MCALLISTER v. the STATE.
343 Ga. App. 213
| Ga. Ct. App. | 2017Background
- Defendant Monty McAllister was convicted by a jury of aggravated stalking and criminal trespass; trial court sentenced him to ten years for stalking and 12 months (concurrent) for trespass. He appealed after a denied motion for new trial.
- April 2011: police responded to victim’s report of harassment; officer witnessed an interaction and later found McAllister at victim’s car beating on the roof; McAllister was arrested for trespass and released on bond with a no-contact condition.
- Bond condition (April 2011) expressly prohibited direct or indirect contact with the victim and warned violations could lead to aggravated stalking prosecution.
- January 16–17, 2012: McAllister texted and called the victim; next day he entered her apartment, triggered and ripped off the security alarm, knocked a picture to the floor, went into her bedroom and kissed her; police found him in her bed and items (restraints, duct tape, box cutter) in his car.
- Trial evidence included the bond/no-contact order, officers’ testimony about the victim’s fear and scene condition, and the January entry/damage; McAllister argued insufficiency, a misread jury recharge, and ineffective assistance for two omissions.
Issues
| Issue | Plaintiff's Argument (McAllister) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated stalking | Evidence was at most a single violation (Jan 17 entry), which alone cannot support aggravated stalking | Multiple acts (Jan 16 calls/texts + Jan 17 forced entry, alarm damage, kiss) showed a pattern of harassing/intimidating behavior | Affirmed: evidence sufficient because acts over two days supported a pattern |
| Jury recharge misstatement (statute misread) — plain error review | Recharge expanded theory to unlawful contact with a "place," not just the victim, contrary to indictment | Recharge read statute but court reminded jury that indictment limited theory to unlawful contact with the victim; no objection at trial | No plain error: misreading unlikely to have affected outcome or fairness |
| Ineffective assistance — failure to object to detective’s hearsay about victim’s fear/contact | Trial counsel should have objected to hearsay testimony about victim’s statements | Testimony was cumulative; other admissible evidence and emergency exception testimony showed same facts | No ineffective assistance: even if deficient, no reasonable probability of different outcome |
| Ineffective assistance — failure to introduce nolle prosequi of April 2011 trespass | Counsel should have shown the earlier trespass was dismissed to undermine prior-incident evidence | Dismissal of prior charge did not affect the valid no-contact bond in effect or the January 2012 trespass; likely irrelevant | No ineffective assistance: no reasonable probability outcome would differ |
Key Cases Cited
- State v. Burke, 287 Ga. 377 (Georgia 2010) (single violation of protective order alone does not establish aggravated stalking)
- State v. Cusack, 296 Ga. 534 (Georgia 2015) (one violation committed as part of a pattern can constitute aggravated stalking)
- Daker v. Williams, 279 Ga. 782 (Georgia 2005) (two related stalking instances in short time can show prohibited pattern)
- Thompson v. State, 341 Ga. App. 883 (Ga. Ct. App. 2017) (standard for sufficiency review)
- Milford v. State, 291 Ga. 347 (Georgia 2012) (victim statements to first responders admissible under emergency exception / non-testimonial)
- Lee v. State, 316 Ga. App. 227 (Ga. Ct. App. 2012) (admission of cumulative hearsay is harmless for ineffectiveness claims)
- Beck v. State, 250 Ga. App. 654 (Ga. Ct. App. 2001) (discusses admissibility of outcomes of prior prosecutions when introduced by State)
- Jones v. State, 310 Ga. App. 705 (Ga. Ct. App. 2011) (recharge unlikely to mislead jury about the form of aggravated stalking alleged)
- Cushenberry v. State, 300 Ga. 190 (Georgia 2017) (ineffective assistance requires showing of deficient performance and prejudice)
- Daniel v. State, 338 Ga. App. 389 (Ga. Ct. App. 2016) (same standard for ineffective assistance of counsel)