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