State v. Hodge

457 So. 2d 152
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1984
Docket16452-KW, 16454-KW
StatusPublished
Cited by13 cases

This text of 457 So. 2d 152 (State v. Hodge) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hodge, 457 So. 2d 152 (La. Ct. App. 1984).

Opinion

457 So.2d 152 (1984)

STATE of Louisiana, Appellee,
v.
Sherman HODGE and Charlie Ray Hodge, Appellants.

Nos. 16452-KW, 16454-KW.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1984.
Writ Denied November 9, 1984.

*153 Indigent Defendant Office by William T. Giddens, Shreveport, for defendant-appellant, Charlie Ray Hodge.

Rountree, Hicks & Cox by Dale G. Cox, Shreveport, for defendant-appellant, Sherman Hodge.

William J. Guste, Jr., Atty. Gen., Paul J. Carmouche, Dist. Atty., A.M. Stroud, III and John Broadwell, Asst. Dist. Attys., Shreveport, for plaintiff-appellee.

Before HALL, MARVIN and NORRIS, JJ.

NORRIS, Judge.

Petitioners, Sherman Hodge and Charlie Ray Hodge, both indigents with different *154 appointed counsel, were jointly charged with second-degree murder, LSA-R.S. 14:30.1, on January 26, 1984, in a single indictment. Each petitioner filed a motion to sever. Sherman Hodge also filed motions for appointment of expert assistance, for a reasonable inquiry by the state into the criminal record and reputation of the deceased, for the criminal records of certain eye witnesses to the crime, and for the state to furnish that information to defendant's counsel. The lower court denied these pre-trial motions. We granted writs to review those rulings and ordered that the matter not be set for trial pending our review. The issues presented for review are: (1) whether the trial court erred in denying the motions to sever; (2) whether the lower court erred in refusing to appoint at state expense expert witnesses in the field of pathology and firearms identification and to appoint an investigator for the indigent Sherman Hodge to enable him to prepare and present his defense; and (3) whether the trial court erred in failing to require the district attorney to make a reasonable inquiry, first, to determine if records exist of arrest and convictions of the deceased and eye witnesses to this crime and second, to determine if the deceased possessed a reputation for violence or other criminal activity in the community in which he lived.

For the reasons expressed, we reverse the lower court's ruling on the motions to sever. Otherwise, we affirm.

FACTS

The facts for the purpose of this review are of necessity gleaned from the statements given by the co-defendants, the autopsy report, the crime lab report, the transcript of the preliminary exam, and the testimony of firearms examiner Steve McKinney. All of the above were introduced into evidence in connection with the hearing on the motions to sever.

On December 21, 1983, the victim, Patrick Paul Carey, knocked on the door of Larry Smith's home where the defendants, Charlie Ray and Sherman Hodge were visiting. Sherman answered the door and went outside with the victim. An argument ensued between Sherman Hodge and the victim, resulting in the victim striking Sherman Hodge. The victim left and Sherman Hodge reentered the house and told his brother, Charlie Ray, that Carey had struck him. Sherman and Charlie Ray left in separate cars and drove to their residence where Charlie Ray went inside and obtained a shotgun. It is disputed whether Sherman was armed at this point. It is also disputed whether he then knew that Charlie Ray had obtained the weapon. Charlie Ray entered Sherman's car and Sherman drove the pair to the intersection of Ford and Dale Streets in Shreveport, Louisiana, where the victim was standing. They stopped the car beside the victim and both defendants got out of the car. Charlie Ray Hodge fired at least one shot with the shotgun; and it is disputed whether Sherman had a gun or fired a shot. The officer who testified at the preliminary examination said there were two witnesses at the scene, both of whom stated that both Charlie Ray and Sherman were armed, Charlie with a shotgun and Sherman with a handgun. After reviewing their statements, however, the officer concluded that one witness evidently did not see Sherman shoot the deceased, and the other was not sure whether Sherman fired a shot.

The victim was struck in the left arm and the head by gun fire and died several hours later. The autopsy report lists the cause of death as trauma due to a gunshot wound to the head. Numerous pellets were recovered from the arm wound by the coroner and submitted to the crime lab along with metal fragments obtained from the scalp and brain as a result of the head wound. Steven McKinney, a firearms expert, testified that the pellets recovered from the victim's arm wound came from a shotgun but that the fragments from the head wound definitely did not come from a shotgun. The head wound, he felt, was caused by a rifle or pistol.

Charlie Ray and Sherman subsequently surrendered to the Shreveport police and *155 each gave statements concerning the incident after being advised of their constitutional rights.

Charlie Ray's statement verified the incident between Sherman and deceased that occurred at Larry Smith's house as reported to him by his brother. He admitted leaving in his car, going to his residence, getting a .12 gauge shotgun from the bedroom, getting in Sherman's car and then, with Sherman driving, proceeding to Ford and Dale Streets where they encountered the victim. Charlie Ray stated that he got out of the car with a shotgun in his hand and shot Carey one time when the victim "went into his pocket," because he thought the victim was reaching for a weapon of some sort. Charlie Ray stated that his brother, Sherman, never had a gun.

Sherman Hodge's statement also was fairly consistent about his prior altercation with the deceased although he said the deceased pulled a knife after striking him from behind. Sherman told his brother Charlie Ray what happened, they left in their individual cars and went to their residence. Sherman stated that Charlie Ray went into the house and that he stayed in the car. He further stated he did not know what Charlie Ray went into the house for and that he thought they were only going to talk to the victim. Sherman stated he did not see the shotgun when Charlie Ray came out of the house and got into the car. Sherman said he had no weapon and only saw the shotgun when Charlie Ray got out of the car and as the victim was walking toward the car. Sherman stated that he also got out of the car and told Carey they wanted to talk to him, that Carey started "pulling out of his pocket" a shiny object, and that Charlie Ray shot the victim one time despite Sherman's protestations that Charlie Ray not do anything but talk to the victim.

ASSIGNMENT OF ERRORS DEALING WITH DENIAL OF THE MOTIONS TO SEVER

Charlie Ray Hodge bases his motion to sever on two grounds. First, he contends a joint trial would violate the rule set forth in Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Under Bruton, a defendant's sixth amendment right of confrontation is violated when an incriminating confession by a non-testifying co-defendant is admitted at trial. Second, Charlie Ray contends that the co-defendants in this case will present antagonistic defenses which will force him to defend not only against the state but also against his co-defendant, Sherman Hodge.

Sherman Hodge contends that the co-defendant's defenses are indeed antagonistic and that because Charlie Ray has given a recorded statement exculpating Sherman Hodge as a perpetrator and inferentially as a principal, he is entitled to compel the attendance of Charlie Ray as a witness at his trial to provide this favorable evidence.

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Bluebook (online)
457 So. 2d 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hodge-lactapp-1984.