Hodges v. Com.

PRESENT: All the Justices

KENNETH ALONZO HODGES, II
OPINION BY
v. Record No. 051386 JUSTICE G. STEVEN AGEE
September 15, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Kenneth Alonzo Hodges, II, appeals from the judgment of the

Court of Appeals of Virginia, which affirmed his convictions for

first-degree murder, in violation of Code § 18.2-32, and use of

a firearm while in the commission of a felony, in violation of

Code § 18.2-53.1. Hodges asserts that the Court of Appeals

erred in holding that the trial court did not commit reversible

error by admitting into evidence certain statements made by the

victim, Shelly Marie Jackson, prior to her death. Hodges argues

that the admission of these statements violated the

Confrontation Clause of the Sixth Amendment to the United States

Constitution and Virginia’s hearsay rules. For the reasons set

forth below, we will reverse the judgment of the Court of

Appeals.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Under well-settled principles of appellate review, we

consider the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party in the trial

court. “We also accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.” Riner v.

Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004); see

also Burns v. Commonwealth, 261 Va. 307, 313-14, 541 S.E.2d 872,

877-78, cert. denied, 534 U.S. 1043 (2001).

The evidence at trial showed that during the investigation

of a burglary at Jackson’s apartment, Lieutenant Brian K.

Lovelace of the South Boston Police Department uncovered

evidence that Jackson was selling marijuana. Jackson was

arrested for the distribution of marijuana and, while being

questioned by police, wrote a confession (“Jackson’s Written

Statement”), dated April 17, 2002, in which she claimed that

Hodges approached her about selling marijuana for him and

provided her with the marijuana she sold.

Hodges was arrested on a charge of conspiracy to distribute

marijuana on April 18, 2002, 1 but released on bond, which

required that he have no contact with Jackson.

Shelly Jones (“Shelly” 2 ), Jackson’s cousin, testified that

on the day before Hodges’ preliminary hearing on the conspiracy

charge, Jackson asked Shelly to accompany her to Cody Store, a

local store, because she needed “to talk to [Hodges] about

1
Lt. Lovelace testified that he had already begun an
investigation of Hodges prior to obtaining Jackson’s Written
Statement, and that as a result of his entire investigation,
Hodges was charged.

2
court.” According to Shelly, when they arrived at Cody Store,

Jackson “went over and . . . started talking” to Hodges’ wife.

Shelly saw Hodges “walking up and down . . . on the other side

of the street” while Jackson and Hodges’ wife were talking, but

she did not see Hodges and Jackson speak to each other.

Lt. Lovelace testified that at Hodges’ preliminary hearing

on June 24, 2002, Jackson “decided at that time she wasn’t going

to testify” and that some of the charges against Hodges were

dismissed. However, Lt. Lovelace further testified that he

intended to reinstate those charges for the September 2002 grand

jury term because he believed Jackson would change her mind

about testifying against Hodges.

On August 30, 2002, Jackson met with her attorney regarding

the distribution of marijuana charge still pending against her.

Jackson’s attorney recommended that Jackson cooperate with the

Commonwealth’s Attorney by testifying against Hodges in order to

avoid additional charges, incarceration, or losing custody of

her young daughter. Jackson’s attorney testified that Jackson

did not indicate whether she would testify. That same day,

Hodges’ wife telephoned the home of Jackson’s mother to speak

with Jackson, but Jackson was not there to receive the call.

2
To avoid confusion with the decedent and another witness,
Missy Jones, Shelly Jones is herein referred to as “Shelly” and
Missy Jones as “Missy.”

3
 Another of Jackson’s cousins, Missy Jones (“Missy”),

testified that on August 31, 2002, Jackson told her that

although “she didn’t really want to testify [against Hodges at

his trial,] she had to.”

Jackson’s sister, Angela Jackson, testified that at 11 a.m.

the next day, September 1, 2002, Jackson received a telephone

call at the apartment where she and Angela resided. Angela

recognized the telephone number listed on the caller

identification as Hodges’ cellular telephone number. 3

Immediately after receiving the telephone call, Jackson left the

apartment with her daughter.

Jackson’s friend and babysitter, Farah F. Canada, testified

that “about twelve noon,” Jackson arrived at Canada’s residence

in order to leave her daughter with Canada. Canada further

testified that Jackson said she was going to “meet [Hodges, but]

would be right back.” This was the last time Jackson was seen

alive. Canada also testified that she watched Jackson’s

daughter on earlier occasions while Jackson said she was meeting

Hodges “down the dirt road . . . past his house.”

3
The police investigator who later took Angela’s statement
retrieved the telephone number from Angela’s caller
identification, which showed the call at 11 a.m. on September
1st. When the police investigator dialed the telephone number,
Hodges answered. Hodges later told the police that he “kept [the
telephone with that number] with him all the time[,] unless it
[was] on the charger inside the home.”

4
 Angela reported to police her sister was missing on the

evening of September 2, 2002. On September 4, 2002, the police

discovered Jackson’s body on rural property in Halifax County

owned by Hodges’ parents. The medical examiner testified that

Jackson had sustained four gunshot wounds, but was not able to

determine what type of gun caused the injuries, nor was she able

to establish the precise date or time of Jackson’s death.

Police also discovered the car Jackson had driven after

leaving Canada’s home in the parking lot of a Ramada Inn in

Reidsville, North Carolina. A cashier at a gas station adjacent

to the Ramada Inn testified that Hodges was in his store the

afternoon of September 1, 2002.

At trial, the Commonwealth presented evidence from an

expert in forensic biology who performed DNA analysis on items

retrieved from the crime scene. Hodges “could not be

eliminated” as one of the contributors to DNA located on a knife

found at the scene of the crime. The Commonwealth also

presented evidence regarding Hodges’ cellular telephone use on

the afternoon of September 1, 2002. Numerous calls were placed

between Hodges’ cellular telephone and his home telephone and

his wife’s cellular telephone. Telephone records indicated that

the earliest calls were routed through “South Boston area”

telephone switches, while later telephone calls were routed

5
through Danville, then Henderson, North Carolina, and later

Reidsville, North Carolina.

At trial, the Commonwealth introduced into evidence

statements made by Jackson prior to her death to support its

theory that Hodges killed Jackson in order to prevent her from

testifying against him on the marijuana conspiracy charge. Over

Hodges’ objection, Lt. Lovelace was permitted to read Jackson’s

Written Statement to the jury. During cross-examination of Lt.

Lovelace, Hodges introduced into evidence a written statement

dated June 23, 2002, the date of the Cody Store meeting, which

purportedly bore Jackson’s signature, and stated that Jackson’s

Written Statement implicating Hodges in the sale of marijuana

was “false[]” and made only because of police pressure. Missy,

Shelly, and Canada were each permitted to testify regarding the

statements Jackson made regarding her meetings with Hodges prior

to her disappearance, her decision to testify against Hodges,

and about her intended meeting with Hodges on the day of her

disappearance.

Twice during its closing argument, the Commonwealth

referred generally to Jackson’s statements. First, the

Commonwealth contended the statements were “direct evidence”

from Jackson “to the extent that she is present to argue for

herself.” Later, the Commonwealth argued that Jackson’s

6
statements were “direct evidence” in the case against Hodges and

“Shelly Jackson is saying things from the grave as it were.”

A jury found Hodges guilty of first-degree murder and fixed

his punishment at 32 years’ imprisonment. The jury also

convicted Hodges of use of a firearm while committing or

attempting to commit murder, for which they fixed his punishment

at three years’ imprisonment. The trial court entered judgment

against Hodges in accordance with the jury’s verdict.

On appeal to the Court of Appeals, Hodges contended, inter

alia, that the admission of each statement purportedly made by

Jackson was reversible error. The Court of Appeals affirmed

Hodges’ convictions, holding that the admission of each

challenged statement was either proper or did not constitute

reversible error. 4 Hodges v. Commonwealth, 45 Va. App. 735, 613

S.E.2d 834 (2005).

II. ANALYSIS

On appeal to this Court, Hodges first contends the

admission of Jackson’s Written Statement violated the

Confrontation Clause and Virginia’s hearsay rules. Hodges also

contends the Commonwealth should not have been permitted to

introduce Jackson’s oral statements to Missy, Shelly, and Canada

4
On appeal to the Court of Appeals, Hodges assigned error
to several other rulings by the trial court. However, Hodges
either did not assign error to these other issues or we did not
grant his petition for appeal regarding them.

7
because these statements were inadmissible hearsay and their

admission also violated the Confrontation Clause. Hodges

further asserts the trial court should have given a limiting

instruction that Missy’s testimony was not admitted for the

truth of the matter asserted. Lastly, Hodges contends the Court

of Appeals erred in holding that the trial court committed

harmless error when it improperly admitted Canada’s testimony

about Jackson’s statements about meeting with Hodges prior to

September 2002.

A. Jackson’s Written Statement

Hodges filed a motion in limine to exclude Jackson’s

Written Statement, which the trial court denied because

the purpose of offering this evidence or this
statement is not to show the truth or falsity of her
description or Ms. Jackson’s description of Mr. Hodges
as having been one who is involved with her in the
drug offenses but rather to show the motive for the
killing of Ms. Jackson.

The trial court concluded the admission of Jackson’s Written

Statement did not “violate[] the Defendant’s constitutional

right to confront witnesses against him and [is not admitted]

for the truth of the matters asserted.”

The Court of Appeals agreed and found no error in the

admission of Jackson’s Written Statement because “the

Commonwealth offered evidence that Jackson had implicated

[Hodges] in a marijuana distribution conspiracy in order to show

8
[Hodges] had a motive for killing [Jackson], not to show that he

had in fact engaged in such a conspiracy.” Hodges, 45 Va. App.

at 769, 613 S.E.2d at 850. Furthermore, the Court of Appeals

stated:

because [Hodges] failed to proffer a limiting
instruction – whether due to oversight or trial
strategy – and because the Commonwealth did not rely
on the evidence for an improper purpose, [Hodges] may
not now complain about the trial court’s failure to
give a limiting instruction or the possibility that
the jury may have considered Jackson’s confession for
the truth of its allegation that [Hodges] was a drug
dealer.

Id. at 773, 613 S.E.2d at 852.

Hodges contends that, despite assurances to the contrary,

the Commonwealth did use Jackson’s Written Statement “for the

truth of the matter asserted.” He argues that the Court of

Appeals’ decision “eviscerate[s]” the Confrontation Clause as

applied in Crawford v. Washington, 541 U.S. 36 (2004) and

Tennessee v. Street, 471 U.S. 409 (1995).

Hodges asserts that the Supreme Court’s decision in Street

permitted the trial court to admit the prejudicial confession of

an unavailable witness only as a “last resort” in order to

“rebut[] a defense raised by the defendant.” By contrast,

Hodges avers that the Commonwealth presented Jackson’s Written

Statement at its own initiative in order to “paint Hodges as a

drug dealer” and “prejudice Hodges with the aura of bad acts,

past crimes and drugs” throughout its case. To further support

9
his argument, Hodges cites Donahue v. Commonwealth, 225 Va. 145,

300 S.E.2d 768 (1983), in which the Court held the

Commonwealth’s use of an out-of-court statement was to “prove

the truth of its contents” despite its purported use when first

admitted for “other purposes.” Hodges also argues that the

Court of Appeals’ decision amounts to holding that Hodges’

“failure to request a limiting instruction or redaction of

[Jackson’s Written Statement] constitutes a waiver of the

Confrontation Clause claim, despite Hodges’ objections to the

confession and the trial judge’s assurance that the objection

was noted.”

The Commonwealth responds that Jackson’s Written Statement

was properly admitted because it was offered “solely to prove

[what Jackson] said [and] not offered to prove the truth of the

matter asserted, i.e., that [Hodges] was a drug dealer.”

Furthermore, the Commonwealth argues the Court of Appeals

correctly held “Hodges waived his right to have the jury

instructed that it could consider the confession only as it

related to [Hodges’] motive” because Hodges “never proffered

such an instruction.”

10
 In Crawford, the Supreme Court held that the Confrontation

Clause 5 bars the admission of an out-of-court testimonial

statement used to establish the truth of the matter asserted

unless the declarant is unavailable and the accused has had a

prior opportunity to cross-examine the declarant. 541 U.S. at

59 n.9, 68. Jackson’s Written Statement constitutes a

“testimonial” statement because it was a declaration “made for

the purpose of establishing or proving some fact” during the

course of a police interrogation. Id. at 51-52, 68.

Furthermore, Jackson, the declarant, was clearly “unavailable”

to testify and Hodges had no prior opportunity to cross-examine

Jackson regarding her statement. The disputed issue is whether

Jackson’s Written Statement was offered for the “truth of the

matter asserted.”

The Supreme Court reiterated in Crawford that the

Confrontation Clause “does not bar the use of [out-of-court]

statements for purposes other than establishing the truth of the

matter asserted.” 541 U.S. at 59 n.9 (citing Street, 471 U.S.

at 414). In Street, the trial court allowed the prosecutor to

introduce an accomplice’s confession in order “to rebut [the

defendant’s] testimony that his own confession was derived from

[the accomplice’s].” 471 U.S. at 414. In holding that the

5
The Confrontation Clause guarantees an accused the right
“to be confronted with the witnesses against him.” U.S. Const.

11
trial court’s decision to admit this evidence did not violate

the Confrontation Clause, the Supreme Court observed:

The nonhearsay aspect of [the accomplice’s] confession
– not to prove what happened at the murder scene but
to prove what happened when [the defendant] confessed
– raises no Confrontation Clause concerns. . . .

If the jury had been asked to infer that [the
accomplice’s] confession proved that [the defendant]
participated in the murder, then the evidence would
have been hearsay; and because [the accomplice] was
not available for cross-examination, Confrontation
Clause concerns would have been implicated.

Id. at 414-16.

Relying on Crawford and Street, courts have since permitted

the admission of testimonial statements for “other purposes”

despite clear Confrontation Clause violations if those

statements had been admitted “for the purpose of establishing

the truth of the matter asserted.” E.g., United States v.

