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Click here for the full text of this decision FACTS:On March 13, 2004, Damon Hickerson was riding in the front passenger seat of a rented Buick and was the named renter on the contract. Police observed the Buick make two turns without signaling and pulled it over. They saw Aaron Harris, a passenger in the back seat, make suspicious movements and asked him to step out of the vehicle. On searching him, they discovered marijuana in his possession. They then removed the other passengers from the car, finding a gun in the back seat. When an officer patted Hickerson down, he found a .44 caliber revolver in Hickerson’s back right pants pocket. The officers placed Hickerson under arrest and charged him with possession of the revolver. On Sept. 17, 2004, while that charge was pending, Hickerson was involved in a separate incident. Six police officers responded to a citizen complaint about a group of men in front of a barber shop. The officers smelled marijuana coming from the barber shop as they approached the men. While the officers were approaching, Hickerson left the group of men and began to walk away. An officer shouted at him twice to stop, and Hickerson began to run away. Two officers chased Hickerson, subduing him and handcuffing him. During the struggle, one officer noticed the outline of a handgun in Hickerson’s pants pocket. The officer found a loaded National Arms .22 caliber derringer in Hickerson’s right front pants pocket. The government filed a superseding indictment, charging Hickerson with an additional count of being a felon in possession of a firearm based on the derringer and seeking enhancement as a career criminal based on Hickerson’s previous convictions. On June 20, 2005, at trial proceedings involving both counts, the district court asked two of Hickerson’s witnesses, Aaron Harris and Cassie Arceneaux, to approach the bench. The court swore them in and instructed Harris to return the following day at 9 a.m. and Arceneaux to return “at noon here today.” Arceneaux indicated that she understood, promising to return to court by 11:30 a.m. that day to testify at a suppression hearing. Arceneaux returned on time and testified at the hearing, outside the presence of the jury, that Hickerson was not running away from officers when they arrested him for the Sept. 17, 2004, incident at the barber shop. After both sides had questioned her, the court dismissed Arceneaux, saying, “Okay. You’re excused. Thank you.” She was not instructed to return. On June 21, 2005, after the government rested its case, the defense presented two witnesses relating to the March 13, 2004, incident. After their testimony, a defense attorney advised the court that Hickeron’s next witness, Cassie Arceneaux, was not in court. One of Hickerson’s defense attorneys stated that Dion Craig, another one of Hickerson’s attorneys, had spoken with Arceneaux the night before and had confirmed that she could be in court at 10 a.m. to 10:30 a.m. The district court asked Craig if he had heard from Arceneaux. He stated that his most recent conversation with her had been the night before and that he had called her eight or nine times that morning but had not been able to reach her. The district court dismissed the jury for an early lunch to allow the defense to attempt to find the witness. The court then told the defense that if they could not locate Arceneaux by the time the jury returned, she would miss her chance to testify. After two recesses, defense counsel told the court that Arceneaux still could not be found and renewed the motion for a continuance. The court denied the motion, noting that the defense had been given sufficient time to find her. At this time, defense counsel moved to sever the two counts against Hickerson, arguing that Arceneaux would have testified that she had slipped the derringer found by police in his pocket, while he might have believed that it was actually a replica cigarette lighter owned by her and that the defense would have offered into evidence. Defense counsel argued that absent this testimony the second count was essentially unopposed, which would prejudice the jury on the first count. The court denied the motion to sever. The district court instructed the jury to consider each count separately: “A separate crime is charged in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the crimes charged should not control your verdict as to any other.” The jury found Hickerson guilty on both counts. Hickerson appealed. HOLDING:Affirmed. Hickerson, the court stated, first argued that the district court erred by denying his motion for a continuance for further time to locate Arceneaux. When a continuance is requested based on the unavailability of a witness, the party seeking a continuance must demonstrate: 1. that due diligence was exercised to obtain the attendance of the witness; 2. that the witness would tender substantial favorable evidence; 3. that the witness will be available and willing to testify; and 4. that denial of the continuance would materially prejudice the movant. The required prejudice must be severe or serious, the court stated. The defense attorney’s only effort to ensure Arceneaux’s presence was to call her the night before, verifying the time she was to appear. In light of this and the failure to obtain a subpoena, the court found that Hickerson did not show due diligence in ensuring that Arceneaux would appear. Thus, the court held that the trial court did not abuse its discretion in denying the motion for a continuance. Hickerson also argued that the district court erred by denying his motion to sever the two counts of the indictment, made after Arceneaux failed to appear. Hickerson argued that in the absence of her testimony, he effectively had no defense as to the second count. The court stated it would not reverse the trial court unless there was clear prejudice to the defendant. But the court did not find such prejudice, because the instruction given to the jury plainly forbade it from considering the evidence pertaining to one count as to the other. OPINION:Dennis, J.; Smith, Barksdale and Dennis, JJ.

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