State of Louisiana v. Carlos M. Smith

Judgment rendered November 8, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,510-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

Versus

CARLOS M. SMITH Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 354,236

Honorable John D. Mosely, Jr., Judge

*****

CARLOS M. SMITH Pro Se, Appellant

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

REBECCA ARMAND EDWARDS
TRENEISHA JACKSON HILL
SENAE DENEAL HALL
Assistant District Attorneys

*****

Before STONE, STEPHENS, and ELLENDER, JJ.

STEPHENS, J.

This criminal appeal arises out of the First Judicial District Court,

Parish of Caddo, State of Louisiana, the Honorable John Mosely, Judge,

presiding. A unanimous jury convicted the defendant, Carlos M. Smith, of

two counts of attempted second degree murder. He was sentenced to 75

years at hard labor without benefits on each count, with the sentences to run

consecutively. Smith early on in the process opted (and was allowed by the

trial court) to proceed to trial pro se and without the assistance of standby

counsel. The instant appeal has been pursued by a pro se Smith, who

declined the assistance of an appellate project attorney on appeal.

FACTS/PROCEDURAL HISTORY

The State of Louisiana filed a bill of information against the

defendant, Carlos M. Smith (“Smith”), on January 9, 2018, charging him

with two counts of attempted second degree murder, violations of La. R.S.

14:27 and 14:30.1, in connection with the shootings of Richard Howard and

George Robinson that occurred on or about December 6, 2017, in

Shreveport, Louisiana. Smith was also charged with one count of possession

of a firearm or carrying of a concealed weapon by a convicted felon, a

violation of La. R.S. 14:95.1, on the same date.

On January 9, 2018, the trial court found probable cause for the

charges against Smith following a preliminary examination. On that same

date, Smith filed a motion to represent himself and the trial court, after a

brief colloquy, including an offer to appoint standby counsel (which Smith

refused), granted Smith’s request. Smith waived arraignment and pled not

guilty.

On December 16, 2020, the State filed an amended bill of information

dropping the third count (the possession of a weapon by a convicted felon

charge) and, after his arraignment on the amended bill, Smith pled not guilty

on January 4, 2021.

Jury selection began on April 5, 2021, and a jury was empaneled on

April 7, 2021. Trial began on April 13, 2021. The following is a brief

summary of the facts.

All of the people involved in this incident grew up together in a small

section of Cedar Grove known as Pine Valley. On the evening of the

shooting, George “Bug” Robinson had just gotten off work and had walked

to his home at 7232 Bethany Drive in Shreveport, Louisiana. George and

his wife Zandier lived next door to his parents, whose home was located at

7236 Bethany Drive.

Richard Howard testified that he and George had plans to “bring in

the holidays” that night. Richard was homeless at the time and sometimes

stayed with George’s father, but noted he was not doing so at the time of the

shootings. On the night of December 5, Richard and George were outside

when Smith walked up. According to Richard, Smith asked George to

borrow some money. George went to his dad’s house to get some. Richard

testified he was standing between George’s house and George’s father’s

truck. The only people outside at the time were Richard and Smith. Richard

saw Smith walk up behind him. From that point “whoever” shot him eased

from behind him, hit him on the head, then shot him.

On cross-examination, Smith spent an inordinate amount of time

asking Richard about the community’s perception of Smith as a criminal and

what Richard had told the investigating officer about Smith. He also asked
2

Richard about an alleged incident in which Smith assaulted one or both of

Richard’s nieces. On redirect, the prosecutor asked Richard whether he

knew that Smith had a conviction for domestic abuse battery. Smith

objected, and the trial court sustained his objection.

George testified that he had borrowed money from Carlos Smith a few

days previously to buy some “mojo,” and he had told Smith to come by his

house on payday so he could pay him back. George went to his father’s

house next door to see if he had any change. As he was walking, George

saw Richard Howard and Smith standing by George’s father’s black truck—

Smith was out there waiting for him.

George went out to tell Smith he couldn’t get any change. Smith

thought he was playing. George gave Richard some crack, then walked back

across his yard and stood by the edge of the street. He saw Richard and

Smith talking. George testified that he then saw Smith shoot Richard in the

head.