Logan, 419 F.3d 172, 177-78 (2d Cir. 2005) (conspirators’

statements to police admissible to show that conspirators

planned to use the same alibi). 6

amend. VI.
6
Other examples include: Derring v. McKee, No. 1:04-cv-796,
2006 U.S. Dist. LEXIS 8667, *27-*28 (W.D. Mich. Feb. 1, 2006)
(victim declarant’s out-of-court statements regarding
defendant’s alleged commission of another crime admissible “for
the very purpose of showing that the statement was made”); State
v. Newell, 710 N.W.2d 6, 24-27 (Iowa 2006) (out-of-court
statements by unavailable declarants admissible to prove
defendant’s mother “attempted to cover-up for [the defendant]
almost immediately[,]” “to show that [the statements] were
made[,] and to “show that [declarant] was aware” of certain
events); State v. Walker, 613 S.E.2d 330, 335 (N.C. Ct. App.

12
 We find the decision of the Supreme Court of Arkansas in

Dednam v. State, 2005 Ark. LEXIS 8, No. CR 04-573 (Jan. 6,

2005), particularly useful given its similarity to the facts in

the case at bar. In Dednam, the state’s theory of the “case was

that Dednam killed [the victim] as a favor to [a third party,]

either in retaliation for identifying [the third party] as the

one who robbed him or to eliminate the testimony of the victim

of [the third party’s] alleged crime.” Id. at *12. Dednam

challenged the admissibility of statements made by the victim to

the police regarding the third party’s criminal acts. Id. at

*3-*4. The court approved the admission of the victim’s

statements, holding

[the victim’s] statements to [the detective] were not
introduced to establish the truth of the matter
asserted regarding [the third party’s] crime against
[the victim], but, instead, were introduced to
demonstrate [the victim’s] connection to [the third
party] and, thus, Dednam’s connection to [the
victim]. . . . [E]stablishing motive does not equate
to proving the truth of whether [the victim] was
robbed or not. Where a statement is admitted for a
legitimate, non-hearsay purpose, that is, not to prove
the truth of the assertions therein, the statement
. . . raises no confrontation-clause concerns. . . .
Because the statements were not admitted for the truth
of the matter asserted, cross-examination was not
required to test their veracity. Hence, the
statements are not barred by the Confrontation Clause.

Id. at *12-*15.

2005) (out-of-court statement of non-witness declarant
admissible for nonhearsay purpose of corroborating expert
witness’ opinion).

13
 Hodges’ argument that the Commonwealth “paint[ed] Hodges as

a drug dealer” in opening and closing arguments, and thus

improperly used Jackson’s Written Statement for the truth of its

contents, is unpersuasive when the record is viewed in context.

In arguing for the admissibility of Jackson’s Written Statement,

the Commonwealth’s Attorney stated, “[Jackson’s Written

Statement] is important [because Jackson] implicated [Hodges] in

a case that was [going to] be tried and this provided his motive

for getting rid of her.” He later suggested that if Hodges was

concerned about possible misuse of Jackson’s Written Statement,

the appropriate response would be a cautionary instruction to

the jury stating the limited purpose for which it was to be

considered. Thus, the Commonwealth properly contemplated the

limited purpose of proving motive as the basis for which

Jackson’s Written Statement would be used. 7

Although the text of Jackson’s Written Statement does

allege Hodges conspired with Jackson to distribute marijuana,

the specific references by the Commonwealth’s Attorney during

opening and closing argument present the statement’s contents as

7
Jackson’s Written Statement was relevant to showing motive
because other evidence presented at trial permitted the
inference that Hodges was aware that Jackson had implicated him
in a conspiracy to distribute drugs. This is plainly evident
from the fact that Hodges introduced into evidence the June 23rd
statement, in which Jackson recanted her Written Statement to
the police and denied that Hodges was a party to the
distribution of marijuana.

14
being Jackson’s allegations rather than independent statements

of fact that Hodges actually conspired with Jackson to

distribute marijuana. In opening argument, the Commonwealth’s

Attorney said that Jackson “gave a complete statement saying

that for some time she indeed had been selling marijuana . . .

and that she was doing it for . . . Hodges[.] So she implicated

Mr. Hodges as being part of the conspiracy.” This statement

does not argue as fact that Hodges actually conspired with

Jackson to distribute marijuana, but only that Jackson had told

police that he had.

Similarly, in summarizing the evidence presented at trial

during closing argument, the Commonwealth’s Attorney described

the claims in Jackson’s Written Statement as damaging to her and

also to Hodges, whether or not the acts attributed to Hodges

were true:

[Jackson’s Written Statement was] written out by her
[a]nd when you look at it she explains everything that
happened in the course of this conspiracy, that she
was supplied by [Hodges] with the marijuana and that
she sold it from [her] apartment . . . . It’s a very
damning thing. And frankly, Shelly Jackson didn’t
help herself out by giving it in the sense that she
inculpated herself and she was obviously looking at
some serious charges.

While pointing out that Jackson had “inculpated herself,”

the Commonwealth’s Attorney did not argue Jackson’s accusations

inculpated Hodges or were statements of fact of acts actually

committed by Hodges. The Commonwealth’s Attorney then noted

15
that Jackson’s Written Statement only “identified [Hodges] as

her supplier,” not that Hodges in fact supplied Jackson with

marijuana. The record thus supports the conclusion that the

Commonwealth did not introduce or use Jackson’s Written

Statement as proof of the veracity of its contents.

Hodges’ reliance on Donahue is also unpersuasive. In

Donahue, we held the Commonwealth improperly used a written note

that had been admitted for a proper nonhearsay purpose to

establish the truth of the note’s contents instead. 225 Va. at

152, 300 S.E.2d at 771-72. However, as noted above, the record

in this case does not support a finding that the rationale for

introducing Jackson’s Written Statement, to show motive, was

altered by an actual use of the statement to prove its contents

as true.

Contrary to Hodges’ assertion, the Supreme Court’s decision

in Street does not limit the introduction of an out-of-court

statement only to occasions where the defendant has put the

matter at issue or where “no alternative[]” means of presenting

the evidence is available. 471 U.S. at 415. The Supreme Court

specifically recognized in Street that the existence of

alternative means of presenting the evidence does not make them

“the only option constitutionally open.” Id. at 416.

Furthermore, while Hodges argues that the Commonwealth could

have used other means short of reading all of Jackson’s Written

16
Statement to the jury to achieve the purpose for which the

statement was admissible, Hodges did not seek such alternatives

at trial. Hodges did not ask the trial court to redact any of

Jackson’s Written Statement, and thus did not “afford the trial

court the opportunity to rule intelligently” on the alternatives

he now proposes and has waived the issue on appeal. See Rule

5:25; Riner, 268 Va. at 325, 601 S.E.2d at 571-72.

The admission of Jackson’s Written Statement does not

violate Virginia’s hearsay rules for the same reason that it

does not violate the Confrontation Clause – the statement was

not admitted for the truth of the matter asserted. An out-of-

court statement not admitted for “the truth of the matter

asserted” is not hearsay, and therefore is not barred by the

general rule against the admissibility of hearsay. Manetta v.

Commonwealth, 231 Va. 123, 127, 340 S.E.2d 828, 830 (1986).

