Count of conspiracy to deliver cocaine

Mississippi Reports

DEAR v. STATE, 2005-KA-02281-COA (Miss.App. 12-12-2006) GREGORY J. DEAR A/K/A GREGORY DEAR A/K/A GREG DEAR, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE. No. 2005-KA-02281-COA. Court of Appeals of Mississippi. December 12, 2006.

TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III, DATE OF JUDGMENT: 8/24/2005

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, SALE OF COCAINE, AS A NONVIOLENT HABITUAL OFFENDER AND AS A SUBSEQUENT DRUG OFFENDER AND SENTENCED TO SERVE SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND COUNT II, CONSPIRACY TO SELL COCAINE AS A SUBSEQUENT DRUG OFFENDER AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS SENTENCE IN COUNT II TO RUN CONCURRENT WITH THE SENTENCE IMPOSED IN COUNT I.

DISPOSITION: AFFIRMED

ATTORNEY FOR APPELLANT: DAN W. DUGGAN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
W. GLENN WATTS

DISTRICT ATTORNEY: DAVID BYRD CLARK

BEFORE KING, C.J., CHANDLER AND ROBERTS, JJ.

ROBERTS, J., FOR THE COURT:

SUMMARY OF THE CASE

¶ 1. On August 31, 2004, a jury sitting before the
Rankin County Circuit Court found Gregory Dear guilty of
one count of sale of cocaine and one count of conspiracy to
deliver cocaine. Convicted as a habitual offender under
section 99-19-81 of the Mississippi Code, the circuit court
sentenced Dear to a sixty year sentence on the sale charge
and a twenty year sentence on the conspiracy charge. The
circuit court set the sentences to run concurrently.
Aggrieved, Dear appeals and seeks resolution of two issues,
listed verbatim:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT
GRANTING THE MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE,
JUDGMENT NOTWITHSTANDING THE VERDICT.

II. TRIAL COUNSEL WAS INEFFECTIVE IN PROPOSING JURY
INSTRUCTION D-2.

Finding no error, we affirm.

FACTS

¶ 2. The federal government’s Office of National
Drug Control Policy designates certain areas of the country
as High-Intensity Drug Trafficking Areas (HIDTA). Through
the HIDTA program, the federal government provides
resources to state and local agencies that focus on
narcotics crimes. This case centers on events involving a
HIDTA controlled narcotics purchase in the surrounding
suburban areas of Jackson, Mississippi.

¶ 3. The events that set Dear’s conviction into
motion originated during the late part of 2002. It was then
that Agent Barry Coward of the Mississippi Bureau of
Investigation met Jason Warren and started buying cocaine
from him. Agent Coward sought to purchase two ounces of
crack cocaine from Warren. To that end, Agent Coward and
Warren agreed to meet at a designated place on March 6,
2003.

¶ 4. Prior to their arranged meeting, Warren
contacted Agent Coward and reported that he could not
obtain crack cocaine. However, Warren told Agent Coward
that he could obtain powdered cocaine. Agent Coward agreed
to purchase the powdered cocaine. Warren and Agent Coward
agreed to meet at a designated site. Prior to his meeting
with Warren, Agent Coward met with the other local
associated HIDTA officers and planned their operation.

¶ 5. Outfitted with transmitting and recording
equipment, Agent Coward waited for Warren at their agreed
meeting site. Warren, however, did not show up. The
officers contacted a confidential informant and discovered
that Warren had George Keyes and Greg Dear with him. Warren
did not meet Agent Coward because Warren or someone with
him recognized a local narcotics officer at the meeting
site. Instead, Warren returned to his home.

¶ 6. The officers returned to the local HIDTA office
and prepared to “shut down” operations based on Warren’s
failure to appear at the meeting area. However, Warren
called Agent Coward and agreed to meet at a different
location — the Flying J truck stop in Flowood,
Mississippi. Warren informed Agent Coward that two other
people might accompany him.

¶ 7. Again, the various HIDTA associated officers
took up strategic positions at the Flying J in anticipation
of Agent Coward’s drug purchase. Agent Coward again waited
for Warren. Again, Warren never appeared. However, Warren
did not want to take part in the exchange, so Warren sent
others on his behalf. In particular, he sent his roommate,
Greg Dear, and George Keyes. While Dear waited in the car,
Keyes and Agent Coward conducted the exchange.

