author: MARCUS, Justice.

text:
    STATE of Louisiana v. Alvin Louis DILLARD.
    No. 56366.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Jack H. Kaplan, Gamm, Greenberg & Kaplan, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Acting Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Alvin Louis Dillard was indicted by the grand jury of Bossier Parish for the murder of one police officer in violation of La.R.S. 14:30, and the attempted murder of two others. La.R.S. 14:27; La.R.S. 14:30. After trial by jury on September 24-26, 1973, defendant was found guilty on all three charges and was subsequently sentenced to life imprisonment for the murder conviction and to consecutive ten-year prison terms for each conviction of attempted murder. Upon application to this court, we granted defendant an out-of-time appeal. Defendant relies upon seven assignments of error to reverse his convictions and sentences.

FACTS

Officers Pearson and Duncan of the Bossier City Police Department, while patrolling the streets of the city late at night on December 17, 1972, observed a car, driven by defendant, run a traffic light. The officers pursued the vehicle, which was traveling at a high rate of speed. The vehicle stopped at a location near the state police headquarters. Defendant was ordered out of his car and into the back seat of the patrol car. He was advised that he would be charged with reckless driving while under the influence of alcohol. He was also told that he was under arrest and would be searched. Thereupon, he was ordered out of the patrol car. Defendant then pulled a pistol from his pocket and fired a shot at Officer Duncan, which missed. He then fired a second shot that killed Officer Pearson. A second shot fired at Duncan again missed. Officer Abbott, a state trooper, heard a shot from the nearby police headquarters. As he raced toward the police car, defendant fired a shot at him. Defendant then got into his car and drove away. Officer Abbott pursued in his patrol car. Defendant fired another shot at Abbott while driving. Finally, defendant stopped and attempted to escape on foot. Officer Abbott followed and was successful in apprehending him. The pistol was removed from his pocket. Subsequently, defendant was charged with the murder of Officer Pearson and the attempted murder of Officers Duncan and Abbott.

ASSIGNMENT OF ERROR NO. 1

Defendant first argues that the trial court erred in denying his motion for a change of venue. While the motion for change of venue does not appear in the ■record, the record does contain the transcript of the hearing on the motion held on February 20, 1973. At said hearing, defendant filed into evidence clippings from certain newspaper articles and copies of local radio and television scripts covering the incident. Thereafter, defense counsel argued that the publicity of the crime in Bossier City was so widespread that defendant could not obtain a fair and impartial panel of jurors. No evidence was adduced that the publicity attending the fatal shooting was inflammatory or sensational.

The grounds for change of venue are set out in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the defendant to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973).

In the instant case, defendant has failed to meet the burden of proof. His evidence consisted of only several news articles and local radio and television scripts, none of which are inflammatory. He offered no other evidence in support of his request for a change of venue. He relies solely on the fact of the existence of publicity. It should be noted that the publicity covered a span of only four days, and the trial was conducted some nine months after the occurrence of the events giving rise to the criminal prosecution.

The trial judge denied the motion on the ground of insufficient evidence to support the change of venue. The granting or denial of change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. Under the evidence presented to support the motion for change of venue, it cannot be said that the trial judge abused his discretion. Hence, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the conviction must be reversed because women did not serve on the jury commission and on the grand jury that indicted him and because the jury commission, the grand jury, and the grand jury venire were racially unrepresentative of the Bossier Parish population.

The transcript of the proceedings contains a hearing held prior to indictment on a motion by defendant for information regarding the racial composition of the grand jury and the method of selecting the grand jury, although the motion itself does not appear in the record. Defendant did not ask for information regarding the makeup of the jury commission or the grand jury venire. The motion was granted, but the record contains nothing else on the matter.

The record contains no motion to quash the indictment on the ground that the jury commission, the grand jury, and the grand jury venire were illegally constituted, nor do the minutes reflect that any such motion was filed.

Article S35 of the Code of Criminal Procedure provides in pertinent part:

B. A motion to quash shall be filed at least three judicial days before commencement of trial, and my be filed with permission of the court at any time before commencement of trial, when based on any of the following grounds:
(3) A grand jury indictment is invalid because the manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.
D. The grounds for a motion to quash under Paragraphs B and C' are waived unless a motion to quash is filed in conformity with those provisions.

Under this article, therefore, defendant waived any objection he may have had to the manner of selecting the grand jury, the grand jury venire, and the jury commission by failing to file a timely motion to quash the indictment. See La.Code Crim. P. art. 535 (1966), Official Revision Comment (c)(3). See also Jones v. Henderson, 494 F.2d 47 (5th Cir. 1974). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

This assignment of error has been abandoned.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erroneously failed to sustain his motion for a directed verdict of acquittal of all charges at the close of the state’s case.

This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. La.Code Crim.P. art. 778 (1966); State v. Douglas, 278 So.2d 485 (La.1973).

The evidence produced by the state included the testimony of Officer Duncan, who testified that defendant shot at him and that he shot and killed Officer Pearson, and the testimony of Officer Abbott, who stated the defendant fired at him also. The gun taken from defendant, as well as a bullet from Officer Pearson’s body and five shells, were introduced into evidence, and a ballistics expert testified that they were fired from defendant’s gun. Certain-'y, this constituted some evidence of each element of the crimes charged. Hence, the trial judge properly denied defendant’s motion for directed verdicts of acquittal. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant avers that the trial judge erred in permitting the state, in closing argument and in rebuttal argument before the jury, to comment directly and indirectly upon defendant’s failure to take the stand. A reference by the state to defendant’s failure to testify in his own defense, when made within the hearing of the jury, is ground for a mandatory mistrial. La.Code Crim.P. art. 770 (1966). Defendant, however, neither objected to the allegedly prejudicial remarks at the time of occurrence nor did he move for a mistrial.

The proper procedural vehicle, when the state refers to defendant’s failure to testify in his own defense, is the motion for a mistrial. La.Code Crim.P. art. 770 (1966). Defendant’s failure to move for a mistrial constitutes a waiver of the alleged error. La.Code Crim.P. art. 770, Official Revision Comment (b) (1966) .

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial judge erred in failing to sustain his motion in arrest of judgment and his motion for a new trial.

The record reveals two handwritten motions that were filed the day on which defendant was to be sentenced. The first asks the court to arrest judgment on the ground that the verdicts were contrary to the law and evidence. This ground is not included within the exclusive list of eight grounds on which a motion in arrest of judgment shall be granted. La.Code Crim.P. art. 859, as amended, La.Acts 1974, Ex.Sess., No. 26, § 1. Therefore the motion was properly overruled.

The second motion filed on the day of sentencing was for a new trial. Defendant asked that a new trial be ordered for two reasons. First, he argued that the verdicts were contrary to the law and evidence. It is well settled that this contention, without setting forth with particularity the error complained of, presents nothing for review on appeal. State v. Howard, 283 So.2d 199 (La.1973). The second ground urged as the basis for a new trial was the trial judge’s alleged error in refusing to grant defendant’s motion for directed verdicts of acquittal. This contention was rejected in our discussion of Assignment of Error No. 4. Hence, the trial judge’s refusal to grant a new trial was also proper.

In his brief defendant advances the same argument in support of this assignment of error as that advanced in the previous one, i. e., the court committed error in allowing the state to comment on defendant’s failure to testify in his own defense. We reject this argument for the reasons assigned in our disposition of Assignment of Error No. 5. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

In the last assignment of error, defendant first contends that the imposition of ten-year sentences for each attempted murder conviction, to be served consecutively, in addition to the sentence of life imprisonment for the murder conviction, constitutes cruel and unusual punishment, in violation of the eighth amendment o'f the United States Constitution and article 1, section 12 of the Louisiana Constitution (in effect at the time this offense was committed).

Cruel and unusual punishments are those that are barbarous, extraordinary, or grossly disproportionate to the offense. State v. Selman, 300 So.2d 467 (La.1974); State v. Crook, 253 La. 961, 221 So.2d 473 (1969). These adjectives appropriately describe neither the statutory penalty for murder nor the statutory penalty for attempted murder. Imprisonment itself is clearly not cruel and unusual punishment, even if the sentence is long; most criminal systems provide for life terms. State v. Howard, 262 La. 270, 263 So.2d 32 (1972). In addition, the sentences imposed in this case were within statutory bounds. La.Code Crim.P. art. 882 (1966).

