IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-KA-00530-SCT

GEORGE PERRY A/K/A GEORGE PERRY, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/01/94

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: THOMAS C. LEVIDIOTIS

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JOLENE M. LOWRY

DISTRICT ATTORNEY: LITTLE, LAWRENCE L.,

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 10/24/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 11/14/96

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. On March 1, 1994, George Perry was convicted in the Circuit Court of Marshall County of sale

of a controlled substance and sentenced to thirty years in the custody of the Mississippi Department

of Corrections with ten years suspended. Aggrieved, Perry argues that the trial court erred in denying

both the Motion for Directed Verdict and the post-trial motion for JNOV/New Trial. At trial, Perry

relied upon the defense of entrapment and now argues the State failed to rebut his prima facie case

with sufficient evidence of his predisposition to sell cocaine. Perry also argues he was denied

effective assistance of counsel because the rebuttal witness for the State was represented in the past

by Perry's trial counsel, Mr. Clencie Cotton. Specifically, Perry argues that Mr. Cotton was

prohibited from effectively cross-examining the rebuttal witness due to the prior representation.

¶2. The State argues that the denial of both motions was proper in light of the evidence produced by

the State at trial which was sufficient to rebut Perry's claim of entrapment. Further, the State argues

that defense counsel was not inhibited from effectively cross-examining the State's rebuttal witness

and therefore Perry was not denied effective assistance of counsel.

¶3. Issues I and II are without merit and need not be discussed. We find only Issue III to be worthy
of discussion and after thorough consideration we find it to be without merit. We affirm the lower

court's ruling.

STATEMENT OF THE FACTS

¶4. On April 27, 1992 Mississippi Bureau of Narcotics agent Bobby Tillman was working with a drug

task force in Holly Springs, Mississippi. The task force was a cooperative endeavor between the

Mississippi Bureau of Narcotics, hereinafter "MBN" and the Federal Bureau of Investigation,

hereinafter "F.B.I". William Spry was a cooperative witness who was utilized to aid the task force in

making drug buys by identifying drug dealers in the area. One such dealer was George Perry.

¶5. At approximately 4:00 p.m. William Spry accompanied Agent Tillman to the Courtesy One Shop

where George Perry was employed at a car wash. Agent Tillman and Spry approached Mr. Perry and

inquired as to whether Perry could provide them with $100 worth of crack cocaine. Perry agreed and

instructed Agent Tillman and Spry to wait in the parking area. Perry did not immediately leave the

scene. However, after Spry indicated that they would give Perry the money, Perry went into an alley

area and returned with six rocks of a substance which appeared to be crack cocaine. Perry transferred

the rocks to Agent Tillman and Perry received one hundred dollars. The entire transaction was

recorded with a device placed upon William Spry. After receiving the rocks, Agent Tillman placed

the substance into a plastic bag, marked it for identification and transferred the rocks to Mississippi

Bureau of Narcotics Agent Chuck Smith. The substance was later delivered to the Mississippi Crime

Lab at Batesville where testing confirmed that the substance was cocaine-based.

¶6. George Perry was arrested and tried for the sale of a controlled substance. Perry was represented

by Mr. Clencie Cotton at trial where the defense contended that Perry was entrapped. The trial court

denied Perry's motion for a directed verdict and submitted the case to the jury with instructions on

the entrapment defense. After deliberating for approximately thirty minutes the jury returned a guilty

verdict whereupon the trial court sentenced Perry to thirty years in the custody of the Mississippi

Department of Corrections with ten years suspended. On March 22, 1994, the trial court denied

Perry's motion for JNOV/New Trial.

DISCUSSION OF LAW

WHETHER THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL.

¶7. Perry assigns as error the denial of the post-trial motion for JNOV/New Trial based on ineffective

assistance of counsel. Perry argues that trial counsel was faced with a conflict of interest due to his

prior representation of William Spry, the State's rebuttal witness. As a result, Perry argues that

counsel was prohibited from effectively cross-examining Spry in order to impeach his credibility.

¶8. Perry's focus is on the interchange between William Spry and Mr. Cotton on cross examination. It

is obvious from the record that Mr. Cotton was attempting to impeach Spry's credibility by

establishing Spry's own criminal activity and alleged "deals" with the State. During this line of

questioning, Spry testified that he was charged with and pled guilty to unrelated charges in Tupelo,

Mississippi for which he was currently in jail. Spry testified that the incident giving rise to these
charges occurred after Spry's participation as the cooperating witness in the Perry case. Counsel also

sought to establish that Spry had in fact made a deal with the State after his testimony in another drug

case in Marshall county. Spry denied making any deals with the State in exchange for testimony.

