Moulder v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 21, 2023
S23A0508. MOULDER v. THE STATE.
WARREN, Justice.
In March 2015, Joshua Moulder was convicted of malice
murder, armed robbery, and possession of a firearm during the
commission of a felony in connection with the July 2006 shooting
death of Anthony Rudolph and was also convicted of influencing a
witness in 2014. He appeals those convictions, arguing that the
evidence was not sufficient to support his convictions related to the
2006 shooting and that counsel provided ineffective assistance by:
not arguing that the State failed to prove the statute of limitation
tolling provision alleged for the non-murder crimes committed in
2006; failing to raise a hearsay and Confrontation Clause objection
to certain testimony given by the lead detective; failing to correctly
advise Moulder about whether his prior convictions could be used to
impeach him if he testified; inaccurately describing the reasonable-
doubt standard in closing argument; and failing to object to a jury
charge about statements made during formal court proceedings.
Because the evidence was sufficient to support Moulder’s convictions
and he has failed to prove his claims of ineffective assistance of
counsel, we affirm. 1
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Moulder’s trial showed the following. In
November 2005, Rudolph was released on parole from an Ohio
prison and started living in Cleveland, Ohio. In July 2006, Rudolph
1 Rudolph was killed in July 2006. In March 2015, a Cobb County grand
jury indicted Moulder for malice murder, four counts of felony murder,
aggravated assault, two counts of armed robbery, and possession of a firearm
during the commission of a felony, all in connection with Rudolph’s July 2006
shooting, and one count of influencing a witness based on Moulder’s actions
toward Aletha Hughes in December 2014. At a trial from June 18 to 28, 2018,
the jury found Moulder guilty on all counts. The court sentenced him to serve
two sentences of life in prison—one for malice murder and one for armed
robbery—five consecutive years in prison for the firearm possession count, and
ten concurrent years for influencing a witness. The remaining counts were
merged or vacated by operation of law. Moulder timely moved for a new trial,
which he later amended twice with new counsel. In October 2022, after an
evidentiary hearing, the trial court denied Moulder’s motion. He filed a timely
notice of appeal. The case was docketed to the April 2023 term of this Court
and orally argued on April 20, 2023.
2
told his friend Clarence Marshall that he was going to drive to
Atlanta with “this guy that he met in the penitentiary called
‘Youngster’” for a drug deal; that he and Youngster were each going
to contribute $15,000; and that Youngster was from the Atlanta area
and had been paroled to Dayton, Ohio, in May or June 2006. 2
Similarly, Rudolph told his sister that he was going to pick up a
friend, “Youngster or somebody,” in Xenia, Ohio. 3
On July 18, 2006, Rudolph rented a car in Ohio, and at 6:15
a.m. on July 20, he rented a hotel room in Cobb County, Georgia for
one night. The next day, a man, whom the hotel staff could not
describe, extended the room rental for another night. On July 21,
Rudolph called Marshall, “sound[ing] kind of upset,” and said that
“he was supposed to be home by now.” Rudolph also said that he
and Youngster were in a hotel room, and Marshall heard a man
2 Marshall also testified that Rudolph said Youngster had gotten in
trouble in prison for throwing a heated towel in an inmate’s face. The lead
detective in Moulder’s case admitted that there was no record of Moulder doing
that.
3 An Ohio-based investigator testified at trial that Xenia is a suburb of
Dayton.
3
laughing in the background. Marshall called Rudolph back a few
hours later because he had “never seen [Rudolph] upset” or “heard
him talk like that,” but Rudolph did not answer.
On July 22, after the 11:00 a.m. hotel check-out time had
passed and housekeeping had knocked on the door of Rudolph’s room
but gotten no reply, the hotel manager called the police. Responding
police officers discovered Rudolph lying in one of the two beds in the
room. He had been killed by a gunshot to the back of his head. The
murder weapon was never recovered, but a firearms expert testified
that the bullet was fired from a revolver. According to his sister,
Rudolph had a wallet, but no wallet or money (other than three
dimes) was found in the room. Rudolph’s cell phone was also not
found. The hotel room door had been locked, there were no signs of
a struggle, and Rudolph looked like he had been sleeping when shot,
which led Detective Mitchell Plumb—the lead detective on the
case—to conclude that Rudolph knew his shooter. The car Rudolph
had rented was found outside a boarded-up apartment complex.
