannot find such a

motion in the appeal record, though Miller did testify at a

pretrial hearing that he might file such a motion. Hodges

next states that it would have been relatively easy for Miller

to show the need for an investigator, especially considering

the short time he had before trial. While Miller might have

needed an investigator, what he needed more than anything

was sufficient time to prepare for trial, which was impossible

given his voluntary entrance into this case on August 20,

2001, for a case set for September 10, 2001. As a practical

matter, finding an investigator within that time frame and

the investigator’s ability to accomplish any work of value

are doubtful. Finally, Hodges states that “[i]t should be noted

that at all times pertinent to the trial, Hodges was incarcerated

and had been declared indigent. His fortune had not changed

while he was in jail awaiting trial.” Despite this allegation

of financial status, someone hired Miller to represent Hodges.

The trial judge specifically noted this when Miller mentioned

that he might ask for an investigator: “He’s not indigent

because he’s hired counsel.”

32a

Appendix A

441. The Court finds that Hodges raised in his direct

appeal the arguments found in parts A, C, F, H and I, and he

is barred from raising those issues again here by res judicata.

The remaining allegations of ineffective assistance of counsel

made by Hodges are found to be without merit, as is this

issue as a whole.

IV. JURY INSTRUCTIONS ON PAROLE

ELIGIBILITY.

42. Hodges next argues that the trial court erred in

allowing the jury to be instructed that Hodges was eligible

for a sentence of life imprisonment with the possibility of

parole. He also argues that the problem was compounded

when the State made the same allegation in its closing

argument to the jury. As the State points out, this issue was

raised by Hodges on direct appeal. This Court stated:

While it is true that the statute [Miss. Code Ann.

§ 99-19-101] does provide for three alternatives,

it is also true that the earned time allowance and

parole statutes effectively eliminate the possibility

of parole for someone convicted of capital murder.

This is an inconsistency in statutes that needs to

be addressed by the Legislature. However, the

question now becomes whether this inconsistency

caused prejudicial error in the case at bar. Where

the jury imposes the death penalty, the fact that

the jury was given the option of parole does not

constitute harmful error. As this Court stated in

Puckett v. State, 737 So.2d 322, 363 (Miss. 1999),

33a

Appendix A

the true harmful error would arise in

those cases where the trial court strictly

follows the language of § 99-19-101 in

capital murder cases, submits all three

options to the jury, and the jury selects

the option of life imprisonment. In this

instance, the defense could argue that

the jury was misled in that they selected

the life imprisonment sentence with the

assumption that the defendant may be

eligible for parole, when in reality the

defendant would not be eligible for

parole by virtue of the parole and earned

time statutes.

The true harmful error situation did not occur in

the case sub judice. The jury was given all three

alternatives but it sentenced Hodges to death and

not life imprisonment. Based on Williams and

Puckett, this issue is without merit.

Furthermore, this Court finds that the language

on the verdict form stating 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” was improper because it was

an incorrect statement of law. Pursuant to Miss.

Code Ann. 99-19-101, the judge must “impose a

sentence [**89] of imprisonment for life” when

the jury cannot agree on the punishment and under

our parole statutes a life sentence rendered

pursuant to Miss. Code Ann. § 99-19-101 will

34a

Appendix A

automatically be a life without parole sentence.

Even though this language in the verdict form was

an improper statement of the law, such error was

harmless since the jury, knowing that it had the

life without parole option, chose death.

Hodges, 912 So.2d at 772. Hodges is barred by res judicata

from raising this issue. See Miss. Code Ann. § 99-39-21(3).

V. IMPROPER COMMENTS BY PROSECUTION

DURING SENTENCING CLOSING

ARGUMENT.

943. Hodges next argues that the State’s closing

argument amounted to reversible error because of the District

Attorney’s references to the September 11 terrorist attacks,

which occurred during Hodges’s trial, and some Biblical

references. The arguments were made to the jury on

September 12, 2001. The allegation of plain error is made

because there was no contemporaneous objection to the

argument by defense counsel. As the State points out, this

issue was raised by Hodges on direct appeal. This Court stated

that “[c]onsidering the wide latitude given to attorneys for

closing arguments and considering the State’s comment in

reference to the defense’s own closing, Hodges’s arguments

are without merit and there [is] no unfair prejudice.” Hodges,

912 So.2d at 754. Hodges is barred by res judicata from

raising this issue.

35a

Appendix A

VI. INDICTMENT FAILED TO PROPERLY

CHARGE OFFENSE.

944. Hodges next argues that his indictment was

defective for stating that Hodges’s burglary of the Johnson

house was committed with intent to commit assault within

the house, but failed to specify the intended victim of the

assault. Hodges cites State v. Berryhill, 703 So.2d 250, 256

(Miss. 1997), where this Court stated: “[A] defendant ... who

has been indicted without specifying the burglary may find

out on the eve of trial that the State might try to prove the

burglary on different theories. Needless to say, different

theories would plainly invite different defenses.” Hodges

alleges that the State’s proof at trial as to assault was

inconsistent, included numerous theories, and made

preparation of a defense impossible. As the State points out,

this issue was raised by Hodges on direct appeal. This Court

stated the following on this matter:

The indictment in the case sub judice complies

with the rule set forth in Berryhill. The indictment

charged Hodges with capital murder with the

underlying felony of burglary. Since the

underlying felony was burglary, the State was

required to specify the underlying offense, which

they did. It charged Hodges with burglary with

the intent to commit an assault therein. This Court

has stated that

[t]he allegation of the ulterior felony

intended need not, however, be set out

as fully and specifically as would be

36a

Appendix A

required in an indictment for the actual

commission of that felony. It is

ordinarily sufficient to state the intended

offense generally, as by alleging an

intent to steal, or commit the crime of

larceny, rape or arson.

Booker v. State, 716 So.2d 1064, 1068 (Miss.

1998) (citing Am. Jur. 2d Burglary § 36 (1964)).

Therefore, all the State was required to do was

state the intended offense generally by alicging

the intent to assault. The State did exactly what

was required. Hodges was able to prepare a

defense and was well aware, from the indictment,

that the State intended to prove burglary with the

intent to commit an assault therein. The State did

not try to prove different theories of burglary as

Hodges claims. The State set out to prove that

Hodges went to Cora’s house that night armed

with a gun and intended to shoot Cora and/or

Bessie Tatum. Hodges himself told Cora on the

night of the shooting that he went to her house to

shoot her and/or Bessie Tatum (if she had been

home). Hodges also told his friend, Anthony Betts,

that he was going to buy a gun and kill somebody.

Hodges then went to Cora’s house that night

armed with a gun. Hodges has not shown that he

was prejudiced in the preparation of his defense.

This issue is without merit.

Hodges, 912 So.2d at 774-75. Hodges is barred by res

judicata from raising this issue.

37a

Appendix A

VILINDICTMENT FAILED TO CHARGE A

DEATH PENALTY ELIGIBLE OFFENSE.

XI. JURY ALLOWED TO CONSIDER

DUPLICATIVE AGGRAVATING CIRCUM-

STANCE.

45. These issues were considered together by this Court

on direct appeal. Hodges first argues that his indictment was

improper because it failed to enumerate the aggravating

factors and the mens rea element. Hodges also argues that it

was improper for the trial court to allow the jury to find

Hodges guilty of capital murder, with the underlying felony

being burglary, and then allow burglary to be submitted to

the jury for consideration as an aggravating factor in

sentencing. As the State points out, these issues were raised

by Hodges on direct appeal. This Court considered the issues

and found them to be without merit. Hodges, 912 So.2d at

775-77. Hodges is barred by res judicata from raising these

issues.

VIII. REMOVAL OF JUROR.

946. Hodges next argues that the trial court erroneously

upheld a challenge for cause by the State on venire person

James Thomas, # 69. Hodges argues that Thomas expressed

consistent views during individual voir dire by the State and

trial judge that did not justify removal from the venire. As

the State points out, this issue was raised by Hodges on direct

appeal. This Court stated the following on this matter:

38a

Appendix A

Likewise, in the case sub judice, the trial judge

excluded the prospective juror because of his

contradictory responses to the questions regarding

the death penalty. This case is analogous to the

King [{v. State, 784 So.2d 884 (Miss. 2001)] case

in that the juror stated in his questionnaire that he

could never impose the death penalty but during

questioning by the court he stated that he may be

able to in the right case. He even went further and

stated that he would favor life over death but when

questioned by defense counsel he recanted this

answer and stated that he could consider all

possibilities. “It goes without saying that a

potential juror who cannot give a straight answer

would be very unlikely to follow the law.” King,

784 So.2d 884 at 888. “If jurors provide

inconsistent answers regarding their feelings on

the stated law of this state, they may be struck for

cause.” Brown v. State, 890 So.2d 901, 910 (Miss.

2004). Given this potential juror’s equivocal

stance on the issue, the trial court did not abuse

its discretion in striking him for cause.

Hodges, 912 So.2d at 778. Hodges is barred by res judicata

from raising this issue.

IX. INTRODUCTION OF EVIDENCE OF OTHER

CRIMES.

447. Hodges next argues that the trial court erred in

failing to grant a mis‘trial when Cora Johnson testified for

the State that Hodges “broke in and me and my mother found

39a

Appendix A

him underneath my bed, and he got locked up for a year and

a half.” Hodges further argues that the trial court erred in

failing to admonish the jury to disregard the evidence and in

failing to sua sponte approve a limiting instruction concerning

this evidence. As the State points out, this issue was raised

by Hodges on direct appeal. This Court stated the following

on this matter:

In the case sub judice, the prosecutor did not ask

Cora about Hodges’s jail time from burglarizing

her house, but instead asked her about her

relationship with Hodges, to which Cora

mentioned his jail time he served when he broke

into her house. The prosecutor thereafter directed

Cora’s testimony towards matters involving the

relationship which resulted in a child, and the jail

time was never again mentioned. Clearly, the

prosecution did not deliberately elicit testimony

regarding this other crime. As in Watson, even

assuming arguendo that the answer constituted

error, the error was harmless.

Hodges also argues that it was error for the trial

judge not to provide the jury with a limiting

instruction, since the evidence was introduced. To

support his argument, Hodges cites Robinson vy.

State, 735 So.2d 208 (Miss. 1999), which held

that the trial court’s failure to sua sponte give a

limiting instruction on prior bad acts was

reversible error. However, Robinson was

overruled by Brown vy. State, 890 So.2d 901 (Miss.

2004). In overruling Robinson, this Court held that

40a

Appendix A

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. /d. “It

is not per se prejudicial to a defendant if a jury

simply hears an isolated instance of a crime or

bad act in the course of a trial.” Jd. at 913. In the

case sub judice, Hodges did not request a limiting

instruction when this isolated instance of a crime

or bad act came out during Cora’s testimony. Since

the trial court is not required to issue such an

instruction without a request from Hodges, the

trial court did not err when they did not give a

limiting instruction.

Hodges, 912 So.2d at 779. Hodges is barred by res judicata

from raising this issue.

X. INTRODUCTION OF EVIDENCE OF OTHER

CRIMES.

448. Hodges next argues that the trial court erred in

allowing admission of evidence that Hodges sexually

assaulted Cora Johnson after he kidnaped her and took her

to Alabama. Hodges further argues that the trial court erred

in failing to admonish the jury to disregard the evidence and

in failing to sua sponte approve a limiting instruction

concerning this evidence. As the State points out, this issue

was raised by Hodges on direct appeal. This Court stated the

following on this matter:

4la

Appendix A

After the trial judge heard arguments from both

sides the court determined that “this was a

continuous event and transaction, and the State

under case law is entitled to show the jury the

complete picture of what happened. The Court

finds that it is probative and the probative value

outweighs the unfair prejudice and the objection

is noted and overruled.” In the case sub judice,

Hodges was charged with capital murder with the

underlying felony of burglary and he was also

charged with the kidnaping of Cora Johnson. It

was shown that Hodges broke into the house

where he was confronted by the victim. After

shooting Isaac once in the stomach, he went to

Cora’s room where she had just awakened.

