McGLYNN v. THE STATE
342 Ga. App. 170
Ga. Ct. App.2017Background
- McGlynn and a co-defendant were stopped for traffic violations; marijuana and drug paraphernalia were found under the front passenger seat and in the rear compartment. McGlynn was passenger.
- McGlynn admitted in a recorded interview that he owned the blue container and pipe and had purchased/smoked marijuana the day before, but denied ownership of the recovered marijuana.
- Co-defendant pled guilty to related offenses before McGlynn’s trial; on eve of trial an ADA warned the co-defendant that false testimony could lead to perjury charges and consequences for probation—co-defendant then asserted his Fifth Amendment privilege when called by McGlynn.
- McGlynn was indicted for misdemeanor possession of marijuana (less than one ounce); he moved to disqualify the DA’s office, filed a special demurrer challenging indictment specificity, moved to exclude his prior-day use/purchase statements (Rule 404(b)), and sought a directed verdict based on equal access.
- Trial court denied disqualification, denied the special demurrer, admitted the recorded interview as intrinsic (and alternatively under Rule 404(b)), and denied directed verdict; jury convicted McGlynn.
Issues
| Issue | McGlynn's Argument | State's Argument | Held |
|---|---|---|---|
| Whether DA’s office must be disqualified for allegedly intimidating co-defendant witness | ADA’s pretrial warnings coerced the witness to invoke Fifth Amendment and deprived McGlynn of due process (relying on Webb) | ADA’s statements were legally accurate warnings; witness consulted independent counsel and privilege is his right; no sanctionable conduct | Denial affirmed — no due process violation shown; warnings lawful and witness’ choice to invoke Fifth Amendment permissible |
| Whether indictment was fatally vague because drugs were found in multiple places and co-defendant charged similarly | Indictment didn’t identify which particular marijuana McGlynn was alleged to possess, depriving notice | Indictment cited statute and elements; any marijuana found would support conviction; defendant’s defense (blame co-defendant) was unchanged by specificity | Denial affirmed — indictment sufficient under Corhen test |
| Admissibility of McGlynn’s statement about purchasing/smoking marijuana day before (Rule 404(b)) | Statements are other-act evidence and required 404(b) notice and exclusion | Statements were intrinsic (res gestae) or, alternatively, admissible under 404(b); transcript provided months before trial | Denial affirmed — trial court did not abuse discretion admitting statements as intrinsic; alternative 404(b) analysis unnecessary |
| Whether directed verdict should have been granted under equal access doctrine | Drugs were in an area accessible to co-defendant; State failed to prove exclusive control by McGlynn | McGlynn admitted ownership of the container and pipe and admitted recent use — evidence connecting him to items beyond mere equal access | Denial affirmed — equal access raised jury question because other evidence connected McGlynn to contraband |
Key Cases Cited
- Webb v. Texas, 409 U.S. 95 (court invalidated conviction where judge’s threats chilled witness testimony)
- Terry v. State, 308 Ga. App. 424 (governmental intimidation of witnesses analyzed case-by-case; witness’ consultation with counsel reduces coercion concern)
- Corhen v. State, 306 Ga. App. 495 (standard for reviewing special demurrer and sufficiency of indictment)
- Brooks v. State, 298 Ga. 722 (definition of intrinsic evidence: same transaction, completes the story, or inextricably intertwined)
- Satterfield v. State, 339 Ga. App. 15 (intrinsic vs. extrinsic evidence under modern evidence rules)
- Sing v. State, 217 Ga. App. 591 (equal-access defense is for jury when other evidence links defendant to contraband)
- Cochran v. State, 190 Ga. App. 884 (equal access requires affirmative evidence another had access to specific location)
- Murray v. State, 157 Ga. App. 596 (prosecutor may inform witnesses of legal consequences for false testimony)
- Reeves v. State, 294 Ga. 673 (trial court’s 404(b) evidentiary rulings reviewed for abuse of discretion)