McNAIR v. THE STATE

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
December 16, 2014
In the Court of Appeals of Georgia
A14A1814. McNAIR v. THE STATE. JE-065C
ELLINGTON, Presiding Judge.
A Richmond County jury found Darrell McNair guilty of four counts of armed
robbery, OCGA § 16-8-41 (a); and four counts of possessing a firearm during the
commission of a crime, OCGA § 16-11-106 (b). McNair appeals from the denial of
his motion for a new trial. He argues that the trial court erred in admitting certain
evidence and in failing to give the jury a limiting instruction. He also contends the
court erred in denying his motion for a new trial on his claim of ineffective assistance
of counsel. Finding no reversible error, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the record shows the
following. During the Spring of 2012, the Augusta Police Department investigated
a series of armed robberies that they discovered were related. The first occurred on
March 25, 2012, when William Moody and Saxon Washington were robbed at
gunpoint. Moody testified that he and Washington were standing in the driveway of
Washington’s Richmond County home, repairing a car. Moody noticed a gray Pontiac
Grand Am parked a short distance away and suspected that the occupants, two men
and a woman, were watching them. Shortly thereafter, the woman drove the Pontiac
away and the two men walked up and asked them for marijuana. One of the men
pulled a gun from his waistband, pointed it at Moody, and demanded money. The
other man searched the victims’ pockets. The men took Washington’s wallet and
about $480 from Moody. Moody called the police, who responded quickly. Although
the police were unable to locate the robbers, they found Washington’s wallet in the
street a short distance away. Moody speculated that the robbers had escaped in the car
he had seen earlier. In their report, the police noted the victims’ description of the car
and of the robbers, including that one of them had distinctive facial tattoos.
1
See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979).
2
The second incident occurred on March 27, 2012. As Andrew Blair was
walking across a parking lot to a convenience store, he observed a gray Pontiac Grand
Am parked near him. Three men got out of the car, and one asked him for some
“weed.” When Blair noticed that the men were all armed with handguns, he ran. The
men chased and caught Blair, and they took his cell phone.2 Afraid he was going to
be shot, Blair struggled free and ran to the convenience store. A store employee called
the police, who responded immediately. Blair showed a responding officer the gray
Pontiac, which was still parked in the lot, and the police impounded it. In the back
seat of the car, the police found a bullet and a mask.
An investigator determined that the car belonged to Willie McNair, a cousin
of the appellant. The investigator testified that he interviewed the cousin and that the
cousin told him that he had loaned his car to Andrew Dunn and that the car had been
stolen while in Dunn’s possession. The investigator recorded his interview with the
appellant’s cousin and the recording was played for the jury at trial. The State also
offered the testimony of an Assistant District Attorney (“ADA”) who interviewed the
cousin before trial. The ADA testified that, during his interview, the cousin told him
2
Only McNair’s co-defendant, Andrew Dunn, was indicted for this offense.
3
that he had rented his car to Dunn and McNair. The cousin also told the ADA that
McNair was the one who had informed him that his car had been stolen.
The third incident occurred on April 8, 2012. Sharome Simmons and Lafayette
Yarbray were walking along a Richmond County street when two men on bicycles
rode up to them. One man tried to snatch a gold chain from Simmons’ neck while the
other demanded money and threatened to shoot them with a handgun. Simmons gave
the men his necklace and Yarbray surrendered over $300 in cash. The robbers then
fled on their bicycles, and Yarbray, Simmons, and a deputy who had been dispatched
to the area on a “shots fired” call, each independently pursued them. The deputy
caught the robbers, whom he identified as Dunn and McNair, and detained them in
a patrol car. Yarbray and Simmons approached the deputy and told him that the men
in his custody had just robbed them. The deputy searched Dunn and McNair and
found $180 in Dunn’s pockets, $202 in McNair’s pockets, and Simmons’ gold chain
on the floorboard of the patrol car at McNair’s feet. Both Yarbray and Simmons
identified McNair and Dunn at trial. The State also presented the testimony of a
witness who, on April 8, had seen two men hiding from the deputy on her carport.
