[Cite as State v. Hudson, 2013-Ohio-1444.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98499



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                         RIO HUDSON
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-546677

        BEFORE: Kilbane, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     April 11, 2013
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
T. Allan Regas
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Appellant, Rio Hudson, appeals from the order of the trial court that denied

his petition for postconviction relief. For the reasons set forth below, we affirm.

       {¶2} On February 3, 2011, Hudson was indicted on one count of aggravated

murder in violation of R.C. 2903.01(A) with a forfeiture specification, in connection with

the stabbing death of Mario Seaborn (“Seaborn”). The matter proceeded to a jury trial on

May 25, 2011.

       {¶3} As set forth in Hudson’s direct appeal, State v. Hudson, 8th Dist. No.

96986, 2012-Ohio-1345 (“Hudson I”), the evidence at trial established the following

events:

       Hudson went to a hospital where his girlfriend was about to have a baby.
       Because Hudson had forgotten his seizure medication, his mother drove
       him home to get it. They parked in the street outside his home. Hudson
       saw the victim, Mario Seaborn, and observed him drinking a can of an
       alcoholic beverage, Four Loko. Hudson testified that Seaborn began yelling
       profanities at him and made threats upon his life. The scene escalated into
       a fight in the street between Hudson and Seaborn. There were several
       witnesses to the fight.

       During the fight, Hudson was observed striking Seaborn with a bottle and
       Seaborn struck Hudson with a chain he wore around his neck. Witnesses
       testified that it appeared the fight was over, and Hudson headed toward his
       house. Hudson testified that Seaborn was threatening his and his mother’s
       lives.

       Hudson proceeded to go into his house to retrieve his medicine. He also
       grabbed a knife. He claimed he intended to use the knife to scare Seaborn
       so that he could get in the car and get back to the hospital, though he did not
       expect Seaborn to just walk away. Witnesses observed Hudson run out of
       the house toward Seaborn. Hudson stated he showed Seaborn the knife
       and asked if he could leave. Seaborn swung his chain at Hudson. The
       two were fighting. Witnesses observed Hudson striking Seaborn, and then
       Seaborn fell to the ground.

Hudson I at ¶ 3-5.

       {¶4} The aggravated murder charge was dismissed by the trial court pursuant to

Crim.R. 29, and the trial court subsequently instructed the jury on the elements of murder,

as well as the inferior-degree offense of voluntary manslaughter and on self-defense.

Hudson was convicted of the lesser charge of murder and was sentenced to a prison term

of 15 years to life.     On direct appeal, Hudson asserted that the State improperly

exercised its peremptory challenges in order to discriminate against him, that the verdict

was against the manifest weight of the evidence, and that it is unconstitutional to require a

defendant to bear the burden of proof in a self-defense claim.

       {¶5} This court affirmed the conviction. Hudson I. As is relevant herein, this

court rejected Hudson’s challenge to the manifest weight of the evidence and stated:

       Our review reflects that Hudson engaged in a fight with Seaborn in the
       street outside his home. In the course of the fight, Hudson was observed
       striking Seaborn with a bottle and Seaborn struck Hudson with a chain.
       Hudson retreated to his home and retrieved a knife. Witnesses observed
       him running out of his home toward Seaborn. Hudson admitted he was
       carrying a knife and displayed it to Seaborn. As they re-engaged in a fight,
       Hudson was observed striking Seaborn, who fell to the ground. Hudson
       dropped a knife and was heard apologizing to Seaborn. Seaborn was
       bleeding from the neck, and 911 was called. Hudson left the scene and
       was later apprehended. While Hudson testified that he did not remember
       stabbing Seaborn, the jury could have found his testimony was self-serving
       and lacked credibility. The stab wound to Seaborn’s neck caused
       quadriplegia and eventually led to the death of Seaborn. Although Seaborn
       did not die instantly, ultimately his death was caused by the neck wound
       that was inflicted. Upon our review, we find the jury could reasonably
       infer from the evidence that Hudson’s purpose in striking Seaborn in the
      neck with a knife was to kill him. Additionally, the jury was entitled to
      reject Hudson’s claim of self-defense.

      Hudson further claims that the evidence, at best, supported a charge of
      voluntary manslaughter. The jury was instructed on both murder and the
      inferior-degree offense of voluntary manslaughter. * * * While there was
      evidence that Seaborn had struck Hudson with a chain during the fight and
      threatened to kill him, the jury could find he had sufficient time to cool off
      when he retreated to his home. Further, the jury could reject his claim that
      he was legally provoked when he returned to the street, charged Seaborn
      with a knife, and stabbed him in the neck.

 Hudson I at ¶ 18-19.

      {¶6} On March 7, 2012, Hudson filed a petition for postconviction relief

pursuant to R.C. 2953.21, claiming that his trial counsel was ineffective.         Hudson

asserted that the jury should have been instructed on defense of another, because the

victim attacked Hudson’s mother, and one of the jurors averred that he “would have liked

to [have seen] the defense of another brought in, it seemed * * * that it applied.” Hudson

also maintained that “at least one juror” erroneously believed that “manslaughter was to

be considered in the event petitioner was found not guilty of murder.”

      {¶7} Hudson additionally asserted that his trial counsel did not properly

investigate the matter and present available witnesses, including Jordan Appleton

(“Appleton”), who Hudson claimed witnessed the altercation; Doug Vest, who could

establish the “lack of violence concerning [Hudson]”; Tracy Jones and Travis Jones, who

could testify regarding Hudson’s good character and “lack of anger or violence”; and

Taushe Moses, the mother of Hudson’s child. Hudson also maintained that his trial

counsel was ineffective for failing to investigate and present evidence concerning “Four
Loko,” a beverage that the victim was reportedly drinking on the night of the stabbing.

Finally, Hudson argued that counsel’s errors cumulatively deprived him of a fair trial.

       {¶8} The trial court determined that Hudson’s claims of ineffective assistance of

trial counsel did not warrant postconviction relief. The court concluded that the claim

regarding an instruction on the defense of another was barred by res judicata. The court

also concluded that Evid.R. 404(A) and Evid.R. 602 barred introduction of the additional

witnesses listed in Hudson’s petition for postconviction relief, and that, in any event,

testimony from these witnesses would have been cumulative, biased, and would not have

changed the result at trial. The court additionally ruled that the newspaper articles and

the Wikipedia article concerning “Four Loko,” were insufficient to warrant a new trial in

the absence of expert testimony supporting the alleged negative effects of this beverage.

Finally, the trial court concluded that the juror’s affidavit regarding his deliberative

process was inadmissible under Evid.R. 606(B) and was insufficient to impeach the

verdict.

       {¶9} Hudson now appeals and assigns seven errors for our review. His first

assignment of error states:

       The doctrine of res judicata did not bar the claims set forth by appellant and

       the trial court’s finding is not supported by the record and violates the

       [Fourteenth Amendment of the Constitution of the United States.]

       {¶10} In determining whether a trial court erred in denying a motion for

postconviction relief without a hearing, the appellate court applies the abuse of discretion
standard. State v. Watson, 126 Ohio App.3d 316, 324, 710 N.E.2d 340 (12th Dist.1998).



       {¶11} In order to obtain postconviction relief, appellant must claim that “there was

such a denial or infringement of [his] rights as to render the judgment void or voidable

under the Ohio Constitution or the Constitution of the United States.”                  R.C.

2953.21(A)(1).

       {¶12} Under the doctrine of res judicata,

       ‘a final judgment of conviction bars a convicted defendant who was
       represented by counsel from raising and litigating in any proceeding except
       an appeal from that judgment, any defense or any claimed lack of due
       process that was raised or could have been raised by the petitioner at the
       trial, which resulted in that judgment of conviction, or on an appeal from
       that judgment.’

State v. Szefcyk, 77 Ohio St.3d 93, 95, 1996-Ohio-337, 671 N.E.2d 233, quoting State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶13} In this matter, Hudson asserted that he had ineffective trial counsel because

his attorney failed to request an instruction on the defense of another, and failed to obtain

a private investigator to find “key witnesses,” including alleged eyewitness Appleton and

various other witnesses, to testify regarding his favorable “characteristics.”

       {¶14} The issue of Hudson’s defense of another, that is, his mother, who

accompanied him to get his medication prior to the attack, was clearly known at the time

of trial, as this court observed in Hudson I.

       Because Hudson had forgotten his seizure medication, his mother drove
       him home to get it. * * * Hudson testified that Seaborn was threatening
       his and his mother’s lives.
Hudson I at ¶ 3-4.

Accordingly, this claim, the claim of defense of another, is based upon evidence in the

original trial record and clearly could have been raised on appeal; therefore, it is barred by

res judicata. State v. Vinzant, 2d Dist. No. 19295, 2003-Ohio-2522, ¶ 24; State v. Young,

10th Dist. No. 05AP-641, 2006-Ohio-1165.

       {¶15} As to the claim that Hudson’s trial counsel should have hired an investigator

to find key witnesses, including alleged eyewitness Appleton, Hudson failed to present an

affidavit from this alleged fact witness or other evidentiary support for this portion of the

claim for relief. R.C. 2953.21(C)

       {¶16} As to Hudson’s claim that trial counsel failed to present other witnesses

concerning his good “characteristics,” we note that decisions as to the evidence to be

introduced and the witnesses to interview are within the purview of defense counsel’s

trial strategy and tactics.     State v. Silverman, 10th Dist. Nos. 06AP-1278-1280,

2007-Ohio-6498; State v. Cline, 10th Dist. No. 05AP-869, 2006-Ohio-4782, ¶ 22. This

rule likewise extends to the decision as to whether or not to call character witnesses.