The fact that the terms of imprisonment are to run consecutively does not make this punishment cruel and unusual. Consecutive sentences of imprisonment for conviction of separate offenses do not render a punishment cruel and unusual, where the penalty upon conviction of each offense is itself valid. Cf. State v. Sharp, 156 La. 531, 100 So. 707 (1924).

Second, defendant argues that the trial judge erred in failing to give him credit toward service of his sentences for time spent in actual custody prior to their imposition. Such an allowance of credit is mandatory. La.Code Crim.P. art. 880 (1966), as amended, La.Acts 1970,. No. 285, § 1.

Defendant points out in his brief that “[n]owhere in the minutes can it be found that credit for time served was given in the sentence.” We note, however, that the commitment form for each conviction states that defendant’s period of imprisonment begins to run from the date of incarceration■, not the date of arrival at the Louisiana State Department of Corrections. Thus, defendant will be given credit for the time he spent in actual custody-prior to the imposition of sentence. In sum, this asssignment of error is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

BARHAM, J., concurs.

      . The items consisted of copies of the Shreveport Times, tiie Shreveport Journal, and the Bossier Tribune, during the period of December 18-21, 1972, all of which published articles on the killing of the police officer. The Bossier Tribune, on December 21, 1972, carried a story on the front page entitled “Services Held for Bossier Police Officer,” which contained a brief, factual account of the incident. Officer Pearson’s photograph accompanied the story. The December 18, 1972 Shreveport Journal published a story on the killing, stating that defendant was being held in connection with the fatal shooting. This story carried a photograph of the police car with bullet-shattered glass as well as Pearson’s photograph. The Shreveport Journal, December 19, 1972, also published a short article on the obituary page entitled “Flags Lowered in Bossier City for Slain Officer.” The Slvreveport Times, December 18, 1972, published a one-column article on the front page entitled “Bossier City Officer Dies in Shooting,” relating the facts of the incident and reporting that defendant had been charged with Pearson’s murder. Local radio stations KOKA and KEEL reported the incident, as did local television stations KTBS and KSLA. These broadcasts were similarly factual and not sensational in nature.

      . A failure to move for a mistrial is a waiver of the error, since this article requires a motion by the defendant.

      . The record shows that the motions themselves do not contain a statement that these allegedly prejudicial remarks constitute a ground on which the motions should be granted. This issue was raised for the first time on appeal.

      . Defendant did not object to the sentences at the time they were imposed. Article 841 of the Code of Criminal Procedure states that an error or irregularity in the proceedings cannot be availed of after verdict unless it was objected to at the time of occurrence. Although the precise nature of defendant’s attack on the sentence does not emerge clearly from his . brief, after consideration we conclude that he attacks as unconstitutional per se the imposition of any sentence in addition to a sentence of life imprisonment. This alleged error is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence, and is therefore reviewable by this court. La. Code Crim.P. art. 920(2), as amended, La. Acts 1974, No. 207, § 1.

      . La.R.S. 14:30, prior to its 1973 amendment, made no distinction between first and second degree murder and provided that murder was punishable by death. In view of the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), however, we held that under La.R.S. 14:30 prior to its 1973 amendment the maximum penalty for murder was life imprisonment. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

      . The penalty for attempted murder may not exceed twenty years’ imprisonment at hard labor. La.R.S. 14:27 (D) (1), as amended, La.Acts 1970, No. 471, § 1.

      . Although defendant did not object to this error at the time of its occurrence in accordance with article 841 of the Code of Criminal Procedure, such an irregularity is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. Hence, we may consider it on appeal. La.Code Crim.P. art. 920(2) (1966), as amended, La.Acts 1974, No. 207, § 1; State v. Hall, 287 So.2d 798 (La.1973).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Steven WHATLEY, Appellant.
    No. 56364.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Paul B. Deal, Donald S. Klein, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Whatley was convicted of murder, La.R.S. 14:30 (1950), and sentenced to life imprisonment at hard labor. His appeal presents three issues to this court.

I.

By motion to quash and by motion in arrest of judgment, the defendant Whatley contends that the district court was without jurisdiction to try the offense because he was a juvenile at the time of the offense and is charged with a non-capital offense. He complains of the denial of these motions. Bills of exception nos. 1 and 2.

The basis of the offense, a killing during an armed robbery, occurred on June 13, 1973. At that time, the defendant was slightly more than 16 years of age. At that time, the murder statute provided for the death penalty. La.R.S. 14:30 (1950). Therefore, under the state constitutional provision then in force, the district rather than the juvenile court had jurisdiction of the prosecution of this capital crime, even though the juvenile was under seventeen years of age. La.Const. of 1921, Art. VII, Sections 83, 96; cf. also Section 52.

Nevertheless, although the statute provided for a death penalty, the United States Supreme Court had invalidated its application through jury discretion in statutes similar to the one involved. Furman v. Georgia, 409 U.S. 15, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, the maximum penalty that could be imposed under the statute was life imprisonment. State v. Franklin, (263 La. 344, 268 So.2d 249 (1972).

Thus, the defendant contends, the offense for which he was prosecuted was no longer “capital” since not punishable by death, cf. La.C.Cr.P. art. 933. Hence, he claims, the district court did not have jurisdiction to try this 16-year old juvenile for a non-capital offense, relying upon State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975) and the earlier jurisprudence to the same effect.

A majority of this court has held, however, that, as enacted, La.R.S. 14:30 (1950) constituted a legislative classification that the crime of murder constituted a capital offense, and that conduct punishable by this statute remained a “capital” crime for purposes of Louisiana law (even though Furman held that the death sentence could not actually be imposed or executed). State v. Flood, 263 La. 700, 269 So.2d 212 (1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (1971). A majority of this court is unwilling to overrule that holding or to find it distinguishable insofar as applying to the present issue.

Therefore, since the offense for which the accused was tried was legislatively classified as “capital”, we must reject the defendant’s contention that the district court did not have jurisdiction to try this juvenile for the 1973 murder.

II.

The issue that gave us the most concern is that raised by bills of exception nos. 3 and 4.

By these, the defendant contends that his confession was improperly admitted in evidence without the state having first borne its burden of proving beyond a reasonable doubt that it was free and voluntary and not the , product of coercion, maltreatment, or promises. La.R.S. 15:451, 452 (1950); La.C.Cr.P. art. 703(C) (1966); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969); State v. Savell, 238 La. 758, 116 So.2d 513 (1959). The jurisprudence also holds that, to meet this heavy burden, the state must rebut specific testimony of factual circumstances indicating intimidation or coercive measures and cannot rely only on general testimony of police officers that they themselves witnessed no maltreatment. State v. Monroe, 305 So.2d 902, 912 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950); State v. Robinson, 215 La. 974, 41 So.2d 848 (1949).

The issue is posed in the following context:

The confession is a typed question and answer statement taken down by the interrogating police officer within three hours of the accused’s arrest. In it, the accused admits that he participated in the attempted robbery and that he pulled the trigger of the gun which resulted in the victim’s death, although he claims the shooting was not intended and in part blames a companion for shoving the pistol into his hand.

A.

Prior to trial, the defendant moved to suppress the confession on the ground that it was involuntary and that the accused was not given the Miranda warnings. La. C.Cr.P. art. 703. The denial of this motion forms the basis of Bill No. 3.

The evidence at the hearing accepted by the trial court reasonably shows :

The defendant, a 16-year-old boy, was arrested at his home at 6:30 A.M. and brought to police headquarters. He was read his Miranda rights. He told the officers he desired to make a statement and that someone else had done the shooting. He was sent to central lockup, because the officers desired to complete their investigation and to have the boy’s mother present during their interrogation.

The officer brought him back to police headquarters at about 9 :30 A.M. He was again read his Miranda rights and, as in the earlier warning, assented that he understood them and signed a form to this effect. The questioning did not commence until his mother was present. At the conclusion of the statement, the accused signed it as also did his mother. The only evidence of incompetency then offered was that the boy, age 16, was only in the 7th grade.

