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McNair v. State

Court of Appeals of Georgia

December 16, 2014

McNAIR
v.
THE STATE

Page 291

Armed robbery, etc. Richmond Superior Court. Before Judge Padgett.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Page 292

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 [330 Ga.App. 479] 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.

Page 293

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.

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 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.

[330 Ga.App. 480] 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 in her carport. The witness found a handgun near where the men had been hiding and called the police to retrieve it.

Based on information gleaned from the second and third incidents, investigators prepared photographic lineups containing images of Dunn and the appellant to show to Blair, Moody, and Washington. Blair positively identified Dunn from the lineup and later at trial. Moody identified McNair and Dunn from the photographic lineups 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 ...


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