In the Supreme Court of Georgia



                                                 Decided: February 8, 2016


                     S15A1312. SCUDDER v. THE STATE.


       BLACKWELL, Justice.

       Edward Scudder was tried by a Fulton County jury, which found him

guilty of two murders and several other crimes, all in connection with the fatal

shootings of brothers Crishon and Jesse Woodard. Scudder appeals, contending

that the trial court erred when the judge met privately with a witness, when the

court admitted certain testimony, and when it charged the jury. We find no merit

in these contentions, but we do note that the trial court erred when it failed to

sentence Scudder for two crimes for which the jury found him guilty.

Accordingly, we affirm in part, vacate in part, and remand for the trial court to

sentence Scudder on two counts of the unlawful possession of a firearm during

the commission of a felony.1

       1
        The Woodard brothers were killed on March 21, 1998. Scudder and co-defendant
Kenorris Dorsey were indicted on May 28, 2004, and they were charged with two counts of
malice murder, two counts of felony murder, two aggravated assaults, and two counts of the
unlawful possession of a firearm during the commission of a crime. In addition, Scudder was
charged with one count of unlawful possession of a firearm by a convicted felon. Scudder
       1. Viewed in the light most favorable to the verdicts, the evidence shows

that Scudder and Kenorris Dorsey were involved in an altercation with the

Woodard brothers outside Scudder’s apartment in southwest Atlanta. The

Woodard brothers had confronted Scudder and Dorsey about a handgun that

Dorsey allegedly had taken from their friend the night before, and Jesse

eventually punched Scudder in the face. Scudder retreated into his apartment,

and the Woodard brothers began fighting with Dorsey. When Scudder returned

with a semi-automatic pistol, Dorsey was on the ground, being kicked by the

Woodard brothers. Scudder fired at least eight shots, and both Crishon and Jesse

were killed.


and Dorsey were tried together. Their first trial in October 2005 ended with a mistrial. They
were tried again beginning on February 28, 2006, and the jury found Scudder guilty on all
counts. The jury deadlocked on the charges against Dorsey, and the trial court declared a
mistrial as to the co-defendant. Scudder was sentenced to imprisonment for life for the
murder of Crishon Woodard, a concurrent sentence of imprisonment for life for the murder
of Jesse Woodard, and a consecutive sentence of imprisonment for five years for the
unlawful possession of a firearm by a convicted felon. The verdicts as to felony murder were
vacated, and the aggravated assaults merged with the malice murders. See Malcolm v. State,
263 Ga. 369, 371–374 (4-5) (434 SE2d 479) (1993). As to the two counts of unlawful
possession of a firearm during the commission of a felony of which the jury found Scudder
guilty, the trial court erroneously determined that they also merged with the crimes for which
Scudder was sentenced. See Division 6, infra. On March 13, 2006, Scudder timely filed a
motion for new trial, which he amended on October 17, 2012. The trial court denied
Scudder’s motion on November 26, 2012, and Scudder filed a timely notice of appeal on
December 7, 2012. The record was transmitted to this Court in May 2015, and the case was
docketed in this Court for the September 2015 term and submitted for decision on the briefs.

                                              2
      Scudder does not dispute that the evidence is sufficient to sustain his

convictions. Nevertheless, we have independently reviewed the record with an

eye toward the legal sufficiency of the evidence, as is our customary practice in

murder cases. We conclude that the evidence adduced at trial was legally

sufficient to authorize a rational trier of fact to find beyond a reasonable doubt

that Scudder was guilty of the crimes of which the jury, in fact, found him

guilty. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979).

      2. Scudder claims that the trial court erred when the judge met privately

in his chambers with a witness. The witness in question previously had

explained in open court — outside the presence of the jury — that she did not

want to testify, principally because her neighbors might consider her to be a

“snitch.” After a lengthy exchange, in which the witness said that the stress of

having to testify had caused her to relapse into substance abuse, that her “mental

state of mind [was] not functioning,” and that she would not be “good on the

court stand anyway,” the trial judge offered the witness an opportunity to “come

back to [his] office and . . . talk to me.” The witness said that she was willing to

do so and that she did not want to continue on the witness stand. After a brief

                                         3
discussion in open court in which the judge said that the reasons given by the

witness for her reluctance to testify did not “add up,” the judge announced that

he wanted to speak with her privately “for a minute.” The judge and the witness

then went into his chambers, accompanied by the court reporter.2 When the

judge and the witness returned to the courtroom, the judge announced that the

witness would be testifying, and she did so a short time later. Although Scudder

and his counsel did not go into chambers with the judge and witness, Scudder

and his counsel both were present in the courtroom when the judge announced

his intention to speak privately with the witness and when the judge and witness

returned from chambers.

       Scudder correctly asserts that a criminal defendant has the right to be

present and to see and hear all “critical part[s]” of his trial. Holsey v. State, 271

Ga. 856, 860 (5) (524 SE2d 473) (1999). This “is a fundamental right and a

foundational aspect of due process of law.” Hampton v. State, 282 Ga. 490, 491-



       2
         The record includes a transcript of what transpired in chambers. There, the witness
explained again her reluctance to testify. Her explanation in chambers differed somewhat
from what she had said in open court, principally in that she described in chambers a specific
threat that she had received from an unnamed neighbor (who was not affiliated with Scudder
or Dorsey), who was apparently unhappy that the police had repeatedly shown up at their
apartment complex.

