State v. Hodges , 291 Ga. 413 ( 2012 )

Hines, Justice.

This Court granted certiorari to the Court of Appeals in Hodges v. State, 311 Ga. App. 46 (714 SE2d 717) (2011), to consider whether that Court erred in holding that the defendant should have been allowed to present evidence in support of his justification defense about a previous incident of violence allegedly committed by the victim against third parties, where the defendant claimed that he had heard of the previous incident but did not witness it or have any other evidence in support of the claim. For the reasons that follow, we conclude that the holding was in error, and we reverse the judgment of the Court of Appeals.

On February 9,2006, Mario Hodges shot and killed Rudy Turner. Turner was killed in Hodges’s home, where Turner had stayed the night before the shooting. At the time of the incident, Hodges and Turner had been “on-again, off-again” friends for about five years. The two men had fought in the past, and were in a physical altercation over a debt Hodges owed to Turner seven months before the shooting.

Prior to Turner arriving at Hodges’s home, he had been staying with mutual friends. Turner asked Hodges to pick him up the night before the shooting because he and the friends had “gotten into a disagreement.” Hodges did so, and Turner slept at Hodges’s home that night. The next day, Turner was agitated about various people that were indebted to him, including Hodges, and told Hodges that he wanted his money. Turner became angrier as the day went on. He told Hodges that he was “going to get” the people who owed him money, and if they failed to pay, he would “go after their relatives or the people they love.”

Turner went upstairs to Hodges’s home office, where Hodges had a collection of weapons, which included a flail with attached spiked metal balls, a machete, and a large “Arabian knife.” Turner brought the weapons downstairs one at a time and made threatening comments and gestures directed at Hodges and the others that owed him money. Hodges instructed Turner to return the weapons each time Turner came down with one and told him to leave the residence. After Turner went upstairs with the machete, Hodges got his shotgun and placed it near his seat. When Turner came downstairs a third time, he was armed with the Arabian knife. Hodges testified that Turner “just snapped,” went “berserk,” and approached Hodges who said that he thought Turner meant to harm him. Hodges shot Turner, who turned and ran up the stairs. Hodges said he did not know what weapons Turner had as “he [was] known to carry guns.” Hodges also testified that he thought his first shot missed Turner, so he followed Turner up the stairs and shot him a second time. Hodges thought this second shot hit Turner because he fell, but when Turner “made a move” on the floor, Hodges hit Turner with the shotgun, which discharged a third time. The first shot proved to be the fatal strike.

Hodges then called 911, reported his location, and told the operator he had shot Turner while defending himself. Two officers dispatched to the scene found Turner’s dead body upstairs in Hodges’s home. A knife was located about six feet from Turner’s body. When interviewed by the police, Hodges waived his Miranda¹ rights and told detectives that the incident began when Turner threatened him and Hodges’s daughter.

A jury found Hodges guilty of involuntary manslaughter as a lesser included offense of felony murder, aggravated assault based upon Hodges firing the second shot, and possession of a firearm during the commission of aggravated assault. At trial, Hodges presented a justification defense pursuant to OCGA § 16-3-21 (a).² Hodges sought, pre-trial, to introduce evidence that Turner had acted violently toward other people on several occasions, all of which Hodges had heard about before he killed Turner. Two of the three incidents were allowed into evidence and involved Turner’s violent acts towards the friends with whom he was living before Hodges brought Turner to his home the night before the shooting; in fact, one of the incidents precipitated Turner’s departure. In regard to the alleged third incident, Hodges sought to testify that after his fight with Turner seven months prior to the fatal shooting, a friend told Hodges that Turner had shot at her and her daughter. Hodges argued that his testimony about the purported incident would explain his state of mind and fear for his personal safety when he shot Turner. The trial court refused to allow the testimony because there was no independent evidence about Turner’s alleged acts of violence available to make the requisite showing of admissibility.

The Court of Appeals reversed, finding that the testimony was admissible, pursuant to OCGA § 24-3-2, as “original, admissible, competent evidence” of Hodges’s state of mind to explain his conduct, and that its exclusion was harmful error. We disagree.

In Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), this Court permitted specific acts of violence by a victim against third persons to be admitted into evidence in the situation in which a defendant claims justification; the defendant has to demonstrate the admissibility of Chandler evidence, and at a minimum, must follow the procedural requirements for introducing the evidence, establish by competent evidence the existence of prior violent acts, and make a prima facie showing of justification. Spencer v. State, 287 Ga. 434, 435-436 (2) (a) (696 SE2d 617) (2010). This prevents the introduction into evidence of unreliable hearsay. Id. at 438 (2) (c).

Yet, the Court of Appeals has ruled in this case that the safeguards of Chandler can be disregarded because Hodges stated that he wanted to testify about the alleged additional incident of the victim’s violence to others in order to demonstrate Hodges’s state of mind. But, this Court has addressed precisely this issue in Hill v. State, 272 Ga. 805 (537 SE2d 75) (2000). In that case, Hill, testifying in his defense, maintained that he shot the victim in self-defense because he believed that the victim was attempting to get a gun when he reached into his car. However, the trial court refused to allow Hill to testify about the victim’s alleged prior violent acts against third parties. Hill argued to this Court that he should have been allowed to testify about the victim’s reputation for violence, based upon the alleged prior violent acts, for the sole purpose of showing Hill’s state of mind at the time that he fatally shot the victim. Id. at 806 (3). This Court soundly rejected the argument, finding that the sought testimony was inadmissible because there was no evidence that the victim was the aggressor or assaulted Hill, and that Hill’s hearsay testimony was not competent to establish evidence of the victim’s alleged prior violent acts. Id.

The holding in Hill is premised on well-established procedural and substantive principles regarding the admission of evidence in the context of a criminal proceeding. First, as Hill readily acknowledges, in general a murder victim’s reputation for violence is irrelevant and inadmissible in criminal proceedings, but that it may be offered as evidence by the accused upon the accused making a prima facie showing that the victim was the aggressor and was assaulting the accused, who was acting to defend himself. Woods v. State, 269 Ga. 60, 63 (5) (495 SE2d 282) (1998). If such showing is made, evidence of the victim’s reputation for violence is then admissible to corroborate the accused’s story that the victim was violent when the accused killed the victim, and that the accused acted in reasonable fear in doing so. Id.

Recently, this Court in Render v. State, 288 Ga. 420 (704 SE2d 767) (2011), considered and rejected the argument that there are “two prongs” or methods by which a defendant may have admitted into evidence prior violent acts of the victim against third parties. Render acknowledged this Court’s holding in Chandler, yet, he urged that Chandler had no applicability to his case in that there was no competent evidence of specific violent acts by the victim against other parties which the defense could have presented. He argued, that instead, “his situation was governed... by longstanding, statutorily-based evidentiary law’ relating to self-defense, namely permitting evidence of his motivation or state of mind at the time of the shooting, as permitted by OCGA § 24-3-2.” Render at 422 (2) (a). He contended that his trial counsel was deficient for not attempting to introduce such evidence under authority of OCGA § 24-3-2, as it “ ‘would have allowed the jury to understand the reasonable nature’ of his fear of the victim,” which he claimed was crucial to his sole defense of justification/self-defense. Render at 422 (2) (a).

This Court acknowledged that OCGA § 24-3-2 would permit evidence of alleged threats from the victim in certain narrow circumstances and when such evidence is offered not for the truth of the matter asserted but rather to show the victim’s violent state of mind; however, we cautioned that such evidence is admissible only when there is a conflict in the evidence as to who instigated the fight leading to the fatal incident, to corroborate evidence of communicated threats, or to establish the attitude of the deceased. Render at 423 (2) (a). But, Render sought to introduce into evidence his unsupported claim that he had heard from the victim’s friends that they were scared that the victim would hurt them if they testified against him and that the victim had killed three or four people, that is, that Render had knowledge of the victim’s violence which made his alleged fear reasonable at the time he shot the victim. This is precisely the situation in Hodges’s case, i.e., alleged evidence in the form of unsupported assertions by the defendant as to what was in his mind at the time he killed the victim. And, as we noted in Render, it is certainly the case that when a defendant claims he justifiably used force in self-defense, evidence of the victim’s prior acts of violence can be relevant “to support the defendant’s claim that the victim assaulted the defendant in accordance with this violent character.” Id. That is the type of evidence contemplated in and controlled by Chandler. In Chandler, this Court fashioned the rule concerning the admission of prior specific acts of violence by the victim in accord with the special concurrence of Justice Weltner in Lolley v. State, 259 Ga. 605, 607-610 (385 SE2d 285) (1989). In that special concurrence, Justice Weltner emphasized that a linchpin of the “chain of reason” permitting the defendant to have admitted into evidence specific prior acts of violence by the victim in support of the defendant’s claim that the killing of the victim was justified was that the defendant prove that the victim committed the prior acts of violence. Id. at 609.