The mother testified that the boy showed her bruises on his chest and told her that he had been beaten previously. After she testified, the officers testified that absolutely no coercion was used in their presence and that they were not aware of any claim or sign of beating at the time of interrogation.

The boy himself did not take the stand at the hearing on the motion to suppress. His failure to do so was an intelligent choice of counsel concurred in by the boy and the mother, with full awareness that the motion testimony could not be used at the trial on the merits as to innocence or guilt.

The defendant points out that the police officers present at the interrogation testified that they neither participated in nor witnessed any coercion; but that they admitted that they had no knowledge of the accused’s treatment while in lockup between the arrest and the interrogation.

In view of the mother’s evidence suggesting that the boy had been beaten, his counsel argues that the state’s failure to negative maltreatment during this period does not satisfy the heavy burden of the state to show affirmatively beyond a reasonable doubt that no maltreatment occurred during this lockup period. Counsel thus contends that the officers with custody of him during this period should have been called to testify.

Had the boy himself testified as to specific occasions of beating, the jurisprudence may well have required such negativing testimony. Here, however, where the mother’s testimony as to evidence of a prior beating was countered by subsequent testimony of police officers then present, we are unable to hold that the trial court erred in holding that the state bore its burden of proving the confession free and voluntary, nor in holding that the Miranda warnings had been given and understood.

B.

At the trial, the defendant objected to introduction of the confession on the ground that the state had not borne its burden of affirmatively proving beyond a reasonable doubt the voluntary and non-coerced quality of the confession. The admission of this confession despite this alleged lack of sufficient predicate is the basis of Bill No. 4.

La.C.Cr.P. art. 703(B) provides that a ruling on a motion to suppress the defendant’s confession or statement is binding at the trial on the merits. We have held that, as to at least the issues raised and tried by motion, the ruling is conclusive as to admissibility. State v. Whitsell, 262 La. 165, 262 So.2d 509.

However, the same code provision also provides:

“When a ruling on a motion to suppress is adverse to the defendant, the state shall be required prior to presenting the written confession or written inculpatory statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the written confession or written inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it.”

The defendant objected to the admissibility of the confession. The sole basis urged at the trial was that the defendant was incapable of understanding his act, Tr. II 116-17, although by formal bill and present brief it is additionally contended that insufficient predicate was laid by the State before introducing the confession.

At the trial before the jury, the following procedure was ' employed, without objection by the defendant as to it:

The police officer testified as to the voluntary nature of the confession. He was cross-examined as to it. No effort was made by the defendant at this time to disprove its voluntary nature.

The confession was then admitted over defense objection based solely upon the defendant’s alleged mental incapacity. The State then rested.

(In addition to merit-witnesses who testified that the accused was simply a bystander to the shooting, the defense introduced as part of its case the testimony of a psychologist to show that, with an IQ of 52, the accused was mentally incapable of understanding the questions asked and the answers given. The accused himself took the stand before the jury to testify that he gave the statement because he was beaten by “Officer John” before his mother arrived.)

The issues posed by the defendant are these: What predicate must the State lay at the trial to show the voluntary nature of the confession — . . . , does as here the simple bald statements of the lack of coercion by the investigating officer suffice? Must the defendant be given the opportunity before the confession is introduced to traverse before the jury its voluntariness, or must the defendant instead wait until presentation of his own case to present such evidence ?

As to the first question, in view of the denial of the motion to suppress, we are unwilling to hold that the trial court abused its discretion by permitting the confession to go to the jury upon the minimal but uncontested (at the time) evidence of its voluntary nature. See State v. Simpson, 247 La. 883, 175 So.2d 255 (1965). The safeguard for the defendant is that, if the state places in evidence only minimal evidence of voluntariness, cumulative evidence to such effect would be improper rebuttal and could not as such be used to deprive the accused' of an opportunity to defend against it. La.R.S. 15:282; La.C.Cr. P. art. 765(5); State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Davis, 246 La. 383, 164 So.2d 589 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 633 (1923).

As to the. second question, in the absence of objection by the defendant to the procedure, we are unwilling to rule it reversible or even erroneous. See Comment, Confessions in Louisiana Law, 14 La.L.Rev. 642, 652 (1954); but see such decisions as State v. Goins, 232 La. 238, 94 So.2d 244 (1957) and State v. McCauley, 272 So.2d 335, 342-43 (1973). See 3 Wigmore on Evidence, Section 861 at pp. 591-93 (Chadbourn Rev.1970). Logically, since the pre-trial motion to suppress has determined the judge-question as to admissibility, the defense evidence of coercion or inducement may be part of the defense case in chief, since it is merely fact evidence defending against the weight to be given to the confession. Nevertheless, see Footnote 2 and decisions in authorities cited above, other reasons of practical efficiency and fairness point to having the jury hear defense evidence going to the weight of the confession contemporaneously with the state’s evidence introduced as predicate, La.R.S. 15:451, to its admissibility.

Because no objection was made to the procedure utilized, we do not decide the issue. In the present instance, furthermore, the defense evidence as to the involuntariness of the confession was heard shortly after the state’s brief evidence as to its admissibility, and the state did not attempt, after the defense rested, to use rebuttal to introduce predicate evidence that should have been part of its case in chief.

III.

By motion for a new trial, the defendant contended that the prosecutor’s dosing argument had improperly referred to the testimony of a trial witness before the grand jury (indicating briefly that it had been to the same effect as her trial testimony). The defendant complains that the trial court erred in denying the new trial sought on such ground. Bill of exception No. 2.

No objection was made at the time of the remark, however, and the (non-prejudicial) error, if any, was waived by the failure then to object. La.C.Cr.P. art. 841. A prosecutor’s argument does not form part of “the pleadings and proceedings” which may be examined for patent error even in the absence of formal objection at the time. See La.C.Cr.P. art. 920(2) and State v. Feazel, 263 La. 134, 267 So.2d 548 (1972).

IV.

The defendant calls to our attention that sentence was imposed immediately after denial of the motion for a new trial and without the delay of twenty-four hours required by La.C.Cr.P. art. 873 (unless waived by the defendant). The case must therefore be remanded for resentencing. State v. Navarre, 292 So.2d 210 (La.1974).

At that time, the trial court will give the defendant credit for time spent in custody prior to sentence, La.C.Cr.P. art. 880 (1970) if (as defendant complains, despite a minute entry to the contrary) such has not been done already.

Decree

For the foregoing reasons, we affirm the conviction, but we remand for sentencing in accordance with law.

Conviction affirmed, case remanded for sentencing.

BARHAM, J., dissents.

      . The defense is in error stating the record shows it was denied a requested opportunity to traverse the predicate before the confession was introduced. Tr. 81. When the prosecutor offered the witness for traversal, the trial court held that such would be inappropriate at that time. The defendant did not object to the ruling or to the procedure.

      . Such problems arise if the defendant cannot, contemporaneously with introduction of the confession, produce evidence of alleged coercion (which goes to the jury only for its weight). Therefore, after hearing the predicate outside the presence of the jury (either by pre-trial motion, as here, or at the trial itself) and determining admissibility, some trial judges exercise their discretion in favor of permitting the predicate to be repeated to the extent desired by the parties, before the jury before formally admitting the confession in evidence. See cases cited in next paragraph of the text and in the authorities cited therein.


author: DIXON, Justice. BARHAM, J.,

text:
    STATE of Louisiana v. William R. BRUMLEY.
    No. 56354.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.
    James D. Sparks, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., for plaintiff-appellee.
   DIXON, Justice.

Billy Brumley was convicted on November 19, 1974 of the murder of Cheryl Be-denbender, an eleven year old child. Defendant was sentenced to life imprisonment and appeals to this court preserving seven assignments of error which incorporate twelve objections made during trial.

In his third assignment of error, defendant argues that the trial court erred by curtailing defendant’s voir dire examination. This assignment is based upon seven questions which defendant intended to ask each prospective juror but which were ruled improper for voir dire examination.

1. “Now, if I were to tell you and say that if a statement or a confession of the accused, statement or confession, however you have it were introduced and accepted by this court in evidence in this trial what affect (sic) would that have upon you ?
2. “. . . do you think that physiological (sic) pressures may cause an in-noncent (sic) person to confess.
3. “. . . if a confession is introduced into evidence in this case will you take into consideration these points, where it was obtained, under what cir-custances (sic) was it obtained, by whom was it obtained.
4. “. . . do you think that being alone and under police custody and interrogation may tend to frighten a man and may make him say things under a different state of mind than he usually has.
5. “. . .do you think there is such a thing as mental coercion.
6. “. . .in determining, that determining whether a statement is voluntary, would you take into consideration the age, the background, the mental capacity and the family background of the accused.
7.“. . . that determining whether a statement is voluntary, would you take into consideration the police motives at the time of the questioning and whether they were trying to assist the accused or to obtain a statement.”

The trial court sustained objection to these questions, instructing defense counsel that it would be proper to ask whether the juror would follow the instructions given by the court as to the necessity of free and voluntary confessions.

With the exception of questions three and six, we agree that there was no error in excluding the questions propounded by defense counsel as inappropriate for voir dire examination.

In State v. Jones, 282 So.2d 422 (La.1973), we held that because the object of the law is to select impartial jurors to try the issue between the State and the defendant, counsel in criminal cases should be allowed a wide latitude in voir dire examination. The settled rule in this State is that the admissibility of confessions is for the trial court, whereas the weight to be given the confession is for the jury. State v. Adams, 296 So.2d 278 (La.1974); State v. Asher, 294 So.2d 223 (La.1974); State v. Green, 282 So.2d 461 (La.1973); State v. Doiron, 150 La. 550, 90 So. 920 (1922).

Moreover, our opinion in Doiron expressed the purpose of presenting evidence of the circumstances surrounding the confession first to the court for the determination of admissibility and then to the jury for the determination of the weight to be given the confession:

“. . . As before stated, we can see no reason why the trial judge cannot send the jury out, and first determine for himself the question of the admissibility of the alleged confession, in order that, if he decides to exclude it, the jury may not be affected by any prejudicial matter preliminarily brought out. But where he does determine that it is admissible, the accused is entitled to have all the circumstances go before the jury as a preliminary matter, for they have the right to determine the weight of all evidence, and to say whether statements, alleged to have been voluntarily made, were in fact so made, and, if not, to disregard them. . . .” (90 So. 920, 921).

In his third and sixth questions, defendant sought to assure that jurors were not accepted who would not take into consideration the age and background of the defendant and the circumstances under which the confessions had been obtained. A defendant who is unable to inquire of potential jurors as to any tendentious attitude toward these criteria is unable to effectively make challenges for cause and peremptory challenges. Defendant’s questions were not an attempt to lecture on the law of confessions nor were they an attempt to induce the jurors to commit themselves in advance. Nor does it offer adequate security toward obtaining an unbiased jury, for a potential juror, in response to the general question whether he will accept the law as given him by the court, to recite that he will accept such instruction when the juror has no concept of the complex nature of the law and where the issue is so interrelated to basic rights under the Fifth Amendment to the Constitution of the United States and Art. 1, § 16, La.Const. of 1974.

Because of the importance of the rights involved and policy of the State in allowing defense counsel a wide latitude on voir dire examination, we hold that the trial court abused his discretion by refusing to allow defense counsel to propound the heretofore discussed questions to potential jurors on voir dire.

Because we reverse and remand for a retrial, and because of the likelihood that upon retrial confessions will again be introduced which defendant claims were gained in violation of his constitutional rights, we consider the issues raised with respect to the admissibility of confessions allegedly given by defendant.

During trial defendant objected to the introduction of evidence of three oral inculpatory statements or confessions, one written confession, and a demonstration given to police by defendant during the interrogation. These objections are represented in five of defendant’s assignments, each of which presents the question whether it is inadmissible because it was involuntarily extracted from defendant.

On March 12, 1973 the deceased, an eleven year old girl, was reported missing. On the following morning she was found dead, the victim of strangulation and suffocation.

Defendant was routinely questioned by police on the night the victim was reported missing and on the following morning. He was not questioned again until the following Friday, March 16, 1973, at which time he was given a Psychological Stress Evaluation test (known as P.S.E.). This test indicated that defendant was under “stress” when he answered certain of the investigator’s questions relating to the death of the victim. On Monday, March 19, 1973 defendant was requested again to come to the sheriff’s office in order that the matter could be further investigated.

On this occasion defendant arrived at the sheriff’s office at around 6:45 p. m. and was interrogated by Sheriff Capers of West Carroll Parish, Special Agent Vail of the F.B.I., Lieutenant Marson and Sergeant Breaux of the Louisiana State Police, and Messrs. Hughes and Watson of the Morehouse Parish sheriff’s office.

According to testimony of the officers present during the interrogation, defendant was immediately advised that he was under no compulsion to remain at the sheriff’s office; he was advised orally of his Miranda rights, and he signed a written waiver of these rights (this form is included in the record before us and recites that it was signed at 6:57 p. m.).

Defendant was then interrogated as to his involvement, if any, in the murder of the victim. He was given the P.S.E. test three times before approximately 11:30 p. m., the time of the first confession, and was informed that each test indicated that he was under “stress” in his responses. Between each test defendant would request to speak to Sergeant Breaux, and, seeking advice, would tell him, “the machine says I’m lying.” The officer’s response was that defendant should take the test again. At approximately 11:30 p. m., after four and one-half hours of questioning, defendant gave an oral confession, which was immediately followed by a written confession. At this time he was palpably upset, taking approximately fifteen minutes to write his one paragraph confession.

Subsequently, defendant demonstrated for interrogating officers the position in which he had left the body of the victim at the scene of the crime; each officer testified that the position demonstrated by defendant was identical to that in which the body of the victim had been found.

Defendant then asked to speak to the district attorney, for whom he had done some work in the past, and told him, in privacy, that he (defendant) had let him and his (defendant’s) parents down by killing the victim. Defendant gave the district attorney a description of the murder, identical to that previously given to police officers, which was admitted at trial.

The third oral inculpatory statement admitted at trial was given to Sheriff Capers just prior to the formal arrest of defendant at 4:45 a. m. It amounted to defendant’s statement, “I did it.”

Defendant contends that although he was informed of his right to an attorney he was told that he didn’t need one inasmuch as he was there only to “help them out if he could.” He contends that during the interrogation he was told that his fingerprints had been connected with the case; that tire tracks left by his car had been taken at the scene of the crime; that samples of the victim’s hair had been found in his car; and that dirt matching samples taken at the scene of the crime had been found in his car. Defendant also argues that although he was told at the beginning of the interrogation session that he could leave, it later became apparent that he could not; moreover, he maintains that he asked agent Vail how long he would be kept and that the agent told him “that is up to the district attorney.” Except for this testimony given by defendant at the motion to suppress, there is nothing in the record which tends to support his allegations.

Two psychiatrists who examined the accused reported that defendant’s intelligence quotient ranged from 86 to 90, the borderline between normal and dull normal. Both doctors joined in this report, although one had initially classified defendant as retarded.

The question of “voluntariness” as it relates to confessions has been recently discussed by the Supreme Court of the United States in Schneckloth v. Bustamonte, supra. There the court noted that there is no “talismanic” definition of voluntariness and that there are societal interests to be balanced:

“Rather, ‘voluntariness’ has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement- of criminal laws. See Culombe v. Connecting, supra, at 578-580, 81 S.Ct., at 1865-1866. ... At the other end of the spectrum is the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice. ‘[I]n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.’ Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242. See also Culombe v. Connecticut, supra, 367 U.S., at 581-584, 81 S.Ct., at 1867-1869; Chambers v. Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472, 476-478, 84 L.Ed. 716.” (412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854).

The court further stated that the determination whether a defendant’s will has been overborne turns upon all the facts of the case:

“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of .all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. . . . ” (412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854).

Having reviewed the jurisprudence dealing with this determination, we are unable to agree that defendant’s confession was given involuntarily.

Defendant was not brought to the sta-tionhouse, rather he was asked to appear and did so free of duress. Defendant was apprised of his rights previous to the commencement of any interrogation. He was informed that he was not under arrest and that he was free to leave if he so desired. During the four and one-half hours of interrogation preceding defendant’s confessions, he was not denied the assistance of counsel and, as previously noted, he had been cautioned as to his absolute right to remain silent and his right to require that the questioning be terminated if he desired an attorney. The record before us demonstrates no change in these circumstances prior to the time of defendant’s confessions.

