IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00422-COA
JAIRUS COLLINS A/K/A JAIRUS J. COLLINS APPELLANT A/K/A JAIRUS JIDON COLLINS A/K/A JARIUS COLLINS A/K/A JARIUS J. COLLINS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/25/2016 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL ADELMAN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR ANY FORM OF EARLY RELEASE DISPOSITION: AFFIRMED - 05/23/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ.
WILSON, J., FOR THE COURT:
¶1. A jury in the Forrest County Circuit Court convicted Jairus Collins of possession of
a weapon by a convicted felon, and the court sentenced him, as a habitual offender, to life
in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Jairus1 subsequently filed a motion for a judgement notwithstanding the verdict
(JNOV) or a new trial, which the trial court denied, and a timely notice of appeal. On appeal,
Jairus argues that (1) the charge should have been dismissed with prejudice because his
statutory and constitutional rights to a speedy trial were violated, (2) the verdict was against
the overwhelming weight of the evidence, and (3) his sentence as a habitual offender violates
the Mississippi Constitution. We find no error and affirm Jairus’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On November 14, 2012, the grand jury indicted Jairus for murder (Count I) and
possession of a weapon by a convicted felon (Count II). The indictment alleged that between
December 7 and 9, 2011, Jairus (I) murdered Ebony Jenkins with deliberate design and (II)
possessed a .40 caliber handgun. Jairus was indicted as a habitual offender under Mississippi
Code Annotated section 99-19-83 (Rev. 2015).
¶3. On November 19, 2012, Jairus pled not guilty and filed a motion requesting that Count
I and Count II be severed and tried separately. The State did not object to severing the
charges for trial, and on December 17, 2012, the circuit court entered an order granting
Jairus’s motion to sever.
¶4. Collins was convicted of murder following a jury trial in March 2013, and his motion
for JNOV or a new trial was denied on April 15, 2013. However, the Mississippi Supreme
Court reversed Jairus’s murder conviction on the grounds that the trial court erred by failing
to suppress Jairus’s statement to police after he invoked his right to counsel, and by allowing
1 The defendant’s father and brother testified at trial, so we refer to him as Jairus to avoid confusion.
2 a police officer to testify as a lay witness regarding the locations of Jairus’s and Jenkins’s cell
phones. Collins v. State, 172 So. 3d 724, 744 (¶30) (Miss. 2015). The Supreme Court
reversed and remanded the case for further proceedings consistent with its opinion. Id. The
Supreme Court’s mandate issued on September 10, 2015.
¶5. On September 16, 2015, the State filed a motion in the circuit court to set the case for
trial as to Count II of the indictment only. The circuit court set Count II for trial on February
23, 2016.
¶6. On October 15, 2015, Jairus moved to dismiss Count II on the ground that trying him
more than three years after he was indicted and pled not guilty would violate his right to a
speedy trial under Mississippi Code Annotated section 99-17-1 (Rev. 2015) and the
Constitution. The court held a hearing on Jairus’s motion on November 9, 2015. At the
hearing, defense counsel acknowledged that Jairus requested that the charges against him be
severed and tried separately, which resulted in some delay, and that Jairus never asserted his
right to a speedy trial at any point prior to his motion to dismiss. Counsel further conceded
that the State was not responsible for any delay through the sentencing and post-conviction
motions in Jairus’s murder trial. At the conclusion of the hearing, the circuit court noted that
Jairus was not entitled to dismissal based on the length of the delay alone, and the court
denied the motion to dismiss Count II. The case then proceeded to trial on February 23-24,
2016.
¶7. Jessie Miles testified at trial that he purchased a .40 caliber Hi-Point handgun from
a pawn shop in Columbia, Mississippi. Records from the pawn shop were introduced
3 showing that in February 2010 Miles purchased a Hi-Point handgun with the serial number
X77860. Miles later had “a problem with [the] gun jamming.” Sometimes it would fire, but
sometimes it would jam. Miles told Jairus’s brother, Joshia Collins, about his problem with
the gun. Joshia told Miles that Jairus could fix it, so Miles spoke to Jairus. Jairus confirmed
that he could fix the gun, so in November 2011, Miles “gave [Jairus] the gun so he could fix
it.” Jairus never returned the gun.
¶8. Miles identified a gun introduced into evidence at trial as the gun he gave to Jairus in
November 2011. However, he testified that it had been altered in two respects: black tape
had been wrapped around the handle, and the serial number had been scratched off. Jeff
Byrd, a crime scene investigator with the Hattiesburg Police Department, testified that he was
able to reveal the gun’s serial number by applying a solvent and sandpaper to it. The serial
number matched the number on the gun sold to Miles (X77860).
¶9. Jairus’s and Joshia’s father, Melven Collins, testified that between December 7 and
9, 201l, Jairus and Joshia arrived at his home in Hattiesburg. Melven testified that he noticed
a “bag” in his sons’ vehicle that “alarmed” him. Melven picked up the bag and put it back
down, and “it had weight to it.” Melven did not open the bag, but an “alarm went off” in his
mind, and he told his sons that “whatever it is, you need to get it away from this house.”
Melven previously testified that he thought that the object in the bag was a gun, but when
confronted with his prior testimony, he denied that he ever formed such an opinion.
¶10. Joshia admitted that he knew Miles, but he insisted that he never talked to Miles about
Jairus repairing a gun and that he had never seen Miles’s gun. Joshia admitted that Melven
4 told him and Jairus to “get out of his yard” because Melven was “uncomfortable” about
something, but Joshia claimed that he did not know why Melven asked them to leave. Joshia
further testified that he and Jairus left his father’s house, that he drove Jairus up Interstate
59 (I-59), that he stopped on the side of the highway, and that Jairus got out of the vehicle.
However, Joshia testified at trial that he never saw a gun or a bag and that he had no idea
why Jairus got out of the vehicle. Joshia previously gave a sworn statement that he knew that
Jairus had a gun in the bag, that he drove Jairus to mile marker 118 on I-59 to dispose of the
gun, and that Jairus then exited the vehicle and disposed of the gun. However, when
confronted with his prior statement, Joshia denied that he could recall a specific mile marker
or that he ever saw the gun or bag. Joshia did admit that he led law enforcement to the area
along I-59 where they found the gun.
¶11. Lieutenant Brandon McLemore of the Hattiesburg Police Department testified that in
December 2011, he and one or more other officers drove with Joshia north on I-59 to the
Vossburg exit, where Jairus told them that they could find the gun in the wood line nearby.
McLemore testified that they told Joshia that they were looking for a gun and that Joshia
directed them to the location of the gun. In the wood line, the officers found a plastic bag
with a gun inside. The gun had black electrical tape around the handle, and no fingerprints
were recovered. McLemore testified that the tape was likely placed on the gun to prevent the
collection of fingerprints.
¶12. Lori Beall, a forensic scientist with the Mississippi Crime Laboratory, testified as a
firearms expert. Beall testified that she test-fired the gun four times, that it did not jam, and
5 that it was operational.
¶13. The jury found Jairus guilty of possession of a weapon by a convicted felon. At
sentencing, the State presented proof that Jairus had been convicted previously of armed
robbery twice, burglary of a dwelling, and lewd and lascivious battery (in Florida). The
circuit court found that Jairus’s prior convictions satisfied the requirements of section 99-19-
83 and imposed a mandatory sentence of life without eligibility for parole. Jairus filed a
motion for JNOV or a new trial, which was denied, and a timely notice of appeal.
¶14. Though not relevant to the issues raised in this appeal, we note that in May 2016,
Jairus was retried, convicted, and sentenced to life without parole on Count I of the
indictment. His appeal from that conviction and sentence has been assigned to this Court and
docketed as Collins v. State, 2016-KA-01002-COA.
DISCUSSION
¶15. On appeal, Jairus argues that (1) his statutory and constitutional rights to a speedy trial
were violated; (2) the jury’s verdict is against the overwhelming weight of the evidence; and
(3) his sentence of life without parole is unconstitutional.
I. Speedy Trial
A. Statutory Right
¶16. Jairus first alleges a violation of his statutory right to a speedy trial. Section 99-17-1
provides that “[u]nless good cause be shown, and a continuance duly granted by the court,
all offenses for which indictments are presented to the court shall be tried no later than two
hundred seventy (270) days after the accused has been arraigned.” However, this Court has
6 repeatedly “held that if a defendant fails to raise the statutory right to a speedy trial within
270 days of his arraignment, he acquiesces to the delay.” Whitaker v. State, 114 So. 3d 725,
730 (¶18) (Miss. Ct. App. 2012) (quoting Roach v. State, 938 So. 2d 863, 867 (¶9) (Miss. Ct.
App. 2006)); accord, e.g., Mims v. State, 856 So. 2d 518, 522 (¶11) (Miss. Ct. App. 2003);
Malone v. State, 829 So. 2d 1253, 1257 (¶11) (Miss. Ct. App. 2002) (citing Walton v. State,
678 So. 2d 645, 649-50 (Miss. 1996)). The Supreme Court has also held that “a defendant
may effectively waive his right to complain of not being tried within the 270-day period set
out in [section] 99-17-1, when the defendant does not request or assert his right to a speedy
trial or object to a delay, especially when the defendant fails to show any prejudice in the
failure to be tried within the statutory 270-day period.” Guice v. State, 952 So. 2d 129, 142
(¶28) (Miss. 2007) (citing Walton, 678 So. 2d at 650).
¶17. Jairus was arraigned in November 2012 and was not tried until February 2016, which
obviously was much more than 270 days later. However, Jairus failed to assert his statutory
right to a speedy trial until October 2015, approximately three years after his arraignment,
and his trial commenced only four months after he raised the issue. Under the precedent of
this Court and the Supreme Court, Jairus’s delay in raising the issue waived his statutory
right to be tried within 270 days of arraignment.2
B. Constitutional Right
¶18. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
2 Jairus’s reply brief on this issue concludes: “As Appellant argued in his opening [b]rief, Justice Dickinson got it right with his dissent in McBride v. State, 61 So. 3d 138 (Miss. 2011).” This is an argument better directed to the Supreme Court.
7 trial . . . .” U.S. Const. amend. VI; accord Miss. Const. art. 3, § 26. “In determining whether
a defendant’s [constitutional] right to a speedy trial has been violated, courts must analyze
four factors: 1) the length of delay, 2) the reason for the delay, 3) the defendant’s assertion
of his right to speedy trial, and 4) prejudice to the defendant.” Hurst v. State, 195 So. 3d 736,
741 (¶11) (Miss. 2016) (citing Barker v. Wingo, 407 U.S. 514, 515 (1972)). “[E]ach case
should be considered on an ‘ad hoc basis’ and . . . no one factor is outcome determinative.”
Rowsey v. State, 188 So. 3d 486, 493 (¶17) (Miss. 2015) (quoting Barker, 407 U.S. at 530).
The United States “Supreme Court has held that courts must ‘engage in a difficult and
sensitive balancing process’ of the four factors because none of the factors is ‘either a
necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered together with such other
circumstances as may be relevant.’” Reed v. State, 191 So. 3d 134, 139 (¶8) (Miss. Ct. App.
2016) (quoting Barker, 407 U.S. at 533).
1. Length of Delay
¶19. “The constitutional right to a speedy trial attaches ‘at the time of a formal indictment
or information or else the actual restraints imposed by arrest and holding to a criminal
charge.”’ Rowsey, 188 So. 3d at 495 (¶24). The Mississippi Supreme Court has previously
held that a delay of eight months or more is presumptively prejudicial. Id. Because the delay
in this case was more than eight months, this factor weights against the State.
2. Reasons for the Delay
¶20. “Once the delay is deemed presumptively prejudicial, the burden shifts to the State
8 to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of
these reasons.” Reed, 191 So. 3d at 139 (¶11). This Court must then determine whether the
delay is attributable to the State or the defendant. McCormick v. State, 183 So. 3d 898, 903
(¶18) (Miss. Ct. App. 2015). “Deliberate attempts to delay the trial in order to hamper the
defense are weighed heavily against the State. On the other hand, ‘a more neutral reason
such as negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant’” Hardy v. State, 137 So. 3d 289, 299 (¶30)
(Miss. 2014) (quoting Ben v. State, 95 So. 3d 1236, 1242-43 (¶11) (Miss. 2012)).
¶21. Jairus concedes that the delay between his arrest and his first trial and sentencing on
Count I of the indictment (murder) are not attributable to the State. However, Jairus insists
that the nearly three-year delay between his initial sentencing on Count I and his trial on
Count II is attributable to the State. Jarius alleges that the State “simply assumed” that his
murder conviction would be affirmed—and that all delay based on this assumption should
be weighed against the State.