Zandier Robinson testified that she had been outside trying to get her

husband George back inside the house so he wouldn’t blow all of their bill

money that night. Before she could get the door closed, she saw Smith walk

up behind Richard and shoot him in the head. Zandier was able to describe

Smith’s clothing from that evening as a black trench coat and black hat. She

was emotional during her testimony and related that she has been in

counseling since the shootings. Also, she noted that she has relocated

following the traumatic events of that night. George and Smith started

walking down the street. George related that he was nervous. A man joined

them and as he and George were talking, George heard a shot. As he turned

around, Smith was “all over [him].” George took off running with Smith
3

chasing him, “steadily shooting.” Eventually, George fell and played dead.

Smith’s gun was a small black revolver, like a six-shot .32 or .38.

George testified that he went to a neighbor’s house and got him to call

911, then lay on the ground in his carport until EMTs and police showed up.

When he was able to answer questions, he told police that Carlos Smith had

shot him. George stated that he also told officers that Smith had shot

Richard Howard.1

Smith took the stand in his own defense. He related to the jury his

theory of the case that he was the victim of a conspiracy, an easy scapegoat

because he supposedly had his grandmother identify one of “their” friends as

a suspect in a crime, which allegedly caused him to be labelled a snitch in

“their” neighborhood. Smith also related that he was the victim of several

previous crimes which he contended the police did not take seriously or

properly investigate that were related to the shootings of December 6, 2017.

A 12-person jury returned unanimous guilty verdicts on the two

counts of attempted second degree murder. Smith filed motions for post-

verdict judgment of acquittal and new trial, both of which were denied by

the trial court.

On May 12, 2021, the State filed a multiple offender bill charging

Smith as a second felony offender. In the bill, Smith’s first felony offense

was alleged to be an aggravated battery charge that he pled guilty to on

November 9, 2005, and was sentenced to a six-year hard labor sentence.

The habitual offender bill alleged that the second felony offense is that

1
Smith was confrontational with both Zandier and George, proposing that they
had concocted a story of him as the shooter to cover for the fact that George was actually
the perpetrator.

4

which Smith was convicted of on April 13, 2021.2 Smith continued to

represent himself, and, based upon his prior representation, the trial court

allowed him to do so.

Smith entered a plea of not guilty to the multiple offender bill. On

May 25, 2021, the trial court held a hearing on Smith’s motions for post-

verdict judgment of acquittal and new trial; both motions were denied the

day of the hearing. At that time, Smith filed a motion to quash the habitual

offender bill. A hearing on the multiple offender bill was held on June 3,

2021. After the hearing, the trial court denied Smith’s motion to quash the

multi bill and adjudicated him a second felony offender.

Smith was sentenced on June 16, 2021. Consecutive sentences of 75

years at hard labor without benefits were imposed on each count. Smith

filed a motion seeking reconsideration of the multiple offender adjudication

and sentencing on July 18, 2021. This motion was denied by the trial court.

Smith filed the instant appeal, as well as a plethora of motions once his

appeal was lodged.

DEFENDANT’S ARGUMENT

Defendant has filed no appellate brief. Instead, Smith has filed a

“Writ of Deceit,” with several supplemental filings in support (all of which

total approximately 300 pages). Smith refused to file a brief because he

claims that the record lodged by the trial court on December 9, 2021, is

“adulterated” and “interpolated” to make it appear that he fumbled his own

jury trial. Specifically, that “interpolaters” compromised his questions and

arguments, which were “majorly prewritten and eloquently designed,” by

2
Smith was convicted of the instant two offenses, attempted second degree
murder, on April 13, 2021.
5

“rearranging and additioning as well as extracting particular statements and

objections” in favor of the State. Smith claims fraud on the part of one of

the court reporters, the trial judge, and the assistant D.A.

Among the relief sought by Smith in his Writ of Deceit: judicial

notice of the contents of his motions for mistrial, post-verdict judgment of

acquittal, and new trial; the granting of his Writ of Deceit and a concomitant

stay of his conviction and sentence with a release on his own recognizance

until his exoneration or new trial which is warranted under “Estoppel by

Record.”