¶9. During the examination of Spry it was revealed that Mr. Cotton represented Spry during prior

plea negotiations.

Mr. Cotton: As a matter of fact, you were offered a deal, weren't you?

By Mr. Spry: No, sir.

By Mr. Cotton: You were not offered a deal.

By Mr. Spry: If I was offered a deal, I wouldn't be going to the penitentiary.

By Mr. Cotton: Well, you were offered a deal in Marshall County weren't you?

By Mr. Spry: No, sir. I wasn't offered a deal at all.

By Mr. Cotton: What sentence did you get over here, Mr. Spry?

By Mr. Spry: I was sentenced to five years for the auto theft and five years for the burglary, and

they would run concurrent.

By Mr. Cotton: And that happened after you testified in the court on behalf of the State. Is that

correct?

By Mr. Spry: Well, you was my attorney.

By Mr. Cotton: Is that correct?

By Mr. Spry: That's correct.

¶10. Perry argues that during the above testimony "the witness was not telling the truth and counsel

was estopped from impeaching the witness because to do so he would have to have used his own

personal knowledge that the witness indeed had made a deal." As a result, Perry argues the witness

was allowed to testify without his credibility being sufficiently challenged. Perry argues that this

omission could have been cured had Mr. Cotton been allowed to state "Now Mr. Spry, you are lying

through your teeth because you and I both know you made a deal because I negotiated the deal for

you with the prosecution." As a result of Mr. Cotton's inability to make such statements Perry argues

he was denied effective assistance of counsel and is therefore entitled to reversal.

¶11. In reviewing the effectiveness of counsel, this Court uses the following standard.

The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686 (1984)

. The test is two pronged: The defendant must demonstrate that his counsel's performance was

deficient, and that the deficiency prejudiced the defense of the case. Strickland, 466 U.S. at

687; Washington v. State, 620 So.2d 966 (Miss. 1993). This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Unless a defendant makes both showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result unreliable. Stringer

v. State, 454 So.2d 468, 477 (Miss. 1984), citing Strickland v. Washington, 466 U.S. at 687.

In any case presenting an ineffectiveness claim, the performance inquiry must be whether

counsel's assistance was reasonable considering all the circumstances. Stringer at 477, citing

Strickland, 466 U.S. at 688; Tokman v. State, 564 So.2d 1339, 1343 (Miss. 1990).

Foster v. State, 1996 WL 255476, (Miss. 1996). Thus, the inquiry on appeal is whether, in light of

the totality of the circumstances, Perry's trial counsel was so ineffective as to undermine the reliability

of the proceedings below.

¶12. The first prong of the Strickland analysis requires Perry to demonstrate that his counsel's

performance was deficient. In the case sub judice, the challenge to the effectiveness of counsel is not

one of competence, but rather one of loyalty. In Smith v. State, 666 So.2d 810, 812 (Miss. 1995),

this Court held "[t]he effective right of counsel encompasses the right to representation by an

attorney who does not owe conflicting duties to other defendants." (quoting Stringer v. State, 485

So.2d 274, 275 (Miss. 1986)). "Moreover, undivided loyalty of defense counsel is essential to the due

process guarantee of the Fifth Amendment." Littlejohn v. State, 593 So.2d 20, 23 (Miss. 1992)

(citing Alvarez v. U.S., 580 F.2d 1251, 1256 (5th Cir. 1978)).

¶13. The first level of inquiry under Smith, is whether Perry's counsel was faced with an actual

conflict of interest by virtue of his prior representation of William Spry. In Smith, the defendant and

Latham both sold drugs to undercover officers. However, Latham, while a participant in the double

sale, was not indicted but rather testified against Smith. Smith's public defender represented Latham

during plea negotiations and therefore possessed information regarding Latham's negotiations with

the State. During cross-examination of Latham, defense counsel asked whether Latham had pled

guilty to a charge. Latham, like Spry in the case sub judice, responded, "You was [sic] my lawyer,

you could tell me."

¶14. This Court concluded that the situation in Smith presented an actual irreparable conflict of

interest. "An attorney under normal cross-examination would have explored Latham's answers

further." Smith, 666 So. 2d at 812. "Instead, the cross-examination was terminated prematurely and

this Court is left to wonder why." Id. "Obviously, this line of questioning exposed a real conflict of

interest which could be remedied by the court ordering a mistrial." Id. The public defender continued

to represent Latham until his case was retired to the files, further indicating to this Court that the

"action of retiring the case to the files was taken to reward Latham for his cooperation with the State

in testifying against Smith." Id. In light of the fact that Latham's testimony became a "centerpole" of

the State's case, this Court reasoned "[i]t is difficult to conclude that Latham had nothing to gain or

lose by his answers in a situation where he was not yet indicted in the simultaneous double sale of

drugs." Id. at 813.

