IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-KA-02180-SCT

DRAPER S. KELLY a/k/a POPPA DON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/05/2003

TRIAL JUDGE: HON. R. I. PRICHARD, III

COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: SHIRLEE MARIE FAGER-BALDWIN

ATTORNEYS FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: W. DANIEL HINCHCLIFF

BUDDY McDONALD

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 02/24/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

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-f i ve 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 be low: (1) whether the trial

court committed plain error by granting Jury Instruction S-3 and (2) whether the trial court2

erred in denyi

ng 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 att empt to curb drug use and trafficking. James E. Powell (hereinafter

“Powell”), a confidenti

a l 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 Hono rable 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 deli berate but reached a deadlock. The Circuit

Court Judge, Honorable R. I. Prichard, III, issued a Sharplin instruc tion to the jury, s ee

Sharplin v. State , 330 So. 2d 591, 596 (Miss. 1976), and upon further deliberation, the jury

foun d Kelly guilty of the offense charged. On September 5, 2003, Kelly was sentenced to

t hirty years in custody of the Mississippi Department of Corrections with fiv e years3

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 committe d 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 particu lar sale of a

contro lled substance means nothing; a 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 D6. Instruction S-7 reads:

The court instructs the jury that the defendant, Draper Kelly, has been

charged in the indi

ctment with the crime of “sale or transfer of a

controlled substance, ” and therefore, if you believe from the evidence in

this case, beyond a reasonabl e doubt, that the defendant, Draper Kelly, on

or about the 29th day of Ja nuary, 2002, in Marion County, Mississippi,

did wilfully, unlawfully, feloniously, and know ingly sell for money, a

Scheduled II controlled substance, to-wit: cocaine, th e n you shall find

the defendant, Draper Kelly, guilty as charged.

Should the State fail to prove any of the above eleme nts, you shall find

the defendant, Draper Kelly, not guilty.

¶7. Instruction D-6 reads:4

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 mo re of the above listed

elements beyond a reasonable doubt, then you shall find Draper Kelly not guilty.

¶8. First, t

he record reveals that Kelly did not make a contemporaneous objection to the

granting of I nstruction S-3. We have held that where no contemporaneous objection is made,

the alleged error is waived. S cott v. State, 878 So.2d 93 3, 953 (Miss. 2004); W illiams v.

State, 684 So.2d 1179, 1203 (Miss. 1996); Walk er v. State, 6 71 So.2d 581, 587 (Miss.

1995); Cole v. State, 525 So.2d 365, 368 (Miss. 1988). 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), R andall 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. G ray v. State, 549 So.2d 131 6

, 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 err or 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 offens es including, to sell,5

barter, transfer, manufa cture, distribute, dispense, o r possess a controlled substance. S ee

Miss. Code Ann. § 41-29-139(a)(1)(Supp. 2000). Further, the indictment returned by the

Marion Co unty Grand Jury noted that the criminal charge Kelly faced was the “sale or transfer

of a controlled substance.”

¶10. Kelly relies heavily upon Mitche ll v. State, 788 So.2d 853 (Miss. Ct. App. 2001), to

buttress his argument for plain error. In M itchel l, t

he Court of Appeals held that a jury

instruction for the sale of cocaine, which contained language relating to other separate

offenses under th

e controlled substances statute such as “delivery” of cocaine, was plain error

warranting a reversal, where the indictment charged only the “sale of co caine.” I d. at 857.

Thus, the Court of Appeals held the trial committed reversible error in allowing a jury

instruction with terms broader than those included in th e indictment. The rationale for that

decision flows from Sanders v. State, 4 79 So.2d 1097, 1108 (Miss. 1985). In S anders, we

said it was manif

estly unfair to indict a defendant for one offense, which he prepares to defend,

and then secure an instruction authorizing the jury to convict him of another distinct offense

of the same magn

itude. I d. at 1108. Again, Instruction S-3 includes the language “ t ransferred

or delivered

,” and the Kelly’s indictment includes the lan guage, “ s ell or transfer

.” (emphasis

add ed). It follows that M itchell is distinguishable from the case sub judice because the scope

of the jury instruction in question is not broader than the indictment u nder which Kelly was

convicted. Thus, in keeping with the spirit of S anders, we hold that Kelly was not prejudiced

by Instruction S-3 since its language tracks the language contained in his indictment. It follows

that no substantive right was affected by the trial court’s granting Instruction S-3.6

¶11. “For the purpose of reviewing ch allenges to jury instructions, the instructions actually

given must

be read as a whole.” W illiams v. State, 803 So.2d 1159, 1161 (Miss.

2001)(quoting Hickombottom v. State, 4 09 So.2d 1337, 1339 (Miss. 1982). “When so read,

if the instructions fairly announce the law of the case and create no injustice, no reversible

error will be found.” W illiams, 803 So.2d at 1161(quoting H ickombottom, 409 So.2d at

1139). Here, Instructions S-3 and S-7, when read together, fairly instruct the jury as to the

elements of the crime Kelly faced. No error can be predicated on one instruction alone to set

out properly a necessary element of the crime, where the element was included in other

instructions. G ray v. State, 487 So.2d 1304, 1308 (Mi ss. 1986). We find that the trial court’s

grant of Instruction S-3 was not plain err or, and none of Kelly’s substantive rights were

affected by it.

II. Whethe r the trial court erred in denying Kelly’s Motion for a New

Trial.