Hodges told Cora to get her stuff and that she was

going with him. She told Hodges that she was not

going anywhere with him and that is when he

struck her across the head with the gun. Cora then

woke her daughter and prepared to leave with

Hodges. During the trip to Alabama, Cora testified

that Hodges forced her into the back seat of the

car, held a gun to her head and raped her while

her daughter was lying in the front seat. The rape

of Cora was integrally related in time, place and

fact with the murder of Isaac Johnson. The rape

arose out of a “common nucleus of operative

facts” and was “integrally intertwined” with what

happened to Isaac Johnson. Wheeler v. State, 536

So.2d 1347, 1352 (Miss. 1988). As stated above,

this Court has held that proof of another crime is

admissible where the offense charged and that

42a

Appendix A

offered are so interrelated as to constitute a single

transaction or occurrence or a closely related

series of transactions or occurretices. Neal, 451

So.2d at 759. The rape in the case sub judice is

part of a closely related series of occurrences.

Also, as this Court has stated in Neal, “we are

concerned with the State’s legitimate interest in

telling a rational and coherent story of what

happened.” /d. Not only was the rape integrally

intertwined with the murder of Isaac, the rape

actually occurred while Cora was being held

against her will. The trial court did not err in

admitting evidence of the rape. The rape was

admissible as part of the res gestae of the events

surrounding the crime. This issue is without merit.

Hodges, 912 So.2d at 780-81. Hodges is barred by res

judicata from raising this issue.

XI. ADMISSION OF PHOTOGRAPH OF VICTIM.

949. Hodges next argues that the trial court erred in

admitting into evidence a color photograph of Isaac Johnson’s

gunshot wound during Dr. Steve Hayne’s testimony. As the

State points out, this issue was raised by Hodges on direct

appeal. This Court stated the following on this matter:

State’s exhibit 10 shows the midsection of the

body cleaned and washed but before the autopsy

began. The picture does not depict him cut up,

the picture only shows the midsection of the body

with a tiny bullet hole above the navel. The

43a

Appendix A

Comment to M.R.E. 401 states that if there is any

probative value, the rule favors admission of the

evidence. The photograph at issue accurately

depicts the wound inflicted upon the victim and

the cause of death. It certainly does not rise to the

level of gruesomeness noted in McNeal [v. State,

551 So.2d 151 (Miss. 1989)]. There is absolutely

no blood anywhere in the photo, and there is

nothing gory, gruesome or inflammatory about the

picture. Dr. Hayne testified that the picture was

taken to indicate the entrance of the gunshot

wound and to show how such positioning affected

his organs and blood loss, causing death.

Photographs have evidentiary purpose when they

describe the circumstances and cause of death.

Accordingly, the trial court did not abuse its

discretion in admitting the photograph.

Hodges, 912 So.2d at 782. Hodges is barred by res judicata

from raising this issue.

XII. LESSER OFFENSE INSTRUCTIONS.

450. Hodges next argues that the trial court erred in

refusing to submit to the jury instructions on the lesser

offenses of manslaughter and trespass. As the State points

out, this issue was raised by Hodges on direct appeal. This

Court stated the following on this matter:

In sum, the trial court did not commit reversible

error by refusing the manslaughter instructions.

This Court has previously held that “if the killing

44a

Appendix A

was committed during the commission of one of

the enumerated felonies in Miss. Code Ann. § 97-

3-19(2)(e), one of which is burglary, capital

murder is proven and the defendant is not entitled

to a manslaughter instruction.” /d. (citing Blue,

674 So.2d at 1201). The evidence is clear. Isaac

Johnson was murdered during the commission of

a burglary of Isaac and Cora Johnson’s home.

Furthermore, since there was no evidentiary basis

in the record for the lesser instruction of trespass,

the trial court did not err in denying that

instruction. Also, “the accused is not entitled to

the lesser offense instruction where the evidence

that proves the guilt of the lesser offense

necessarily proves his guilt of the principal

charge.” Doss, 709 So.2d at 377. Therefore this

issue is without merit.

Hodges, 912 So.2d at 783-84. Hodges is barred by res

judicata from raising this issue.

XIV. INVALID AGGRAVATOR AVOIDING

ARREST.

451. Hodges next argues that the trial court erred in

instructing the jury that it could consider as an aggravating

factor that Hodges killed Isaac Johnson “for the purpose of

avoiding a lawful arrest.” Hodges specifically states that the

State was incorrect in arguing that Hodges took the telephone

off the hook at the Johnson house to keep Johnson from

calling 911 after Hodges had shot him. As the State points

45a

Appendix A

out, this issue was raised by Hodges on direct appeal. This

Court stated the following on this matter:

Hodges burglarized the home with the intent to

commit an assault. Cora testified that Hodges

informed her that the reason he went to her house

that night was to kill her and her mother if she

had been there. Before arriving at Cora’s house,

Hodges went home and changed into black

clothes, black gloves and a beige ski mask.

Hodges did not park in the driveway to the house

but parked two houses down. The jury could have

easily concluded that Hodges disguised himself

in order to conceal his identity and when Isaac

still recognized him, Hodges shot him in order to

avoid apprehension and eventual arrest. Since

efforts to avoid arrest after the murder may also

be considered, there is ample evidence of

Hodges’s continued attempts to avoid arrest. After

shooting Isaac Hodges took the phone off the

hook. The jury could have concluded that this was

done in order to keep Isaac from calling 911 after

he was shot. Hodges also kidnaped Cora and her

baby and fled the State. On the way to Alabama,

Hodges made Cora throw his ski mask out the

window of the car. This Court has held that efforts

to dispose of and/or conceal the evidence of the

crime are sufficient to support the avoiding arrest

instruction. Wiley v. State, 750 So.2d 1193, 1206

(Miss. 1999). To further conceal evidence of his

crime, Hodges and his sister hid the gun that was

used to shoot Isaac.

46a

Appendix A

This Court finds ample evidence in the record

from which it may be reasonably inferred that a

substantial reason for the killing was to conceal

the identity of the killer or killers or to ‘cover their

tracks’ so as to avoid apprehension and eventual

arrest by authorities. The “avoiding lawful arrest”

aggravating circumstance was properly submitted

to the jury. This issue is without merit.

Hodges, 912 So.2d at 786. Hodges is barred by res judicata

from raising this issue.

XV. FAILURE TO INCLUDE JURY INSTRUC-

TIONS IN RECORD.

952. Hodges next argues that the trial court erred in

failing to include the reading of the instructions to the jury

in the appeal record. As the State points out, this issue was

raised by Hodges on direct appeal. This Court stated the

following on this matter:

Hodges does not claim any error from the

proceedings which are missing from the record.

Even though there was no transcription of the

instructions read to the jury, copies of all the

instructions which were read to the jury are

included in the court’s papers. Furthermore, the

parties and the court conducted thorough and

detailed, on the record hearings concerning the

jury instructions. The record also indicates that

the jury instructions were read to the jury by the

Judge. Since the instructions were included in the

47a

Appendix A

court’s papers Hodges was not denied a fair review

of trial on appeal. This was sufficient to analyze

all of the issues and properly review the case and

since Hodges does not raise any error from this

portion of the proceedings, this issue lacks merit.

Hodges, 912 So.2d at 788. Hodges is barred by res judicata

from raising this issue.

XVI. AGGREGATE ERROR.

453. There was no aggregate error in this case.

CONCLUSION

954. Quintez Hodges’s Petition for Post-Conviction

Relief is denied.

q55. PETITION FOR POST-CONVICTION

RELIEF DENIED.

WALLER AND COBB, P.JJ., CARLSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS

WITHOUT SEPARATE WRITTEN OPINION. DIAZ,

EASLEY AND- DICKINSON, JJ... NOT

PARTICIPATING.

48a

APPENDIX B — OPINION OF THE SUPREME

COURT OF MISSISSIPPI DATED MARCH 10, 2005

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DP-00337-SCT

QUINTEZ WREN HODGES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:

09/13/2001

TRIAL JUDGE:

HON JOHN M. MONTGOMERY

COURT FROM WHICH APPEAL:

LOWNDES COUNTY CIRCUIT COURT

ATTORNEY FOR PETITIONER:

ROBERT B. MCDUFF

ATTORNEY FOR RESPONDENT:

OFFICE OF CAPITAL DEFENSE COUNSEL

BY: ANDRE DE GRUY

CANDY LAWSON

DISTRICT ATTORNEY:

FORREST ALLGOOD

NATURE OF THE CASE:

CRIMINAL — DEATH PENALTY — DIRECT APPEAL

DISPOSITION:

AFFIRMED — 3/10/2005

MOTION FOR REHEARING FILED:

MANDAT® ISSUED:

49a

Appendix B

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

{1. Quintez Wren Hodges appeals his capital murder

conviction and sentence of death determined by a Lowndes

County Circuit Court jury. The jury returned a guilty verdict

against Hodges, finding that he killed Isaac Johnson during

the commission of a felony; therefore, Hodges committed

capital murder pursuant to Miss. Code Ann. § 97-3-19(2)(e).

The jury also returned a guilty verdict against Hodges for

the kidnaping of Cora Johnson. After a sentencing hearing,

the jury determined that Hodges should be given the penalty

of death. The trial court entered judgment and sentenced

Lynch to death by lethal injection. Hodges was also sentenced

to a term of twenty years for the kidnaping conviction. The

trial court denied Hodges’ motion for a new trial, and he

filed his notice of appeal with this Court.

FACTS AND PROCEDURAL HISTORY

2. Hodges was born on October 14, 1980. In the

summer of 1997, Hodges met thirteen year old Cora Johnson

during a visit to play basketball with her brother, Isaac

Johnson. Hodges and Cora began having a romantic

relationship, and in late 1997 Cora became pregnant with

Hodges’ child. Their child was born on September 16, 1998.

43. Cora and Isaac Johnson lived with their mother,

Bessie Tatum, in Lowndes County, Mississippi.

Approximately four months into Hodges and Cora’s

relationship, Hodges began breaking into Cora’s home

50a

Appendix B

without permission. Cora and her family repeatedly

demanded that Hodges cease such actions. They contacted

both the police and Hodges’ mother in response to these

repeated burglaries. Cora also warned Hodges that she would

break up with him if he persisted in breaking into her home.

However, Hodges continued to burglarize Cora’s home, and

she ended the relationship in January, 1998.

94. On one occasion in May of 1998, Cora came home

to find that Hodges had, once again, burglarized her home.

Cora and her mother found Hodges hiding under Cora’s bed

and immediately contacted the police, and Hodges was

arrested. Hodges pled guilty to the burglary of Cora’s home

on November 17, 1998. During the time of this arrest and

guilty plea, Hodges was also under indictment for three

additional charges: breaking into a school, burglarizing the

home of another female victim, and sexual assault of that

victim. Pursuant to a plea bargain, Hodges plead guilty to

the burglary of Cora’s home and was sentenced to six months

in the Regimented Inmate Discipline program (hereinafter

RID). The other charges were retired and placed on hold in

the case files.

45. During his six months in the RID program, Hodges

contacted Cora. Both Cora and her mother knew that their

daughter needed a father figure and Cora informed Hodges

that she wanted him to be a part of their daughter’s life.

During Hodges’ term in the RID program, Cora sent various

letters. In some letters, Cora admitted she still had feelings

for Hodges and that she might consider reconciling if he

would turn his life around and stop breaking into her home.

In other letters she informed Hodges that he might not be

Sla

Appendix B

the child’s biological father and that she had a new boyfriend.

However, Cora ultimately informed Hodges, both orally and

in writing, that their romantic relationship was over.

46. Hodges was released from the RID program on June

29, 1999. Upon his release, Hodges immediately contacted

Cora, and she arranged for Hodges to see his daughter. During

this visit, Hodges ignored the child and spent the entire time

making sexual advances toward Cora. Hodges became angry

that Cora did not want to get back together. The weekend

prior to the murder, Hodges was visiting his friend Anthony

Betts. During this visit with Betts, Hodges had talked to Cora

on the phone and later informed Betts that he was going to

buy a gun and kill somebody with it. According to Betts, he

did not take Hodges seriously because he knew him and

figured he would not do something like that.

47. On the night of July 20, 1999, Isaac, Cora, the child

and Harold Jackson (Cora’s new boyfriend) were spending

the evening at Cora’s home. Hodges and Betts were visiting

the home of Reginald Martin, who lived seven houses down

from Cora. Between nine and ten p.m., Betts called Cora

and asked if she would bring the child to Martin’s house, so

that Hodges could visit with her. Cora refused and told Betts

that she had company. Around midnight, Hodges called Cora

and asked again if she could bring the child to Martin’s house.

