BRIEF OF THE APPELLANT

E-Filed Document Dec 9 2015 21:50:17 2015-KA-00848-COA Pages: 17 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TAVARIS COLLINS APPELLANT V. NO. 2015-KA-00848-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov Counsel for Tavaris Collins

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TAVARIS COLLINS APPELLANT V. NO. 2015-KA-00848-COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Tavaris Collins, Appellant 3. Honorable Forrest Allgood, District Attorney 4. Honorable James T. Kitchens, Jr., Circuit Court Judge 5. Honorable Kevin Camp, attorney This the 9 th day of December, 2015. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

TABLE OF CONTENTS Certificate of Interested Persons.................................................. i Table of Contents............................................................. ii Table of Authorities........................................................... iii Statement of the Issues.......................................................... 1 Statement of the Case........................................................... 1 Statement of the Facts.......................................................... 2 Summary of the Arguments...................................................... 4 Arguments................................................................... 5 I. The evidence is insufficient to support a conviction for first-degree murder..... 5 II. Collins received constitutionally ineffective assistance of trial counsel......... Conclusion.................................................................. 11 Certificate of Service.......................................................... 12 ii

TABLE OF AUTHORITIES Federal Cases Jackson v. Virginia, 443 U.S. 307 (1979)........................................... 6 Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)........... 9 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)............ 8 State Cases Bush v. State, 895 So. 2d 836 (Miss. 2005)........................................ 5, 6 Carr v. State, 208 So. 2d 886 (Miss. 1968).......................................... 5 Edwards v. State, 469 So. 2d 68 (Miss. 1985)........................................ 6 Hill v. State, 929 So. 2d 338 (Miss. Ct. App. 2005)................................... 7 McQuarter v. State, 574 So. 2d 685 (Miss. 1990)..................................... 8 Ransom v. State, 919 So. 2d 887 (Miss. 2005)....................................... 8 Sawyer v. State, 2 So. 3d 655 (Miss. Ct. App. 2008)................................. 8, 9 Sea v. State, 49 So. 3d 614 (Miss. 2010)........................................... 10 Shields v. State, 722 So. 2d 584 (Miss. 1998)........................................ 7 Stringer v. State, 454 So. 2d 468 (Miss. 1984)....................................... 8 Statutes Mississippi Code Annotated 97-3-19.............................................. 6 Rules MRE 404(a), 404(b)....................................................... 8, 9, 11 MRE 403................................................................. 9, 11 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TAVARIS COLLINS APPELLANT V. NO. 2015-KA-00848-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES I. The evidence is insufficient to support a conviction for first-degree murder. II. Collins received constitutionally ineffective assistance of trial counsel. STATEMENT OF THE CASE This appeal proceeds from the circuit court of Clay County, Mississippi, and a judgment of conviction for first degree murder and two counts of felon in possession of a firearm entered against Tavaris Collins. (C.P. 137-45, R.E. 13-18). After a jury trial on May 4-6, 2015, the Honorable James T. Kitchens, Jr., circuit judge, presiding, the jury returned a verdict of guilty on all three counts of the indictment. (C.P. 152, R.E. 21). Collins was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 to life without parole for first-degree murder, and ten years each for felon in possession of a firearm. (C.P. 137-45, R.E. 13-18). No post-trial motions were filed on Collins s behalf. Collins timely perfected his appeal. (C.P. 144, R.E. 19). Collins is presently incarcerated and appeals to this Honorable Court for relief. 1

