96 So. 3d 54
Miss. Ct. App.2012Background
- Gregory was convicted of simple possession of cocaine and sentenced to eight years with five to serve, three suspended, and three years probation; a marijuana possession conviction was set aside.
- Gregory argued the circuit court erred by denying his defense attorney Trout’s withdrawal; he also challenged a jury instruction on possession as a lesser-included offense.
- Facts show narcotics agents found cocaine and marijuana on Gregory and in his underwear during a November 2, 2009 arrest; Adams was present and claimed ownership of the cocaine.
- Adams testified he bought cocaine and that Gregory claimed to possess it for him; more drugs and cash were found in Gregory’s home, and a crack pipe was found on Adams.
- Forensic testing confirmed 1.5 grams of cocaine and 26 grams of marijuana were recovered; Gregory was charged with possession with intent to distribute and related conspiracy issues.
- The court affirmed the conviction and sentence, denying the withdrawal request and rejecting the lesser-included-offense instruction challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict of interest—actual vs potential | There was an actual conflict because Trout had prior prosecution duties over Gregory. | The conflict was only potential; no prejudice shown and Rule 1.9 application is limited. | No actual conflict; potential conflict did not prejudice defense; withdrawal properly denied. |
| Jury instruction on possession as lesser-included offense | Possession is a lesser-included offense to possession with intent to distribute; instruction appropriate. | Weight/quantity concerns render possession not a lesser-included offense; instruction should not have been given. | Instruction properly given; possession is lesser-included and Jamison distinctions do not require reversal. |
Key Cases Cited
- Ousley v. State, 984 So.2d 985 (Miss. 2008) (conflict of interest in prior representation)
- Irving v. Hargett, 518 F. Supp. 1127 (N.D. Miss. 1981) (actual conflict defined by adverse duties to clients)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (standard for prejudice showing when conflict is potential)
- Mease v. State, 539 So.2d 1324 (Miss. 1989) (concept of reasonable jury finding for lesser-included offenses)
- Booze v. State, 964 So.2d 1218 (Miss. Ct. App. 2007) (instruction must fairly announce law of case)
- Jamison v. State, 73 So.3d 567 (Miss. Ct. App. 2011) (quantity as sentencing factor; indictment/element considerations)
- Torrey v. State, 816 So.2d 452 (Miss. Ct. App. 2002) (possession is a lesser-included offense of possession with intent)
- Edwards v. State, 878 So.2d 1106 (Miss. Ct. App. 2004) (possession as lesser included offense recognized)