Scudder v. State, 298 Ga. 438

In 1998 brothers Crishon and Jesse Woodard were shot and killed outside Scudder’s apartment; Scudder returned with a semi-automatic pistol and fired multiple shots.
Scudder and co-defendant Kenorris Dorsey were indicted in 2004 on counts including malice murder, felony murder, aggravated assault, two counts of unlawful possession of a firearm during the commission of a felony, and unlawful possession of a firearm by a convicted felon.
After a 2006 trial, the jury convicted Scudder of two murders, related assault counts (merged into the murders), unlawful possession of a firearm by a felon, and two counts of unlawful possession of a firearm during the commission of a felony; Scudder received life sentences for the murders and a consecutive five-year term for felon-in-possession.
Scudder appealed, asserting errors from (1) the judge’s private chambers meeting with a witness, (2) admission of certain testimony bearing on witness credibility, (3) the jury charge on intent and other instructions, and (4) ineffective assistance for failure to object to an alleged presumption-of-truth charge.
The Supreme Court of Georgia found the evidence sufficient, rejected Scudder’s trial-error and ineffective-assistance claims, but held the trial court erred by failing to sentence Scudder on the two counts of unlawful possession of a firearm during the commission of a felony and remanded for sentencing on those counts.

Issue	Scudder’s Argument	State’s Argument	Held
Judge’s private chambers meeting with witness	Meeting denied Scudder his right to be present during a critical stage	No prejudice; counsel and defendant were present in courtroom and did not object	Waiver/acquiescence: counsel waived right and Scudder acquiesced; no reversible error
Witness testimony undermining another witness’ credibility	Testimony was an improper comment on credibility by a witness	Testimony did not harm Scudder and undercut adverse witness	Even if improper, testimony favored Scudder; no harm
Jury instruction on intent (alleged suggestion judge believed defendants shot victims)	Charge intimated judge’s belief that defendants committed shootings	Charge, read as whole, properly left intent as a jury question and required proof of all elements beyond a reasonable doubt	No violation of OCGA § 17-8-57; instruction not prejudicial
Ineffective assistance for failure to object to alleged presumption-of-truth charge	Trial counsel should have objected when court supposedly told jury witnesses are presumed truthful	Record does not show such a charge; related instructions were proper	No ineffectiveness: alleged charge not in record; closest instruction permissible

Jackson v. Virginia, 443 U.S. 307 (established standard for sufficiency of evidence review)
Holsey v. State, 271 Ga. 856 (right of defendant to be present at critical stages)
Hampton v. State, 282 Ga. 490 (defendant’s presence may be waived; waiver standards)
Zamora v. State, 291 Ga. 512 (waiver and acquiescence to absence from critical proceedings)
Marshall v. State, 276 Ga. 854 (harmlessness of certain witness credibility issues)
Parker v. State, 276 Ga. 598 (OCGA § 17-8-57 and when a charge impermissibly intimates judge’s view)
Alexander v. State, 180 Ga. App. 640 (context for jury instruction analysis)
Mallory v. State, 271 Ga. 150 (properness of charge resolving conflicts without imputing falsehood)
Clark v. State, 279 Ga. 243 (unlawful possession during commission of a crime is distinct from predicate felony)
Gutierrez v. State, 285 Ga. 878 (firearm-possession convictions may attach to each victim in a continuous crime spree)
Nazario v. State, 293 Ga. 480 (appellate court’s role in detecting merger issues)
Hulett v. State, 296 Ga. 49 (remedy and resentencing when merger is incorrect)
Malcolm v. State, 263 Ga. 369 (merger principles applied to related counts)