STATEMENT OF THE FACTS In the early morning hours of January 1, 2012, Devin Mitchell was shot and killed in the courtyard of his cousin s apartment complex in West Point, Mississippi. (Tr. 193, 230). Devin had been visiting Queenie Walker, his adult cousin, and her children to celebrate the New Year. (Tr. 177). Devin, who was sixteen, and his cousin, Alexis Walker, spent much of the night at Queenie s home, eating and watching movies. (Tr. 174-77). After midnight, Alexis and Devin asked Queenie if they could go outside to celebrate because some of the neighbors were out wishing each other happy new year. (Tr. 178, 225). After a while, they went to another cousin s apartment to play video games. (Tr. 178). Devin took Alexis home after a while, and then he went back outside to talk on his phone. (Tr. 185). Devin also went to Porsha Ewing s apartment, and talked to her through her bedroom window for a while before Queenie came out and yelled at him to come inside because it was late. (Tr. 209, 227). As he was walking across the courtyard to go back to Queenie s apartment, Devin was shot in the head and killed. (Tr. 228-30). Queenie did not see the shooting. She had already made it back inside her apartment when she heard four or five shots in quick succession. (Tr. 229-30). At first, Queenie thought the sound was fireworks. (Tr. 229). She went back outside to look for Devin and saw him laying face down on the sidewalk. (Tr. 230). She yelled for her daughter, Alexis, to call for help. (Tr. 193-94). While she was trying to give aid to Devin, Queenie noticed the Appellant, Tavaris Collins standing to the side, holding a gun by his side. (Tr. 231). Collins lived in the apartment upstairs from Queenie and her children. (Tr.223). He gestured toward the woods, suggesting that the shooter had run in that direction. (Tr. 232). Queenie looked up again, and Collins had gone upstairs to his apartment. (Tr. 234). Queenie went to get her phone to call for help herself. Collins was upstairs in the doorway of his apartment. 2

(Tr. 235). As the police were approaching with sirens and blue lights, Collins came downstairs and laid a gun down on the concrete near Devin. (Tr. 235). It was a different gun than the one she had seen him holding earlier. (Tr. 236). This gun was identified as a.22 caliber semi-automatic handgun. (Tr. 283). Officer Jeremy Bell of the West Point Police Department responded to a shots fired call at the apartment complex. (Tr. 244). When he arrived, he saw Queenie and Collins waving him down. (Tr. 246). Collins told the officer that he had fired some shots toward the wooded area of the apartments. (Tr. 252). Collins indicated that he had used the weapon on the sidewalk next to Devin. (Tr. 253). Collins indicated that he had responded to someone shooting, but he could not describe the shooter s clothing or otherwise describe the shooter. (Tr. 256-57). Collins initially told Bell that the shooters were running toward the northeast corner of the building, into the woods. When the shots were fired, he was at the back of the stairs of in the breezeway of his apartment building. (Tr. 257). When Bell rolled Devin over, he could see that he had been shot in the head, and that he did not have a weapon. (Tr. 259). When Bell talked to him a second time, Collins stated that he was standing in the courtyard of the complex when he fired the shots. (Tr. 260). Collins did not know Devin. He only fired shots because he heard someone else shooting. (Tr. 262). Collins never told Bell he had been shot at, only that he heard gunshots and fired back. (Tr. 270). Once Collins was off the scene, Queenie informed the investigators that the gun found beside Devin s body was not the gun Collins initially had in his hand and was not the weapon used to shoot him. (Tr. 288). They then got consent from the apartment owner to search Collins s apartment. They found another gun in an attic crawl space in the apartment. (Tr. 288). Investigator Albert Lee noted that there were four spent shell casings in the.38 pistol they recovered, indicating that it had 3

been fired four times. (Tr. 292). Investigators performed a grid search of the area where the shooting occurred, using metal detectors. However, they were not able to recover any spent shell casings or other evidence in this case. (Tr. 287). A projectile was recovered from Devin s skull, but it was too damaged to be compared to samples from the two guns recovered. (Tr. 310). Collins initially invoked his right to remain silent and refused to talk to police or sign the Miranda waiver form. (Tr. 311). However, police officers discussed the case with Collins s mother. Then, after visiting with his mother, Collins told police he wanted to talk to them about the case. (Tr. 311). He gave a statement, which was played for the jury during trial. In that statement, Collins indicated that he was paranoid, that people were following him and had been for weeks. (Tr. 313, Exhibit 19). Collins admitted to firing shots at the apartments. He heard shots fired, and he responded by firing shots. He stated that he was upstairs when he fired the shots, then ran downstairs, then back to his apartment. (Tr. 324, Ex. 19). He admitted that he had two different guns, a.38 revolver and a.22 semi-automatic. Investigator Lee believed Collins was paranoid. (Tr. 333). There was no indication that anybody else fired shots that night. (Tr. 333). Dr. Criss Lott, who performed the mental evaluation on Collins, testified for the defense. Dr. Lott noted that Collins was paranoid and possibly delusional at the time of the shooting. (Tr. 379). She testified that he was not legally insane, but his judgment may have been impaired. (Tr. 380). SUMMARY OF THE ARGUMENTS The State failed to offer evidence to prove that Collins committed first-degree murder. The evidence at trial does not support a finding that Collins acted with deliberate design to kill anybody. There is evidence that Collins fired the shot that killed Devin Mitchell. However, Collins would argue that the evidence tended to prove, at most, that he is guilty of second-degree depraved heart 4

murder. The second-degree murder charge is supported by evidence that Collins fired in the general direction of where he heard shots, an act eminently dangerous to others. Therefore, Collins respectfully requests this Court reverse his conviction for first-degree murder and remand his case for sentencing for second-degree murder. Additionally, Collins received constitutionally ineffective assistance of counsel. Collins s trial counsel failed to offer a stipulation that Collins was already a convicted felon, to satisfy the first element of the felon in possession of a firearm charge. Instead, the State, without objection, entered a judgment of conviction for aggravated assault entered against Collins in 1998. In addition to this prejudicial evidence, Collins s trial counsel failed to make any objection to the State s questioning of Dr. Lott regarding Collins having a propensity for violence and relating a list of his prior bad acts, including fighting, domestic violence, and shooting his step-father. This evidence served to prejudice the jury against Collins and base their decision in the present case on his prior behavior. The evidence of Collins s prior bad acts and convictions was prejudicial and it was ineffective for his attorney not to object to this evidence. ARGUMENTS I. The evidence is insufficient to support a conviction for first-degree murder. Collins challenged the sufficiency of the evidence against him in his motion for a directed verdict, which the trial court denied. When reviewing a challenge to the sufficiency of the evidence, the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. Bush v. State, 895 So. 2d 836, 843( 16) (Miss. 2005) (quoting Carr v. State, 208 So. 5

2d 886, 889 (Miss. 1968)). The appellate court considers the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)). Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). The indictment in this case charged Collins with deliberate design murder, in violation of Mississippi Code Annotated section 97-3-19. Deliberate design murder, now first-degree murder under Mississippi Code Annotated section 97-3-19(1)(a), is defined as a killing with deliberate design to effect the death of the person killed, or of any human being.... The jury was instructed that to find Collins guilty of first-degree murder, it had to find that Collins unlawfully, willfully, and feloniously, with malice aforethought kill[ed] and murder[ed] Devin Mitchell, without authority of law and not in necessary self-defense. (C.P. 165). If the jury found that Collins was not guilty of first degree murder, it was instructed to consider the lesser included offense of second-degree murder. Second degree murder, formerly depraved heart murder, is a killing done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.... Miss. Code Ann. 97-3-19(1)(b). The jury was instructed that if it found Collins not guilty of second degree murder, it should consider whether Collins is guilty of culpable negligence manslaughter. (C.P. 171, Instruction S-8). Additionally, the jury was instructed that it could consider imperfect 6

self-defense manslaughter. (C.P. 174, Instruction S-11). Collins contends that the trial court erred in denying his motion for directed verdict on the murder charge. The State failed to provide evidence that Collins intended to shoot Devin. And even under a transferred intent theory, there is no proof that Collins was aiming at anybody or intended to hit anybody when he fired the shots. When questioned, Collins stated that he shot towards the woods, or toward the parking lot. He never indicated that he aimed at anyone or intended to shoot anyone. At most, Collins was guilty of second-degree murder, which does not require a design to kill anyone, only an act eminently dangerous to others and evincing a depraved heart. Shooting in the general direction of where he heard shots fired could be considered eminently dangerous and evincing a depraved heart. Under the direct remand rule, when a conviction is reversed due to insufficient evidence, no new trial is required and the defendant may be remanded for re-sentencing on the lesser included offense where proof establishes the lesser offense. Hill v. State, 929 So. 2d 338, 341 ( 10) (Miss. Ct. App. 2005) (quoting Shields v. State, 722 So.2d 584, 585 ( 7) (Miss.1998)). Collins asserts that this is the appropriate remedy in his case and requests that this Honorable Court reverse his conviction for first-degree murder and remand him for sentencing on second-degree murder. II. Collins received constitutionally ineffective assistance of trial counsel. Collins would respectfully show unto the Court that he was denied effective assistance of counsel due to trial counsel s failure to object to prejudicial prior bad acts evidence and failure to offer a stipulation as to the prior conviction used for the felon in possession of a firearm charge. The prior conviction showed that Collins had been previously convicted of aggravated assault and was prejudicial. Further, on cross examination of Dr. Lott, the State questioned Dr. Lott about prior bad 7

acts of Collins, including being suspended from school as a teenager for fighting, shooting his stepdad, as well as having outstanding warrants for malicious mischief and domestic violence. (Tr. 386). Collins s trial counsel failed to object to any of that evidence. The Mississippi Supreme Court has recognized that the benchmark for judging any claim of ineffectiveness must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Ransom v. State, 919 So. 2d 887, 889 (Miss. 2005) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Under the two-pronged test of Strickland, adopted by the Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984), a defendant must prove under the totality of the circumstances, that (1) his attorney s performance was defective and (2) such deficiency deprived the defendant of a fair trial. There is a strong, but rebuttable presumption that the attorney s conduct fell within the wide range of reasonable professional assistance. Id. See also McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). The defendant must also establish that there is a reasonable probability that but for his attorney s errors, he would have received a different result in the trial court. Id. The actions which fall within trial strategy include failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections and do not necessarily render counsel s actions ineffective. Id. Trial counsel s performance as a whole [must fall] below the standard of reasonableness and that the mistakes made were serious enough to erode confidence in the outcome of the trial. Id. Character evidence is not admissible to prove that one acted in conformity therewith on a particular occasion. Sawyer v. State, 2 So. 3d 655, 658 (Miss. Ct. App. 2008) (citing M.R.E. 404(a)). Rule 404(b) of the Mississippi Rules of Evidence prohibits the use of other crimes or bad acts to prove the character of a person in order to show that he acted in conformity therewith. 8

However, other crimes or bad acts may be admissible to prove identity, knowledge, intent, motive, opportunity, or preparation. Id. (citing M.R.E. 404(b)) (emphasis added). The inquiry does not end with finding that the evidence is admissible to show motive, opportunity, etc. Instead, the trial court must still evaluate the evidence under Rule 403, which allows the exclusion of evidence where the risk of undue prejudice substantially outweighs the probative value of the evidence. Id. In Sawyer, this Court reversed Charlie Sawyer s conviction because the trial court did not require the State to stipulate to Sawyer s prior armed robbery conviction, which was admitted, ostensibly, to satisfy the first element of the charge that Sawyer was a felon in possession of a firearm. Id. at 657 ( 5). This Court found the facts in Sawyer to be identical to the facts of Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.Ed.2d 574 (1997), which found that a trial judge abused his discretion by not forcing the prosecution to stipulate to the defendant s prior conviction rather than enter the order of conviction into evidence. Id. at 659 ( 20) (quoting Old Chief, 519 U.S. at 191. Had Collins s attorney offered a stipulation regarding Collins s prior conviction, the State would have been obligated to submit the stipulation rather than the order of conviction. The order of conviction was the first piece of evidence introduced by the State, giving the jury an initial impression of Collins as a violent criminal. It was prejudicial to his case and could have been avoided had defense counsel offered a stipulation. Additionally, evidence of prior bad acts came out during cross-examination of Dr. Lott. The following exchange took place: Q: When you evaluated him, I believe one of the things that you went through was his history or his past, the things he had done in the past and what have you; is that correct? 9

(Tr. 385-87). A: That s correct. Q:... [Y]ou know from reading the reports and what have you, that he had some outstanding warrants from for [sic] malicious mischief and domestic violence. And he admitted to you that those were valid...... Q: Is there any way to know whether he was delusional when he committed those acts? A: No. Unless someone had evaluated him previously just prior to that or just after that time, I don t think we would know. Q: Likewise, it was reported to you that he was suspended from school for fighting... Is that not correct? A: Yes, sir. Q: Any way of knowing that he was delusional on that occasion? A: It would have been unlikely that he would have been delusional. It looks like he had a history of conduct disorder. So he had a long-term history of impulsive and some aggressive behaviors beginning in at least early adolescence and continuing throughout his youth, possibly into adulthood. Q: As a matter of fact, he also reported that he shot his stepfather on occasion; is that correct, for hitting his mother? A: That s correct. Q: But he was a juvenile, and of course, once again there was no way of knowing whether he was delusional or not in that case? A: And again, I would have suspected that would have been the issue at that point and time [sic]. Dr. Lott was the only defense witness. And defense trial counsel offered his report into evidence, though it was only allowed to be marked for identification and not received as an exhibit. (Tr. 374). The history Dr. Lott provided in his report should not have been presented to the jury, either through his testimony or his report. In Sea v. State, 49 So. 3d 614 (Miss. 2010), the supreme court reversed Curtis Sea s convictions for sexual battery because Sea s trial counsel was ineffective for introducing evidence of Sea s prior convictions for sex crimes. Id. at 619 ( 21-23). In Sea, the convictions would not have been admissible because they were more than ten years old. Id. at ( 20). The Court in that case found that introducing otherwise inadmissible prior convictions was incendiary and found that Sea 10

satisfied both prongs of Strickland, proving both a deficiency on the part of trial counsel and resulting prejudice. Id. Here, trial counsel offered an unredacted report into evidence that contained evidence of prior bad acts of the defendant. Then, when the State questioned Dr. Lott about the statements in the report, defense counsel failed to make an objection based on MRE 404(a), 404(b), or 403. The prior bad acts mentioned in Dr. Lott s report and testimony were prejudicial to Collins. Coupled with the evidence of his prior aggravated assault conviction, it left the jury to infer that because Collins had committed prior violent acts, that he must have committed the crimes charged in this case. Collins contends that he received constitutionally ineffective assistance of counsel and respectfully requests this Court reverse his convictions and sentences and remand his case for a new trial. CONCLUSION Therefore, based on the propositions briefed and the authorities cited above, together with any plain error noticed by the Court which has not been specifically raised, Tavaris Collins respectfully requests that this honorable Court reverse his conviction and sentence and render a not guilty verdict for first degree murder, or, alternatively, remand his case for a new trial. Respectfully submitted, TAVARIS COLLINS, APPELLANT /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 11

CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Tavaris Collins, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: This the 9th day of December, 2015. Honorable James T. Kitchens, Jr. Circuit Court Judge Post Office Box 1387 Columbus, MS 39703 Honorable Forrest Allgood District Attorney, District 16 Post Office Box 1044 Columbus, MS 39703 Tavaris Collins, MDOC #T7355 South Mississippi Correctional Facility Post Office Box 1419 Leakesville, MS 39451 /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 12

Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov 13