Hudson v. State
| Docket Number: | 2010-KP-00796-COA Linked Case(s): 2010-KP-00796-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-18-2011 Opinion Author: Irving, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Cautionary instruction - Victim’s criminal record - M.R.E. 404(a)(2) - Multi-count indictment - Section 99-7-2(1) - Section 99-7-(1)(a) - Illegal sentence - Section 99-19-81 - Acquittal - Change of venue - Right to testify Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-15-2010 Appealed from: Lincoln County Circuit Court Judge: Michael M. Taylor Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO TWENTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION Case Number: 09-085-LT |
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| Party Name: | Attorney Name: | |||
| Appellant: | George Albert Hudson, Jr. |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault - Cautionary instruction - Victim’s criminal record - M.R.E. 404(a)(2) - Multi-count indictment - Section 99-7-2(1) - Section 99-7-(1)(a) - Illegal sentence - Section 99-19-81 - Acquittal - Change of venue - Right to testify |
| Summary of the Facts: | George Hudson Jr. was convicted of aggravated assault. He was sentenced as a habitual offender to twenty years without eligibility for parole or probation. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Cautionary instruction Hudson argues that the circuit court erred in failing to grant a cautionary instruction for the victim’s testimony given that, at the time of the trial, the victim was incarcerated for possession of marijuana. However, the record is void of any request for a cautionary instruction by Hudson. Thus, he is procedurally barred from raising the issue on appeal. In addition, Hudson was not entitled to a cautionary instruction. There is no requirement for such an instruction where the victim was incarcerated for an unrelated crime. Issue 2: Victim’s criminal record Hudson argues that the circuit court erred when it failed to admit the victim’s criminal record into evidence. Because Hudson never sought to introduce the criminal record into evidence, he is procedurally barred from raising the issue on appeal. In addition, evidence of the victim’s criminal record would have been inadmissible character evidence under M.R.E. 404(a)(2). Issue 3: Illegal indictment Hudson argues that his multi-count indictment, charging him with armed robbery and aggravated assault, was illegal. Hudson takes issue with the fact that the charges from the multi-count indictment arose from a single act. Based on the plain language of section 99-7-2(1), it was not illegal for the State to file a multi-count indictment charging Hudson with armed robbery and aggravated assault. Section 99-7-(1)(a) specifically permits crimes stemming from the same act or transaction to be charged in the same indictment. Based on the victim’s testimony, Hudson shot him after he robbed him of his economic stimulus check (i.e., Hudson’s criminal acts arose from the same act or transaction). Hudson also argues that his indictment is illegal because it failed to apprise him of the charges he faced and prevented him from preparing a proper defense. However, the record completely belies this contention. The indictment tracks the language of the statutes proscribing armed robbery and aggravated assault and cites the applicable statutes. As a general rule, an indictment which tracks the language of a criminal statute is sufficient to inform the defendant of the charge against him. Issue 4: Illegal sentence Hudson argues that the sentence imposed on him is illegal because it does not allow for parole or probation. As a habitual offender, the circuit court was required under section 99-19-81 to sentence Hudson to the maximum term of imprisonment for aggravated assault–twenty years–without eligibility for parole or probation. Because Hudson’s sentence does not exceed the maximum term allowed for aggravated assault, it will not be disturbed on appeal. Issue 5: Acquittal Hudson argues that armed robbery encompasses the elements of aggravated assault, and, therefore, his acquittal of armed robbery precludes his conviction for aggravated assault. There is no merit in Hudson’s argument that the crime of aggravated assault is encompassed by armed robbery. A jury could certainly find Hudson guilty of aggravated assault even if it did not find him guilty of armed robbery because the statutory elements of the two crimes differ. Issue 6: Change of venue Hudson argues that the circuit court erred when it failed to grant a change of venue. However, there is no evidence that Hudson sought a change of venue. Issue 7: Right to testify Hudson argues that the circuit court did not advise him of his right to testify or not to testify. However, the record completely belies Hudson’s allegation. The circuit court adequately advised Hudson of his right to testify. |
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