State of Louisiana Versus Alcus A. Smith A.K.A. "Bug" A.K.A. "Bull"

STATE OF LOUISIANA NO. 20-KA-177

VERSUS FIFTH CIRCUIT

ALCUS A. SMITH COURT OF APPEAL
A.K.A. "BUG" A.K.A. "BULL"
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-951, DIVISION "M"
HONORABLE RAYMOND C. BIGELOW, JUDGE PRO TEMPORE

June 02, 2021

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Susan M. Chehardy,
Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED
JJM
SMC
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
Douglas W. Freese
Seth W. Shute

COUNSEL FOR DEFENDANT/APPELLANT,
ALCUS A. SMITH A.K.A. "BUG" A.K.A. "BULL"
Jane L. Beebe

MOLAISON, J.

This case returns before us following a remand to the district court.1 In our

previous opinion, we determined that the evidence was sufficient to uphold the

defendant’s conviction for second-degree murder, but pretermitted reviewing the

defendant’s second assignment of error regarding other crimes evidence pending

the district court’s determination of whether the jury verdict, in this case, was

unanimous. Upon remand, after a hearing on May 20, 2021, the district court

issued a per curiam which concluded that the jury verdict was, in fact, unanimous.

Based upon that finding, we now turn to the defendant’s remaining assignment of

error. For the following reasons, the defendant’s conviction is affirmed.

ASSIGNMENT OF ERROR

The trial court erred in granting the state’s motion to introduce evidence of

other crimes that were more prejudicial than probative.

LAW AND ANALYSIS

Defendant argues that the trial court erred in granting the State’s motion to

introduce other crimes evidence of a multi-year federal investigation into the

Harvey Hustlers gang. He contends, in summary, that he was “tangentially

associated with” the drug-dealing enterprise and that any evidence from that

separate investigation was extremely prejudicial and used only to portray him as a

“bad person” who killed Mr. Hall.

The State filed a Notice of Intent to Use Evidence of Other Crimes on June

7, 2017, according to La. C.E. art. 404(B), about the defendant’s prior convictions

for racketeering, conspiracy to distribute cocaine, and possession with intent to

distribute cocaine. At the subsequent hearing on the motion, the State argued that

the convictions offered a context for the defendant’s conduct as a “long-term major

1
For a full recitation of the facts and procedural history in this matter, please refer to this Court’s prior
opinion.
20-KA-177 1

drug dealer” who dealt “violently with real or perceived ‘slights’ from others.”

The State further argued that the prior convictions showed both specific intent and

motive for the current offense, and asserted that the murder of Mr. Hall was in

furtherance of the racketeering enterprise and the conspiracy to distribute narcotics.

Specifically, the State asserted that the defendant's participation in the Harvey

Hustlers was relevant to show his motive to protect his reputation and the

preservation of his drug trafficking business.

Generally, evidence of other crimes or bad acts committed by a criminal

defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Prieur, 277

So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to

prove a material issue and has independent relevance other than to show that the

defendant is of bad character, it may be admitted by certain statutory and

jurisprudential exceptions to this rule. State v. Williams, 10-51 (La. App. 5 Cir.

7/27/10), 47 So.3d 467, 474, writ denied, 10-2083 (La. 2/18/11), 57 So.3d 330.

Evidence of other crimes is admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or accident, or when it

relates to conduct that constitutes an integral part of the act or transaction that is

the subject of the present proceeding to such an extent that the State could not

accurately present its case without reference to the prior bad acts. La. C.E. art.

404(B)(1); State v. Lawson, 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

State v. Charles, 00-1586 (La. App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close

connection between the charged and uncharged conduct is required to ensure that

“the purpose served by admission of the other crimes evidence is not to depict the

defendant as a bad man, but rather to complete the story of the crime on trial by

proving its immediate context of happenings near in time and place.” Id.

The defendant bears the burden to show that he was prejudiced by the

admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir.
20-KA-177 2

12/28/22), 83 So.3d 178, 187, writ denied, 12-282 (La. 5/18/12), 89 So.3d 1191,

cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). Even if the

other crimes evidence was inadmissible, the erroneous admission of other crimes

evidence is a trial error subject to harmless error analysis on appeal. State v.

Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining

whether an error is harmless is whether the verdict rendered in the case “was surely

unattributable to the error.” Id. at 100.

As discussed in our prior opinion, there was sufficient evidence to convict

the defendant:

Upon review, we find that the State presented sufficient
evidence to negate any reasonable probability of
misidentification of the defendant. Mr. Carter testified that he
was inside the vehicle and observed the defendant and the other
two individuals shoot and kill Mr. Hall. Ballistic evidence
confirmed that three weapons were used at the scene. Mya
testified that she observed Mr. Hall get into the vehicle with the
defendant shortly before the murder. Mr. Carter testified that
the defendant wanted to retaliate against Mr. Hall. The
surveillance video showed a dark-colored vehicle and a light-
colored vehicle, which matched the descriptions of the vehicles
of the defendant and the other two individuals, pull into the
neighborhood and then leave shortly after the murder. Phone
records confirmed pertinent conversations between Mr. Hall
and Mr. Bird and between the defendant and Mr. Carter shortly
before the murder. Additionally, the evidence showed that the
defendant had the specific intent to kill when he and the other
individuals pointed their guns and fired them at Mr. Hall,
thereby causing Mr. Hall to sustain nine gunshot wounds and
killing him.

We also noted in our prior opinion the evidence which illustrated that the

defendant’s motive for killing Mr. Hall was the belief that Mr. Hall had set him up

to be robbed during a drug deal.2 To that end, evidence of the defendant’s

activities as a drug dealer was relevant.

2
Derenne Carter testified at trial that he knew Donte Hall, the victim in this case, and was present when
Mr. Hall was killed. Mr. Carter further testified that before Mr. Hall’s death, he participated in a drug
trafficking business with the defendant, Alcus Smith, and other individuals. He explained that before Mr.
Hall’s death, the defendant told him that he wanted to kill Mr. Hall because he believed that Mr. Hall had
set him up to be robbed during a drug deal.
20-KA-177 3

The record also reflects that the State introduced a volume of evidence related to

the investigation of the Harvey Hustlers. While arguably some of the 404(B)

evidence could be considered extraneous and may have been confusing at trial, the

jury was given a proper limiting instruction by the trial court regarding that same

evidence.3 To the extent that the trial court might have erred in admitting portions

of the other crimes evidence, we find such an error to be harmless in light of the

overwhelming evidence of the defendant’s guilt presented at trial.

ERROR PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990). We note that while the transcript reflects that the trial

judge advised the defendant that he had “two years to file a post-conviction relief

in this matter,” the sentencing minute entry reflects that the trial judge advised the

defendant that he had “two (2) years after the judgment of conviction and sentence

has become final to seek post-conviction relief.” The transcript generally prevails.

State v. Lynch, 441 So.2d 732, 734 (La. 1983).

If a trial court fails to completely advise a defendant according to La.

C.Cr.P. art. 930.8, this Court may correct this error by informing the defendant of

the applicable prescriptive period for post-conviction relief in its opinion.

Accordingly, we advise the defendant that no application for post-conviction relief,

including applications that seek an out-of-time appeal, shall be considered if filed

more than two years after his conviction and sentence have become final under the

provisions of La. C.Cr.P. arts. 914 or 922. See State v. Oliver, 14-428 (La. App. 5

3
The jury charge read as follows:

Evidence that the defendant was involved in the commission of an offense other than the
offense for which he is on trial is to be considered only for a limited purpose. The sole
purpose for which such evidence may be considered is whether it tends to show: motive
and intent. Remember the accused is on trial only for the offense charged. You may not
find him guilty of this offense merely because he may have committed another offense.
20-KA-177 4

Cir. 11/25/14), 165 So.3d 970, 978, writ denied, 14-2693 (La. 10/9/15), 178 So.3d

1001.

DECREE

Accordingly, for the foregoing reasons, the defendant’s conviction and

sentence are affirmed.

AFFIRMED

20-KA-177 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 2, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-177
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE L. BEEBE (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
DISTRICT ATTORNEY
DOUGLAS W. FREESE (APPELLEE)
SETH W. SHUTE (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053