¶ 8. Agent Coward sat in his car in the parking lot
and waited. Keyes walked up to Agent Coward’s car, tapped
on the window, and got into Agent Coward’s car. Keyes gave
Agent Coward two ounces of powdered cocaine. In exchange,
Agent Coward gave Keyes $1,600. After the exchange, the
other officers moved in to arrest Keyes.

¶ 9. Keyes spotted the officers as he left Agent
Coward’s car. Intent on evading arrest, Keyes broke and ran
across the parking lot and the adjacent four lane highway.
Keyes escaped down an embankment into a low-lying wooded
area and successfully evaded capture that evening.
According to Keyes’s trial testimony, he followed a set of
railroad tracks to Mendenhall, Mississippi, where his
girlfriend lived. Authorities captured Keyes at his
girlfriend’s house the next day.

¶ 10. Greg Dear did not fare as well as Keyes in
evading capture. At trial, a hotly disputed issue was
whether Dear attempted to leave the scene. In the light
most favorable to the State, Dear attempted to leave the
parking lot, but was unsuccessful because officers used
their patrol cars to block his escape.

PROCEDURAL HISTORY

¶ 11. On September 10, 2003, the Rankin County grand
jury returned an indictment against Dear. That indictment
charged Dear with one count of selling cocaine in violation
of section 41-29-139 of the Mississippi Code and one count
of conspiracy to sell cocaine in violation of section
97-1-1 of the Mississippi Code. On October 17, 2003, Dear
filed a waiver of arraignment and pled not guilty to the
charges against him. Accordingly, the matter proceeded to
trial.

¶ 12. Dear’s trial commenced on July 19, 2005. The
State called six witnesses, including Agent Coward and
George Keyes. After the State ceased its case-in-chief,
Dear took the stand. The jury found Dear guilty of both
sale of cocaine and conspiracy to sell cocaine. Posttrial,
Dear filed unsuccessful motions for JNOV or, alternatively,
for a new trial. Dear appeals the circuit court’s denial of
his posttrial motions.

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT
GRANTING THE MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE,
JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 13. In his first issue, Dear challenges both the
weight and sufficiency of the evidence against him. In
appealing the circuit court’s decision to overrule his
motion for JNOV, Dear challenges the sufficiency of the
evidence. Pratt v. State, 870 So.2d 1241 ( 13)
(Miss.Ct.App. 2004). In reviewing the sufficiency of the
evidence, we consider all the evidence in the light most
favorable to the State. Id. at (¶ 4). We accept as
true any credible evidence consistent with Dear’s guilt.
Id. We give the State the benefit of all favorable
inferences that may be reasonably drawn from the evidence.
Id. We presume that the jury resolved questions regarding
the weight and credibility of the evidence. Id. We may only
reverse when, with respect to at least one of the elements
of the offense, the evidence is such that no reasonable and
fair-minded jury could find Dear guilty. Id.

¶ 14. In appealing the circuit court’s decision to
overrule his motion for a new trial, Dear challenges the
weight of the evidence. Sullivan v. State, 749 So.2d 983
(¶ 25) (Miss. 1999). As we consider the weight of
the evidence, we accept evidence that supports the verdict
as true and we will reverse only if the circuit court
abused its discretion in failing to grant a new trial. Id.
at (¶ 20). The State gets the benefit of all
favorable inferences reasonably drawn from the evidence.
Id. We will reverse if the verdict is so contrary to the
overwhelming weight of the evidence to the degree that an
unconscionable injustice would result if we did not disturb
the circuit court’s decision. Id. What is more, we will not
re-weigh the facts so as to substitute our interpretation
of witness credibility for the jury’s. Id.

¶ 15. It is important to note that the jury found
Dear guilty of both selling cocaine and conspiring to sell
cocaine. It appears that Dear challenges the weight and
sufficiency of both convictions, though he does not frame
his arguments to the specific elements of either
conviction. Instead, Dear merely states that “[t]he facts
demonstrate how the evidence is insufficient to support
conviction in the case.” Notwithstanding Dear’s nonspecific
assertions, we assume he uses the same argument incident to
either conviction. In any event, Dear’s argument under this
issue is based on four points: (1) he had a plausible
explanation for his being at the Flying J with Keyes, (2)
no evidence indicated that he took part in the exchange at
the Flying J, (3) there was conflicting evidence as to
whether he attempted to evade capture, and (4) because
Keyes testified as a convicted felon, his testimony was not
credible.