After receiving the State’s brief urging this Court to perform only a

review of the record for errors patent, Smith was motivated to file a

supplement to his Writ of Deceit. Therein, he contends that the appellate

record is “an infection to the truth” that, as constituted, deprives him of his

right to a complete record. According to Smith, the false demonstration (the

appellate record) impedes him from correctly filing his brief because the

record as lodged contains too much incorrect information— “only brand

new transcripts will cure the infections deliberately spread throughout the

Record lodged 12-09-2023.”3

Smith, however, has argued in his Writ of Deceit that the trial court

erred in failing to grant a mistrial after the State questioned a witness about

an alleged conviction of the defendant’s. Smith points out that he promptly

3
Smith has argued that his appeal has been pending for a long time, but he blames
it on the “infected record.” He is correct about his appeal being here a long time before it
was docketed. However, the problem was NOT an “infected” record, it was that the trial
court needed to hold a proper Faretta hearing to determine Smith’s ability to continue his
self-representation on appeal. A second issue was Smith’s refusal to comply with
procedural rules governing appeals.

6

objected.4 Smith also notes that he filed a motion for mistrial which he

claims should have been granted.5

Smith has also filed a plethora of additional motions in this Court, to

wit: Motion to Proceed In Forma Pauperis on Appeal; Pro Se Application

for Expedited Consideration; Motion to stay Proceedings; Motion to

Remand Briefing Order; Motion to Reconsider the Priority of Appellant’s

Motion to Proceed In Forma Pauperis; Motion to Complete the Record;

Motion to Receive a Copy of the Completed Record; Supplement to Motion

to Alter or Amend (the Trial Court Record); “Death Knell Exception”;

Motion to Objection to the Record Lodged on 12-9-21; Rehearing (to re-

urge objections and issues previously filed before the Court in various

motions); Motion for New Trial; Motion to Strike the Transcripts of Record

Lodged 12-9-21; and, Motion to Declare State Impediment.

THE STATE’S ARGUMENT

In its brief, the State urges this Court to limit its review to one for

errors patent.

In its brief the State pointed to a few instances of potential errors

patent:

(1) “Error, if any” in the trial court’s advising Smith of
his rights regarding the habitual offender proceedings;
and
(2) The trial court’s failure to use the multiple offender
law in effect at the time of Smith’s offense in sentencing
him.

4
Smith is correct on this point. Smith in fact did make an actual objection which
was sustained by the trial court based upon his argument. The trial court record,
however, correctly reflects his objection.
5
Smith made several motions for mistrial, all based on the prosecutor’s improper
reference to an alleged domestic abuse battery conviction. The trial court allowed Smith
and the prosecutor to argue all of them.

7

The State contends that neither of these is error patent, but if either is

found to be so, it is harmless error. Thereafter, in response to an order

issued by the panel, the State filed a brief addressing the trial court’s

handling of the prosecutor’s improper reference to an alleged conviction of

Smith’s during another witness’s testimony. According to the State, any

error by the ADA, which occurred on redirect examination of the witness, or

in the trial court’s handling of said error, is harmless in light of the record.

DISCUSSION

Because Smith is a pro se defendant, 6 we have broadly construed his

filings and although he failed to submit a brief per se, this Court has read his

Motion in Deceit for any potential appellate arguments therein. We have

not, however, thrown applicable substantive and procedural law out the

window. Smith was not coerced into self-representation. In fact, the trial

judge, on more than one occasion, offered him the assistance of standby

counsel, which Smith consistently refused. Be that as it may, in Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the U.S.

Supreme Court noted that, although a defendant has a right to counsel at

trial, counsel cannot be forced on a defendant if he or she waives that right:

It is undeniable that in most criminal prosecutions, defendants
could better defend with counsel’s guidance than by their own
unskilled efforts. But where the defendant will not voluntarily
accept representation by counsel, the potential advantage of a
lawyer’s training and experience can be realized, if at all, only
imperfectly. To force a lawyer on a defendant can only lead him
to believe that the law contrives against him[.] The defendant,
and not his lawyer or the State, will bear the personal
consequences of a conviction. It is the defendant, therefore,
who must be free personally to decide whether in his particular

6
This Court remanded the matter twice for the trial court to conduct a Faretta
hearing for the determination of Smith’s ability to continue representing himself on
appeal. At the last hearing, after expressing his desire to continue to act as his own
attorney, Smith declined the appointment of an attorney from the Louisiana Appellate
Project.
8

case counsel is to his advantage. And although he may conduct
his own defense ultimately to his own detriment, his choice
must be honored out of “that respect for the individual which is
the lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-
351, 90 S. Ct. 1057, 1064, 25 L. Ed. 2d 353 (Brennan, J.,
concurring). (footnote omitted).

Faretta, 422 U.S. at 834, 95 S. Ct. at 2540-2541; State v. Palmer, 06-

1375, p. 3 (La. App. 4 Cir. 7/18/07), 963 So. 2d 466, 468.

Trial Transcripts/Record

We will first address Smith’s arguments regarding the record.

In Louisiana, a defendant convicted of a crime triable by a jury has a

constitutional right of appeal as to questions of law. La. Const. art. V,

§ 10; La. C. Cr. P. art. 912.1; State v. Small, 13-1334, p. 17 (La. App.

4 Cir. 8/27/14), 147 So. 3d 1274, 1285, writ denied, 14-1930 (La.

4/24/15), 169 So. 3d 354. To assure that appeals are properly and

thoroughly considered, the Louisiana Constitution provides a

complementary constitutional right which guarantees “judicial review

based upon a complete record of all evidence upon which the

judgment is based.” La. Const. art. I, § 19; State v. Small, supra. The

scope of what constitutes a “complete record” under Article I, Section

19 encompasses “all of the proceedings, including the examination of

prospective jurors, the testimony of witnesses, statements, rulings,

orders, and charges by the court, and objections, questions,

statements, and arguments of counsel,” La. C. Cr. P. art. 843, as well

as “exact copies of all documentary evidence and other evidence … in

the order in which such evidence was filed.” Uniform Rules, Courts

of Appeal, Rule 2-1.7. La. C. Cr. P. art. 843 further provides that in

felony cases, it is the clerk or court stenographer who shall record all

9

of the proceedings. The trial judge is duty-bound to see that the court

reporter makes a true, complete, and accurate record of the trial. State

v. Landry, 97-0499, p. 3 (La. 6/29/99), 751 So. 2d 214, 216; State v.

Small, supra. See also, La. R.S. 13:961(C)(1).

It is essential in an adversarial legal system that a dependable record

be provided so that errors by the trial court may be reviewed, assigned, and

supported by appellate counsel. State v. Small, 13-1334, p. 18, 147 So. 3d at

1286; see, Hardy v. United States, 375 U.S. 277, 280 n. 3, 84 S. Ct. 424,

427, 11 L. Ed. 2d 331 (1964); State v. Robinson, 387 So. 2d 1143, 1144 (La.

1980). Additionally, a complete review ensures that the appellate court may

review the transcripts for any errors committed during trial. Id. See also,

State v. Walker, 02-1350, p. 12 (La. App. 4 Cir. 4/9/03), 844 So. 2d 1060,

1067, writ denied, 03-1335 (La. 12/19/03), 861 So. 2d 553. La. C. Cr. P. art.

920 sets forth the scope of our appellate review, which is restricted to the

consideration of errors on appeal to those “designated in the assignment of

errors,” and those “discoverable by a mere inspection of the pleadings and

proceedings and without inspection of the evidence.” State v. Small, supra.

In the instant case, as he did in the trial court, Smith refused the

assistance of counsel, and has made the focus of his pleadings in this Court

alleged discrepancies in and omissions from the trial court record. Not every

omission from a record on appeal constitutes a violation of constitutional

rights warranting reversal of a conviction and the ordering of a new trial.

Id.; State v. Walker, 02-1350, p. 11, 844 So. 2d at 1066. Sometimes, an

incomplete record may be adequate for full appellate review. State v.

Hawkins, 96-0766, p. 8 (La. 1/14/97), 688 So. 2d 473, 480; State v. Small,

10

supra; State v. Bright, 00-1255, p. 7 (La. App. 4 Cir. 2/6/02), 809 So. 2d

1112, 1116-17, writ denied, 02-0698 (La. 11/1/02), 828 So. 2d 563.

Even though reversible error has been found when material portions

of the record are unavailable, incomplete, or erroneous, a “slight inaccuracy

in a record or an inconsequential omission from it which is immaterial to a

proper determination of the appeal” does not require reversal of a

conviction. State v. Draughn, 05-1825, p. 63 (La. 1/17/07), 950 So. 2d 583,

625, cert. denied, 522 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007);

State v. Allen, 95-1754 (La. 9/5/96), 682 So. 2d 713, 722; State v. Ford, 338

So. 2d 107, 110 (La. 1976). An incomplete record may be adequate for

appellate review. State v. Campbell, 06-0286, p. 99 (La. 5/21/08), 983 So.

