McGee v. State

• Decision Date: 11 June 2002
• Docket Number: No. A02A0280.,A02A0280.
• Citation: 255 Ga. App. 708,566 S.E.2d 431
• Parties: McGEE v. The STATE.
• Court: Georgia Court of Appeals

566 S.E.2d 431

255 Ga. App. 708

McGEE v. The STATE.

No. A02A0280.

Court of Appeals of Georgia.

June 11, 2002.

Certiorari Denied September 6, 2002.

L. Elizabeth Lane, Macon, for appellant.

Howard Z. Simms, Dist. Atty., Sharell F. Lewis, Asst. Dist. Atty., for appellee. RUFFIN, Judge.

In November 1997, a jury found David McGee guilty of violating the Georgia Racketeer Influenced and Corrupt Organization s ("RICO") Act.¹ The trial court subsequently granted him permission to file an out-of-time appeal. On appeal, he challenges the sufficiency of the evidence presented to corroborate an accomplice's testimony, as well as his trial counsel's effectiveness. He also claims that the trial court erred in admitting evidence at sentencing. For reasons that follow, we affirm.

1. When reviewing the sufficiency of the evidence, we do not weigh the evidence or assess witness credibility.² Instead, we view the evidence in the light most favorable to support the jury's verdict and determine whether a rational trier of fact could find each essential element of the crime charged beyond a reasonable doubt.³

Viewed in this manner, the evidence showed that the McGee family was involved in the illicit drug trade. According to McGee's mother, Katie Mae, she and other family members sold cocaine out of her house in Macon. Katie Mae further testified that McGee supplied the cocaine for the family business, bringing three or four cocaine "cookies" to the house each week. Various family members sold the cocaine and then paid McGee $1,300 per cookie out of the sale proceeds. Katie Mae also indicated that, by 1997, McGee had been supplying cocaine to the family for several years.

Louise Gooden, Katie Mae's cousin, participated in this enterprise. Like Katie Mae, Gooden testified that McGee supplied the cocaine sold from the house. Ellen McGee, McGee's sister, similarly told the jury that McGee supplied cocaine for the family's drug activities during the several years preceding his 1997 trial. Ellen and Gooden also testified that McGee charged his family $1,300 for each cocaine cookie.

On April 16, 1996, Macon police officers executed a search warrant at Katie Mae's house and found 4.8 grams of cocaine in a bedroom. Police searched the house again on May 16, 1997, and discovered four cookies of crack cocaine hidden in a flower pot. Gooden, who was present during that search, also gave police a bag of cocaine that she had hidden in a trash can. Laboratory tests showed that police seized 96.3 grams of 94 percent pure cocaine from Katie Mae's home on May 16, 1997.

Gooden testified that McGee supplied the cocaine seized by police on May 16, 1997. Katie Mae similarly testified that McGee brought this cocaine to the house. Although she did not actually observe cocaine in McGee's possession, Katie Mae saw him with a package, which he gave to Gooden. Gooden then told Katie Mae that McGee had "`brought the stuff.'" Katie Mae testified that Gooden made this type of statement to her each time McGee delivered cocaine.

To satisfy its burden of proof in a RICO prosecution, the State must show that the defendant engaged in at least two similar or interrelated incidents of racketeering activity.⁴ In this case, the State asserted that McGee and others engaged in ten racketeering activities or predicate acts. With respect to the ninth predicate act, the State alleged that, on or about April 16, 1996, McGee and the others possessed cocaine with the intent to distribute it. For the tenth predicate act, the State alleged that, on or about May 16, 1997, these individuals trafficked in cocaine. In reaching its guilty verdict, the jury concluded that McGee engaged in the ninth and tenth predicate acts.

On appeal, McGee does not challenge the interrelatedness of these acts, attack the evidence supporting the ninth predicate act, or question the applicability of the RICO statute. Instead, he argues that the State presented insufficient evidence to support Gooden's testimony relating to the tenth predicate act—drug trafficking. Noting that a conviction cannot stem solely from an accomplice's testimony,⁵ McGee claims that only Gooden's uncorroborated assertions tied him to the 96.3 grams of cocaine seized from Katie Mae's home on May 16, 1997. According to McGee, because the State failed to corroborate Gooden's testimony, it did not sufficiently prove his participation in the tenth predicate act, undermining his RICO conviction. We disagree.

Although "[a]n accomplice's testimony as to the identity and participation of the defendant ... must be corroborated[,][w]here, as here, more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others."⁶ This corroboration need only be slight and may be circumstantial.⁷ Ultimately, the jury decides the sufficiency of the corroborating evidence.⁸

Gooden testified that McGee supplied the cocaine seized from the house on May 16, 1997. Katie Mae similarly testified that McGee provided this cocaine. On cross-examination, Katie Mae admitted that she did not actually see McGee with the cocaine. Nevertheless, she saw him with a package and then observed that package in Gooden's hand, and Gooden told her that McGee had "`brought the stuff.'" Furthermore, both Katie Mae and Ellen McGee testified that McGee supplied the cocaine used in the family drug business in 1997.

Citing Brookshire v. State,⁹ McGee argues that Gooden's statement to Katie Mae must be disregarded as nonprobative hearsay. Although not addressed by the parties or the court, the statement appears to fall within the co-conspirator exception to the hearsay rule.¹⁰ Even without that statement, however, Katie Mae's testimony about the package McGee gave Gooden, as well as the general testimony that McGee supplied the family with drugs to sell in 1997, sufficiently corroborated Gooden's testimony connecting McGee to the 96.3 grams of cocaine seized from the house on May 16, 1997.¹¹

2. McGee also argues that he received ineffective assistance of counsel at trial. To succeed in this claim, he must prove "(1) that his trial counsel's performance was deficient, and (2) that but for this deficiency the outcome of the trial would have been different."¹² In so doing, McGee must overcome the strong presumption that trial counsel performed within the wide range of reasonable professional conduct and that any challenged conduct might be considered sound trial strategy.¹³

Following a hearing on McGee's motion for new trial, the trial court concluded that McGee received effective assistance of counsel. We will not reverse that decision absent clear error,¹⁴ and, as discussed below, we find no error in this case.

(a) McGee claims that trial counsel deficiently failed "to subpoena and call as witnesses various persons who would have rebutted the State's theory that he was involved in his family's drug dealing." At the hearing on McGee's motion for new trial, counsel testified that he interviewed many of these witnesses, but determined that their potential testimony was not particularly strong. He concluded, therefore, that he did not want to waive the right to open and conclude closing arguments by calling the witnesses. This type of strategic decision, made after a thorough investigation, is virtually unchallengeable.¹⁵

Furthermore, even if trial counsel's performance could be deemed deficient, McGee has not shown prejudice. At the new trial hearing, McGee described how, in his view, these witnesses would have testified at trial. None of the witnesses, however, appeared at the hearing, leaving us only with McGee's bare allegations regarding their trial testimony.

We cannot assess the prejudicial effect of trial counsel's failure to call a witness unless the defendant specifically demonstrates how counsel's failure affected the outcome of his case.¹⁶ And "[w]ithout the testimony of the particular witness, it is impossible for [McGee] to show there is a reasonable probability the results of the proceedings would have been different."¹⁷ Accordingly, the trial court properly rejected this ineffective assistance claim.

(b) McGee also argues that trial counsel should have stricken from the jury an individual who was represented in an unrelated matter by one of his co-defendant's attorneys. According to McGee, the juror's "allegiance" to his co-defendant's attorney prejudiced him.

We have not found, and McGee has not pointed us to, any evidence in the trial record that such a relationship existed between a juror and his co-defendant's counsel. At the new trial hearing, trial counsel could not recall any such relationship. Furthermore, McGee has presented no evidence that the outcome of his trial would have been different had trial counsel stricken this juror. As McGee admitted at the new trial hearing, he has never spoken to the juror to determine whether the alleged relationship affected the jury's deliberations. Thus, the trial court did not err in refusing to find counsel ineffective on this ground.

(c) McGee asserts that the State was vindictive and engaged in prosecutorial misconduct during the trial. This argument does not address his own counsel's performance. Accordingly, it does not support his ineffective assistance claim.

(d) Next, McGee contends that trial counsel failed to cross-examine Gooden and Ellen McGee adequately. According to McGee, Gooden made a pre-trial statement— presumably to police—indicating that McGee was involved in the drug trade during the 1980s. At the new trial hearing, McGee claimed that this statement was an "outright lie[ ]" because he was incarcerated from 1977 to 1986. In his view, counsel should have impeached Gooden with the statement to expose her as a "liar."

As an initial matter, McGee has not pointed us to any portion of the record containing this statement, which apparently was not introduced at trial. Furthermore, even if the...