Following a jury trial, Robert Mack Gober appeals his conviction for armed robbery 1 and theft by receiving, 2 arguing that the trial court erred in admitting a prior inconsistent statement of a key witness and in allowing the State to treat two of its other witnesses as hostile. Discerning no error, we affirm.
Construed in favor of the verdict, Davis v. State, 3 the evidence shows that early in the afternoon of February 13, 1996, Gober and three compatriots received two stolen vehicles (a white Dodge and a green Plymouth), which they intended to use in an armed robbery of a bank. The foursome drove the white Dodge to one bank and waited in the parking lot, but left when approached by a bank employee who found their behavior suspicious. With Gober as driver, they then traveled to SouthTrust Bank, where the three passengers donned masks and, pointing guns at the tellers, entered the bаnk with loud demands for money. After stealing over $8,000, the threesome returned to the white Dodge and made their escape with Gober as the getaway driver, only to bave one of the bags of money explode and emit red dye and tear gas. Throwing the offending bag from the car, the four men soon stopped and exited the car, running to the green Plymouth and escaping with the remainder of the monеy, much of which was now covered with red dye.
The men arrived at an apartment complex, where Gober approached an acquaintance with the request to use an apartmеnt to clean the red dye off their hands and faces. The acquaintance acquiesced, and after the four men washed their hands and faces, they spilled out the red-dyed money onto the apartment floor and used the apartment’s patio grill to burn it.
Two days later, police stopped the green Plymouth at a roadside check, only to have its driver speed away in the vehiсle. Police soon apprehended the driver, who was one of the three gunmen who had entered the bank.
Eventually, the other three men were apprehended, and all four were indictеd for armed robbery, theft by taking (two counts), and *203 theft by receiving (two counts). Two of the gunmen pled guilty before trial, and Gober and the third gunman were tried before a jury. 4 The third gunman pled guilty during jury deliberations. Acquitting Gober of the theft by taking charges, the jury found him guilty of armed robbery and of theft by receiving (both counts). Following the denial of his motion for new trial, Gober appeals.
1. Gober’s first two enumerations of error conсern the court’s decision to admit into evidence a videotape of a police interview with Gober’s acquaintance, who identified Gober and others of the foursome as coming tо the apartment complex and who told police of the foursome’s washing off the red dye, their dumping the money onto the apartment floor, their burning the red-dyed money in the grill, and their confessing to the robbery of the bank and to the theft of the cars. Gober claims that at trial, the acquaintance’s testimony did not contradict any statements made in the interview, thus precluding admission of the interview as a prior inconsistent statement. He further claims that because the acquaintance repeatedly denied any memory of the events, Gober was denied his Sixth Amendment right of confrontation. See Crawford v. Washington. 5 We hold that both enumerations lack merit.
(a) The videotape was properly admitted as a prior inconsistent statement. Contrary to Gober’s argument, the acquaintance did not simply claim at trial that he did not remember any оf the events of February 13, 1996. Although he did not remember many things, in his testimony he did expressly deny (i) that the foursome discussed with him that they had just robbed a bank, (ii) that they dumped the red-dyed money on the apartment floor, (iii) that thеy burned the money in the apartment’s patio grill, and (iv) that they identified which bank they had robbed, and he further denied that he had identified the men to the police or that he was even at the apartment complex on the day in question. Inasmuch as this testimony directly contradicted the statements he made in his videotaped statement to police, that videotape was admissible as a рrior inconsistent statement and could be used as substantive evidence. Robinson v. State 6 (“the prior inconsistent statement of a witness who appears and testifies is admissible, not just for impeachment purposes, but as substantive evidence”). See Ingram v. State; 7 Morris v. State. 8 *204 Compare Hill v. State 9 (prior statement not admissible where prosecution failed to ask witness specific questions from that statement that the witness denied). Moreover, the acquаintance, who was undisputedly a reluctant witness, testified that he did not remember giving the statement to police. “If a reluctant witness testifies that he does not remember whether or not he made a рrior statement, the [SJtate is then entitled to introduce the prior statement as inconsistent with the in-court testimony of the witness.” Green u. State. 10 See LeBlanc v. State. 11
(b)
Gober was not denied his right of confrontation.