The witness found a handgun near where the men had been hiding and called the
police to retrieve it.
4
Based on information gleaned from the second and third incidents,
investigators prepared photographic line-ups containing images of Dunn and the
appellant to show to Blair, Moody, and Washington. Blair positively identified Dunn
from the line-up and later at trial. Moody identified McNair and Dunn from the
photographic line-ups and also later at trial.3 Moody also identified from a
photograph the impounded Pontiac he had seen just before the robbery. And, finally,
the handgun recovered during the third incident matched the one that Moody
described to the police as having been used against him.
1. In related claims of error, McNair contends that the trial court erred in
admitting into evidence his cousin’s statements concerning the allegedly stolen
Pontiac Grand Am on the grounds that the statements constituted hearsay that was not
admissible for purposes of impeachment. . We disagree.
With respect to these arguments, the record shows the following relevant facts.
The prosecution called the cousin to testify about the circumstances surrounding the
alleged theft of his car and how the car came to be impounded by the police.
However, when the cousin was asked to identify his car, he denied owning it or
3
Washington did not identify anyone from the photographic line ups. The state
did not call him as a witness because he died prior to trial.
5
having rented it to anyone, and he claimed to have no recollection of speaking with
the police. The trial court allowed the prosecution to treat the cousin as a hostile
witness and to ask him leading questions.4 When asked about the specific statements5
that he had made concerning the car during his interviews with investigators, he gave
repeated, blanket “I can’t recall” responses, asserting that he had no recollection of
having spoken with the police or with anyone from the District Attorney’s office. On
cross-examination by McNair’s defense counsel, the cousin claimed that his memory
had been impaired by his abuse of illegal drugs. Yet he was able to recall in great
detail the circumstances surrounding the five armed robbery indictments pending
4
When a witness demonstrates reluctance to testify about a crime, a trial court
has “great latitude to permit the [prosecutor] to treat [the witness] as a hostile witness
and propound leading questions.” (Citations omitted.) Knight v. State, 266 Ga. 47, 49
(4) (b) (464 SE2d 201) (1995). Moreover, “[w]hether leading questions are permitted
is within the trial court’s discretion, and exercise of that discretion will not be
interfered with by the appellate courts unless the discretion is abused.” (Citations
omitted.) Id. We find no merit to McNair’s contention that the court erred in allowing
leading questions. .
5
The prosecutor asked the witness the following questions: “Do you remember
telling [the investigator], back on March 28th, 2012, that you did own a silver
Pontiac? . . . Do you remember . . . calling to report [the car] stolen? . . . Do you
remember . . . identifying Andrew Dunn as the person who had rented your car that
night, and the Sunday before? Do you remember talking to some people from the
D.A.’s office last fall? . . . You don’t remember telling anybody last fall that Darrell
McNair was also one of the people that rented your car?”
6
against him as well as the fact that he had not been given any leniency by the
prosecution in exchange for his testimony in the instant case.
After the cousin had been excused, the State introduced, over defense counsel’s
objections, the testimony of the police investigator who had first interviewed the
cousin, the recorded statement the cousin gave the investigator, and the testimony of
the ADA who later interviewed the cousin prior to trial. With respect to the recorded
statement, McNair objected to it on the ground that the State had failed to lay a proper
foundation for its introduction and that he could no longer confront and cross-
examine the witness concerning the statement. The appellant also objected to the
admission of the ADA’s testimony on additional grounds, including that it was
improper to allow an ADA involved in the case to testify, that the State could not
impeach its own witness, that the statements constituted inadmissible hearsay, and
that it was improper to introduce the statements as substantive evidence for the
purpose of impeachment.
