Gregory v. State
| Decision Date | 07 August 2012 |
| Docket Number | No. 2011–KA–00204–COA.,2011–KA–00204–COA. |
| Citation | 96 So.3d 54 |
| Parties | Romalas GREGORY, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Thomas Roy Trout, New Albany, Kenneth Harold Coghlan, Oxford, Stuart Sheffield Davis, attorneys for appellant.
Office of the Attorney General by John R. Henry Jr., attorney for appellee.
Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
GRIFFIS, P.J., for the Court:
¶ 1. Romalas Gregory was convicted in the Lafayette County Circuit Court of simple possession of a controlled substance, cocaine, in violation of Mississippi Code Annotated section 41–29–139(c)(1) (Supp.2011). He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, with five years to serve, three years suspended and three years of supervised probation. Gregory was also convicted of possession of less than thirty grams of marijuana. However, the possession conviction was set aside at the State's request. On appeal, Gregory argues the circuit court erred when it refused to allow his defense attorney, T.R. Trout, to withdraw as his counsel. Gregory also argues that the circuit court erred when it gave an instruction on possession as a lesser-included offense. We find no error and affirm.
FACTS
¶ 2. On November 2, 2009, Lafayette County Metro Narcotics Unit agents served an arrest warrant on Gregory at his residence. Gregory and Michael Adams were present. Gregory was inside the house, and Adams was outside. When Gregory exited the house with the agents, the agents noticed him reach into the crotch area of his pants. The agents stopped him. Then, they retrieved cocaine and marijuana from inside of his underwear, as well as cash from his pockets.
¶ 3. Adams was about twenty-five feet from Gregory when the agents found the cocaine. Gregory said he was holding the cocaine for Adams. Adams heard this and stated that it was his cocaine and not Gregory's cocaine. Gregory consented to a search of his house. The agents found more marijuana and more cash. The agents also found a crack pipe on Adams.
¶ 4. According to Adams, on the morning of November 2, 2009, Adams bought two pieces of crack cocaine from a drug dealer at a local community store. He then returned to his own home and smoked some of the cocaine. Adams testified that Gregory picked him up and brought him to Gregory's house to do yard work. At that time, Adams still had some cocaine in his pocket. Adams lit a fire to burn some trash, but he was concerned about the cocaine melting in his pocket. So, he went back to Gregory's house and laid the cocaine on a table in the basement. After doing some work, Adams came up to the house and was looking for the cocaine. Adams testified that when the police arrived he was about to ask Gregory where the cocaine was.
¶ 5. Gregory was charged with possession of crack cocaine with intent to distribute. Adams was charged with conspiracy to possess a controlled substance, but that charge was never presented to the grand jury.
¶ 6. Forensic tests confirmed that the agents found 1.5 grams of cocaine (a Schedule II substance) and a total of 26 grams of marijuana (a Schedule I substance). Additional facts specific to the two issues on appeal will be discussed below.
ANALYSIS
¶ 7. Trout previously worked in the district attorney's office. While there, he had prosecuted Gregory on an entirely unrelated drug charge, six years earlier. Trout brought up the possibility of a conflict of interest the day before Gregory's trial began. Two days before trial, the State gave Trout a file that it intended to use to enhance Gregory's sentence. At that time, Trout realized he had assisted in the prosecution of Gregory on a prior unrelated charge. Trout's involvement in the prior prosecution was that he had signed the indictment, took Gregory's plea, and prepared an order reflecting the plea. There was no evidence to indicate why Gregory's prior case then languished for several years. When a new prosecutor took over the case, Gregory entered a new plea petition that reduced the charge.
¶ 8. Trout discussed these facts with Gregory. Gregory decided that he no longer wanted Trout to represent him. The State agreed not to introduce the prior conviction in its case in chief or to use it for impeachment purposes. Trout claimed that Gregory no longer had confidence in Trout's representation. The circuit court overruled Trout's motion to withdraw and stated,
¶ 9. “A trial court's findings of fact when considering a motion to disqualify an attorney are reviewed for manifest error.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1220 (¶ 51) (Miss.2001) (citing Colson v. Johnson, 764 So.2d 438, 439 (¶ 4) (Miss.2000)). The trial court has broad discretion. Id.
¶ 10. This Court must first determine whether these circumstances present an actual conflict of interest or a potential conflict of interest because “once an actual conflict is demonstrated, a showing of specific prejudice is not necessary.” Littlejohn v. State, 593 So.2d 20, 24 (Miss.1992) (quoting United States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir.1978)). However, when there is only a potential conflict of interest, a defendant must show that “a conflict of interest actually affected the adequacy of his representation.” Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Therefore, whether Gregory must demonstrate prejudice turns on whether the conflict of interest was actual or potential.
¶ 11. Mississippi has applied the Fifth Circuit Court of Appeal's definition of “actual conflict”:
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.
Irving v. Hargett, 518 F.Supp. 1127, 1144 (N.D.Miss.1981) (citing Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979)) (emphasis added). Throughout Gregory's brief, he refers to the conflict of interest as an actual conflict. Yet, Gregory does not explain why the conflict should be labeled an actual conflict.
¶ 12. Mississippi Rule of Professional Conduct 1.9 governs current and former client conflicts of interest:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
¶ 13. Neither appellate brief addressed Rule 1.9. Instead, both briefs cite Mississippi Rule of Professional Conduct 1.7, which provides:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:
(1) the representation will not adversely affect the relationship with the other client; and
(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:
(1) the representation will not be adversely affected; and
(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.
¶ 14. Rule 1.7 is the general conflict of interest rule, but it is not applicable here. Trout does not represent two current clients in a simultaneous representation. Here, the potential conflict of interest is between a former client and a current client. In 2010, at the time of his representation of Gregory, Trout did not work for the district attorney's office.
¶ 15. “No citation of authority is necessary for the obvious proposition that a conflict of interest will exist for a prosecutor who previously represented a particular defendant in a particular case.” Ousley v. State, 984 So.2d 985, 987 (¶ 8) (Miss.2008). In those types of situations, the lawyer has an actual conflict of interest and cannot begin to prosecute the former defense client. Id. Gregory's circumstances are the reverse of this scenario and do not present the same concerns about the sharing of confidential communications. Trout had represented the State where Gregory's (his current client) interests were materially adverse to the State's (his former client) interests. However, that prior representation was not “in the same or a substantially related matter.” M.R.P.C. 1.9. That prior representation was in a wholly unrelated drug charge separated in time by at least four years.
¶ 16. The comment to Rule 1.9 states “[t]he lawyer's involvement in a matter can also be a question of degree.” Trout's involvement was neither extensive nor intensive. He did not bring the case to completion. The case did not involve a trial. Trout only signed the indictment, took Gregory's plea, and prepared an order reflecting the plea. This was not the same plea that Gregory ultimately was convicted of and received...
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