BEFORE ROY NOBLE LEE, HAWKINS AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
This is an appeal from a criminal conviction in the Circuit Court of Hinds County. Appellant Clarence Gray was convicted of grand larceny, and sentenced to five years imprisonment without eligibility for parole at the Mississippi Department of Corrections and a payment of a $1,000 fine.
Gray appeals assigning as error:
(1) The trial court erred in overruling appellant's motion for a new trial on the ground that an assistant district attorney who participated in the prosecution had previously conferred with Mr. Gray about representing appellant in the defense of the case at bar; and
(2) The trial court erred in allowing the state to amend the habitual offender portion of the indictment to reflect the correct dates of appellant's prior felony convictions.
Appellant's conviction stems from the robbery of a convenience store in Jackson, Mississippi. The clerk on duty at the time of the robbery testified that after assisting a customer she returned to the front of the store where she discovered the appellant crouched behind the counter. The appellant was clutching one of the money bags used by employees to store excess cash and kept in a floor safe located behind the counter. The clerk ran to the office at the rear of the store and notified merchandise manager Jack Ragsdale.
Ragsdale entered the store as the man, whom he identified as the appellant, was leaving. Ragsdale pursued appellant into an adjacent parking lot where appellant dropped the money bag containing $482.00 in cash. Ragsdale apprehended appellant and took him back to the store were he was held until the police arrived.
Did the trial court err in overruling appellant's motion for a new trial based on a conflict of interest on the part of the assistant district attorney who prosecuted the cause?
Following his arrest, appellant was placed in confinement
at the Hinds County Jail. On June 17, 1982, Robert Taylor, an attorney then engaged in private practice, met with appellant Gray at the jail house for approximately 45 minutes. Taylor subsequently joined the district attorney's office and actively participated in the prosecution of the appellant. In its motion for a new trial, the defense assigned as this participation as error, alleging that, as a result of the post-arrest conference with appellant, Taylor acquired privileged information regarding the pending grand larceny charge and should not have been permitted to prosecute the case. Following a hearing, the motion was overruled by the trial court, which ruling appellant presently assigns as error.
We note at the outset that the controlling rule of law to be applied in this case is not the subject of dispute. It is firmly established that a prosecuting attorney is disqualified from acting in a criminal case if he has previously represented or been consulted professionally by the accused with respect to the offense charged. State v. Phillips, 672 S.W.2d 427 (Tenn. Cr. App. 1984); Love v. Superior Court, 111 Cal. App. 3rd 367, 168 Cal. Rptr. 577 (1980); People v. Stevens, 642 P.2d 39 (Colo. App. 1981); Satterwhite v. State, 359 So.2d 816 (Ala. Cr. App.), remanded (Ala. 359 So.2d 819, on remand Ala. Cr. App.) 359 So.2d 821, cert. quashed (Ala. 359 So.2d 821 (1977). See generally Annot. 31 A.L.R.3rd 953 (1970). This Court's prior decisions recognize and respect the substance of this rule. Sharplin v. State, 330 So.2d 591 (Miss. 1976); Dunn v. State, 264 So.2d 823 (Miss. 1972); Russell v. State, 185 Miss. 464, 189 So. 90 (1939). There can be no question that the subsequent prosecution of a criminal defendant by an attorney who has previously gained confidential information from the accused relative to the charges against him is inherently incompatible with the right of a criminal defendant to receive a fair trial.
This Court is also mindful of the fact that the above rule serves a number of interests of special importance to the legal profession. It protects the prosecuting attorney from the potential conflict of interest which arises from divided loyalty. Code of Prof. Responsibility, Cannon 5. It enforces the ethical obligation of the lawyer to ...