McNorrill v. State

338 Ga.App. 466

789 S.E.2d 823

McNorrill

v.The State.

A16A1016

Court of Appeals of Georgia.

August 3, 2016

Edward Hunt Brumby Jr., for Appellant.

Joshua Bradley Smith, Madonna Marie Little, Rebecca Ashley Wright, for Appellee.

Barnes, Presiding Judge.

A Richmond County jury found Todderius McNorrill guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. On appeal from the denial of his motion for new trial, McNorrill challenges the sufficiency of the evidence supporting his convictions. McNorrill further contends that he was deprived of his constitutional right to effective counsel because his trial counsel had an actual conflict of interest and failed to object to certain jury instructions. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State , 317 Ga.App. 807, 732 S.E.2d 845 (2012). The evidence in the present case, viewed in favor of the verdict, was recently summarized by this Court in Whaley v. State , 337 Ga.App. 50, 785 S.E.2d 685 (2016), the appeal of McNorrill's co-defendant, Meguel Whaley:

[A]round 10:30 p.m. on July 5, 2010, the victim received a call from his friend Chris asking if the victim wanted to hang out. The victim did not know Chris very well,¹ but agreed to pick him up at a gas station. After meeting up with Chris, the victim drove them around until Chris asked to stop at someone's house for a few minutes. The victim drove Chris to the house, and Chris went inside while the victim remained in his car. After Chris returned to the car, they continued to ride around until Chris received a call on his cell phone. The victim pulled his car into another gas station and let Chris out of the car so that he could talk on the phone privately. After talking on his phone, Chris got back into the car and asked the victim to drive to a nearby elementary school so that they could meet up with two men whom Chris identified as his cousin and his friend.

After Chris directed the victim to the elementary school, the victim drove into a lot on the side of the school to wait for Chris' cousin and friend to approach the car. Once the victim had driven into the lot, however, Chris asked the victim to turn off his car and walk with him behind the school to meet up with his cousin and friend there. Although he “felt kind of suspicious” at that point, the victim agreed to walk with Chris behind the school. Upon walking behind the school, the victim saw two men, later identified as ... [co-defendant] Whaley and ... McNorrill, sitting on some steps. Chris approached Whaley and McNorrill, gave them a high-five, and spoke with them privately for a few minutes while the victim stood nearby.

The victim thought they were going to walk back to his car, but Whaley suddenly approached the victim and pointed a handgun at him. Whaley said, “You know what time it is,” which the victim understood to mean that he was being robbed. Whaley held the gun to the victim's head as he went through the victim's pockets with his other hand. Chris began protesting, but Whaley told McNorrill to “shut him up,” and McNorrill pulled out a handgun and pointed it at Chris. The victim later told the police that one of the guns was a .22 caliber weapon and the other was a .380 caliber black and silver weapon.

Whaley told the victim to lie down on the ground and asked McNorrill for a roll of duct tape. After the victim lay on the ground, Whaley got the duct tape from McNorrill and wrapped it around the victim's eyes, mouth, and hands. Whaley placed his gun against the victim's head and again went through the victim's pockets, taking $125 in cash, a cell phone, the victim's keys, and his driver's license. Whaley warned the victim that he and McNorrill had the victim's identification and would kill the victim if he called the police. Before running from the scene, Whaley and McNorrill kicked the victim in the legs, ribs, and head.

The victim was able to free himself from the duct tape in time to see Whaley and McNorrill get inside his car and drive away from the school.² The victim then walked to a gas station a few minutes away and used the phone to call the police. A sheriff's deputy arrived at the gas station shortly thereafter, and the victim told the deputy about what had happened, described the two suspects, and provided a description of his stolen car. The deputy radioed the information to his dispatcher, and other deputies in the area were told to be on the lookout for the victim's car.

A few minutes later, another deputy saw the victim's car stopped at a red light at an intersection, confirmed that it matched the description of the stolen vehicle, and attempted to initiate a traffic stop. When the deputy activated the emergency lights on his marked patrol car, the driver of the victim's car ignored the lights and drove away, resulting in a police chase.

A deputy in a second marked patrol car activated his emergency lights and took over the chase. As the chase continued, Whaley jumped out of the driver's side door while the victim's car was still moving and ran towards the woods. McNorrill remained in the front passenger seat after Whaley jumped out, and the victim's car crashed through a fence and came to a stop against a tree. Deputies pursued Whaley on foot and gave several verbal commands for him to stop, but he continued running from them. One of the deputies caught up with Whaley and was able to apprehend him....

Another deputy approached the crashed car and arrested McNorrill, who was still in the passenger seat. The deputy searched McNorrill and discovered twelve .22 caliber bullets in his pocket. The victim subsequently was driven to the scene where the car chase had concluded, and he confirmed that Whaley and McNorrill were the perpetrators in a show-up identification.

Deputies searched the victim's car that had been taken by Whaley and McNorrill. Marijuana weighing a total of 4.5 grams was in plain view on the passenger seat and on the driver's side floorboard. From the way the marijuana was packaged, it appeared to be for distribution. The victim later testified at trial that the marijuana did not belong to him. Additionally, deputies found a loaded Hi–Point .380 caliber handgun on the driver's seat, and the victim testified that it was the gun that Whaley had pointed at him.

Deputies also searched behind the elementary school, where they found an empty roll of duct tape and a baseball cap that belonged to the victim. However, the victim's cell phone, cash, and other personal items were never found.

Whaley and McNorrill were jointly charged with hijacking a motor vehicle, armed robbery, false imprisonment, possession of marijuana with intent to distribute, and two counts of possession of a firearm during the commission of a crime.... Whaley and McNorrill subsequently were tried together. The victim and responding deputies testified to the events as summarized above, and the State introduced and showed to the jury a video recording of the police car chase and photographs of the items seized at the elementary school and from the victim's car. Whaley and McNorrill elected not to testify and did not present any defense witnesses.

After reviewing all the evidence, the jury found both Whaley and McNorrill guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, and one count of possession of a firearm during the commission of a crime.... The jury acquitted Whaley and McNorrill of armed robbery, false imprisonment, and one count of possession of a firearm during the commission of a crime....

McNorrill filed a motion for new trial, as amended, in which he challenged the sufficiency of the evidence and contended that his trial counsel rendered ineffective assistance. After conducting an evidentiary hearing, the trial court denied the motion. This appeal followed.

1. McNorrill contends that there was insufficient evidence to support his conviction of possession of marijuana with intent to distribute.³ While he concedes that there was evidence that he possessed the marijuana found in the victim's stolen car, McNorrill maintains that there was insufficient evidence showing that he acted with the intent to distribute the marijuana. We disagree.

To prove possession with intent to distribute, the State must show more than mere possession of a controlled substance. No bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute, and whether the State has proven an intent to distribute is peculiarly a question of fact for determination by the jury. Furthermore, in addressing the sufficiency of the evidence, we are always mindful that it is not our role to weigh the evidence or determine the credibility of witnesses; instead, under the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we only determine whether a rational trier of fact could have found the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Flemister v. State , 317 Ga.App. 749, 752, 732 S.E.2d 810 (2012). Additionally, where, as in the present case, the conviction at issue is based solely on circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused,” and whether that State has met this burden is normally a question for the jury. (Citation and punctuation omitted.) Noble v. State , 225 Ga.App. 470, 471, 484 S.E.2d 78 (1997).

Here, the marijuana found in the car was packaged in nine individual baggies, with eight of the baggies contained in a larger plastic bag on the driver's side...