Detective Plumb testified that a trail from the apartment complex
4
through the woods “led directly to where one of Moulder’s family
lived at in an apartment.” That location was also about 1,000 feet
from an address where Moulder used to live.
Moulder, who was from the Atlanta area but had served time
in prison with Rudolph in Ohio, was released on parole in May 2006
and began living in Xenia, Ohio. He was between 12 and 14 years
younger than Rudolph. Rudolph’s phone records showed that his
phone called Moulder’s sister’s phone seven times on the morning of
July 20, beginning at 4:19 a.m. Moulder’s sister told Detective
Plumb that Moulder had called her from a blocked number and
asked if she needed any money; she said no. The sister testified that
some time after the call, she saw Moulder at their mother’s house in
Georgia. Detective Plumb contacted law enforcement officials in
Ohio, and on July 28, they located and arrested Moulder for
violating his parole by possessing crack cocaine, among other
reasons. When he was arrested, he had a “little over $800” in his
pocket.
5
Detective Plumb interviewed Moulder in Ohio. 4 Moulder told
Detective Plumb that he had served time with and was good friends
with Rudolph and that he knew Rudolph was traveling south with
another person for a drug deal. The detective suggested that the
other person was called “Youngster,” and Moulder agreed. Moulder
further explained that Youngster had set up the deal and although
Moulder gave Rudolph $1250 to be used in the deal, he did not go
with Youngster and Rudolph to complete the transaction. Moulder
maintained that he had not left Ohio during the period of time in
which the drug deal and Rudolph’s murder occurred in Atlanta.
When asked to describe “Youngster,” Moulder said that
Youngster had been housed in a different prison pod than the one he
and Rudolph lived in and described Youngster as “short” and “dark
skinned” with two gold teeth and “‘Youngster’ tattooed across his
shoulder blades.” Detective Plumb was not able to identify
4 This interview was video-recorded and played for the jury.
6
Youngster based on this information.5 He and several other
witnesses called by the State testified that Moulder was not known
by the alias or nickname “Youngster.” After about one year, the case
went cold.
In 2013, the case was picked up by a cold-case investigator, who
reached out to Aletha Hughes, who was dating Moulder at the time
of the crimes in 2006 but who had since separated from Moulder and
moved to Indiana. Hughes traveled to Georgia and gave a statement
to the District Attorney’s office on December 18, 2014.6 Her
statement was consistent with her trial testimony, which was as
5 At trial, Detective Plumb testified that he gave Moulder’s description
of “Youngster” to “Ohio Corrections.” He was told that there were several
people in the prison system known as “Youngster,” but there was no one
matching the description Moulder gave. This testimony is a subject of one of
Moulder’s claims of ineffective assistance of counsel, discussed in Division 3 (b)
below.
6 When Hughes arrived in Georgia on December 17, Moulder sent her a
text message saying that he had also traveled to Georgia. He asked her what
hotel she was staying in, offered to hire her a lawyer, told her that she did not
need to talk to the police, and told her she should ride back from Georgia with
him. Hughes testified that Moulder’s messages and his presence in Georgia
“scared” her. After Moulder was arrested, he sent Hughes letters that she
testified had “undertones of threats.”
7
follows. On the evening of July 21, 2006, Moulder called her “in an
urgency” and said that he was at his mother’s house in Georgia and
needed Hughes “to come get him now.” Hughes did not have enough
money to drive from Ohio to Georgia, so Moulder’s mother wired her
money, which Hughes used to rent a car. She started driving that
night, arriving in Georgia by “the early morning hours” of July 22.
She met Moulder, who did not have any belongings with him, in a
parking lot, and then they “immediately” drove back to Ohio.7
Hughes also testified that about two weeks before she drove to
Georgia, Moulder showed her a revolver, and shortly before he left,
he told her that “he and his buddy from prison [were] going
somewhere.” She testified that when Moulder was told soon after
he got back from his trip that police were looking for him, he told
Hughes that “something had happened to his friend, and they
wanted to question him about it.” She asked him, “did he do it, and
he said no.” When she said he needed to talk to the police, Moulder
7 The investigator who interviewed Hughes testified that she said she
arrived in Georgia at 4:30 a.m. and left “after just a short period of time.”