Lastly, the Court of Appeals did not, as Hodges asserts,

hold that Hodges’ failure to request a limiting instruction

waived his right to appeal the trial court’s decision to admit

Jackson’s Written Statement. Hodges’ claim in this regard

fundamentally mischaracterizes the decision of the Court of

Appeals.

Hodges properly preserved his objection to the trial

court’s rulings regarding Jackson’s Written Statement on the

basis of the Confrontation Clause and Virginia’s hearsay rules.

17
He was permitted to, and did, raise both arguments on appeal.

Only after rejecting these arguments on the merits did the Court

of Appeals address the separate issue of a limiting instruction.

In so much as the trial court ruled that Jackson’s Written

Statement was admissible for the limited purpose of showing

motive, Hodges was entitled to a jury instruction stating that

the statement was not to be considered as evidence of the truth

of the matters asserted in it. See id. at 127 n.2, 340 S.E.2d

at 830 n.2. However, the record shows Hodges never requested or

proffered such an instruction. Accordingly, the Court of

Appeals did not err in holding that Hodges had waived the right

on appeal to argue he was entitled to a limiting instruction

regarding Jackson’s Written Statement. 8 See Rule 5A:18; Rule

5:25; Riner, 268 Va. at 325, 601 S.E.2d at 571-72; Manetta, 231

Va. at 127 n.2, 340 S.E.2d at 830 n.2; see also Crider v.

Commonwealth, 206 Va. 574, 578, 145 S.E.2d 222, 225 (1965).

B. Jackson’s Oral Statements

1. Admissibility Under the Confrontation Clause

In Crawford, the United States Supreme Court stated the

conditions for admissibility are different depending on whether

8
Our previous decisions have held that trial courts are
“not required to give [a limiting] instruction [regarding the
purpose for which evidence may be considered] sua sponte.”
Manetta, 231 Va. at 127 n.2, 340 S.E.2d at 830 n.2; see
Commercial Distributors, Inc. v. Blankenship, 240 Va. 382, 394,

18
an out-of-court statement by an unavailable declarant is

“testimonial” or “nontestimonial.” 541 U.S. at 68. The parties

correctly agree that Jackson’s oral statements to Missy, Shelly,

and Canada are “nontestimonial” declarations.

Hodges asserts the admission of Jackson’s nontestimonial

oral statements violated the Confrontation Clause because none

satisfied the requirement articulated in Ohio v. Roberts, 448

U.S. 56 (1980), and later cases applying that decision, that

there be specific indicia of reliability supporting each

statement. However, the record shows Hodges failed to make this

argument at trial with regard to any of the nontestimonial

statements except Canada’s testimony about Jackson’s statement

on September 1, 2002, that she was going to meet Hodges.

Accordingly, Hodges waived his argument based on the

Confrontation Clause with respect to all the other statements.

See Rule 5:25; Riner, 268 Va. at 325 n.11, 601 S.E.2d at 572

n.11. Hodges contends Canada’s testimony of Jackson’s September

1, 2002 statement did not satisfy the requirements for

admissibility under Roberts because the “Court of Appeals’ newly

revised ‘state of mind’ exception was incredibly broad and

offered no guarantees of trustworthiness.” In addition, Hodges

asserts Canada’s statements “were not credible.” A recent

397 S.E.2d 840, 847 (1990); see also Garcia v. Commonwealth, 21
Va. App. 445, 452, 464 S.E.2d 563, 566 (1995).

19
decision of the United States Supreme Court has negated these

arguments.

Because Crawford involved a testimonial statement, the

Supreme Court was not required in that decision to “definitively

resolve” whether and in what form any Confrontation Clause

analysis must be brought to bear in ruling on the admissibility

of nontestimonial statements. However, in Crawford, the Supreme

Court stated that the reliability test flowing from Roberts and

its progeny “depart[ed] from the historical principles” of the

Confrontation Clause, 541 U.S. at 60, in an “unpardonable”

fashion, id. at 63, and "is inherently. . . unpredictable.” Id.

at 68 n.10.

In Crawford, the Court noted that one potential

implementation of the Constitutional strictures would be that

“we apply the Confrontation Clause only to testimonial

statements, leaving the remainder to regulation [only] by

hearsay law.” Id. at 61. The Court commented that this

approach was seemingly rejected in White v. Illinois, 502 U.S.

346 (1992), but that the analysis in Crawford itself “casts

doubt on that holding [in White].” Crawford, 541 U.S. at 61.

The two Justices concurring in Crawford labeled that decision an

overruling of Roberts, id. at 69 (Chief Justice Rehnquist and

Justice O'Connor, concurring), but because the majority opinion

found it unnecessary to render an express holding on whether any

20
Confrontation Clause scrutiny at all is applicable to

nontestimonial statements, 541 U.S. at 61, courts were left with

uncertainty as to whether it remains appropriate to apply the

“indicia of reliability” standards of Roberts and its progeny to

nontestimonial statements.

In Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266

(2006), the Supreme Court found that it no longer had the

“luxury of indecision” on “whether the Confrontation Clause

applies only to testimonial hearsay.” 126 S.Ct. at 2274. The

Court proceeded to hold that the “answer to the first question

was suggested in Crawford, even if not explicitly held,” and the

answer is that “[t]he text of the Confrontation Clause” focuses

upon “testimonial hearsay,” and “[i]t applies to ‘witnesses’

against the accused – in other words, those who ‘bear

testimony.’ ” Id. ___, 126 S.Ct. at 2274. The Court held: “A

limitation so clearly reflected in the text of the

constitutional provision must fairly be said to mark out not

merely its ‘core,’ but its perimeter.” Id. (emphasis added).

Finding that a particular “911 call” did not involve a

“testimonial” statement, the Court approved use of the

statements therein with no consideration of any indicia of

reliability, see id. at ___, 126 S.Ct. at 2277-2278, and

expressly approved the State court decision in that case, which

was premised on the complete inapplicability of Roberts and

21
reliability considerations where nontestimonial statements are

involved. Id. at ___, 126 S.Ct. at 2280; see also State v.

Davis, 111 P.3d 844, 848, 852 (2005) (Crawford “overturned”

Roberts and no reliability analysis is to be undertaken). In

Davis the Supreme Court states that it had “overruled Roberts in

Crawford,” 126 S.Ct. at 2275 n.4, and makes it clear that

[o]nly statements of this [testimonial] sort cause the
declarant to be a “witness” within the meaning of the
Confrontation Clause. It is the testimonial character
of the statement that separates it from other hearsay
that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation
Clause.

Id. at ___, 126 S.Ct. at 2273 (emphasis added).

In the present case, therefore, admissibility of the

evidence given by Canada recounting Jackson’s nontestimonial

September 1, 2002 statement is determined under the law of

hearsay rather than the Confrontation Clause. We therefore turn

to the hearsay issues.

2. Admissibility Under the State-of-Mind Exception

Separate from his Confrontation Clause argument, Hodges

contends the Court of Appeals erred in approving the trial

court’s admission of Jackson’s statements to Missy, Shelly, and

Canada under the state-of-mind exception to the hearsay rule.

