Tribbett v. State, 52365

• Citation: 394 So.2d 878
• Decision Date: 18 February 1981
• Docket Number: No. 52365,52365
• Parties: Josephous TRIBBETT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 878

394 So.2d 878

Josephous TRIBBETT v. STATE of Mississippi.

No. 52365.

Supreme Court of Mississippi.

Feb. 18, 1981.

Rehearing Denied March 18, 1981.

Delos H. Burks and Nova Carroll, Stewart, Burks & Pace, Picayune, for appellant.

Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

Josephous Tribbett was indicted, tried and convicted in the Circuit Court of Pearl River County, Honorable R. I. Prichard, III, presiding, for the sale of less than one (1) kilogram of marijuana, and was sentenced to a term of ten (10) years with the Mississippi Department of Corrections. He has appealed and assigns five (5) errors in the trial below.

On May 22, 1978, Tim Wilkinson, agent for the Mississippi Bureau of Narcotics, and Thomas K. Phillips, a confidential informant, went to Bill's Quick Stop in Picayune, arriving there about 4:30 p. m. Phillips made a telephone call to appellant, who drove to the Quick Stop about twenty (20) minutes later. According to Wilkinson, he and Phillips got out of Wilkinson's car, walked over to appellant's automobile, and had a short conversation, after which Wilkinson asked appellant if he had the marijuana. Appellant answered affirmatively that he had nine (9) bags, reached behind the driver's seat in his car and removed a large paper bag containing marijuana, and placed it on the driver's seat. Wilkinson took it to his own vehicle, opened it, observed several bags of a substance which was later identified to be marijuana, and asked the appellant the price of the marijuana. Appellant replied that it was ninety dollars ($90.00). Wilkinson gave him the money and drove away. Wilkinson radioed another narcotics agent who was in an adjacent parking lot and who had observed the exchange from a parked car thirty (30) to forty (40) feet away, and the two agents proceeded to Gulfport. Appellant was arrested approximately five (5) months later at NASA, his place of employment, and was charged with the sale of a controlled substance.

Except for character witnesses, appellant was the only witness to testify in his behalf. He stated that Phillips was a co-employee with him at NASA and that, beginning in March, 1978, and continuing until the May 22, 1978 incident, Phillips had constantly badgered and begged him for drugs; that Phillips requested him ten or twelve times over a three-month period to supply him with drugs. Appellant said that he finally told Phillips that he would get some marijuana, if Phillips would stop worrying him about it. On May 22, 1978, according to appellant, he purchased some marijuana from a man named "Blue" in downtown Picayune, and took the marijuana to Phillips at Bill's Quick Stop. When he arrived at the Quick Stop, Phillips was sitting in a car under the driver's wheel and the passenger seat was occupied by another man. Both men got out of the car but it was Phillips who handed him the money for the drugs. Appellant said that he did not make any money off the drugs and gave the $90.00 to the man called "Blue." He stated that no threats had been made against him by Phillips or any other person, that he knew the sale of marijuana was illegal and that he was aware he was breaking the law at the time of the transaction.

The confidential informant, Thomas K. Phillips, did not testify.

I.

Did the lower court err in overruling appellant's motion for a continuance on account of the absence of Thomas K. Phillips?

This case was originally set for trial during the April 1979 Term of court. However, on motion of appellant, he was granted a continuance until the November 1979 Term when the case was set for trial at 9:00 a. m. on April 1, 1980. About 9:30 a. m. on the day of trial, appellant filed another motion for continuance due to the absence of Thomas K. Phillips, the confidential informant, who had been subpoenaed as a witness by the defense on August 22, 1979. Phillips was served and did not appear, but no attachment for him was requested. The motion was overruled by the court.

Appellant argues that the denial of his motion for a continuance was reversible error because he was denied an opportunity to confront and cross-examine his original accuser. However, we are of the opinion that such argument is misplaced. Phillips was a confidential informant, not an accuser, and appellant had no right to call him as an adverse witness and to cross-examine him. If the State had attempted to show something that Phillips said or did, the appellant then would have the right to be confronted with the witness and to cross-examine him. Thus, the reason for the hearsay evidence rule.

Mississippi Code Annotated Section 99-15-29 (1972) is the statute governing continuances:

"On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom." (Emphasis added).

The law with reference to continuances, considering that statute, was enunciated in the old case of Lamar v. State, 63 Miss. 265 (1885), where the Court said:

"To begin with, he should promptly issue summonses for all witnesses who may be material for his defense; for any witness who has been served with process and who has failed to appear as commanded he should ask for an attachment, which will never be refused by the court; in capital cases he should apply for a continuance before the venire is drawn, setting out in his affidavit the names and residences of the absent witnesses, the facts expected to be proved by them, and should also show to the court what steps have been taken to secure their attendance; he should negative the idea that they are absent with his consent or procurement, and if any reasons are known to him why they are not present, these should be stated.

If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, making such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court;...