State v. Williams, 10th Dist. No. 05AP-339, 2006-Ohio-2197, ¶ 28. In any event, these

newly identified individuals did not witness the incident, so there is no basis upon which

we may conclude that Hudson was prejudiced by their absence at trial. As noted by the

trial court, these individuals were not at the scene of the crime and their testimony does

not bear upon the operative facts of this matter. Accord State v. Briscoe, 8th Dist. No.

77832, Ohio App. LEXIS 5505 (Nov. 22, 2000).
         {¶17} In accordance with the foregoing, the first assignment of error is without

merit.

         {¶18} The second assignment of error states:

         An evidentiary hearing should have been conducted since the Appellant

         supported his petition with evidence dehors the record that supported the

         relief he sought and the failure to conduct such hearing violated R.C.

         2953.21 and the Fourteenth Amendment to the federal Constitution.

         {¶19} Before granting a hearing for a petition for postconviction relief, the court

“shall determine whether there are substantive grounds for relief.” R.C. 2953.21(C). The

petitioner must show in his petition for postconviction relief that such errors resulted in

prejudice before a hearing is scheduled. State v. Jackson, 64 Ohio St.2d 107, 112, 413

N.E.2d 819 (1980).

         {¶20} In this matter, Hudson’s claim regarding an instruction on the defense of

another was barred by res judicata. His claim regarding his trial counsel’s failure to

locate alleged eyewitness Appleton was not properly supported. The claim regarding

counsel’s failure to present the other witnesses simply challenged a tactical decision

insofar as counsel did not present testimony from character witnesses.           The claim

regarding the beverage Four Loko is without merit. The claim regarding cumulative

error is without merit in the absence of any other meritorious claim. Accordingly, the

trial court did not err in concluding that Hudson had not established substantive grounds

for relief, so he was not entitled to an evidentiary hearing. R.C. 2953.21(C).
      {¶21} The second assignment of error is without merit.

      {¶22} The third and fourth assignments of error are interrelated and state:

      The trial court erred in failing to allow Appellant to conduct discovery, in

      violation of the Fourteenth Amendment to the federal Constitution.

      The trial court failed to follow well-established rules for resolution of

      federal claims in violation of the federal Constitution.

      {¶23} It is well settled that there is no right to conduct discovery in postconviction

proceedings. State v. Cooey, 9th Dist. Nos. 15895 and 15966,       1994 Ohio App. LEXIS

2281 (May 25, 1994). The court observed:

      An action for postconviction relief based upon a petition to vacate or set
      aside sentence is a civil action. State v. Milanovich (1975), 42 Ohio St.2d
      46, 49, 325 N.E.2d 540. The procedures applicable to such an action,
      however, are those found in Section 2953.21 of the Ohio Revised Code.
      State v. Hiltbrand, 1984 Ohio App. LEXIS 9936 (May 16, 1989), Summit
      App. No. 11550, unreported, at 2. Section 2953.21 does not provide for
      discovery. See State v. Ray, 1986 Ohio App. LEXIS 7790 (July 30, 1986),
      Loraine App. No. 12517, unreported; State v. Smith, 30 Ohio App.3d 138,
      506 N.E.2d 1205 (1986), certiorari denied (1986), 479 U.S. 860, 107 S. Ct.
      208, 93 L.Ed.2d 138.

      {¶24} Accordingly, Hudson had no right to discovery herein.

      {¶25} The third and fourth assignments of error are without merit.

      {¶26} The fifth and sixth assignments of error state:

      Counsel was ineffective under the Sixth and Fourteenth Amendments to the
      federal Constitution for failing to secure an investigator then present
      available defenses.
       Counsel was ineffective under the Sixth and Fourteenth Amendments to the

       federal Constitution for failing to investigate and present the unusual effects

       of Four Loko.

       {¶27} Res judicata bars a petitioner from repackaging evidence or issues that either

were, or could have been, raised in the context of the petitioner’s trial or direct appeal.

State v. Cochran, 10th Dist. No. 12AP-73, 2012-Ohio-4077, ¶ 11.

       {¶28} In order to establish a claim of ineffective assistance of counsel, it must be

shown that an attorney’s performance was deficient and that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

       {¶29} In order to establish deficient performance, it must be shown that, under

the totality of the circumstances, counsel’s representation fell below an objective standard

of reasonableness.     Id. at 688.   A court “must indulge a strong presumption that

counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at

689.   Debatable trial tactics and strategies generally do not constitute deficient

performance. State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, 656 N.E.2d 643.

