Moore v. State

873 So. 2d 129, 2004 WL 377020
CourtCourt of Appeals of Mississippi
DecidedMarch 2, 2004
Docket2002-KA-01596-COA
StatusPublished
Cited by7 cases

This text of 873 So. 2d 129 (Moore 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
Moore v. State, 873 So. 2d 129, 2004 WL 377020 (Mich. Ct. App. 2004).

Opinion

873 So.2d 129 (2004)

Jermaine MOORE a/k/a P.J., Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01596-COA.

Court of Appeals of Mississippi.

March 2, 2004.
Rehearing Denied May 18, 2004.

*130 Ross R. Barnett, Jackson, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before KING, P.J., LEE and CHANDLER, JJ.

KING, P.J., for the Court.

¶ 1. Jermaine Moore was convicted of possession of cocaine by the Circuit Court of Leake County. As a second time drug offender, he was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Moore raises the following issues on appeal which we quote verbatim:

I. The lower court erred in failing to grant appellant Jermaine Moore's motion for continuance.
II. Defendant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, should have been granted, since the verdict was against the overwhelming weight of the evidence.
III. The trial court erred in failing to grant Jermaine Moore's motion to suppress.
IV. Jermaine Moore was denied his constitutional [sic] protected right to assistance of adequate and effective trial counsel.
V. The sentence was disproportional.
VI. The cumulative error below requires reversal.

FACTS

¶ 2. On March 22, 2002, at approximately 12:25 a.m., Officers Shane Lang and Dustin Sanders, of the Carthage Police Department, stopped a vehicle driven by Carl Lewis because the vehicle did not have a tag. Moore was a passenger in the vehicle.

¶ 3. As Lang approached the driver's side of the vehicle shining his flashlight in the vehicle, he saw "a bag with a white rocky looking substance sitting upside the gear shift," which was later determined to be cocaine. He then asked Lewis and Moore to step out of the vehicle. When Lewis stepped out of the vehicle, Lang saw another bag which contained "a green leafy substance," later determined to be marijuana. *131 Officer Lang advised Lewis and Moore of their Miranda rights in the presence of Officer Sanders, arrested them, and transported them to the Leake County Jail.

¶ 4. At the jail, Officer Lang told Tony Quick, the booking officer, to charge Lewis and Moore with possession of a controlled substance. According to Lang, at that point Moore stated, "Don't charge him [Lewis] with it, it's mine." Moore did not indicate which substance he was referring to.

¶ 5. Moore was indicted on August 28, 2002, for possession of cocaine as a second time offender in violation of Mississippi Code Annotated Sections 41-29-139(c)(1)(B) and 41-29-147 (Rev.2001). On September 3, 2002, Moore's case was called for trial. Moore asked for a continuance so that he could hire an attorney and investigate the case. That motion was denied. The case proceeded to trial and Moore was convicted that same day. On September 5, 2002, he was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. Moore's motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in failing to grant Moore's motion for a continuance.

¶ 6. Moore contends that the trial court erred by denying his motion for a continuance. According to Moore, he asked the trial judge for a continuance so that he could hire an attorney and investigate his case. Moore was represented by two court-appointed attorneys.

¶ 7. The record reflects that the trial judge denied the motion for continuance because the case had been set for trial, witnesses had been summoned, jurors had been impaneled, and the attorney that Moore intended to hire had been given the opportunity to represent him but declined to do so.

¶ 8. The decision to grant or deny a continuance is left to the sound discretion of the trial court. Lambert v. State, 654 So.2d 17, 22 (Miss.1995). Unless manifest injustice appears to have resulted from the denial of the continuance, this Court should not reverse. Id.

¶ 9. The record reflects that Moore was indicted on August 28, 2002, arraigned on August 29th, and the case was set for trial on September 3, 2002. After voir dire, Moore asked the trial judge for a continuance indicating that he had been trying to hire an attorney from the time of his incarceration on March 22, 2002. The attorney that Moore had contacted, but not retained to represent him, was present on the day of trial and stated that he had some other cases to present but that he was not there to represent Moore. The attorney was advised that he could represent Moore and would also receive the assistance of Attorney Robert N. Brooks who, along with Attorney Christopher A. Collins, was appointed to represent Moore on August 29th. Moore asserts that the time between August 29th, when he was appointed an attorney and the trial date of September 3, 2002, was insufficient to allow his attorney time for proper preparation.

¶ 10. While Moore does have an absolute right to counsel, the right to choose counsel is not absolute. McCormick v. State, 802 So.2d 157(¶ 10) (Miss.Ct. App.2001). It is a right that must not be abused or manipulated in such a way as to "thwart the progress of a trial." Id. Moore received two court-appointed attorneys *132 to represent him at trial. Both attorneys were present and announced that they were ready for trial. Between the date of arrest and indictment, there existed adequate opportunity for Moore to seek out counsel of his own choosing. While Moore contacted an attorney, there is no suggestion that he attempted to retain the services of an attorney, or ever had the resources to retain an attorney.

¶ 11. We find no abuse of discretion in denying Moore's motion for a continuance.

II.

Whether Moore's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, should have been granted.

¶ 12. Moore asserts that his motion for judgment notwithstanding the verdict, or in the alternative, a new trial should have been granted since the verdict was against the overwhelming weight of the evidence.

¶ 13. This Court reviews the denial of a motion for judgment notwithstanding the verdict and the denial of a motion for a new trial in the following manner:

Upon reviewing a denial of the motion for judgment notwithstanding the verdict, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standard of review, however, is predicated on the fact that the trial judge applied the correct law.

Jackson v. State, 815 So.2d 1196 (¶ 14) (Miss.2002). The motion for a new trial addresses the weight of the evidence. Conners v. State, 822 So.2d 290 (¶ 6) (Miss. Ct.App.2001).

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Bluebook (online)
873 So. 2d 129, 2004 WL 377020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-missctapp-2004.