¶12. Kelly argues that the trial court erred in denying his motion for a new trial, specifically,

that the verdict was against the overwhelming weight of the evidence. In those cases where

there is sufficient credible evidenc e presented by the State to prove the essential elements of

the crime, it remains within the power of the trial court to award the defendant a new trial when

the court co ncludes, based on its evaluation of all of the evidence, that the jury’s verdict was

so against the weight of t he evidence that to permit it to stand would work a substantial

miscarriage of justic e. Simmons v. State, 7 22 So.2d 666, 674 (Miss. 1998); (cited by

Windham v. State, 800 So.2d 12 57. 1263 (Miss. Ct. App. 2001)). In ruling on a new trial

motion, the trial court must consider the evidence in the light most favorable to upholding the7

verdict. A ustin v. State, 784 So.2d 186, 196 (Miss. 2001). The trial court is vested with

substantial discretion in ruling on such a motion and, if the motion is denied, an appellate court

may disturb that ruling only if it is satisfied that the trial court was manifestly in error. Wetz

v. State, 503 So.2d 803, 812 (Miss. 1987).

¶13. Kelly produces a number of challenges to the evidence received as he attempts to

advance his argument for a new trial. Kelly argues that Powell, the confidential informant, was

the only individual who could identify him at trial. Further, Kelly argues that this Court should

discount the credib ility of Powell’s testimony due to potential bias. Kelly urges that Powell

cooperated with law enforcement officials in exchange for reduced burglary charges Powell

faced. Powell testified that he met Kelly on a previous occasion, while Kelly testified that the

two had never met. Also, Kelly notes that the time between the initial viewing and the trial was

long enough to challenge Powell’s recollection of the events on the night in question. Lastly,

Kelly contends that none of the law enforcement officials with the Pearl River Basin Narcotics

Task Force were able to positively offer a physical or voice identification.

¶14. The State presented evidence that on January 29, 2002, Powell and Davis executed a

drug buy. Powell testified that he made a buy from Kelly. Specifically, Powell testified:

We pulled in on th

e edge of the road in the front yard and she handed me the

money, $20. I got out and proceeded to the window where he was playing a Play

Station and had the curtains half cracked and the window was b usted with a piece

of cardboard h

e would slide back. And I asked him did he have a $20 (slang for

“t wenty dollars worth of cocaine”), he reached behind the TV and got a

cellophane bag out and he handed me the $20 worth of rock cocaine and I handed

him the $20.

In addition to Powell’s testimony, the State called Bobby Patterson (herei n after “Patterson”),

the Commander of the Pearl River Basin Narcotics Task Force, who testified to the nature of8

the operation and the ev ents of leading to and surrounding January 29, 2002. The State also

called Davis, the undercover officer who accompanied Powell to the scene, and she testified

that she pre pared Powell and listened to the audiotapes of the transaction. Also, the State

offered into evidence an audiotape of Ke lly selling the cocaine to Powell. Prior to resting its

case, the State called three other law enforcement officials who were all present the night of

January 29, 2002.

¶15. We have routi

nely held that the jury is the judge of credibility. S chuck v. State, 865

So.2d 1111, 1124 (Miss. 2003); Harris v. State, 527 So.2d 64 7, 649 (Miss. 1988). This

Court will not set aside a guilty verdict, absent other e rror, unless it is clearly a result of

prejudice, bia s or fraud, or is manifestly against the weight of credible evidence. D rake v.

State, 800 S o.2d 508, 517 (Miss. 2001)(citing M aiben v. State, 405 So.2d 87, 88 (Miss.

1981)). Further, it is within the sound discretion of the jury to accept or reject the testimony

of a witness, an

d the jury “may give consideration to all inferences flowing from the

testimony.” M

angum v. State, 762 So.2d 337, 342 (Miss. 2000) (quoting G rooms v. State,

357 So.2d 292, 295 (Miss. 1978). It is clear that after receiving the testimony from both

Powell and Kelly, the jury found Powell’s testimony to be more credible and reliable than

Kel l y’s. Also, the testimony of Davis and Patterson buttress the notion that Kelly was present

on the night in question and actually committed the charged offense. The instant action is on

all fours with Mims v. State, 856 So.2d 518, 522-23 (Miss. Ct. App. 2003). In M ims, the

Court of Appeals affirmed a conviction for the sale of a controlled su bstance, specifically

crack cocaine. I

d. at 523. It found sufficient evidence in the audio tape of the defendant

selling cocaine to the confidential informant and the testimony of the police office who9

prepared the i

nformant, and listened to the transaction. It concluded that alleged inconsistences

in testimony of the confidential informant and defendant were pr operly resolved by the trier

of fact. I

d. From the evidence present in the case sub judice, we conclude that the jury

resolved any discrepancies in favor of the State. Viewing this evidence favorably to the State,

we find that the testimony of Powell, Patterson and Davis linking Kelly to the crime charged

is more than sufficient evidence to sustain Kelly’s conviction. Thus, the trial court did not

abuse its discretion in denying Kelly’s motion for a new trial.

CONCLUSION

¶16. Finding

no reversible error, we affirm the judgment of the Marion County Circuit Court.

¶17. CONVICTION OF THE SALE OR TRANSFER OF A CONTROLLED

SUBSTANCE, SCHEDULE II (COCAINE 0.1 GRAM) AND SENTENCE OF THIRTY

(30) YEARS , TWENTY - FIVE (25) YEARS TO SERVE AND FIVE (5) YEARS

SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, WITH CONDITIONS, TOGETHER WITH PAYMENT OF ALL COSTS,

AFFIRMED. SENT

E NCE SHALL RUN CONSECUTIVELY TO ANY SENTENCE

APPELLANT IS NOW SERVING.

SMITH, C.J., W

ALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON

AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.