Hodges asserts the “Courts of Appeals’ decision relating to

‘state of mind’ evidence breaks dangerous new ground” by

permitting the introduction of such evidence even when the

22
defense has not alleged that the death was the result of

suicide, accident, or self-defense. He claims the Court of

Appeals misconstrued the state-of-mind exception as articulated

in Clay v. Commonwealth, 262 Va. 253, 546 S.E.2d 728 (2001),

because the accused in that case had argued the victim’s death

was accidental, thus placing the victim’s statements within the

recognized state-of-mind exception permitting such “rebuttal”

testimony.

The Commonwealth acknowledges “apparent inconsistencies in

earlier Virginia decisions” regarding the state-of-mind

exception, but argues “controlling precedent holds that any

state of mind of a homicide victim is admissible as long as it

is ‘relevant and probative of some material issue in the

case.’ ” We agree with the Commonwealth.

Although the specific contours of the state-of-mind

exception have evolved over time, the existence of an exception

to the hearsay rule based on a declarant’s “state of mind” is

long-standing and unquestioned. See, e.g., Karnes v.

Commonwealth, 125 Va. 758, 99 S.E. 562 (1919). We recently

analyzed the admissibility of testimony showing a victim’s state

of mind in Clay. There, we held the trial court did not err in

allowing testimony regarding the victim’s statements that she

“planned to move because she was afraid of what [the accused]

might do to her.” Clay, 262 Va. at 257, 546 S.E.2d at 730.

23
 Although the accused in Clay raised the contention of

accidental death, we did not limit a victim’s declaration about

his or her state of mind only to cases where the accused has

alleged the killing was the result of accident, self-defense, or

suicide, as Hodges contends. We determined that a spectrum of

victim declarations are admissible based on relevance and

probative value to a material fact:

Generally, statements made by a crime victim that show
the victim’s state of mind are admissible as an
exception to the hearsay rule, provided the statements
are relevant and probative of some material issue in
the case. Evidence is relevant if it tends to prove
or disprove, or is pertinent to, matters in issue.
While it is difficult to reconcile the
conflicting cases as to when a victim’s statements are
relevant, much must be left to the trial court’s
discretion.

Id. at 257, 546 S.E.2d at 730 (citations omitted) (emphasis

added).

The key to the admissibility of evidence showing a victim’s

state of mind is thus its relevance to a material issue in the

case. Relevance exists when the evidence has a “logical

tendency, however slight, to prove a fact at issue in a case.”

Winston v. Commonwealth, 268 Va. 564, 596, 604 S.E.2d 21, 39

(2004) (citations omitted), cert. denied, ___ U.S. ___, 126

S.Ct. 107 (2005).

Accordingly, we examine Jackson’s nontestimonial oral

statements to determine whether the statements showed Jackson’s

24
then-existing state of mind and tended to “prove or disprove, or

[were] pertinent to” determining a relevant issue in the case.

We first examine Missy’s testimony of Jackson’s statement to

her, as it is determinative of this appeal.

a. Missy’s Testimony

The trial court permitted Missy to testify that two days

before Jackson disappeared she told Missy she was going to

testify against Hodges. The Court of Appeals determined the

trial court did not err in admitting this statement under the

state-of-mind exception because it satisfied the exception’s

requirements and “was relevant to the issue of [Hodges’] motive

for murder because the circumstantial evidence permitted an

inference that Jackson communicated this intent to [Hodges]

before her death.” Hodges, 45 Va. App. at 766, 613 S.E.2d at

848. We disagree.

Hodges asserted at trial, as he does on appeal, that Missy’s

testimony of Jackson’s statement was “inadmissible because

Jackson’s state of mind was not a relevant or material issue.”

Hodges argued to the trial court “there’s no evidence that

[Hodges] ever knew that [Jackson] was going to testify. There’s

no evidence that that was ever communicated to him.”

Furthermore, Hodges argues the admission of Jackson’s statement

was prejudicial because the Commonwealth “repeated[ly] reli[ed]”

25
on Jackson’s having “made up her mind” to testify against Hodges

in its closing argument.

In Mullins v. Commonwealth, 113 Va. 787, 75 S.E. 193

(1912), we held that statements that the victim intended to

testify against the accused in a separate criminal proceeding

were inadmissible in the accused’s trial for the victim’s murder

because “there was no evidence that the accused knew that [the

victim] was to be a witness, or that he knew anything about the

case.” Id. at 789, 75 S.E. at 195. As we explained:

[i]f the prisoner had known that Howell was to be a
witness against him, the evidence would have been
admissible, as tending to show a motive for the murder
of Howell; for, where the motive of a party is a
material inquiry in a cause, whether civil or
criminal, any evidence which tends, in any degree, to
throw light upon that question is admissible. But
before a fact or circumstance is admissible in
evidence against a party to show motive, such fact or
circumstance must be shown to have probably been known
to him, otherwise it could not have influenced him,
for a man cannot be influenced or moved to act by a
fact or circumstance of which he is ignorant.

Id. at 789-90, 75 S.E. at 195 (citations omitted); see also

Robinson v. Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843

(1984).

The Commonwealth maintains it can be reasonably inferred

Hodges knew of Jackson’s intent to testify because the evidence

showed Jackson’s attorney encouraged Jackson to testify against

Hodges on August 30th, Jackson made this statement on the 31st,

Jackson disappeared on September 1st, and over that three-day

26
period Hodges and his wife attempted to reach Jackson by

telephone several times. In addition, the Commonwealth argues

the evidence that Jackson and Hodges’ wife discussed Jackson’s

allegations against Hodges at Cody Store several months earlier

permitted the inference that Jackson would continue to discuss

her intent to testify against Hodges with him or his wife.

This argument, accepted by the Court of Appeals, is

defective because it rests upon successive speculative

inferences to conclude knowledge, sufficient to show motive, on

Hodges’ part. The Commonwealth’s argument requires the initial

inference that because Jackson may have talked to Hodges’ wife

at Cody Store in June regarding her earlier intent to testify

against Hodges, she was more likely in September to discuss a

new intent to testify against Hodges as expressed to Missy on

August 31st. There is no basis in the record to connect the two

events, except pure speculation. Furthermore, the record is

devoid of evidence to prove that Jackson, or anyone else, ever

communicated a decision by Jackson to testify against Hodges to

him. The record contains no evidence of any actual

communications between Hodges or his wife and Jackson after her

refusal to testify at his preliminary hearing on the drug

conspiracy charges, until the September 1 telephone call, of

which there is no detail other than Jackson was to meet Hodges.

Although Hodges and his wife attempted to call Jackson on other

27
occasions, the record does not reflect they ever communicated.

Jackson gave no indication to her attorney or anyone else except

Missy that she would testify against Hodges.

To conclude from this evidence that Jackson communicated

her intent to testify against Hodges to him is pure speculation.

