339 Ga. App. 371
Ga. Ct. App.2016Background
- In 2004 Toby McGlothlin lived with Maria Bergener and her adopted son J.B.; McGlothlin often babysat and was alone with the child.
- J.B. disclosed in counseling and a forensic interview that McGlothlin had washed and touched his penis, showed his penis, and asked about urinating in his or McGlothlin’s mouth; J.B. denied consenting.
- Police recorded an interview in which McGlothlin denied intentional misconduct but conceded his arm might have bumped J.B.; he later called the detective suggesting uncertainty about what he "did."
- Two jailhouse informants testified that McGlothlin admitted performing oral sex on J.B. and that J.B. urinated in his mouth; one witness (Kevin Kinney) later received a sentence reduction after testifying.
- McGlothlin was convicted of enticing a child for indecent purposes and child molestation (rubbed J.B.’s penis) but acquitted of aggravated child molestation (oral sex). He moved for a new trial and appealed.
Issues
| Issue | McGlothlin's Argument | State's Argument | Held |
|---|---|---|---|
| Failure to disclose plea/benefit to witness (Brady/Giglio) | Prosecution failed to disclose a pretrial promise by police to help Kinney secure a sentence reduction; undisclosed deal would impeach Kinney. | Either no disclosure duty or any nondisclosure was not material; jurors already discredited parts of Kinney’s testimony and other evidence supports conviction. | No Brady/Giglio reversal: nondisclosure (assumed) not material; no reasonable probability of different outcome. |
| Ineffective assistance — failure to object to detective calling defendant a felon in recorded interview | Trial counsel ineffective for not objecting to detective’s felony reference and related interview portions. | Even if objectionable, reference was immediately refuted by McGlothlin; acquittal on aggravated molestation and other evidence negate prejudice. | No ineffective assistance: defendant cannot show reasonable probability of different result. |
| Ineffective assistance — failure to object to polygraph-reference in recorded interview | Counsel should have objected to polygraph-reference as inadmissible. | Polygraph reference was already admitted via other witnesses; admission was cumulative. | No ineffective assistance: cumulative evidence and lack of prejudice. |
| Cumulative error | Cumulative trial errors deprived McGlothlin of a fair trial. | Any individual deficiencies were harmless and cumulatively did not create reasonable likelihood of different outcome. | No cumulative-prejudice; judgment affirmed. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (prosecution must disclose material exculpatory/impeachment evidence)
- Giglio v. United States, 405 U.S. 150 (impeachment evidence of witness benefits must be disclosed)
- Reed v. State, 291 Ga. 10 (ineffective-assistance prejudice standard and acquittal on some counts can show lack of prejudice)
- Williams v. State, 292 Ga. 844 (cumulative-deficiency harmlessness; counsel error must create reasonable likelihood of different outcome)
- Ford v. State, 273 Ga. App. 290 (State must disclose any agreement with witnesses concerning pending charges)
- Moclaire v. State, 215 Ga. App. 360 (nondisclosed evidence that does not undermine confidence in outcome does not require new trial)