IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-KA-01333-COA
OCTAVIUS COLLINS A/K/A OCTAVIS APPELLANT COLLINS A/K/A OCTAVIOUS COLLINS A/K/A
OCTAVIUS MONROE COLLINS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/06/2023
TRIAL JUDGE: HON. LEE JACKSON HOWARD V
COURT FROM WHICH APPEALED: CLAY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: AUTUMN BREEDEN SMITH
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DANIELLE LOVE BURKS
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/04/2026
MOTION FOR REHEARING FILED:
EN BANC.
LASSITTER ST. PÉ, J., FOR THE COURT:
¶1. Octavius Collins was convicted of the second-degree murder of James Roberson in
the Circuit Court of Clay County. Consequently, the circuit court sentenced Collins to serve
forty years in the Mississippi Department of Corrections, with ten years suspended, followed
by post-release supervision. On appeal, Collins argues that the Weathersby1 rule afforded him
an absolute legal defense and that the trial court erred by denying his motion for a directed
verdict. He also claims he received ineffective assistance of counsel. However, after our
1
Weathersby v. State, 165 Miss 207, 147 So. 481 (1933).
review, we find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On November 25, 2020, Octavius Collins was at the Windale Apartments with his
girlfriend Tracy Roberson (Tracy) and her brother, James Roberson (Roberson). Tracy went
to bed at approximately 10:00 p.m., and roughly three hours later, in the early hours of
November 26, Collins shot and killed Roberson. Collins was then indicted by a Clay County
grand jury for the first-degree murder of Roberson pursuant to Mississippi Code Annotated
section 97-3-19(1)(a) (Rev. 2020). Collins’s trial began in April 2023, and he was convicted
of the lesser-included offense of second-degree murder.
¶3. At trial, Collins claimed that he had shot Roberson in self-defense. Collins testified
that as he was in the kitchen, which he described as a “tight” space, Roberson entered the
kitchen and “bumped” him. Collins and Roberson then got into a verbal altercation. Collins
then left the kitchen and went to the living room and retrieved a gun from the couch.
Roberson followed Collins into the living room and allegedly told Collins, “I know you got
a weapon. I’m gonna take that weapon and whoop your . . . ass with it.” Collins claimed that
he responded by telling Roberson to “back up off [him]” and to “leave [him] alone,” but
Roberson “kept coming” toward him. Collins stated that he “knew” Roberson was going to
hurt him, so he shot Roberson once; but Roberson “didn’t do anything,” so Collins fired the
second shot. After the second shot hit Roberson, Roberson fell against the wall.
¶4. Collins stated that after Roberson fell, he went to Tracy’s room and told her that he
2
had shot Roberson, and she needed to call 911 to “get him some help.” Collins then left the
complex with the gun, and Tracy called the West Point Police Department to report that
Roberson had been shot.
¶5. While police and paramedics went to the complex, Collins drove to his other residence
where he rented a room. Once he arrived, he placed the gun in a BBQ grill and later received
a text from Tracy informing him that Roberson had died. Collins then went back to Windale
and was taken into custody by law enforcement.
¶6. Officers Traver Jung and Jacob Moss were two of the first officers on the scene, and
at trial, both men were called as witnesses by the State. Officer Jung stated that once police
arrived at the apartment complex, he activated his body camera and rushed to Tracy’s
apartment.2 Upon their arrival, they saw Roberson on the floor “losing a lot of blood.”
Officer Jung also stated that he observed two gunshot wounds to Roberson, “one in the
shoulder and the other [in] kind of [the] chest area.” Roberson succumbed to his injuries.
¶7. Officer Jung testified that when Collins returned to the apartment complex on the
morning of November 26, he spoke briefly with Collins. Officer Jung testified that he heard
Collins say he killed Roberson and “knew where the gun was.” Jung then reported the gun’s
location to another officer, and the gun was discovered at Collins’s other address inside the
grill.
2
Officer Jung’s body-camera footage was submitted into evidence and published to the jury over Collins’s objection.
3
¶8. Moss also spoke with Tracy and learned that Collins had admitted to her that he shot
Roberson. Accordingly, Moss arrested Collins after he returned to the scene. When asked to
describe Collins’s demeanor upon returning to the complex, Moss stated that Collins “didn’t
show any emotion, none at all.” During cross-examination, Moss acknowledged that he could
not say whether Collins acted in self-defense, nor could he provide any evidence of “why”
Roberson was shot.
¶9. Tracy testified that Roberson had been living with her and Collins for approximately
three months before the shooting occurred, and in that time, Collins never indicated to her
that he was afraid of Roberson. However, she did say that in the ten years she dated Collins,
he and Roberson never got along, although she did not know why. Tracy also testified that
Collins usually kept the gun in an apartment drawer, but when she went to bed, the gun was
“in the cushion . . . on the [living room] couch.”
¶10. She went on to say that on the night her brother died, there were no signs of trouble
brewing between the two men, and the three of them had all been “up drinking” until she
went to bed around 10:00 p.m. When she went to sleep, Collins and Roberson were in
separate rooms listening to music, and the next thing she remembered was Collins coming
into her room, waking her up, and telling her that he had shot Roberson. According to Tracy,
Collins apparently said, “I shot your brother, but he’s not hurt. Call the ambulance[,]” and
then left the apartment. Collins did not tell her why he shot Roberson nor how many times
Roberson had been shot. Tracy then got up to see if Collins was telling the truth and found
4
Roberson bleeding on the floor.
¶11. The final witness called by the State was Detective Ramirez Ivy, the lead investigator.
When he arrived at the Windale Apartments, Detective Ivy processed the crime scene. Ivy
took photos showing the position of Roberson’s body, the blood spatter, and the location of
the shell casings. Those photos were published to the jury over the defense’s objection. Ivy
testified that no weapons were found near Roberson’s hands and that he did not observe any
gunpowder burns on Roberson’s body. Ivy explained that if there were gunpowder burns on
Roberson, it “would have indicated that the shooter was in close proximity to the . . . victim,”
but the absence of these burns indicates that Collins was not in close proximity to Roberson
when he fired the shots.
¶12. Detective Ivy also spoke with Tracy and learned that Collins and Roberson had
“never” gotten along. Tracy also mentioned that Collins had been complaining about
Roberson earlier that day.
¶13. Detective Ivy attempted to speak with Collins at the police station, but Collins “reeked
of alcohol,” so Detective Ivy had Collins transported to the Clay County Jail to sober up. The
next day, Detective Ivy interviewed Collins at the jail. Although the interview was recorded,
the recording was not submitted into evidence. However, Ivy drafted a written report after
the interview, which was submitted into evidence. After Collins signed a Miranda3 waiver,
he told Ivy that he had shot Roberson in self-defense. Collins also told Ivy that he never got
3
Miranda v. Arizona, 384 U.S. 436 (1966).
