McAllister v. State
351 Ga. App. 76
Ga. Ct. App.2019Background
- In December 2014, six-year-old B.A. disclosed sexual contact by her father, David Billy McAllister, Jr.; she repeatedly testified that he "put his private in mine."
- McAllister denied the allegations; a jury convicted him of rape, incest, and making a false statement to law enforcement; he was sentenced as a recidivist based on prior sexual-offense convictions.
- The State gave pretrial notice under OCGA §§ 24-4-413, 24-4-414, and 24-4-404(b) of intent to introduce prior sexual-offense acts; the trial admitted a 1999 statutory-rape conviction (adult defendant, minor victim) with a limiting instruction.
- McAllister sought to call an expert who had treated him; after the court allowed the prior-conviction evidence and denied a motion limiting cross-examination, McAllister declined to call the expert at trial.
- The State impeached McAllister with certified prior convictions; McAllister at times volunteered or declined to object to admission of the certified records.
- Post-trial, McAllister raised multiple claims on appeal: improper admission of prior-act evidence, erroneous denial of his motion in limine, improper impeachment with prior convictions, sustaining a hearsay objection to therapist testimony, failure to rebuke prosecutorial statements in closing, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of prior statutory-rape conviction under OCGA §§ 24-4-413/24-4-414 | Admission was permissible and necessary given defendant's anticipated attacks on victim credibility | McAllister: prejudicial effect substantially outweighed probative value under OCGA § 24-4-403 | Court: No abuse of discretion; strong statutory presumption of admissibility, limiting instruction, and state need justified admission |
| Denial of motion in limine limiting State cross-examination of defense expert | State should be allowed to probe prior acts on cross to rebut expert; trial court properly ruled | McAllister: cross-exam on other prior acts would be impermissible character evidence | Waived: McAllister did not call the expert at trial, so appellate review is speculative and claim is not reviewable |
| Impeachment with prior convictions under OCGA § 24-6-609 | State: prior felony convictions relevant to credibility, court properly balanced probative vs prejudicial value | McAllister: admission violated § 24-6-609 (age, remoteness, prejudice) | No reversible error: court admitted conviction evidence after balancing; defendant waived objections at trial by saying "no objection" to certified records |
| Therapist testimony and hearsay objection | McAllister: questions about mother’s statements to therapist were admissible to show effect on therapist | State: hearsay; objection sustained | No plain error: either waived by counsel’s acquiescence or not shown to be obvious error affecting substantial rights |
| Prosecutor’s closing characterizations and alleged failure to rebuke | McAllister: prosecutor misstated law (called statutory rape "rape") and made improper prosecutorial comments; court should have rebuked or mistried | State: statements fell within wide latitude of closing argument and were harmless given jury instructions | Harmless: any misstatement was not outcome-determinative; judge instructed jury that lawyer statements are not evidence |
| Ineffective assistance of counsel claims (multiple instances) | McAllister: counsel failed to object to several prosecutorial statements and evidentiary rulings, and failed to call expert | State: trial strategy and failures to object were not shown to be deficient or prejudicial | Denied: appellant failed to show deficient performance and resulting prejudice under Strickland; many objections would have been meritless or were waived |
Key Cases Cited
- State v. Jones, 297 Ga. 156 (Georgia Supreme Court) (describing standard of review for admission of other-acts evidence under new Evidence Code)
- Brown v. State, 303 Ga. 158 (Georgia Supreme Court) (discussing OCGA § 24-4-403 probative vs. prejudicial balancing)
- Benning v. State, 344 Ga. App. 397 (Court of Appeals of Georgia) (discussing presumption in favor of admissibility under OCGA §§ 24-4-413 and 24-4-414)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court) (two-prong ineffective-assistance-of-counsel test)