author: MARCUS, Justice. SUMMERS, J., DIXON, J.,

text:
    STATE of Louisiana v. Roy CLARK, Jr., et al.
    No. 57834.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 23, 1976.

      James J. Gleason, III, St. Tammany Parish Indigent Defender Program, New Orleans, for Brent Mikell.
    Ernest Prieto, Mandeville, Thomas A. Lussen, Jr., Baton Rouge, for Roy Clark, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Roy Clark, Jr. and Brent Mikell were indicted by the grand jury for the Parish of St. Tammany for the first degree murder of Clyde Sawyer, in violation of La.R.S. 14:30(1). After trial by jury, they were found guilty as charged and were subsequently sentenced to death. On appeal, defendants rely on twenty-one assignments of error for reversal of their convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 3

Defendants contend that the trial court erred in denying their motion for a change of venue. They argue that the pretrial publicity precluded them from obtaining a fair and impartial trial.

At the hearing on the motion for a change of venue, defendants introduced certain clippings from articles covering the incident appearing in newspapers having a circulation within St. Tammany Parish. It was also established that the incident was reported in several radio broadcasts and on television. 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. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); 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, defendants have failed to meet the burden of proof. The evidence consisted of only a few news articles and the fact that the incident had been reported in several radio broadcasts and on television. The news articles were not in the least inflammatory. The offense occurred on February 1, 1975. There was no evidence of any news coverage after March, when the grand jury indictments were returned. The trial commenced on October 13, 1975, some eight months after the offense. The voir dire examination reveals that, while some of the prospective jurors had heard or read of the incident, they had no particular knowledge or recollection of the facts, had formulated no opinion in regard thereto, and stated that they could render a fair and impartial verdict based on the evidence presented at trial.

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 the 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, Assignments of Error Nos. 1 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendants contend the trial court erred in denying their motion to quash the indictment grounded on the claims that the death penalty for first degree murder under La.R.S. 14:30 is unconstitutional because it imposes cruel and unusual punishment and that La.R.S. 14:30 is unconstitutional because it permits discretion in the jury to return responsive verdicts in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

After an appeal was taken in this matter, the United States Supreme Court decided Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declaring unconstitutional the mandatory death sentence for first degree murder. La.R.S. 14:30. In the case of State v. Jenkins, (Waters and Paschal), No. 56, 944, La., 340 So.2d 157, handed down Oct. 14, 1976, we held that the appropriate sentence to be imposed for a valid conviction for first degree murder, in light of the Roberts decision, was the most severe penalty established by the legislature for criminal homicide at the time of the offense, R.S. 14:29, et seq., which was, in the Jenkins case, imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. Therefore, we affirmed the convictions but set aside the death sentences and remanded the case to the district court with instructions to the trial judge to sentence defendants to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. Under like circumstances in the present case, we will remand for the imposition of a similar sentence which disposes of the contentions made under these assignments of error.

ASSIGNMENTS OF ERROR NOS. 5 AND 16

Defendants contend that the trial judge erred in denying their motions for mistrial grounded on an allegation of prejudice suffered by them because of their being handcuffed and shackled in the presence of prospective jurors.

Prior to commencement of voir dire examination, defendants were brought into the courtroom in handcuffs and shackles. It is indicated that this is standard procedure for the transportation of prisoners to the courtroom. The trial judge immediately ordered the removal of the handcuffs and shackles and admonished the prospective jurors to disregard this fact in their determination of guilt or innocence of defendants. He also admonished them on defendants’ presumption of innocence. It was at this point that defendants’ motion for a mistrial was denied (Assignment of Error No. 5). At the close of the state’s case, defendants reurged their motion for mistrial which was again denied by the trial judge (Assignment of Error No. 16).

No testimony was adduced that the prospective jurors (or the jurors who served) saw defendants handcuffed and shackled or that it had any effect on their decision in this matter. In denying defendants’ motion for a mistrial at the conclusion of the state’s case, the trial judge stated:

And we have no way of knowing whether or not any of the jurors, in fact, actually saw it because the jurors were sitting out in the courtroom and the defendants were seated up here, and as soon as you asked that they be unshackled, we went into a big conference about that and it was all taken off.

Although obstreperous conduct may permit a defendant to be gagged and shackled and even removed from the courtroom until he promises to conduct himself properly, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), ordinarily it is a denial of a fair trial for an accused to be tried in prison garb or shackled or otherwise exhibited to the trial jury under circumstances which tend to deprive him of his presumption of innocence. State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). However, recently the United States Supreme Court in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (Dec. May 3, 1976) held that even where defendants’ request for civilian clothes prior to going to trial was denied by an officer at the jail, he had no cause to complain if he did not later object to his prison attire at trial. The Court further stated that although the state cannot, consistent with the fourteenth amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.