5
along with Roberson and characterized Roberson as a “bully.” According to Ivy, Collins told
him that he and Roberson had gotten into a “verbal altercation” in the kitchen after Roberson
bumped him.
¶14. Collins claimed to Detective Ivy that after Roberson followed him into the living
room, Roberson told him, “I know you got a mother f***ing gun. I ain’t scared of your
mother f***ing gun. I’ll take your gun and beat your mother f***ing ass.” Collins went on
to tell Ivy that he warned Roberson to “back up off me” but Roberson “kept coming,” so he
reached to the couch “in-between the cushions and got the gun.”
¶15. Collins told Ivy that as Roberson “came at him,” he shot Roberson once, but Roberson
said, “I’ve been shot before. That ain’t nothing,” and kept coming towards him, so he shot
Roberson a second time. Ivy stated that Collins never explained why he chose not to call 911
after shooting Roberson, or why Tracy was the one who needed to contact 911. Collins also
told Ivy that after waking Tracy up, he left the apartment complex and took the gun to his
other apartment.
¶16. Ivy also asked Collins if Roberson had been holding a weapon when he approached
him in the living room, but Collins replied that he could not remember. Collins concluded
by telling Ivy that he returned to the apartment complex after Tracy told him Roberson had
died to “turn himself in because he didn’t want a manhunt after him.”
¶17. After interviewing Collins, Detective Ivy obtained security footage from the Windale
Apartments. The State moved to have the security footage played by the jury, but the defense
6
objected, claiming the videos were “inaudible” and did not “accurately reflect the scene of
the things that actually happened.” The objection was overruled, and the footage was
published to the jury. In the videos Collins can be seen exiting the apartment, walking to his
car, and then driving away. Moments before Collins appears on video, yelling or raised
voice(s) can be heard, followed by two gunshots in quick succession.
¶18. After a brief cross-examination and redirect, Ivy was released from the stand, and the
State rested. The jury was then excused, and the defense moved for a directed verdict, which
the court denied.
¶19. Collins then took the stand. Collins explained that prior to the altercation with
Roberson, he was “feeling pretty good” and bore Roberson no ill will. Collins also claimed
that he was not aggressive toward Roberson in any way before the shooting. When asked
how the altercation with Roberson began, Collins explained he was washing chitlins in the
kitchen sink in preparation for Thanksgiving when Roberson entered the kitchen and
“bumped” into him.
¶20. According to Collins the kitchen was a “tight” space with very little room to
maneuver, so he asked Roberson, “[B]ro, you don’t see me working in here?” Collins
claimed this caused Roberson to go “haywire” and become “aggressive.” Collins stated that
Roberson then began “ranting” at Collins, claiming Collins did nothing to help around the
house, and said that Tracy paid all the bills while Collins did nothing but watch TV.
¶21. Collins then left the kitchen and went to the living room, where he retrieved a gun
7
from the couch. Roberson followed Collins into the living room and allegedly told Collins,
“I know you got a weapon. I’m gonna take that weapon and whoop your . . . ass with it.”
Collins claimed that he responded by telling Roberson to “back up off [him]” and to “leave
[him] alone,” but Roberson “kept coming” toward him. Collins stated that he “knew”
Roberson was going to hurt him, so he shot Roberson once; but Roberson “didn’t do
anything,” so Collins fired the second shot.
¶22. When asked why he shot Roberson, Collins claimed it was in self-defense because he
“feared for [his] life” and to “stop [Roberson] from hurting me.” Collins went on to say that
he was diagnosed with Lupus in 2014, and therefore, he could not get bumped, hit, or bruised
and believed Roberson was going to “do some damage” to him.
¶23. Collins testified that after shooting Roberson, he went to Tracy’s room, woke her up,
and told her to call 911 because he had shot her brother. Collins then left the apartment,
taking the gun with him. Collins claimed he told Tracy to call 911 and left the apartment
because “the situation could [have gotten] worse” if he was at the apartment when the police
arrived.
¶24. On cross-examination, the State asked Collins if Roberson’s statements—that he did
nothing around the house—made him angry, but Collins replied, “not at all,” saying
Roberson’s claims were “wrong.” When questioned about the gun, he claimed that the gun
was Tracy’s, but he had bought it for her. He also stated that the gun was usually kept in the
bedroom in a lockbox, but Tracy had been “playing” with it earlier in the day, so he took it
8
from her and left it on the couch. When asked if he remembered telling Detective Ivy that the
pistol was “hidden in-between the cushions of the couch,” Collins said the gun was never
“hidden.” Instead, he claimed the pistol was simply “on the couch,” where he had left it.
When asked why he did not exit the apartment or call the police instead of shooting
Roberson, Collins replied that “he didn’t have a chance.”
¶25. During cross-examination Collins claimed for the first time that he shot Roberson in
fear for his life because Roberson had threatened to kill him during their argument. The State
questioned why Collins never mentioned Roberson’s threat to Detective Ivy or during his
direct examination, and Collins claimed it was because he “wasn’t asked that question.”
Additionally, Collins acknowledged that he was the only person holding a weapon in the
living room that night and that he fired the first shot when Roberson was forty inches away
from him.
¶26. The State also asked Collins why he left the apartment with the gun instead of
performing CPR on Roberson, remaining in the apartment, or calling the police. Collins
stated that he left because in those “situation[s]” emotions run high, and because he was there
with a gun, he did not “know how the police [were going to] act,” so he thought it was in his
best interest to leave. Collins went on to say that he left the apartment and went to his other
residence because he wanted his roommate to drive him to the police station. Collins stated
that when he arrived at his other residence, he remained outside waiting for his roommate to
get their car keys, so he simply put the gun in the BBQ grill for the sake of convenience. He
9
denied that he went there to hide the gun.
¶27. The State asked Collins why he did not drive directly to the police station instead, and
he replied it was because he did not have a license. When confronted with the security
footage that showed him driving a vehicle away from the Windale apartment complex,
Collins explained that he did not want to leave his car at the police station.
¶28. Furthermore, the State asked Collins if he remembered telling Detective Ivy that in
between shots one and two, Roberson said, “I’ve been shot before. This don’t phase me,” and
Collins replied, “yes.” Collins then reiterated that Roberson had spoken in between the shots.
Yet Collins also acknowledged that the surveillance footage captured the sound of two shots
being fired in quick succession with no audible voices or talking between shots. Collins
called no other witnesses, and both sides rested. Collins renewed his motion for a directed
verdict, which was denied. The jury found Collins guilty of second-degree murder, and the
trial court sentenced him to forty years in the Mississippi Department of Corrections, with
thirty years to serve, ten years suspended, and ten years of post-release supervision.