They had a conversation, and Hodges kept telling Cora he

was not going to let her get off the phone. Hodges was angry

during the conversation, and Cora finally hung up the phone.

According to Betts, when Cora finally ended the

conversation, Hodges did not talk, he did not laugh, he just

52a

Appendix B

sat down. A couple hours later, Hodges left Martin’s house

and returned home.

48. Hodges went home and stole his mother’s

snubnosed, .32 caliber RG pistol and her gray Oldsmobile.

Hodges then put on black shoes, black pants, back shirt, a

beige ski mask and black gloves. He then took the gun and

drove to Cora’s neighborhood where he parked two houses

down from Cora’s house. Cora, in the meantime, sent Harold

Jackson home and went to bed. Isaac was talking to his cousin

on the phone when Cora went to bed. Around 2 a.m., Isaac

told his cousin that he heard a noise in the back of the house,

and he saw a shadow go across the hall. Isaac then called for

Cora, thinking she was still awake and told his cousin that

he would call him back.

q9. At this point, what happened exactly is unknown.

During the trial the State put forth testimony and evidence

that the back door to Cora’s house was locked and when

Bessie Tatum left home at 9:30 p.m. the door was in perfect

condition and had not been tampered with. Hodges had been

told repeatedly that he was not invited into Cora’s house and

Hodges also knew that Cora did not want to see him. There

was evidence of forced entry through the back de or. The back

door’s lock had been jimmied. There were pry marks left on

the back door and pieces of freshly scattered foam and

weather stripping lying on the ground around the door frame.

Mark Miley, a criminal investigator, testified that the foam

and weather stripping was fresh because the wind had not

blown it away and it had not been walked upon. During the

police investigation, a screwdriver, a knife and a pair of pliers

were found on the entry table next to the back door.

53a

Appendix B

410. After Isaac told his cousin that he would call him

back, he went to investigate the noise and shadow. Isaac saw

Hodges in his black clothes while holding a gun. Isaac was

unarmed, and the family did not own a gun. Hodges informed

the police that he thought Isaac was going for a gun but later

conceded that he did not see Isaac with a gun. Hodges then

shot Isaac once in the stomach. Isaac managed to move from

the living room into his mother’s bedroom where he collapsed

and never got back up. As Isaac was going into his mother’s

bedroom, Hodges went to the take the other phone off the

hook. According to Dr. Steven Hayne, Isaac was shot

approximately 1/2 inch to the left of his mid-abdominal wall

from a distance of 1 1/2 to 2 feet away. As a result of the

damage caused by the bullet, 2 1/2 quarts of blood pooled

within Isaac’s abdominal cavity. According to Dr. Hayne,

there were no signs of a struggle or fight and it took about 5

1/2 to 10 minutes for the shock to set in and for Isaac to die.

Dr. Hayne testified that the cause of death was homicide,

caused by a gunshot wound to the abdomen.

ll. After shooting Isaac, Hodges went to Cora’s room

where she had just awakened. According to Cora he came

into her room telling her to get her stuff and that she was

going with him. She told Hodges that she was not going

anywhere with him so he struck her across the head with the

gun. Cora then woke her daughter and prepared to leave with

Hodges. Cora walked into her mother’s bedroom and saw

Isaac sitting in the dark, on the floor against the wall.

Thinking that Isaac was hiding from Hodges, Cora whispered

to him to cal! 911. At this time, Cora was unaware that Isaac

had been shot. When Hodges saw Cora leaving her mother’s

4+€droom, he grabbed her and told her not to act stupid

54a

Appendix B

because he had a gun. Hodges then pushed Cora out the back

door and took her to where he had parked the Oldsmobile.

Holding the gun on Cora and her daughter, Hodges drove to

Alabama. During the drive to Alabama, Hodges forced Cora

to throw his ski mask out of the window. During the trial,

the defense brought out the fact that Cora had ample

opportunity to escape from Hodges if she really wanted to

leave. However, Cora stated that she did not go because “he

had a gun and he was probably going to shoot me and my

daughter.”

412. In the meantime, Hodges’ mother, Johnnie Pearl

Hodges, contacted the police, reporting that her car had been

stolen. Around 3 p.m. Bessie Tatum called home to check on

her children and discovered that the phone line was busy.

She tried to call again and received another busy signal. She

then rushed home to find Isaac dead and Cora and Annasheika

missing. Bessie Tatum ran to her neighbor’s home where she

was informed that Hodges had been in the area. She then

asked her neighbor to call 911. Johnnie Hodges also called

Bessie Tatum and demanded to know where her son was.

Bessie then told Johnnie Hodges that she had a child dead

and two missing.

413. Once Hodges entered Alabama, he told Cora that

he shot and killed her brother, Isaac. Cora testified that

Hodges told her he came to her house that night to shoot her

and her mother, Bessie Tatum, if she had been there. Cora

also testified that Hodges said he thought Isaac was going to

try to call 911 so he went to the living room and took the

phone off the hook so that the call would not go through.

According to Cora, Hodges threatened to kill her if she did

55a

Appendix B

anything stupid. Cora testified that during the trip to Alabama,

Hodges forced her into the back seat of the car, held a gun to

her head and raped her while her daughter was lying in the

front seat.

414. Cora then told Hodges that she did not care what

he did to her as long as he took her daughter somewhere to

get food and to be taken care of. Hodges then went back to

Mississippi where he took Cora and the baby to his mother’s

house. When they arrived at his mother’s house, Johnnie

Hodges who knew of Isaac’s death and Cora and her

daughter’s disappearance, asked Hodges what he had done.

Cora told Johnnie Hodges that Hodges shot Isaac but Hodges

quickly told her to shut up and remember his previous threat

(to not act stupid because he had a gun). Hodges informed

his family that the gun he used to kill Johnson was still in

the car so Hodges’ sister went to get the gun so that she could

hide it. Hodges then left Cora and the baby at his mother’s

house, went to the police and confessed to killing Isaac and

taking Cora and her daughter. However, Hodges denied

raping Cora, stating that their sexual intercourse was

voluntary. He also claimed that he shot Isaac because he

thought Isaac was going to shoot him. However, he also

conceded that he never saw Isaac with a gun.

415. While Hodges was at the police station, Greg

Wright, an investigator with the Sheriff's Department, went

to Hodges’ house where he was told that Hodges had turned

himself in. After talking to Cora he went inside and asked

Johnnie Hodges for the gun that Hodges gave them. Johnnie

Hodges took him outside to a small wood-framed house.

Inside she took him into a room, reached under a pile of

56a

Appendix B

blankets and brought out a blue bag which held the gun that

was used to shoot Isaac.

416. On November 8, 1999, Hodges was indicted for

the capital murder of Isaac Johnson. He was charged with

the underlying felony of burglary with the intent to commit

an assault in a dwelling. Hodges was also indicted for the

kidnaping of Cora. On September 22, 1999, attorney Carrie

Jourdan was appointed by the court as counsel for Hodges.

Jourdan proceeded to defend Hodges by attending hearings,

filing motions, procuring a mental examination for Hodges

and conducting discovery in this case. After almost two years,

on August 20, 2001, just twenty-one days before trial, Hodges

fired Jourdan and retained private legal representation from

Michael Miller, knowing that Miller had never tried a capital

murder case. Four days after he was appointed, Miller filed

for a continuance or in the alternative to withdraw as Hodges’

counsel. He also filed a motion for time to prepare necessary

defense motions. Miller also obtained the services of a

criminal trial attorney, Guy Rogers, Jr., to assist him in

Hodges’ representation. After determining that Hodges had

secured new counsel for the purpose of delaying the trial of

his case, the court refused to grant any more continuances.

The court found that even though Miller lacks the experience

to try a capital murder case, he has obtained experienced co-

counsel who has tried capital murder cases before.

417. On September 13, 2001, Hodges was convicted of

capital murder of Isaac Johnson and the kidnaping of Cora

Johnson. After the sentencing phase, which was held

immediately after the trial, the jury returned a death sentence.

Hodges was also sentenced to a term of twenty years for the

57a

Appendix B

kidnaping conviction. Hodges then moved for a new trial

which was denied. The Mississippi Office of Capital Defense

was substituted as counsel, and it now appeals to this Court

raising the following claims:

As

Prosecutorial Misconduct Through Improper Cross

Examination and the Introduction of False Evidence

Deprived Qunitez Hodges of a Fundamentally Fair

Trial and Mandates His Death Sentence Be Vacated.

The Prosecutor Committed Plain Reversible Error

During Sentencing Closing Argument by Improper

and Unfairly Prejudicial Comments and as a Result

Hodges Was Denied a Fundamentally Fair Trial.

The Trial Court Erred in Admitting Highly

Prejudicial and Inflammatory Testimony and

Improper Evidence Concerning Hodges’ Previous

Criminal Charges at Sentencing, Contrary to the

Provisions of Rules 403 and 404 of the MRE, and

as a Result, Hodges Was Denied a Fundamentally

Fair Trial.

Hodges Was Denied Effective Assistance of

Counsel at All Stages of this Capital Murder

Prosecution.

The Trial Court Erred in Failing to Accurately

Instruct the Jury Regarding Hodges Ineligibility for

Parole, Denying Hodges an Accurate and Reliable

Sentencing Determination in Violation of

Mississippi and US Constitution.

10.

11.

58a

Appendix B

The Capital Murder Indictment Was Flawed for

Failure to Properly Charge the Offense and Denied

Hodges an Opportunity to Properly Prepare a

Defense.

The Death Sentence in this Case must Be Vacated

Because the Indictment Failed to Charge a Death

Penalty Eligible Offense.

The Trial Court Committed Reversible Error in

Removing for Cause a Juror Qualified to Serve

under Constitutional Standards.

The Trial Court Erred in Failing to Grant a Defense

Requested Mistrial Following the [Improper

Introduction of Other Crimes, Wrongs or Acts

Evidence in Violation of Rules 403 and 404 of the

Mre, and Further, Erred in Failing to Admonish the

Jury to Disregard Such Evidence, or in the

Alternative, Erred in Failing to Charge the Trial Jury

Sua Sponte with a Limiting Instruction.

The Trial Court Committed Plain Error by Allowing

Introduction of Evidence of Other Crimes of Hodges

in Violation of Rules 403 and 404 Without First

Conducting a Proper Probative Value Versus

Prejudicial Effect Analysis and Without Any

Limiting/cautionary Instruction.

The Trial Court Erred in Allowing the Introduction

of a Photo of the Deceased Where it Was

12.

13.

14.

1.

16.

59a

Appendix B

Unnecessary to Establish a Disputed Fact and Was

Highly Prejudicial, Denying Hodges Fair Trial.

The Trial Court Erred in Denying Defense

Requested Lesser Offense Instruction on

Manslaughter and Trespassing.

Hodges Conviction of Kidnaping Was Unsupported

by the Evidence Adduced at Trial and Against the

Overwhelming Weight of the Evidence Contrary to

Relevant Mississippi Case Law.

The Trial Court Erred in Allowing the Jury to

Consider the Unconstitutionally Duplicative

Aggravating Circumstance of the Felony Burglary,

Which Was Also Used to Elevate the Crime to

Capital Murder.

The Trial Court Erred in Allowing the Jury to

Consider the Invalid Aggravator of Avoiding Arrest,

Which the Jury Used in Support of a Sentence of

Death, Denying Hodges a Reliable Sentence as

Guaranteed by the U.S. and Mississippi

Constitutions.

The Trial Court Erred in Sentencing Hodges to a

Term of Years for Kidnaping, in Violation of Double

Jeopardy Provisions of the U.S. and Mississippi

Constitutions.

60a

Appendix B

17. The Trial Court Erred in Failing to Make a Complete

Record of the Instructions of Law upon Which the

Jurors Were to Rely in Determining Their Verdicts.

18. The Aggregate Error in this Case Requires Reversal

of the Conviction ard Death Sentence.

