Judgment rendered November 20, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,998-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JOSEPH LEE SMITH Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 381,969
Honorable John D. Mosely, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
COURTNEY RAY REBECCA A. EDWARDS Assistant District Attorneys
Before PITMAN, ROBINSON, and MARCOTTE, JJ. PITMAN, C.J.
A jury convicted Defendant Joseph Lee Smith of manslaughter,
aggravated battery and obstruction of justice. After adjudicating him a
second-felony habitual offender, the trial court sentenced him. Defendant
appealed. This court vacated his sentences, dismissed the appeal and
remanded for further proceedings. On remand, the trial court resentenced
Defendant to 60 years at hard labor without benefit of parole, probation or
suspension of sentence for the manslaughter conviction; 20 years at hard
labor for the aggravated battery conviction; and 20 years at hard labor for the
obstruction of justice conviction. The court ordered that the sentences for
manslaughter and aggravated battery run consecutively with each other and
that the obstruction of justice sentence run concurrently with the other
sentences, with credit for time served. Defendant appeals his manslaughter
conviction and sentences. For the following reasons, we affirm Defendant’s
convictions, affirm as amended his sentences and remand with instructions
to correct the minute entry regarding sentencing.
FACTS
On July 21, 2021, a Caddo Parish grand jury indicted Defendant on
three counts—second degree murder, in violation of La. R.S. 14:30.1;
aggravated battery, in violation of La. R.S. 14:34; and obstruction of justice,
in violation of La. R.S. 14:130.1. The indictment alleged that on or about
March 20, 2021, through March 23, 2021, Defendant committed the second
degree murder of Mya Patel; committed a battery with a dangerous weapon,
i.e., a firearm, upon Snehal Patel; and tampered with evidence with a
specific intent of distorting the results of a criminal investigation. A jury trial began on January 10, 2023. Ashley Harris, who considers
Defendant family, testified that on March 20, 2021, she and her children
were staying at the Super 8 motel at 4911 Monkhouse Drive. She knew the
Patel family, who owned the Super 8 and lived on the property directly
below her room. She stated that her children were playing in the window of
their room and watching an altercation outside. She told them to get down
from the window, and then she heard a gunshot. She went to the balcony
and saw Defendant but did not see anything in his hands. She told him to
come inside because there was a shooting. She noted that he acted like he
wanted to come inside, but he got in his car and drove away. She went
downstairs to look for Defendant but saw Snehal Patel, who was crying and
screaming “my baby.” She observed Vimal Patel carrying Mya, who was
not moving. She noted that the Patels then left the scene. When law
enforcement arrived, Harris gave a statement. She called Defendant and told
him “you just killed a baby, man, you just shot a baby, you got to come back
and turn yourself in.” She explained that Defendant did not know what had
happened, so he did not think she was telling the truth. On cross-
examination, Harris confirmed that Defendant did not know that the child
had been shot until she told him.
Latresha Smith, Defendant’s cousin, testified that on March 20, 2021,
Harris called and told her Defendant just shot a baby. She immediately went
to the Super 8 and met with Harris, who told her that Defendant “got into it
with some guy . . . and somehow [Defendant] shot a baby.” While in the
presence of law enforcement, she spoke to Defendant on speakerphone and
encouraged him to turn himself in. She noted that he denied shooting a
2 baby. On cross-examination, defense counsel asked her if Defendant stated
that he did not shoot the gun on purpose, but she could not recall.
Corporal Amber Futch, a crime scene investigator with the Shreveport
Police Department, testified that on March 20, 2021, she responded to the
Super 8. She identified and described a diagram of the 4900 block of
Monkhouse Drive, which includes the Super 8, and diagrams of the motel
area where the Patel family converted four motel rooms into their family
residence. She also identified and described photographs of the crime scene.
Snehal Patel testified that in March 2021, she lived at
4911 Monkhouse Drive where her family owned and operated a Super 8
motel. She stated that she and her husband had two children—a daughter
and son. She identified a photograph of her daughter, Mya, which was taken
on her fifth birthday, and noted that Mya passed away when she was 5 ½
years old. She testified that on March 20, 2021, she was at home with her
children while her husband was picking up an item at the motel next door.