¶29. Collins filed a motion for a judgment notwithstanding the verdict or a new trial,
claiming that the circuit court committed error by failing to grant him a directed verdict in
accordance with the Weathersby rule and that he received ineffective assistance of counsel.4
The circuit court found Collins’s post-trial motion without merit and denied it. Collins then
4
Collins’s trial counsel filed this motion, asserting his own ineffectiveness.
10
filed the instant appeal.5
ANALYSIS
I. The Weathersby Rule
¶30. On appeal, Collins argues that the circuit court erred by not granting him a directed
verdict of acquittal under the Weathersby rule. However, Collins is mistaken, as the rule did
not apply in the instant case.
¶31. We begin by noting that Collins’s motions for a directed verdict and judgment
notwithstanding the verdict challenge the legal sufficiency of the evidence supporting his
conviction. “[R]eversal is warranted where . . . a reasonable and fair-minded juror could only
find the accused not guilty.” Thomas v. State, 416 So. 3d 102, 110-11 (¶19) (Miss. Ct. App.
2025).
¶32. Additionally, the Weathersby rule states that “where the defendant or the defendant’s
witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be
accepted as true, unless substantially contradicted in material particulars by a credible witness
or witnesses for the state, or by the physical facts or by the facts of common knowledge.”
Morrison v. State, 332 So. 3d 396, 400 (¶19) (Miss. Ct. App. 2022) (citing Weathersby v.
State, 165 Miss. 207, 147 So. 481, 482 (1933)). “Where the Weathersby rule applies and the
defendant’s version affords an absolute legal defense, the defendant is entitled to a directed
5
Although it does not affect this Court’s disposition, we note that Collins was granted an out-of-time appeal.
11
verdict of acquittal.” Thomas, 416 So. 3d at 111 (¶20).
¶33. However, “it is a rare case that meets all of the requirements of the Weathersby rule.”
Id. Moreover, the rule does not apply when “the defendant’s conduct and statements
following the killing are inconsistent with his version of the events as recounted at trial.”
Morrison, 332 So. 3d at 401 (¶20). Lastly, the “defendant’s version must be reasonable and
credible before he is entitled to an acquittal under the rule.” Strickland v. State, 192 So. 3d
1105, 1108 (¶11) (Miss. Ct. App. 2016).
¶34. It is undisputed that Collins, Tracy, and Roberson were the only ones in the apartment
when Roberson was shot. Accordingly, Collins argues that under Weathersby he was entitled
to a directed verdict because he was the only eyewitness to the shooting and because the State
failed to provide substantial evidence to contradict his version of events. Therefore, he claims
that his version should have been accepted as true and that the circuit court committed error
by denying his motion for a directed verdict.
¶35. However, the State presented substantial evidence to contradict his version of events,
and Collins’s version of events changed from his interview to the witness stand. For example,
during direct examination Collins claimed that after he fired the first shot at Roberson,
Roberson “didn’t do anything,” so he fired the second shot. Yet, during cross-examination,
Collins claimed that after the first shot, Roberson said, “I’ve been shot before. This don’t
phase me[,]” which then prompted Collins to shoot Roberson a second time. Collins also
agreed that during his interview with Detective Ivy, which had occurred less than twenty-four
12
hours after the shooting, he told Ivy that Roberson had spoken between shots.
¶36. We also note that although Collins spoke with Tracy immediately after the shooting
and then Detective Ivy shortly thereafter, Collins never mentioned that Roberson had
threatened to kill him that night. Yet, during cross-examination, for the very first time,
Collins claimed Roberson had threatened to kill him right before the shooting. As previously
stated, the Weathersby rule is inapplicable when “the defendant’s conduct and statements
following the killing are inconsistent with his version of the events as recounted at trial.”
Morrison, 332 So. 3d at 401 (¶20).
¶37. Additionally, the surveillance footage submitted at trial captured raised voices
followed by the sound of two shots in quick succession. At trial, Collins himself
acknowledged that no audible voices or talking could be heard between the shots and agreed
that the shots were fired almost back-to-back, contradicting Collins’s shifting claim that he
only shot Roberson a second time after Roberson continued to advance toward him.
¶38. Here, Collins told distinctly different versions about his altercation with Roberson
while on the stand and immediately after the shooting. As discussed supra, “a defendant’s
version must be reasonable and credible before he is entitled to an acquittal under the rule.”
Strickland, 192 So. 3d at 1108 (¶11). Accordingly, the Weathersby rule did not apply to this
case, and the circuit court did not err in denying Collins’s motion for a directed verdict,
submitting these factual issues to the jury, and denying his post-trial motion seeking acquittal.
II. Ineffective Assistance of Counsel
13
¶39. Collins also claims that he received constitutionally ineffective assistance of counsel
at trial. In making this argument, Collins asserts two points of error. First, he claims his trial
counsel’s failure to properly object to the introduction of the Windale security footage or
cross-examine Detective Ivy about the video’s contents demonstrated a “lack of basic
proficiency in the rules of evidence” and constituted deficient representation. Additionally,
he claims his counsel’s failure to submit the recorded interview between Collins and
Detective Ivy into evidence for the purposes of impeaching Ivy’s testimony shows that his
trial counsel lacked “mastery of basic evidence concepts.” Collins therefore asks this Court
to reverse his conviction and remand this case for a new trial.
¶40. Regarding a defendant’s claim of ineffective assistance of counsel brought via direct
appeal, this Court has stated:
A defendant is permitted to raise the issue of ineffective assistance of counsel
on direct appeal. However, when this issue is raised, this Court’s review is
strictly limited to the appellate record. Generally,
ineffective-assistance-of-counsel claims are more appropriately brought during
post-conviction proceedings. This Court will address such claims on direct
appeal when (1) the record affirmatively shows ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is
adequate and the Court determines that the findings of fact by a trial judge able
to consider the demeanor of witnesses, etc., are not needed. We may also
address such claims on direct appeal when the record affirmatively shows that
the claims are without merit. If the record on direct appeal is insufficient to
address a defendant’s ineffective assistance claims, we will dismiss the claims
without prejudice, preserving the defendant’s right to raise the claims later in
a properly filed motion for post-conviction relief.
Doss v. State, 398 So. 3d 933, 947 (¶65) (Miss. Ct. App. 2024).
¶41. Although the State stipulates that the record is adequate to consider Collins’s claims,
14
we are not bound by the State’s stipulation. See id. at (¶66); Harris v. State, 378 So 3d 971,
980 (¶36) (Miss. Ct. App. 2024). As discussed infra in response to the dissent, there is simply
too much we do not know to conclude affirmatively that Collins’s counsel was or was not
ineffective. “We therefore deny without prejudice [Collins’s] claims of ineffective assistance
so that if he chooses, he may raise them in a properly filed motion for post-conviction
collateral relief (PCR).” Doss, 398 So. 3d at 947 (¶66).
¶42. The dissent argues that Collins’s counsel’s performance prejudiced the outcome of
his case and that the Court should reverse and remand for a new trial. However, the dissent’s
arguments are premised on speculation and assumption—precisely the reason why most
claims of ineffective assistance of counsel are best left for PCR proceedings.
¶43. The dissent first argues that counsel’s actions regarding the apartment footage failed
to bolster Collins’s defense and acted to prevent true application of Weathersby. Collins
himself argues that counsel was deficient by failing to have the video excluded. So Collins
does not want the video admitted at all, while the dissent believes the video not only should
have been admitted but also highlighted in order to bolster Collins’s defense. This
discrepancy alone should doom a finding of ineffective assistance, as it illustrates the
potential strategy, not ineffective performance.
¶44. But the real issue with the dissent’s position as to the apartment video is that it is
based on assumption and opinion. The dissent assumes that trial counsel did not listen to the
video before trial and disagrees with his assessment of the recording. Our subjective
15
interpretation of counsel’s actions are not proper grounds for finding ineffective assistance.
¶45. The dissent also questions “the sufficiency of the equipment used in the courtroom,”
suggesting that Collins’s counsel should have ensured “the proper equipment was available.”
This statement requires a significant assumption on the dissent’s part and highlights why so
many ineffective-assistance claims are best left to PCR proceedings—because we simply
cannot tell from a cold record what might have occurred. This is why in PCR proceedings,
the petitioner is required to support his claims of ineffective assistance with affidavits other
than his own, and it is why we cannot entertain Collins’s argument on direct appeal—so that
the Court does not make assumptions with no evidence to support them. See Lindsay v. State,
720 So. 2d 182, 184 (¶6) (Miss. 1998) (“[W]here a party offers only his affidavit, then his
ineffective assistance of counsel claim is without merit.”).
¶46. As to counsel’s alleged failure to challenge Ivy’s testimony about Collins’s interview,
it is unnecessary to discuss the dissent’s contentions because the dissent acknowledges that
Collins cannot prevail on this issue under Strickland: “we cannot determine whether Collins
was prejudiced” by counsel’s failure to lay the foundation for impeachment. Post at ¶67. But
even the dissent’s assumption that counsel was deficient for not impeaching Ivy requires an
assumption that Ivy could have been impeached. Plus, the decision not to impeach Ivy could
have been strategic. We simply do not know because we do not have the recording.
¶47. Finally, the dissent suggests that counsel’s post-trial motion, in which he admitted his
failures regarding Ivy’s direct and cross-examination, supports a finding of ineffective
16
assistance. But, as stated, we cannot discern from this record whether Collins’s case was
impacted by these decisions. Collins’s post-trial motion referred to his failure to object to
“expert forensic testimony” from Ivy, who had not been accepted as an expert witness. Ivy’s
alleged expert testimony was that there were no burn marks on the victim, suggesting that
Collins was not close to Roberson when he shot him. But Collins never claimed to be close
to Roberson when he fired, only that the victim was moving closer to him during the
argument.6 It is difficult to see how this alleged failure impacted Collins’s defense.
¶48. The dissent also notes that counsel has been suspended from the practice of law by
the Mississippi Supreme Court following criminal charges apparently pending during his
representation of Collins. Again, the dissent notes that “[i]t is unclear from the record in the
present case whether this pending criminal charge affected Carr’s representation of Collins.”
Post at ¶71. That is not the standard for a Strickland-level ineffective-assistance-of-counsel
claim, which requires proof that counsel was deficient and that “the deficiency was so
substantial as to deprive the defendant of a fair trial.” Holly v. State, 716 So. 2d 979, 989
(¶37) (Miss. 1998) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).
¶49. In sum, the dissent’s problem with counsel’s performance appears to be that he did
a bad job. However, too much of the dissent’s argument and conclusions about counsel’s
6
The State’s brief notes that Collins testified that Roberson was “getting too close” to him and suggests that this was why Collins claimed to have needed to act in self-defense. But Collins’s testimony that Roberson was “too close” actually took place in the kitchen, not the living room, where the shooting occurred. Collins testified that he left the kitchen to get away from Roberson because Roberson was “getting too close.”
17
decisions requires assumptions and guesswork. Not to mention that a cornerstone of the
dissent’s argument—that counsel should have utilized the apartment video better—is directly
opposite that which Collins argues on appeal. We do not have sufficient information at this
stage to conclude that counsel’s actions were anything other than strategic or that they
prejudiced the outcome of Collins’s case.
CONCLUSION
¶50. After our review of the record, we find that Collins was not entitled to a directed
verdict under Weathersby. The Weathersby rule did not apply in the instant case, as Collins
provided varying accounts of Roberson’s final moments and statements. We decline to
address Collins’s claims of ineffective assistance of counsel on direct appeal. The judgment
of conviction and sentence by the Clay County Circuit Court is affirmed.
¶51. AFFIRMED.
CARLTON AND WILSON, P.JJ., WESTBROOKS, LAWRENCE AND
WEDDLE, JJ., CONCUR. McDONALD, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. EMFINGER, J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., AND
McCARTY, J.
EMFINGER, J., DISSENTING:
¶52. I cannot in good conscience vote to affirm Collins’ conviction because his attorney,
Charlie A. Carr, rendered constitutionally ineffective assistance of counsel at all stages of
Collins’ representation. Because Carr’s deficient performance prejudiced Collins’ defense
in this case, I would reverse Collins’ conviction of second-degree murder and remand the
18
matter to circuit court for a new trial. Therefore, I respectfully dissent.
¶53. On appeal, Collins’ ineffective assistance of counsel argument focuses on two matters
that were crucial to both the State’s case and Collins’ defense: (1) the admission and use of
the video/audio recording from the apartment complex and (2) the cross-examination of a
State’s witness concerning Collins’ recorded, pre-trial statement to law enforcement. In Kirby
v. State, 379 So. 3d 915, 921 (¶¶8-9) (Miss. Ct. App. 2024), this Court explained the factors
that must be considered in deciding whether Collins received ineffective assistance of
counsel:
“A strong but rebuttable presumption exists that counsel’s performance was
effective.” Moffett [v. State], 354 So. 3d [929,] 936 (¶14) [(Miss. Ct. App.
2022)]. “[T]o prevail on a claim of ineffective assistance of counsel, a
defendant must prove that his attorney’s performance was deficient, and that
the deficiency was so substantial as to deprive the defendant of a fair trial.”
Morrow v. State, 275 So. 3d 77, 83 (¶24) (Miss. 2019) (quoting Holly v. State,
716 So. 2d 979, 989 (¶37) (Miss. 1998)) (applying the two-pronged test for
ineffective-assistance-of-counsel claims announced in Strickland v.
Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
“Whether counsel’s efforts were both deficient and prejudicial is
examined based on the totality of the circumstances.” Reed v. State, 204 So.
3d 785, 790 (¶17) (Miss. Ct. App. 2016). The burden of proving both prongs
for ineffective assistance is on the defendant, and “[i]f either prong is not met,
the claim fails.” Murray [v. State], 345 So. 3d [610,] 621 (¶28) [(Miss. Ct.
App. 2022)] (quoting Havard v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006)).
“Decisions that fall within the realm of trial strategy do not amount to
ineffective assistance of counsel.” Ford v. State, 230 So. 3d 316, 320 (¶9)
(Miss. Ct. App. 2017). For “matters of trial strategy, this Court generally
defers to the judgment of counsel.” Braggs v. State, 121 So. 3d 269, 275 (¶20)
(Miss. Ct. App. 2013) (quoting Houston v. State, 887 So. 2d 808, 815 (¶34)
(Miss. Ct. App. 2004)). Trial counsel’s decision not to object is “presumed
strategic unless counsel’s tactics are shown to be so ill chosen that it permeates
the entire trial with obvious unfairness.” Greenleaf v. State, 267 So. 3d 749,
19
752 (¶11) (Miss. 2019) (quoting Rogers v. State, 85 So. 3d 293, 297 (¶16)
(Miss. 2012)).
(Emphasis added). We must look to the “totality of the circumstances” to determine whether
Carr’s representation was deficient and whether Collins was prejudiced as a result.
I. Pre-trial Proceedings
¶54. Collins was indicted for first-degree murder in the shooting death of James Roberson.
The death occurred on or about November 26, 2020, and the indictment was filed in circuit
court on April 7, 2021. On April 12, 2021, Marlin Stewart was appointed to represent
Collins, and Collins waived arraignment on the charge. Later on that same date, Carr entered
his appearance as retained counsel for Collins. Carr filed a motion for discovery on April 14,
2021, and in this pleading Carr indicated that his office was in Dallas, Texas. An agreed
order allowing Stewart to withdraw as Collins’ attorney and substituting Carr as counsel was
entered on April 23, 2021. Carr filed a second motion for discovery on May 24, 2021, along
with a motion for a bond reduction for Collins.
¶55. Court records show that on September 21, 2021, the court administrator emailed Carr,
noting that the motion for bond reduction had not been set for hearing and asking whether
Carr would like to set the matter for hearing on either October 4 or 8. While no response to
that email is in the record, the next action of record is Carr’s request for a continuance of a
scheduled appearance on October 4 due to a trial conflict with a client on that date. The court
entered an order granting the continuance and setting the matter for trial on January 18, 2022.
¶56. On January 14, 2022, Carr filed a second motion for a continuance, indicating that a
20
client was scheduled for a trial during the week of January 18, 2022. The motion further
stated that Carr was in quarantine due to a positive COVID-19 test by a member of his
household. The trial court entered an order of continuance, resetting Collins’ trial for July 18,
2022. At 7:09 a.m., on the morning of Monday, July 18, Carr sent an email to the court
administrator indicating that the trial date had not been placed on his calendar and that while
he was ready for trial, he could not get to court before Tuesday. The administrator replied
that Collins’ trial would be bumped to Wednesday due to trials in other cases. On July 19,
2022, an agreed order of continuance was entered indicating that Carr had asked for
additional time to prepare for trial. Collins’ trial was reset for October 10, 2022. This order
was signed by Carr.
¶57. On October 14, 2022, the trial judge signed an order continuing Collins’ trial until
April 3, 2023, because Carr did not appear for trial. The trial court entered an “Order
Requiring State to File Show Cause Petition.” In this order, the court noted that Carr had
failed to appear for trial. The order stated that the District Attorney’s office tried numerous
times to contact Carr by phone and email, but “Carr failed or refused to respond.” The order
noted that because the court was “loathe to leave Defendant in jail without representation,”
the court removed Carr as counsel and reappointed Stewart to represent Collins.7 An order
7
There is no evidence that Carr had ever scheduled a hearing on Collins’ motion for a bond reduction, well over a year after the motion was filed. The record shows that Collins posted bond in the original amount of $150,000 on October 17, 2022, days after Carr failed to appear for trial.
21
setting Carr’s show cause hearing for January 5, 2023, was entered.
¶58. Carr appeared on January 5 and, according to the court’s order, presented a “legally
sufficient excuse for his failure to appear.”8 The court entered an order allowing Carr to
resume representation of Collins, whose trial remained set for April 3, 2023. A discovery
conference and motion hearing date was set for March 7, 2023. The record reflects that Carr
filed no pre-trial motion to challenge the admissibility of the video/audio recording from the
apartment complex or any other evidence the State intended to introduce at trial. If a hearing
was conducted on March 7, there is no transcript in the appellate record to show what
occurred.
II. Trial
¶59. On April 3, 2023, the trial court qualified the jury venire, which would be used for
Collins’ trial beginning the following day. On that day, Carr filed proposed defense jury
instructions that included a self-defense instruction and an instruction that purported to
submit the Weathersby rule decision to the jury.9 Based upon the jury instructions submitted
by Carr and his opening statement, it is clear that Carr’s trial strategy was to show the jury
that Collins shot and killed Roberson in self-defense. Carr intended to show that Collins’
version of events should be sufficient to result in an acquittal pursuant to Weathersby. The
8
There is no transcript of this hearing in the appellate record. We do not know what excuse Carr presented to the court.
9
The Weathersby rule is used by the judge to determine, as a matter of law, whether the defendant is entitled to a directed verdict. It should not be submitted to the jury by an instruction. See Vance v. State, 429 So. 3d 912, 921-22 (¶52) (Miss. 2026).
22
State called seven witnesses to testify during its case-in-chief. Collins testified as the only
witness in his defense, and, as noted by the majority, told the jury his version of events that
led to him shooting Roberson. Collins testified he was scared that Roberson was going to
hurt him. On direct examination, Collins told the jury that after they left the kitchen,
Roberson came at him again in the living room, but this time Roberson was “amped up
worser.” Collins testified Roberson
started clutching. He kept coming. He kept coming. You know when
somebody want to do something bad to you. So I knew he gonna hurt me, so
I fired the first shot, right? He didn’t do anything. Fired the second shot. He
fell back to the double doors in the hallway.
Collins also told the jury that he had been diagnosed with Lupus and takes an anticoagulant
called Warfarin. He explained that he “can’t be bumped, hit, bruised, roughhouse, none of
that.” Collins said that he fired the shots at Roberson “because I feared for my life. He was
fixing to do some body damage to me.”
¶60. I will now address those portions of the State’s case where I would find that Carr’s
performance was deficient and that it significantly prejudiced Collins’ defense. First, I find
that introducing the video/audio recording from the apartment complex into evidence should
have bolstered Collins’ self-defense claim but, instead, was used to prevent the application
of the Weathersby rule and to impeach Collins’ credibility before the jury.
¶61. The district attorney’s investigator, Ramirez Ivy, testified that he went to the Windale
Apartments and retrieved a video/audio recording from a camera on the building where the
23
shooting occurred.10 Ivy testified that the system was working correctly during the early
morning hours of November 26, 2020. Ivy downloaded the recording from the apartment’s
system onto a thumb drive. Ivy further advised the court that the thumb drive contained an
accurate copy of what was recorded on the apartment’s system. The State then offered the
thumb drive into evidence. Carr objected to its admission, and during a bench conference,
the following exchange occurred:
By Mr. Carr: Your Honor, my objection is my understanding of those
videos are inaudible; that they don’t accurately reflect the
scene of the things that actually happened, That’s my
objection.
By the Court: That’s your only objection for getting this in?
By Mr. Carr: Yes.
By the Court: Mr. Amos?
By Mr. Amos: So number one, he can certainly cross-examine Detective
Ivy, but number two, they do accurately show what
occurred from the standpoint of surveillance video then
and there that night or early morning of November 26,
2020, and Mr. Ivy has testified to that so they’re
absolutely admissible.
By the Court: That specific objection that you raise, Mr. Carr, is
overruled. Do you have any other objection?”
By Mr. Carr: No. None, Your Honor.
10
This camera was located on the outside of a building containing numerous apartments. While the recording shows only the outside of the apartments and the area leading to the parking lot, the audio apparently picked up sounds from inside the apartments.
24
(Emphases added). At that point, the video/audio recordings were admitted into evidence.
¶62. In publishing the recording to the jury, the State fast-forwarded to a specific place in
the recording, and the State asked Ivy, “And so, we’re starting to hear voices.” As they
continued to play the recording, Ivy testified that he could hear only one voice and that he
could not identify whose voice it was. The State then played a second video where two
gunshots were heard. Ivy testified that after the gunshots, he still heard the same voice he had
heard before the gunshots. This implied that the voice he heard on the recording was Collins’
voice and not Roberson’s. From my review of the recording, that is not correct. On crossexamination, however, Carr did not ask Ivy a single question about the voices on the
recording.
¶63. I would reverse Collins’ conviction based primarily on Carr’s handling of the
video/audio recording. It appears that Carr did not review, or at least did not closely review,
this recording prior to trial. Carr’s objection was that it was his “understanding” that the
recordings were inaudible. Upon my review of the recording on my computer, with only
computer speakers and no special equipment, I strongly disagree with Carr’s assessment of
the recording. I could clearly hear portions of the confrontation described by Collins where
Roberson is aggressively yelling at Collins in a loud and threatening manner. Roberson
repeatedly challenged Collins to shoot him. I can hear Roberson say, “I’m right here, try me
and see!” and “I will show you what’s up!” Roberson calls Collins a motherf***er, a pu**y,
a scalawag, a b**ch, and a bastard. While it is true that portions of the exchange are not
25
audible, I can clearly make out two different voices, not just one, as testified to by Ivy. It is
Roberson’s loud voice that is audible at times and could have been used to support Collins’
claim of self-defense. Had Carr reviewed this vital piece of evidence prior to trial, he should
have been trying to enhance this portion of the recording and not objecting to its admission
at trial.
¶64. Further, had Carr reviewed this recording with Collins prior to trial with proper
equipment, it is reasonable to believe that Collins could have identified Roberson’s voice on
the recording. During Carr’s direct examination, he did not ask Collins one question about
the recording. During Collins’ cross-examination, the State asked whether he heard voices
on the recording. Collins responded that he heard something, but he could not make out who
it was.11 Carr objected to the line of questioning because “[i]t’s already been proven that the
video was inaudible.” This causes me to question the sufficiency of the equipment used in
the courtroom and what may have been available to the jury during deliberations. Again, if
Carr had reviewed the recording with Collins prior to trial, he should have sought to enhance
a copy of the recording and made sure that the proper equipment was available so that
Roberson’s aggressive behavior could have been heard by the jury.
¶65. Because of Carr’s failure to hear, or failure to appreciate what could be heard, the
11
There is no evidence that Carr reviewed the recording with Collins prior to trial or that Collins heard or saw the recording other than when it was being played for the jury in the courtroom. I have no idea what could actually be heard in that setting by either Collins or the jury.
26
jury’s attention was not drawn to Roberson’s aggressive behavior, through the examination
of witnesses or in Carr’s closing argument to the jury. As stated in Kirby above, I would find
that Carr’s performance relative to the video/audio recording from the apartment complex
was both deficient and prejudicial to Collins’ defense.
¶66. At the close of the State’s case-in-chief, Carr made a motion for a directed verdict:
Your Honor, at this time the Defense would like to move for a directed verdict
on the basis that the State hasn’t met their burden of the evidence for the
charges of first degree murder.
However, in Carpenter v. State, 400 So. 3d 493, 501-02 (¶29) (Miss. Ct. App. 2024), this
Court maintained:
The supreme court has stated that “[a] motion for a directed verdict on the
grounds that the [S]tate has failed to make out a prima facie case must state
specifically wherein the [S]tate has failed to make out a prima facie case.
Motions for a directed verdict must be specific and not general in nature.”
Sheffield v. State, 749 So. 2d 123, 126 (¶10) (Miss. 1999) (citation omitted).
Further, at the close of all the evidence, Carr failed to renew his motion for a directed verdict,
which was the appropriate time to raise the Weathersby rule. Instead, during the jury
instruction conference after the trial court informed Carr that Weathersby was a question for
the court, the trial court reminded Carr that he had not requested a peremptory instruction and
had not renewed his motion for a directed verdict. The court advised Carr that it would be
appropriate to raise Weathersby at that time.
¶67. Appellate counsel agrees with Carr’s post-trial motion, that Carr was ineffective by
failing to properly lay a foundation to challenge Ivy’s testimony concerning Collins’
27
statements during the recorded interview. First, it is clear that because the State had not
introduced any portion of the recorded interview, Collins could not introduce the entire
interview. See Simmons v. State, 805 So. 2d 452, 489-90 (¶¶95-96) (Miss. 2001). Carr may
have been able to introduce portions of the interview to impeach Ivy’s testimony concerning
statements made by Collins, had he laid the proper foundation. Had Carr asked Ivy whether
it was true that Collins did not tell him that Roberson said anything to Collins between the
shots, portions of Collins’ recorded statement may have become admissible. However, we
cannot know what Collins said to Ivy because Carr did not proffer the recorded statement at
trial or with his post-trial motion. Therefore, while Carr’s performance was deficient by not
knowing how to lay the proper foundation, we cannot determine whether Collins was
prejudiced by it. However, under the totality of the circumstances, this is further evidence of
Carr’s deficient performance and may well have further prejudiced Collins’ defense.