¶15. The crux of the Smith decision was the dual representation of an unindicted co-participant by an

attorney who represented that participant in plea negotiations with the State while simultaneously

representing the defendant against whom the participant would testify. Moreover, the co-participant

was the "centerpole" of the State's case against Smith. As a result, defense counsel faced a conflict of
interest which prohibited him from effectively cross-examining Latham.

¶16. The case sub judice is clearly distinguishable from Smith. First, we are not faced with a conflict

arising from dual representation. At the time of trial, Cotton did not represent William Spry although

he had done so in the past on unrelated matters. In addition, we are not faced with the situation

where Cotton represented Spry in negotiations wherein Spry would plead guilty in exchange for

testimony against Perry. Rather, the subject of cross-examination in the instant case is Spry's prior

deals with the State to exchange his testimony for plea agreements, i.e. Spry's role as a professional

witness. Therefore, the prior representation of Spry by Mr. Cotton did not concern Perry and as a

result did not present the type of conflict present in Smith.

¶17. More importantly, we find that William Spry was not the "centerpole" of the State's case against

George Perry. William Spry was called by the State as a rebuttal witness. Prior to Spry's testimony,

the State presented Agent Tillman, Agent Smith, and Carole Abel. Agent Tillman identified George

Perry and described the transaction which took place. Agent Smith testified to the transaction as well

as the chain of custody of the crack cocaine and was followed by Carole Abel who confirmed that the

substance was in fact crack cocaine. William Spry's testimony was offered solely to rebut Perry's

claims of entrapment and lack of predisposition.

¶18. The second prong of the Strickland test requires the appellant to demonstrate that counsel's

deficiency prejudiced the defense. However, "prejudice is presumed only if the defendant

demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of

interest adversely affected his lawyer's performance'." Smith, 666 So.2d 810 at 812 (Miss.1995)

(quoting Cabello v. State, 524 So.2d 313, 316 (Miss. 1988)). Here, prejudice is not presumed as

there was no actual conflict of interest. In Smith, the "sudden curtailing of what had been up to that

point a vigorous cross-examination" indicated to this Court the "actual conflict of interest which

adversely affected the public defender's performance." Id. Returning to the case at bar, the record

below demonstrates that Cotton was not "suddenly curtailed" in his cross-examination, as was

counsel in Smith, but rather proceeded onward. Moreover, Cotton proceeded to question Spry in

detail about his motivation for prior testimony in another case as well as his motivation for testifying

against Mr. Perry in the present case. For example:

By Mr. Cotton: So they just called you over here, and whatever you had to say--

By Mr. Spry: The truth, all they wanted was the truth. That's the only thing I'm here today is to

speak the truth.

By Mr. Cotton: So, you have nothing to gain from all this.

By Mr. Spry: Nothing, sir.

* * * *

By Mr. Cotton: And you are telling us that you expected nothing and got nothing, and nobody

knew what you were going to say today?

By Mr. Spry: No, sir.
¶19. The record indicates that any conflict Cotton may have sensed did not adversely affect his

performance. Rather, Mr. Cotton continued to cross-examine Mr. Spry and challenge Spry's

credibility.

¶20. Where no actual conflict of interest is present the appellant must demonstrate prejudice. The

appellant must show "a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss. 1991). In

the instant case, Perry has failed to demonstrate that the outcome of the trial would have been

different had defense counsel been allowed to further cross-examine Spry. Regardless of Spry's

testimony, there was ample evidence at trial which supports the jury verdict. Even assuming defense

counsel had conclusively established that Spry's sole motivation in testifying at trial was to receive a

reduced sentence pursuant to an agreement with the State and therefore Spry had everything to gain

or lose from testifying against Perry, there remains the vast amount of evidence presented during the

State's case in chief, all of which indicates guilt. There is no merit to this issue.

CONCLUSION

¶21. George Perry was offered an opportunity to sell crack cocaine on April 27, 1992 and he

accepted that offer. Although Perry claims that he was entrapped the record below does not support

an entrapment defense. Due to the overwhelming evidence of guilt presented at trial Perry has not

demonstrated that the trial court erred in overruling his motion for Directed Verdict or his post-trial

motion for JNOV/New Trial. There is no conflict of interest by the defense counsel present in this

case. Further, the record fails to demonstrate that Perry was deprived of effective assistance of

counsel.

¶22. CONVICTION OF SALE OF A CONTROLLED SUBSTANCE, COCAINE;

SENTENCED TO THIRTY YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT

OF CORRECTIONS; TEN YEARS SUSPENDED WITH CONDITIONS AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS

AND MILLS, JJ., CONCUR.