She heard a gunshot and turned to see Mya on the floor. She described that
she saw “blood coming out, a piece of her brain was sitting there or the skin”
and noted that she knew it was a gunshot because of the hole in the window.
She stated that Mya was not talking or breathing. She then screamed for her
husband and called 911. She handed Mya to Mr. Patel when he arrived
home. Mr. Patel then placed Mya in their vehicle and drove them to the
hospital. After they arrived at the emergency room, she realized she was
bleeding. She explained that she did not know she had been grazed on her
right side because her focus was on Mya. While she was being treated, Mya,
accompanied by Mr. Patel, was transported to another hospital. She testified
that Mya did not survive her injury and passed away on March 21, 2021. 3 Vimal Patel testified that in March 2021, he owned, managed and
lived at a Super 8 located at 4911 Monkhouse Drive. He stated that he left
home for five minutes to pick up an ingredient for lunch and when he
returned, his wife met him at his vehicle and was screaming that their
daughter had been shot. Mrs. Patel handed Mya to him and he placed her in
the vehicle and drove them to the hospital. Doctors informed him that Mya
needed to be transferred to a different hospital, and he rode in the ambulance
with Mya while Mrs. Patel remained for treatment of her wound. He
testified that they have two times of death for Mya—March 21 when she
was pronounced dead and March 23 when she was removed from life
support after donating her organs.
Holly Sanford testified that on March 20, 2021, she was at the Super 8
with Chevlon Thomas. She stated that they were in the parking lot when a
vehicle drove up and stopped. She testified that Defendant exited the
vehicle and began yelling, Defendant and Thomas had an altercation and a
gun went off. At first, she did not see that Defendant had a weapon but then
saw him waving the weapon and trying to intimidate Thomas with it. She
noted that she did not know if Defendant was pointing the weapon at
anyone. She testified that after Defendant shot the gun, Thomas ran away.
Taylor King testified that in March 2021, she was living in Longview,
Texas, but staying at the Super 8 on Monkhouse Drive. She was friends
with Defendant and knew of Thomas because he stole her gun. On
March 20, 2021, she and Defendant were in a vehicle at the Super 8 when
Defendant jumped out to approach Thomas. She recalled that Defendant
and Thomas began arguing, but she never saw Defendant with a firearm in
his hand. She heard a gunshot and thought Defendant shot Thomas. 4 Defendant then jumped in the vehicle, and they drove to a motel down the
street where she left Defendant. She then returned to the Super 8. About an
hour later, she picked up Defendant, and he drove them to Longview. She
noted that his mother called and told them a baby was in the hospital. She
stated that Defendant recorded a video to show his side of the story, i.e., that
it was a horrible accident, and then she posted the video on her Facebook
account. The jury then viewed the video. King testified that law
enforcement arrived at her house in Longview.
Anna Russell, King’s mother, testified that she encountered King and
Defendant in Longview following the shooting. She took Defendant and
King to King’s apartment and then went to the Longview Police Department
to inform law enforcement of Defendant’s location. She explained that she
wanted to get Defendant away from her daughter.
Officer Danntionnette Ross of the Shreveport Police Department
testified that on March 20, 2021, she was dispatched to the Super 8 in
reference to a shooting. She met with a woman, who told her Defendant was
the shooter. The woman spoke to Defendant on speakerphone, and
Ofc. Ross heard the woman tell Defendant that he shot a baby and needed to
turn himself in, and he responded that he did not shoot a baby, that he would
not turn himself in and that he shot at a man who stole money from him.
Corporal Matthew Dixon of the crime scene investigation division of
the Shreveport Police Department testified that on March 20, 2021, he
responded to a shooting at the Super 8. His photographs of the scene were
published to the jury. He described photographs of the suspected projectile
and of dowel rods used to determine the trajectory of the suspected projectile
through a window. He stated that he collected the projectile from the scene 5 and that it was sent to the crime lab. He testified that on March 23, 2021, he
went to an address on Buncombe Road to search a wooded area for a
weapon, but law enforcement did not find one at that location.
Detective Adam McEntee of the Shreveport Police Department
testified that in March 2021, he assisted in the homicide investigation. He
obtained video from surveillance cameras at the Super 8. Portions of the
recordings from March 20, 2021, were published to the jury.