2d 810, 873, cert. denied, 555 U.S. 1040, 129 S. Ct. 607, 172 L. Ed. 2d 471

(2008); State v. Castleberry, 98-1388, p. 29 (La. 4/13/99), 758 So. 2d 749,

773, cert. denied, 528 U.S. 893, 120 S. Ct. 220, 145 L. Ed. 2d 185 (1994);

State v. Hawkins, 96-0766, p 8 (La. 1/14/97), 688 So. 2d 473, 480. A

defendant will not be entitled to relief on the basis of an incomplete record

absent a showing that he was prejudiced by the missing portions of the

record. Id. With regard to missing transcripts or pretrial proceedings, where

minute entries show relatively minor events, or where there are “gaps” in the

record, such inconsequential omissions merit no relief. State v. Campbell,

06-0286, p. 101, 983 So. 2d at 873; State v. LaCaze, 99-0584, p. 17 (La.

1/25/02), 824 So. 2d 1063, 1076-77, cert. denied, 537 U.S. 865, 123 S. Ct.

263, 154 L. Ed. 2d 110 (2002).

Smith has made a plethora of claims about the record, none of which

he has supported by anything but baseless rhetoric and argument. They

include claims such as: (1) every volume of his jury trial transcripts was
11

doctored and forged; (2) some of his objections or arguments were

“rearranged” or rephrased as something they weren’t originally; (3) some of

the testimony of the witnesses was changed; (4) the audio recording is

needed because the transcripts are too perfect with guilty words he did not

speak; (5) the court reporters changed while the State was still producing its

witnesses; (6) the transcripts were minimized and rearranged to wrongly

reflect which witnesses he needed (and didn’t need) for his defense case; (7)

the improper comment made by ADA Hill was actually not made during the

redirect testimony of witness Richard Howard, but was made while Smith

was speaking.7 Unsupported speculations such as those raised by Smith

cannot stand as the basis for relief. Nothing in the record supports Smith’s

complaints of missing, altered, or rearranged testimony, objections or

argument.

Motion for Mistrial

La. C. Cr. P. art. 775 provides that, upon motion of a defendant, a

mistrial shall be ordered, and in a jury trial the jury dismissed, when

prejudicial conduct in or outside the courtroom makes it impossible for the

defendant to obtain a fair trial, or where authorized by Article 770 or 771.

La. C. Cr. P. art. 770(2) provides that, upon motion of a defendant, a mistrial

shall be ordered when a remark or comment, made within the hearing of the

jury by the judge, district attorney, or a court official, during the trial or in

argument, refers directly or indirectly to another crime committed or alleged

to have been committed by the defendant as to which evidence is not

admissible.

7
Smith actually admits in the record that the comment (it was a question) came
during Richard Howard’s testimony. R. p. 1910.

12

Generally, evidence of other acts of misconduct is not admissible

because it creates the risk that the defendant will be convicted of the present

offense simply because the unrelated evidence establishes him or her as a

“bad person.” State v. Roberson, 46,697 (La. App. 2 Cir. 12/14/11), 81 So.

3d 911, writ denied, 12-0086 (La. 4/20/12), 85 So. 3d 1270; State v.

Richardson, 46,360 (La. App. 2 Cir. 6/22/11), 71 So. 3d 492, writ denied,

11-1777 (La. 4/27/12), 86 So. 3d 615. This rule of exclusion stems from the

“substantial risk of grave prejudice to the defendant” from the introduction

of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So. 2d

126 (La. 1973); State v. Roberson, 46,697, p. 15, 81 So. 3d at 921.

Even if a mistrial was warranted, such as where other crimes evidence

is erroneously admitted, the failure to grant a mistrial would not result in an

automatic reversal of the defendant’s conviction but would be a trial error

subject to a harmless error analysis. State v. Ruiz, 06-1755, p. 7 (La.

4/11/07), 955 So. 2d 81, 86; State v. Givens, 99-3518 (La. 1/17/01), 776 So.

2d 443; State v. Johnson, 94-1379, p. 17 (La. 11/27/95), 664 So. 2d 94, 102;

State v. Lewis, 51,672, p. 13 (La. App. 2 Cir. 11/15/17), 245 So. 3d 233,

244. Trial error occurs during the presentation of the case to the trier of fact

and may be quantitatively assessed in the context of the other evidence to

determine whether its admission at trial is harmless beyond a reasonable

doubt. State v. Ruiz, supra; State v. Maise, 00-1158, p. 8 n. 5 (La. 1/15/02),

805 So. 2d 1141, 1148, n. 5, citing Arizona v. Fulminante, 499 U.S. 279,

307-11, 111 S. Ct. 1246, 1264-65, 113 L. Ed. 2d 302 (1991).