A. Conspiracy

¶ 16. If two or more people conspire to commit a
crime, each of them is guilty of conspiracy, a felony.
Miss. Code Ann. § 97-1-1(a)(h) (Rev. 2000). To prove
a prima facie case of conspiracy, the State bears the
burden of proving, beyond a reasonable doubt, that the
conspirators recognized that they entered into a common
plan and knowingly intended to further the plan’s common
purpose. Franklin v. State, 676 So.2d 287, 288 (Miss.
1996). Circumstantial evidence is acceptable proof as to
whether the alleged participants formed a conspiracy. Id.
Likewise, circumstantial evidence is acceptable proof as to
whether a defendant was a member of a conspiracy. Id.

¶ 17. To convict a defendant for conspiracy, the
State must prove that the alleged conspirators formed a
“union of the minds.” Id. As for the necessary conspiracy
agreement, it need not be a formal or express agreement.
Id. Rather, a conspiracy agreement may be inferred from the
circumstances by “declarations, acts, and conduct of the
alleged conspirators.” Id.

¶ 18. Keyes testified that, after the failed attempt
to meet at the initial agreed-upon site, he, Warren, and
Dear went back to Warren and Dear’s house. Keyes also
testified that, after Warren spoke to Agent Coward and
agreed to meet at the Flying J, Warren and Dear discussed
the upcoming meeting with Dear. In particular, Keyes
testified as follows:

Q. What were [Warren and Dear] talking about?

A. Like they were going to make a sale.

Q. A sale of what?

A. Cocaine.

¶ 19. Keyes’s testimony indicates that Warren and
Dear formed a union of the minds intent on selling cocaine
to Agent Coward. What is more, Dear’s conduct amounts to
circumstantial evidence of an agreement with Warren to sell
cocaine. Keyes testified that Dear drove to the Flying J
and that he rode with Dear. Additionally, Keyes testified
that he did not know that the Flying J was the agreed-upon
site until Dear made him aware it. Finally, Keyes testified
that Dear took the cocaine from Warren, Dear put the
cocaine in the car they drove to the Flying J, Dear took
the cocaine out from under the passenger seat when they
arrived at the Flying J, and Dear gave him the cocaine to
deliver to Agent Coward in exchange for money.

¶ 20. Considering Keyes testimony, we do not find
that the circuit court erred when it overruled Dear’s
motion for JNOV. Keyes’s testimony, viewed in the light
most favorable to the verdict, certainly indicates that a
reasonable and fair-minded jury could find Dear guilty of
conspiracy to sell cocaine. For the same reasoning, we do
not find that the circuit court abused its discretion when
it overruled Dear’s motion for new trial. As such, we
affirm.

B. Sale

¶ 21. Dear challenges the weight and sufficiency of
the evidence that he sold cocaine. “Except as authorized by
this article, it is unlawful for any person knowingly or
intentionally . . . [t]o sell, barter, transfer,
manufacture, distribute, dispense or possess with intent to
sell, barter, transfer, manufacture, distribute or dispense,
a controlled substance. . . .” Miss. Code Ann. §
41-29-139(a)(1) (Rev. 2005).

¶ 22. “[T]he State is not required to prove that the
seller of a controlled substance personally placed the
substance in the hands of the buyer or even knew the buyer
prior to the sale.” Sullivan v. State, 749 So.2d 983
(¶ 27) (Miss. 1999). Section 41-29-139(a)(1) requires
that the State prove only that Dear knowingly or
intentionally transferred a controlled substance. Id. “[A]
person who consents to the commission of a crime and
knowingly does an act which aids, assists or encourages
that crime, or does any act which leads to its commission,
is tried as a principal.” Id.

¶ 23. Even minimal involvement in an illegal drug
transaction is sufficient to support a criminal conviction
for drug trafficking. Flowers v. State, 726 So.2d 185, 187
(¶ 11) (Miss.Ct.App. 1998). Merely aiding in the
consummation of a drug transaction can result in guilt as a
principal. Id. The State is not required to prove that a
defendant had control over the substance or that a defendant
profited from a transaction. Id. It is enough to show that
a defendant aided and abetted another in making the sale.
Id.