(a) The record shows that the State laid a proper foundation for the admission
of the cousin’s out-of-court statements. The evidentiary rules pertaining to examining
witnesses on their prior inconsistent statements and using those statements for
impeachment purposes or as substantive evidence are currently codified at OCGA §
7
24-6-6136 and § 24-8-801 (d) (1) (A).7 These new evidentiary rules “retain Georgia’s
[former] approach to a testifying witness’s out-of-court statements. Such statements
are not hearsay.” (Footnote omitted.) See Milich, Georgia’s New Evidence Code, 28
Ga. State U. Law Rev. 379, 390 (Winter 2012). Thus, they may be admitted both for
impeachment purposes and as substantive evidence. See Gibbons v. State, 248 Ga.
858, 862 (286 SE2d 717) (1982) (“[A] prior inconsistent statement of a witness who
takes the stand and is subject to cross-examination is admissible as substantive
evidence, and is not limited in value only to impeachment purposes.”) (decided under
former OCGA § 24-9-83).
6
Because this case was tried after January 1, 2013, Georgia’s new Evidence
Code applies. See Ga. L. 2011, pp. 99, 214, § 101. Former OCGA § 24-9-83, which
provided in relevant part that “[a] witness may be impeached by contradictory
statements previously made by him as to matters relevant to his testimony and to the
case[,]” was repealed effective January 1, 2013 and replaced with OCGA § 24-6-613.
See Ga. L. 2011, p. 99, § 1; Jones v. State, 326 Ga. App. 658 (757 SE2d 261) (2014).
7
Pursuant to OCGA § 24-8-801 (d) (1) (A), a prior out-of-court statement by
a witness
shall not be hearsay if the declarant testifies at the trial or hearing, is
subject to cross-examination concerning the statement, and the statement
is admissible as a prior inconsistent statement or a prior consistent
statement under Code Section 24-6-613 or is otherwise admissible under
this chapter.
8
Further, contrary to McNair’s argument, the prosecutor was not required to
show the witness his recorded statements during direct examination to refresh his
recollection. OCGA § 24-6-613 (a).8 Nor was it improper for the prosecutor to
impeach his own witness. OCGA § 24-6-607.9 Moreover, the prosecutor was
authorized to present extrinsic evidence of the witness’s prior inconsistent statements
for impeachment purposes and as substantive evidence, given the facts of this case.
OCGA § 24-6-613 (b) provides, in relevant part, that
[e]xcept as provided in Code Section 24-8-806, extrinsic evidence of a
prior inconsistent statement by a witness shall not be admissible unless
the witness is first afforded an opportunity to explain or deny the prior
inconsistent statement and the opposite party is afforded an opportunity
to interrogate the witness on the prior inconsistent statement or the
interests of justice otherwise require.
The record shows that the witness testified that he did not own the car at issue and
that he did not rent it to anyone – statements inconsistent with those previously given
8
“In examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents disclosed to
the witness at that time; provided, however, upon request the same shall be shown or
disclosed to opposing counsel.” OCGA § 24-6-613 (a).
9
“The credibility of a witness may be attacked by any party, including the party
calling the witness.” OCGA § 24-6-607.
9
in the case. Both the prosecutor and defense counsel examined the witness as to each
of his prior inconsistent statements. The witness was afforded an opportunity to
explain or to deny his prior inconsistent statements, and he chose to explain them by
saying that, because of his drug use, he simply had no recollection of making them.
Given the State’s compliance with the prerequisites of OCGA § 24-6-613 (b), the trial
court did not err in admitting extrinsic evidence of the cousin’s prior inconsistent
statements both for impeachment purposes and as substantive evidence. See Gibbons
v. State, 248 Ga. at 862.
(b) McNair argues that the prosecutor knew that the cousin was reluctant to
testify against McNair, but called him to the stand anyway with the intent of eliciting
substantive evidence through his prior inconsistent statements – evidence, he argues,
that the law would not otherwise allow, citing United States v. Gilbert, 57 F3d 709,
711 (9th Cir. 1995) (“Impeachment is improper when employed as a guise to present
substantive evidence to the jury that is otherwise inadmissible.”) (citations omitted.)