                                              4
492 (2) (a) (651 SE2d 698) (2007) (citations omitted). It is a right that may be

relinquished, however, “if the defendant personally waives it in court; if counsel

waives it at the defendant’s express direction; if counsel waives it in open court

while the defendant is present; or if counsel waives it and the defendant

subsequently acquiesces in the waiver.” Id. at 492 (2) (a). Although Scudder and

his counsel both were present when the judge announced his intention to speak

privately in chambers with the witness, they raised no objection. When the judge

and witness left the courtroom to go to chambers, Scudder and his counsel

raised no objection. And again, when the judge and witness returned from

chambers, Scudder and his counsel failed to object. Moreover, Scudder and his

counsel failed to ask the court reporter, who had accompanied the judge and

witness into chambers, to reveal what had been said in private. In these

circumstances, we conclude that counsel waived the right to be present for the

meeting in chambers in the presence of Scudder, who acquiesced in the waiver.

See Zamora v. State, 291 Ga. 512, 519-520 (7) (c) (731 SE2d 658) (2012).

      3. Scudder also claims that the trial court erred when it allowed a witness

to testify in a way that, Scudder says, amounted to an improper comment upon

the credibility of another witness. It is settled that credibility determinations are

                                         5
to be made by the jury and not by other witnesses. See former OCGA § 24-9-

80.3 We need not determine whether the testimony at issue was improper,

however, because the testimony — which cast doubt upon another witness’s

claim that he was present at the scene of the crimes and saw Scudder “c[o]me

out of the house shooting” at the Woodard brothers — was favorable to

Scudder. As a result, there is no harm and no reversible error. See Marshall v.

State, 276 Ga. 854, 856 (2) (c) (583 SE2d 884) (2003).

      4. Next, Scudder asserts that the trial court violated OCGA § 17-8-57

when it charged the jury on intent, intimating that the trial judge believed that

Scudder and Dorsey shot the Woodard brothers. But OCGA § 17-8-57 “is

violated only when the trial court’s instruction, considered as a whole, assumes

certain things as facts and intimates to the jury what the judge believes the

evidence to be.” Parker v. State, 276 Ga. 598, 600 (5) (581 SE2d 7) (2003)

(citation and punctuation omitted). Here, the jury charge on intent began with

a proper instruction that “[t]he intentions of a person [are] always a question of

fact for the determination [of] the jury[,] and [intent] is a material element of


      3
        The provisions of former OCGA § 24-9-80 were carried forward, with only minor
revisions, into the new Evidence Code and now can be found at OCGA § 24-6-620.

                                         6
each crime charged in this indictment.” The trial court then informed the jurors

about what they could, and could not, consider when determining intent, and it

concluded with the language that Scudder contends is erroneous: “[W]hat the

defendants’ intentions are is for you to determine from the facts as you find

[them] to be in this case.” Scudder claims that the reference to “the defendants’

intentions” implied that the trial judge believed that Scudder and Dorsey shot

the victims and that the jury needed only to consider whether they had the

requisite criminal intent at the time of the shootings. Given that the trial court

explained to the jury that intent was only one of the elements of the crimes

charged in the indictment and that they could not find Scudder guilty of any

crime unless the State proved every essential element of the crime beyond a

reasonable doubt, there is no likelihood that the jury considered the reference to

“the defendants’ intentions” as an indication of the trial court’s beliefs about

what the State had proven at trial. See Alexander v. State, 180 Ga. App. 640,

641 (2) (350 SE2d 284) (1986).

      5. Finally, Scudder contends that he was denied the effective assistance

of counsel because his trial lawyer failed to object when the court charged the

jury that all witnesses are presumed to speak the truth. But we find no such

                                        7
charge in the record. The page of the transcripts cited by Scudder in support of

this claim reveals nothing like the alleged charge of which he complains. And

while the trial court charged the jury elsewhere about its duty to determine the

credibility of witnesses, the closest it came to giving the charge that Scudder

alleges was when it charged the jury to — where possible — resolve conflicts

in testimony without imputing false statements to a witness. But we previously

have held that such a charge is proper, and it cannot serve as the basis for an

ineffectiveness claim. See Mallory v. State, 271 Ga. 150, 151 (2) (517 SE2d

780) (1999).

      6. The jury found Scudder guilty of two counts of unlawful possession of

a firearm during the commission of a felony, but the trial court never sentenced

Scudder on those counts. Instead, the trial court erroneously concluded that

those crimes merged with the other crimes for which Scudder was sentenced.

But the unlawful possession of a firearm during the commission of a crime is a

crime distinct from the predicate felony. See, e.g., Clark v. State, 279 Ga. 243,

248 (8) (611 SE2d 38) (2005); see also OCGA § 16-11-106 (b). And as we have

explained before, “where multiple crimes are committed together during the

course of one continuous crime spree, a defendant may be convicted once for

                                        8
possession of a firearm during the commission of a crime as to every individual

victim of the crime spree.” Gutierrez v. State, 285 Ga. 878, 880 (3) (684 SE2d

652) (2009) (citation and punctuation omitted). This sentencing error has not

been raised by the State, and this Court has no duty “to scour the record

searching for merger issues.” Nazario v. State, 293 Ga. 480, 488 (2) (d) (746

SE2d 109) (2013). But if we notice a merger issue in a direct appeal, as we do

here, we may resolve that issue. Id. at 486 (2) (b). Accordingly, we vacate that

portion of the trial court’s sentencing order in which it merged the unlawful

possession of a firearm during the commission of a crime into the other crimes

of which Scudder was convicted, and we remand for sentencing on those counts.

See Hulett v. State, 296 Ga. 49, 52–56 (2) (766 SE2d 1) (2014).

      Judgment affirmed in part and vacated in part, and case remanded for

resentencing. All the Justices concur.




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