BEFORE DAN LEE, SULLIVAN AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
This case involves a criminal appeal from the Circuit Court of Harrison County where Paul Gregory Cousan (Cousan), was tried as an habitual offender and convicted of the sale of 100.9 grams of marijuana. Cousan was sentenced to serve thirty years as an habitual offender in the custody of the Mississippi Department of Corrections pursuant to MCA 99-19-81 (Supp. 1988). Cousan timely appealed and assigned the following issues as error:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT A CONTINUANCE UPON REQUEST OF NEWLY RETAINED COUNSEL.
II. RULE 4.06 DISCOVERY VIOLATION NECESSITATES A NEW TRIAL.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO COMPEL THE ATTENDANCE OF A MATERIAL WITNESS.
We find that the trial court's denial of a continuance presents a close-call since Cousan's new counsel had only one week to prepare for trial; however, we will not disturb the lower
court's ruling on that issue. The State's violation of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice presents a more difficult problem, however, and we therefore, reverse and remand the case on that issue.
Wayne Bass (Bass), a Long Beach Police Officer, was working in an undercover capacity during April of 1985. Bass testified that on April 14, 1985, while at an establishment known as Jeno's Lounge in Gulfport, MS, he approached Larry Cousan, who was parked across from the lounge in a black and white El Camino. Cousan was a passenger in the car. Bass asked Larry if he would sell him a quarter pound of marijuana. Larry said he could not, but, Cousan told Bass he could obtain the marijuana. Bass agreed to pay $250 for the marijuana and arranged to meet Cousan in the same place at 9:00 p.m. on the following night, April 15.
Bass was wired for the sale of the contraband. At the time of the meeting, Bass spotted Cousan driving the El Camino but he did not stop. Bass waited for Cousan's return to no avail. The next evening on April 16, at approximately 5:00 p.m., Bass still wired, returned to Jeno's Lounge, hoping to no avail to locate Cousan. Bass ran into Cousan later that evening, however, in another area of the city. Cousan "flagged" Bass down and asked if he (Bass) still was interested in buying the marijuana to which Bass responded in the positive.
Cousan requested Bass to follow him to an apartment complex. Upon arriving there Cousan instructed Bass to give him the $250 and wait while he (Cousan) obtained the marijuana. Fifteen minutes later Cousan returned and gave Bass a clear plastic bag partially filled with green leafy substances. The Mississippi Crime Lab later verified that the contents of the bag were marijuana, a hundred and nine-tenths grams (approximately a quarter of a pound).
Cousan did not testify at trial in his own defense. He offered, however, the testimony of two witnesses. One witness served as an alibi witness and the other to establish why Cousan was in the area.
In accordance with Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice, counsel for Cousan requested a copy of any recorded statement by Cousan to any law enforcement officer. Since the State failed to adhere to the Rule, counsel did ...