Hudson v. State

• Decision Date: 26 October 1998
• Docket Number: No. A98A2386.,A98A2386.
• Parties: HUDSON v. The STATE.
• Court: Georgia Court of Appeals

508 S.E.2d 682

234 Ga. App. 895

HUDSON v. The STATE.

No. A98A2386.

Court of Appeals of Georgia.

October 26, 1998.

Jeffrey S. Bowman, Augusta, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Defendant George Sherman Hudson III appeals his January 1997 conviction for armed robbery. We affirm.

"On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, 195 Ga. App. 463, 464(1), 393 S.E.2d 737 (1990). The facts, viewed in this light, are as follows: On August 2, 1996, Hudson traveled from his home in Atlanta to Augusta, Richmond County, and checked into a Red Carpet Inn. He then drove to the Professional Detail Shop on Walton Way ("the shop") to see the owner, Darrell Rouse, a/k/a "Shaq." Rouse allegedly owed Hudson $3,800. A shop employee testified that he noticed that Hudson had a .357 revolver on the front seat of his car. When Hudson realized that Rouse was not at the shop, he instructed shop employees to "tell him [Rouse] I'm looking for him" and then left.

A week later, on August 8, 1996, Hudson returned to Augusta in a Ford Explorer with his cousin, Reginald Leon Walker, and an acquaintance, Thad Christopher McClamey. The men went to the shop and asked to see Rouse, who was not there. While waiting for Rouse to return, the men decided to get the Ford Explorer washed and a shop employee took the keys. Within a few minutes, Rouse arrived at the shop with two friends in his rented Toyota Camry. Rouse went into the shop office with Hudson, Walker, and McClamey, where they engaged in a heated argument. As Rouse attempted to exit the office, Walker shot him in the leg, arm, and chest. Rouse collapsed and died in the parking lot. As they attempted to leave the scene, the three co-defendants were unable to find the keys to the Ford Explorer, so they took Rouse's rented Toyota. They drove the car to the Columbia, South Carolina airport and took an airplane back to Atlanta.

When the police arrived at the shop within minutes of the shooting, they found the Ford Explorer in the back parking lot with its doors open. Inside the vehicle, police found, inter alia, Hudson's driver's license and ammunition for an automatic weapon. That evening, Hudson contacted the Richmond County Sheriff's Department and admitted that he was "involved" in the shooting at the shop. He was subsequently arrested and charged with murder, felony murder, armed robbery, and possession of a firearm during the commission of certain crimes.

Although Hudson and McClamey both filed and argued motions to sever, such motions were denied by the trial court. A joint trial was conducted, with each defendant represented by individual defense counsel. At trial, the State presented the testimony of several witnesses to the shooting and/or the subsequent theft of Rouse's car. Neither Hudson nor McClamey testified. However, co-defendant Walker took the stand and admitted shooting Rouse, claiming self-defense. After hearing the evidence, a jury convicted Hudson of armed robbery and acquitted him of the other charges.¹ Hudson's motion for new trial was denied by the trial court, and he appeals.

1. (a) In his first three enumerations, Hudson contends that the evidence was insufficient to support his conviction for armed robbery because he and his co-defendants took the victim's car as an "afterthought," i.e., after they were unable to find the keys to the Ford Explorer. As such, he claims that he lacked the requisite intent to commit theft prior to the death of the victim.

However, similar contentions have been rejected repeatedly by this Court and the Supreme Court of Georgia.² "Under OCGA § 16-8-41(a), a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.' Young v. State, 251 Ga. 153, 157, 303 S.E.2d 431 (1983)." (Punctuation omitted.) Lowery v. State, 209 Ga.App. 5, 6(1), 432 S.E.2d 576 (1993). "Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim's property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly." (Citations and punctuation omitted; emphasis in original.) Francis v. State, 266 Ga. 69, 70-71, 463 S.E.2d 859 (1995).

