Walker v. State

729 So. 2d 197, 1998 WL 784855
CourtMississippi Supreme Court
DecidedNovember 12, 1998
Docket96-KA-00938-SCT
StatusPublished
Cited by37 cases

This text of 729 So. 2d 197 (Walker v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. State, 729 So. 2d 197, 1998 WL 784855 (Mich. 1998).

Opinion

729 So.2d 197 (1998)

Calvin WALKER
v.
STATE of Mississippi.

No. 96-KA-00938-SCT.

Supreme Court of Mississippi.

November 12, 1998.
Rehearing Denied January 28, 1999.

*198 James P. Vance, Grenada, for Appellant.

Office of the Attorney General by Deirdre McCrory, for Appellee.

Before PITTMAN, P.J., and BANKS and WALLER, JJ.

WALLER, Justice, for the Court:

SUMMARY

¶ 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.

*199 FACTS

¶ 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.

DISCUSSION

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 going to represent Mr. Walker. I now find out he does not have an attorney, and it's too short of notice to pursue trial.

The State's response was:

The State's response is, your Honor, I understand the position Mr. Lancaster is in; and I hate to put a lawyer in that; but I don't think it was the State that put him in that situation. It was the defendant, because the defendant's been telling us every term of court that Mr. Ferrill was going to represent him; and if he's allowed to do that, he could get it put off and put off and put off. If he comes up and says, "I've got a lawyer"; and then the lawyer doesn't show up and get it continued every time.

¶ 7. The trial judge evidently agreed that the defendant was largely at fault for the confusion over who was representing him and in denying Lancaster's motion for a continuance stated,

*200 [This] court's not going to be put in the position of letting defendants jock the Court's docket by saying they have lawyers when they don't or swapping lawyers around. Mr. Lancaster is a very capable, competent defense lawyer; so we'll proceed right on. I deny your motion for continuance.

¶ 8. The record before this Court forms the sole source of information about this matter. After thorough review of the record, we cannot find an order appointing Lancaster to represent Walker, or for that matter his codefendant, Marshall. As such, the record does not support the trial judge's conclusion that Walker was attempting to "jock the court's docket." Regardless of what Walker was telling the court in the months prior to trial, the prudent procedure was for the trial court to enter an order formally appointing Lancaster as counsel for Walker until such time as an order is entered relieving Lancaster of his duties and substituting new counsel. Lancaster's role in the defense of Walker first surfaces in the record when he filed a motion to be relieved as counsel for Marshall on January 26, 1996. Within said motion, Lancaster acknowledged that he was "the appointed attorney for both Tyrone Marshall and Calvin Walker." From this pleading, it is apparent that Lancaster was acknowledging assumption of the defense of Walker at least six months in advance of trial. We recognize, from the remarks of the State and the trial judge, that Walker had led everyone to believe that he was going to retain another attorney to represent him at trial. While we empathize with the plight of Lancaster, we are bound by the record before us. Given the circumstances and the inadequacy of the record, we cannot say that the trial judge abused his discretion in denying Walker's motion for a continuance.

II. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT WALKER'S MOTION FOR A SEVERANCE.

¶ 9. Walker was tried with Tyrone Marshall, the alleged go-between or runner between Walker and the undercover agent purchasing the cocaine. On the day of trial, Walker's attorney moved ore tenus for a severance, which was denied. No written motion appears in the record nor, apparently, was there any argument concerning this motion.

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Cite This Page — Counsel Stack

Bluebook (online)
729 So. 2d 197, 1998 WL 784855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-state-miss-1998.