8
responded, “F**k the police.” Hughes had not given the police this
information in 2006 because she had “loved” and “trusted” Moulder.
On December 19, 2014, Moulder was arrested for Rudolph’s
murder. Moulder did not testify at trial. His defense was that he
was not “Youngster,” and that even if he was in Georgia at the time
of the crimes, the State had not proven that he traveled to Georgia
with Rudolph or was ever in Rudolph’s hotel room; Moulder
emphasized the lack of forensic evidence at the scene of Rudolph’s
murder and argued that the State had not completed a thorough
investigation.
2. Moulder argues that the evidence presented at trial was not
sufficient to support his convictions for the crimes allegedly
committed in 2006 under Jackson v. Virginia, 443 U.S. 307 (99 SCt
2781, 61 LEd2d 560) (1979).8 In evaluating the sufficiency of the
evidence as a matter of constitutional due process, we view all of the
evidence presented at trial in the light most favorable to the verdicts
8 Moulder does not challenge the sufficiency of the evidence supporting
his conviction for influencing a witness in 2014.
9
and consider whether any rational juror could have found the
defendant guilty beyond a reasonable doubt of the crimes of which
he was convicted. See Jackson, 443 U.S. at 319; Clark v. State, 315
Ga. 423, 427 (883 SE2d 317) (2023). “We leave to the jury the
resolution of conflicts or inconsistencies in the evidence, credibility
of witnesses, and reasonable inferences to be derived from the facts.”
Clark, 315 Ga. at 427 (citation and punctuation omitted). Moulder
also challenges his convictions for the 2006 crimes under OCGA
§ 24-14-6, which says: “To warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other reasonable
hypothesis save that of the guilt of the accused.” “Whether a
hypothesis is reasonable or not is for the jury to decide.” Davenport
v. State, 309 Ga. 385, 388-389 (846 SE2d 83) (2020) (citation and
punctuation omitted).
The evidence discussed above was sufficient to support
Moulder’s convictions as a matter of federal due process under
Jackson. The evidence was also sufficient as a matter of Georgia
10
statutory law under OCGA § 24-14-6 to support the jury’s rejection
of Moulder’s hypothesis that he was not “Youngster” and that
Youngster (not Moulder) killed Rudolph. See, e.g., Winston v. State,
303 Ga. 604, 607 (814 SE2d 408) (2018) (holding that the evidence
was sufficient under Jackson and OCGA § 24-14-6, where “the
evidence showed appellant was the last person known to be with the
victim at the time the killing took place”).
3. Moulder next argues that his counsel provided ineffective
assistance in five ways. To prevail on a claim of ineffective
assistance of counsel, a defendant generally must show that
counsel’s performance was deficient and that the deficient
performance resulted in prejudice to the defendant. See Strickland
v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984). To satisfy the deficiency prong, a defendant must
demonstrate that his attorney “performed their duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms.” Bates v. State, 313
Ga. 57, 62 (867 SE2d 140) (2022). See also Strickland, 466 U.S. at
11
687-688. To satisfy the prejudice prong, a defendant must establish
a reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different. See
Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.” Bates, 313 Ga. at
63.
(a) At trial, the State alleged that OCGA § 17-3-2 (1) applied
to toll the seven- and four-year statutes of limitation that would
have otherwise barred prosecution of the non-murder crimes from
2006 for which Moulder was charged.9 The jury found Moulder
guilty of those crimes, indicating that it found that the State had
proven that the tolling provision it alleged applied. Moulder
contends that the evidence did not support the allegation that OCGA
§ 17-3-2 (1) applied and argues that his trial counsel provided
9 OCGA § 17-3-2 says: “The period within which a prosecution must be
commenced under Code Section 17-3-1 or other applicable statute does not
include any period in which: (1) The accused is not usually and publicly a
resident within this state.”
12
ineffective assistance by failing to make that argument at trial.
In criminal cases, the statute of limitation runs . . . from
the time of the criminal act to the time of indictment.
Where an exception is relied upon to prevent the bar of
the statute of limitation[ ], it must be alleged and proved.
Indeed, the State bears the burden at trial to prove that a
crime occurred within the statute of limitation, or, if an
exception to the statute is alleged, to prove that the case
properly falls within the exception.