As we said in Mullins, an individual cannot be induced to act by

a fact or circumstance that he did not know. While Jackson’s

statement to Missy is evidence of her state of mind, the

statement should not have been admitted because it was not

relevant to a material issue in the case, in particular, Hodges’

motive. 9

Where a criminal case has been tried by jury, the court

reviewing whether an error is harmless “must decide whether the

alleged error substantially influenced the jury. If it did not,

the error is harmless.” Clay, 262 Va. at 259, 546 S.E.2d at

731. In Clay, we adopted the United States Supreme Court’s test

for nonconstitutional harmless error, as articulated in

Kotteakos v. United States, 328 U.S. 750, 764-65 (1946):

9
Because we find the Court of Appeals erred in approving
the trial court’s decision to admit this evidence, we need not
address Hodges’ additional argument that the trial court erred
in admitting Missy’s testimony without a limiting instruction.
Because we find this testimony was inadmissible for lack of
relevance, we do not need to address the Commonwealth’s argument
that the statement was admissible as non-hearsay because it was
not admitted for the truth of the matter asserted. See Church
v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825-26 (1985)

28
 If, when all is said and done, the conviction is sure
that the error did not influence the jury, or had but
slight effect, the verdict and the judgment should
stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without
stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial
rights were not affected. . . . If so, or if one is
left in grave doubt, the conviction cannot stand.

Clay, 262 Va. at 259-60, 546 S.E.2d at 731-32 (quoting

Kotteakos, 328 U.S. at 764-65).

Jackson’s statement to Missy was the only evidence

presented that Jackson indicated she had changed her mind

regarding testifying against Hodges since her refusal to testify

at Hodges’ preliminary hearing. Thus, it was a critical

component of the Commonwealth’s case to show Hodges’ motive for

murdering Jackson. Applying the harmless error test and Code

§ 8.01-678, 10 we cannot say that the admission of Jackson’s

statement that she was going to testify against Hodges did not

influence the jury; therefore, the error was not harmless.

Accordingly, the Court of Appeals erred in affirming the trial

court’s admission of Missy’s testimony.

(evidence that is “non-hearsay” is admissible if it is
relevant).
10
Code § 8.01-678 states, in relevant part:
When it plainly appears from the record and the
evidence given at the trial that the parties have had
a fair trial on the merits and substantial justice has
been reached, no judgment shall be arrested or
reversed . . . [f]or any . . . defect, imperfection,

29
 In so much as this error will require reversal of the

judgment of the Court of Appeals and remand for a new trial, we

will address Jackson’s other nontestimonial statements to Shelly

and Canada because the admissibility of that testimony is likely

to arise in a new trial.

b. Shelly’s Testimony

Shelly was permitted to testify, over Hodges’ objection,

that on the day before Hodges’ preliminary hearing on the drug

conspiracy charge, Jackson went to Cody Store to talk to Hodges

“about Court.” 11 Hodges contends, as he did at trial, that

Shelly’s testimony is inadmissible hearsay because “Jackson’s

state of mind in June was wholly irrelevant and the incident was

too remote to be probative in any way.” Hodges also argues the

evidence was unreliable because Shelly’s testimony regarding the

actual meeting at Cody Store reflected that Jackson did not

actually talk to Hodges.

or omission in the record, or for any error committed
on the trial.
11
The Court of Appeals observed that Hodges did not object
to any aspect of Shelly’s testimony other than Jackson’s
identification of the person she was meeting (Hodges) and the
topic she wanted to discuss with him (court). It thus limited
its review of Shelly’s testimony to her testimony regarding
those two facts. The record supports the Court of Appeals’
determination that Hodges’ objection to Shelly’s testimony at
trial focused solely on Jackson’s statement that she intended to
talk to Hodges “about court” when she met him. Accordingly, we
limit our review of the applicability of the state-of-mind
hearsay exception and the relevance of the statement to this
aspect of Shelly’s testimony. See Rule 5:25.

30
 The Commonwealth contends the statement was admissible

because “[i]t tended to show she indeed discussed court at her

meeting at Cody[] Store” and was “relevant because it bore upon

her relationship with [Hodges].” The Commonwealth also contends

the statement supported the Commonwealth’s position that Hodges’

motive for killing Jackson was based on his knowledge “that

Jackson was going to testify against him.”

In approving the trial court’s decision to admit the

statement, the Court of Appeals determined that it expressed

“Jackson’s then-existing state of mind,” the record did not show

any evidence that “Jackson had a motive to fabricate” the

statement, and other evidence, introduced by Hodges,

corroborated the accuracy of the statement. Hodges, 45 Va. App.

at 765, 613 S.E.2d at 848. In addition, the Court of Appeals

found the testimony

probative of [Hodges'] motive because it showed his
concern over whether the victim would testify against
him at his preliminary hearing and indicated a
likelihood that the victim later communicated to
[Hodges] that she had changed her mind and intended to
testify before the grand jury or at a later trial.

Id.

We agree with the Court of Appeals that Shelly’s testimony

was admissible under the state-of-mind exception and relevant to

showing Hodges’ knowledge of Jackson’s accusations against him.

In addition, it provides context for the June 23rd statement

31
Hodges produced and introduced at trial, which purported to

explain and recant the Written Statement she gave to police.

Shelly’s testimony that Jackson said she was going to meet

Hodges on June 23rd to talk “about court” was relevant to

understanding Jackson’s signature on the June 23rd statement and

her refusal to testify against Hodges at his preliminary hearing

on June 24th. In addition, it showed that Hodges was aware of

the Jackson’s Written Statement to police and was concerned that

she would testify against him. 12 Accordingly, the admission of

Jackson’s statement to Shelly was not error and lay within the

sound discretion of the trial court.

c. Canada’s Testimony Regarding Jackson’s
Statement on September 1, 2002 13

Hodges filed a motion in limine to exclude Jackson’s oral

statements to Canada that she was going to meet Hodges “down the

dirt road past his house” on the day of her disappearance.

Hodges asserted below, as he does on appeal, that this testimony

12
As Hodges notes, Shelly also testified regarding her
observations of the actual meeting, at which Jackson spoke with
Hodges’ wife rather than Hodges. Shelly further stated that she
observed Hodges “walking up and down the . . . other side of the
street” during the meeting. This additional testimony does not,
as Hodges argues, bar the admissibility of Jackson’s statement
regarding her intended topic of conversation, but would be
appropriately considered by the jury in determining the weight
and credibility afforded this evidence.
13
In view of the reversal of the judgment, we need not
address Hodges’ assignment of error that admitting Jackson’s
statements to Canada regarding her previous meetings with Hodges
was not harmless error.

32
was inadmissible because Jackson’s state of mind was irrelevant

to any material issue in the case. In addition, Hodges contends

the Commonwealth was wrongly permitted to use the statement of

Jackson’s intent as proof of Hodges’ conduct.

In response, the Commonwealth asserts that this testimony

was admissible under the state of mind exception “because [the

fact that] Jackson said she intended to meet [Hodges] at the

dirt road [made it] more probable that she indeed met him

there.” 14

The trial court denied Hodges’ motion, finding “the

statement . . . is offered to show the expressed intention of

[Jackson] to meet Mr. Hodges.” The trial court observed there

was “absolutely no evidence that is apparent to the Court to

indicate any contrivance on her part, any reason for her to have

made that statement in a contrived manner.” Accordingly, the

trial court ruled that Jackson’s “state of mind or intent to

meet Mr. Hodges is certainly relevant to the case [having been]

made shortly before the disappearance and the death of the

victim.”

Similarly, the Court of Appeals held the trial court did

not err in admitting Canada’s testimony because it was “relevant

14
Because we find that this testimony was admissible under
the Hillmon state-of-mind exception analysis, we need not
address the Commonwealth’s argument that this testimony was also
admissible as non-hearsay.

33
to the issue of whether Jackson did, in fact, meet [Hodges] that

day,” which in turn was “relevant to the issue of [Hodges’]

guilt or innocence.” Hodges, 45 Va. App. at 762, 613 S.E.2d at

846-47.

We agree with the Court of Appeals that this testimony was

admissible under the principles established in Mutual Life Ins.

Co. v. Hillmon, 145 U.S. 285 (1892). 15 In Hillmon, the United

States Supreme Court held the trial court erred in refusing to

admit into evidence letters written by a missing person,

Walters, to his family in which he expressed “the intention of

leaving Wichita with Hillmon.” 145 U.S. at 294-95. In so

holding, the Supreme Court stated:

The existence of a particular intention in a
certain person at a certain time being a material fact
to be proved, evidence that he expressed that
intention at that time is as direct evidence of the
fact, as his own testimony that he then had that
intention would be.

. . . .

The letters in question were competent, not . . .
as proof that he went away from Wichita, but as
evidence that, shortly before the time when other
evidence tended to show that he went away, he had the
intention of going, and of going with Hillmon, which
made it more probable both that he did go and that he

15
In Karnes, we favorably cited Hillmon as support for the
proposition that statements showing a declarant’s “mind at a
particular time, his statements and declarations indicating his
state of mind are generally admissible . . . as exceptions to
the hearsay rule, and have been characterized as ‘verbal
acts.’ ” 125 Va. at 764-65, 99 S.E. at 564; see also Goodloe v.
Smith, 158 Va. 571, 583, 164 S.E. 379, 383 (1932).

34
 went with Hillmon, than if there had been no proof of
such intention.

Id. at 295-96. 16

Similarly, Canada’s testimony expressed Jackson’s then-

existing state of mind, which was the intent to meet with Hodges

in a location near the site of the murder. As in Hillmon,

Canada’s testimony of Jackson’s intent was admissible “not . . .

as proof that [she] actually went[,] but as evidence that . . .

[s]he had the intention of going, and of going with [Hodges],

which made it more probable both that [s]he did go and that

[s]he went with [Hodges], than if there had been no proof of

such intention.” See Hillmon, 145 U.S. at 296. The analysis in

Hillmon and Hunter v. State, 40 N.J.L. 495 (1878), confirms this

testimony was admissible as proof of Jackson’s intent and the

corresponding probability that she indeed met Hodges on the day

of her disappearance. See also United States v. Pheaster, 544

16
Hunter v. State, 40 N.J.L. 495 (1878), a case favorably
cited by the Supreme Court in Hillmon, is also instructive. In
Hunter, the New Jersey court held that a murder victim’s oral
and written statements the “afternoon before the night of [his]
murder” in which he said he “was going with [the accused] to
Camden on business, were rightly admitted in evidence.”
Hillmon, 145 U.S. at 299 (citing Hunter, 40 N.J.L. at 534). The
Supreme Court in Hillmon quoted the Hunter court’s observation:
At the time [the statements were] given, such
declarations could, in the nature of things, mean harm
to no one; he who uttered them was bent on no
expedition of mischief or wrong, and the attitude of
affairs at the time entirely explodes the idea that
such utterances were intended to serve any purpose but
that for which they were obviously designed.

35
F.2d 353, 375-80 (9th Cir. 1976); Lisle v. State, 941 P.2d 459,

467 (Nev. 1997), overruled in part on other grounds by Middleton

v. State, 968 P.2d 296, 315 (Nev. 1998); State v. Terrovona, 716

P.2d 295, 298-300 (Wash. 1986).

The context of Jackson’s statement – telling her babysitter

where she was going and when she would return to pick up her

daughter – do not contain any indicia of fabrication or

incentive to lie. And Jackson’s conduct following the telephone

call to her apartment on the morning of September 1st was a

relevant issue at the trial. Accordingly, the Court of Appeals

did not err in approving the trial court’s decision to admit

this testimony.

III. CONCLUSION

The Court of Appeals did not err in approving the trial

court’s admission of Jackson’s Written Statement and Jackson’s

statements to Canada about the events of September 1, 2002 and

her statements to Shelly about the Cody Store meeting. However,

the Court of Appeals did err in approving the trial court’s

admission of Missy’s testimony that Jackson said she was going

to testify against Hodges. Accordingly, we reverse the judgment

of the Court of Appeals, vacate Hodges’ convictions, and remand

the case to the Court of Appeals with instructions to remand the

case to the trial court for a new trial in accordance with the

Id. (quoting Hunter, 40 N.J.L. at 538).

36
principles expressed in this opinion, if the Commonwealth be so

advised.

Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting in
part and concurring in part.

While I agree with much of the majority opinion, I

respectfully dissent from the portion concerning Missy Jones’

testimony and the majority’s conclusion that the admission of

her testimony was not harmless error. The evidence of Kenneth

Hodges’ guilt was overwhelming. Hodges “had a fair trial on the

merits and substantial justice has been reached.” Code § 8.01-

678. Thus, I conclude that any error in admitting her testimony

was harmless. 1

The provisions of Code § 8.01-678 state when a judgment

should not be reversed:

When it plainly appears from the record and the
evidence given at the trial that the parties have had
a fair trial on the merits and substantial justice has
been reached, no judgment shall be arrested or
reversed:

. . . .

2. For any other defect, imperfection, or
omission in the record, or for any error
committed on the trial.

1
Because I conclude any error was harmless, I do not need
to decide whether the circuit court actually erred in admitting
Missy Jones’ testimony.

37
We have applied this statute in both criminal and civil cases,

Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731

(2001), and in light of its provisions, adopted the test set

forth in Kotteakos v. United States, 328 U.S. 750 (1946), for

nonconstitutional harmless error:

“If, when all is said and done, the
conviction is sure that the error did not
influence the jury, or but had slight
effect, the verdict and the judgment should
stand . . . . But if one cannot say, with
fair assurance, after pondering all that
happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error, it is
impossible to conclude that substantial
rights were not affected. . . . If so, or if
one is left in grave doubt, the conviction
cannot stand.”

Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos,

328 U.S. at 764-65).

Under this test, and Code § 8.01-678, we must look at the

totality of the evidence in determining whether, in this case,

the admission of Missy Jones’ testimony “did not influence the

[verdict], or had but [a] slight effect” on it. Kotteakos, 328

U.S. at 764-65; see Rose v. Commonwealth, 270 Va. 3, 12, 613

S.E.2d 454, 459 (2005) (because evidence of guilt was

overwhelming, admittance of evidence about prior criminal

activity was harmless); Clay, 262 Va. at 260-61, 546 S.E.2d at

731-32 (because evidence of guilt was overwhelming, exclusion of

police officer’s testimony corroborating defendant’s testimony

38
was harmless). Thus, I will now summarize some crucial evidence

presented at Hodges’ trial.

In April 2002, Shelly Jackson made a written statement to

the police in which she implicated Hodges in a marijuana

distribution conspiracy. At the time Jackson made her

statement, the South Boston Police Department was already

investigating Hodges, and Jackson’s statement provided the

additional information needed to arrest Hodges for conspiracy to

distribute marijuana.

After his arrest, Hodges was released on bond, with one of

the conditions requiring him to have no contact with Jackson.

