Kelly v. State

910 So. 2d 535, 2005 WL 427890
CourtMississippi Supreme Court
DecidedFebruary 24, 2005
Docket2003-KA-02180-SCT
StatusPublished
Cited by3 cases

This text of 910 So. 2d 535 (Kelly 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
Kelly v. State, 910 So. 2d 535, 2005 WL 427890 (Mich. 2005).

Opinion

910 So.2d 535 (2005)

Draper S. KELLY a/k/a Poppa Don
v.
STATE of Mississippi.

No. 2003-KA-02180-SCT.

Supreme Court of Mississippi.

February 24, 2005.

*536 Shirlee Marie Fager-Baldwin, Hattiesburg, attorney for appellant.

*537 Office of the Attorney General, by W. Daniel Hinchcliff, attorneys for appellee.

Before WALLER, P.J., GRAVES and DICKINSON, JJ.

GRAVES, Justice, for the Court.

¶ 1. Draper S. Kelly was convicted of the sale or transfer of cocaine, a Schedule II Controlled Substance, in violation of Section 41-29-139 of the Mississippi Code of 1972. The trial judge sentenced Kelly to a term of thirty years' imprisonment; with twenty-five years to serve in the custody of the Mississippi Department of Corrections and five years suspended. Kelly timely brings this appeal and asserts two errors in the trial below: (1) whether the trial court committed plain error by granting Jury Instruction S-3 and (2) whether the trial court erred in denying Kelly's motion for a new trial. Finding no merit in either issue, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or about January 29, 2002, the Pearl River Basin Narcotics Task Force oversaw a drug bust which involved law enforcement officers from three Mississippi counties (Lawrence, Jefferson Davis, and Marion Counties). The task force pooled resources from the three counties in an attempt to curb drug use and trafficking. James E. Powell (hereinafter "Powell"), a confidential informant, and Officer Donna Davis, (hereinafter "Davis") proceeded to 433 Expose Road in Marion County, Mississippi, where they bought drugs. Accompanied by Davis, Powell purchased approximately 0.1 gram of cocaine from Kelly in violation of Miss.Code Ann. § 41-29-139 (Rev.1995). Following an indictment issued by the Marion County Grand Jury in May 2002, Kelly was arrested on October 14, 2002.

¶ 3. The Honorable Rex Jones was appointed as counsel for Kelly on December 13, 2002. Kelly filed a motion for bond on January 2, 2003, which the trial court denied on January 6, 2003. Kelly was arraigned on August 26, 2003, and the trial commenced on August 26, 2003. At the conclusion of the trial, the jury retired to deliberate but reached a deadlock. The Circuit Court Judge, Honorable R.I. Prichard, III, issued a Sharplin instruction to the jury, see Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), and upon further deliberation, the jury found Kelly guilty of the offense charged. On September 5, 2003, Kelly was sentenced to thirty years in custody of the Mississippi Department of Corrections with five years suspended. On September 8, 2003, Kelly filed a motion for a new trial which the trial court denied. The trial court appointed Kelly's current counsel for purposes of this appeal.

DISCUSSION

I. Whether the trial court committed plain error in granting Jury Instruction S-3 (Jury Instruction No. 5).

¶ 4. Kelly urges that the trial court committed plain error by granting Jury Instruction S-3 because it failed to set forth the elements of the crime. Kelly argues that his due process rights were violated because Instruction S-3 lacked the requisite elements of the crime.

¶ 5. Instruction S-3 reads:

The Court instructs the jury that it is immaterial as to the guilt or innocence of the defendant how much profit, if any, that the defendant makes on the sale of a controlled substance and that the mere fact that the defendant earns little or no profit from a particular sale of a controlled substance means nothing; a *538 crime occurs whenever a controlled substance is transferred or delivered.

¶ 6. Other than Instruction S-3, Kelly argues that the only instructions which related to the elements of the crime charged were Jury Instruction S-7 and Jury Instruction D-6. Instruction S-7 reads:

The court instructs the jury that the defendant, Draper Kelly, has been charged in the indictment with the crime of "sale or transfer of a controlled substance," and therefore, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Draper Kelly, on or about the 29th day of January, 2002, in Marion County, Mississippi, did wilfully, unlawfully, feloniously, and knowingly sell for money, a Scheduled II controlled substance, to-wit: cocaine, then you shall find the defendant, Draper Kelly, guilty as charged.
Should the State fail to prove any of the above elements, you shall find the defendant, Draper Kelly, not guilty.

¶ 7. Instruction D-6 reads:

Draper Kelly has been charged with the sale of cocaine.

If you find from the evidence in this case beyond a reasonable doubt that Draper Kelley:
1. Knowingly or intentionally sold,
2. A controlled substance, to-wit: cocaine,
3. To a confidential informant,

then you shall find the defendant guilty as charged.

If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Draper Kelly not guilty.

¶ 8. First, the record reveals that Kelly did not make a contemporaneous objection to the granting of Instruction S-3. We have held that where no contemporaneous objection is made, the alleged error is waived. Scott v. State, 878 So.2d 933, 953 (Miss.2004); Williams v. State, 684 So.2d 1179, 1203 (Miss.1996); Walker v. State, 671 So.2d 581, 587 (Miss.1995); Cole v. State, 525 So.2d 365, 368 (Miss. 1987). However, a defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal. Perkins v. State, 863 So.2d 47, 55 (Miss.2003), Randall v. State, 806 So.2d 185, 195 (Miss.2001); Foster v. State, 639 So.2d 1263, 1288-99 (Miss.1994). The plain error doctrine has a two-part test which requires: (i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice. Gray v. State, 549 So.2d 1316, 1321 (Miss.1989). We have held that plain error exists where a defendant's substantive rights have been affected. Grubb v. State, 584 So.2d 786, 789 (Miss.1991).

¶ 9. Kelly argues that it was plain error for the trial court to grant Instruction S-3 because its language did not include "sell" for which he was indicted and later convicted. Instead, the words, "transferred or delivered" are included. This argument is clearly without merit. The statute under which Kelly was convicted enumerates several offenses including, to sell, barter, transfer, manufacture, distribute, dispense, or possess a controlled substance. See Miss.Code Ann. § 41-29-139(a)(1)(Supp.2000). Further, the indictment returned by the Marion County Grand Jury noted that the criminal charge Kelly faced was the "sale or transfer of a controlled substance."

¶ 10. Kelly relies heavily upon Mitchell v. State, 788 So.2d 853 (Miss.Ct.App.2001), to buttress his argument for plain error. *539 In Mitchell,

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910 So. 2d 535, 2005 WL 427890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-miss-2005.