An error is harmless when the guilty verdict was surely unattributable

to the verdict. State v. Robertson, 06-1537 (La. 1/16/08), 988 So. 2d 166.

Factors to be considered include the importance of the evidence to the state’s
13

case, whether the testimony was cumulative, the presence or absence of

additional corroboration of the evidence, the extent of cross-examination

permitted, and the overall strength of the state’s case. State v. Walker,

55,255, pp. 24-25 (La. App. 2 Cir. 8/9/23), 369 So. 3d 488, 501; State v.

Dillard, 45,633, p. 13 (La. App. 2 Cir. 11/3/10), 55 So. 3d 56, 64, writ

denied, 10-2853 (La. 11/18/11), 75 So. 3d 454.

As noted above, during the redirect of victim Richard Howard, the

prosecutor improperly asked Richard whether he was aware that Carlos

Smith had a conviction for domestic abuse battery dated December 14,

2015.8 The following is excerpted from the record:

Smith: That’s an objection, Your Honor.
Richard: I done heard about it.
Smith: And that—
Richard: I done—
Smith: Because—that’s an objection, Your Honor. And
that is an absolute lie.
Prosecutor: If I may, Your Honor, not only is that a part of his
conviction, we have—we show that it’s a part of
his criminal history. But he opened the door when
he asked this witness whether or not he abused his
niece, whether or not he saw him abuse his niece.
Smith: Your Honor, again, the door did not open on that
there, at all. And this is an absolute lie. And then,
matter of fact, come with your proof.
* * *
The Court: All right. So I’ll sustain the objection—
Prosecutor: Your Honor—
The Court: --based on the argument.

Smith, however, did not contemporaneously move for or file a written

motion for mistrial. Instead, he waited until the end of the next day’s

testimony to file a written motion for mistrial, which was vigorously

defended by the State’s attorney as untimely. The trial judge denied Smith’s

8
In fact, there is no such conviction on that date, for domestic battery or any other
offense.
14

motion but offered to admonish the jury, which Smith apparently did not

object to, and on the following day, the following instruction was given to

the jury:

The Court: [L]et me first admonish you, during the testimony
of Mr. Richard Howard the State made reference
to the defendant having a conviction for domestic
abuse battery. I’m going to admonish you to
totally disregard that.

Smith, however, later objected to the admonition and filed additional

motions for mistrial, all of which were denied by the trial court.

It was during the redirect examination of the State’s first witness,

Richard Howard, that the objectionable question was asked by the

prosecutor, after extensive questioning of the witness on cross-examination

by Smith about his own character in the community. We agree with the

State that Smith certainly opened the door to the issue of his character in the

community with extensive questions to Richard as to his reputation among

their neighbors and even the witness himself, with Smith’s questions about

an incident involving him and Richard’s nieces, but disagree vehemently

that the door was opened so wide as to withstand a question about a non-

existent conviction, particularly in light of the fact that the misinformation

presented to the jury through the question was not clarified by the trial court

but was left to stand, although an admonishment to disregard the question

was given to the jury.

At the time the objectionable comment was made, the jury should

have been excused, and the prosecutor should have been taken to task for her

violation of La. C. Cr. P. art. 770(2). Smith should have been given the

option for an admonishment at that time instead of after his untimely motion

for mistrial was made, some six witnesses later. Had Smith opted for
15

standby counsel, he would have been advised to move for a mistrial at the

time he made his objection. However, Smith chose self-representation,

despite the trial court’s efforts to provide him with the assistance of an

attorney for just such a procedural predicament. In this situation, Smith

either deliberately decided not to contemporaneously move for mistrial, or

he realized his mistake after the fact and filed the motion the following day.

Nonetheless, while Smith’s timely objection preserved the issue for review,

given the overwhelming testimony as to Smith’s guilt, including the

testimony of three eyewitnesses, application of the harmless error rule

mandates that this Court find that any error regarding the State’s reference to

inadmissible other crimes evidence and the trial court’s handling of said

error is harmless.