STANDARD OF REVIEW

418. This Court reviews an appeal from a capital murder

conviction and death sentence with “heightened scrutiny”

under which all bona fide doubts are resolved in favor of the

accused. Simmons v. State, 805 So. 2d 452, 472 (Miss. 2001)

(citing Porter v. State, 732 So. 2d 899, 902 (Miss. 1999)).

Further, this Court is cognizant of the fact that what may be

harmless error in certain situations becomes reversible error

where the penalty is death. /d.

ANALYSIS

1. Prosecution Conduct.

419. Hodges argues that the State, in conjunction with

Assistant District Attorney Jim Kitchens, knowingly and

willfully concocted a line of examination to demonstrate that

Hodges received a lenient sentence recommendation for his

prior burglary charge. Hodges argues that the State

improperly crossed Johnnie Hodges at the sentencing hearing

regarding the prior burglary and that the State also improperly

crossed Hodges about the same information. Hodges claims

that the State did not have an evidentiary basis for these

questions. The pertinent parts of the cross of Ms. Hodges

during the sentencing phase is as follows:

6la

Appendix B

Ms. Hodges, you testified that Ms. Tatum had said

something that she had done everything she could

to keep him out of the RID program; is that what

you said?

That’s what she said to me the day she found her

son dead. Yes, she did say that to me.

But actually what happened was Ms. Tatum had told

the defense counsel for your son back when he plead

guilty back in November of 1998 that she did want

him to go to the RID program, hadn’t she?

You asked me was I there. I was there. All I know I

heard the prosecuting attorney said that Ms. Tatum

said she wanted Quintez to have seven years in the

pen.

Isn’t it true that Mr. Kitchens representing the State

asked the judge, not this court but another judge,

asked the judge to give your son 15 years in the

penitentiary? Isn’t that what he asked him to do or

do you recall?

I don’t recall. All I heard is seven years.

And isn’t it true that the inforr-ation was provided

to the Court by your son’s lawyer that Ms. Tatum

had requested that this defendant be sentenced

instead to the RID program?

A.

62a

Appendix B

I didn’t hear that either.

Of course, Ms. Tatum would have been interceding

on behalf of your son if that were true, is that not

correct?

I don’t know. I didn’t hear none of that.

The pertinent parts of the cross of Hodges during the

sentencing phase is as follows:

Q.

A.

Q.

a oe

And you plead guilty to a charge of burglary of Ms.

Tatum’s house; is that right?

Yes, sir.

And during the course of that plea process, at one

point in time your lawyer stood up and told the judge

that Ms. Tatum did not want you to go to the

penitentiary, didn’t he?

Not in my presence.

You didn’t see that?

No, sir.

Isn’t it true that also the Assistant District Attorney

who was handling the case, Jim Kitchens, stood up

and affirmed that that was so; that that was, in fact,

what Ms. Tatum requested? Didn’t he do that?

“a

©

oP we e

ee ee ieee ae

63a

Appendix B

No, sir.

You don’t recall that happening at all?

No, sir.

Do you recall that the State of Mississippi asked

and sought that you be sent to the penitentiary for

15 years? Do you recall that?

I didn’t know nothing about that.

You didn’t know nothing about that either. But you

know that the judge in this instance agreed and

thought it best to sentence you to the RID program

to give you a chance; is that not correct?

Yes, sir.

And he gave you a chance, didn’t he?

Yes, sir.

He gave you a big break, didn’t he?

I ain’t going to say it’s a big break.

You don’t think that being charged by three

indictments with three burglaries and one sexual

assault battery getting to go to the RID program was

a break? You don’t think so?

64a

Appendix B

A. Well, those charges was not proven.

420. In rebuttal the State called Assistant District

Attorney Jim Kitchens, who participated in the prior burglary

charge and plea hearing, to testify about the plea agreement

and hearing. Hodges claims that the entire testimony of

Assistant District Attorney Kitchens was false. Hodges claims

that the falsity of the testimony is supported by comparing

Kitchen’s testimony with the court transcript of the plea

hearing for the prior burglary. Hodges attaches this prior plea

hearing as an exhibit to his brief. However, 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 sub judice. This Court has denied Hodges’ motion

to expand the record to include this information. Therefore,

consideration of this evidence is barred. This Court has

repeatedly held, “we will not consider matters which do not

appear in the record and must confine ourselves to what

actually appears in the record. Moreover, we cannot decide

an issue based on assertions in the briefs alone; rather, issues

must be proven by the record.” Medina v. State, 688 So. 2d

727, 732 (Miss. 1996).

421. Hodges argues that according to Branch v. State,

882 So. 2d 36, 49 (Miss. 2004), this Court is allowed to

consider such extraneous evidence not in the record.

However, this Court in Branch clearly set forth that such

appendices which were not part of the trial record were to be

considered only on the Afkins and ineffective assistance of

counsel issues. Here, during oral argument, defense counsel

conceded that he was not pursuing this issue as ineffective

assistance of counsel, but rather was doing so under the theory

65a

Appendix B

of prosecutorial misconduct. Also, this Court has recently

amended Rule 22 of the Mississippi Rules of Appellate

Procedure. Even though this amendment does not apply to

the case sub judice, this Court holds that the plea hearing,

which is not in the record, is barred from consideration and

Branch does not allow this Court to consider such extraneous

evidence. To make it clear what this Court can consider on

direct appeal in future cases, Rule 22 has been amended to

state that “[i]ssues 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.

M.R.A.P. 22 (emphasis added).

4722. Furthermore, no objections were made during the

cross of Johnnie Pearl Hodges or Hodges. Hodges is also

procedurally barred because this issue was not raised at trial.

See Moawad v. State, 531 So. 2d 632, 634 (Miss. 1988) (trial

judge cannot be put in error on matter not presented for

decision); Walker v. State, 823 So. 2d 557, 561 (Miss. Ct.

App. 2002) (failure to raise issue at trial court level bars

consideration at appellate level). Because this issue is raised

in the direct appeal of a capital case, this Court will consider

the merits of Hodges’ argument without considering the

extraneous evidence.

423. Hodges argues that the State did not have any

eidentiary basis to ask those questions on cross. This Court

has stated that it is inflammatory and extremely prejudicial

for questioning without evidentiary basis. Hosford v. State,

525 So. 2d 789, 793 (Miss. 1988). However, the State did

offer the testimony of Assistant District Attorney Jim

Kitchens about the prior plea bargain. The State specifically

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asked Kitchens the same questions that were asked during

the cross of Ms. Hodges and the defendant. The State

produced the testimony that proved there was an evidentiary

basis for the questions elicited during the cross of Ms. Hodges

and the defendant.

424. Hodges also claims that all of Kitchens’ testimony

was false and that the knowing use of false evidence deprived

Hodges of a fair trial and due process. To prevail on this due

process claim, Hodges must show that “(1) the testimony

was false, (2) the testimony was material to the verdict, and

(3) the prosecutor knew or believed the testimony to be false.”

Westley v. Johnson, 83 F.3d 714, 726 (5® Cir. 1996) (citing

United States v. Blackburn, 9 F.3d 353, 357 (5 Cir. 1993)).

Hodges has not proved these elements. He has not offered

any proof that Kitchens’ testimony was false, that it was

material to the verdict or that the State knew that it was false.

Hodges, in his brief, claims that it is false but offers nothing

to support this claim nor were there any objections to this

testimony during the sentencing phase. Therefore, this issue

is without merit.

2. Prosecutor’s Closing Argument.

925. Hodges asserts 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. Hodges argues that these comments are

plain error that affected the verdict and deprived Hodges of

a fair and impartial trial. He claims that the State made these

references to encourage the jurors to use the sentencing of

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Hodges as a way to vent their anger over the 9/11 attacks

and to bring down the power of God.

426. The State correctly argues that none of these

comments made in the closing were contemporaneously

objected to and are therefore barred from consideration.

Simmons v. State, 805 So. 2d 452, 489 (Miss. 2001). This

Court has held that the failure by defense counsel to

contemporaneously object to a prosecutor’s remark at trial

bars consideration of prosecutorial misconduct allegations

on appeal. Davis y. State, 660 So. 2d 1228, 1255 (Miss. 1995).

However, the rule governing preservation for review provides

that if an appellant raises for review an issue not raised in

the pleadings, transcript, or rulings, the appellant must have

preserved the issue by raising it in a motion for new trial.

Miss. Code Ann. § 9-13-31 (Rev. 2002); Jackson v. State,

423 So. 2d 129, 131 (Miss. 1982). The rationale for this rule

is based on the policy of giving the trial judge, prior to

appellate review, the opportunity to consider the alleged error.

Howard vy. State, 507 So. 2d 58, 63 (Miss. 1987). Hodges

did raise this issue in his motion for a new trial. Therefore,

Hodges is not procedurally barred from raising this error on

appeal.

427. This Court has stated that “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.” Horne v. State, 825 So. 2d

627, 640 (Miss. 2002) (citing Dunaway v. State, 551 So. 2d

162, 163 (Miss. 1989)). This Court has also said that “counsel

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may draw upon literature, history, science, religion, and

philosophy for material for his argument.” Berry v. State,

703 So. 2d 269, 281 (Miss. 1997).

428. Hodges contends that the following part of the

State’s closing argument compared him to terrorists, was

improper, affected the verdict and deprived him of a fair and

impartial trial:

I think counsel said that in this particular situation

that a killing for a killing doesn’t necessarily show

that killing is wrong. I would disagree. I think to

do otherwise cheapens the value of life. Each and

every one of you have had your own thoughts, for

example, of the World Trade Center that’s

happened this week; and what have you thought

about what should occur to those people who

created that situation? You know what you thought

and you know why you thought it. The reason you

think that, ladies and gentlemen, is because there

are some people who literally do not understand

anything else. You know, when I was young I for

a long time thought God was not fair, and I thought

that because when you would read in Exodus

about Moses and you would see where every time

Pharaoh made his mind up to let the people go

the Bible would say, And God hardened his heart.

I thought that’s not fair. How can somebody stand

against God? How could Pharaoh justly be

punished if God was the one hardening his heart?

One day I was reading in Romans Chapter 9, if

memory serves me correctly, and found these

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verses which were right on point because Paul

says, What if God willing to show his power to

the nation set up for himself vessels of wrath fit

only for destruction? Ladies and gentlemen, there

are those that walk among us that are vessels of

wrath fit only for destruction.

However, “in order to make an appropriate assessment, the

reviewing court must not only weigh the impact of the

prosecutor’s remark, but must also take into account defense

counsel’s opening salvo.” Simmons v. State, 805 So. 2d 452,

490 (Miss. 2001) (quoting Edwards v. State, 737 So. 2d 275,

299 (Miss. 1999)). Therefore, we must also look to the

defense’s closing argument in order to make an appropriate

assessment. The defense counsel argued, in pertinent part,

Ladies and gentlemen, what you’re being asked

to do when you are asked to impose the death

penalty, I mean, you are really being asked to play

God. You are being asked to exercise the wisdom,

the compassion, and to make a decision to put

somebody to death and you’re being asked to do

that, and I know that in good conscious you will

consider this decision.

This is not a case where somebody took an axe

and hacked somebody to pieces. This is not a case

where a man went in and stabbed an 85 year old

woman 55 times. You know, there are cases out

there like that. Y’all read the paper. Y’all watch

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TV. You’ve seen it. This is not that kind of case I

submit.

You know, ladies and gentlemen, some of you

might be of the persuasion, and I’m not trying to

appeal to your religious convictions. I realiy think

that those things are private. I think that your

religious beliefs and I will submit to you those

are your own, but there have been throughout

criminal law religious themes have played a

prominent role. I mean, you probably know one

of the most familiar one, An eye for an eye and a

tooth for a tooth. That is one that some people

adhere to very strictly, you know. You take an eye,

you ought to give up your eye. I would submit to

you, ladies and gentlemen, that that’s not going

to help anything in our society by putting

somebody to death.

If you sentence this man to death, I’d submit to

the jury, ladies and gentlemen, it’s going to rest

on you. I wouldn’t want to go upstairs. I believe

in God. Y’all don’t have to. It’s a free country.

You can believe anything you want to. I wouldn’t

put down anybody’s views, but I wouldn’t want

to go up to my Maker knowing that part of my

decision in the name of the State cause the death

of a man.

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29. There is no merit to Hodges’ argument. With regard

to the prosecutor’s biblical reference, this Court has stated

that counsel may draw religion material into his argument.

Berry, 703 So. 2d at 281. Defense counsel made use of

Biblical references in his own closing arguments as well,

which renders his position highly tenuous. Defense counsel,

in the case sub judice, actually put the jury in the role of

God. The comments by the State were in rebuttal to defense

counsel’s own use of biblical references. This Court has even

upheld biblical references during closing argument where

the prosecutor has quoted scriptures saying that the Bible

justifies the death penalty. Doss v. State, 709 So. 2d 369,

399-400 (Miss. 1996). When read in context with the

defense’s closing, the State’s comments did not unfairly

prejudice Hodges.

430. With regard to the mention of the World Trade

Towers, Hodges contends that the State impermissibly

compared him to the terrorists. First of all, the defense

counsel himself stated that this was not a case where

somebody was hacked to death by an axe or stabbed 55 times.

He also stated that the jury reads the papers, watches TV,

has seen bad cases and that this was not that type of case.

The State, in rebuttal, made one reference to the World Trade

Towers. This Court has upheld much stronger arguments.

For example, in Ahmad v. State, 603 So. 2d 843, 846-47

(Miss. 1992), the prosecutor, during closing argument, made

references to hostages and prisoners of war. This Court held:

Remembering the wide latitude afforded

prosecutors in closing arguments, the comments

by the State when arguing for a conviction of

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Abdusabr Ahmad were not improper. Taken in

context, the referral to prisoners of war was part

of the free play of ideas, imagery, and personalities

allowed in closing arguments. The referral to

prisoners and hostages does not vilify Abdusabr

Ahmad. It is a characterization of I.A.’s position

on the day in question. It is not name-calling or a

label on Abdusabr Ahmad’s overall character. The

State did not state that Abdusabr Ahmad was an

Arab captor. The State did not even compare

Abdusabr Ahmad to Arab captors. The State

simply compared I.A.’s emotions to that of a

prisoner of war or hostage.

Id. This is very similar to the case sub judice. The State did

not compare Hodges to terrorists. Even if the State was

comparing Hodges to terrorists, this Court has upheld

instances where the State has compared the defendant to

notorious criminals. For example, in Ballenger v. State, 667

So. 2d 1242, 1269-70 (Miss. 1995), the prosecutor compared

the defendant’s participation in the crime to that of Charles

Manson. This Court held that “[c]Jonsidering the wide latitude

given to attorney on closing arguments it can not be said

that these comments were so improper as to require reversal.”

Id. at 1270. As was the case in Ballenger, the prosecutor

here never called Hodges names or personally vilified him.

Unlike Ballenger, Hodges’ crime was not compared to that

of a notorious criminal. In Wilcher v. State, 697 So. 2d 1087,

1112 (Miss. 1997), this Court upheld the prosecutorial

comment during closing in which they compared the

defendant to a “mad dog”. This Court said that the

prosecutorial comment must be considered in context and

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the defense chose to use imagery to compare Wilcher to a

rabbit and the State, in response, used imagery that it

obviously found more appropriate and compared Wilcher to

a “mad dog”. Id.

431. Considering the wide latitude given to attorneys

for closing arguments and considering the State’s comment

in reference to the defense’s own closing, Hodges’ arguments

are without merit and there no unfair prejudice.

3. Evidence of Prior Criminal Charges.

432. Hodges claims that the trial 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. He asserts that this violates

the Mississippi Rules of Evidence and Miss. Code Ann. §

99-19-101, as evidence of bad acts is not one of the eight

enumerated aggravating factors admissible in capital

sentencing trial and that they were not relevant to any of the

statutory aggravating factors. Hodges also claims that during

the testimony of Hodges the court erred when it received

into evidence the actual indictment for the previous burglary

and sexual battery charge. Hodges argues that the indictment

itself could not be used for impeachment or rebuttal.

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A. Admission of Prior Bad Acts During Cross-

Examination

1. Cross-Examination of Lisa Hodges

433. During direct examination, Hodges’ sister, Lisa

Hodges, testified that Hodges went to church and Sunday

school and that he was a good kid that helped other people.

She stated that Hodges did not fight and he obeyed his

parents. She characterized him as being a nice, young boy

growing up who had respect for his elders and was not violent

towards other people. On cross-examination, the State sought

to discredit this testimony. Hodges’ sister was asked whether

she knew that he had escaped from the jail twice and whether

escaping from jail shows any respect. She stated that “no” it

did not show respect for authority.

434. The State argues that this asserted error is

procedurally barred because defense counsel never raised

these issues during the sentencing phase. During the cross-

examination, the defense counsel did object to this line of

questioning. However, their objection did not state that they

were objecting because it was improper character evidence.

The defense, when he objected, said “we are going to object

to that testimony. That’s nothing that’s been revealed

anywhere.” This Court has stated that when the objecting

party does not state with some degree of certainty the ground

on which the objection is made, and failure to articulate some

other available ground acts as a waiver as to the unstated

basis. Materials Transp. Co. v. Newman, 656 So. 2d 1199,

1203 (Miss. 1995). Failure of the defense counsel to articulate

the ground upon which the objection is made, acts as a waiver.

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However, because this issue is raised in the direct appeal of

a capital case, this Court will consider the merits of Hodges’

argument.

435. 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, unless it is competent

rebuttal evidence in the face of the showing of Hodges’ good

character made on direct examination of this witness. Hansen

v. State, 592 So. 2d 114, 148 (Miss. 1991) (citing Simpson

v. State, 497 So. 2d 424, 428-29 (Miss. 1986); Winters v.

State, 449 So. 2d 766, 771 (Miss. 1984)). M.R.E. 404(b)

provides that:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in

order to show that he acted in conformity

therewith. It may, however, be admissible for other

purposes such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

The State questioned Hodges’ sister about a prior bad act,

the two attempts to escape jail. 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. Her direct

examination testimony opened the door to the State to ask

these questions. There was testimony on direct that he was a

good boy that respected his elders. The introduction of the

two prior escapes from the jail was not error.

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2. Cross-Examination of Chris Hodges

436. During direct examination Chris Hodges testified

that Hodges was soft spoken, easy going, never fought, was

never disruptive and he never defended himself. Chris stated

that Hodges was the type of person who would avoid conflict.

He stated that Hodges was a good person who would not

have done this type of crime. Chris claimed that Hodges’

troubles were the direct result of his relationship with Cora.

Chris specifically testified that Hodges did not have problems

with authorities prior to the time that he got arrested and

charged with burglary. On cross-examination, the State

sought to discredit this testimony. Chris stated that Hodges

did not have problems with the authorities prior to his

burglary of Cora’s house. He also stated that his problems

stemmed from his relationship with Cora. On cross the State

asked whether he knew that Hodges was charged with

burglary of a school and burglary of another house along

with sexual battery, all of which happened prior to the

burglary of Cora’s house and had nothing to do with his

relationship with Cora.

437. As stated previously, 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, unless it is competent rebuttal evidence in the face

of the showing of Hodges’ good character made on direct

examination of this witness. Hansen, 592 So. 2d at 148. On

direct examination, Chris testified that Hodges’ character was

good and that he was not disruptive and not the kind of person

to commit this crime. He also testified that Hodges did not

have problems with the law prior to the charge of burglary

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of Cora’s house and that the problems with the law stemmed

from his relationship with Cora. This direct testimony opened

the door to bring in the prior bad acts that occurred prior to

the burglary of Cora’s house and the bad acts that had nothing

to do with Cora. The introduction of these other burglaries

and the sexual battery was not error.

3. Cross-Examination of Sharon Green

438. During direct examination, Sharon Green, Hodges’

sister, testified that Hodges was never any trouble, was a

normal child and never got into fights. On cross examination

the State asked Sharon whether she was aware of the other

difficulties he had, namely the burglary of the school, and

the burglary and sexual assault of another victim. However,

the defense never objected to these questions during the

cross-examination. The law in Mississippi mandates that

counsel must contemporaneously object to inadmissible

evidence in order to preserve the error for appeal. Rushing

v. State, 711 So. 2d 450, 453 (Miss. 1998); Lester v. State,

692 So. 2d 755, 795 (Miss. 1997). This rule is generally

applied to situations in which no objection is made during

trial and the issue is subsequently raised on appeal.

Crosswhite v. State, 732 So. 2d 856, 861 (Miss. 1998). This

is exactly what we have in the case sub judice. Defense

counsel never objected to this evidence during the

questioning and now they are raising it on appeal. This issue

has been waived and was not preserved for appeal.

439. Procedural bar aside, this issue is without merit.

As stated previously, the prosecution has no right to introduce

evidence of wrongs and bad acts to prove Hodges’ character

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or to show he acted in conformity therewith, unless it is

competent rebuttal evidence in the face of the showing of

Hodges’ good character made on direct examination of this

witness. Hansen, 592 So.2d at 148. Her direct examination

testimony opened the door to the State to ask these questions

regarding Hodges’ previous crimes. Furthermore, this

evidence was already placed before the jury during the cross

of Chris Hodges.

B. Statutory Aggravating Factors and Prior Bad

Acts

940. Hodges also argues that the admission of these prior

bad acts were prohibited, since they were not relevant to any

of the statutory aggravating factors enumerated in Miss. Code

Ann. § 99-19-101(5). Hodges alleges that the State is only

allowed to offer evidence that is relevant to the statutory

aggravating circumstances. However, Miss. Code Ann. § 99-

19-101(1) provides that at the sentencing hearing “evidence

may be presented as to any matter that the court deems

relevant to sentence, and shall include matters relating to

any of the aggravating or mitigating circumstances.” This

Court has stated that the statute “does not limit the evidence

that can be presented at the sentencing phase to evidence

relevant to the aggravating circumstances.” West v. State, 820

So. 2d 668, 670 (Miss. 2001). As discussed above, these prior

bad acts were introduced when the defense opened the door

to Hodges’ character. Since § 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. This Court has also held that “[t]he State is allowed

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to rebut mitigating evidence through cross-examination,

introduction of rebuttal evidence or by argument.” Wiley v.

State, 750 So. 2d 1193, 1202 (Miss. 1999) (quoting Turner

v. State, 732 So. 2d at 950). As stated previously, these prior

bad acts were admissible as proper rebuttal evidence.

Therefore, this issue is without merit.

C. The Introduction of the Actual Indictment

During Cross-Examination of the Defendant

941. Hodges also claims that the trial court erred when

it received into evidence the actual indictment for the

previous burglary and sexual battery charge. Hodges argues

that the indictment itself could not be used for impeachment

or rebuttal and that its use violates with the rules of evidence.

442. On direct examination, during the sentencing phase,

Hodges was asked “it’s true that in the past you’ve been

charged with some other crimes, isn’t it?” Hodges answered

this question saying that he had only been charged with one

other crime, which was the burglary of Cora’s house. Hodges

testified that he was charged with that one other crime and

he served his time in the RID program. On cross-examination,

the State asked “you testified that you were charged only

with one charge; is that correct?” Hodges again said that he

had only been charged with one crime. The State then asked

Hodges whether he recalled the other three crimes, the

burglary of the school and the burglary and sexual assault of

another female victim. Hodges said that he did not recall the

three other crimes. The State then handed Hodges a copy of

the indictment which showed one of the crimes and Hodges

said that he did not recognize it. The State then showed

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Hodges another indictment which showed the burglary of

the other victim’s house and the attempted sexual battery of

the other victim. Hodges then admitted that he was charged

with these other crimes. The State moved to introduce these

indictments into evidence in which the Court allowed.

Hodges did not object to the introduction of these

indictments.

443. “If no contemporaneous objection is made, the

error, if any, is waived.” Walker v. State, 671 So. 2d 581,

597 (Miss. 1995) (citing Foster v. State, 639 So. 2d at 1270).

Since Hodges never objected to the introduction of these

indictments, the issue is procedurally barred. Procedural bar

aside, this issue is without merit.

44. Mississippi Rule of Evidence 608 provides in part:

(b) Specific Instances of Conduct. Specific

instances of the conduct of a witness, for the

purpose of attacking or supporting his credibility,

other than conviction of crime as provided in rule

609, may not be proved by extrinsic evidence.

