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McGlynn v. State

Court of Appeals of Georgia, Fifth Division

June 28, 2017

McGLYNN
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         James Harold McGlynn, Jr. appeals from the denial of his motion for a new trial following his conviction for one count of misdemeanor possession of marijuana.[1]On appeal, he enumerates four errors. First, he claims that the trial court erred by denying his motion to disqualify the district attorney's office from prosecuting his case based on an allegation that prosecutorial misconduct had deprived him of his right to due process. Second, he claims the trial court erred by denying his special demurrer to the marijuana possession count in the indictment. Third, he claims the trial court erred by admitting evidence relating to his purchase and use of marijuana the day before his arrest for possession pursuant to OCGA § 24-4-404 (b) and as intrinsic evidence of the offense. Fourth, he claims that the trial court erred by denying his motion for a directed verdict on the marijuana possession charge based on the equal access doctrine. As each of these claims are without merit, we affirm his conviction.

         On appeal, the defendant "is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict." Batten v. State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014) (citations omitted). So viewed, McGlynn and a co-defendant[2] were stopped by a deputy sheriff for speeding and failure to maintain lane. The co-defendant was driving the vehicle, and McGlynn was seated in the front passenger seat.

         After initiating the traffic stop, the deputy approached the passenger side window, which was rolled down. He immediately detected the smell of marijuana, and he asked the co-defendant to exit the vehicle. When asked by the deputy about the marijuana smell, the co-defendant denied knowing about any marijuana in the vehicle.

         McGlynn was instructed to exit the vehicle, and the deputy began searching the vehicle. Under the front passenger seat (where McGlynn had been seated), the deputy located a blue container which held a green leafy substance which later tested positive as marijuana. Both McGlynn and the co-defendant denied owning the blue container. Under the same seat, he also located a potato chip bag in which was held a smoking pipe containing marijuana residue.

         The deputy then began searching in the rear compartment of the vehicle, where he located an additional bag containing both marijuana and dried mushrooms- a Schedule I controlled substance. After the search was completed, McGlynn and the co-defendant were arrested and transported to the county jail.

         McGlynn was interviewed by a police investigator later that day. In that interview, he told the investigator that he had purchased and smoked some marijuana the day before the arrest. McGlynn also told the investigator that the blue container and the orange smoking pipe found by the officers during the search of the vehicle belonged to him but denied that the marijuana was his.

         McGlynn and his co-defendant were indicted. In pre-trial proceedings, McGlynn filed a special demurrer as to the sole count against him for possession of marijuana. That count alleged that, on the day of his arrest, McGlynn "did unlawfully have under his control less than an ounce of marijuana in violation of the Georgia Controlled Substances Act." At the hearing on the demurrer, McGlynn offered testimony regarding the three locations in the vehicle where marijuana had been located (the blue container, the orange pipe, and the bag in the rear compartment). He argued that the terms of the indictment failed to give McGlynn notice as to which marijuana the State alleged him to have been in possession of at the time of the traffic stop, as both McGlynn and the co-defendant were charged with the exact same offense in two different counts of the indictment. The State countered that because McGlynn had admitted to owning the blue container and the orange pipe in his interview with the investigator and because he admitted to recent purchase and consumption of marijuana, he had been placed on sufficient notice of the charge. The trial court denied the special demurrer.

         McGlynn also filed a motion in limine to exclude evidence of his use and purchase of marijuana on the day before the traffic stop. The trial court denied this motion, ruling that McGlynn's interview with the police investigator which contained this evidence could be played for the jury at trial. McGlynn also challenged the admission of the evidence on the basis that he had not received adequate notice from the State that it intended to introduce this evidence against him pursuant to Rule 404 (b). The trial court also rejected this argument, noting that McGlynn received a copy of the recorded interview and a transcript eight or nine months prior to trial. In addition, the trial court determined that notice was not required because, pursuant to Rule 404 (b), no notice is required when the evidence pertains to "circumstances immediately surrounding the charged crime." The court therefore determined that the evidence could be presented both as intrinsic evidence and to show intent, motive, and knowledge pursuant to Rule 404 (b).

         On the morning the trial was to begin, McGlynn made an oral motion to recuse any member of the district attorney's office from prosecuting the case, alleging prosecutorial misconduct. He alleged that an assistant district attorney (ADA) had "confronted" the co-defendant, who McGlynn planned to call as a witness at trial. McGlynn alleged that the ADA "threatened" and "intimidated" the co-defendant, suggesting that the co-defendant would be prosecuted for perjury if he elected to testify in the trial on McGlynn's behalf. Clarifying the facts surrounding this claim, McGlynn's attorney stated that the ADA who had handled the co-defendant's case for the State had spoken to the co-defendant in a room outside the courtroom and asked him what his testimony would be in McGlynn's trial. The co-defendant told the ADA that he planned to claim ownership of all of the marijuana seized from the vehicle. The ADA replied that she did not believe him and indicated to him that false testimony could subject him to a perjury charge, that it would violate the terms of his First Offender probation, and that he could be sent to jail. The co-defendant spoke with his counsel, who advised him that he could be subject to indictment for perjury if he testified falsely in the trial. The co-defendant was advised by his counsel that he should assert his Fifth Amendment right against self-incrimination.

         The trial court denied McGlynn's motion to disqualify. At trial, the co-defendant was called as a witness, and he testified regarding his background, his business, his connection to McGlynn, and the reason they were traveling at the time of the traffic stop. He also testified regarding the charges he faced stemming from the traffic stop, including his guilty plea to possession of marijuana. However, he asserted his Fifth Amendment privilege, and he refused to testify with regard to who owned the blue container and the orange pipe found in the vehicle or whether he brought marijuana into the vehicle.

         McGlynn was found guilty on the sole count against him for misdemeanor possession of marijuana, for which he was sentenced to one year of probation, a fine, and community service. His motion for a new trial, alleging the same errors he enumerates on appeal, was denied, and this appeal followed.

         1. With regard to McGlynn's motion to disqualify the district attorney's office from prosecuting the case, we note at the outset that this Court takes seriously its role both in addressing attorney misconduct and in holding those who allege such misconduct to a high standard of proof. In this case, McGlynn relies on the United States Supreme Court's decision in Webb v. Texas, 409 U.S. 95 (93 S.Ct. 351, 34 L.Ed.2d 330) (1972)[3] to suggest that his rights to due process were violated. McGlynn argues that the ADA's ...


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