Kelly v. State
| Docket Number: | 2003-KA-02180-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-24-2005 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale or transfer of cocaine - Elements instruction - Section 41-29-139(a)(1) - Weight of evidence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-05-2003 Appealed from: Marion County Circuit Court Judge: R. I. Prichard, III Disposition: Kelly was convicted of the sale or transfer of cocaine and sentenced to a term of thirty years’ imprisonment; with twenty-five years to serve. District Attorney: Claiborne McDonald Case Number: K02-0252P |
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| Party Name: | Attorney Name: | |||
| Appellant: | Draper S. Kelly a/k/a Poppa Don |
SHIRLEE MARIE FAGER-BALDWIN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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| Topic: | Sale or transfer of cocaine - Elements instruction - Section 41-29-139(a)(1) - Weight of evidence |
| Summary of the Facts: | Draper Kelly was convicted of the sale or transfer of cocaine and was sentenced to twenty-five years, with five years suspended. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Elements instruction Kelly argues that the court erred by granting an instruction which failed to set forth the elements of the crime. Although Kelly failed to object to the instruction, he argues it was plain error to grant the instruction because its language did not include “sell” for which he was indicted and later convicted but instead included the words “transferred or delivered.” Section 41-29-139(a)(1), the statute under which Kelly was convicted, enumerates several offenses including, to sell, barter, transfer, manufacture, distribute, dispense, or possess a controlled substance. Further, the indictment noted that the criminal charge Kelly faced was the sale or transfer of a controlled substance. In addition, the instructions, when read together, fairly instruct the jury as to the elements of the crime Kelly faced. Issue 2: Weight of evidence Kelly argues that the verdict was against the overwhelming weight of the evidence, because the confidential informant was the only individual who could identify him at trial and none of the law enforcement officials were able to positively offer a physical or voice identification. The confidential informant testified that he made a buy from Kelly. The Commander of the Pearl River Basin Narcotics Task Force testified to the nature of the operation and the events. An undercover agent testified that she prepared the confidential informant and listened to the audiotapes of the transaction. Also, the State offered into evidence an audiotape of Kelly selling the cocaine to the confidential informant. The jury is the judge of credibility and clearly found the testimony of the confidential informant to be more credible and reliable than Kelly’s. Viewing this evidence favorably to the State, there is more than sufficient evidence to sustain Kelly’s conviction. |
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