State v. Hudson , 2012 Ohio 4928 ( 2012 )

[Cite as State v. Hudson, 2012-Ohio-4928.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96986
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RIODEJUONEROL HUDSON
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-546677
Application for Reopening
Motion No. 456353
RELEASE DATE: October 23, 2012
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, OH 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} On June 26, 2012, the applicant, Riodejuonerol Hudson, pursuant to App.R.
26(B), applied to reopen this court’s judgment in State v. Hudson, 8th Dist. No. 96986,
2012-Ohio-1345, in which this court affirmed Hudson’s conviction for murder. Hudson
asserts that his appellate counsel should have argued that his trial counsel was ineffective
for failing to request a jury instruction on “defense of another.” On August 3, 2012, the
state of Ohio, through the Cuyahoga County Prosecutor, filed a brief in opposition. For
the following reasons, this court denies the application to reopen.
{¶2} On August 17, 2010, Hudson was at a hospital with his girlfriend who was
about to have their baby. Hudson has long suffered from seizures and needed to take his
medicine, which was back at his home. Thus, his mother, accompanied by two friends,
drove Hudson to his home and parked in the street in front of the house. When Hudson
emerged from the car, Mario Seaborn, an acquaintance and neighbor of Hudson, began
yelling profanities and threats toward Hudson. Hudson testified that he asked Seaborn
to leave him alone, and Seaborn replied, “shut the * * * up before I kill you.” Hudson
then asked Seaborn to respect his mother, and the victim replied by hitting Hudson in the
face with a chain. (Tr. 573-574.) A fight ensued. When it appeared that the fight
was finished, Hudson went into his home and retrieved his medicine and a knife.
{¶3} Hudson claimed that he intended to use the knife to scare Seaborn so that he
could get back in the car, but he did not expect Seaborn to just walk away. Hudson and
his mother testified that Seaborn was making threats to both of them. The mother stated
that Seaborn pushed her down when she tried to stop the fight. Other witnesses testified
that Hudson charged Seaborn. When the fight resumed, Hudson mortally wounded
Seaborn by stabbing him.
{¶4} At trial, Hudson claimed self-defense and sought to prevent a jury instruction
on the lesser included offense of voluntary manslaughter. The trial judge instructed on
self-defense and voluntary manslaughter. Nevertheless, the jury found Hudson guilty of
murder, and the trial judge sentenced him to 15 years to life.
{¶5} On appeal, counsel argued that the verdict was against the manifest weight of
the evidence, that jurors were improperly excluded pursuant to Batson, and that Ohio’s
law on self-defense is improper — the burden of establishing self-defense should not be
on the defendant. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986). Now Hudson submits that his appellate counsel should have argued that his trial
counsel was ineffective for not requesting a jury instruction on the defense of others.
{¶6} In order to establish a claim of ineffective assistance of counsel, the applicant
must demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660
N.E.2d 456.
{¶7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of
an attorney’s work must be highly deferential. The Court noted that it is all too tempting
for a defendant to second-guess his lawyer after conviction and that it would be all too
easy for a court, examining an unsuccessful defense in hindsight, to conclude that a
particular act or omission was deficient. Therefore, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
{¶8} Specifically, in regard to claims of ineffective assistance of appellate counsel,
the United States Supreme Court has upheld the appellate advocate’s prerogative to
decide strategy and tactics by selecting what he thinks are the most promising arguments
out of all possible contentions. The court noted: “Experienced advocates since time
beyond memory have emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most on a few key issues.”
Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Indeed, including weaker arguments might lessen the impact of the stronger ones.
Accordingly, the Court ruled that judges should not second-guess reasonable professional
judgments and impose on appellate counsel the duty to raise every “colorable” issue.
Such rules would disserve the goal of vigorous and effective advocacy. The Supreme
Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,
1996-Ohio-366, 672 N.E.2d 638.
{¶9} Moreover, even if a petitioner establishes that an error by his lawyer was
professionally unreasonable under all the circumstances of the case, the petitioner must
further establish prejudice: but for the unreasonable error there is a reasonable
probability that the results of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. A court
need not determine whether counsel’s performance was deficient before examining
prejudice suffered by the defendant as a result of alleged deficiencies.
{¶10} Hudson has not established prejudice. If the jury did not find Hudson’s
claim of self-defense persuasive, when Hudson was fighting and Seaborn was making
threats to Hudson, then there is little reason to believe that the jury would have found a
“defense of others” strategy persuasive. The court further notes that although the mother
testified that Seaborn pushed her down, she did not seem to believe that she was in
danger. (Tr. 535.)
{¶11} Moreover, appellate counsel would have had to overcome the presumption
that trial counsel’s plan of straight-forward arguing self-defense was sound trial strategy.
It is understandable how an appellate counsel in the exercise of professional judgment
would decline to argue this issue when confronted with the difficult burden of
undermining trial counsel’s strategy of simply arguing self-defense.
{¶12} Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR