IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00812-COA
CHARLES SMITH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/17/2014 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: CLAY COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED, AS A HABITUAL OFFENDER, TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR PROBATION DISPOSITION: AFFIRMED – 12/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. Charles Sm ith appeals the judgm e nt of the Cl a y C o u n t y Circuit C o urt, a rguing that the trial court erred b y not i nf orm ing him of his rights as a p ro se litigant under U nif orm Rule of Circuit and County

Court 8.05. ¶2. Finding no error, we af f irm

.FACTS

¶3. On April 5, 2012, Sm ith was indicted f o r the m urder of Bennie O aks, which occurred

on Septemb e r 4 , 2 0 1 1

. P rior to trial, the court appointed counsel to represent Sm ith; however , S mi t h i n f

o rm ed the court that he wanted to represent him s elf

. Af ter a m ental evaluation of Sm ith, t he doctor t h a t h a d exam ined him e xpressed concerns about his ef f ectiveness i n representing him self and h is working relations h i p w ith his trial counsel. Despite those concerns, the doctor concluded that Sm i th could com petently , knowingly , and intelligently participate i n the proceedings. U pon inquiry by the court, Sm i th clarif ied his intention to conduct his def ense in cooperation with his t rial counsel’s a ssistance. T he court then gr a n t e d S mith perm ission to proceed t o t rial and r epresent him self during portions of the proceedings. During the trial, Sm ith a n d h i s a ppointed counsel both participated in his representation. On April 14, 2014, Sm ith was convicted o f m urder and sentenced to lif e in prison as a habitual o f

f ender under Miss i s sippi Code Annotated section 99-19-83 (Rev. 2015). On O c t o b e r 1 5 , 2 014, Sm ith’s m otion f o r a n ew trial was denied. This appeal
f ollowed.
DISCUSSION ¶4. “The trial court’s decision to allow pro se representation w ill be disturbed only upon a showing of abuse of

discretion.” Metcalf v. State , 629 So. 2d 558, 566 (Miss. 1993). ¶5. Sm ith argues that the trial court f ailed to inf

orm him of t he disclosures required to be given to a pro se litigant under Unif orm Rule of Circuit and County C ourt 8 .05. Rule 8.05

2provides:

W h en the court learns that a def endant desires to act as h is/her own attorney , the court shall on the record conduct an ex a mi n a t i o n of the def endant to determ ine if the def

e ndant knowingly and voluntarily desires to act as h is/her own attorney . The court shall inf orm the def endant that:
1. The def e ndant has a r ight to an a ttorney , and if the def endant cannot af

f o rd an attorney , the state will appoint one f ree of charge to the def

endant to d ef

end or assist the def

e ndant in his/her def

ense. 2. The def

e ndant has the right to conduct the def en se and that the def

endant ma y e l e c t to conduct the def ense and allow whatever role (s)he desires to his/her attorney

. 3. The court will not relax or d i s r e g ard t he rules of evidence, procedure or courtroom protocol f

o r the def endant and that the def

endant will be bound by and have to conduct h im self /herself within the sam e rules as an attorney , t hat these rules are not sim

ple and that w ithout legal advice h is/her ability to d ef end him self /herself will be ham

pered.
4. The right to proceed p ro se usually increases the likelihood of a trial outcom e unf

avorable to the def

endant. 5. Other m atters as the court deem s appropriate.
Af ter instructing the def

endant and ascertaining t

h a t t h e d e f e n dant understands these m atters, the court will ascertain if t he def endant still wishes to proceed pro se or i f t h e d ef

e ndant desires an a ttorney to assist him / her i n h is/her def ense. If the def

endant desires to proceed pro se, the court should determ ine if the def endant has exercised this right knowingly a nd voluntarily , and, if so, m ake the f

inding a m a t t e r o f r ecord. The court m ay appoint an attorney to assist the def

endant on procedure and protocol, even i f t he def endant does not desire an attorney , b u t all disputes between the de f e n d a n t and such attorney shall be resolved in f

a vor of the def endant. ¶6. Most notably , Sm i th argues that the court d id not inf orm h im that proceeding pro se would increase the likelihood of a n unf a vorable o u t com e a t trial. He also argues that the

3court never specif ically told him that he had the r ight to an attorney

. However, he adm its that the court’s action in appointing c ounsel to a s sist h im m ay be interpreted as the court telling
him that he p ossessed such a right. Further, he a rgues that although the c ourt inf orm ed h im that he would b e held to the s am e evidentiary standards of an attorney , he did not know that he would be held to the sam e standards regarding all aspects of his representation. In addition, he contends that t he n ature of t he hy brid representation was dam aging to his case,

as there was no cohesive trial theory

. He states that his attorney argued that the stabbing was in self -def ense; however, h e argued that he did not stab Oaks at all—an inconsistency that he believes hurt his c a s e . S mith also contends t hat h is decision to waive counsel was not

m ade knowingly , voluntarily , a nd intelligently , as required by Rule 8.05. Finally , he asserts that since he was n ot properly inf o rm ed of his rights, his conviction a n d the judgm ent of the circuit court should be reversed. ¶7. The S tate correctly responds that Sm i th did not w aive his r ight to counsel. Instead,
Sm ith proceeded unde r a hy brid r epresentation whereby Sm ith and his attorney shared the responsibility of presenting his case at trial. During the hear i ng to decide whether Sm ith would be capable of

proceeding pro se, Sm ith had the f ollowing exchange with the court: [ COURT]: Last t i me we talked[ ,] I think y ou indicated y ou wanted to

represent y ourself

; is that right? [ SMITH]: W ell, Your Honor, it was partially

. W h at I was say i ng i s that I

don’t have a problem with m y co u nsel representing m e. But I would like t o actually have the m om e n t to cross-exam ine the witnesses as well as him

. I wanted it to be a partial thing, we do this in part.
4[ COURT]: Sure. I understand. You don’t get to cross-exam ine a witness and he gets to c ros s-exam ine a witness. I m ean, if there’s a witness y ou want to cross-exam ine, y o u’ll have to d o it, he won’t be able to cross-exam ine. [ SMITH]: I understand that. [ COURT]: Okay

. So y ou want to be able to be an active p a r t i c i p ant in

certain parts of

the case? [ SMITH]: That’s correct.

* * * * [ COURT]: All right. You understand if y ou cross-exa mi n e o r do direct

exam i nation of witnesses, I’ll h ave to hold y ou t o the sam e rules of evidence that I do to the State and t h a t I w o uld hold [ y o ur attorney ], too. Do y ou understand that? [ SMITH]: Yes, sir, I understand. ¶8. A l t h o u g h S mi t h w a s a c t i v e in representing him self by delivering the o p e n i n g
statem ent and perf

orm ing e x a mi n a t i ons o f w itnesses, h e was not a true pro se def endant.
Sm ith’s trial counsel f

iled several pretrial m otions on his behalf , conduc t e d j ury voir dire, delivered the closing argum ent, cross-exam ined som e of the S tate’s witnesses, and argued objections during the trial. The issue of hy br i d representation is succinctly addressed in Henley v. State , 729 So. 2d 232, 236 (Miss. 1998): Recently , t his court has turned to a hy brid representation in an ef f ort to strike a b a l a n c e b etween the right to counsel and the right to self -representation. Hy brid representati o n encom passes b oth the participation of t he c rim i nal def endant in the course of the trial when h e has not e f f ectively waived his right to ass i s t a n ce of counsel, and the participation by an attorney when the d e f e n d a nt is proceeding pro se. There i s no absolute right to hy bri d
5representation, and whether to allow hy b rid representation lies i n t h e d i s c r etion of the trial court. ¶9. W h en looking at the relatio n s h i p b etween Sm ith a nd his attorney , it is clear that a hy brid relationship existed. This Court ruled i n W ash v
. State , 129 So. 3 d 2 4 7 , 2 5 1 (¶9) (Miss. Ct. App. 2013), that the appellant did not proceed p r o se as contem plated by Rule 8.05; thus, there [ was] n o need to determ ine whether [ the appellant] k n o w i ngly and voluntarily w aived his right to counsel. [ T he appellant] was never lef t to his own def

ense as . . . [ trial counsel] f u nctionally rem ained counsel t hroughout trial in the f orm of hy brid representation. ¶10. The ruling in W

ash is directly applicable t o this case. Sm ith’s argum ent t hat he w a s

n o t a p p r ised of his rights under Rule 8.05 is m oot since he was r epresented i n a hy bri d capacity

. Despite the f

act that the court was not required to do so—because of the nature of
Sm ith’s hy

brid representation—the c o urt did in f act inf orm S m ith of all of h is rights, including the signif

icant risk he f

aced by representing him se l f

. I mme d iately bef

ore trial,
Sm ith had the f

ollowing exchange with the court: [ COURT]: Okay

. Like I say , y ou’re not a dum b m an, y ou’re a pretty sm art f ellow. I f

igured that o ut, b ut I also told y o u , i n all the y ears I ’ ve either been a trial lawy er, or a trial judge, I don ’ t k n o w any b o dy that’s ever def

ended [ him self

] and won. I think I told y ou that, last tim e; right? [ SMITH]: But it’s not im possible. [ COURT]: No. I t’s n o t im possible. It just, it doesn’t happen very of ten. I just want y ou to be aware of that. [ SMITH]: Again, if

I lose, Your Honor, then I’m to blam e m y self

.

6Clearly , t he trial court f ully inf orm ed Sm ith of his rights under R ule 8 .05 despite having no obligation to do so; theref ore, his argum ents are without m erit. ¶11. T H E J U D GMENT OF THE CIRCUIT COUR T O F C L A Y C O U N T Y O F CONVICTION OF MURDER AND SENTENCE O F L I F E I N PRISON IN THE C U S T O D Y O F T H E M I S S I S S I P P I D E P A R T M E N T O F C O R R E C T I O N S , W ITHOUT ELIGIBILITY F OR PAROLE OR PROBATION, IS A FFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY. LEE, C .J., GRIFFIS, P .J., B A R N E S , I S H E E , C A R

L T O N , F A I R, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

7