To require more of investigating officers would be to place too great a burden on “the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws” and distort the concept of “voluntariness” embraced by the Fifth Amendment to the federal Constitution and Art. I, § 16, La.Const. of 1974.

The confessions were not inadmissible, but because of the restriction placed on the voir dire examination, the conviction and sentence are reversed and the case is remanded to the district court for a new trial.

SANDERS, C. J., dissents.

BARHAM, J.,

concurs in decree of reversal, being of opinion the confessions were coerced through psychological persuasion of an enormous magnitude.

      . See Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973), where the United States Supreme Court, referring to the body of cases involving the determination of the voluntariness of confessions, opined:
      “Those cases yield no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen. ‘The notion of “voluntariness,” ’ Mr. Justice Frankfurter once wrote, ‘is itself an amphibian.’ Culombe v. Connecticut, 367 U.S. 568, 604-605, 81 S.Ct. 1860, 1880-1881, 6 L.Ed.2d 1037. ...”

      . Messrs. Hughes and Watson administered the P.S.E. test and had no other function relating to the interrogation nor were they present during the interrogation by other officers.

      . According to the psychiatrists, the normal range is from 90 to 100 whereas retardation ranges from 55 to 60.

      . See cases cited in Schneckloth, supra, 412 U.S. at 226, 93 S.Ct. 2041, and in Spano v. New York, 360 U.S. 316, 321, fn. 2, 79 S.Ct. 1202, 3 L.Ed.2d 1265.


author: DIXON, Justice.

text:
    Maurice Fred MILLER et al. v. CHICAGO INSURANCE COMPANY et al.
    No. 55987.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    April 30, 1975.
    Rehearing Denied Oct. 31, 1975.

      Edward C. Abell, Jr., Davidson, Meaux, Onebane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendants-applicants.
    Homer Ed Barousse, Jr., Edwards, Ste-fanski & Barousse, Crowley, for plaintiffs-respondents.
   DIXON, Justice.

This is a personal injury action filed by the plaintiff, Maurice Fred Miller, individually and on behalf of the minor, Mamie Rene Miller. The injury complained of occurred in an automobile accident on August 19, 1972. The defendant insurance company admitted liability and the issue of quantum was tried before a jury. The jury awarded plaintiff a judgment in the amount of $21,000 for general damages. The day after this judgment the plaintiff filed a motion requesting that the trial judge order an additur to raise the judgment to the sum of $50,000, or, alternatively, order a new trial. After a hearing on this motion the judge ordered an additur of $20,000, or, if the defendant refused to accept this, a new trial. The defendant then filed a document styled “Acceptance of Additur Under Protest,” stating that the defendant accepted the additur of $20,000 but did so “under protest and with full reservation of their rights to appeal or answer in any appeal . . .” The defendant appealed to the Third Circuit Court of Appeal and plaintiff answered the appeal. The issues presented to that court concerned the propriety of the actions of the trial judge in this case and the scope of appellate review. Miller et al. v. Chicago Insurance Co., La.App., 306 So.2d 355 (1975). This court granted writs of cer-tiorari because of the apparent conflict of the opinion in this case with a previous opinion of the Second Circuit on the issue of the proper interpretation of C.C.P. 1813 (Parks v. Liberty Mutual Insurance Co., 291 So.2d 505 (La.App. 2d Cir. 1974)), and because of the apparent conflict of this case with a previous opinion of the First Circuit concerning the proper method of review of judgments which are based on an additur or remittitur (Sukker v. Newsom, 264 So.2d 228 (La.App. 1st Cir. 1972)).

Before discussing these conflicting opinions of the circuit courts a broader problem presented by this case must be considered. The question is whether the issue of the proper amount of damages to be awarded in this case is properly before this court. The solution to this problem depends on whether the “acceptance” of the additur or remittitur by the affected parties constitutes a waiver of their right to raise this issue on appeal. Can a party, who has been ordered to accept a change in the judgment of the jury, or face a new trial, accept the ■ benefit of the change in judgment which allowed him to avoid the order of a new trial, and then appeal that change in judgment? We think that under the facts of this case, the defendant is precluded from appealing the issue of quantum after accepting the additur imposed by the trial judge in lieu of a new trial.

The Louisiana Code of Civil Procedure provides for both additur and remittitur of judgments in cases tried before a jury. As in the federal system, and other state systems, this procedure is connected with the procedures concerning new trials. In Louisiana the trial judge has great discretion in ordering or denying new trials. Moreover, an order granting or denying a new trial is not appealable, but is reviewable under the appellate courts’ supervisory jurisdiction for abuse of discretion. However, it is only when the trial judge is of the opinion that a new trial should be ordered because the verdict is excessive or inadequate that remittitur or additur is available as a means of avoiding a new trial.

C.C.P. 1813 provides:

“If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.”

The redactors comments under this article indicate that the idea of additur and re-mittitur had grown up as a matter of practice without statutory authority. The system of additur and remittitur chosen was one recommended by Arthur Vanderbilt in Minimum Standards of Judicial Administration (New York University, 1949). Vanderbilt was interested in streamlined, efficient procedures for judicial administration. The purpose of the statutory authority for additur and remittitur was to avoid new trials and promote judicial efficiency. This is confirmed by McMahon in his article on the Code of Civil Procedure, 21 La.L.Rev. 1, at 35 (1960).

The Louisiana statutory scheme requires the consent of the party adversely affected by an additur or remittitur. The party is offered an opportunity, when asked by the trial judge, to agree to a change in the judgment, thereby avoiding the expense and delay of a new trial. The order of an additur or remittitur is therefore contingent; if the party does not agree to the change, he elects to submit to a new trial. Therefore, in consenting to the additur or remittitur, a party in effect agrees to promote judicial efficiency by binding himself to a fixed quantum. It would be inconsistent with the purpose of the system to allow the consenting party to raise the quantum issue on appeal, should the consenting party appeal.

At common law, the well established rule was that the party who accepted the remittitur was bound by his election and could not thereafter raise the issue of the correctness of the quantum award. This was so even if the other party appealed the amended award seeking a further change in the judgment.

Our research has uncovered only one jurisdiction which allows the procedure followed by the defendant in this case. The federal Fifth Circuit Court of Appeals has held that if the plaintiff accepts the remit-titur under protest he can appeal the issue of quantum to the appellate court. Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (5th Cir. 1966).

The Seventh Circuit has expressly refused to follow this rule. Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); Casko v. Elgin, Joliet and Eastern Ry. Co., 361 F.2d 748 (7th Cir. 1966). The Second Circuit has also followed the traditional rule. Mattox v. News Syndicate Co., 176 F.2d 897 (2d Cir. 1949). Several state courts have recently re-examined the traditional common law rule and have either rejected the right to raise the issue on appeal or have amended the rule as noted below. None of the jurisdictions examined in our research has decided to follow the Fifth Circuit rule.

The recent re-examination of the principle that the accepting party is bound by his election and cannot thereafter raise the quantum issue on appeal has been prompted by a decision of the Wisconsin Supreme Court which allowed the remitting party to raise the issue of quantum when the other party appe.aled the verdict. Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963). In Plesko, the plaintiff sued for personal injuries and was awarded $9,950 by the trial jury. The trial judge issued an order for a new trial unless plaintiff accepted a remittitur reducing the judgment to $5,500. The Wisconsin Supreme Court had previously announced that it would follow the general common law rule forbidding the accepting party to raise this issue on appeal. Burmek v. Miller Brewing Co., 12 Wis.2d 405, 107 N.W.2d 583 (1961). In Plesko the defendant appealed after the plaintiff had accepted the remittitur. The court held that when the opposing party appealed the case the plaintiff would be allowed to raise the issue of the propriety of the judge’s action in ordering the remittitur. The court stated the following:

“The reasons motivating the majority to adopt the foregoing rule are these: The objective underlying the recommended procedure for granting an option to accept judgment for a reduced amount of damages in lieu of having a new trial, where the damages awarded by the jury are determined by the trial court to be excessive, is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party’s accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal. Furthermore, the new rule herein announced may to some extent discourage appeals by the party held liable because of the possibility that the party who has accepted judgment for the reduced damages may prevail on his motion for review and have the jury’s verdict reinstated.” (120 N.W.2d 130, at 135).

