Drug violation. Union Superior Court. Before Judge George.
Ford & Josey, Michael C. Ford, for appellant.
W. Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.
McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.
Danny Gary Patterson appeals following the denial of his motion for new trial after a jury convicted him of one count of distribution of methamphetamine, one count of possession of hydrocodone, and one count of possession of marijuana. For the reasons set forth below, we affirm his convictions for possession of methamphetamine and marijuana, but reverse his conviction for possession of hydrocodone.
Viewed in the light most favorable to the verdict, the evidence shows that in or about January 2010, Darcy Bennett began working as a confidential informant with Agent William Patterson, who was employed by the Towns County Sheriff's Office and attached to the Appalachian Drug Task Force. Agent Patterson and Bennett initially targeted Michael Goode, Patterson's co-indictee, as the object of their investigation. The intent was to have Bennett make multiple controlled drug buys from Goode to confirm what she had told the agent about the variety of drugs Goode was selling. In that regard, Bennett went to Goode's house in a Union County trailer park on February 9, 2010. Bennett was able to purchase two types of prescription pills and marijuana from him on that date.
Bennett returned to Goode's house on February 22, 2010, to again purchase pills and marijuana, but when she got there, he did not have any marijuana. Instead, he offered to procure some methamphetamine from Patterson. He then twice called Patterson's phone number to discuss a transaction. Although Goode's memory was sketchy, he recalled leaving his trailer and walking to Patterson's trailer to get the drugs. Bennett watched him walk around the trailer next door in the direction where Goode had indicated Patterson's trailer was located. He returned with the methamphetamine. On that occasion, Bennett was able to purchase fifteen and one-half small pills of diazepam and two " little corner baggies" of methamphetamine.
Later, Bennett used Patterson's phone number, which she had obtained from Goode, to call Patterson on two occasions in an attempt [328 Ga.App. 112] to set up a direct buy of methamphetamine from him, but her attempts were unsuccessful.
Police subsequently arrested Patterson on the methamphetamine charge and executed a search warrant on his house. During the search, police discovered a marijuana grinder, a small tray with loose marijuana and rolling papers, a pipe with the smell of burnt marijuana, and a small oval, white pill, which was sitting on his kitchen counter and which was later identified as hydrocodone. Patterson admitted at trial that he used the pipe for smoking marijuana and that he had marijuana
in the house at the time of his arrest, but he testified that he had never seen the pill the police found at his house before he swept it out from under his computer desk, picked it up and put it on his counter, thinking it might belong to his mother.
Patterson's mother testified that her doctor had prescribed Lortab for her in March 2010 when she broke her hip. During her recuperation, she stayed at Patterson's house for a week or so in the month before he was arrested. She testified that it was possible that she dropped some of her pills because she was unsteady on her walker, although she could not state with certainty that she had done so. Although she recalled that the medication looked like little capsules and the State raised some question as to whether she even would have had those pills when she stayed with Patterson, Patterson's sister testified that the Lortabs were oval, white pills and that her mother had those pills at Patterson's house.
At trial, Patterson denied that Goode came to his house on February 22, 2010, because he recalled that he was working that day, although he admitted that Goode could have come to his house any day before that. He also denied that he sold any methamphetamine to Goode, or that he had ever seen the methamphetamine in the " little corner baggies" introduced at trial. However, he admitted that he previously had used methamphetamine and that he had three prior felony convictions, one of which was for possession of methamphetamine.
On appeal, Patterson asserts that (1) the trial court committed plain error when it " intimidated and threatened [Goode] with a very harsh sentence unless [Goode] testified against [the] defendant in the way the government wanted him to testify" ; (2) the trial court [328 Ga.App. 113] " allowed the jury to believe that Mr. Goode was not getting a benefit for his agreement to testify against Mr. Patterson at trial" ; (3) the trial court committed plain error when it failed to properly instruct the jury on the issue of possession; (4) his trial counsel was ineffective with regard to presenting the issues regarding the trial court's alleged intimidation of Goode and with regard to the jury charges; and (5) the trial court erred when it failed to grant a new trial based on the jury foreperson's testimony that he observed Patterson in custody during a trial recess.
1. Patterson asserts the trial court committed plain error in intimidating Goode into testifying against Patterson. Two months before Patterson's trial, Goode pled guilty to the charges filed against him arising out of these incidents. Patterson asserts that during Goode's plea hearing, the trial judge, who was the same judge who presided over Patterson's trial, directly and forcefully interjected himself into the plea process by asking Goode why he should accept his plea deal and not reject it " until [Goode's] memory gets a little better on [the events of February 22, 2010]," noting that he could sentence Goode to a maximum of 70 years.
During her cross-examination of Goode, Patterson's defense counsel questioned him regarding specific questions asked at his plea hearing and his responses. Therefore, she presumably had a transcript of that hearing, but at no time did she raise the issue of any alleged impropriety by the trial court with regard to Goode's testimony. In fact, during a colloquy between counsel and the trial court regarding Goode's plea hearing, the prosecutor referenced the fact that " at some point, the Court challenged Mr. Goode during his plea and suggested the Court wouldn't take his plea if he didn't remember what he was guilty of," and Patterson's attorney responded, " I'm not going there."
In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is
offered, and the failure to do so amounts to a waiver of that specific ground. ... Despite his waiver, [Patterson] contends that the [trial court committed] plain error. But that doctrine is currently limited to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge's expression of opinion in violation of OCGA § 17-8-57, and ...