Citations:
State v. Ervin, 835 SW2d 905 (Mo. 1992).
Ervin v. Delo, 194 F3d 908 (8th Cir. 1999).

Internet Sources:

Capital Punishment in Missouri from Missouri.Net

On the afternoon of December 15, 1988, Thomas Ervin and an accomplice, Bert L. Hunter, went to the home of Richard Hodges in Jefferson City because they believed Hodges kept large amounts of cash in a file cabinet in his home. With a pistol in his pocket, Hunter knocked on the Hodges' door and Mr. Hodges' mother, Mildred Hodges answered. Hunter pulled a stocking mask down over his face and displayed a pistol. He entered the house and grabbed Mrs. Hodges by the hand. Mrs. Hodges became excited and cried out for her son. Mr. Hodges came into the room where they were standing and requested that the two assailants leave his mother alone because she was in frail health.

As Mr. Hodges attempted to calm his mother, Hunter told Mr. Hodges to bind her hands and feet with duct tape. Mrs. Hodges who had been taken to a bedroom was left sitting on a bed. Ervin took Mr. Hodges to the living room and made him lie on the floor. Ervin and Hunter began taping Mr. Hodges' hands. Hunter then searched the house for money and other valuables. Meanwhile, Hunter heard a noise from the bedroom and found Mrs. Hodges standing in front of her dresser. Hunter bound her with duct tape and left her lying in the hallway floor near the bedroom. Hunter returned to the living room where Ervin was taping Mr. Hodges hands, feet and mouth. When Mr. Hodges complained that he could not breath, Ervin responded, "That's the general idea."

Plastic bags were placed over the heads of both victims. Hunter admitted that after the plastic bags were placed on the victims' heads, he held Mr. Hodges' nose to suffocate him. Ervin reined and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse. The two then finished looking through the house and left. They removed Mr. Hodges' body and disposed of it in Jefferson City. The police found the body and then went to the Hodges' home where they found Mrs. Hodges' body.

Following the crime the two men separated and traveled between Florida and Jefferson City, at one point staying in Paducah, Kentucky one night where they left the Hodges' car. About a month later Ervin was arrested for the murders. Hunter later confessed to the crimes and implicated Ervin.

Legal Chronology

1988
12/15 -Tomas Ervin and Bert Hunter rob and kill Mildred and Richard Hodges at their home in Jefferson City, Missouri.

1989
3/28 -Ervin is charged by indictment with two counts of first degree murder and one count of first degree robbery.
5/26 -On a motion of a change of venue the case is transferred from Cole to Callaway County.

1990
1/17 -Ervin's trial begins in Callaway County.
1/19 -The jury finds Ervin guilty of two counts of murder first degree and robbery first degree. The jury assesses punishment at death for the two murders.
3/5 -Ervin is sentenced to death on each count of murder and to a consecutive term of life for the robbery conviction.
3/12 -Ervin files a notice of appeal.
7/11 -Ervin files a motion for post conviction relief in the Callaway County Circuit Court.

1991
4/29 -The Circuit Court denies post conviction relief.

1992
7/21 -The Missouri Supreme Curt confirms Ervin's convictions and sentences and the denial of post conviction relief.

1993
2/22 -The U.S. Supreme court denies certiorari review.
3/12 -Ervin files a petition for writ of habeas corpus in the U.S. District Court for the Western District of Missouri

1996
10/30 -The U. S. District Court denies the petition for writ of habeas corpus.

1999
10/18 -The U. S. Eighth Court of Appeals affirms the denial of relief.

2000
6/26 -The U. S. Supreme Court declines certiorari review.
9/20 -The State requests an execution date from the Missouri Supreme Court.

2001 2/27 -The Missouri Supreme Court sets March 28, 2001 as Ervin's execution date.

The Lamp of Hope (Associated Press & Rick Halperin)

March 28 - MISSOURI - Tomas Ervin was executed early Wednesday for his role in the 1988 murders of an elderly Jefferson City woman and her son. Ervin, 50, died at 12:04 a.m. Wednesday at the Potosi Correctional Center, 3 minutes after the first of three lethal drugs was administered. He looked up from his bed at the state witnesses before coughing several times before falling back on to the pillow. His last statement, according to corrections officials: "When the courts of this nation refuse to afford a condemned prisoner the opportunity to prove that he is actually innocent of the crimes for which he stands condemned, the capital punishment system is broken," Ervin said. "The courts refused me that opportunity and so tonight, as it has done at least twice in the past, the state of Missouri executes an innocent man." Ervin did not elaborate. He was convicted in 1990 for the murders of Mildred Hodges, 75, and her son, Richard, 49.

Ervin's fate was sealed when Gov. Bob Holden decided not to grant clemency less than 3 hours before Ervin's scheduled execution. The U.S. Supreme Court also refused to halt the execution. In an interview Tuesday, Ervin had said he believed there was still a chance the courts would grant a stay. "The courts for the 1st time are actually taking a look at my innocence claim," he said. The execution came 9 months to the day after the state executed Bert Hunter for the same killings. Hunter confessed to the 1988 murders and testified at trial that Ervin was his partner in the crimes.