Several jurisdictions have decided to follow the Plesko rule since that decision. Schliessman v. Anderson, 31 A.D.2d 367, 298 N.Y.S.2d 646 (1969); Mulkerin v. Somerset Tire Service, Inc., 110 N.J.Super. 173, 264 A.2d 748 (1970); Jangula v. Klocek, 170 N.W.2d 587 (Minn.1969); Templeton Feed & Grain v. Ralston Purina Co., 69 Cal.2d 461, 72 Cal.Rptr. 344, 446 P. 2d 152 (1968) (approved in dicta). Other jurisdictions have refused to follow this rule, relying instead on the traditional common law rule that after the acceptance of the remittitur the plaintiff cannot raise the issue of quantum on appeal even if the other party does appeal the verdict. Hudson v. Otero, 80 N.M. 668, 459 P.2d 830 (1969); State v. Tuscon Title Ins. Co., 101 Ariz. 415, 420 P.2d 286 (1966). We feel the Wisconsin approach is a workable one and consistent with the purpose of the ad-ditur-remittitur device.

Two conflicts now exist between the circuit courts of this state. The first issue presented by this case is whether general damages are “separately and fairly” ascertainable within the meaning of C. C.P. 1813. Because article 1813 says that additur or remittitur “is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained,” it is argued that additur and remittitur are available only when an item of damages has been included or excluded from the judgment erroneously. This is not the meaning of the phrase.

Additur and remittitur are alternatives to granting a new trial. The provisions governing new trials are found in C.C.P. 1971 and following, but refer back to articles 1813 and 1814 or special provisions applicable to jury trials, which are treated in the Code of Civil Procedure in the final chapter of Title V (Trial); new trials generally are treated in Title VI (Judgments), chapter 4 (Modification in Trial Courts).

The Code of Civil Procedure articles on new trials made a change in the prior law. No longer is it necessary to grant a new trial on the whole case; a new trial can now be granted on “all or part of the issues.” This change, according to the redactors comment (e) following C.C.P. 1971, incorporated the provisions of Federal Rule 59, which was a recommendation of the American Bar Association in its Committee on Trial Practice Report of July, 1938, at page 555. There it was urged that the power be exercised sparingly “and then only where the several issues are clearly and fairly separable.” This appears to be the source of the provision that additur and remittitur are available only when the excess or inadequacy can be “separately and fairly ascertained.” Thus it is clear that it was not intended that additur and remittitur be available only when an item of damages can be isolated and found to have been erroneously included or excluded, but that additur and remittitur are available if the issue of quantum is clearly and fairly separable from the other issues in the case.

We cannot agree with the interpretation offered by the Second Circuit in Parks. Its interpretation of article 1813 would render it almost totally useless. In effect the trial judge would be allowed to use ad-ditur and remittitur only to correct a judgment which had incorrectly included or excluded an item of damages, or to correct errors in calculation. (See C.C.P.1951 concerning modification of judgments). The interpretation of C.C.P.1813 by the Parks court is contrary to the purpose of the article, which is to avoid unnecessary new trials. Under the Parks decision, the trial judge would' have no alternative to ordering a new trial if he finds the verdict is grossly inadequate or excessive, a power which he already has even in the absence of article 1813. See C.C.P.1972,1973.

The second conflict between the appellate courts in the area of additur and' re-mittitur involves the proper scope of review by the appellate court. The First Circuit Court of Appeal held in Sukker v. Newsom, supra, that if the trial judge’s amended award and the award made by the jury are both within the range of discretion of the trier of fact under C.C.1934 (see Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963)), then the trial judge’s award was an abuse of his discretion and the jury award is therefore reinstated. This approach to appellate review is incorrect, since it ignores the power of the trial judge to award a new trial. If the result of an appeal is to ignore the trial judge’s additur or remittitur, reviewing the award exactly as it would be reviewed without the trial judge’s intervention, then the use of additur and remittitur is meaningless. The Third Circuit recognized this fundamental principle of appellate review in the instant case:

“Bearing in mind the rules announced by the cited authorities, we conclude that our review of the trial court’s action is to determine whether there was a clear abuse of his wide discretion in ordering either additur or new trial in this case. “We are aware that our holding is contrary to the thoughtful opinion by Judge Hall of the Second Circuit in Parks v. Liberty Mutual Ins. Co., 291 So.2d 505 (La.App. 2 Cir. 1974). In that case, it was concluded that it is impossible for the trial judge to separately and fairly ascertain the.amount of damages to parents for the loss of a child. However, the Second Circuit proceeded to find that the appellate court could determine the proper amount of damages to be awarded, presumably separately and fairly ascertaining the amount in question. There is a fallacy in the logic of the procedure used, in our opinion.
“We have adopted the view that the trial judge can fairly and separately determine whether the amount of general damages is so inadequate as to require additur or new trial. We continue to hold that view.
“Thus, we find that it is necessary only to review the final amount of the judgment to determine whether it is within the ‘much discretion’ contemplated by LSA-C.C, Art. 1934.
“The argument has been made that the appellate court must examine only the award made by the jury and if it is within the range of discretion, then the additur must be ignored, the thought being that to do otherwise is to impair the ‘integrity of the jury verdict.’ Sukker v. Newsom, 264 So.2d 228 at 230 (La.App. 1 Cir. 1972); Robison v. Garnett, 238 So.2d 58 (La.App. 1 Cir. 1970).

“However, this argument is not persuasive because an integral part of the jury system is the trial judge who, among other functions, hears all the witnesses, views and rules on the admissibility of all the evidence, instructs the jury, and determines whether the verdict is in accord with the law and evidence. He is in a position to determine whether the award is so inadequate as to require his action.

“As the Louisiana’Supreme Court has recently observed:
‘The judge already has the power to set aside a jury decision with which he is not in accord . . .’ Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974).” (306 So.2d 355, at 359-360).

We agree with the reasoning of the Third Circuit and therefore hold that, on appeal, review should be limited to the final judgment of the court, reflecting the additur or remittitur, to determine if that award is within the “much discretion” contemplated by C.C.1934.

A review of the Louisiana jurisprudence reveals the confusion presently existing on the additur-remittitur device. In Spizer v. Dixie Brewing Co., 210 So.2d 528 (La.App. 4th Cir. 1968), the jury awarded the plaintiff $150,000 in general damages. The judge ordered a remittitur of $75,000 or a new trial. Plaintiff accepted the remittitur, reserving his right to answer any appeal by defendant. The defendant appealed, and plaintiff answered the appeal, seeking an increase in the reduced award. On a motion to dismiss the plaintiff’s answer, the court held:

“Clearly it would be inequitable to allow the defendants to seek a further reduction of the award by appeal and at the same time deny plaintiffs the equivalent right of seeking an increase by way of answer to that appeal. See Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W. 130, 16 A.L.R.3d 1315. This is especially true in Louisiana (it appears to be the minority view in the common law states) where the effect of the denial of a new trial is less disadvantageous to either litigant than it is in many other jurisdictions. For in this state the appellate courts review both the law and the facts and, upon proper showing, have the authority to grant greater or lesser awards than did the trial judge or jury.” (210 So.2d 528, at 530).

Under our decision today, this holding is correct. When the defendant appeals a judgment, the plaintiff, who has accepted a remittitur in lieu of a new trial, can answer the appeal, seeking an increase in the award. This is not unfair to the defendant, because the award up for review is that of the judge, not the jury, in determining whether the award is within that discretion contemplated by article 1934 of the Civil Code.

In Robison v. Garnett, 238 So.2d 58 (La.App. 1st Cir. 1970), the jury awarded the plaintiff $225,718 in damages. On defendant’s motion for a new trial, the court, as an alternative, ordered a remittitur of $90,000. Plaintiff accepted the remittitur under protest and with reservations of his rights to appeal or answer defendant’s appeal. The defendant appealed and plaintiff answered that appeal and also appealed himself, seeking a reinstatement of the jury verdict. In denying defendant’s motion to dismiss plaintiff’s appeal, the court held:

“We agree with the ruling in Spizer and hold that the restrictive acceptance of the remittitur with' full reservation to appeal or to answer any appeal that might be entered by the defendants is not such an acquiescence in a judgment that would preclude an appeal under C. C.P. Article 2085. Assuming arguendo, that plaintiff cannot accept a remittitur under protest and then appeal, plaintiff has answered defendants’ appeal and by virtue of such answer may seek any redress as though he had in fact appealed. C.C.P. Article 2133.” (238 So.2d 58, at 59).