(b) Contrary to Hudson's contentions otherwise, this Court's holding in Lowery v. State, supra, is applicable herein. In Lowery, a defendant shot his sister and, several minutes later, sexually assaulted her, took her money, and left her to die. However, his sister staggered to the road, where she was discovered by a church group on a hay ride. Following a jury trial, the defendant was convicted of, inter alia, armed robbery. In rejecting the defendant's argument that he could not be convicted of armed robbery because of the time span between the use of the weapon and the theft of the money, this Court found that, without the shooting, the theft could not have been accomplished, so that "[t]he relatively brief passage of time between the shooting and the taking in this case does not sever that connection between the two acts." Id. at 6, 432 S.E.2d 576. Such holding is just as applicable in the case before us, which clearly involved an even shorter period of time than that exhibited in Lowery.

(c) Further, although the evidence supported a finding that Hudson had a handgun in his possession at the time of the crime, even if the jury had determined that he was unarmed at the time of the crime, he still could have been convicted of armed robbery. The undisputed evidence showed that Hudson participated in confronting Rouse immediately prior to the moment when Walker shot and killed Rouse, and that Hudson then left the shop with his co-defendants in Rouse's car. Accordingly, he was, at a minimum, a party to the crime of armed robbery, and the jury was so charged. See OCGA §§ 16-2-20(b)(3); 16-2-21.

"Construing the evidence most strongly in favor of the State, it was sufficient to authorize a rational trier of fact to find proof of [Hudson's] guilt of armed robbery ... beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Francis v. State, supra at 71(1), 463 S.E.2d 859.

2. In his next enumeration, Hudson asserts that the trial court erred when, "after finding a Batson³ violation in regard to juror number twelve[,] failed to reseat said struck juror or follow the proper procedures in remedying the violation." However, the trial transcript clearly shows that the trial court, in fact, did not find a Batson violation. The State utilized five of its six strikes against African-American females. When defense counsel objected and asserted a Batson violation, the State articulated specific, race-neutral reasons for each strike. After defense counsel challenged these reasons, the trial court made the following statement: "Let's just take for example that I find the first one that you've raised, number 12, as not being— [the State] had not given a sufficient reason for that." (Emphasis supplied.) He then speculated that, if he put juror no. 12 back on the jury, then he would have to take off another female African-American, "so I haven't accomplished anything." Defense counsel then continued to argue that the five jurors were illegally struck and suggested several procedures for reseating these jurors on the panel if the trial court determined that the strikes were improper. The State responded with additional, specific justifications for the strikes. Following such arguments, the trial court denied the Batson motion, determining that the defendants did not prove that the State acted with discriminatory intent in exercising its strikes.

Accordingly, the trial court properly followed the three-step procedure in addressing the Batson objection. See Jackson v. State, 265 Ga. 897, 898-899(2), 463 S.E.2d 699 (1995); Gardner v. State, 225 Ga.App. 427, 483 S.E.2d 912 (1997). "[U]nder Purkett [v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995),] the ultimate Batson appellate inquiry concerns only whether the trial court's credibility determination that racial motivation did not exist was clearly in error." (Emphasis omitted.) Id. at 431, 483 S.E.2d 912. In this case, we find no such error.

3. In his final enumeration, Hudson complains that he was denied effective assistance of counsel at trial due to an alleged "conflict of interest" with his appointed counsel. Hudson asserts that trial counsel failed to give him discovery materials to review prior to trial; failed to interview certain witnesses; failed to file a motion to sever on his behalf; and "was affiliated" with the victim's family. Hudson also contends that, because he had complained to the State Bar immediately prior to trial about counsel's performance in preparing for trial, counsel should have notified the trial court of such conflict of interest, so that new counsel could be appointed. However, Hudson has failed to demonstrate an actual conflict of interest with counsel, that counsel's performance was deficient, or that any alleged deficiency adversely affected the outcome of the trial. (a) Hudson asserts that an actual conflict of interest existed on two fronts: (1) that counsel previously was "affiliated" with the victim's family, and (2) that a conflict arose when he...