This Court has held that “specific instances of conduct

under our Rules of Evidence may not be proved by extrinsic

evidence for impeachment purposes; they may only be

inquired about on cross-examination.” Jackson v. State, 645

So. 2d 921, 923 (Miss. 1994) (citing M.R.E. 609 & Lewis ».

State, 580 So. 2d 1279, 1287 (Miss. 1991) (emphasis

omitted)). In Jackson, the State attempted to impeach a

defense witness with extrinsic evidence of specific instances

of that witness’ conduct. 645 So. 2d at 923. This Court held

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that “such attempts at impeachment are clearly forbidden by

Rule 608(b).” Id. at 923-24. However, in Jackson, this Court

held that the rule violation did not rise above harmless error.

Id. at 924. “We are not required to reverse a case based solely

upon the showing of an error in evidentiary ruling. A denial

of a substantial right of the defendant must have been affected

by the evidentiary ruling ...” Id. (citing Newsom v. State,

629 So. 2d 611, 612 (Miss. 1993)).

45. 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. Hodges was not denied a substantial right by the

introduction of this indictment.

446. The State argues that the introduction of this

indictment was not improper because it was used to rebut

Hodges’ inferences and direct statements that his prior

criminal history was insignificant. Indeed, this Court has held

that “[t]he State is allowed to rebut mitigating evidence

through cross-examination, introduction of rebuttal evidence

or by argument.” Wiley v. State, 750 So. 2d 1193, 1202 (Miss.

1999) (quoting Turner v. State, 732 So. 2d at 950).

947. Notwithstanding the procedural bar, this issue is

without merit.

4. Assistance of Counsel.

448. Hodges alleges that he was denied effective

assistance of counsel under Strickland v. Washington, 466

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U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984),

during all stages of his trial. The State challenges Hodges’

exhibits which were not part of the trial record. According

to the State such exhibits are barred from consideration.

However, this Court in Branch v. State, 882 So. 2d 36, 49

(Miss. 2004), noted that M.R.A.P. 22(b) states that

[iJssues which may be considered in post-

conviction proceedings may also be raised on

direct appeal. Where the appellant is represented

by counsel who did not represent the appellant at

trial, the failure to raise such issues on direct

appeal shall constitute waiver barring

consideration of the issues in post-conviction

proceedings.

Here Hodges was represented by Carrie Jourdan for two

years. Twenty-one days prior to trial, Hodges replaced

Jourdan for Michael Miller. 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.” Id. See also Brown v. State, 798 So. 2d 481,

491 (Miss. 2001) (citing Smith v. State, 477 So. 2d 191, 195

(Miss. 1985) and Turner v. State, 590 So. 2d 871, 874 (Miss.

1991)). In Branch, this Court went on to explain that

there is conflicting authority on whether this Court

should apply the procedural bar in a post-

conviction relief case raising ineffective assistance

of counsel on direct appeal. Goodin v. State, 856

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So. 2d 267, 279 (Miss. 2003). Goodin was then

permitted to proceed on the issue of ineffective

assistance of counsel and was granted an

evidentiary hearing to determine whether he was

mentally retarded within the meaning of Atkins.

Although this case is a direct appeal, Branch is

represented by counsel who did not represent him

in the trial court. Branch must raise Atkins and

ineffective assistance of counsel issues in this

direct appeal or he will be barred from doing so

in subsequent appeals. Therefore, we will permit

Branch to proceed with these issues, and we will

consider the additional documents supplied in

Appendices to Original Brief of Appellant.

882 So. 2d at 49. Therefore, this Court will consider the

exhibits attached to Hodges’ brief, which were not part of

the record.

449. The ineffective assistance of counsel issue will be

addressed in two parts: the culpability phase and the penalty

phase. The standard for evaluating an ineffective assistance

of counsel claim is well settled:

Where ineffective assistance of counsel is alleged,

“the benchmark [ ] must be whether counsel’s

conduct so undermined the proper functioning of

the adversarial process that the trial cannot be

relied on as having produced a just result.”

Strickland v. Washington, 466 U.S. 668, 686, 104

Ong S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In

addition, the defendant must show that the

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counsel’s performance was deficient and that the

deficiency prejudiced the defense of the case. Id.

at 687, 104 S. Ct. 2052. In order to show prejudice

under the Strickland standard, the [defendant]

must show “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.

A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at

694, 104 S. Ct. at 2068. A defendant must make

both showings under Strickland, otherwise, “it

cannot be said that the conviction or death

sentence resulted from a breakdown in the

adversary process that renders the result

unreliable.” Jones v. State, 857 So. 2d 740, 745

(Miss. 2003) (quoting Stringer v. State, 454 So.

2d 468, 477 (Miss. 1984)).

Branch, 882 So. 2d at 51-52 (citing Harris v. State, 861 So.

2d 1003, 1018 (Miss. 2003)). Trial counsel is presumed

competent, and the burden of proving that counsel’s

performance was deficient and prejudicial falls upon the

appellant. Hansen v. State, 649 So. 2d 1256, 1258 (Miss.

1994). There is no constitutional right then to errorless

counsel. Stack v. State, 860 So. 2d 687, 696 (Miss. 2003);

Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988); Mohr v.

State, 584 So. 2d 426, 430 (Miss. 1991) (right to effective

counsel does not entitle defendant to have an attorney who

makes no mistakes at trial; defendant just has right to have

competent counsel).

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450. During trial counsel must make strategic

discretionary decisions including whether or not to file certain

motions, call certain witnesses, ask certain questions, or make

certain objections. Cole v. State, 666 So. 2d 767, 777 (Miss.

1995). In gauging counsel’s performance, we must make

every effort “to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Stringer v. State, 454 So. 2d 468,

477 (Miss. 1984) (citing Strickland, 466 U.S. at 689, 104 S.

Ct. 2052).

A. Culpability Phase

951. During the culpability phase, Hodges contends that

he received ineffective assistance of counsel by his counsel’s:

(1) failure to present evidence in support of the motion to

suppress an unconstitutional confession; (2) failure to

investigate critical prosecution witnesses and to confront

those witnesses; and (3) failure to know the law applicable

to this case and to properly advise Hodges regarding plea

bargaining. Each sub-issue will be discussed separately.

1. Evidence in support of motion to suppress

confession

452. Hodges claims that he was coerced into giving the

confession and the defense counsel rendered ineffective

assistance of counsel in failing to present evidence to support

this claim and to impeach the law enforcement witness.

Hodges claims that the officer made promises to him before

the confession which made him give the statement and that

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Appendix B

he was not advised of his right to an attorney. It is clear from

the record that Hodges was informed of his Miranda rights

which included his right to an attorney and the rights form

that Hodges signed was introduced as evidence during the

trial.

q53. After fleeing to Alabama, Hodges returned to

Mississippi and went to his mother’s house. While at his

mother’s house and before the police arrived Hodges

voluntarily turned himself in at the sheriff's department.

Before talking to Hodges, Kevin Pitre, an officer with the

Lowndes County Sheriff's office, took out the standard rights

form, read it to Hodges, gave it to him to read, and then

asked him if he understood it or had any questions before he

signed the form. Hodges read the form and signed it. Pitre

testified that Hodges never indicated that he had problems

reading or understanding the contents on the form.

Furthermore, there was a space on the form entitled

“problems reading and writing” and the answer to that was

“none.” Hodges advised Pitre that he understood the form,

wished to sign it and to make a statement.

54. Hodges was then taken to the interview room where

Pitre and Joe Young proceeded with the interview. The

statement was videotaped, and Hodges started telling them

what had happened. After Hodges was finished, Young asked

Hodges to tell them again what had happened and during the

second time Young personally wrote the statement out as

Hodges was talking. After Young wrote out the statement he

gave it to Hodges, told him to read it and if there was

something he did not understand or something that needed

87a

Appendix B

changing to let him know. Hodges then read the statement,

initialed each page and signed it at the bottom.

455. During the hearing on the motion to suppress the

confession, Pitre testified that Hodges was not intimidated

or coerced in any way. Pitre also testified that he did not

offer any rewards, promises or inducements. During cross-

examination he was asked whether he told Hodges that he

would recommend a lesser sentence if he gave the statement.

Pitre testified that he did not tell Hodges that he would

recommend a lesser sentence or that he would get a lesser

sentence. In this appeal, Hodges has submitted an affidavit

of Michael Miller, his trial attorney. In this affidavit Miller

states that Hodges told him that the detectives said that he

was going to be charged with manslaughter. Hodges also

submits the transcript of the preliminary hearing and claims

that Pitre’s testimony was inconsistent. Hodges claims that

during the preliminary hearing Pitre testified that Hodges

asked him what would be the sentence if he was convicted

for capital murder and then during the suppression hearing

Pitre said that Hodges did not ask any questions.

956. To succeed on this claim of ineffective assistance

of counsel, Hodges must first show that counsel’s

performance was deficient. Hodges argues that defense

counsel was ineffective for failing to confront Pitre with his

inconsistent testimony and by failing to introduce the only

evidence in support of their motion, which was that Pitre

told Hodges he would recommend a lesser sentence of

manslaughter if he gave a statement.

88a

Appendix B

957. The first claim that Hodges raises was that his

counsel was deficient because he failed to confront Pitre with

the inconsistent statement. The following is the relevant part

of the testimony of Pitre during the preliminary hearing:

When questioning him, he asked what would be

the sentence for this if he was convicted for capital

murder for killing Isaac. He was advised of

basically what the state statute states the sentence

could be. The maximum sentence could carry a

death penalty.

When he was advised of that, he advised . . . Well,

it could carry the death penalty or life in prison.

It could carry either one. At the time he was

advised of that, he said he would prefer to be just

put to death. He said he didn’t want to spend the

rest of his life in prison.

The relevant parts of Pitre’s cross-examination during the

hearing on the motion to suppress that Hodges claims is

inconsistent with the above is as follows:

Q. Earlier you testified that if there were rights

that he did not understand that you would

explain them to him. Which rights did he not

understand on that form where you would put

a check mark by all of them?

A. AsI would read off the rights on each line, I

would check it off as I would read it to him,

and when I handed him the paper I asked him

89a

Appendix B

to read it. I said, If any of this you don’t

understand or have a question with, let me

know. He advised he understood and he

didn t have a question prior to signing the

statement, the rights form.

Q. He didn’t have any question?

A. No, sir. He indicated he didnt have a

question or didn’t have a problem with the

rights.

Q. Officer Pitre, are you telling the Court that

you said nothing to him regarding any lesser

sentence or any recommendation you would

make to him if he gave a statement to you?

A. No, sir, I didn’t say nothing to him.

Q. Nothing whatsoever?

A. No, sir.

(emphasis added). Pitre did not give inconsistent testimony.

During the preliminary hearing Pitre stated that while they

were questioning Hodges, he asked what the sentence would

be if convicted of capital murder. During the motion to

suppress, Pitre testified that Hodges had no questions prior

to signing the rights form. The question about the sentencing

that Hodges asked was during the actual questioning. During

the motion to suppress, Pitre was referring to whether Hodges

had any questions before he signed the rights form which

90a

Appendix B

was before the actual questioning. These were two very

distinct points in time. Since Pitre did not make an

inconsistent statement, defense counsel was not deficient.

“Failure to raise meritless objections is not ineffective

lawyering.” Brown v. State, 798 So. 2d 481, 494 (Miss. 2001)

(citing Clark v. Collins, 19 F.3d 959, 966 (Sth Cir. 1994)).

958. The second instance Hodges claims was ineffective

was the failure to introduce the fact that Pitre allegedly told

Hodges ‘that if he made a statement he would recommend

manslaughter. The only evidence Hodges submits in support

of this argument is an affidavit from his trial attorney, Miller.

In the affidavit Miller says that Hodges told him that he

believed he had been tricked into giving the statement to the

police and that the detective told him that he was going to be

charged with manslaughter. The only way to introduce this

information was to put Hodges on the stand during

suppression hearing. There is nothing in the record that

explains why Hodges’ counsel did not put Hodges on the

stand during the suppression hearing. His decision to keep

Hodges off the stand during the suppression hearing may

have been a deliberate trial strategy. This Court cannot second

guess Hodges’ attorney. See Mohr v. State, 584 So. 2d 426,

430 (Miss. 1991). When evaluating the overall performance

of counsel, counsel must make strategic discretionary

decisions including whether or not to file certain motions,

call certain witnesses, ask certain questions, or make certain

objections. Cole v. State, 666 So. 2d 767, 777 (Miss. 1995).