Corporal Jonathan Varnell of the Shreveport Police Department’s
violent crimes unit testified that on March 20, 2021, he responded to
4911 Monkhouse Drive. He met with Harris, who told him that she heard a
gunshot and observed Defendant run toward his vehicle with a gun in his
hand. He was present when Smith spoke with Defendant on speakerphone
and heard Defendant say he did not know he shot anyone, that law
enforcement did not know who he was and that he was not going to turn
himself in. He stated that law enforcement learned that Defendant had a
girlfriend staying at the Merryton Inn, and they confiscated a black handgun
found in a search of the room. Cpl. Varnell noted that the handgun was
consistent with the type of handgun possibly used in the homicide.
Cpl. Varnell further testified that on March 21, 2021, the Longview
Police Department contacted him because they had taken Defendant into
custody. He and two detectives traveled to Longview to execute a search
warrant at King’s apartment and to interview King and Russell. He noted
that King explained that Thomas stole her handgun earlier in the week, she
pointed Thomas out to Defendant at the Super 8 and Defendant confronted
Thomas while holding a handgun. She told him that Defendant was trying
to get the gun back from Thomas and that when Defendant hit Thomas on 6 the arm, Defendant’s gun discharged once. She stated that she and
Defendant then left the scene, and she drove him to the Merryton Inn. She
later picked him up from the Merryton Inn and drove them to Longview.
King told Cpl. Varnell that she believed Defendant had the handgun with
him when he was taken into custody, but no gun was found on Defendant.
He testified that he interviewed Defendant after advising him of his Miranda
rights. Portions of the recording of the interview were published to the jury.
He noted that Defendant said he threw the handgun behind his mother’s
trailer. Other officers searched the area for the firearm but did not locate it.
A month after the shooting, he interviewed Sanford, who told him that
Defendant exited his vehicle, approached Thomas over a stolen gun, hit
Thomas on the arm and his gun discharged once. On cross-examination, he
stated that based on the crime lab’s findings, the handgun recovered from the
Merryton Inn is not related to the homicide.
Phillip Stout of the North Louisiana Crime Lab was accepted as an
expert in firearms identification and comparison. He analyzed the projectile
recovered from 4911 Monkhouse Drive and the firearm recovered from the
Merryton Inn. He determined that the projectile, a 9-millimeter bullet, was
not fired from the firearm. He explained that a finger must be on the trigger
to fire semi-automatic and automatic pistols and that these types of weapons
do not fire on their own. He also stated that for a bullet to be discharged
from semi-automatic and automatic pistols, a round has to already be in the
chamber. When asked if a firearm can fire if dropped, he explained that the
individual firearm would need to be tested.
Long Jin, MD, was accepted as an expert in the field of forensic
pathology. He testified that he performed the autopsy on five-year-old Mya 7 Patel. He identified and described photographs he took during the autopsy,
and some were published to the jury. He stated the cause of death to be a
single perforating gunshot wound to the head through an intermediary target
and that the manner of death was homicide.
On January 12, 2023, the jury found Defendant guilty of the
responsive verdict of manslaughter, guilty as charged of aggravated battery
and guilty as charged of obstruction of justice.
On February 24, 2023, Defendant filed a motion for judgment of
acquittal and a motion for new trial.
On March 6, 2023, the state filed a second-felony habitual offender
bill of information. It alleged that Defendant’s first-felony conviction was
possession of a firearm by a convicted felon, to which he pled guilty on
September 7, 2016, and was sentenced to ten years at hard labor.
A sentencing hearing was held on March 23, 2023. The trial court
found Defendant to be a second-felony habitual offender. It sentenced him
to 60 years at hard labor without benefit of parole, probation or suspension
of sentence for the manslaughter conviction; 20 years at hard labor without
benefit of parole, probation or suspension of sentence for the aggravated
battery conviction; and 20 years at hard labor without benefit of parole,
probation or suspension of sentence for the obstruction of justice conviction.
It ordered the sentences to run consecutively, with credit for time served.
Defendant appealed.
On appeal, this court determined that the trial court failed to rule on
Defendant’s motions for post-verdict judgment of acquittal and for new trial
prior to sentencing, as required by La. C. Cr. P. arts. 821 and 853. State v.
8 Smith, 55,584 (La. App. 2 Cir. 11/9/23). This court vacated Defendant’s
sentences, dismissed the appeal and remanded for further proceedings.
On remand, the trial court denied Defendant’s motions for post-
verdict judgment of acquittal and for new trial.
A resentencing hearing was held on February 22, 2024. The trial
court noted that Defendant expressed some remorse, that the shooting
victims were an innocent five-year-old and her mother and that Defendant
was not shooting at the victims but was engaged in a conflict with a man
over a stolen gun. The trial court stated that it considered all the sentencing
factors and trial testimony, noting that a weapon was used, that it was a
violent offense and that an innocent life was taken. The trial court sentenced
Defendant to 60 years at hard labor without benefit of parole, probation or
suspension of sentence for the manslaughter conviction; 20 years at hard
labor for the aggravated battery conviction; and 20 years at hard labor for the
obstruction of justice conviction. It stated that the sentences for
manslaughter and aggravated battery are to run consecutively with each
other and that the obstruction of justice sentence is to run concurrently with
the other sentences, with credit for time served.
Defendant appeals his manslaughter conviction and sentences.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Defendant argues that the evidence
adduced at trial did not prove beyond a reasonable doubt that he was guilty
of manslaughter. He contends that the evidence shows that what occurred
was an accident—the gun discharged when he struck Thomas’s arm with the
side of the gun. He states that he did not intentionally fire the weapon and 9 did not have the specific intent to kill or inflict great bodily harm. He asserts
that the proper verdict in this case is negligent homicide.
The state argues that it proved beyond a reasonable doubt that
Defendant had the specific intent to kill or inflict great bodily harm when he
confronted Thomas with a loaded pistol, waved it about, pointed it at
Thomas, discharged it at him, fled the scene and disposed of the weapon. It
contends that because the evidence was sufficient to support a conviction for
the charged offense of second degree murder, the jury’s manslaughter
verdict was proper.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,
603 So. 2d 731 (La. 1992). See also La. C. Cr. P. art. 821. The trier of fact
makes credibility determinations and may accept or reject the testimony of
any witness. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert.
denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). The
appellate court does not assess credibility or reweigh the evidence. State v.
Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
La. R.S. 14:30.1(A)(1) defines second degree murder as the killing of
a human being when the offender has a specific intent to kill or to inflict
great bodily harm. Specific criminal intent is that state of mind that exists
when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act. La.
R.S. 14:10. Specific intent need not be proven as a fact; it may be inferred 10 from the circumstances of the transaction and the actions of the defendant.
State v. Graham, 420 So. 2d 1126 (La. 1982). Specific intent to kill may be
inferred from a defendant’s act of pointing a gun and firing at a person.
State v. Seals, 95-0305 (La. 11/25/96), 684 So. 2d 368.
When a person shoots at an intended victim with the specific intent to
kill or inflict great bodily harm and accidentally kills or inflicts great bodily
harm upon another person, if the killing or inflicting of great bodily harm
would have been unlawful against the intended victim actually intended to
be shot, then it would be unlawful against the person actually shot, even
though that person was not the intended victim. State v. Strogen, 35,871
(La. App. 2 Cir. 4/3/02), 814 So. 2d 725, writ denied, 02-1513 (La.
12/13/02), 831 So. 2d 983.
Manslaughter is a responsive verdict to second degree murder. La. C.
Cr. P. art. 814. In the case sub judice, the jury was instructed that, pursuant
to La. R.S. 14:31(A)(1), manslaughter is:
A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.]
A fact finder may return any legislatively provided responsive verdict,
whether or not the evidence supports that verdict, as long as the evidence
was sufficient to support a conviction of the charged offense. State v.
Wisely, 34,482 (La. App. 2 Cir. 2/28/01), 780 So. 2d 1230.