Citing
Gay v. State,
12
Gober claims that he was effectively denied his right to confront the acquaintance because the acquaintance initially sought to invoke his Fifth Amendment privilege (which the court held was unavailable) and then repeatedly answered that he did not remember the evеnts in question. But the acquaintance not only gave substantive answers to other questions posed by the State, he responded to several of Gober’s own cross-examination questions with answers such as that he (the acquaintance) lived with his grandmother, that he was not at the apartment complex on the date in question, that he loved playing basketball and other sports, and that he did not know Gober. Thus, unlike
Gay,
the witness did not completely refuse to testify, which wholly precluded the defendant in
Gay
from any cross-examination regarding the inconsistent statement. Id. See also
Soto u. State.
13
Accordingly, Gober was affоrded his Sixth Amendment right to confrontation. See
Robinson,
supra,
2. Gober’s third enumeration of error is that the trial court erred in allowing the State to treat the two gunmen (who had earlier pled guilty) as hostile witnesses, which deniеd him his right to a thorough and sifting cross-examination of the witnesses. This enumeration fails.
Where a witness demonstrates a reluctance to tell what he knows about a crime, the trial court has
great latitudе to permit the assistant district attorney to treat [the witness] as a hostile witness and propound leading questions. Whether leading questions are permitted is within the trial court’s discretion, and exercise оf that *205 discretion will not be interfered with by the appellate courts unless the discretion is abused.
(Citations and punctuation omitted.)
Knight v. State.
14
See
Ingram,
supra,
Citing
Lingerfelt v.
State
16
and
Greenwood v. State,
17
Gober argues that allowing the prosecutor here to ask leading questions (where the witnesses simply refused to answer on Fifth Amendment grounds) violated his right to confront witnesses in that the “effect of this prosecutorial procedure was to place before the jury, through the questions asked, the content of thе previous testimony of the witness without the benefit of cross examination by the appellant.”
Lingerfelt,
supra,
However, in
Cates v. State,
19
the Supreme Court of Georgia carved out an exception to the
Lingerfelt
doctrine, holding that the trial court could allow a prosecutor to ask such leading questions of a witness who refused to testify where (i) the trial court had properly found that the witness had no right to claim a Fifth Amendment privilege (because he had already been convicted for his participаtion in the same crime and no appeal had been pursued), and (ii) defense counsel had available to him or her the witness’s version of the crime and therefore could also ask leаding questions that showed inconsistencies or tended to exculpate the appellant. “We see no error in allowing the prosecuting attorney to ask leading questions of [the witness] in view of thе fact that appellant was afforded the same opportunity.”
Cates,
supra,
Here, both gunmen had previously pled guilty to their participation in the same crimes of which Gober was accused, and therefore the trial court had properly found they were entitled to no Fifth Amendment privilege.
Cates,
supra,
Finally, we note that after the testimony of each of these gunmen witnesses, the court gave a detailed instruction to the jury that the quеstions of counsel were not evidence, and that the jury could make no inferences from the witness’s refusal to answer questions from the prosecutor or from either of the defendants. Following еach such curative instruction, Gober made no motion for mistrial nor otherwise renewed his objections to the testimony. Accordingly, “the issue was not preserved for appeal because [Gober] did not [assert a] motion for mistrial after curative instructions were given.” Fincher v. State 21
Under these circumstances, the trial court did not err in allowing the State to treat the two gunmen witnesses as hostile and to аsk them five leading questions each.
Judgment affirmed.
Notes
OCGA § 16-8-41 (a).
OCGA § 16-8-7 (a).
Davis v. State,
The first trial resulted in a conviction of Gober, which was vacated when the trial court granted Gober’s motion for new trial. This appeal is from the second trial.
Crawford v. Washington,
Robinson v. State,
Ingram v. State,
Morris v. State,
Hill v. State,
Green v. State,
LeBlanc v. State,
Gay v. State,
Soto v. State,
Knight v. State,
Culler v. State,
Lingerfelt v. State,
Greenwood v. State,
Lawrence v. State,
Cates v. State,
Hawkins v. State,
Fincher v. State,