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                    "CLAY COUNTY \u2013 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.\nCollins 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.\nDuring the trial, Collins claimed he\u2019d shot James in self defense, testifying the two started a verbal altercation after James \u201cbumped\u201d him in the kitchen. Collins left the kitchen, went to the living room and retrieved a gun from the couch.\nJames followed Collins, allegedly telling him, \u201cI know you got a weapon. I\u2019m gonna take that weapon and whoop your \u2026 ass with it.\u201d\nCollins testified he told James to leave him alone, but after he did not, Collins said he \u201cknew\u201d Roberson would hurt him. At that point, Collins shot James. But when James \u201cdidn\u2019t do anything,\u201d Collins fired a second time.\nAfter 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.\nInvestigators found no gunpowder burns on James\u2019 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.\nCollins, 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.\nThe majority, however, denied those claims.\nThe court found the Weathersby Rule did not apply to Collins\u2019 case, citing his shifting account of the incident. On direct examination, Collins testified that after he fired the first shot, James \u201cdidn\u2019t do anything,\u201d prompting the second shot.\nOn cross-examination however, Collins instead claimed James said \u201cI\u2019ve been shot before. This don\u2019t phase me.\u201d 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.\n\u201cYet, during cross-examination, for the very first time, Collins claimed Roberson had threatened to kill him right before the shooting,\u201d the decision reads. \u201cAs previously stated, the Weathersby Rule is inapplicable when \u2018the defendant\u2019s conduct and statements following the killing are inconsistent with his version of the events as recounted at trial.\u2019\u201d\nIneffective counsel?\nCollins 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\u2019s contents.\nThe 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.\nIn his dissent from the majority, Judge John H. Emfinger, joined by Chief Judge Barnes and Judge McCarty, argued Carr\u2019s failure to review and properly use the surveillance recording, along with his inability to lay a foundation to impeach the lead investigator with Collins\u2019 recorded interview, amounted to ineffective assistance at every stage of the case.\nAfter reviewing the recording himself, Emfinger wrote he could clearly hear James aggressively yelling and challenging Collins to shoot him \u2013 audio directly at odds with the investigator\u2019s trial testimony and evidence Carr never used to support the defense. With that contradiction in mind, Emfinger assumes Carr never even watched the footage.\nEmfinger 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\u2019 representation.\n\u201cThis is not speculation, assumption, personal opinion, or guesswork,\u201d he wrote. \u201cThis is recorded evidence that should have been used to support Collins\u2019 claim of self-defense. Carr\u2019s failure to prepare for and properly utilize this valuable piece of evidence is \u2018sufficient to undermine confidence in the outcome\u2019 of Collins\u2019 trial.\u201d\nThe majority declined to rule on Collin\u2019s ineffective counsel claim, arguing the dissenting opinion relies too heavily on \u201cassumptions and guesswork\u201d about Carr\u2019s decisions.\n\u201cThere is simply too much we do not know to conclude affirmatively that Collins\u2019s counsel was or was not ineffective,\u201d the opinion reads. \u201cWe therefore deny without prejudice (Collin\u2019s) claims of ineffective assistance so that if he chooses, he may raise them in a properly filed motion for post-conviction collateral relief.\u201d\n\t\t\t\n\t\t\t\t\t\t\n\t\t\tMcRae is a general assignment and education reporter for The Dispatch.\t\t\t\n\t\t\t\n      \n      \n        Quality, in-depth journalism is essential to a healthy community. The Dispatch brings you the most complete reporting and insightful commentary in the Golden Triangle, but we need your help to continue our efforts. In the past week, our reporters have posted 42 articles to cdispatch.com. Please consider subscribing to our website for only $2.30 per week to help support local journalism and our community.\n      \n    \n\n\t\t\t\n      \n      \n        Quality, in-depth journalism is essential to a healthy community. The Dispatch brings you the most complete reporting and insightful commentary in the Golden Triangle, but we need your help to continue our efforts. In the past week, our reporters have posted 42 articles to cdispatch.com. Please consider subscribing to our website for only $2.30 per week to help support local journalism and our community."
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