McNair has not shown that the Gilbert case is persuasive authority under Georgia law
given that, unlike the Federal Rules of Evidence,10 OCGA § 24-6-613 (b) allows a
10
Under Federal Rule of Evidence 801 (d) (1) (A), the cousin’s statements
would have been inadmissible hearsay because they were not made under oath. The
federal rule provides, in relevant part, that a prior inconsistent statement of a
10
testifying witness’s prior inconsistent statements to be admitted both for impeachment
purposes and as substantive evidence, making the prosecutor’s intent under the
circumstances irrelevant.11
(c) McNair argues that the trial court erred in allowing the ADA to testify as
to the cousin’s prior inconsistent statements because the ADA was a prosecutor
handling the case.
“The practice of trial attorneys testifying is not approved by the courts except
where made necessary by the circumstances of the case.” Timberlake v. State, 246 Ga.
488, 500 (7) (271 SE2d 792) (1980). Because allowing an advocate to testify as a
“witness poses innumerable threats to the integrity and reliability of the judicial
process[,]” Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985), courts have
often refused to permit a prosecutor to testify as a “witness unless there is a
compelling need.” (Citations and punctuation omitted.) United States v. Roberson,
declarant-witness is not hearsay if it “was given under penalty of perjury at a trial,
hearing, or other proceeding or in a deposition.” OCGA § 24-8-801 (d) (1) (A) has
no such limitation. See footnote 7, supra.
11
See footnote 7, supra. See also Milich, Georgia’s New Evidence Code, 28
Ga. State U. Law Rev. 379, 389-390 (Unlike the federal rules, “Georgia’s . . .
definition [of hearsay] does not include the out-of-court statements of a testifying
witness.”) (footnote omitted).
11
897 F2d 1092, 1098 (IV) (F) (11th Cir. 1990). Whether to allow a prosecutor to
testify as a witness in a case is a matter within the discretion of the trial judge.
Timberlake v. State, 246 Ga. at 501 (7). In this case, however, we need not reach the
question of whether the trial court abused its discretion in allowing the ADA to testify
because the record shows that the ADA was not acting as a prosecutor in the case.
The record shows that the ADA who testified was not responsible for trying
McNair and that his only appearance during the trial of the case (other than as a
witness) was to enter the courtroom briefly before jury selection commenced because
the prosecutor who actually tried the case had planned to have the ADA assist him
with jury selection. He did not question any prospective jurors. When it became clear
that the ADA might need to offer testimony in the case,12 he was removed from the
courtroom and was sequestered with the other trial witnesses. Further, defense
counsel was notified prior to trial of his status as a potential witness. The record does
not support a finding that the ADA was listed as counsel for the trial of the case, nor
does the record support an inference that he was present in the courtroom for trial in
12
The record does not support appellant’s assertion that the prosecutor knew
that Willie McNair would offer testimony contrary to his prior statements to police.
In fact, it is clear from the transcript that neither the prosecutor nor defense counsel
knew what the witness intended and they were all equally struggling with how to plan
their trial strategy given that uncertainty.
12
a capacity that would lead the jury into believing that he was prosecuting the case. In
fact, he testified that the instant case was not assigned to him, and he told the jury: “I
have not been a part of preparing this case outside of meeting at the . . . jail [to
interview] Willie McNair.” Given these facts, McNair has failed to show any
impropriety in allowing the ADA to testify.
2. McNair contends that the trial court erred in failing to give the jury “limiting
instructions for evidence presented against [McNair’s co-defendant]” concerning
charges that were unique to the co-defendant. The record does not reflect that McNair
requested such a charge in writing, and he concedes that in his appellate brief. The
record shows that the trial court suggested a limiting instruction which counsel found
acceptable, and that the court gave the jury substantially the same instruction in the
final charge of the court.13 When the court asked if counsel had any objections to the
jury charge given, counsel responded in the negative.