Taylor v. State, 306 Ga. 277, 286 (830 SE2d 90) (2019) (citations and
punctuation omitted).
Based on actions Moulder allegedly committed with respect to
Rudolph in July 2006, the grand jury charged Moulder in March
2015 with two counts of armed robbery, which has a seven-year
statute of limitation, see OCGA § 17-3-1 (b), and possession of a
firearm during the commission of a crime, which has a four-year
statute of limitation, see OCGA § 17-3-1 (c).10 It is undisputed that
10 OCGA § 17-3-1 (b) provides a seven-year limitation period for “crimes
punishable by death or life imprisonment,” and armed robbery is punishable
by life in prison, see OCGA § 16-8-41 (b). OCGA § 17-3-1 (c) provides a four-
year limitation period for other felonies. Moulder was also charged with
aggravated assault, but Moulder’s claim of ineffective assistance of counsel as
to that count is moot because that count merged into Moulder’s conviction for
murder. See Sims v. State, 312 Ga. 322, 330 (862 SE2d 534) (2021) (“[B]ecause
no conviction was entered on Sims’s aggravated assault charge, his ineffective
13
those crimes were indicted after their respective limitation periods
had run, but the State alleged in the indictment that OCGA § 17-3-
2 (1) tolled the statutes of limitation because Moulder was “not
usually and publicly a resident within the State of Georgia from July
21, 2006 through December 18, 2014.”
Although the jury was not given a specific instruction about the
alleged tolling provision, the jury was instructed that the State had
“to prove every material allegation of the indictment.” See Taylor,
306 Ga. at 286 (explaining that a tolling allegation is a “material
allegation”). The prosecutor noted in his closing argument that the
State had to prove the tolling provision alleged, and argued that the
State met this obligation because it had proven that Moulder “went
back to Ohio” and was not in Georgia “from 2006 to 2014.”
Moulder’s trial counsel did not mention tolling in his closing
argument. And although Moulder does not contest that he stayed
assistance claim is moot to the extent that trial counsel’s alleged
ineffectiveness relates to that crime[.]”). Murder has no limitation period. See
OCGA § 17-3-1 (a).
14
in Ohio during the alleged tolling period, he contends that his
counsel’s failure to argue that the evidence failed to show that he
“absconded” from Georgia to Ohio constituted ineffective assistance
because if counsel had made such an argument, the jury would have
concluded that the State failed to prove the alleged tolling provision
and would not have found Moulder guilty of the 2006 non-murder
crimes.
As noted above, OCGA § 17-3-2 (1) tolls the period within which
a prosecution must be commenced for “any period” in which “[t]he
accused is not usually and publicly a resident within this State.”
This Court has explained that under this provision, “[i]f the offender
shall abscond from this State, or so conceal himself that he cannot
be arrested, such time during which he has been absent from the
State, or concealed, shall not be computed or constitute any part of
said several limitations.” Danuel v. State, 262 Ga. 349, 352 (418
SE2d 45) (1992). Danuel defined “abscond” as
“To go in a clandestine manner out of the jurisdiction of
the courts, or to lie concealed, in order to avoid their
process. To hide, conceal, or absent oneself clandestinely,
15
with the intent to avoid legal process. Postponing
limitations. Fleeing from arresting or prosecuting officers
of this state.”
Id. (citing Black’s Law Dictionary, 5th Edition).11
As shown in the evidence discussed above, the State presented
strong evidence from which the jury could conclude that Moulder
“absconded” from Georgia. See Danuel, 262 Ga. at 352. He called
his girlfriend to pick him up “in an urgency.” His mother wired his
girlfriend money so she could make the drive that night. She drove
through the night, arrived in the early morning hours, and met him
in a parking lot. They then drove back to Ohio “immediately.”
Given this evidence, even assuming counsel was deficient for not
raising an argument that Moulder did not “abscond,” Moulder has
failed to show that there is a reasonable probability the jury would
have been persuaded by any such argument. See Vasquez v. State,
11 Danuel interpreted a former version of OCGA § 17-3-2 (1), but we have
held that the former version has the same meaning as the current statute. See
Vasquez v. State, 306 Ga. 216, 224 (830 SE2d 143) (2019) (citing Danuel, 262
Ga. at 251). The District Attorney asks us to overrule Danuel and conclude
that there is no abscondment or concealment requirement in OCGA § 17-3-2
(1), but because Moulder’s claim fails even under Danuel, we decline to
consider the State’s request.
