Washington v. Hopson

• Decision Date: 05 July 2016
• Docket Number: S16A0148
• Citation: 299 Ga. 358,788 S.E.2d 362
• Parties: Washington v. Hopson.
• Court: Georgia Supreme Court

299 Ga. 358

788 S.E.2d 362

Washington

v.Hopson.

S16A0148

Supreme Court of Georgia.

Decided: July 5, 2016

Samuel S. Olens, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Steven Mark Rodham, Womack, Gottlieb & Rodham, P.C., for Appellant.

Joseph Scott Key, Miller & Key, PA, for Appellee.

NAHMIAS, Justice.

In this habeas corpus proceeding, the Chattooga County Superior Court set aside Jason Hopson's rape conviction due to the conduct of former Fulton County assistant district attorney Ashutosh Joshi, which, the habeas court concluded, violated Hopson's constitutional right to due process at his trial. Joshi's conduct after Hopson's trial was unprofessional, and this Court has previously ordered that Joshi be publicly reprimanded for his ethical violation. See In the Matter of Joshi , Case No. S09Y0429 (Feb. 23, 2009). However, we reverse the habeas court's order, primarily because the factual findings underlying the habeas court's conclusions that constitutional violations occurred at Hopson's trial are clearly erroneous.

1. (a) On November 5, 2004, Hopson was indicted in Fulton County for rape, kidnapping, aggravated assault, aggravated sexual battery, and aggravated sodomy. His trial was held from December 7 to 10, 2004. Joshi was the State's prosecuting attorney. The Court of Appeals has summarized the evidence presented at the trial as follows:

Viewed in the light most favorable to the verdict, the evidence reveals that [on June 19, 2004] the victim and a female friend attended a party at Zoo Atlanta that was sponsored by a local radio station. After consuming some alcohol, the victim and her friend met Hopson, who invited the women to have a drink with him and his friends. Each of the women drank alcohol from a bottle that Hopson and his friends were sharing. Hopson started a conversation with the victim and attempted to flirt with her, but the victim became uncomfortable, and she and her friend left Hopson and his friends to go to another area of the party.

The victim and her friend had a few more drinks, and the victim's friend became ill. While the victim waited for her friend outside a restroom, Hopson approached the victim again. Hopson put his arm around her and attempted to kiss her, but the victim refused and tried to move away from him.

When the victim's friend returned from the restroom, Hopson offered the friend a glass of what appeared to be water. The friend took a sip from the glass before giving it to the victim, who then drank “quite a bit” of it. Within minutes, the victim felt dizzy and light-headed, and was unable to move or understand words being spoken to her. Her friend, who was disoriented and vomiting, did not see what was happening to the victim. Hopson then dragged the semiconscious victim to a secluded and restricted area of the zoo, where he raped her.

A Zoo Atlanta maintenance worker later found the victim unconscious in the restricted area, with her pants pulled down and her shirt lifted, with Hopson standing near her and pulling his pants up. Hopson left the scene when he saw the maintenance worker, and the worker summoned security to help the victim. The police later found Hopson in another area of the party.

Hopson v. State , 281 Ga.App. 520, 521, 636 S.E.2d 702 (2006) (Hopson I ).

The trial record shows that the victim and her friend testified that the victim felt uncomfortable with Hopson's attentions at the party. Much of the evidence of the rape came from the victim's testimony, but the doctor and nurse who examined her also testified that the victim's vagina was torn, she had bruises on her genitalia, lower extremities, neck, and face, and the tampon she had been wearing was crumpled and pushed into the front of her cervix. Hopson testified that he had consensual sex with the victim and that she went willingly with him to the restricted area of the zoo. Two of his friends who accompanied him to the party also testified that the victim went voluntarily with Hopson.

After the aggravated assault charge was nolle prossed, the jury found Hopson guilty of rape but acquitted him of the remaining charges. On January 18, 2005, he was sentenced to serve 15 years in prison for the rape conviction. Still represented by his trial counsel, Hopson filed a motion for new trial, arguing that the trial court erred in refusing to allow him to re-cross-examine witnesses during the State's case-in-chief and that the court's instruction on consent was erroneous. The motion for new trial was denied, and Hopson raised the same two issues on direct appeal. The Court of Appeals affirmed his conviction on September 12, 2006. See Hopson I , 281 Ga.App. at 520, 636 S.E.2d 702.