13
The court advised the jury as to those charges in the indictment that applied
to the co-defendant, to McNair, or to both; further, the court briefly outlined the
evidence asserted against each defendant in each charge. The court advised the jury
that it must determine the guilt or innocence of each defendant separately. Shortly
thereafter, the court charged the jury: “Now, after considering the testimony and
evidence presented to you, together with the charge of the Court, you should consider
each charge and each defendant individually.”
13
Where, as in this case, “no objection is made to a jury charge at trial, appellate
review for plain error is required whenever an appealing party properly asserts an
error in jury instructions.” (Citation and punctuation omitted.) Vann v. State, 294 Ga.
464, 466 (2) (754 SE2d 355) (2014). The “plain error” test authorizes a reversal of
a conviction only “if the instruction was erroneous, the error was obvious, the
instruction likely affected the outcome of the proceedings, and the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.” (Citation
and punctuation omitted.) Id. In this case, there was no error as the instruction given
was neither required nor erroneous. The limiting instruction the court gave may have
been, in hindsight, unsatisfactory to McNair, but
[i]t has long been the rule in this State that [w]hen evidence is admitted
for one purpose, as it was in the instant case, it is not error for the court
to fail to instruct the jury to limit its consideration to the one purpose for
which it is admissible, in the absence of a request to so instruct the jury.
(Citations omitted; emphasis original.) State v. Belt, 269 Ga. 763, 764 (505 SE2d 1)
(1998). See also OCGA § 24-1-105 (“When evidence which is admissible as to one
party or for one purpose but which is not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.”) (emphasis supplied). In this case, not only
14
was there no request, counsel approved of the limiting charge given. Consequently,
we find no error in the instruction given and, consequently, no plain error warranting
reversal.
3. McNair contends that his defense counsel provided ineffective assistance in
the follow respects: He argues that his counsel failed to adequately investigate the
case and to call alibi witnesses at trial, that she improperly waived his motion to
sever, , that she failed to secure adequate limiting instructions, and that she failed to
request limiting instructions restricting evidence of his prior conviction to a proper
purpose. For the following reasons, we find no reversible error in the trial court’s
ruling denying McNair’s motion for new trial on this ground.
In order to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that counsel’s performance was deficient
and that the deficient performance so prejudiced the client that there is
a reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. The criminal defendant must overcome
the strong presumption that trial counsel’s conduct falls within the broad
range of reasonable professional conduct.
(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d
313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d
674) (1984).
15
“As a general rule, reasonable trial tactics and strategies do not amount to
ineffective assistance of counsel.” (Citation omitted.) Woods v. State, 304 Ga. App.
403, 409 (4) (696 SE2d 411) (2010). “The decisions on which witnesses to call and
all other strategies and tactical decisions are the exclusive province of the lawyer after
consultation with his [or her] client.” (Citation and punctuation omitted.) Moreland
v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). “Whether an attorney’s
trial tactics [were] reasonable is a question of law, not fact.” (Citation and
punctuation omitted.) Id. “When assessing the reasonableness of counsel’s actions,
a court must evaluate counsel’s performance from his or her perspective at the time
of trial.” (Citations omitted.) Woods v. State, 304 Ga. App. at 409 (4). This Court
reviews a trial court’s ruling on an ineffective assistance claim on appeal by
“accept[ing] the trial court’s factual findings and credibility determinations unless
clearly erroneous, but we independently apply the legal principles to the facts.”
(Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.
(a) The record does not support McNair’s contention that trial counsel failed
to adequately investigate his case and to call alibi witnesses at trial. Counsel testified
that she reviewed all of the evidence obtained during discovery, including witness
statements and recordings, and she developed several theories of defense, including
16
alibi and misidentification. She interviewed witnesses, including alleged alibi
witnesses, and she had them under subpoena for trial. She negotiated a plea offer,
which McNair rejected. She filed appropriate discovery motions and filed a motion
to sever the co-defendants’ trials.
With respect to alibi witnesses, counsel testified that she and McNair jointly
made the decision not to call alibi witnesses, primarily for the reason that McNair
feared that they might hurt his defense. In fact, it was possible that one of the robbery
victims might recognize one of his alibi witnesses as a participant in the first armed
robbery. Most of McNair’s alleged alibi witnesses were family members, and counsel
testified that, although they were under subpoena, they failed to appear when they
were due to testify. Counsel testified that she discussed with McNair whether to have
the witnesses brought to court. McNair decided that he did not want them, and
counsel elected to proceed without them. This was a reasonable trial strategy, and
reasonable trial strategy does not constitute deficient performance. See Moreland v.
State, 263 Ga. App. at 588 (4). Consequently, McNair has failed to show that the trial
court erred in denying his motion for a new trial on this basis.
(b) The record does not support McNair’s contention that his trial counsel erred
when she waived at trial her previously filed motion to sever. Counsel testified that
17
McNair was afraid that, if his trial was severed from Dunn’s, Dunn might be more
willing to accept a plea bargain in exchange for his testimony against McNair at trial.
Dunn had been offered a better plea bargain given that his criminal record was not as
serious as McNair’s. Counsel only abandoned the severance motion after discussing
it with McNair and after learning that he and Dunn wanted to convey a “united front”
at trial. The record supports that counsel made a sound, strategic decision to abandon
the motion, and reasonable trial strategy does not constitute deficient performance.
See id. Consequently, McNair has failed to show that the trial court erred in denying
his motion for a new trial on this basis.
(c) Although the record supports McNair’s contention that counsel did not
make a written request for a limiting instruction concerning evidence applicable only
to McNair’s co-defendant, the record does support a finding that counsel agreed to
the limiting instruction suggested by the trial court, an instruction included in the
final charge to the jury. See Division 2, supra. Counsel has not demonstrated that the
failure to request a more detailed limiting instruction or to insist that such an
instruction be given at the time the evidence was presented constituted error under the
circumstances or that it resulted in any prejudice to McNair’s defense.
18
The record reveals that, consistent with their unified defense, McNair testified
that he and Dunn were friends, and that they had both been misidentified as
participants in the first two robberies after they had been wrongfully arrested as
suspects in the third robbery. McNair testified that he and Dunn were victims of the
third robbery, and that an unknown person had actually shot Dunn. Distancing
himself from Dunn was not part of McNair’s trial strategy. Given the nature of
McNair’s defense, it was not an unreasonable strategy to refrain from requesting more
detailed limiting instructions, and reasonable trial strategy does not constitute
deficient performance. See Moreland v. State, 263 Ga. App. at 588 (4). Consequently,
McNair has failed to show that the trial court erred in denying his motion for a new
trial on this basis.
(d) Finally, McNair contends that counsel erred in failing to request a limiting
instruction pertaining to a prior burglary conviction that the State used to impeach
him with during his testimony at trial. The record shows, however, that McNair
testified on direct examination that he had been convicted of that burglary when he
was 14 years old and that he went to “adult prison” after he violated his probation. As
a consequence of that experience, he testified that he learned “to do no more crimes.”
McNair also testified that he was not allowed to have a handgun. Given that counsel
19
made preemptive use of McNair’s prior conviction, knowing that it would be used to
impeach him on cross-examination, demonstrates a reasonable trial strategy. That
counsel did not ask for a limiting instruction under these circumstances is consistent
with that reasonable strategy, and reasonable trial strategy does not constitute
deficient performance. See id. Consequently, McNair has failed to show that the trial
court erred in denying his motion for a new trial on this basis.
Judgment affirmed. Phipps, C. J., and McMillian, J., concur.
20