In the instant case, the record is unclear whether the defendants’ handcuffs and shackles were removed upon defendants’ request or by the trial judge on his own motion. In any event, it is clear that the trial judge immediately ordered these restraints removed from defendants on his observation of them prior to commencement of the voir dire examination. Moreover, it is well settled that the record must clearly show that the occurrence complained of was prejudicial to the rights of the accused. State v. Jones, 332 So.2d 466 (La.1976); State v. Clark, 325 So.2d 802 (La.1976); State v. Kinchen, 290 So.2d 860 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). Under the circumstances of this case, we do not find that the incident prejudiced any rights of defendants. Accordingly, the trial judge did not err in denying defendants’ motions for a mistrial. Assignments of Error Nos. 5 and 16 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendants contend that the trial judge erred in denying their challenge for cause of prospective juror Albert Castaneda because of his prior acquaintance with the victim.

Article 797 of the Code of Criminal Procedure provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;

The voir dire examination of Castaneda disclosed that he knew the victim for several years prior to his death. The victim had prepared his income tax returns, and they saw each other about four or five times a year. While they did not go out socially or belong to any organizations together, they would occasionally see each other at the store or in town. Since February 1, 1975 (date of the offense), the prospective juror had neither seen nor spoken with any member of the victim’s family. Castaneda was steadfast in his assertion that his acquaintance with the victim would not affect in any way his consideration of the guilt or innocence of the defendants and that he would decide the case on the evidence presented. The trial judge found that the juror’s acquaintance with the victim was “extremely casual” and would not influence him in arriving at a fair and impartial verdict.

The fact that a prospective juror knows the victim of an offense is not in itself sufficient ground for a challenge for cause under article 797 of the Code of Criminal Procedure. There must be a showing that such fact would influence the juror in arriving at a verdict. State v. Blanton, 312 So.2d 329 (La.1975); State v. Richmond, 278 So.2d 17 (La.1973); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972). The voir dire examination must be considered as a whole. State v. Jones, 315 So.2d 650 (La. 1975). The trial judge is vested with a wide discretion in determining the qualifications of jurors to serve at trial. Absent a clear showing of abuse of discretion, the trial judge’s ruling should not be disturbed on appeal. State v. Jones, supra; State v. Richmond, supra. When the voir dire examination of Castaneda is considered as a whole, it cannot be said that the trial judge abused his discretion in denying defendants’ challenge for cause. Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendants contend that the trial judge erred in sustaining the state’s objection to the questioning of Deputy John Saucier, Jr. by defense counsel.

Saucier testified on direct examination that he had been called to the scene of the crime for investigation. There he found a trail of blood leading from the lobby of the Holiday Inn to the front end of a Ford Thunderbird parked in the lot of the adjacent Ramada Inn. Saucier testified that he took a sample of the blood from the front end (hood and bumper) of the car by blotting the blood with a piece of cloth. Thereafter, he placed the cloth into a plastic bag and turned it over to Sgt. Herman, who marked the evidence for identification in his presence. After being thoroughly cross-examined, Saucier was asked where they were when the evidence was marked, to which he replied “at the Holiday Inn.” He was then asked “where at the Holiday Inn?” The prosecutor’s objection was sustained.

The defense was not curtailed in its cross-examination of this witness to its prejudice. Prior to the sustaining of the objection, Saucier had been fully examined on the facts surrounding the taking of the blood sample and its marking by Sgt. Herman at the time. A trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross. La.R.S. 15:275. We do not find that the trial judge abused his discretion in this instance. Assignment of Error No. 7 is without substance.

ASSIGNMENT OF ERROR NO. 8

Defendants contend that the trial judge erred in denying their request for production of the names of the alleged witnesses interviewed by Deputy Sheriff Nathaniel L. Manning.

The ruling of the trial judge arose in the following context. The state called Deputy Manning and established that he was present at the autopsy performed on the victim. Manning identified the bullet taken from the victim. He also identified his markings on the bullet. On cross-examination, defense counsel asked him if he had been at the Holiday Inn on the night of February 1, 1975 (date of the crime). He replied he had not. He was then asked if he had interviewed any witnesses in connection with the case. Manning answered that the next morning (February 2), he had spoken to several people at the Holiday Inn. Then the question: “Do you recall the names of those people to whom you spoke?” was followed by a negative reply. Next, Manning was asked: “Did you make notes of the people to whom you spoke?” His reply was: “I believe so, but I don’t have them with me.” When asked where the notes were located, Manning answered that they were probably in his desk. At this time, defense counsel called for production of these notes. The state objected. The trial judge correctly denied the request for production.

Manning’s testimony did not relate to the contents of these notes nor did he have them with him on the stand. Hence, defense counsel was not entitled to production of same. State v. Whitehurst, 319 So.2d 907 (La.1975); State v. Lane, 302 So.2d 880 (La.1974). Defendants aver that the denial of their request for the names of the witnesses interviewed by Manning prevented them from discovering a possible favorable witness to the defense, which constituted a suppression of possible favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We find no merit to this contention. There is no showing that the people seen by Manning were in fact “witnesses.” On the contrary, Manning testified, after the ruling on the objection, that the people with whom he spoke were a guest and employees of the Holiday Inn, none of whom knew anything about the incident. Moreover, he stated that his notes did not contain the content of these conversations. Assignment of Error No. 8 is without substance.

ASSIGNMENT OF ERROR NO. 9

Defendants contend that the trial judge improperly curtailed their cross-examination of the witness Anthony Brown.

Brown testified that Roy Clark borrowed a car (1971 blue Cadillac) from him around seven o’clock on the night of the crime and returned it about midnight. The complaint is that defendants were not allowed to question Brown regarding the fact that the car had transmission trouble for the purpose of showing that the car could not have been operated at a speed adequate for defendants’ use on the night of the crime.

There is no merit to this contention. On direct examination, Brown testified that the “transmission was messed up” and “wasn’t working properly.” The transmission had been giving him trouble for about a week. He stated that he kept transmission fluid in the car because of the malfunctioning transmission. He further testified that after his car was returned to him by Clark on the night in question it was necessary for him to take it to the service station for some transmission fluid. Even after getting the fluid, he was able to drive the car only a block or so because it was not functioning properly. On cross-examination, defense counsel thoroughly questioned the witness in regard to the problem he had been having with his car’s transmission. Finally, when questioned by defense counsel as to whether he had taken it on a prior occasion to a service station, the trial judge interrupted the question, stating that the prior transmission trouble was irrelevant. In view of the full interrogation of Brown on this issue and the establishment of the transmission trouble as a fact on the night the car was borrowed by Clark, as well as prior thereto, we are unable to say that the trial judge abused his discretion in curtailing the questioning of Brown on this issue. The trial judge is vested with a sound discretion to stop prolonged, unnecessary and irrelevant examination of a witness whether such examination be direct or cross, and even though no objection be urged by counsel. La.R.S. 15:275. Hence, Assignment of Error No. 9 lacks merit.

ASSIGNMENT OF ERROR NO. 10

Defendants contend the trial judge erred in sustaining the state’s objection to the further questioning of Anthony Brown, a state witness, regarding a statement allegedly made by Brown to Ronald W. Guth, one of the defense attorneys, on October 10, 1975. It is argued that the defense was attempting to show that this statement was at variance with an earlier statement given by Brown to the sheriff’s office on March 4, 1975.

The ruling of the trial judge complained of in this assignment of error arose in the following context. On cross-examination of Brown, defense counsel (Guth) established that there was a meeting on the Friday before trial (October 10, 1975) at which Brown, Guth, other defense counsel (Prieto and Lussen) and defendants Roy Clark and Carl Benion were present. Guth asked questions of Brown and of the defendants and supposedly took notes at this meeting. During his cross-examination of Brown, Guth made it appear that the yellow pad in his hand contained these notes and that this was a “statement” of Brown. He kept questioning Brown about the responses made by him during the October 10 meeting. Brown indicated that some of the statements about which he was being questioned were not made by him but rather by the defendants who were also present at the time. The trial judge cautioned Mr. Guth that, while he could ask the witness leading questions, he could not testify on his behalf. The judge further instructed counsel that, if he wanted to impeach the credibility of Brown by proof of a prior inconsistent statement, he must lay a proper foundation by first asking him whether he made such a statement and then calling his attention to the time, place and circumstances and to the person to whom the alleged statement was made. If the witness does not distinctly admit making such statement, evidence that he did make it would be admissible. La.R.S. 15:493. This was not in fact done. Moreover, it was not shown that the notes taken by Guth contained the “statement” of Brown and no other. The trial judge ably explained the reasons for his ruling:

[T]he witness has clearly given me the impression that the contents of that yellow sheet that you have there are not only your recollection but the notes that you thought were significant to what he said, but they also contain what you got from one of the defendants at the same time and they are all meshed together. It may be good information for you to think through and to do with, but to cross examine him with, it is not an inconsistent statement of his and I’m going to sustain the objection.

In view of the foregoing, we do not find that the trial judge erred in his ruling. Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

During the redirect examination of Anthony Brown, the state asked: “What usually happens to someone who testifies?” The objection of defendants was overruled and forms the subject of this assignment of error.

In State v. Chambers, 263 La. 1080, 270 So.2d 514 (1972), when the state’s attorney, on cross-examination of defense witness, asked him what would happen when he returned to the penitentiary, defense counsel objected on the ground that it called for speculation. We found no error in the trial judge’s ruling that this line of questioning on cross did not call for a speculative answer since the answer called for facts within the peculiar knowledge of the witness. As in Chambers, we find no error in the ruling of the trial judge. Assignment of Error No. 11 is without merit.

ASSIGNMENTS OF ERROR NOS. 12, 13 AND 15

Defendants contend that the trial judge erred in permitting in evidence two oral inculpatory statements made by Brent Mikell while he was being treated at Charity Hospital for a gunshot wound to the face. The first statement was made to Sgts. Herman and McGeehee at approximately 5:20 a.m. on February 2, 1975 (Assignments of Error Nos. 12 and 13), and the second was given to Detectives Woodall and Schneider on February 3, 1975 (Assignment of Error No. 15). Defendants argue that, because of the physical and mental condition of Mikell at the time, he was incapable of giving a free and voluntary statement and of knowingly and intelligently waiving his Miranda rights.

Mikell was shot in the jaw by the victim, Sawyer, at the Holiday Inn during the perpetration of an attempted armed robbery. This occurred in Slidell, Louisiana at 11:00 p.m. on February 1, 1975. At about 11:50 p.m., a Charity Hospital ambulance was flagged down by three men near the down ramp of I — 10 at Orleans Avenue and Derbigny Street in New Orleans. One of the men was Roy Clark, who informed the occupants of the ambulance that they had a man (Mikell) with a gunshot wound in the back seat of their car. Mikell was taken in the ambulance to Charity Hospital where he was admitted at 11:55 p.m. He was suffering from a gunshot wound to the face. Heavy bleeding required suctioning enroute to the hospital. In response to a telephone call received at about 4:50 a.m. (February 2), Sgts. Herman and McGeehee went to the hospital where they questioned Mikell, who was lying on a bed in the hallway. This was about 5:20 a.m. He was fully advised of his Miranda rights prior to being questioned. The questioning lasted only four or five minutes and was terminated when either a doctor or nurse arrived to give Mikell some type of medication. Although Mikell’s face was bandaged and he was receiving an I.V. drip and a blood transfusion, the officers testified that he was completely conscious at the time and gave no indication that he was in extreme pain or in shock or that he was sedated. According to the officers, while Mikell’s speech was low (they had to bend down to hear him), it was not impaired. Rather, it was slow and deliberate and gave them the impression that he was considering the questions before responding. The officers considered that Mikell fully understood the Miranda rights given by them to him before he freely and voluntarily responded to their questions.

The second oral inculpatory statement was given by Mikell to Detectives Woodall and Schneider on February 3, 1975. These officers testified that they arrived at Room W402 in Charity Hospital at about 6:30 p.m. on February 3 to serve an arrest warrant on Mikell. They fully advised him of his Miranda rights and then questioned him for about a half hour. According to their testimony, Mikell was alert at the time and did not appear drugged. He did not complain of pain nor did he appear to be in pain. There was no indication of shock or sedation. The entry in the hospital records for February 3, 1975 states moderate swelling to the face, head bandage in place, patient taking fluids, no air-way difficulties, patient encouraged to ambulate as much as possible. There appears no entry that morphine or a like sedative had been administered.

Dr. James Winslow, an oral surgeon, testified that he first saw Mikell at about seven o’clock on the morning of February 2. Dr. Winslow had spoken to Dr. Peterson, who was in charge on the night Mikell was admitted and was familiar with his condition. On February 6, Dr. Winslow performed surgical procedures on Mikell, who had sustained a fracture to the right side of his mandible (lower jaw). Wires were inserted to hold the jaw in a stable condition. A previously fractured tooth was extracted. Dr. Winslow debrided the gunshot wound to the face and removed a metallic fragment therefrom.

Before a confession can be introduced in evidence, the state must affirmatively show that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendants rely on State v. Graffam, 202 La. 869, 13 So.2d 249 (1943) where this court found that the trial court erroneously allowed introduction of a statement given an hour after a gunshot wound to the heart, while the defendant was in the hospital. In Graffam, there was evidence that the accused was suffering from acute shock, bleeding profusely and had been administered morphine. There was also expert medical testimony to the effect that the mental functioning of a person suffering from shock as described in the report was definitely impaired. This court concluded that, under the facts presented by the record, defendant’s confession was not freely and voluntarily made. The present record is devoid of such proof. On the contrary, Officers Herman and McGeehee testified that, although Mikell’s face was bandaged, an I.V. drip and blood transfusion were being administered at the time he gave his statement during the early morning hours after his admission to the hospital, he was completely conscious and rational; he was not bleeding profusely, gave no indication that he was in extreme pain or in shock, or that he had been administered sedating medication, such as morphine. