Hudson v. State
Decision Date | 21 September 1995 |
Docket Number | No. A95A1566,A95A1566 |
Parties | HUDSON v. The STATE. |
Court | Georgia Court of Appeals |
Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Vidalia, for appellant.
DuPont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.
Defendant was charged in an indictment with 15 counts of various acts of sexual misconduct constituting crimes directed against minor boys. The trial court directed verdicts of acquittal as to two counts. The jury acquitted defendant on ten counts but found him guilty of three counts of sodomy orally committed against two fourteen-year-old boys between March and May 1991. Defendant's motion for new trial was denied, and this appeal followed. Held:
1. Defendant first enumerates the denial of his motion for new trial on the special ground of ineffective assistance of counsel. The specifications of allegedly unprofessional omissions are the failure to object to alleged "similar transactions" testimony from five other victims of defendant's sexual misconduct; the failure to employ available expert witnesses to determine whether defendant's accusers exhibited "symptoms of child sexual abuse accommodation syndrome"; the failure to object to certain testimony by an expert witness for the State; and, the failure to prepare character witnesses adequately.
(Citations and punctuation omitted.) Johnson v. State, 214 Ga.App. 77(1), 447 S.E.2d 74. Earnest v. State, 262 Ga. 494, 496(5), 422 S.E.2d 188. "The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with [the] client." (Citations and punctuation omitted.) Johnson v. State, 214 Ga.App. 77(1), 79, 447 S.E.2d 74, supra.
(a) The evidence that defendant characterizes as impermissible "similar transactions" testimony was that of five witnesses who each testified that defendant attempted improper advances under the guise of filming a back massage for a class he was taking. Each time, defendant asked the boy to remove his trousers, so defendant could rub his legs and thighs. In one instance, defendant filmed a boy masturbating. This evidence originally had been excluded from the State's case-in-chief. Thereafter, defendant took the stand and testified on direct examination that he is "not a homosexual [and ... has] never been a homosexual." He denied any sexual discussions or contact with any of his students. Over defendant's objection, the trial court permitted the State to introduce the previously excluded evidence of defendant's arguable sexual misconduct directed at other boys At defendant's behest, the trial court agreed to "give the jury cautionary instructions for what purpose [this evidence] is being admitted."
Brown v. State, 260 Ga. 153, 156(4), 391 S.E.2d 108. In the case sub judice, this evidence of defendant's attempts to debauch other youths through the guise of a massage is not wholly irrelevant or immaterial to his "bent of mind and intent." Rodgers v. State, 261 Ga. 33, 35(3), 401 S.E.2d 735. Accord Roberson v. State, 214 Ga.App. 208, 209(3), 447 S.E.2d 640. It follows that defense counsel's unsuccessful attempt to exclude this relevant impeachment testimony Johnson v. State, 214 Ga.App. 77(1), 79, 447 S.E.2d 74, supra.
(b) With respect to defendant's three remaining specifications, Stephens v. State, 265 Ga. 120, 121(2), 122, 453 S.E.2d 443. The fact that defendant and his present counsel now claim they would have conducted the trial differently does not establish the ineffectiveness of trial counsel. Robinson v. State, 210 Ga.App. 278, 279(3), 280, 435 S.E.2d 718. This enumeration is without merit.
2. In his second enumeration, defendant contends the trial court erred in failing to charge "defendant's request to charge no. 10, and in failing to charge the principles set forth in O.C.G.A. § 24-4-6."
Defendant's written request to charge number 10 is for the "two theories" language, i.e., " Lawton v....
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