¶22. The State argues that the delay was caused by Jairus’s motion to sever the charges
against him for a separate trial. Citing Baine v. State, 604 So. 2d 258, 264 (Miss. 1992), the
State argues that delays due to a defendant’s motion to sever are not chargeable to the State.
In the trial court, the State also argued that considerations of “judicial economy” weighed
against burdening the court system with a trial for a defendant who had already been
sentenced to life without parole on a separate charge. However, Jairus’s motion to sever did
9 not preclude the State from trying him on Count II throughout the pendency of his appeal on
Count I. And, in general, the constitutional speedy trial clock is not tolled simply because
the defendant is already serving a sentence on a separate charge. See Smith v. Hooey, 393
U.S. 374, 378-79 (1969). Ultimately, “[i]t is the burden of the State to see that a defendant
receives a speedy trial” and “to show good cause for [any] delay.” Vickery v. State, 535 So.
2d 1371, 1377 (Miss. 1988).
¶23. As we explain below, under applicable precedent, Jairus’s speedy trial claim fails even
if we charge the State with responsibility for the delay between Jairus’s initial sentencing on
Count I and his trial on Count II. Therefore, for purposes of this appeal, we will assume that
this period of delay should be weighed against the State.
3. Assertion of the Right to a Speedy Trial
¶24. “[T]he failure to assert the right to a speedy trial ‘will make it difficult for a defendant
to prove he was denied a speedy trial.”’ Fisher v. State, 532 So. 2d 992, 996 (Miss. 1988)
(quoting Barker, 407 U.S. at 531-32). Furthermore, “a motion to dismiss does not equate
to an assertion of the right to a speedy trial.” Moffett v. State, 49 So. 3d 1073, 1087 (¶39)
(Miss. 2010).
¶25. As discussed above, Jairus first mentioned his right to a speedy trial almost three years
after his arraignment, at which point his trial was already scheduled to be held in only four
months. Even then, he sought only dismissal of the indictment, not a speedy trial.
Accordingly, this factor weighs against Jairus.
4. Prejudice
10 ¶26. “To determine whether the delay resulted in actual prejudice the Court considers three
interests that the right to a speedy trial was meant to protect: ‘(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.’” Taylor v. State, 162 So. 3d 780, 787 (¶16)
(Miss. 2015) (quoting Jenkins v. State, 947 So. 2d 270, 277 (¶21) (Miss. 2006)). “Of these
three interests, the last is the most important; and when violated, the most prejudicial to the
defendant.” Hersick v. State, 904 So. 2d 116, 123 (¶18) (Miss. 2004). “Generally, proof of
prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.”
McCormick, 183 So. 3d at 903 (¶21) (quoting Sharp v. State, 786 So. 2d 372, 381 (¶19)
(Miss. 2001)). Jairus bears the burden of showing actual prejudice, “since the defendant is
clearly in the best position to show prejudice under [this] prong.” See Johnson v. State, 68
So. 3d 1239, 1245 (¶16) (Miss. 2011).
¶27. On appeal, Jairus fails to articulate any prejudice. He simply states that the lengthy
delay was “obviously prejudicial.” He fails to identify any way in which his defense was
prejudiced or any oppression or hardship caused by the delay in trial on Count II. The
Supreme Court has held that a defendant fails to establish actual prejudice by “simply
repeating the factors to be considered” with “nary a scintilla of evidence to support his
claims.” Taylor, 162 So. 3d at 787 (¶16). Jairus likewise has failed to establish any
prejudice whatsoever.
¶28. To summarize, the length of the delay weighs against the State. We will also assume
that the reason for the delay weighs against the State, as the State was not precluded from
11 bringing Jairus to trial during the pendency of his appeal on Count I. However, Jairus never
demanded a speedy trial. Indeed, he did not mention the right for almost three years, and
when he finally did raise the issue, his trial was only four months away. Most important,
Jairus fails to articulate any prejudice whatsoever. Balancing these factors, we agree with
the trial judge that there was no violation of Jairus’s constitutional right to a speedy trial. See
Taylor, 162 So. 3d at 787 (¶17) (holding that, notwithstanding a lengthy and presumptively
prejudicial delay, there is no speedy trial violation where there is no evidence of actual
prejudice and “the other factors are neutral or only slightly in [the defendant’s] favor, at
best”); accord Reed, 191 So. 3d at 141 (¶21).
II. Weight of the Evidence
¶29. Jairus argues that the trial judge erred by denying his motion for a new trial because
the verdict was against the overwhelming weight of the evidence. He emphasizes that there
were no fingerprints on the gun and that Miles was the only witness who “place[d] a weapon
in [his] possession.” Jairus argues that Miles was not credible because he testified that his
gun jammed, while Beall testified that “[t]o [her] knowledge [the gun] had not been altered
or repaired at all.”
¶30. “When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). “[T]he
evidence should be weighed in the light most favorable to the verdict,” and we will not
12 reverse unless “[t]he trial court . . . abuse[d] its discretion in denying a new trial.” Id. at 844-
45 (¶¶18-19).
¶31. The trial judge did not abuse his discretion by denying Jairus’s motion. Miles testified
that he gave Jairus the gun at issue, and there was ample evidence that it was the same gun
later retrieved by law enforcement. Jairus suggests that Beall’s testimony undermines
Miles’s credibility, but Miles testified that even before he gave the gun to Jairus, it was not
totally inoperable and would fire sometimes. Moreover, Jairus was supposed to fix the gun
and claimed that he could, and Beall testified only that, “to [her] knowledge,” the gun had
not been repaired. In addition, even after all of Melven’s and Joshia’s crawfishing from their
prior testimony and statements, their testimony at the present trial, when considered with the
testimony of other witnesses, still supported a reasonable inference that Jairus disposed of
the gun alongside I-59, where it was retrieved by law enforcement.
¶32. “When a criminal case is tried to a jury, the members of the jury act as the finders of
fact.” Brown v. State, 764 So. 2d 463, 467 (¶9) (Miss. Ct. App. 2000). “They are charged
to listen to the evidence, observe the demeanor of the witnesses, and decide the issue of the
credibility of the witnesses and what weight to give to any particular piece of evidence.” Id.
The jury in this case obviously found the State’s witnesses sufficiently credible as to material
issues to prove Jairus’s guilt beyond a reasonable doubt. Having reviewed the record on
appeal, we cannot say that the jury’s verdict is against the overwhelming weight of the
evidence or that the trial judge abused his discretion by denying Jairus’s motion for a new
trial.
13 III. Habitual Offender Sentence
¶33. Jairus argues that his enhanced sentence as a habitual offender under section 99-19-83
is contrary to the United States Supreme Court’s decisions in Blakely v. Washington, 542
U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). However, “the rule”
expressed and applied in those cases is as follows: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at 301
(quoting Apprendi, 530 U.S. at 490) (emphasis added). Thus, Apprendi and Blakely do not
require the State to prove prior convictions to a jury. It is constitutionally permissible for a
judge to impose an enhanced sentence based on the judge’s own finding that the defendant’s
prior convictions satisfy the requirements of section 99-19-83. See Smith v. State, 963 So.
2d 1168, 1169-70 (¶5) (Miss. Ct. App. 2007).
¶34. Jairus also asserts that the use of his prior convictions to impose an enhanced sentence
violated Mississippi Rule of Evidence 404(b). This arguments fails for at least three reasons.
First, the Rules of Evidence do not apply in sentencing hearings. M.R.E. 1101(b)(4); Randall
v. State, 806 So. 2d 185, 231-32 (¶131) (Miss. 2001). Second, Rule 404(b) provides only that
“[e]vidence of a crime . . . is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.” M.R.E.
404(b)(1) (emphasis added). “The evidence may be used for another purpose . . . .” M.R.E.
404(b)(2). Jairus’s prior convictions were not admitted to show that he acted in conformity
with his character on a particular occasion. Indeed, they were not admitted until after his jury
14 trial on the instant charge had concluded. His prior convictions were admitted only as a basis
for enhancing his sentence, which is “another purpose” not prohibited by Rule 404(b). Third,
a rule of evidence cannot override a sentence mandated by the Legislature. As our Supreme
Court put it, “It is the [L]egislature’s prerogative, and not this Court’s, to set the length of
sentences.” Stromas v. State, 618 So. 2d 116, 123 (Miss. 1993). Accordingly, Jairus’s final
argument is without merit.
CONCLUSION
¶35. Jairus waived his statutory speedy trial right by failing to timely assert it; under
applicable precedent, there was no violation of his constitutional speedy trial right; his
conviction is not against the overwhelming weight of the evidence; and his sentence is valid
and constitutional. Therefore, we affirm his conviction and sentence.
¶36. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR ANY FORM OF EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.