Viewing the evidence in the light most favorable to the prosecution,
the state proved beyond a reasonable doubt that Defendant had the specific 11 intent to kill or inflict great bodily harm upon Thomas. The surveillance
video from the Super 8 shows Defendant exit a vehicle holding a firearm,
hold and wave the firearm for the entirety of the altercation with Thomas,
point the firearm at Thomas, strike Thomas on the arm with the firearm,
discharge the firearm and flee the scene. These actions demonstrate
Defendant’s specific intent to kill or inflict great bodily harm upon Thomas,
and this intent transferred to the actual victim, Mya Patel. Because there
was sufficient evidence to convict Defendant of second degree murder, there
was sufficient evidence to convict him of the responsive verdict of
manslaughter.
Accordingly, this assignment of error lacks merit.
Excessive Sentences
In his second assignment of error, Defendant argues that his aggregate
sentence of 80 years at hard labor is shockingly excessive in light of the
facts and circumstances of this case. He contends that 80 years for a tragic
accident does nothing to further the ends of justice and that the imposed
sentences are effectively a life sentence for him as he is 27 years old.
The state argues that as Defendant did not file a motion to reconsider
sentence or object after resentencing, he is limited to a claim of
constitutional excessiveness. Considering the facts of the case, the state
argues that the sentences are not grossly disproportionate to the severity of
the offense, shocking to the sense of justice or a purposeless infliction of
pain and suffering and therefore are not constitutionally excessive.
When a defendant fails to make a motion to reconsider sentence, the
appellate court’s review of the sentence is limited to a bare claim of
constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La. 1993). A 12 sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to
the seriousness of the offense or nothing more than a purposeless and
needless infliction of pain and suffering. State v. Smith, 01-2574 (La.
1/14/03), 839 So. 2d 1, citing State v. Bonanno, 384 So. 2d 355 (La. 1980).
If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or plan,
the terms of imprisonment shall be served concurrently unless the court
expressly directs that some or all be served consecutively. La. C. Cr. P.
art. 883. Concurrent sentences arising out of a single course of conduct are
not mandatory. State v. Heath, 53,559 (La. App. 2 Cir. 11/10/20),
304 So. 3d 1105, writ denied, 20-01422 (La. 4/7/21), 313 So. 3d 981.
Consecutive sentences under those circumstances are not necessarily
excessive. Id. It is within the court’s discretion to make sentences
consecutive rather than concurrent. Id. Factors to be considered in
imposing consecutive sentences include the gravity and viciousness of the
offense, the harm done to the victims, the risk of danger to the public, the
offender’s criminal history and his potential for rehabilitation. Id. The
failure to articulate specific reasons for consecutive sentences does not
require remand if the record provides an adequate factual basis to support
consecutive sentences. State v. Sandifer, 54,103 (La. App. 2 Cir. 12/15/21),
330 So. 3d 1270.
The trial court has wide discretion in the imposition of sentences
within statutory limits, and the sentence imposed should not be set aside as
excessive in the absence of a manifest abuse of discretion. State v.
Abercrumbia, 412 So. 2d 1027 (La. 1982). On review, an appellate court
does not determine whether another sentence may have been more 13 appropriate but whether the trial court abused its discretion. State v.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7, citing State v. Cook,
95-2784 (La. 5/31/96), 674 So. 2d 957.
Whoever commits manslaughter shall be imprisoned at hard labor for
not more than forty years. La. R.S. 14:31(B). However, if the victim killed
was under the age of ten years, the offender shall be imprisoned at hard
labor, without benefit of probation or suspension of sentence, for not less
than ten years nor more than forty years. Id.
Whoever commits an aggravated battery shall be fined not more than
five thousand dollars, imprisoned with or without hard labor for not more
than ten years, or both. La. R.S. 14:34(B).
At the time of the commission of the crime in March 2021, La.
R.S. 14:130.1(B) set forth the following sentences for obstruction of justice:
(1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both. (2) When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both. (3) When the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.
The habitual offender statute, La. R.S. 15:529.1, states in pertinent
part:
A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within 14 this state, upon conviction of said felony, shall be punished as follows: (1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.
***
G. Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.
The trial court did not abuse its discretion when sentencing Defendant
to 60 years at hard labor for the manslaughter conviction. Considering the
application of the habitual offender statute and the facts of this case,
including that the victim was under the age of ten, the trial court imposed a
midrange sentence that is not grossly out of proportion to the seriousness of
the offense. However, the trial court erred when it ordered that the sentence
be served without benefit of parole. La. R.S. 14:31(B); La.
