CLAY COUNTY – In a 7-3 decision Tuesday, the Mississippi Court of Appeals upheld the 2023 Clay County second-degree murder conviction of Octavius Collins despite a scathing dissent arguing his defense attorney was constitutionally ineffective.
Collins was at Windale Apartments on Nov. 25, 2020, with his girlfriend, Tracy Roberson, and her brother, James Roberson. At about 10 p.m. Tracy went to bed, and about three hours later, Collins shot and killed James Roberson.
During the trial, Collins claimed he’d shot James in self defense, testifying the two started a verbal altercation after James “bumped” him in the kitchen. Collins left the kitchen, went to the living room and retrieved a gun from the couch.
James followed Collins, allegedly telling him, “I know you got a weapon. I’m gonna take that weapon and whoop your … ass with it.”
Collins testified he told James to leave him alone, but after he did not, Collins said he “knew” Roberson would hurt him. At that point, Collins shot James. But when James “didn’t do anything,” Collins fired a second time.
After James fell against the wall, Collins woke Tracy and told her to call 911. He then left the apartment and traveled to another residence, where he placed the gun in a grill. He then returned to the Windale apartment and was taken into custody by law enforcement.
Investigators found no gunpowder burns on James’ body and no weapon near his hands, indicating Collins had not fired at close range. Surveillance footage recorded outside the apartment and played for the jury captured raised voices ahead of two gunshots in quick succession.
Collins, who was sentenced to serve 40 years with the Mississippi Department of Corrections claims the trial court erred by denying his motion for a directed verdict, specifically pointing to the Weathersby Rule, which states when a defendant is the only eyewitness to a homicide, their reasonable version of the killing must be accepted as true. He also claims he received ineffective counsel.
The majority, however, denied those claims.
The court found the Weathersby Rule did not apply to Collins’ case, citing his shifting account of the incident. On direct examination, Collins testified that after he fired the first shot, James “didn’t do anything,” prompting the second shot.
On cross-examination however, Collins instead claimed James said “I’ve been shot before. This don’t phase me.” The court also noted that though Collins spoke with Tracy and the lead investigator shortly after the incident, 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,” the decision reads. “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.’”
Ineffective counsel?
Collins claimed his defense attorney, Charlie A. Carr, failed on two fronts, arguing Carr failed to properly object to the security footage played for the jury or properly cross-examine the lead investigator about the video’s contents.
The security footage played for the jury was taken outside of the apartment where James was killed. In it, Collins can be seen exiting the apartment and driving away. Moments before that, yelling or raised voices can be heard, followed by two gunshots in quick success, the decision reads.
In his dissent from the majority, Judge John H. Emfinger, joined by Chief Judge Barnes and Judge McCarty, argued Carr’s failure to review and properly use the surveillance recording, along with his inability to lay a foundation to impeach the lead investigator with Collins’ recorded interview, amounted to ineffective assistance at every stage of the case.
After reviewing the recording himself, Emfinger wrote he could clearly hear James aggressively yelling and challenging Collins to shoot him – audio directly at odds with the investigator’s trial testimony and evidence Carr never used to support the defense. With that contradiction in mind, Emfinger assumes Carr never even watched the footage.
Emfinger also noted Carr was likely dealing with a pending sexual assault charge in Texas during his representation of Collins, though he wrote it is unclear what affect it had on Collins’ representation.
“This is not speculation, assumption, personal opinion, or guesswork,” he wrote. “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.”
The majority declined to rule on Collin’s ineffective counsel claim, arguing the dissenting opinion relies too heavily on “assumptions and guesswork” about Carr’s decisions.
“There is simply too much we do not know to conclude affirmatively that Collins’s counsel was or was not ineffective,” the opinion reads. “We therefore deny without prejudice (Collin’s) claims of ineffective assistance so that if he chooses, he may raise them in a properly filed motion for post-conviction collateral relief.”
McRae is a general assignment and education reporter for The Dispatch.
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