16
306 Ga. 216, 218-219, 224 (830 SE2d 143) (2019) (holding that the
evidence “authorized the jury to determine that Vasquez had
absconded and that the statute of limitation was tolled” when the
defendant and his wife left their Georgia home with “food on the
table” and “clothing strewn about the house” and went to Mexico,
did not tell any family members they were leaving, and later lied to
family members about their reason for being in Mexico). 12 Thus,
Moulder has failed to demonstrate prejudice, and his claim of
ineffective assistance fails. See, e.g., Mathews v. State, 314 Ga. 360,
369 (877 SE2d 188) (2022) (holding that counsel did not provide
ineffective assistance by failing to argue to the jury that the evidence
failed to prove that the appellant acted as a party to the crime where
there was strong evidence of the appellant’s guilt); Gaston v. State,
12 Moulder argues that there is no evidence that he concealed himself
while he was in Ohio. However, under Danuel, the State does not have to prove
concealment for this tolling statute to apply. See Danuel, 262 Ga. at 352(explaining that the former OCGA § 17-3-2 (1) applied “[i]f the offender shall
abscond from this State, or so conceal himself that he cannot be arrested”)
(Emphasis added, citation and punctuation omitted). As discussed above,
there was compelling evidence that Moulder absconded from Georgia’s
jurisdiction.
17
307 Ga. 634, 638 (837 SE2d 808) (2020) (holding that the appellant
failed to prove prejudice based on counsel’s failure to request a self-
defense instruction because there was strong evidence disproving
self-defense).13
(b) Moulder next argues that trial counsel provided ineffective
assistance by failing to raise hearsay and Confrontation Clause
objections to testimony from Detective Plumb. On direct
examination, the State asked Detective Plumb, “what, if anything,
[he] did during the course of [his] investigation” to “look into the
defendant’s assertions that there was a third party, Youngster, who
was not him.” The detective responded:
Mr. Moulder gave me a description. So I contacted the
Ohio Corrections, their intelligence unit in which they
record all kinds of data about every prisoner that goes
through the prison system. One of the things they do
record are tattoos. They record those just like
fingerprints. And I provided him with the—the physical
13 To the extent Moulder claims counsel should have moved for a directed
verdict based on the State’s failure to prove tolling of the statutes of limitation,
this contention also fails because the evidence authorized the jury to conclude
that he absconded. See Mathews, 314 Ga. at 369 (rejecting the appellant’s
claim that counsel provided ineffective assistance by failing to move for a
directed verdict because there was sufficient evidence to support his
convictions).
18
description: Shorter than Moulder, tattoo on his shoulder,
black male, and provided that to them. And they were
able to identify several Youngster names, but never
anyone with a tattoo or associated with the pod that he
referenced to.
Even assuming that the detective’s testimony that prison officials
were unable to find someone matching Moulder’s description of
“Youngster” was hearsay and a violation of the Confrontation Clause
contained in the Sixth Amendment to the United States
Constitution, Moulder has failed to show that no reasonable
attorney would have failed to object to this testimony.
“[R]easonable decisions as to whether to raise a specific
objection are ordinarily matters of trial strategy and provide no
ground for reversal.” Bates, 313 Ga. at 67 (citation and punctuation
omitted). Although the detective’s testimony somewhat undermined
Moulder’s argument that he was not “Youngster,” insofar as it
revealed that Moulder’s description of Youngster did not match any
records from the Ohio correction system, not all of the alleged
hearsay was detrimental to Moulder. To that end, the detective also
said that the prison official he spoke with identified several people
19
named Youngster, which supported Moulder’s argument that he was
not Youngster—by showing that other people in the prison used the
name Youngster and could have been the person to whom Rudolph
was referring, notwithstanding the fact that they did not match
every detail given by Moulder.
Also, in closing argument, counsel explained to the jury that he
did not raise “a constant bunch of objections, because . . . I wanted
you to hear the evidence.” By not objecting to the detective’s
testimony, counsel allowed the jury to hear about the investigation
the State had done to find “Youngster,” and then emphasized in his
closing argument that the investigation was not sufficient. For
example, counsel pointed out that the State did not ask for prison
records to try to find a person who (unlike Moulder) matched
Marshall’s description of Youngster as someone who got in trouble
in prison for throwing a heated towel in someone’s face. Counsel
also noted that the State did not ask the Ohio Department of
Corrections for contact information for people who knew Rudolph
and could have been asked to identify Youngster, and suggested that
20
the State should have asked prison guards if they remembered the
housing pod Rudolph was in and the other people who were also
housed in it.
Thus, there was a reasonable strategic reason for counsel not
to object to the detective’s fairly summary statement that an
unnamed person from the “intelligence unit” in “Ohio Corrections”
could not find anyone matching Moulder’s physical description of
Youngster. See Fuller v. State, 316 Ga. 127, 131 (886 SE2d 798)
(2023) (holding that counsel’s performance was not deficient by
failing to raise a “best evidence” objection to testimony about a
message the appellant allegedly sent when counsel “emphasized the
missing message to the jury in support of his broader argument
attacking [the witness’s] credibility and the sufficiency of the State’s
investigation into the case”); Bates, 313 Ga. at 67 (holding that
counsel’s performance was not deficient where he made a strategic
decision not to object to a witness because, although the witness
gave some testimony that was detrimental to the appellant, counsel
was able to cross-examine the witness and “elicit helpful
21
testimony”); Marshall v. State, 299 Ga. 825, 827 (792 SE2d 350)
(2016) (holding that counsel’s performance was not deficient where
he did not object to the introduction of pretrial statements of two
witnesses “based on his determination that the recordings were
more damaging to these witnesses’ overall credibility than they were
corroborative of their trial testimony”). 14
Moreover, Moulder has failed to prove prejudice because he has
failed to show that if counsel had raised an objection, the State could
not have rephrased the question to elicit the same information
without relying on hearsay. See Smith v. State, 298 Ga. 406, 415
(782 SE2d 269) (2016) (concluding that a detective’s testimony that
she identified two other persons of interest named Chris but
14 Moulder points out that at the motion-for-new-trial hearing, counsel
testified, “If I failed to object to hearsay, then obviously, I made a mistake,”
and said that he “hoped” he preserved the objection with a motion in limine he
filed objecting to other out-of-court statements. However,
we are not limited in our assessment of the objective
reasonableness of lawyer performance to the subjective reasons
offered by trial counsel for his conduct. If a reasonable lawyer
might have done what the actual lawyer did—whether for the
same reasons given by the actual lawyer or different reasons
entirely—the actual lawyer cannot be said to have performed in an
objectively unreasonable way.
Hurt v. State, 298 Ga. 51, 57 (779 SE2d 313) (2015).
22
ultimately “was able to verify that they did not have involvement”
in the crimes was not clearly hearsay or subject to a Confrontation
Clause objection, because the detective did not repeat the substance
of what someone else told her but rather explained summarily why
she had concluded that the other two men named Chris were not
viable suspects). See also Davis v. State, 306 Ga. 140, 149 (829 SE2d
321) (2019) (holding that the appellant failed to prove prejudice from
counsel’s failure to object to leading questions “because an objection
likely would not have prevented the admission of the testimony,
either because the trial court would have permitted the questions to
be answered . . . or because the prosecutor could have rephrased his
questions”). Thus, this claim of ineffective assistance of counsel
fails.
(c) Moulder argues that his counsel provided ineffective
assistance by failing properly to advise Moulder about whether his
prior convictions could be used to impeach him if he testified. OCGA
§ 24-6-609 pertains to impeachment by conviction of a crime, and
subsection (b) says, with emphasis added:
23
Evidence of a conviction under this Code section shall not
be admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of
the witness from the confinement imposed for such
conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial
effect. However, evidence of a conviction more than ten
years old, as calculated in this subsection, shall not be
admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such
evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
Before trial, the State filed a “Disclosure Certificate,” which
stated that “[a]ll convictions will be used . . . for impeachment
pursuant to OCGA § 24-6-609.” At the time of his trial in 2018,
Moulder had three prior felony convictions: robbery in October 1999
and tampering with evidence and conspiracy to commit aggravated
burglary in August 2000. There was no clear evidence presented as
to when Moulder was released from “confinement imposed for
[these] convictions,” but we will assume for the sake of this
argument that it was more than 10 years before trial.
At the close of the State’s evidence at trial, Moulder’s counsel
24
informed the court that he had spoken to Moulder about Moulder’s
right to testify and “advised him that if he testifies, the State has a
right to cross-examine him, and that the State could attempt to
impeach him with some of his prior convictions.” Moulder confirmed
that he and his lawyer had “talked about all that,” and Moulder
informed the court that he had chosen not to testify.
At the motion for new trial hearing, trial counsel testified that
he told Moulder that “if he chose to testify, the State could attempt
to impeach him with his criminal history,” and counsel testified that
his understanding was that if a conviction is older than ten years, it
is “the court’s discretion to let it in.” Moulder testified at the motion-
for-new-trial hearing that the “sole reason” he did not testify at trial
was because his counsel told him, “You take the stand, they’re going
to bring up your past.” In denying Moulder’s motion for new trial,
the trial court concluded that Moulder’s counsel “properly advised
him” about this issue.
Moulder has failed to demonstrate that his counsel performed
deficiently in providing advice on this issue. On the contrary,
25
counsel’s statement that the State “could attempt” to use Moulder’s
prior convictions as impeachment was correct. See OCGA § 24-6-
609 (b) (providing that the court can admit such convictions if “the
court determines, in the interests of justice, that the probative value
of the conviction . . . substantially outweighs its prejudicial effect”
and the proponent has given sufficient advance written notice). And
it was reasonable for counsel to share this information with Moulder
as something Moulder should consider in deciding whether to
testify. Thus, Moulder’s claim of ineffective assistance of counsel
fails. See Warren v. State, 314 Ga. 598, 604 (878 SE2d 438) (2022)
(denying the appellant’s claim of ineffective assistance of counsel
and explaining, “it is generally enough for counsel to advise the
defendant about the ‘pros and cons’ of testifying and explain that the
ultimate choice is the defendant’s to make, whether the defendant
testifies and then regrets it . . . or does not testify and later wishes
he had”).
(d) Moulder argues that his trial counsel provided ineffective
assistance by misrepresenting the reasonable-doubt standard with
26
the following italicized statements. Near the beginning of his
closing argument, counsel said:
[I]t boils down to this. If—if they have proven to you,
beyond a reasonable doubt, and there’s no fancy words for
beyond a reasonable doubt, what does your gut say to you?
If your gut says, “You know what? I know he did it,” then
find him guilty. If you go back there and you deliberate
and you say, “Well, this—this just really doesn’t make
sense to me,” then he’s not guilty.
At the end of his argument, counsel said:
[I]f your heart of hearts says he did it when you back there,
find him guilty. But I suspect when you go back and you
look at everything logically, you’ll agree with me that
there isn’t any proof that he did this. And there’s a lot out
there that you just don’t know, which would have been
helpful.
At the motion-for-new-trial hearing, Moulder’s trial counsel
testified: “I did not believe, based on the evidence that was
presented, that [the jurors] would find, in their heart of hearts, that
[Moulder] did it, and I knew that the court was going to instruct the
jury as to the law.” 15
15 The trial court charged the jury that it was the court’s duty “to instruct
you on that law” and that “opening or closing remarks of the attorneys or
questions asked by the attorneys” were not evidence. The court also defined
27
With respect to closing argument, “defense counsel is
permitted wide latitude . . . and is not ineffective simply because
another attorney might have used different language or placed a
different emphasis on the evidence.” Anthony v. State, 311 Ga. 293,
298 (857 SE2d 682) (2021). Furthermore, “a closing argument is to
be judged in the context in which it is made.” Id. Here, reading
counsel’s closing argument as a whole, counsel used the phrases at
issue to emphasize the lack of evidence presented by the State,
knowing that the trial court would instruct the jury on the legal
definition of reasonable doubt. Moulder has not overcome the strong
presumption that counsel’s performance fell within the wide range
of reasonable professional assistance. See, e.g., Anthony, 311 Ga. at
298 (holding that counsel’s strategic decision to concede in closing
argument that his client was guilty of lesser charges and focus on
reasonable doubt:
A reasonable doubt means just what it says. A reasonable doubt
is a doubt of a fair-minded, impartial juror honestly seeking the
truth. A reasonable doubt is a doubt based upon common sense
and reason. It does not mean a vague or arbitrary doubt, but is a
doubt for which a reason can be given arising from a consideration
of the evidence, a lack of evidence or a conflict in the evidence.
