Before Pittman, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 07/24/96
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 11/12/98
¶1. Calvin Walker ("Walker") was sentenced to 30 years with 10 suspended for sale of cocaine in violation of Miss. Code Ann. § 41-29-139 (a). Walker filed timely notice of appeal raising the following issues for consideration:
I. THE LOWER COURT ERRED IN DENYING WALKER'S MOTION FOR A CONTINUANCE.
II. THE LOWER COURT ERRED IN DENYING WALKER'S MOTION FOR SEVERANCE.
III. THE VERDICT OF GUILT IS NOT VALID BECAUSE IT WAS COERCED BY THE TRIAL JUDGE.
IV. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
¶2. On April 12, of 1994, two men working for the North Mississippi Narcotics unit drove to Picken's One Stop in Okolona, Mississippi, to purchase drugs for the purposes of making an arrest. A confidential informant ("C. I.") was driving the vehicle and investigator Dennis Johnson was riding in the passenger seat. The C.I. was wired with a transmitter. Upon arriving at the store, the C.I. initially asked Marshall where a man named Hughes was, and then told Marshall he wanted to buy cocaine from Walker. Marshall initially responded that he didn't sell dope but asked if the C.I. would break off a piece of the cocaine for him. Marshall then went to the door of the pool hall abutting the Picken's One Stop and engaged in a conversation with Walker. Johnson testified that the distance was approximately 10 to 14 feet from the car. Johnson observed Walker hand something to Marshall, who returned to the car with two rocks of cocaine. Johnson paid Marshall $40 for the cocaine.
¶3. Johnson and the C.I. then returned the drugs to the case agent on the matter and both Marshall and Walker were subsequently indicted for the sale of cocaine. They were tried together and the jury returned a verdict of guilty on each defendant. Mr. Lancaster represented Walker, and Mr. Burns represented Marshall.
I. The Trial Court Did Not Abuse Its Discretion When It Denied Walker's Motion For a Continuance.
¶4. "The grant or denial of a continuance lies within the sound discretion of the trial court." Hughey v. State, 512 So. 2d 4, 6 (Miss. 1987 )(citing Gates v. State, 484 So. 2d 1002, 1006 (Miss. 1986); Carter v. State, 473 So. 2d 471, 475 (Miss. 1985)); see also Gates v. State, 484 So. 2d 1002, 1006 (Miss. 1986)("Of course, the granting or not granting of a continuance is within the sound discretion of the trial Judge."); Carter v. State, 473 So. 2d 471, 475 (Miss. 1985)("It is well established in Mississippi that trial Judges have broad discretion in granting a continuance.")(citing Greene v. State, 406 So. 2d 805 (Miss. 1981); Norman v. State, 385 So. 2d 1298 (Miss. 1980)); Miss. Code Ann. § 99-15-29 (1994) ("The court may grant or deny a continuance, in its discretion").
¶5. Examining the facts in the current case, it is this Court's opinion that the trial Judge was within his discretion in denying the defendant's motion for a continuance. Lancaster, Walker's attorney, moved ore tenus for a continuance on July 22, the day before trial. This was denied, and Lancaster filed a written motion for continuance the next day, averring that he was unable to prepare for trial due to scheduling conflicts and the fact that he had been appointed only one day before trial.
¶6. Arguing his motion, on July 22, 1996, Lancaster stated, I was under the impression Roy Ferrill is representing the defendant. Apparently, he is not. Out of abundance of caution, first you will notice Billy Shelton signed the arraignment, and he's out of it. Then I heard Roy Ferrill. I went ahead and requested discovery. I have done that, but I was under the impression I didn't have a jury trial tomorrow and was under the impression I was not ...