Dear v. State

960 So. 2d 542, 2006 WL 3593095
CourtCourt of Appeals of Mississippi
DecidedDecember 12, 2006
Docket2005-KA-02281-COA
StatusPublished
Cited by6 cases

This text of 960 So. 2d 542 (Dear v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dear v. State, 960 So. 2d 542, 2006 WL 3593095 (Mich. Ct. App. 2006).

Opinion

960 So.2d 542 (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.
Rehearing Denied April 17, 2007.

*544 Dan W. Duggan, Brandon, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

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 *545 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 *546 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.

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Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 542, 2006 WL 3593095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dear-v-state-missctapp-2006.