Moore v. State


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Docket Number: 2002-KA-01596-COA
Linked Case(s): 2002-KA-01596-COA

Court of Appeals: Opinion Link
Opinion Date: 03-02-2004
Holding: Affirmed

Additional Case Information: Topic: Possession of cocaine - Continuance - Right to counsel - Weight of evidence - Suppression of evidence - Ineffective assistance of counsel - Disproportionate sentence
Judge(s) Concurring: McMillin, C.J., Southwick, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 09-05-2002
Appealed from: Leake County Circuit Court
Judge: Marcus D. Gordon
Disposition: POSSESSION OF COCAINE-SECOND DRUG OFFENDER - SENTENCED TO SERVE A TERM OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: Ken Turner
Case Number: 02-CR-072 LEG

  Party Name: Attorney Name:  
Appellant: Jermaine Moore a/k/a P.J.




ROSS R. BARNETT



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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Topic: Possession of cocaine - Continuance - Right to counsel - Weight of evidence - Suppression of evidence - Ineffective assistance of counsel - Disproportionate sentence

Summary of the Facts: Jermaine Moore was convicted of possession of cocaine. As a second time drug offender, he was sentenced to fifteen years. He appeals.

Summary of Opinion Analysis: Issue 1: Continuance Moore argues that the court erred by denying his motion for a continuance which he make in order to hire an attorney and investigate his case. While Moore does have an absolute right to counsel, the right to choose counsel is not absolute. It must not be abused or manipulated in such a way as to thwart the progress of a trial. Moore received two court appointed attorneys to represent him at trial both of whom were present. Moore had an adequate opportunity to find counsel of his own choosing between the date of arrest and indictment. Therefore, the court's denial of a continuance was not erroneous. Issue 2: Weight of evidence Moore argues that the record is devoid of evidence which shows that he had either actual or constructive possession of the cocaine. An officer testified that he found a bag of white rocky substance laying on top of the gearshift in plain view between Carl Lewis and Moore; after Lewis got out of the vehicle, he saw another bag of what was later identified as marijuana; Moore was a passenger in the vehicle; and when Moore and Lewis arrived at the police station to be booked, Moore stated, "Don't charge him with it, it's mine." This was sufficient evidence to support the verdict. Issue 3: Suppression of evidence Moore argues that his statement to the officer should have been excluded, because it was not probative of the issue raised by the indictment, i.e., possession of cocaine. While Moore did not specifically state whether he was referring to one or both substances, he did state a claim of possession. Therefore, a reasonable juror could have concluded that the substance belonged to Moore under the circumstances. Issue 4: Ineffective assistance of counsel Moore argues that the attorneys failed to investigate the case and inform him of his rights at trial. To prove his claim, he must show his attorneys' conduct was deficient and prejudicial. Moore has not indicated what witnesses should have been called on his behalf, what their testimony might have been, or how it might have changed the outcome of the trial. Therefore, his claim fails. Issue 5: Disproportionate sentence Moore argues that his fifteen year sentence for possession of cocaine is disproportionate to the crime committed. A sentence will not be disturbed if it is within the term provided by statute. The normal sentence for this crime is two to eight years. Because Moore was a second time drug offender, his sentence was subject to being doubled under section 41-29-147. Therefore, he was sentenced within the statutory limits.


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