Hudson v. State

754 S.E.2d 626, 325 Ga. App. 657, 2014 Fulton County D. Rep. 223, 2014 WL 444685, 2014 Ga. App. LEXIS 45
CourtCourt of Appeals of Georgia
DecidedFebruary 5, 2014
DocketA13A2043
StatusPublished
Cited by5 cases

This text of 754 S.E.2d 626 (Hudson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudson v. State, 754 S.E.2d 626, 325 Ga. App. 657, 2014 Fulton County D. Rep. 223, 2014 WL 444685, 2014 Ga. App. LEXIS 45 (Ga. Ct. App. 2014).

Opinion

McFadden, Judge.

Marreese Hudson appeals his convictions of four counts of child molestation, two counts of cruelty to children in the third degree, aggravated assault and interference with a 911 call. He argues that he received ineffective assistance of counsel in that trial counsel failed to call certain witnesses; but as their testimony would have [658]*658been merely cumulative, trial counsel was not ineffective. He asks us to overrule the longstanding exception to the sequestration rule which authorizes trial courts to allow lead investigators to remain in the courtroom; but as that exception is set out in decisions of our Supreme Court, we are without authority to overrule it. He complains that the trial court erred by failing to instruct the jury on mutual combat and justification, but we agree with the trial court that the evidence does not require either charge. We therefore affirm.

1. Facts.

Viewed in the light most favorable to the verdict, Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted), the evidence shows that Hudson would watch his stepdaughters while their mother worked in the evenings. The younger victim, who was 12 at the time of trial, testified that after the girls bathed, they “would have to go in the room and [Hudson] would look between [their legs], and that’s it.” This began after the girl told Hudson that a boy at school tried to rape her.

At some point, the older victim, who was 13 at the time of trial, told her mother that Hudson had “messed with” her and her sister. Mrs. Hudson confronted him. Hudson did not deny checking between the girls’ legs but explained that one of the girls was “messing with” a boy next door. This led to a fight between Mr. and Mrs. Hudson. Hudson hit Mrs. Hudson in the face with a trophy, leaving a two- to three-inch gash under her eye that required sutures. When Mrs. Hudson said she was going to call 911, Hudson pulled the phone out of the wall.

Police responded to the domestic dispute at Hudson’s house. They saw that Mrs. Hudson was covered in blood and that blood was on the wall, the bed, and the furniture. Hudson had a scratch on the top of his head that “wasn’t that bad”; he did not even look like he had been in a fight.

Two days later, Hudson’s stepdaughters gave statements at the child advocacy center, recounting how Hudson examined them. Those statements were recorded, and the DVDs were played for the jury. Days after they gave their recorded statements, the girls recanted. They told their mother that they had lied and that Hudson “never messed with [them] or looked between [their] legs.” At trial the older victim testified that she told a police detective, her grandmother, her grandfather, her cousin, and her pastor that her recorded statement had been a lie. The younger victim also testified that she had lied when she was interviewed at the child advocacy center. She testified that she told her grandmother, her pastor and two other people that she had lied. But she also testified that Hudson “checked” her, [659]*659consistent with her statement at the child advocacy center and her initial statement to her mother.

2. Trial counsel was not ineffective.

Hudson argues that trial counsel was ineffective because she should have called the girls’ pastor, their grandmother, and their grandfather to corroborate the girls’ testimony that they told these people they had lied. To prevail on his claim of ineffective assistance of counsel, Hudson must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Hudson “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). Hudson cannot show that trial counsel’s performance prejudiced him, so his claim of ineffective assistance of counsel fails.

Trial counsel’s testimony at the hearing on the motion for new trial demonstrated that she made an informed, reasoned choice not to call these witnesses. She testified that, after reviewing the state’s discovery, she made a strategic decision not to call these witnesses because the victims’ “testimony would be the best source of that information.” The victims’ trial testimony included that they told their mother they had lied; that Hudson “never messed with [them] or looked between [their] legs,” that they told the detective, their grandmother, their grandfather, their cousin, and their pastor that they had lied; and that they had lied during the interviews at the child advocacy center.

Hudson has not shown that the testimony of the girls’ grandparents or pastor would have been anything other than merely cumulative. And failure to present merely cumulative evidence does not prejudice a defendant and therefore does not amount to ineffective assistance of counsel. Wesley v. State, 286 Ga. 355, 358 (3) (h) (689 SE2d 280) (2010); Duran v. State, 274 Ga. App. 876, 879 (3) (619 SE2d 388) (2005). See also Nichols v. State, 257 Ga. 558, 558-559 (2) (a) (361 SE2d 486) (1987) (counsel’s considered, strategic decision not to call witnesses who would have substantiated theory of self-defense was not ineffective because counsel determined their testimony would not have been beneficial or would have been merely cumulative); Freeman v. State, 269 Ga. App. 435, 438-439 (3) (a) (604 SE2d 280) (2004) (counsel’s decision not to call molestation victim’s therapist, to whom victim had recanted, was not ineffective assistance of counsel as counsel determined the testimony would be merely cumulative or harmful).

[660]*6603. The lead investigator could remain in the courtroom.

Hudson argues that allowing the lead investigator to remain in the courtroom violated the rule of sequestration. Settled law authorizes such an exception to sequestration.

The trial court may allow an investigative officer to remain in the courtroom to assist the prosecutor in the orderly presentation of evidence. A trial court is vested with the discretion to make an exception to the sequestration rule for the chief investigating officer and the discretion will not be reversed on appeal unless abused.

Sirmans v. State, 301 Ga. App. 756, 759 (4) (688 SE2d 669) (2009) (citations omitted). Hudson does not argue that the trial court abused its discretion but instead argues that this exception to the sequestration rule should be abolished. But this exception was established long ago by our Supreme Court. See Hardy v. State, 245 Ga. 673, 674 (266 SE2d 489) (1980); Spurlin v. State, 222 Ga. 179, 180-181 (2) (149 SE2d 315) (1966). And “this [c]ourt has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents.” Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d 384) (2012) (citations and punctuation omitted).

4. The trial court did not err by refusing to charge the jury on mutual combat and justification.

(a) Mutual combat.

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754 S.E.2d 626, 325 Ga. App. 657, 2014 Fulton County D. Rep. 223, 2014 WL 444685, 2014 Ga. App. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-v-state-gactapp-2014.