III. Post-trial Proceedings
¶68. On April 16, 2023, Carr filed a “Motion for a New Trial or/and a Judgment
Notwithstanding the Verdict” on Collins’ behalf. In this motion, Carr admitted his error in
attempting to have the jury instructed as to the Weathersby rule. Carr argued that the trial
court erred by not applying the rule to this case and granting Collins a judgment of acquittal.
More importantly, Carr admitted in the motion that he provided ineffective assistance of
counsel for Collins.
¶69. In the motion, Carr specifically refers to his failure to object to expert forensic
28
testimony given during the State’s direct examination of Detective Ivy. Ivy had not been
tendered nor accepted by the court as an expert witness. Carr admitted that he compounded
the error by his questioning of Ivy on cross-examination.
¶70. Carr also admitted that he was ineffective by being unable to impeach Ivy with his
recorded interview with Collins. Carr did not mention his failure to properly address the
admissibility of the video/audio recordings from the apartment complex, especially regarding
the voices heard on the recording. He does not mention his failure to proffer at trial, or with
this motion, the recording of Ivy’s interview of Collins. In fact, Carr expressly waived a
hearing on his post-trial motion where he could have developed the record regarding his
failure to provide constitutionally effective counsel.
IV. Carr’s Felony Conviction and Subsequent Suspension from the
Practice of Law in Texas and Mississippi
¶71. On April 16, 2026, in Cause No. 2025-BD-00731-SCT, the Mississippi Supreme
Court suspended Carr from the practice of law as a result of his Texas conviction of sexual
assault.12 Carr was sentenced to serve ten years in prison. The formal complaint filed by the
Mississippi Bar reveals that the date of the offense for which he was convicted was January
20, 2021. It would appear that this criminal charge was pending during his representation of
Collins. It is unclear from the record in the present case whether this pending criminal charge
12
We take judicial notice of the supreme court’s records in this matter which are “readily available via MEC and cannot reasonably be disputed.” See Jackson v. State, 394 So. 3d 420, 432 (¶43) (Miss. Ct. App. 2024).
29
affected Carr’s representation of Collins. I would note, however, that Carr sought numerous
continuances of the trial herein due to unidentified conflicts, and Carr failed to set the motion
for bond reduction for hearing, even after being reminded by the court administrator. On one
occasion, Carr failed to appear for trial and was removed as counsel in Collins’ case. Carr
appeared for a show cause hearing on January 5, 2023, however, and presented a “legally
sufficient excuse for his failure to appear.” As discussed above, we have no transcript of that
hearing in the appellate record, and therefore we do not know what justification was
presented by Carr. Whatever the reason, we know that Carr was removed from representing
Collins for a couple of months leading up to Collins’ trial.
V. Carr’s Failure to Provide Constitutionally Effective Assistance of
Counsel at all Stages of his Representation of Collins
¶72. The issue before us is whether Carr rendered constitutionally ineffective assistance
of counsel to Collins. My focus is on Carr’s failure to be prepared to properly present a vital
piece of evidence, the video/audio recording, to the jury. The State used this piece of
evidence to prevent the application of the Weathersby rule and to impeach Collins’ trial
testimony concerning self-defense. Carr was also not prepared to challenge Ivy’s testimony
concerning statements made to him by Collins in a recorded interview. The State used Ivy’s
testimony about these statements to prevent the application of the Weathersby rule and to
undermine Collins’ claim of self-defense. I would find that the appellate record is sufficient
for us to make a determination on direct appeal.
¶73. In Taylor v. State, 167 So. 3d 1143, 1146 (¶5) (Miss. 2015), the supreme court stated:
30
Whether a defendant has received ineffective assistance of counsel is a
question of law reviewed de novo under two prongs: “[f]irst, the defendant
must show that counsel’s performance was deficient . . . . Second, the
defendant must show that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). While post-conviction proceedings are often the most appropriate
forum for review of ineffective assistance of counsel, we “may nevertheless
reach the merits of the ineffectiveness issue where . . . the record affirmatively
shows ineffectiveness of constitutional dimensions. . . .” Read v. State, 430 So.
2d 832, 841 (Miss. 1983).
In Taylor, the defendant was convicted of possessing stolen property and was sentenced as
an habitual offender to ten years in prison. Id. at 1144 (¶1). Prior to trial, Taylor’s counsel
had filed a motion in limine to exclude evidence of Taylor’s past criminal history. Id. at (¶3).
The trial court delayed its ruling on the motion until trial, after Taylor had made his decision
as to whether he would testify in his own defense. Id. At trial, just before Taylor took the
stand to testify, the defense counsel withdrew his motion in limine. Id. Counsel advised the
court that he was going to admit that he was a felon. The State reminded everyone that Taylor
had three prior felony convictions. Id. Still, Taylor’s attorney withdrew the motion and on
direct examination, Taylor admitted that he had violated his probation for his conviction of
the sale of cocaine. Id. at 1145 (¶13). On cross-examination, the State asked what felony
crimes he had been convicted of. Id. Taylor responded that he had been convicted of house
burglary, alteration of a motor vehicle VIN, possession of a firearm by a felon, grand larceny,
and two cocaine charges—a total of six prior felony convictions. Id. at 1145-46 (¶¶3-4).
¶74. The supreme court reversed Taylor’s conviction and remanded the matter for a new
trial, holding:
31
We find that Taylor’s right to a fair trial was compromised by defense
counsel’s withdrawal of the Motion in Limine regarding Taylor’s criminal
history and by failure to object to the State’s extensive cross-examination
regarding Taylor’s prior convictions. When evaluating whether counsel’s
performance was deficient, trial counsel “is entitled to the presumption that his
actions fell within the ambit of sound trial strategy, [but] that presumption is
not absolute.” Herrington v. State, 102 So. 3d 1241, 1246 (Miss. Ct. App.
2012). In a criminal trial on the lone charge of possession of stolen property,
where the State’s prime witness previously had changed his story to police
about which individual he purchased the stolen property from, we cannot
conceive a trial strategy that would justify failure to object to the
introduction and detailed description of the defendant's seven or eight
previous felony convictions. The State’s extensive cross-examination
regarding Taylor’s numerous past felony convictions was clearly more
prejudicial than probative in a case that largely turned on the respective
credibility of Taylor and the State’s main witness.
. . . We agree with Judge Irving’s dissent in the Court of Appeals opinion that
“it appears that Taylor’s counsel thought that by placing Taylor on the stand,
the prosecution was entitled to inquire, without any limitation, into the details
of all of the prior convictions that Taylor had.” This erroneous assumption
had a highly prejudicial effect on Taylor’s defense. . . .