R.S. 15:529.1(G). Pursuant to La. C. Cr. P. art. 882, we amend Defendant’s
sentence for manslaughter to remove the portion that denies him eligibility
for parole.
The trial court did not abuse its discretion by sentencing Defendant to
20 years at hard labor for the aggravated battery conviction. Although this is
the maximum sentence allowed under La. R.S. 15:529.1(A)(1), considering
the facts of this case, the sentence is not grossly out of proportion to the
seriousness of the offense. The trial court did err in failing to impose this
sentence without benefit of probation or suspension of sentence, as required
by La. R.S. 15:529.1(G). Pursuant to La. C. Cr. P. art. 882, we amend
15 Defendant’s sentence for aggravated battery to provide that the sentence be
served without benefit of probation or suspension of sentence.
The trial court did not abuse its discretion when sentencing Defendant
to 20 years at hard labor for the obstruction of justice conviction. With the
application of La. R.S. 15:529.1(A)(1), this is a midrange sentence.
Considering the facts of this case, the sentence is not grossly out of
proportion to the seriousness of the offense. The trial court did err in failing
to impose this sentence without benefit of probation or suspension of
sentence, as required by La. R.S. 15:529.1(G). Pursuant to La. C. Cr. P.
art. 882, we amend Defendant’s sentence for obstruction of justice to
provide that the sentence be served without benefit of probation or
suspension of sentence.
Further, the trial court did not abuse its discretion in ordering that the
sentences for manslaughter and aggravated battery run consecutively to each
other. The trial court detailed its findings during the sentencing hearing, and
the record provides an adequate factual basis to support consecutive
sentences.
Accordingly, this assignment of error lacks merit, except as noted
above for the errors as to the impositions of benefits.
ERRORS PATENT
A review of the record revealed several errors by the trial court when
sentencing Defendant. As discussed above, the trial court erred when it
ordered the sentence for manslaughter to be served without parole and failed
to order that the aggravated battery and obstruction of justice sentences be
served without benefit of probation or suspension of sentence. Additionally,
the minutes do not reflect that the sentence for manslaughter shall be served 16 without benefits. When there is a discrepancy between the minutes and the
transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732 (La. 1983);
State v. Burns, 53,250 (La. App. 2 Cir. 1/15/20), 290 So. 3d 721.
Accordingly, on remand, the trial court shall order that the minute entry for
February 22, 2024, be corrected to add that the sentences shall be served
without benefit of probation or suspension of sentence.
The trial court also failed to advise Defendant of his rights at the
habitual offender hearing. In State v. Simpson, 55,304 (La. App. 2 Cir.
11/15/23), 374 So. 3d 1056, writ denied, 23-01641 (La. 5/29/24), 385 So. 3d
703, this court explained:
La. R.S. 15:529.1(D)(1)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Mason, 37,486 (La. App. 2 Cir. 12/10/03), 862 So. 2d 1077 (citing State v. Bell, 03-217 (La. App. 5 Cir. 5/28/03), 848 So. 2d 87). In addition, this court has found that the failure to properly advise a defendant of his right to have 15 days in which to object to the habitual offender bill of information constitutes an error on the face of the record. State v. Taylor, 53,934 (La. App. 2 Cir. 5/5/21), 321 So. 3d 486.
However, the failure to advise a defendant of his rights is considered harmless error when the defendant’s habitual offender status is established by competent evidence offered by the State at the hearing rather than by admission of the defendant. State v. McKeever, 55,260 (La. App. 2 Cir. 9/27/23), 371 So.3d 1156.
Although Defendant was not advised of his rights at the habitual offender
hearing, this was harmless error. The state established Defendant’s habitual
offender status by competent evidence, including the testimony of an expert
in fingerprint identification and analysis, and Defendant did not testify at the
hearing.
17 CONCLUSION
For the foregoing reasons, we affirm Defendant Joseph Lee Smith’s
convictions, affirm as amended his sentences and remand with instructions
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS
AMENDED; REMANDED FOR CORRECTION OF MINUTE
ENTRY.