Moulder v. StateMoulder v. State
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
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
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
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
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.
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
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
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
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
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
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 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
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
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
As noted above,
“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,
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, 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, 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
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
“[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
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
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
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
(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.
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
At the close of the State‘s evidence at trial, Moulder‘s counsel
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,
(d) Moulder argues that his trial counsel provided ineffective assistance by misrepresenting the reasonable-doubt standard with
[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
(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:
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.
Notes
Hurt v. State, 298 Ga. 51, 57 (779 SE2d 313) (2015).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.
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.