Under our decision today, the plaintiff could not have taken an appeal from the judgment reflecting a remittitur which he accepted in lieu of a new trial. Plaintiff is limited to answering an appeal by the defendant; if the defendant chooses not to appeal, plaintiff cannot appeal seeking a review of the award. It is of no matter that plaintiff accepts the remittitur under protest and with full reservation of his rights. By accepting the remittitur, plaintiff abandons the right to appeal the quantum issue. Therefore, we disapprove of language in Robison indicating that plaintiff could appeal the quantum issue.

In Sukker v. Newsom, supra, the jury awarded plaintiff $16,500. Plaintiff moved for a new trial, and the judge offered an additur of $3,500 as an alternative. The defendants accepted the additur, reserving their right to appeal from the judgment. On appeal, the First Circuit ordered the jury verdict reinstated. Under our decision today, this is incorrect. The defendants, by accepting the additur in lieu of a new trial, abandon the right to appeal the issue of quantum. Sukker v. Newsom, supra, is overruled.

In Parks v. Liberty Mutual Insurance Co., supra, the jury awarded plaintiffs, husband and wife, $78,300 and $75,000, respectively. Defendants moved for a remit-titur or a new trial, and the judge ordered a new trial, unless plaintiffs consented to remittiturs of $50,000 each. Plaintiffs accepted the remitturs, reserving their right to appeal or answer any appeal. The defendants did not appeal the judgment. Plaintiffs appealed. In denying defendants’ motion to dismiss the appeal, the court held:

“Defendants urge plaintiffs are precluded from appealing from the judgment of the district court because they consented to the order of remittitur as an alternative to a new trial. Plaintiffs accepted the remittitur under protest and with full reservation of their rights to appeal or answer any appeal. Consent to a remit-titur in lieu of a new trial with reservation of the right to appeal does not amount to a voluntary or unconditional acquiescence in a judgment which precludes an appeal under LSA-C.C.P. Art. 2085. . . .” (291 So.2d 505, at 507).

Under our decision today, this was error. Plaintiffs, having accepted the remittiturs in lieu of a new trial, cannot thereafter appeal the quantum issue. Plaintiff can only answer an appeal, should defendant appeal from the judgment, to seek an increase in the reduced award. Parks v. Liberty Mutual Insurance Co., supra, is overruled.

In the instant case, the defendant, after accepting the additur under protest and with reservation of his right to appeal, did in fact appeal the judgment. Logically, under our decision today, his appeal should have been dismissed, because, by accepting the addititur in lieu of a new trial, he abandons the right to appeal on the issue of quantum (the only issue in this case). Nevertheless, because the defendant relied on past jurisprudence which we overrule today, we discuss the merits, to show that the judge’s award was not an abuse of discretion.

After the trial judge added $20,000 to the jury award, the plaintiff daughter received a total of $41,000. The plaintiff was injured when the car in which she was a guest passenger ran off of the road near the intersection of Interstate 10 and Louisiana Highway 1111. She suffered compression fractures of the twelfth dorsal and first lumbar vertebrae. These fractures resulted in severe pain at first, gradually diminishing. She was placed in a brace so that the spine would be kept in the proper position. Dr. Meuleman, an orthopedic surgeon, testified that although the girl did not now have damage to the nervous system other than in the immediate area of the fractures, she would likely have problems with nerve pressure in the future. Although the doctor testified that she might require surgery, an earlier report by the same doctor showed that it was unlikely that future surgery would be needed. There is no doubt, however, that the plaintiff will develop pains in her back in the future. She also will develop moderate pain if she engages in any strenuous activity for a considerable period of time. Dr. Meuleman estimated the present disability of the plaintiff at 20%, although at the time of the trial she did not have any mobility restrictions, and he concluded that this disability would gradually increase with time.

Dr. Ardoin, a dental surgeon, also examined the girl after the accident. Dr. Ar-doin testified that her four front teeth were loosened by the accident. They had come out of their normal sockets and had been moved down out of line. The doctor indicated that he repaired the teeth by “splinting” them into place. This process involves moving the teeth into place and then restraining them by use of a brace, worn for a month and a half. The doctor testified that when he discharged her from care the teeth were in the proper position, but several of them appeared dead and others had superficial cracks. Dr. Bienvenu, a specialist in root canal work, was called to testify concerning the teeth. He testified that his examination showed that only one tooth was dead after the teeth had been splinted back into place. The doctor performed root canal work on this one tooth and testified that the only future effect of the work would be a discoloration of the tooth.

The young girl took the stand and testified that in addition to the injuries the various doctors testified to, she received cuts on the arms and legs and around her mouth and a swollen neck.

In light of the serious injuries to this young girl, the trial judge was correct in ordering the additur of $20,000. The Court of Appeal was correct in affirming this award.

The judgment of the Court of Appeal is therefore affirmed, and costs are assessed against defendants-appellants.

SUMMERS, J., dissents.

BARHAM, J., does not participate.

      . See C.C.P. 2085. “An appeal, cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

      . Fed.ft.Civ.P. 59.

      . Southern Natural Gas Co. v. Roland, 240 La. 471, 123 So.2d 891 (1960); City of Baton Rouge v. Downtown Investment Corp., 290 So.2d 748 (La.App. 1st Cir. 1974); Bailey v. Vinton Nursery, Inc., 285 So.2d 317 (La.App. 3rd Cir. 1973).

        . Succession of Robinson, 186 La. 389, 172 So. 429 (1936); Foster v. Kaplan Rice Mill, Inc., 203 La. 245, 13 So.2d 850 (1943); Hardy v. Kidder, 267 So.2d 582 (La.App. 3rd Cir. 1972), affirmed 292 So.2d 575 (1973), reversed on rehearing, 292 So.2d 575 (1974); Simmons v. Beauregard Parish School Board, 284 So.2d 668 (La.App. 3rd Cir. 1973); Pate v. Crescent Motors Exchange, Inc., 256 So.2d 471 (La.App. 4th Cir. 1972); Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir. 1962); Sears, Roebuck and Co. v. Cannizzarro, 142 So.2d 566 (La.App. 4th Cir. 1962).

      .In the federal courts and in many states additur is not allowed because of the conclusion that it would violate the Seventh Amendment right to trial by jury. Since this rule was announced by the United States Supreme Court in Dimick v. Scheidt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (a five-four decision), it has been continuously criticized. Recently the California Supreme Court announced that it would no longer follow Dimick holding that a trial judge has the same power to enter an additur as it does to enter a remittitur. Jehl v. Southern Pac. Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988 (1967). Because many jurisdictions only allow remittitur most of the cases on the question of the effect of consent deal with remittitur. Since Louisiana treats additur and remittitur the same, the cases dealing within this issue in remittitur situations are analogous.

      . See 16 A.L.R.3d 1327.

      . For a collection of. these cases, see 16 A.L.R.3d 1327.

      . Tennessee has allowed an appeal after acceptance of a remittitur by statute since 1911.

      . The Second Circuit reached this result in Parks v. Liberty Mutual Insurance Co., supra:

      “Plaintiffs argue that the amount of excess of a verdict for general damages such as pain and suffering or loss of love, companionship and affection in a personal injury suit or a wrongful death action, cannot be ‘separately and fairly ascertained’, in view of the much discretion allowed to the trier of fact in assessing such damages under LSA-Civil Code Art. 1934(3).
      “Although the position urged by plaintiffs has never been raised in any of the reported Louisiana cases dealing with remittitur, all or most of which involved general damages, we believe the position to be sound and well taken.” (291 So.2d 505, at 507).


text:
    STATE of Louisiana v. Daniel F. BEACH.
    No. 56230.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Michael Aloise, Jr., Law Offices of Anthony J. Guarisco, Jr., Morgan City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boud-reaux, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Daniel F. Beach was indicted by the grand jury for the first degree murder of Lee G. Newsom while engaged in the perpetration of armed robbery in violation of La.R.S. 14:30. He was tried by jury, found guilty of second degree murder, and sentenced to imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence for a period of twenty years. He perfected four bills of exceptions reserved at trial. On appeal to this court, he assigns three errors based on these bills for reversal of his conviction and sentence.

FACTS

On February 12, 1974, Lee G, Newsom was found dead in a hotel room in Morgan City. The day before he had checked in the hotel with Daniel F. Beach and Lawrence Scott, who were assigned a room connecting with his. The three men were seen together in a nearby cafe on the night before the body was discovered. The victim, Newsom, had been strangled with a strip of towel which was wrapped around his neck. He had a gag in his mouth and his hands and feet were tied with other strips of towel. He had been beaten about the face, and there also appeared a number of small puncture wounds in the area of his throat. A broken bottle was found next to his body which was lying on the bed in a pool of blood. Other small strips of towel were found in the connecting room occupied on the night of the crime by Beach and Scott. Cause of death was listed as asphyxia due to strangulation. Both Beach and Scott were AWOL from the Marine Corps. They had gone to Morgan City to seek employment offshore. Several job applications had been filled out in furtherance of this purpose. On the day prior to the murder, they had met Newsom who agreed to help them find a job. Defendant related the events which occurred on the night of the crime and also accounted for his whereabouts until surrendering to the authorities in Charlotte, North Carolina, on February 23, 1974. Ultimately, he was returned to Morgan City on May 18, 1974. Immediately upon his arrival at headquarters in Morgan City, Beach was given his Miranda warnings, and he executed a written waiver of rights form. Thereafter, he made an oral statement. No secretary being available at that time, Beach wrote the statement out in longhand and signed it. As he was finishing the statement, the secretary arrived. Thereupon, he was requested to dictate the statement to the secretary, which he did. The statement was immediately typed and, upon completion, was handed to him to read. After reading it, he signed his name to each of the four pages of the document.

ASSIGNMENT OF ERROR NO. 1

Defendant urges in this assignment of error that the trial judge erred in allowing in evidence certain photographs of the scene of the crime and the body of the victim. It is claimed that the photographs are so repulsive that the prejudicial effect outweighed the probative value.

There were seven photographs in all. Two showed the condition in which the victim was found in the hotel room while the remaining five photographs were of the scene of the crime. One of the photographs of the victim shows him lying on the bed with a strip of towel wrapped around his neck. The coroner had testified that the cause of death was asphyxia due to strangulation.

Generally, photographs of the body of a victim depicting the fatal wounds are relevant to prove the corpus delecti, to corroborate other evidence of the manner in which death occurred and to establish the location, severity and number of wounds, and the identity of the victim. The test of admissibility is whether the probative value of the photographs outweighs the prejudice which may result from their display to the jury. State v. Fallon, 290 So.2d 273 (La.1974). The circumstance that the photographs are gruesome does not of itself render them inadmissible. State v. Curry, 292 So.2d 212 (La.1974).

Here, the photographs were clearly admissible to corroborate the manner in which the death occurred and the expert testimony as to the cause of death. They also had probative value to show the condition in which the body was found in relation to other pieces of physical evidence and for the purpose of identifying the victim. Our review of the photographs confirms the finding of the trial judge that they are not gruesome, and their probative value outweighs any possible prejudicial effects. Hence, the photographs were properly received in evidence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Presented in this assignment of error is the issue of whether defendant understood his fifth amendment rights and voluntarily waived these rights when he gave the oral and written inculpatory statements admitted in evidence at trial.

Defendant concedes that he was given the full range of Miranda warnings, and he signed a waiver form specifically waiving these rights. Principally, he relies upon certain testimony given by Lt. Rat-cliff at the motion to suppress which, he urges, indicates that, whereas defendant was told counsel would be appointed to represent him, it was only at arraignment that this would be accomplished. We find no merit to this contention.

The record clearly establishes that defendant was fully advised of his fifth amendment rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) by Assistant Chief Acosta in the presence of Lt. Ratcliff. A copy of the rights and waiver form was handed to defendant to follow as Asst. Chief Acosta read it to him. It was explained to defendant that he had a right to remain silent, that anything he said could be used against him in court, that he had a right to talk to a lawyer for advice before being questioned and to have him present during questioning. He was also told that if he could not afford a lawyer, one would be appointed for him before questioning if he so desired, and, if he should decide to answer questions at that time without a lawyer present, he still had a right to stop answering at any time. The waiver of rights form specifically states that he understood and knew what he was doing and that he did not want a lawyer present at that time. After Asst. Chief Acosta had read the rights and waiver form to him, defendant signed it. Thereafter, defendant made the oral and written inculpatory statements. The testimony of Asst. Chief Acosta was corroborated by Lt. Ratcliff who was present during the entire time.

The reference by Lt. Ratcliff to counsel being appointed when defendant came up for arraignment was not made until after defendant had been fully advised of his rights under Miranda, had signed the waiver form, and made the oral and written inculpatory statements. It was then that defendant questioned Ratliff as to the procedures that would follow and mentioned that when he had surrendered in North Carolina, counsel had been appointed to represent him. It is clear that the explanation given by Ratcliff regarding the appointment of counsel at arraignment was made in response to this inquiry and had reference to the events that would follow in the course of defendant’s prosecution for the crime. It was entirely gratuitous and did not detract in any way from the adequacy of the warnings given to defendant and the signing of the waiver form prior to his making the inculpatory statements. In our view, the record fully supports the ruling that defendant understood his fifth amendment rights and voluntarily waived same when he gave the oral and written statements. Hence, they are admissible and there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Prior to trial, the state, in .accordance with article 768 of the Code of Criminal Procedure, gave notice that it intended to introduce into evidence “a confession or inculpatory statement” made by defendant. Complaint is made that two confessions were admitted at trial, one confession written and signed in defendant’s own hand, and one typewritten and signed by defendant. Defendant contends he relied on the fact that only one confession was to be used at trial. Therefore, he suffered prejudice in the preparation of his defense. We find no merit in this-contention.

Upon arrival in Morgan City, defendant made an oral statement relating to the events of the night of the crime. No secretary being available at that time, he wrote the statement out in longhand and signed it. As he was finishing it, the secretary arrived. Defendant then dictated a more detailed statement to the secretary who immediately typed it for his signature. In essence, these two inculpatory statements were the same, the latter being merely a more detailed version.

By way of an ¿pplication for a bill of particulars, defendant sought information as to whether the state had in its possession any statements made by defendant, either verbal or in writing, which it “intends to use at the trial.” The state answered “Yes.” Well in advance of trial, defendant also filed a motion for oyer seeking to have the state furnish defendant with “copies of all written confessions and other written statements” made by defendant. Thereafter, a motion to suppress all written confessions was filed and set for hearing. The record of this hearing held on July 12, 1974 (some ten days prior to trial) shows that the state had previously furnished copies of the confessions to defendant in response to the prayer for oyer. During this hearing, the manner in which defendant had executed the two statements was explored in detail.

In view of the state’s affirmative response indicating its intent to use at trial statements made by defendant, together with the fact that copies of the two confessions, as well as the details relating to their confection, were in the possession of defendant prior to the time that the state gave notice as required by article 768, we conclude that defendant was not surprised nor prejudiced in the preparation of his defense. Consequently, there is no reversible error. Assignment of Error No. 3 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . See State v. Cosey, 261 La. 550, 260 So.2d 620 (1972); United States v. Lacy, 446 F.2d 511 (5th Cir. 1971); Massimo v. United States, 463 F.2d 1171 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973); Wright v. State of North Carolina, 483 F.2d 405 (4th Cir. 1973), cert. denied, 415 U.S. 936, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974).

      . Technical deficiencies in the notice required by article 768 of the Code of Criminal Procedure do not constitute grounds for reversal unless an accused is surprised or prejudiced thereby. State v. Sneed La., 316 So.2d 372 (1975). See also State v. Watley, 301 So.2d 332 (La.1974); State v. Normand, 298 So.2d 823 (La.1974); State v. Coates, 273 So.2d 282 (La.1973).