On June 23, 2002, however, after receiving a telephone call from

either Hodges or his wife, Jackson asked her cousin, Shelly

Jones, to accompany her to a local store because Jackson was

going “to meet [Hodges] to talk to him about court.” At the

store, Jackson talked with Hodges’ wife, while Hodges paced up

and down the street. At trial, Hodges introduced into evidence

a statement, purportedly signed by Jackson that day, recanting

her previous statement to the police. 2

The following day, at the preliminary hearing on the

charges pending against Hodges, Jackson announced that she was

not going to testify. Because Jackson failed to testify, the

2
Neither the police nor Jackson’s attorney was aware of
this statement prior to its production at trial.

39
Commonwealth was unable to proceed on the conspiracy charge.

The investigating officer indicated he nevertheless planned to

present charges against Hodges to the next grand jury, which was

scheduled to meet in September 2002. The officer believed that

Jackson would change her mind about testifying against Hodges.

Sometime after Hodges’ preliminary hearing, the

Commonwealth informed Jackson’s attorney, Tracy Quackenbush

Martin, 3 that unless Jackson testified against Hodges, the

Commonwealth would bring a conspiracy charge against Jackson.

Quackenbush informed Jackson that, with such a charge, the

possibility of Jackson’s receiving a period of incarceration

increased substantially. The day before Jackson disappeared,

Quackenbush met with her, reiterated the seriousness of a

conspiracy charge, and advised her to testify against Hodges.

Jackson did not give her attorney a final answer that day, and

her attorney never saw her again.

During the time between Hodges’ preliminary hearing, June

24, 2002, and the day Jackson disappeared, September 1, 2002,

Hodges, either personally or through his wife, attempted to

contact Jackson on numerous occasions, sometimes as often as

“four or five times a week . . . two or three times a day.” The

day before Jackson disappeared, Hodges’ wife called the home of

3
Martin testified that she uses the name “Quackenbush”
professionally.

40
Jackson’s mother looking for Jackson. On the morning of her

disappearance, Jackson received a telephone call at her sister’s

home at 11 a.m. According to the caller identification function

on her sister’s telephone, the call came from Hodges’ cellular

telephone. Hodges informed the police that he kept the cellular

telephone with him at all times “unless it’s on the charger

inside the home.” Hodges’ cellular telephone records showed

that no calls were made either from or to his cellular telephone

for about an hour and 40 minutes after the approximate time

Jackson received the telephone call that morning.

Soon after receiving the telephone call from Hodges’

cellular telephone, Jackson and her daughter left her sister’s

home, and Jackson took her daughter to stay with a friend, Farah

Canada. Jackson told Canada that she was going to meet Hodges

“down the dirt road down past his house,” and “she would be

right back.” But, Jackson never came back. It was off this

road, on property owned by Hodges’ parents, that Jackson’s body

was found three days later.

On September 2, 2002, Jackson’s automobile was found in the

parking lot of a Ramada Inn off Route 29 in Reidsville, North

Carolina. Through a photographic line-up, a clerk at a

convenience store located adjacent to the Ramada Inn identified

Hodges as having been in the store on September 1, 2002 sometime

between 2:30 and 4:00 p.m. At trial, the clerk identified

41
Hodges as the person he saw in the store that day. Hodges’

cellular telephone records confirm that he was in the

Reidsville, North Carolina area during the time period when the

store clerk saw him. Furthermore, cellular telephone records

showed Hodges and his wife communicating back and forth as they

traveled separately on September 1, 2002 from the South Boston,

Virginia area, to the vicinity of Reidsville, North Carolina.

Testimony indicated that the most direct route between the two

locations is via Route 29.

Finally, the evidence at the crime scene also implicated

Hodges. Jackson’s body was found not only on property owned by

Hodges’ parents but also in a location where Jackson was known

to have met Hodges previously. The police officers who

investigated the scene where Jackson’s body was found discovered

signs indicating the body had been dragged through the woods in

the direction of a shallow, rectangular hole. 4 Based on the

rainfall in the area around the time that Jackson was killed and

the amount of water in the hole, it was likely dug prior to

September 1, 2002.

At the scene, the police found a knife from which a DNA

sample was recovered. Testing revealed that more than one

4
The police officer testifying referred to this hole as a
“make-shift grave.” Hodges objected to that testimony, and it
is not clear from the transcript whether the circuit court ruled
on the objection.

42
individual contributed to that DNA sample. Hodges could not be

excluded as a contributor of the DNA but Jackson was eliminated.

Statistical analysis demonstrated that it was “billions of times

more likely” that Hodges was one of the contributors of that DNA

as opposed to two unknown individuals.

Despite the totality of this and other evidence proving

Hodges’ guilt, the majority concludes that Missy Jones’

testimony about Jackson’s statement that she had to testify

against Hodges was a “critical component” of the Commonwealth’s

case with regard to Hodges’ motive for murdering Jackson. I do

not agree. Whether Hodges actually knew Jackson had changed her

mind, while lending strength to the Commonwealth’s argument

regarding motive, was not a determinative factor. Hodges knew

that Jackson had given a statement to the police implicating him

in a drug conspiracy. On the day before Hodges’ preliminary

hearing, Hodges or his wife apparently persuaded Jackson to sign

a statement recanting her prior statement to the police. The

handwriting in the body of the statement was different from both

Jackson’s signature on it and Jackson’s handwriting on the

statement given to the police. Furthermore, the very next day,

Jackson decided not to testify at Hodges’ preliminary hearing.

After the preliminary hearing, Hodges or his wife attempted to

contact Jackson on numerous occasions up until the day she

disappeared, and someone using Hodges’ cellular telephone did in

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fact talk to her that day. From this evidence, the jury could

reasonably infer that Hodges remained concerned about whether

Jackson would ultimately testify against him. Killing Jackson

eliminated the risk. That alone was sufficient motive

irrespective of whether Hodges knew that Jackson had indeed

changed her mind.

Not only was Missy Jones’ testimony superfluous to the

Commonwealth’s case concerning Hodges’ motive, it was also only

a small part of three days of testimony regarding Jackson’s

murder and Hodges’ involvement. Through numerous witnesses and

exhibits, the jury knew that Jackson was going to meet Hodges on

the day she disappeared. The jury knew that Hodges traveled to

the Reidsville, North Carolina area that same day and that

Jackson’s vehicle was found in the area the next day. The jury

also knew that Hodges could not be eliminated as a contributor

of DNA on a knife found at the crime scene. Finally, Jackson’s

body was discovered on property owned by Hodges’ parents, which

was a location where Jackson had met Hodges on previous

occasions.

Under Clay and its progeny, in order for this Court to

grant a new trial, it must find that the jury was “substantially

swayed” by Missy Jones’ testimony. 262 Va. at 260, 546 S.E.2d

at 732. Given the overwhelming evidence establishing Hodges’

motive for killing Jackson and actually implicating him in her

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murder, I conclude that any error in admitting Missy Jones’

testimony did not influence the jury and was therefore harmless.

Id. at 260, 546 S.E.2d at 731-32.

For these reasons, I respectfully concur in part and

dissent in part and would affirm the judgment of the Court of

Appeals.

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