IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00683-COA DERRICK HAYNES A/K/A DERRICK ARTELL HAYNES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/19/2014 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH 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 W HILE 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 Hay

nes appeals his conviction af ter a trial i n absentia in the Circuit Court of Leake County , Mississippi. Finding error, we reverse and rem a nd f or a new trial. FACTS AND PROCEDURAL HISTORY¶2. Hay

nes was indicted i n the Circuit Court of Leake County as a habitual of

f ender on

o n e c ount of possession of a cell phone in a private correctional f acility under Missis s i p p i Code Anno t a t e d s e c t ion 47-5-193 (Rev. 2015). T he circuit c ourt set Hay nes’s trial f

or Septem ber 11, 2014. ¶3. W h en t h e case was f irst called on t he m orning of t rial, Hay nes was n ot present. Chris Collins, H ay

nes’s court-appointed attorney , represented to the judge t hat he had spoken to Hay nes the evening bef

ore and Hay

nes had said he would be at trial the next m orning. Af ter addressing a civil m atter on the docket, the judge again called Hay nes’s case. Hay

nes was still not present. Collins told the judge that Hay nes had contacted him the m orning bef ore and said t hat his c ar h a d broken down en route f rom Meridian, M ississippi, to the courthouse. Further, Collins reiterated that he had spoken with H ay n es t he evening bef

ore a n d t h a t Hay nes had said he was try ing to arrange a ride to the courthouse f or the next m orning. The judge decided to recess f

or an hour to allow Collins and the sherif f a n opportunity to locate Hay nes. ¶4. Af ter the recess, Hay

nes had not arr i v e d

. T h e j u d g e me t i n cham bers with the attorney s. T he sherif

f told t he judge that he had been unable to loca t e H a y n e s . C ollins inf orm ed the court that Hay nes h a d been present at the court e arlier in the week but had transportation dif

f iculties m id-week. C ollins recounted what Hay nes had sa i d t

h e d a y b e f ore: “[ H]e called m e around 7:30 in the m o rning and said, ‘I’m on m y way . M y car’s broke[ n] down. I’m try ing to f

ind transportation to get the rest o f the way there.’ He r epresented to

m e that he was in the Tucker Com m unity [ in Neshoba County ] when h e called.” Collins also

2m entioned his evening conversation with Hay n es, stating, “He told m e he would be [ here].” Collins t old the judge that he had called Hay nes m ultiple tim es t hat m orning but had not gotten a ring tone. Collins stated, [ T]oday , when I have attem pted to call the phone num ber I have f

or him , . . . I don’t get any

ring tone. Your Honor, i t’s l ike w hen som eone has a pay -by

the-m inute phone and they ’re out of mo n e y on their p hone. That’s how it’s responding when I c all. Don’t have any m inutes on y our phone, I guess is the way to say it. ¶5. The j udge t hen asked Collins if he was prepared to p roceed without Hay nes. Collins replied, “ N o, Your Honor. It would greatly prejud ice m y client to be tried without the opportunity to conf

ront his accusers.” In response to t he q uestion if his witnesses were ready to proceed, Collins responded, “Your Honor, m y client was m y witness.” ¶6. The judge then decided to try Hay nes in absentia. T he j udge r easoned, “[ B]ased upon the testim ony of Mr. Chris Collins, his court-appointed lawy er, . . . the Def endant willf

ully , voluntarily , deliberately i s absent f rom the Court, he b eing a ware of the date and the tim e of the t rial, and there is no of f er o f any reason why he is not h ere.” The judge also stated, “The only r eason this Court can reasonably conclude is [ that] he is avoiding trial because he has just com pleted a crim inal proceeding in Lauderdale C ounty f or which he was incarcerated f or a period of

tim e and was on . . . parole.” ¶7. Af ter the judge’s ruling, Collins objected a nd m oved f or a c ontinuance. The ju d ge overruled the m otion and returned to the courtroom to begin the trial. At t he start of trial, Collins renewed h is objection and m o tion f or continuance. The judge, again, o verruled the

m otion.

3¶8. At the end of t he trial, Hay nes was convicted by the jury

. T h e j u dge d ism issed the jury , s ay ing, “[ Y]ou’re going to get

. . . tom o rrow of f .” The judge delay ed sentencing until Septem ber 19, 2014, in order to have Hay n es present. ¶9. Hay

nes a ppeared at t h e s e n t e ncing hearing. In response to the j udge’s question of where he had been on the d ay of trial, Hay

n es claim ed, “[ W ]ell, actually , m y car . . . broke down the day bef

ore.” Hay nes also claim e d that he did not have the m o ney to “pay som eone
to b ring m e over here

. . . because they worked in the m orning, a nd

. . . I was indigent at the tim e.” 1 The judge then s entenced Hay nes to f if teen y ears in the custody of the Mississippi Departm ent of C orrections as a habitual of f ender under M ississippi Code Annotated section 99-19-81 (Rev. 2015). Hay nes 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 d ef endant in absentia under an abuse

- o f

- d i s c retion standard. Miss. Code Ann. § 99-17-9 (Rev. 2015) (“the trial m ay progress at the discretion of the court”); W ales 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 def e ndant is absent:
In crim inal cases the presence of the prisoner m ay be w aiv e d ( a ) i f the def endant i s in c ustody and c o n senting t hereto, or (b) is on recognizance or bail, has bee n a r r e sted a nd escaped, or has been notif ied i n writing by the

1 Wh ile H ay

n es’s p recise p h y sical ad d ress is n o t i n th e reco rd , C o llin s testif ied th at H a y n es liv ed in M erid ian

. 4proper of f icer of the pendency of

the indictm e nt against him , a n d r esisted or f led, or ref used to be taken, or is in any way in d ef ault f o r nonappearance, the trial m ay progress at t he discretion of the court, and judgm ent m ade f inal and sentence awarded as though such def endant were personally present in court. Interpreting this section, the Mississippi S u prem e Court has held that a def endant “who has

com m itted willf

ul, voluntary , a nd deliberate actions to avoid trial has waived the right to be present at trial and m a y b e tried in absentia.” W ales , 73 So. 3d at 1119-20 (¶16) (citing Jay

v. S tate 25 So. 3d 257, 264 (¶38) (Miss. 2009)). This waiver, though, is balanced against a def endant’s constitutional right to be present at trial. U.S. Const. am end. VI; Miss. Const. art 3, § 26. ¶12. In the case at hand, our precedent supp o r t s g r a n t i n g H a y n es a continuance bef

ore try ing him in absentia. I n Jefferson v. State , 807 So. 2 d 1222, 1223 (¶2) (Miss. 2002), the Suprem e Court af

f irm ed a trial in absentia a f t e r the def

endant received two day -long continuances. I n J

e fferson , despite m

ultiple t elephone c a lls to the def endant, his attorney

was unable to c ontact him during the continuances, a nd the trial c ourt f ound that t he def endant had waived his r ight to b e present at trial. Id. at 1223-24 (¶4). F urther, the Suprem e Court also af

f irm ed a trial in absentia where the trial court g ranted a two-day -long continuance in order t o l o c a t e t he def endant. W

ales, 73 So. 3d at 1117 (¶9). During the continuance, the def

endant was unable to be contacted or located. Id . at 1117-18 (¶10). ¶13. Further, when a trial in absentia has been af f irm ed where c ontinuances have not been granted to the def

e ndant, it has b e e n c l e ar that t he def endant willf

u lly a voided trial. In W illiams v. State , 881 So. 2d 963, 965-66 (¶11) (Miss. Ct. App. 2004), this C ourt af f irm ed

a tria l i n absentia where the def endant h ad b een a t the c ourthouse the day bef ore the

5trial—apparently attem pting to hire other counsel—but did not contact his attorney on the

m orning of the trial. Likewi se, this Court af f irm ed a conviction where the def endant discussed his case with his attorney at the courthouse two day s bef ore trial a nd did not call his attorney or answer h is a ttorney ’s phone calls to him on the m orning of the trial. Carroll

v. State , 1 9 6 So. 3d 1054, 1057-58 (¶¶13-14) (Miss. Ct. A pp. 2016). I n addition, this Court af f irm ed a trial in absentia with o u t a continuance of a def endant w hose bond had been revoked. Robinson v. State , 66 S o. 3d 198, 1 99 (¶4) (Miss. Ct. App. 2011). The record, in Robinson , showed that t he def endant had an a ctive warrant f or his arrest a nd charges pending f or m urder, sm uggling c o n t r a b a n d into a jail, a nd possession of a f i rearm . Id

. at 199-200 (¶4). The def

e ndant’s attorney a lso represented that when h e had asked the d ef endant if he wanted t o turn him self i n to the authorities, the d ef endant had replied, “No, they can pick m e up.” Id . at 200 (¶4). ¶14. Under plain-error review—not an abuse-of -discretion standard—the Suprem e Court af f irm ed a trial in absentia where t here was no objection or m otion f or continuance. Blanchard v. State , 55 So. 3d 1074, 1077 (¶11) (Miss. 2011). In Blanchard , the trial court recognized that the d ef

endant was absent, a n d t h e def endant’s court-appointed counsel inf orm ed the trial court that the def endant knew h is trial date

. I d

. ; see also Barksdale v. State , 176 So. 3d 108, 111 (¶16) ( Miss. Ct. App. 2015), cert. denied , 178 So. 3d 333 (Miss. 2015) (af f irm ing a trial i n absentia under plain-error review w here the def endant “was well

aware o f his trial date, u nderstood he had to b e a t trial, and of f er[ ed] n o proof that his absence was not willf

ul, voluntary , and deliberate”).