Hunter said he and Ervin robbed the Hodges home on Dec. 15, 1988, under the impression Richard Hodges kept a large amount of cash at the house. Hunter said the mother and son were killed because the assailants feared they had been recognized. Both victims were found with plastic bags over their heads. But Ervin maintained his innocence, insisting he was at home asleep when Hunter and another person committed the crimes. "Hunter was staying at my house," Ervin said in an interview Tuesday with The Associated Press. "I had taken him to the doctor. I assumed he was sick in his bed with strep throat at the time. "He left with someone else. I was none the wiser."

Both men were convicted of murder once before, in Ervin's case the 1967 slaying of a cab driver in Buchanan County. Ervin and Hunter met in prison, taught themselves computer programming and, once paroled, started working full time for the state Department of Revenue in the early 1980s. Both ended up losing their jobs, said Cole County prosecutor Richard Callahan. He said both abused cocaine and started traveling across the south, committing robberies along the way, before they returned to Jefferson City. Hunter wanted to rob banks, but Ervin convinced him house robberies were a safer bet, Callahan said. "His ultimate motivation for testifying against Tommy was that he blamed Tommy for their predicament," Callahan said. "He was just unhappy that he had agreed to the house robberies."

It's the reliance on Hunter's testimony that formed the core of Ervin's final appeals. In them, Ervin argues his trial counsel was "constitutionally inadequate," making mistakes that included a failure to play for the jury -- as promised -- a tape of Hunter's guilty plea. In that plea, Hunter tells a judge Ervin was not involved in the murders. "When you look at all of the things that Hunter has said on different occasions, you see just a wide variety of explanations of events," John Osgood, Ervin's current attorney, said. "If you attempt to corroborate those, you find it's replete with lies. "It makes his testimony very suspect."

Hunter also said Ervin was not involved during a polygraph test administered by the state. The results of that test, inadmissible in Missouri courts, and Hunter's subsequent statements about the test, which are admissible, were not presented to the jury. "It is reasonable to assume that the outcome of the trial would have been different if Hunter's provocative videotaped and post-polygraph testimony had been presented to the jury," wrote Judge Gerald W. Heaney, of the 8th Circuit, in a dissent to the court's Tuesday order denying Ervin a stay. Heaney concluded that Ervin's deserved a new trial. Callahan dismissed the issue, saying he feels the jury would have found Ervin guilty even if Hunter had not testified. Hunter's testimony "was an import and key development, but there was enough circumstantial evidence to tie Ervin to the murders," Callahan said.

Ervin becomes the 2nd condemned inmate to be put to death this year in Missouri and the 48th overall since the state resumed capital punishment in 1989. Missouri trails only Texas (244), Virginia (82), and Florida (51) in the number of executions carried out since the death penalty was re-legalized on July 2, 1976. Ervin becomes the 22nd condemned inmate to be put to death this year in the USA and the 705th overall since America resumed executions on January 17, 1977.

ProDeathPenalty.Com

Tomas Ervin was executed early Wednesday for his role in the 1988 murders of an elderly Jefferson City woman and her son. He was convicted in 1990 for the murders of Mildred Hodges, 75, and her son, Richard, 49. The execution came 9 months to the day after the state executed Bert Hunter for the same killings. Hunter confessed to the 1988 murders and testified at trial that Ervin was his partner in the crimes. On the afternoon of December 15, 1988, Hunter and Ervin carried out a plan to rob Richard Hodges at his home on Boonville Road in Jefferson City. Hunter and Ervin believed Hodges kept large amounts of cash in a file cabinet in his home. With a pistol in his pocket, Hunter knocked on the Hodges’ door. Richard’s mother, Mildred Hodges, answered. Hunter then pulled a stocking mask down over his face and, entering the house, grabbed Mrs. Hodges by the hand. He held a gun in the other hand. Mrs. Hodges became very excited and cried out for her son, Richard. Richard came into the room where they were standing, telling the two assailants to leave Mrs. Hodges alone because she had just returned home after heart surgery. As Richard attempted to calm his mother, Ervin and Hunter began binding her hands and feet with duct tape. She was made to lie down on a bed in a back bedroom. Ervin took Richard to the living room and made him lie on the floor. Ervin began taping Richard’s hands. At same time, Hunter was searching the house for money and other valuables. Meanwhile, Mrs. Hodges managed to get free and ran into the living room where Ervin was still taping Richard’s hands. She pulled the mask off Ervin, causing him to fall back on the floor. Ervin called out Hunter’s first name. Hunter returned to the living room and saw what had occurred. Once the mask was pulled off Ervin and Hunter’s name was called out, Hunter and Ervin made a mutual decision that both the Hodges were to be killed. Mrs. Hodges attempted to flee. Hunter and Ervin caught Mrs. Hodges in the hallway, forcing her to the floor. According to Hunter, she hit the wall, bloodying her nose. A rush of air came out of her and she became still. The two then returned to finish taping Richard’s mouth and nose. Plastic bags were placed over the heads of both victims. Hunter admitted that after the plastic bags were placed on the victims’ heads, he held Richard’s nose to suffocate him. While Hunter was dealing with Richard, Ervin was "working with Mrs. Hodges," although Hunter surmised there was "nothing to do, anyway." Ervin returned and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse. The two then finished looking through the house and left. They returned to the house at least once that evening or the next evening. Both men were convicted of murder once before, in Ervin's case the 1967 slaying of a cab driver in Buchanan County. Ervin and Hunter met in prison, taught themselves computer programming and, once paroled, started working full time for the state Department of Revenue in the early 1980s. Both ended up losing their jobs, said Cole County prosecutor Richard Callahan. He said both abused cocaine and started traveling across the south, committing robberies along the way, before they returned to Jefferson City. Hunter wanted to rob banks, but Ervin convinced him house robberies were a safer bet, Callahan said. "His ultimate motivation for testifying against Tommy was that he blamed Tommy for their predicament," Callahan said. "He was just unhappy that he had agreed to the house robberies."

Jefferson City News-Tribune

POTOSI -- Proclaiming his innocence to the end, Tomas Ervin was executed this morning at the Potosi Correctional Center for his role in the December 1988 murders of Jefferson City residents Mildred and Richard Hodges.

Tim Kniest, spokesman for the state Corrections Department, told reporters Ervin's last words before his execution were: "When the courts of this nation refuse to afford a condemned prisoner the opportunity to prove that he's actually innocent of the crimes for which he stands condemned, the capital punishment system is broken. "The courts refused me that opportunity and so tonight, as it has done at least twice in the past, the state of Missouri executes an innocent man." Kniest said Ervin, 50, didn't name the other death row inmates he thought had been wrongly executed.

Gov. Bob Holden, who at 12:01 a.m. gave the order to proceed with Missouri's second execution this year, didn't agree that Ervin's sentence was improper. "I have examined the history of the judicial proceedings and the request for a stay that have been placed before me. I find nothing to justify setting aside the result of the judicial proceedings," Holden said in a statement read to reporters by Dora Schriro, the state's Corrections director. "The state, on behalf of its citizens, has the right to impose the death penalty for the crime of capital murder. Our courts and the Department (of Corrections) have met their responsibilities under the law . . . . "I reaffirm my solemn oath to uphold the law. It is the duty of my office to do so, on behalf of the people of Missouri." Ervin's execution was the second carried out since Holden became governor in January, and the 48th since the state resumed executions in 1989.

He was convicted of killing both Mildred Hodges, 75 at the time of her death, and her son, Richard Hodges, 49, during a robbery of their Boonville Road home on Dec. 15 or 16, 1988. The two convictions came on Jan. 19, 1990, after a Callaway County jury heard the evidence in a Fulton trial, on a change of venue from Cole County. Circuit Judge Frank Conley imposed the jury's recommended death sentences in March 1990.

It was the second time Ervin faced a murder conviction: At the time of the Hodges murders, Ervin had been out of prison for nine years after serving 10 years of a life sentence imposed following his guilty plea to second-degree murder for the 1967 stabbing death of a St. Joseph cab driver. While in the Missouri State Penitentiary at Jefferson City (now the Jefferson City Correctional Center), Ervin met Bert L. Hunter, another inmate serving a life sentence for an unrelated northwest Missouri murder.

Hunter also was convicted of killing the Hodges, a mother and son real-estate team, and stealing a car, jewelry, a fur coat and other items from their home. Hunter was executed last June 28 for his role in the two murders -- nine months to the day before Ervin's death by lethal injection. Ervin's death at 12:04 a.m. came about three minutes after he received the first injection of sodium pentathol, a drug that causes unconsciousness. Right after that drug was given, he breathed heavily a couple of times and appeared to fall asleep. Other drugs used in the execution process are pancronium bromide, which stops breathing, and potassium chloride, which causes the heart to stop working.

Seven people -- including three reporters and two law enforcement officers who helped investigate the Hodges murders -- witnessed this morning's execution for the state. No one from the Hodges family attended the execution. And the only man present at Ervin's request was identified as his "spiritual adviser." That man, dressed in a priest's clothes, nodded and gave Ervin a slight smile when the blinds covering the execution room first were opened. Ervin seemed to smile after that gesture from his witness, and was looking at the ceiling when the first injection was given at 12:01 a.m. Kniest said Ervin's final meal included a sirloin steak, butterfly shrimp, corn, French fried potatoes, a roll, coffee and a chocolate shake. Today's execution came after Holden, the state Supreme Court and the federal appeals and Supreme courts rejected legal pleas for a stay.