Full Opinion

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