(b) On January 21, 2007, Hopson filed an extraordinary motion for new trial, alleging that Joshi knew that the victim and the victim's friend had lied in their testimony at trial and nevertheless allowed the trial to proceed. Hopson alleged that he learned of this information when, during a meeting in September 2006, Joshi offered to represent Hopson in challenging his conviction. Hopson's family declined to hire Joshi but told Hopson's trial counsel about the offer, and trial counsel and another lawyer filed the extraordinary motion for new trial. The trial court held a hearing on the motion on March 7, 2007. The Court of Appeals described the evidence presented at the hearing as follows:

The evidence at the motion hearing established that sometime after Hopson's trial, Joshi left the district attorney's office and went into private practice. Hopson's family subsequently consulted Joshi and another lawyer with whom Joshi shared a suite, about Hopson's case. Hopson's family recorded the conversation, and it was played for the court during the motion hearing. In that conversation, Joshi stated he knew at one point in the trial that the victim and her friend lied on the stand. At the motion hearing, however, Joshi explained that he had made an overstatement when he said he knew that they had lied because it was only his opinion. He was referring to a conflict in the evidence as to whether the victim had wilfully gone with Hopson the night of the rape, or whether she was dragged to the location where the assault occurred. Joshi stated that this related only to the charge of kidnapping, not the rape charge. After the tape was played, Joshi acknowledged that he told Hopson's family that he did not believe Hopson raped the victim, but he said that his statement was “inartfully worded,” and that he only meant to address the kidnapping charge. Nevertheless, Joshi told Hopson's family that for $15,000 he could get Hopson released. He told them that his name could not be on any of the pleadings because he had an absolute conflict of interest. Joshi explained at the motion hearing that he knew that he could not be involved in any representation of Hopson, but he stated that he had discussed with the other lawyer with whom he shared a suite that the lawyer would not be prevented from basing an appeal on any mistakes Joshi made at trial.

Hopson v. State , 307 Ga.App. 49, 50, 703 S.E.2d 719 (2010) (Hopson II ).

The trial court denied the extraordinary motion for new trial on January 6, 2009, and the Court of Appeals affirmed that ruling on November 23, 2010. See id. at 52, 703 S.E.2d 719. The Court of Appeals held that the motion failed under the test set forth in Timberlake v. State , 246 Ga. 488, 271 S.E.2d 792 (1980), because “[t]he evidence that came to Hopson's knowledge after the trial—that Joshi believed the victim and her friend were lying—was merely, as the trial court found, Joshi's opinion as to his trial witnesses' credibility.”

Hopson II , 307 Ga.App. at 51, 703 S.E.2d 719. The Court of Appeals also held: “[N]o new trial is warranted on the ground of prosecutorial misconduct. The fact that Joshi believed one witness over another in the face of conflicting testimony does not provide a ground for granting a new trial.” Id. Hopson filed a petition for writ of certiorari, which this Court denied on April 18, 2011. See Case No. S11C0516.

(c) On January 14, 2009, while his application to appeal the denial of his extraordinary motion for new trial was pending, Hopson, represented by one of his lawyers from that proceeding, filed a petition for habeas corpus in the Chattooga County Superior Court against Anthony Washington, the warden of the prison in Chattooga County where Hopson was detained. The habeas petition raised the same factual allegations about Joshi's conduct and contended that it violated Hopson's constitutional due process rights.

More than five years later, on June 10, 2014, the habeas court held an evidentiary hearing. No testimony was presented. The court admitted into evidence the transcript of Hopson's trial, the pleadings and trial court orders filed in connection with his motion for new trial and extraordinary motion for new trial, and the Court of Appeals' opinion in Hopson I ; in their arguments, the parties also discussed the Court of Appeals' published opinion in Hopson II . Neither the transcript of the extraordinary motion for new trial hearing nor the recording of Joshi's meeting with Hopson's family was included in this material. During the habeas hearing, Hopson's counsel noted this deficiency and asked the court to leave the record open so he could include those two items as evidence. The warden had no objection, and the court agreed. It appears, however, that Hopson never supplemented the record.¹

On June 30, 2015, the habeas court granted Hopson relief, setting aside his conviction on the ground that his constitutional due process rights had been violated by Joshi's conduct. The warden filed a notice of appeal to this Court, see OCGA § 9–14–52 (a), and the case was orally argued on January 4, 2016.

2. “When reviewing a habeas court's decision to grant habeas relief, this Court accepts the habeas court's factual findings unless they are clearly erroneous, but we apply the law to those...