6¶15. This Court also discussed a trial in absentia where t he dispositive issue was the trial

court’s denial of

an untim ely

appeal of the def endant’s conviction. A rnold v. State , 93 So. 3d 908, 910 (¶6) (Miss. Ct. App. 2012). There, though, we specif ically recognized that [ t]he record is void o f any evidence t hat [ the def endant] even attem

pted t o call h is attorney or t he courthouse by phone to inf orm them o f his car t r o u b l e o n th e mo r n ing of trial. The record also indicates t hat [ the d ef endant] lived approxim ately nine m iles f rom the courthouse, but he m ade no attem pt t o walk or f ind an alternative way

to travel the nine-m ile distance. Id

. at 912 (¶9). The def

endant argued t hat he did not appear f or the second day of trial due

to f e a r of arrest. Id

. a t 911 (¶8). He also did not appear f or his sentencing. Id. at 910 (¶4). ¶16. Here, the record does not show t h a t H a y n e s willf ully , voluntarily , and deliberately absented him self f

rom trial. Hay

nes contacted Collins and inf orm ed him o f h i s transportation dif f iculties. Collins inf

orm ed the circuit court t hat H ay nes c laim e d that his car h ad broken down. Collins also told the court that he did not receive a ring t one the m orning of trial when he called H ay

nes’s cell phone. According to Collins, w hen he c a l l ed Hay nes, the tone he heard w as “like when som eone has a pay - by -the-m inute phone and they ’re out of m oney on their p hone.” A s C o l l i n s was court appointed, the judge was a w are of Hay nes’s indigent

status. Despite these reasons f or Hay nes’s absence, the judge proceeded to t ry Hay nes in absentia. ¶17. F u r t h e r , t h i s case is dif f e rent f rom t he cases where trials in a bs e n t i a h a v e b e e n af f irm ed. Hay

nes was not given a continuance like the def endants in Jefferson and W ales

. Also, there is not any evidence in the record t o c o n t r a d ict H ay nes’s claim that he was not willingly absent f rom trial. He also did n ot have any outstanding warrants f or his arrest as

7the def

endant did in Robinson

. The record also shows that Hay nes contacted his attorney the day bef o re the trial unlike t h e d e f e ndants in W

illiams , Carroll , Blanchard , Barksdale , and Arnold

. P lus, in contrast to the def endant i n Arnold , Hay

nes appeared at his sentencing and reiterated that his car h a d b r oken down. Also, a t sentencing, H ay nes claim ed he had been unable to arrange o t her transportation due to his indigency and, unlike the Arnold def endant, who lived nine m iles f

rom t he c ourthouse, Hay

n es lived over f

if ty m iles f rom the courthouse.
In addition t o these dif

f erences between our p recedent a nd the case on appeal, Hay nes was prejudiced by

being tried in absentia. ¶18. Because of the prejudice of Hay n e s n o t b e i n g p r e sent to testif y in his def

ense, the judge abused his discretion by try ing Hay nes in absentia without f

i rst granting a continuance. Of f icer Jam es Dodson testif

ied that Hay

nes was alone when he searched h im

. Also, Dodson

was asked at trial whether he perf orm ed the search by h im self : “ Did y o u perf

orm a random cell search on . . . cell ten, unit six, zone B, on that date by y ourself ? ” Dodson replied, “Yes, sir

. ” C ollins brought this prejudice of a lack of w itnesses to the search to the judge’s attention when he stated, “ [ M]y c lient was m y witness.” Hay nes was prejudiced b y not being able to t estif

y in his def

ense, and the jud g e abused his discretion by not granting a continuance bef

ore try ing Hay

nes in absentia. ¶19. Also, the record dem onstrates t hat the judge c ould h ave continued Hay nes’s trial. At

t h e end of Hay

nes’s trial in absentia, the judge dism issed t he jury , telling t hem , “[ Y]o u ’ r e going to get

. . . tom orrow of f

. ” W hile the judge is t o be com m ended f or delay ing the start of the trial, the judge should have continued H ay nes’s t rial bef

o re proceeding w ith a trial in

8absentia. CONCLUSION

¶20. Because Hay

nes did n ot willf

ully , voluntarily , and deliberately absent him self

f rom the trial, the judge abused his d iscretion by p roceeding w ith the trial i n absentia without f irst granting a continuance. The judge was aware of Hay n es’s claim that h is vehicle had broken d o w n the day bef

ore trial. The judge also had knowledge of the distance Hay nes had to travel a nd his indigency

. Theref ore, we r everse Hay

nes’s conviction and rem and f or a new trial. ¶21. T H E JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW T RIAL. A L L COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY. LEE, C .J., IRVING, P.J., ISHEE, FAIR AND G REENLEE, JJ., CONCUR. BARNES, J ., CONCURS I N P ART AND I N THE R ESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., CARLTON AND W ILSON, JJ., D ISSENT WITHOUT SEPARATE WRITTEN OPINION.

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