OCGA § 24-3-2, upon which the Court of Appeals analysis relies and which is the basis of Hodges’s argument for permitting the sought testimony as original evidence rather then hearsay, by its express terms, requires that the evidence in question be “facts to explain conduct and ascertain motives.” (Emphasis supplied.) Furthermore, this Court has refused to permit this statute to give a criminal defendant unbridled license to avoid the bar of hearsay and thereby introduce self-serving statements into evidence. See Arp v. State, 249 Ga. 403 (2) (291 SE2d 495) (1982).

Certainly, there is a theoretical distinction to be made between the offer of evidence of prior violent acts by the victim against third parties to show that the victim was indeed the aggressor in the fatal episode with the defendant and the defendant’s desire to introduce such evidence for the purpose of showing the defendant’s state of mind at the time the defendant killed the victim. But, it is a distinction without a real difference in regard to the ultimate determination to be made by the factfinder in regard to a defendant’s assertion of self-defense, i.e., whether the killing was legally justified.

In Harris v. State, 279 Ga. 304 (612 SE2d 789) (2005), the defendant asserted that he previously had been shot, and that the effect of the shooting on his state of mind was important to his claims of justification and self-defense in his killing of the victim. This Court determined that Harris’s complaint was unavailing inasmuch as a defendant is not permitted to support a justification defense with an explanation that he or she had been the victim of an earlier attack. Id. at 308 (3) (c). We explained the rationale: the evidence is simply not relevant to the critical question in the defense of justification, that is, “whether the circumstances surrounding the commission of the crimes on trial would have excited the fears of an objective reasonable person to the point where the defendant’s actions were justified.” Id. However, that is not to say that evidence of violent acts committed by the victim against either the defendant or against third parties is not relevant to this inquiry, but that evidence may be introduced by a criminal defendant claiming justification pursuant to Chandler. Lewis v. State, 270 Ga. 891, 893 (2) (515 SE2d 382) (1999). And, that is so because the key showing must be that the victim was the aggressor in the fatal encounter.

As the dissenting opinion in the Court of Appeals in this case aptly noted, the opinion of the majority of that Court would create a new rule of evidence, not supported by precedent, and in fact, belied by the caselaw. It permits a defendant to circumvent the substantive and procedural safeguards of Chandler, merely by asserting that the sought evidence of the victim’s alleged violence against a third party is for the purpose of showing the defendant’s state of mind. Moreover, it muddies the waters about the critical question at hand in regard to the defendant’s justification defense, that is, whether the circumstances of the fatal incident were such that they would excite not merely the fears of the defendant but the fears of a reasonable person. Payne v. State, 289 Ga. 691, 698 (4) (715 SE2d 104) (2011).

The trial court correctly refused to allow Hodges to testify about the unsupported alleged violent incident involving the victim and third parties.³

The judgment of the Court of Appeals cannot stand.

Judgment reversed.

All the Justices concur, except Carley, C. J., and Melton and Nahmias, JJ., who concur specially.

1 Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

2 OCGA§ 16-3-21 (a) provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

3 It is noteworthy that inasmuch as two incidents of the victim’s violence toward third parties were admissible into evidence, the jury was made aware of the possible perception of the victim as a violent person, thereby permitting the inference of Hodges’s allegedly fearful state of mind with regard to the victim.