¶ 24. Keyes testified that Dear took cocaine from
Warren, placed it in a car, rode with it to the Flying J,
and gave it to Keyes to deliver to Agent Coward. True
enough, no testimony indicated that Keyes conducted the
actual transaction with Agent Coward. Even so, involvement
as a courier is sufficient conduct to support a conviction
for sale of cocaine. Edwards v. State, 878 So.2d 1106, 1109
(¶ 11) (Miss.Ct.App. 2004). Accordingly, a
reasonable jury could certainly find Dear guilty of selling
cocaine. As such, the circuit court did not err when it
overruled Dear’s motion for JNOV. Nor did the circuit court
abuse its discretion when it overruled Dear’s motion for a
new trial. We therefore affirm.

II. TRIAL COUNSEL WAS INEFFECTIVE IN PROPOSING JURY
INSTRUCTION D-2.

¶ 25. Dear takes issue with jury instruction D-2.
D-2 stated, “The Court instructs the Jury that the
testimony of a co-defendant may be considered as evidence,
but the testimony of the co-defendant should be considered
with caution.” Dear claims his trial counsel was
ineffective for submitting instruction D-2 because,
according to Dear, precedent dictates that the instruction
should have instructed the jury to consider Keyes’s
testimony “with great care, caution, and suspicion.” See
Finley v. State, 725 So.2d 226 (¶¶ 17-18)
(Miss. 1998); Derden v. State, 522 So.2d 752, 754 (Miss.
1988).

¶ 26. When reviewing claims of ineffective
assistance of counsel, this Court utilizes the two-prong
standard set forth in Strickland v. Washington, 466 U.S.
668 (1984). One who asserts ineffective assistance of
counsel must demonstrate (1) that his counsel’s performance
was deficient and (2) that his counsel’s deficient
performance caused him prejudice. Schmitt v. State, 560
So.2d 148, 154 (Miss. 1990). Such a claimant faces a
presumption that his counsel was competent, that his
counsel rendered reasonably professional assistance, and
that decisions made during trial are strategic. Id. This is
a rebuttable presumption, however, and may be accomplished
by a demonstration of a reasonable probability that, but
for his attorney’s unprofessional errors, the results of
the proceeding would have been different. Id.

¶ 27. In the context of Dear’s assertion, Dear must
demonstrate that his attorney was deficient in having the
jury instructed that it must consider Keyes’s testimony
“with caution” instead of “great care, caution, and
suspicion.” Then, Dear must demonstrate that, but for the
discrepancy in the language of the tendered instruction, as
opposed to the alternative instruction, the jury would not
have returned a guilty verdict against him.

¶ 28. First, we find that Dear cannot satisfy the
first Strickland prong. Dear’s attorney, by failing to
include the words “great,” “care,” and “suspicion” with the
word “caution” did not render deficient legal
representation. Though the instruction did not contain the
surplus cumulative language as found in the suggested
instruction, the substance of the instruction was still
present. We are not prepared to hold that a matter of
semantic variation overcomes the presumption of competency
and professionalism when the substance of a suggested
instruction is present in the given instruction.

¶ 29. Assuming for the sake of argument that Dear
overcame the first Strickland prong, which we do not hold,
Dear would not be able to overcome the second Strickland
prong. There is no indication that the jury would return a
verdict of “not guilty” had the instruction contained the
cumulative language Dear suggests. The jury was instructed
that it was to weigh Keyes’s testimony “with caution.” In
singling out Keyes’s testimony and instructing the jury to
weigh it with caution, the jury understood that it was to
remain suspicious of Keyes’s testimony and to weigh it with
care. Accordingly, Dear fully fails to present a prima
facie demonstration of ineffective assistance of counsel.

¶ 30. To clarify, we do not hold that it is an error
of law to advance an instruction that the testimony of the
co-defendant should be considered with “great care,
caution, and suspicion.” We merely hold that Dear’s counsel
did not render inefficient assistance by omitting “great
care” and “suspicion.” As such, we find this issue
meritless.

¶ 31. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SALE OF COCAINE, AS A NONVIOLENT HABITUAL OFFENDER AND AS A SUBSEQUENT DRUG OFFENDER AND SENTENCE OF SIXTY YEARS AND COUNT II OF CONSPIRACY TO SELL COCAINE, AS A SUBSEQUENT DRUG OFFENDER AND SENTENCE OF TWENTY YEARS TO RUN CONCURRENTLY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ.