        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-00683-COA

DERRICK HAYNES A/K/A DERRICK ARTELL                                        APPELLANT
HAYNES

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         09/19/2014
TRIAL JUDGE:                              HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                LEAKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  EDMUND J. PHILLIPS JR.
                                          CHRISTOPHER A. COLLINS
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: ABBIE EASON KOONCE
                                              JASON L. DAVIS
DISTRICT ATTORNEY:                        MARK SHELDON DUNCAN
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF POSSESSION OF A CELL
                                          PHONE WHILE IN A CORRECTIONAL
                                          FACILITY AND SENTENCED AS A
                                          HABITUAL OFFENDER TO SERVE
                                          FIFTEEN YEARS IN THE CUSTODY OF
                                          THE MISSISSIPPI DEPARTMENT OF
                                          CORRECTIONS
DISPOSITION:                              REVERSED AND REMANDED FOR A NEW
                                          TRIAL - 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.

      JAMES, J., FOR THE COURT:

¶1.   Derrick Haynes appeals his conviction after a trial in absentia in the Circuit Court of

Leake County, Mississippi. Finding error, we reverse and remand for a new trial.

                      FACTS AND PROCEDURAL HISTORY
¶2.    Haynes was indicted in the Circuit Court of Leake County as a habitual offender on

one count of possession of a cell phone in a private correctional facility under Mississippi

Code Annotated section 47-5-193 (Rev. 2015). The circuit court set Haynes’s trial for

September 11, 2014.

¶3.    When the case was first called on the morning of trial, Haynes was not present. Chris

Collins, Haynes’s court-appointed attorney, represented to the judge that he had spoken to

Haynes the evening before and Haynes had said he would be at trial the next morning. After

addressing a civil matter on the docket, the judge again called Haynes’s case. Haynes was

still not present. Collins told the judge that Haynes had contacted him the morning before

and said that his car had broken down en route from Meridian, Mississippi, to the courthouse.

Further, Collins reiterated that he had spoken with Haynes the evening before and that

Haynes had said he was trying to arrange a ride to the courthouse for the next morning. The

judge decided to recess for an hour to allow Collins and the sheriff an opportunity to locate

Haynes.

¶4.    After the recess, Haynes had not arrived. The judge met in chambers with the

attorneys. The sheriff told the judge that he had been unable to locate Haynes. Collins

informed the court that Haynes had been present at the court earlier in the week but had

transportation difficulties mid-week. Collins recounted what Haynes had said the day before:

“[H]e called me around 7:30 in the morning and said, ‘I’m on my way. My car’s broke[n]

down. I’m trying to find transportation to get the rest of the way there.’ He represented to

me that he was in the Tucker Community [in Neshoba County] when he called.” Collins also



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mentioned his evening conversation with Haynes, stating, “He told me he would be [here].”

Collins told the judge that he had called Haynes multiple times that morning but had not

gotten a ring tone. Collins stated,

       [T]oday, when I have attempted to call the phone number I have for him, . . .
       I don’t get any ring tone. Your Honor, it’s like when someone has a pay-by-
       the-minute phone and they’re out of money on their phone. That’s how it’s
       responding when I call. Don’t have any minutes on your phone, I guess is the
       way to say it.

¶5.    The judge then asked Collins if he was prepared to proceed without Haynes. Collins

replied, “No, Your Honor. It would greatly prejudice my client to be tried without the

opportunity to confront his accusers.” In response to the question if his witnesses were ready

to proceed, Collins responded, “Your Honor, my client was my witness.”

¶6.    The judge then decided to try Haynes in absentia. The judge reasoned, “[B]ased upon

the testimony of Mr. Chris Collins, his court-appointed lawyer, . . . the Defendant willfully,

voluntarily, deliberately is absent from the Court, he being aware of the date and the time of

the trial, and there is no offer of any reason why he is not here.” The judge also stated, “The

only reason this Court can reasonably conclude is [that] he is avoiding trial because he has

just completed a criminal proceeding in Lauderdale County for which he was incarcerated

for a period of time and was on . . . parole.”

¶7.    After the judge’s ruling, Collins objected and moved for a continuance. The judge

overruled the motion and returned to the courtroom to begin the trial. At the start of trial,

Collins renewed his objection and motion for continuance. The judge, again, overruled the

motion.



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¶8.      At the end of the trial, Haynes was convicted by the jury. The judge dismissed the

jury, saying, “[Y]ou’re going to get . . . tomorrow off.” The judge delayed sentencing until

September 19, 2014, in order to have Haynes present.

¶9.      Haynes appeared at the sentencing hearing. In response to the judge’s question of

where he had been on the day of trial, Haynes claimed, “[W]ell, actually, my car . . . broke

down the day before.” Haynes also claimed that he did not have the money to “pay someone

to bring me over here . . . because they worked in the morning, and . . . I was indigent at the

time.”1 The judge then sentenced Haynes to fifteen years in the custody of the Mississippi

Department of Corrections as a habitual offender under Mississippi Code Annotated section

99-19-81 (Rev. 2015). Haynes now appeals the judge’s decision to try him in absentia.

                                 STANDARD OF REVIEW

¶10.     This Court reviews a circuit court’s decision to try a defendant in absentia under an

abuse-of-discretion standard. Miss. Code Ann. § 99-17-9 (Rev. 2015) (“the trial may

progress at the discretion of the court”); Wales v. State, 73 So. 3d 1113, 1120 (¶17) (Miss.

2011).

                                        DISCUSSION

¶11.     Mississippi Code Annotated section 99-17-9 describes when a trial is allowed where

the defendant is absent:

         In criminal cases the presence of the prisoner may be waived (a) if the
         defendant is in custody and consenting thereto, or (b) is on recognizance or
         bail, has been arrested and escaped, or has been notified in writing by the

         1
       While Haynes’s precise physical address is not in the record, Collins testified that
Haynes lived in Meridian.

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       proper officer of the pendency of the indictment against him, and resisted or
       fled, or refused to be taken, or is in any way in default for nonappearance, the
       trial may progress at the discretion of the court, and judgment made final and
       sentence awarded as though such defendant were personally present in court.

Interpreting this section, the Mississippi Supreme Court has held that a defendant “who has

committed willful, voluntary, and deliberate actions to avoid trial has waived the right to be

present at trial and may be tried in absentia.” Wales, 73 So. 3d at 1119-20 (¶16) (citing Jay

v. State 25 So. 3d 257, 264 (¶38) (Miss. 2009)). This waiver, though, is balanced against a

defendant’s constitutional right to be present at trial. U.S. Const. amend. VI; Miss. Const.

art 3, § 26.

¶12.   In the case at hand, our precedent supports granting Haynes a continuance before

trying him in absentia. In Jefferson v. State, 807 So. 2d 1222, 1223 (¶2) (Miss. 2002), the

Supreme Court affirmed a trial in absentia after the defendant received two day-long

continuances. In Jefferson, despite multiple telephone calls to the defendant, his attorney

was unable to contact him during the continuances, and the trial court found that the

defendant had waived his right to be present at trial. Id. at 1223-24 (¶4). Further, the

Supreme Court also affirmed a trial in absentia where the trial court granted a two-day-long

continuance in order to locate the defendant. Wales, 73 So. 3d at 1117 (¶9). During the

continuance, the defendant was unable to be contacted or located. Id. at 1117-18 (¶10).

¶13.   Further, when a trial in absentia has been affirmed where continuances have not been

granted to the defendant, it has been clear that the defendant willfully avoided trial. In

Williams v. State, 881 So. 2d 963, 965-66 (¶11) (Miss. Ct. App. 2004), this Court affirmed

a trial in absentia where the defendant had been at the courthouse the day before the

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trial—apparently attempting to hire other counsel—but did not contact his attorney on the

morning of the trial. Likewise, this Court affirmed a conviction where the defendant

discussed his case with his attorney at the courthouse two days before trial and did not call

his attorney or answer his attorney’s phone calls to him on the morning of the trial. Carroll

v. State, 196 So. 3d 1054, 1057-58 (¶¶13-14) (Miss. Ct. App. 2016). In addition, this Court

affirmed a trial in absentia without a continuance of a defendant whose bond had been

revoked. Robinson v. State, 66 So. 3d 198, 199 (¶4) (Miss. Ct. App. 2011). The record, in

Robinson, showed that the defendant had an active warrant for his arrest and charges pending

for murder, smuggling contraband into a jail, and possession of a firearm. Id. at 199-200

(¶4). The defendant’s attorney also represented that when he had asked the defendant if he

wanted to turn himself in to the authorities, the defendant had replied, “No, they can pick me

up.” Id. at 200 (¶4).

¶14.   Under plain-error review—not an abuse-of-discretion standard—the Supreme Court

affirmed a trial in absentia where there was no objection or motion for continuance.

Blanchard v. State, 55 So. 3d 1074, 1077 (¶11) (Miss. 2011). In Blanchard, the trial court

recognized that the defendant was absent, and the defendant’s court-appointed counsel

informed the trial court that the defendant knew his trial date. Id.; see also Barksdale v.

State, 176 So. 3d 108, 111 (¶16) (Miss. Ct. App. 2015), cert. denied, 178 So. 3d 333 (Miss.

2015) (affirming a trial in absentia under plain-error review where the defendant “was well

aware of his trial date, understood he had to be at trial, and offer[ed] no proof that his

absence was not willful, voluntary, and deliberate”).



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¶15.   This Court also discussed a trial in absentia where the dispositive issue was the trial

court’s denial of an untimely appeal of the defendant’s conviction. Arnold v. State, 93 So.

3d 908, 910 (¶6) (Miss. Ct. App. 2012). There, though, we specifically recognized that

       [t]he record is void of any evidence that [the defendant] even attempted to call
       his attorney or the courthouse by phone to inform them of his car trouble on
       the morning of trial. The record also indicates that [the defendant] lived
       approximately nine miles from the courthouse, but he made no attempt to walk
       or find an alternative way to travel the nine-mile distance.

Id. at 912 (¶9). The defendant argued that he did not appear for the second day of trial due

to fear of arrest. Id. at 911 (¶8). He also did not appear for his sentencing. Id. at 910 (¶4).

¶16.   Here, the record does not show that Haynes willfully, voluntarily, and deliberately

absented himself from trial. Haynes contacted Collins and informed him of his transportation

difficulties. Collins informed the circuit court that Haynes claimed that his car had broken

down. Collins also told the court that he did not receive a ring tone the morning of trial when

he called Haynes’s cell phone. According to Collins, when he called Haynes, the tone he

heard was “like when someone has a pay-by-the-minute phone and they’re out of money on

their phone.” As Collins was court appointed, the judge was aware of Haynes’s indigent

status. Despite these reasons for Haynes’s absence, the judge proceeded to try Haynes in

absentia.

¶17.   Further, this case is different from the cases where trials in absentia have been

affirmed. Haynes was not given a continuance like the defendants in Jefferson and Wales.

Also, there is not any evidence in the record to contradict Haynes’s claim that he was not

willingly absent from trial. He also did not have any outstanding warrants for his arrest as



                                              7
the defendant did in Robinson. The record also shows that Haynes contacted his attorney the

day before the trial unlike the defendants in Williams, Carroll, Blanchard, Barksdale, and

Arnold. Plus, in contrast to the defendant in Arnold, Haynes appeared at his sentencing and

reiterated that his car had broken down. Also, at sentencing, Haynes claimed he had been

unable to arrange other transportation due to his indigency and, unlike the Arnold defendant,

who lived nine miles from the courthouse, Haynes lived over fifty miles from the courthouse.

In addition to these differences between our precedent and the case on appeal, Haynes was

prejudiced by being tried in absentia.

¶18.   Because of the prejudice of Haynes not being present to testify in his defense, the

judge abused his discretion by trying Haynes in absentia without first granting a continuance.

Officer James Dodson testified that Haynes was alone when he searched him. Also, Dodson

was asked at trial whether he performed the search by himself: “Did you perform a random

cell search on . . . cell ten, unit six, zone B, on that date by yourself?” Dodson replied, “Yes,

sir.” Collins brought this prejudice of a lack of witnesses to the search to the judge’s

attention when he stated, “[M]y client was my witness.” Haynes was prejudiced by not being

able to testify in his defense, and the judge abused his discretion by not granting a

continuance before trying Haynes in absentia.

¶19.   Also, the record demonstrates that the judge could have continued Haynes’s trial. At

the end of Haynes’s trial in absentia, the judge dismissed the jury, telling them,“[Y]ou’re

going to get . . . tomorrow off.” While the judge is to be commended for delaying the start

of the trial, the judge should have continued Haynes’s trial before proceeding with a trial in



                                               8
absentia.

                                       CONCLUSION

¶20.     Because Haynes did not willfully, voluntarily, and deliberately absent himself from

the trial, the judge abused his discretion by proceeding with the trial in absentia without first

granting a continuance. The judge was aware of Haynes’s claim that his vehicle had broken

down the day before trial. The judge also had knowledge of the distance Haynes had to

travel and his indigency. Therefore, we reverse Haynes’s conviction and remand for a new

trial.

¶21. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

    LEE, C.J., IRVING, P.J., ISHEE, FAIR AND GREENLEE, JJ., CONCUR.
BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. GRIFFIS, P.J., CARLTON AND WILSON, JJ., DISSENT
WITHOUT SEPARATE WRITTEN OPINION.




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