Error Patent Review

La. C. Cr. P. art. 920 provides that the scope of appellate review

extends to assigned errors and errors discoverable by a mere inspection of

the pleadings and proceedings without inspection of the evidence. Absent

any assigned error, review is limited to error patent. The record, for

purposes of error patent review, includes the caption, the time and place of

the holding of the court, the indictment or information and the endorsement

thereon, the arraignment, the plea of the accused, the bill of particulars filed

in connection with a short form indictment or information, the mentioning of

the impaneling of the jury, the verdict, and the judgment or sentence. State

v. Oliveaux, 312 So. 2d 337 (La. 1975); State v. Reed, 46,147 (La. App. 2

Cir. 3/2/11), 58 So. 3d 1006.

We have examined the record for errors patent and the only potential

ones we found related to the multiple offender hearing. A multiple offender
16

proceeding is “merely part of sentencing.” State v. Vaughn, 22-00214, p. 5

(La. 5/5/23), 362 So. 3d 363, 366; State v. Langendorfer, 389 So. 2d 1271,

1276-77 (La. 1980). A defendant is adjudicated a habitual offender as a

result of prior felony convictions. The sentence to be imposed following a

habitual offender adjudication is simply an enhanced penalty for the

underlying conviction. State v. Vaughn, supra; State v. Parker, 03-0924, p.

15 (La. 4/14/04), 871 So. 2d 317, 326.

It is well settled that the law in effect at the time of the offense is

determinative of a defendant’s punishment, including for habitual offender

proceedings. State v. Lyles, 19-00203, p. 3 (La. 10/22/19), 286 So. 3d 407,

409; State v. Parker, 03-0924, p. 16, 871 So. 2d at 326.

For the defendant to receive an enhanced penalty under La. R.S.

15:529.1, the State must prove prior felony convictions and then prove

the defendant is the same person who committed the prior felonies.

State v. Brown, 11-1656 (La. 2/10/12), 82 So. 3d 1232; State v.

Blackwell, 377 So. 2d 110 (La. 1979). Both the identity and the prior

conviction(s) must be proven beyond a reasonable doubt. La. R.S.

15:529.1(D)(1)(b); State v. Brown, supra.

Failure to advise a defendant of his constitutional rights to remain

silent, to a formal hearing, and to have the State prove that he is a multiple

offender during a habitual offender proceeding is error patent, but may be

considered harmless error. State v. Taylor, 53,934 (La. App. 2 Cir. 5/5/21),

321 So. 3d 486; State v. Lynn, 52,125 (La. App. 2 Cir. 8/15/18), 251 So. 3d

1262, writ denied, 18-1529 (La. 4/15/19), 267 So. 3d 1129; State v. Goosby,

47,772 (La. App. 2 Cir. 3/6/13), 111 So. 3d 494, writ denied, 13-0760 (La.

App. 2 Cir. 11/1/13), 125 So. 3d 418; State v. Delaney, 42,990 (La. App. 2
17

Cir. 2/13/08), 975 So. 2d 789; State v. Mason, 37,486 (La. App. 2 Cir.

12/10/03), 862 So. 2d 1077.

The failure to advise of these rights is not considered reversible error

where the defendant’s habitual offender status is established by competent

evidence offered by the State at a hearing rather than by admission of the

defendant. State v. Taylor, 53,934, p. 18, 321 So. 3d at 496.

The State filed a bill charging Smith as a second felony offender on

May 12, 2021. Therein, Smith’s first felony offense was alleged to be

aggravated battery, to which he pled guilty on November 9, 2005, and his

second felony was alleged to be the instant attempted second degree murder

conviction(s). The court minutes from May 12, 2021, show that Smith,

present without counsel, waived arraignment and pled not guilty to the

habitual offender bill of information. They do not, however, indicate that

the trial court advised Smith of his rights as required by La. R.S. 15:529.1.

The trial court set a hearing date for May 25, 2021, for Smith’s pending

motions.

On May 25, 2021, the trial court heard and considered Smith’s

motions for new trial and post-verdict judgment of acquittal, both of which

were denied. On that same date, Smith filed a motion to quash the habitual

offender bill. A hearing was held on June 3, 2021, on the motion to quash

and on the multiple offender bill itself. The motion to quash was denied. At

the hearing, the State presented the testimony of two witnesses. The first

was Probation and Parole Officer Christopher Heun, who testified that he

was familiar with Smith, having supervised him from May 2017 to January

2018 on a charge of possession of a weapon by a convicted felon. Ofc.