There is also a strong presumption that the attorney’s

performance was within the wide range of reasonable,

professional, and acceptable conduct. Leatherwood v. State,

473 So. 2d 964, 968 (Miss. 1985).

9la

Appendix B

9459. Furthermore, Hodges was not arrested on suspicion

of the murder. Hodges voluntarily went to the police station,

turned himself in and told the officers he wanted to make a

statement. He went to the police station by himself to tell

the police what had happened. Hodges was also informed of

his right to testify during this hearing and Hodges elected

not to testify. 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. Defense counsel was not deficient

for failing to introduce this information.

460. This Court holds that the first prong of Strickland

was not met. Since Hodges’ attorney’s performance on this

issue was not deficient, it is unnecessary to address the second

prong of Strickland.

2. Investigate and confront critical prosecution

witnesses

461. Hodges claims that counsel was ineffective for

failing to investigate a critical prosecution witness which

would have provided impeachment evidence. Hodges claims

that the prosecution witness, Anthony Betts, was a critical

witness in supplying evidence concerning Hodges’ alleged

intent to assault and if defense counsel would have checked

with the Lowndes County Circuit Clerk he would have

discovered compelling impeachment evidence against Betts.

Hodges argues that if the jury had known that Betts was a

convicted felon and on probation at the time of his testimony

they could have chosen to reject his testimony. In support of

this claim, Hodges submits the sentencing order which recites

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Appendix B

that Betts pled guilty to burglary and was sentenced to the

RID program. Hodges also submits an order which suspended

Betts’ seven-year term at the completion of the RID program

and placed him on probation for five years.

462. It has been recognized that adequate investigation

is a requisite of effective assistance. Gray v. Lucas, 677 F.2d

1086, 1093 (5" Cir. 1982). See Wiggins v. Smith, 539 U.S.

510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Rummel v.

Estelle, 590 F.2d 103, 104 (Sth Cir. 1979) (per curiam);

Gaines v. Hopper, 575 F.2d 1147 (Sth Cir. 1978) (per curiam).

To establish a constitutional violation, a defendant must show

both a failure to investigate adequately and prejudice arising

from that failure. Id. See Washington v. Watkins, 655 F.2d

1346, 1362 (5th Cir.1981). Even assuming that Miller failed

to make an adequate investigation, there is no prejudice

arising from this failure. The defendant must show “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694.

463. Anthony Betts testified that he had known Hodges

for about three years. Betts also stated that the weekend

before the shooting Hodges told him that he was going to

buy a gun and kill somebody with it. Betts then said that he

did not take Hodges seriously because he knew he would

never do anything like that. Betts then testified that on the

night of the murder Hodges was at his house and had talked

to Cora on the phone. Betts testified that after talking to Cora

on the phone Hodges just sat there for about an hour and

then left. On cross Betts testified that after Hodges left his

house he did not know where Hodges went or what happened

93a

Appendix B

after Hodges left his house. Excluding this testimony, there

was still ample evidence of Hodges’ guilt.

64. Hodges argues that Betts was a crucial witness in

supplying evidence concerning Hodges’ alleged intent to

assault. The only testimony Betts offered that may have been

helpful to the State was the fact that Hodges told him a week

before the shooting that he was going to buy a gun and shoot

somebody. However, this did not show that Hodges, a week

later, went to Cora’s house with the intent to kill someone.

Betts even stated that he knew Hodges would never do

anything like that and that he had no idea what happened

that night. There was ample evidence other than Betts’

testimony that Hodges committed burglary with the intent to

assault. In his confession, Hodges told the police that he broke

into Cora’s house. In his confession he said that he parked

two houses down, walked around the house a couple of times,

went to the back door and went inside the house. There was

also evidence of forced entry through the back door. Cora

also testified that Hodges told her that he came to her house

that night to shoot her or her mother, if she had been there.

Cora also testified that Hodges entered her house uninvited

wearing black clothes, gloves, a ski mask and carrying a gun.

The underlying felony of burglary with intent to commit

assault was established without Betts’ testimony. Hodges has

not shown any prejudice for the failure to adequately

investigate. Hodges argues in his brief that had the jury been

“informed that Betts was a convicted felon on probation at

the time of his testimony and that he had gotten special

treatment on sentencing for that offense,' they very well could

1. There is absolutely no evidence that Betts received any

special treatment. Betts pled guilty to burglary. At the time of the

(Cont’d)

94a

Appendix B

have completely rejected his testimony.” As stated previously,

absent Betts’ testimony, there was ample evidence in the

record. This issue is without merit.

3. Properly advise on plea bargain and

applicable law

{65. Hodges claims his counsel was ineffective for

failing to properly advise him of the sentencing possibilities.

Hodges claims that this deprived him of any real opportunity

to consider the plea offer made by the prosecution. In support

of this claim, Hodges submits an affidavit which he states

that Miller told him that if he were found guilty of murder

he could be sentenced to life with parole, life without parole,

or death. In the affidavit, Hodges also states that Miller told

him the State made a plea bargain of life without parole and

if he had know that life with parole was not an option he

would have taken the plea bargain. He states that he turned

down the offer “because I wanted to take my chances of

getting a life with parole sentence.”

66. Hodges has not established prejudice with respect

to this failure to properly advise. Hodges cannot prove that

but for his attorney’s errors, he would have accepted the plea

(Cont'd)

burglary, Betts was a juvenile and this was his first offense. He was

sentenced to 7 years suspended and went to the RID program. After

the completion of RID he was placed on probation for 5 years. Hodges

argues that for his previous burglary he was sentenced to 15 years

suspended and went to the RID program and since that was more

harsh than Betts’ sentence, he must have gotten some leniency.

However, that was not Hodges’ first offense.

95a

Appendix B

offer and he cites no evidence to indicate that prior to his

conviction he expressed any desire to plead guilty. Hodges

argues that he would have received a lesser sentence had he

accepted the plea agreement. The Eleventh Circuit has held

that “given appellant’s awareness of the plea offer, his after

the fact testimony concerning his desire to plead, without

more, is insufficient to establish that but for counsel’s alleged

advice or inaction, he would have accepted the plea offer.”

Diaz v. United States, 930 F.2d 832, 835 (11" Cir. 1991)

(citing Johnson v. Duckworth, 793 F.2d 898, 902 (7" Cir.

1986)). Hodges has not shown or established any facts that,

if proven, would entitle him to relief. All Hodges submits is

his affidavit, after the fact, that he would have accepted the

offer but for counsel’s failure to properly advise. This Court

holds that this alone is “insufficient to establish that but for

counsel’s alleged [failure to properly advise], he would have

accepted the plea offer.” Jd. Therefore, this issue is without

merit.

B. Penalty Phase

67. Hodges contends that he received ineffective

assistance of counsel during the penalty phase by: (1)

counsel’s failure to present available evidence in mitigation;

(2) the trial court’s denial of an overnight recess before

closing argument; and (3) counsel’s failure to properly

prepare Hodges for his testimony. Each sub-issue will be

discussed separately.

96a

Appendix B

l. Mitigation Evidence

468. Hodges claims that counsel failed to present

available evidence in mitigation and that he was prejudiced

by counsel’s failure to request subpoenas for his sister, cousin,

an expert witness from the State Hospital at Whitfield and

to adequately confront Johnny Robbins, a prosecution

witness. In support of this claim, Hodges submits an affidavit

from Miller, his trial attorney, which states that since he had

only a week to prepare for the trial he did not focus on what

mitigation witnesses would testify. However, Hodges fails

to note that he fired his court appointed attorney 21 days

before trial and then hired Miller. Hodges also submits the

medical report from Whitfield, which was also contained in

the record.

a. Expert witness from State Hospital

469. The first claim Hodges raises is that counsel was

ineffective for failing to subpoena an expert witness from

the state hospital. The State Hospital evaluated Hodges before

trial and was asked to render an opinion on possible

mitigating circumstances. Hodges argues that defense counsel

took the position that the report was not helpful when in fact

it supported several mitigating factors such as his limited

education, his difficult relationship with Cora and drug use.

He also argues that the expert could have given an explanation

of the escapes from jail which was already before the jury.

He also argues that the expert could have explained the

mitigating circumstance of his age and how the adolescent

brain functions different than the adult brain. Hodges argues

that this evidence would have provided an explanation of

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Appendix B

why adolescents are more impulsive than adults. However,

Hodges fails to point out that at the time of the murder, he

was nineteen years old (legally an adult). Hodges now asserts

that more could have been done but he fails to explain how

this report would serve to persuade a jury to leniency in

sentencing.

470. The Supreme Court has stated that

Strickland does not require counsel to investigate

every conceivable line of mitigating evidence no

matter how unlikely the effort would be to assist

the defendant at sentencing. Nor does Strickland

require defense counsel to present mitigating

evidence at sentencing in every case. Both

conclusions would interfere with the

“constitutionally protected independence of

counsel” at the heart of Strickland, 466 U.S. at

689, 104 S. Ct. 2052. We base our conclusion on

the much more limited principle that “strategic

choices made after less than complete

investigation are reasonable” only to the extent

that “reasonable professional judgments support

the limitations on investigation.” Id. at 690-691,

104 S. Ct. 2052. A decision not to investigate thus

“must be directly assessed for reasonableness in

all the circumstances.” Jd. at 691, 104 S. Ct. 2052.

Wiggins v. Smith, 539 U.S. at 533, 123 S. Ct. at 2541. In the

case sub judice, trial counsel investigated the medical report.

Trial counsel even talked to the expert witness at Whitfield

and discussed the possibility of his testifying at the sentencing

98a

Appendix B

phase. Trial counsel gave the doctor a copy of the letters that

Cora had sent Hodges and asked the doctor to examine the

letters. Trial counsel specifically asked the doctor to examine

these letters to determine if the letters changed his opinion

on the mitigating factors. This additional information did

not change the doctor’s opinion and the decision not to call

this doctor reflected reasonable professional judgment.

471. Furthermore, to determine prejudice it is required

to compare the evidence actually presented at sentencing with

all the mitigating evidence Hodges now submits. Neal v.

Puckett, 286 F.3d 230, 241 (5" Cir. 2002). “Stated to the

point: Is this additional mitigation evidence so compelling

that there is a reasonable probability at least one juror could

reasonably have determine that, because of [this additional

evidence], death was not an appropriate sentence?” Id.

772. During the sentencing phase, Hodges had five

witnesses testify as to mitigating circumstances. The first

witness was Lisa Hodges, his older sister. She testified that

she helped raise Hodges and that Hodges went to church,

was a good kid, helped others, did not get into fights and

obeyed his elders. She also testified that Hodges was not a

violent person. The second witness was Raneece Hodges,

his niece. She testified that she grew up with Hodges because

they were about the same age. She said that he would always

obey his mother and that he was a mama’s boy. She also

testified that he had troubles at school when he transferred

to Caledonia High. The third witness during sentencing was

Chris Hodges, his uncle. He testified that Hodges was soft-

spoken, did not fight and when teased he would always avoid

conflict. The fourth witness was Sharon Green, another sister.

99a

Appendix B

She also testified that she helped raise Hodges and he did

not fight and he always clung to his mother. The last witness

to testify during sentencing was Hodges’ mother, Johnnie

Pearl Hodges. She testified that Hodges was a sickly boy

growing up because of his asthma. She said that he never

got into trouble as a little boy. However, she testified that he

started having trouble in school later on and was expelled at

Caledonia High and later dropped out of school. She testified

that he did not have a close relationship with his father and

his trouble began when he started dating Cora. The State

presented four aggravating factors for the jury to consider:

(1) capital murder was committed during the commission of

the crime of burglary; (2) capital murder was committed

during the commission of the crime of kidnaping; (3) capital

murder was committed by one who was already under a

sentence of imprisonment; and (4) capital murder was

committed for the purpose to avoid a lawful arrest.