       {¶30} In order to establish prejudice, it must be shown that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 694. A reasonable probability is “a

probability sufficient to undermine confidence in the outcome” of the proceeding. Id.
       {¶31} As to Hudson’s claim that his trial counsel was ineffective for failing to

request an investigator and for failing to properly investigate the case and present

testimony from Appleton, Doug Vest, Tracy Jones, Travis Jones, and Taushe Moses, this

claim is not well taken for the reasons set forth in our discussion of the first and second

assignments of error. In short, the decisions as to which witnesses to interview are

within the purview of defense counsel’s trial strategy and tactics. “[S]trategic choices

made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Strickland at 690-691. Further, there was no affidavit or

other evidence to support the claim regarding purported eyewitness Appleton.           The

others, as noted by the trial court, were not at the scene of the crime and their testimony

does not bear upon the operative facts of this matter. Accord State v. Briscoe, 8th Dist.

No. 77832, Ohio App. LEXIS 5505 (Nov. 22, 2000).

       {¶32} With regard to Hudson’s claim that his trial counsel was ineffective for

failing to “investigate and present evidence regarding the unusual effects of the alcoholic

beverages that the victim was drinking on the night of his death,” we note that at trial,

Hudson testified that he observed the victim, Seaborn, drinking a can of an alcoholic

beverage, Four Loko, and Seaborn began yelling profanities at Hudson and made threats

upon his life. Hudson I. The evidence presented by defense counsel therefore linked

the beverage to the victim’s aggressiveness. In any event, the articles submitted by

Hudson state that some health officials believe that Four Loko is dangerous to consumers,

may “delay feelings of drunkenness,” “has potential health risks,” that individuals who
“combine alcohol and caffeine are more likely to suffer alcohol-related injuries,” and

“may take risks that they otherwise might not take,” and may experience “dehydration” or

“blackouts.” As such, the evidence “does not advance the petitioner’s claim beyond

mere hypothesis and a desire for further discovery.” State v. Lawson, 103 Ohio App.3d

307, 659 N.E.2d 362 (12th Dist.1995).

       {¶33} With regard to Hudson’s claim that “at least one juror” erroneously believed

that “manslaughter was to be considered ‘in the event’ [Hudson] was found not guilty of

murder,” we note, as an initial matter, that pursuant to Evid.R. 606(B):

       Upon an inquiry into the validity of a verdict or indictment, a juror may not
       testify as to any matter or statement occurring during the course of the
       jury’s deliberations or to the effect of anything upon that or any other
       juror’s mind or emotions as influencing the juror to assent to or dissent
       from the verdict or indictment or concerning the juror’s mental processes in
       connection therewith. * * * A juror’s affidavit or evidence of any
       statement by the juror concerning a matter about which the juror would be
       precluded from testifying will not be received for these purposes.

       {¶34} The purpose of the rule is “to maintain the sanctity of the jury room and the

deliberations therein.” State v. Hessler, 90 Ohio St.3d 108, 123, 2000-Ohio-30, 734

N.E.2d 1237. Therefore, Hudson may not rely on a post-verdict affidavit from a juror

regarding deliberations concerning a lesser included offense. State v. Williams, 7th Dist.

No. 07 MA 57, 2008-Ohio-1187, ¶ 15-16.           Accord State v. Jeffers, 10th Dist. No.

10AP-1112, 2011-Ohio-3555, ¶ 24.

       {¶35} Moreover, an “instruction to the effect the jury must consider the principal

charge first does not prevent consideration of all submitted offenses or set an agenda for

the jury deliberations and does not invade the province of the jury.” State v. Thomas, 40
Ohio St.3d 213, 533 N.E.2d 286 (1988), quoting State v. Ogden, 35 Or. App. 91, 98, 580

P.2d 1049 (1978). In any event, it is clear that Hudson could have argued on direct

appeal that the instructions were misleading or erroneous, but did not do so. The claim,

therefore, is barred by res judicata.

       {¶36} Further, because this court has previously determined that there was

sufficient evidence to support Hudson’s conviction for murder and that this conviction is

not against the manifest weight of the evidence, we can discern no prejudice. Accord

State v. Hillman, 10th Dist. Nos. 06AP-1230 and 07AP-728, 2008-Ohio-2341, ¶ 47.

       {¶37} The fifth and sixth assignments of error are without merit.

       {¶38} The seventh assignment of error states:

       The cumulative errors deprived the Appellant of a fair trial under the Sixth

       and Fourteenth Amendments to the federal Constitution.

       {¶39} The cumulative error doctrine provides that while certain errors individually

may not be prejudicial, when those errors are combined the aggregate effect denies the

appellant a fair trial. See State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus.

       {¶40} In this matter, none of the individual claims are meritorious, so the claim of

cumulative error must likewise fail.

       {¶41} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