Heun testified that he was familiar with Smith’s criminal history, including
18

his prior aggravated battery conviction and the fact that he had been on

parole supervision for that offense from April 9, 2010, until September 9,

2010. Therefore, the State proved the discharge date on Smith’s prior

aggravated battery conviction and that it was within ten years of the date of

the instant offenses of attempted second degree murder (December 6, 2017)

for purposes of his second felony offender adjudication.9 The State also

presented certified copies of the bill of information, minutes, and Smith’s

fingerprints from his aggravated battery conviction. The second witness,

Lieutenant Gary Baird of the Caddo Sheriff’s Office, was qualified as a

fingerprint comparison expert. Lt. Baird stated that Smith’s prints taken in

court that day matched the prints from the bill in Docket No. 238202 from

Smith’s aggravated battery conviction. While the record does not show that

the trial court informed Smith of his rights prior to the habitual offender

hearing, such failure does not constitute reversible error, since the State

clearly established Smith’s habitual offender status by competent evidence at

the hearing through the testimony of Ofc. Heun and Lt. Baird. See, State v.

Taylor, supra.

Smith was sentenced on June 16, 2021. The State noted that the

applicable sentencing range under La. R.S. 15:529.1(A)(1) was 16 to 100

years, with that being one-third of the longest term for attempted second

9
La. R.S. 15:529.1(C), in effect in 2017, provided a ten-year cleansing period
between the date of commission of the current offense (the attempted second degree
murder offenses) and expiration of the maximum sentence or sentences of the previous
conviction (aggravated battery), or between the expiration of the maximum sentences of
each preceding conviction alleged in the bill and the date of commission of the following
offenses. Additionally, “any period of parole, probation, or incarceration … shall not be
included in the computation of any said ten-year periods [.]” The date Smith completed
parole supervision for his aggravated battery conviction was September 9, 2010, which is
within ten years of the date of the attempted second degree murder offenses that occurred
on December 6, 2017.

19

degree murder10 and not more than twice the longest term. However, both

the State and the trial court erred by applying the multiple offender law

currently in effect rather than the multiple offender law in effect at the time

of Smith’s offenses in 2017. As noted by the Supreme Court in State v.

Parker, supra, this was erroneous. However, notwithstanding the trial

court’s error in relying on the wrong version of La. R.S. 15:529.1, the

consecutive 75-year sentences imposed were nonetheless in the proper

range.

In 2017, La. R.S. 15:529.1(A)(1) provided for imprisonment “for a

determinate term no less than one-half the longest term and not more than

twice the longest term prescribed for the first offense” where the second

felony is one that would, as a first offense, be punishable by imprisonment

for a term less than his natural life. Thus, the applicable sentencing range in

2017 was 25 to 100 years at hard labor without benefit of probation, parole,

or suspension of sentence. La. R.S. 14:27(D)(1)(a); La. R.S. 14:30.1(B); La.

R.S. 15:529.1(A)(1).

As noted above, the trial court sentenced Smith to consecutive 75-year

terms at hard labor without the benefit of probation, parole, or suspension of

sentence. The misstatement of the sentencing range does not constitute error

patent. State v. Martin, 52,674, p. 10 (La. App. 2 Cir. 5/22/19), 273 So. 3d

578, 584. See also, State v. Evans, 19-237, p. 17 (La. App. 5 Cir. 6/3/20),

298 So. 3d 394, 407.

10
The sentence for a first offense attempted second degree murder was not less
than ten nor more than 50 years at hard labor without the benefit of parole, probation, or
suspension of sentence. La. R.S. 14:27(D)(1)(a); La. R.S. 14:30.1(B).
20

At the sentencing hearing, the trial court advised Smith of his right to

file for an appeal within 30 days as well as his right to apply for post-

conviction relief within two years from the date that his conviction and

sentence become final. On July 8, 2021, Smith filed a motion seeking

reconsideration of the multiple offender adjudication and sentencing. The

trial court denied the motion in a written opinion filed September 29, 2021.

We have found no errors patent. As for all pending motions, they are

hereby denied. For the reasons set forth above, we affirm the convictions

and sentences of the defendant, Carlos M. Smith.

CONCLUSION

For the reasons set forth above, the convictions and sentences of the

defendant, Carlos M. Smith, are affirmed.

AFFIRMED.

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