473. The additional mitigating evidence that Hodges

claims the Whitfield expert could have testified to was the

fact of his limited education, his difficult relationship with

Cora and drug use. He also argues that the expert could have

given an explanation of the escapes from jail which was

already before the jury. He also argues that the expert could

have explained the mitigating circumstance of his age and

how the adolescent brain functions differently than the adult

brain. Hodges argues that this evidence would have provided

an explanation of why adolescents are more impulsive than

adults. It is hard to say that the result of the proceeding would

have been different with this additional evidence. First of

all, the fact that he had a limited education was already before

the jury. Hodges’ mother testified to the fact that he quit

100a

Appendix B

school and did not graduate and did not finish his GED

courses. His mother also testified that his troubles began

when he started seeing Cora, so the evidence of the difficult

relationship with Cora was already before the jury. Hodges

also testified during the sentencing phase and he had an

opportunity to testify about his difficult relationship with

Cora and his drug use. He could have also explained why he

escaped from jail. When asked during cross-examination

Hodges stated that he did not remember why he escaped from

jail. Also the fact that adolescents are more impulsive than

adults does not affect the outcome because Hodges was

nineteen when he committed capital murder. The only

additional evidence that was clearly not before the jury was

the drug use. When comparing this with all the evidence that

was presented, no prejudice occurred. This additional

mitigation evidence of drug use 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. Thus, had this witness been called to testify, there

is not a reasonable probability that the result would have

been different. This issue is without merit.

b. Additional mitigation witnesses

474. Hodges also claims that counsel was ineffective

for failing to subpoena Hodges’ sister and cousin, which

would have provided compelling mitigation evidence.

Hodges claims that his sister, Joann Latz, would have testified

that Hodges was teased as a child and that she would have

offered the only evidence of the lack of father/son

relationship. Hodges also claims that she could have

augmented the testimony of a change in his behavior as he

10la

Appendix B

entered his teen years and could have painted an accurate

picture of the mother/son relationship that was never

explored.

475. The facts here suggest that any additional character

witnesses would have been cumulative. Defense counsel

offered the testimony of five character witnesses during

sentencing. Chris Hodges already testified that they teased

him as a kid and he would avoid conflict. Johnnie Hodges

testified that Hodges did not have a relationship with his

father. The fact that his behavior changed and that he started

having trouble in school was offered by at least two of the

witnesses. While each of these two additional witnesses

might have been willing to testify, none of them brought

unique information to be considered about Hodges’ behavior.

The additional testimony would have merely echoed that

which was already offered at mitigation. In Wiley v. State,

842 So. 2d 1280, 1286 (Miss. 2003), this Court held that

“the record reflects that evidence of all of the mitigating

factors Wiley alludes to was introduced during the sentencing

trial by other witnesses and that there was no need for

cumulative testimony.” This is exactly the situation we have

in the case sub judice. All of the additional testimony Hodges

alludes to was introduced during the sentencing trial by other

witnesses. Thus, her testimony would have been cumulative.

476. Therefore, this additional evidence is not of a nature

to cast any doubt as to the propriety of the jury’s verdict and,

as a result, this claim is without merit.

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Appendix B

c. Victim impact statement

477. Hodges also claims that defense counsel was

ineffective in failing to introduce the victim impact statement

of Bessie Tatum, the mother of Isaac and Cora Johnson.

Hodges argues that the jury was left with the impression that

Mrs. Tatum wanted to see Hodges put to death when the

victim impact statement said that her preference was life in

prison.

478. Defense counsel’s decision not to introduce the

victim impact statement during the sentencing hearing may

have been a deliberate trial strategy. This Court cannot second

guess Hodges’ attorney. See Mohr v. State, 584 So. 2d 426,

430 (Miss. 1991). When evaluating the overall performance

of counsel, counsel must make strategic discretionary

decisions including whether or not to file certain motions,

call certain witnesses, ask certain questions, or make certain

objections. Cole v. State, 666 So. 2d 767, 777 (Miss. 1995).

In the victim impact statement Bessie Tatum states that “my

wish is that he will be put away for life with no parole so

that he will not hurt anyone else. I do not believe in killing

but if the Court choose to do other wish than do so.” The

victim impact statement evidences the fact that she would

not object to Hodges being put to death. This clearly could

have been a strategic decision by defense counsel, and this

Court has already stated that it would not second guess

defense counsel. Defense counsel was not deficient for failing

to introduce this information.

103a

Appendix B

d. Failure to adequately confront State witness

Johnny Robbins

{79. 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

Robbins. Hodges claims that counsel failed to conduct a pre-

trial interview of this witness and failed to elicit mitigation

evidence from Robbins concerning Hodges’ character and

behavior while serving in the RID program.

480. Johnny Robbins served as a witness for the sole

purpose of introducing Hodges’ burglary conviction into

evidence at sentencing. This evidence supported the State’s

aggravator that the capital murder was committed while

Hodges was under a sentence of imprisonment. First, it was

not ineffective for failing to object to the State’s introduction

of a copy of the conviction. This Court has held that the

admission of a sentencing order was an efficient way to prove

the under a “sentence of imprisonment” aggravator. Jenkins

v. State, 607 So. 2d 1171, 1180 (Miss. 1992). “Failure to

raise meritless objections is not ineffective lawyering.”

Brown v. State, 798 So. 2d 481, 494 (Miss. 2001) (citing

Clark v. Collins, 19 F.3d 959, 966 (Sth Cir. 1994)). Therefore,

Hodges’ counsel was not ineffective for failing to object to

the introduction of the conviction.

481. Hodges also argues that defense counsel was

ineffective for failing to adequately cross-examine Robbins.

Hodges claims that mitigation evidence could have been

elicited through adequate cross-examination. Hodges claims

that defense counsel could have questioned Robbins about

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Appendix B

Hodges personally. In support of this claim, Hodges submits

a report that states that during the RID program Hodges was

cooperative and made a good effort to fulfill the requirements

for graduation. However, there is no indication that Robbins

knew Hodges personally and could have testified to this

information. The only reason Robbins testified was to

introduce evidence relating to the under imprisonment

aggravator. During cross, defense counsel was able to use

this witness to show that the RID program is used for first-

time, non-violent offenders and to teach self-respect and

discipline. Defense counsel was not deficient in cross-

examining Robbins. Even assuming that Miller failed to

adequately cross-examine Robbins, there is no prejudice

arising from this failure. The defendant must show “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. Any additional

evidence in mitigation was not of a nature to cast any doubt

as to the propriety of the jury’s verdict and, as a result, this

claim is without merit.

2. Trial Court’s denial of overnight recess

before closing argument

482. After the close of evidence at the sentencing phase

defense counsel requested an overnight recess in order to

prepare for closing. The trial court denied this request and

Hodges now claims that this denial by the trial court caused

him to suffer ineffective assistance of counsel. This is not an

ineffective assistance of counsel claim to be analyzed under

the Strickland standard. “Ordinarily, trial judges have broad

discretion in determining when trials will begin and how long

105a

Appendix B

they will continue on any given day.” Dye v. State, 498 So.

2d 343, 344 (Miss. 1986). There is not a “bright line rule” as

to when a trial judge should grant a continuance or recess.

Hooker v. State, 716 So. 2d 1104, 1113 (Miss. 1998). This

Court’s analysis focuses upon the unique facts of each case.

Id.

483. This Court has held that a denial for a recess can

deny the defendant the right to effective assistance of counsel.

Thornton v. State, 369 So. 2d 505 (Miss. 1979). In Thornton,

the State rested its case-in-chief at about 6:00 p.m. and the

defense counsel moved for a recess stating that he was

exceedingly tired. Jd. at 506. The trial judge refused to grant

the defendant’s request for a recess. Id. Subsequently, the

defendant was forced to put on his defense which lasted until

approximately 10:00 p.m. Id. The parties had to then submit

their objections to the submitted jury instructions and then

make closing arguments. Jd. Both sides were given one hour

for closing. Jd. After making closing arguments, the

defendant’s attorney became ill and was rushed to the

hospital. Jd. The case sub judice is clearly distinguishable.

484. There is no evidence in the record of an undue

burden upon counsel in continuing the case to conclusion

and no indication in the record that the jury had difficulty in

proceeding with the case. The culpability phase began on

September 10, 2001, and the verdict was rendered on the

13th at 1 p.m. The sentencing phase began at 2 p.m. on

September 13, 2001, which was only the third day of the

trial. Before closing argument in the sentencing phase, the

jury requested pizza for dinner. The jury was then sent to

deliberate and was also given their dinner at this time. The

106a

Appendix B

case was submitted to the jury around dinner time. 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. As stated above,

trial judges have broad discretion in determining when trials

will begin and how long they will continue on any given

day. Based upon the facts in the record, the trial judge did

not abuse his discretion in denying defense counsel’s request

for an overnight recess before closing arguments.

3. Properly prepare Hodges for his testimony

485. Defense counsel advised Hodges against testifying

and explained to him the reasons why he should not testify.

After counsel advised Hodges, he chose to testify. Hodges

now claims that counsel was ineffective for failing to

adequately prepare him for his testimony. This failure,

according to Hodges, opened him up to all prior charges

because counsel did not explain the difference between a

charge and a conviction. In support of this claim Hodges

submits the affidavit of his trial counsel, Miller, in which

Miller states that he did not have time to prepare Hodges to

testify.

486. During the sentencing phase the court asked

Hodges if he wanted to testify and Hodges stated that he did

not want to testify. When asked why he did not want to testify

Hodges stated that it was because the State “is trying to bring

up the background and my situation and stuff.” The Court

then gave defense counsel a thirty-minute recess to enable

defense counsel to talk to Hodges about testifying. Hodges

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then informed the court that he wanted to testify. Hodges

now claims that he was not adequately prepared to testify.

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. There is also no evidence that Hodges did not know

the difference between a charge and conviction. During direct

examination Hodges testified that he had only been charged

with one other crime-burglary of a dwelling (Cora’s house).

He was then asked if he had ever been convicted of any other

crimes other than the burglary of Cora’s dwelling and he said

“no”. During cross the State brought out the fact that Hodges

had also been charged with other crimes.

487. The only thing alleged that was caused by this

failure to prepare was the fact that Hodges did not know the

difference between a charge and a conviction and this caused

his other charges to come in during cross. Assuming that

defense counsel was deficient because Hodges did hot know

the difference between a charge and a conviction, Hodges

has not shown that he was prejudiced by this information

and that the result of the proceeding would have been

different. Hodges was aware that the State could go into his

criminal history but Hodges chose to testify after his counsel

advised against testifying. The jury already knew that Hodges

had been charged with these other crimes. This information

can not cause prejudice when it was already before the jury.

Therefore, absent a showing of prejudice, this issue is without

merit.

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5. Failure to Instruct on Ineligibility for

Parole.

488. Hodges claims 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.”

Hodges also claims that the State exacerbated this problem

by informing the jury during closing argument that the jury

had the option of sentencing Hodges to life with parole.

Hodges argues that these statements violate Mississippi law,

which requires the jury to have been instructed that the

sentence was without parole. He claims his due process rights

were violated where the jury was given an inaccurate

explanation concerning parole and erroneously believed

Hodges could receive parole. Hodges argues that this requires

his sentence to be vacated.

489. The State argues that the court complied with

Mississippi law in instructing the jury, pursuant to Miss.Code

Ann. § 97-3-21 which provides that “every person who shall

be convicted of capital murder shall be sentenced (a) to death;

(b) to imprisonment for life in the State Penitentiary without

parole; or (c) to imprisonment for life in the State Penitentiary

with eligibility for parole as provided in Section 47-7-

3(1)(f).” The State argues that the court instructed the jury

on all three options and the jury returned a death sentence.

The State claims that even if there was an error, it was

harmless error which does not require reversal.

490. The verdict form states that “[y]ou have found the

Defendant guilty of the crime of Capital Murder. You must

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now decide whether the Defendant will be sentenced to death,

or life imprisonment without the possibility of parole, or life

imprisonment with the possibility of parole.” The verdict

form then goes on to instruct the jurors how their verdict

should read if they sentenced him to death, if they sentence

him to life imprisonment without parole, if they sentence

him to life with possibility of parole and if they could not

agree on a sentence. The jury was instructed on all three

options, and the jury chose death. As mentioned previously,

the main part Hodges now objects to is where the verdict

form states 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.” Hodges, during

tri

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