We hold that Taylor was denied his constitutionally guaranteed right to
effective assistance of counsel due to his attorney’s failure to object to the
introduction of Taylor’s numerous past felony convictions on
cross-examination. The prejudicial effect of these admissions clearly
outweighed any probative value in allowing them.
Id. at 1146-47 (¶¶7-9) (Emphasis added). In the present case, if Carr assumed that the
recording was inaudible, that assumption was in error and prejudiced Collins’ claim of selfdefense. Further, I cannot imagine a competent trial strategy that would justify Carr’s failure
to raise before the jury Roberson’s aggressive and threatening behavior that was revealed on
the apartment surveillance recording.
¶75. In a similar case where defense counsel failed to properly address the defendant’s
32
criminal history, on direct appeal in Timms v. State, 54 So. 3d 310, 316 (¶20) (Miss. Ct. App.
2011), this Court reversed the defendant’s conviction and determined:
It is clear that Timms’s trial counsel failed to render effective assistance of
counsel. Timms’s trial counsel apparently knew nothing of Timms’s actual
criminal history, allowed the State to introduce evidence of crimes that
Timms had not been convicted of, failed to seek a stipulation as to Timms’s
status as a previously convicted felon, and then compounded these errors by
questioning Timms and other witnesses as though Timms had been convicted
of possessing a stolen firearm when he had not. For these reasons, we reverse
and remand for a new trial at which Timms should receive constitutionally
effective counsel.
(Emphasis added). In the present case, Carr apparently knew nothing about the audible parts
of the recording that supported Collins’ version of events, i.e., that he was being aggressively
threatened by Roberson and feared for his safety.
¶76. In Sea v. State, 49 So. 3d 614, 617 (¶8) (Miss. 2010), the defendant was acquitted by
the jury on three counts of statutory rape and one count of sexual battery. However, Sea was
convicted on five counts of sexual battery. Id. During the trial, defense counsel introduced
evidence of Sea’s two prior felony convictions, each over twenty years old, and, more
importantly for purposes of the present case, failed to properly prepare to challenge the
admissibility of a video tape. Id. at 618-19 (¶¶14, 21). In reversing Sea’s convictions the
supreme court stated:
Under these circumstances, evidence of Sea’s prior convictions for sexual
battery—one involving a child under thirteen years of age—was incendiary.
This Court has stated “[e]vidence which is incompetent and inflammatory in
character carries with it a presumption of prejudice.”
Additionally, we note that Sea’s counsel failed to object to the introduction of
33
the videotaped interviews of the four victims. The tapes were rife with hearsay
statements from both the victims and the interviewers. Not only did Sea’s
counsel fail to object contemporaneously to the admission of the videotapes,
but he failed to request a hearing as required by our rules of evidence.
Id. at (¶¶20-21). Here, Carr filed no pre-trial motions to address issues presented by the
recording from the apartment complex or for the jury to be able to hear an important portion
of the recording that could have been vital to Collins’ claim of self-defense.
¶77. On direct appeal in Hibbler v. State, 115 So. 3d 832, 834 (¶1) (Miss. Ct. App. 2012),
this Court reversed Hibbler’s conviction of statutory rape because he received ineffective
assistance of counsel. Hibbler’s counsel, Hosford, failed to interview witnesses and prepare
for cross-examination of important witnesses called by the State. Citing Davis v. Alaska, 415
U.S. 308, 316 (1974), this Court noted that “[c]ross-examination is the principal means by
which the believability of a witness and the truth of his testimony are tested.” Hibbler, 115
So. 3d at 840 (¶27). Hosford had information that the victim had previously accused someone
else of raping her, but incorrectly believed that he would be prevented from introducing the
evidence. Id. at (¶26). More importantly, Hosford had information that the victim had
indicated that Hibbler did not rape her or have inappropriate contact with her, but Hosford
did not cross-examine the victim with this information. Id. at (¶27). Ultimately, this Court
concluded:
“Defense counsel may not fail to conduct any investigation and then rely on
the resulting ignorance to excuse his failure to explore a strategy that would
likely have yielded exculpatory evidence.” Gersten [v. Senkowski], 426 F.3d
[588,] 610 [(2d Cir. 2005]. Based on a totality of the circumstances, we must
conclude that there is a reasonable probability that, but for Hosford’s deficient
34
performance, the result of Hibbler’s trial would have been different.
Accordingly, we reverse the judgment of the circuit court and remand this
matter to the circuit court's active docket for retrial.
Id. at 843 (¶33). In Murray v. State, 345 So. 3d 610, 621 (¶28) (Miss. Ct. App. 2022), this
Court discussed the meaning of “reasonable probability”:
Stated differently, “[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
(Emphasis added).
¶78. In conclusion, the majority contends that my dissent is premised upon speculation,
assumptions and guesswork. The majority finds that “there is simply too much we do not
know to conclude affirmatively that Collins’ counsel was or was not ineffective.” It is true
many of the issues raised above could well be fleshed out in a post-conviction relief filing;
however, that is not the end of our analysis. While many things concern the effectiveness of
Carr’s representation of Collins, which we may not be able to accurately discern from the
appellate record, it is not what we do not know, but it is what we do know that should result
in a reversal of Collins’ conviction.
¶79. As noted above in Kirby, our analysis of whether Carr’s efforts in his representation
of Collins were both deficient and prejudicial must be based upon an examination of the
totality of the circumstances. I have set forth above many, but not all, acts or omissions by
Carr that could have negatively impacted Collins’ self-defense claim. It could be argued that
some of these failures are the result of poor trial strategy, but just as in Taylor, I cannot
35
conceive a rational trial strategy that would excuse Carr’s more serious failures.
¶80. Carr’s failure to know the law regarding the Weathersby rule and how it applies is
inexcusable and deficient. Carr’s failure to know how to lay a foundation to impeach a
witness concerning pretrial statements made by Collins on a recording is inexcusable and
deficient. Carr’s failure to know how to proffer for appellate review Collins’ recorded
statements to law enforcement is inexcusable and deficient. These deficiencies in Carr’s
representation of Collins show his general lack of attention to the important details of the
case and general lack of preparation to present Collins’ self-defense claim at trial. Without
question, Carr’s lackadaisical approach in his representation of Collins prejudiced Collins’
self-defense claim when Carr failed to hear and/or appreciate the extremely aggressive verbal
attack upon Collins by Roberson just prior to the shots being fired. This is not speculation,
assumption, personal opinion, or guesswork. This is recorded evidence that should have been
used to support Collins’ claim of self-defense. Carr’s failure to prepare for and properly
utilize this valuable piece of evidence is “sufficient to undermine confidence in the outcome”
of Collins’ trial. I would reverse the conviction and remand for a new trial.
BARNES, C.J., AND McCARTY, J., JOIN THIS OPINION.
36