28
arguing that his client did not have the intent for malice murder was
not deficient).
(e) Finally, Moulder argues that counsel provided ineffective
assistance by not objecting to a jury charge about statements of fact
made during formal court proceedings. At trial, Moulder’s counsel
requested the following jury instruction: “An admission in judicio is
binding and conclusive as to the party who made it.” The trial court
agreed to give the instruction but modified it slightly, without
objection from trial counsel, and instructed the jury: “Statements of
fact made during formal court proceedings are binding and
conclusive as against the party who made them.”
In his closing argument, trial counsel discussed evidence about
the inconsistency between Moulder’s December 18 arrest warrant—
in which Detective Plumb “swore under oath” that Moulder shot the
victim—and a December 20 search warrant affidavit—for which
Detective Plumb gave information to an Ohio police officer, who
“swore under oath” that “the victim was shot and killed by an
unknown suspect.” Counsel then explained:
29
I ask[ed] for a jury charge, and it’s basically called
admission in judicio; right? You swear under oath that
something is true, then—then it can be held against you.
They swore under oath that an unknown suspect killed
Anthony Rudolph one day after they swore under oath
that Joshua Moulder did it. Statements of facts made
during formal court proceedings are binding and
conclusive as against the party who made them. . . .
So the police swore under oath that he’s the shooter
one day. And then the next day, they say an unknown
suspect shot him. And that also was under oath. . . .
Why is there a difference? Because here’s the thing.
In the federal level when they go to arrest somebody, they
have all their ducks in a row. They essentially nailed
down their case. They are going to arrest you and prepare
the indictment immediately. . . . But see, in the state
system, they arrest and then they investigate.
At the motion-for-new-trial hearing, counsel explained that he
requested this instruction because he wanted to highlight
inconsistencies in affidavits completed by investigators.
“Decisions on requests to charge involve trial tactics to which
we must afford substantial latitude, and they provide no grounds for
reversal unless such tactical decisions are so patently unreasonable
that no competent attorney would have chosen them.” Smith v.
State, 306 Ga. 556, 558 (832 SE2d 379) (2019). Moulder has not
shown that counsel’s tactical decision was patently unreasonable.
30
Counsel requested the instruction to make an argument about the
warrants, and in closing, he used the instruction to argue that the
police’s swearing under oath that the shooter was unknown
undermined the validity of their identification of Moulder as the
shooter and of their overall investigation. 16 Because this was not a
patently unreasonable strategy, Moulder’s claim of ineffective
assistance of counsel fails. See Daughtie v. State, 297 Ga. 261, 266
(773 SE2d 263) (2015) (“The fact that another attorney may have
pursued a different strategy does not render trial counsel
ineffective.”).17
16 Moulder argues that because he was a “party” in the case, the
instruction led the jury to credit Moulder’s statements against him, such as his
statements to Hughes that something happened to his friend. However, none
of Moulder’s out-of-court statements were made during “formal court
proceedings,” and there is no indication in the record that the jury applied the
instruction as Moulder fears. See Nundra v. State, 316 Ga. 1, 16 (885 SE2d
790) (2023) (“We typically presume juries follow the instructions that they are
given by the trial court, absent evidence to the contrary.”).
17 Moulder argues that the deficiencies he has alleged in his claims of
ineffective assistance, when viewed in the aggregate, prejudiced his trial. See
Lewis v. State, 312 Ga. 537, 547 (863 SE2d 65) (2021) (“It is the prejudice
arising from counsel’s errors that is constitutionally relevant, not that each
individual error by counsel should be considered in a vacuum.”). However, we
have assumed counsel’s deficiency with respect to a single claim of ineffective
assistance and concluded that counsel was not deficient in any other respect.
31
Judgment affirmed. All the Justices concur.
Therefore, this claim presents nothing additional for us to review. See, e.g.,
Wynn v. State, 313 Ga. 827, 840-841 (874 SE2d 42) (2022) (concluding in the
context of the evaluation of the cumulative effect of alleged trial court errors,
that “there is no basis for evaluating the cumulative effect of errors because we
have identified only one error and rejected Wynn’s other claims”).
32