Preview:

IN THE COURT OF APPEALS 04/09/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01223 COA DENVILLE LEE HUMPHREY APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. MELVIN KEITH STARRETT COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOSEPH A. FERNALD, JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: JERRY L. RUSHING NATURE OF THE CASE: CRIMINAL: UNLAWFUL SALE OF COCAINE WITH ENHANCED PUNISHMENT TRIAL COURT DISPOSITION: GUILTY - SENTENCED TO TWENTY YEARS IN MDOC TO RUN CONSECUTIVELY WITH CAUSE NO. 10948, PAY $2,500 FINE, COURT COSTS AND ATTORNEY FEES

BEFORE THOMAS, P.J., BARBER, AND DIAZ, JJ. DIAZ, J., FOR THE COURT: Denville Lee Humphrey (Humphrey) was convicted by a jury in the Lincoln County Circuit Court for the sale of cocaine with an enhanced sentence. For this conviction, Humphrey received a twenty-year sentence, fined $2,500 and required to pay all court costs and attorney fees. Aggrieved, Humphrey appeals to this Court asserting that the trial court abused its discretion when it denied Humphrey's motion for continuance. Finding no reversible error, we affirm the judgment below.

FACTS On April 16, 1992, confidential informant Dwayne Phillip Wells bought a rock of crack cocaine from Humphrey while under police surveillance. Humphrey was later indicted under the Mississippi Code section 41-29-139, for the sale of cocaine, and section 41- 29-147 that allows for enhanced sentencing due to prior offenses. Humphrey's first appointed counsel filed a motion for continuance in order to prepare for his defense after Humphrey's co-conspirator filed a motion for severance. Both motions were granted. Subsequent to the continuance, Humphrey's counsel was suspended from the practice of law for one year; therefore, the circuit judge appointed Mr. Fernald to represent Humphrey. At this point, Humphrey had been convicted on an unrelated charge and was incarcerated at the Pike County Community Work Center. The court subsequently granted another continuance; this time pursuant to a motion filed by the State. The case was set for trial Saturday, September 11, 1993. On September 10, 1993, the day before trial, at 5:30 p.m., Humphrey told his attorney for the first time that he needed to secure some witnesses for his trial. Humphrey met with his attorney several times before this date, even earlier that day, but could not remember any witnesses to call for his defense. One witness he remembered at this time was his co-conspirator, who was serving a sentence at Parchman. Another witness he remembered was his brother, who was living in Lincoln County. Humphrey also told counsel that his first attorney had crucial information to his case, as well as his co-conspirator's attorney. Humphrey's attorney immediately filed a motion for continuance, an affidavit, and subpoena the next day. The trial judge heard the arguments of counsel, and denied the motion. The trial proceeded on its merits. Humphrey did not testify, nor did he offer any witnesses in his defense.

DISCUSSION Trial judges are vested with broad discretion in their decision to grant or deny continuances. Morris v. State, 595 So. 2d 840, 844 (Miss. 1991). Furthermore, we will not reverse a case based solely on a denial of a continuance unless the defendant shows not only an abuse if discretion, but also that injustice resulted from it. Morris, 595 So. 2d at 844; see Miss. Code Ann.

Download Denville Lee Humphrey v. State of Mississippi.pdf

Mississippi Law