Collins v. State
| Docket Number: | 2009-KA-00781-COA Linked Case(s): 2009-KA-00781-COA ; 2009-CT-00781-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-06-2011 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Lesser included offense instruction - Closing argument Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-18-2008 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Robert Shuler Smith Case Number: 06-0-993 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Timothy Collins |
WILLIAM R. LABARRE
ALICE THERESA STAMPS
VIRGINIA LYNN WATKINS
JACINTA HALL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault - Lesser included offense instruction - Closing argument |
| Summary of the Facts: | Timothy Collins was convicted of aggravated assault and sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Lesser included offense instruction Collins argues that the circuit court should have granted his request for a simple-assault instruction. A lesser-included-offense instruction should be granted unless the trial judge can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (and conversely not guilty of at least one essential element of the principal charge). According to Collins, his request for a simple-assault instruction was supported by the testimonies presented from two members of the Jackson Police Department, because their testimony support his claim that he fired downward at the victim’s legs. When Collins asked the police detective whether a bullet could have ricocheted off of concrete, the detective responded, “I suppose [so].” The investigator’s response to the same question was that it was possible for a bullet to ricochet off of concrete. A lesser-included offense instruction should never be granted on the basis of pure speculation. Collins shot the victim five times. Even viewing the evidence in the light most favorable to Collins, and considering all reasonable favorable inferences which may be drawn in his favor, no reasonable jury could have found him guilty of simple assault. Issue 2: Closing argument Collins argues that the circuit court should have granted his request for a mistrial after the prosecution made what Collins considers to be improper comments during closing arguments, i.e., the prosecutor’s remarks infringed on his right to remain silent. When anything transpires during the trial that would tend to prejudice the rights of defendant, he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial. A motion for mistrial after the jury has retired to consider its verdict comes too late. Because Collins did not move for a mistrial until well after the prosecution had concluded its closing argument and the jury had announced that it had reached a verdict, he is procedurally barred from raising this issue on appeal. |
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