Wilburn v. State
| Docket Number: | 2002-KA-01117-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-23-2003 Opinion Author: Bridges, J. Holding: AFFIRMED IN PART; REMANDED IN PART |
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| Additional Case Information: |
Topic: Sale of cocaine - Audiotape - Authentication - M.R.E.901(b)(5) - Chain of custody - Enhanced sentence Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-10-2002 Appealed from: Lafayette County Circuit Court Judge: Henry L. Lackey Disposition: GUILTY OF THE SALE OF COCAINE AND SENTENCED AS A HABITUAL OFFENDER TO THIRTY YEARS IN PRISON. Case Number: LK01-397 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kelcy Wilburn a/k/a Kelcy Wilburn, Jr. a/k/a Kelcy Wilborn, Jr. a/k/a "June-June" |
THOMAS C. LEVIDIOTIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of cocaine - Audiotape - Authentication - M.R.E.901(b)(5) - Chain of custody - Enhanced sentence |
| Summary of the Facts: | Kelcy Wilburn was convicted of the sale of cocaine and was sentenced to thirty years in prison as an habitual offender. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Audiotape Wilburn argues that the audiotape recording of the transaction should not have been put into evidence and that the prosecution failed to establish that it was his voice on the recording. M.R.E. 901(b)(5) provides that identification of a voice through electronic transmission or recording may be properly authenticated by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Because the tape was properly identified and authenticated in this case, the court did not err in admitting it. Issue 2: Chain of custody Wilburn argues that the prosecution failed to establish the chain of custody for the tape recording and that the tape could have been tampered with or replaced. The burden of proof in establishing tampering with evidence is on the defendant. Wilburn did not present any evidence that the tape was tampered with. In addition, the testimony of the officers provided the jury with information of who had the tape and where the tape was located at all times. Issue 3: Enhanced sentence Wilburn argues that the court used an improper procedure in his sentencing, because he was not given a proper hearing outside the presence of the jury concerning his prior convictions as required by UCCCR 11.03. Rule 11.03 requires that sentencing as an habitual offender occur at a separate hearing outside the presence of the jury. Because Wilburn was not given such a hearing, the case is remanded for re-sentencing. |
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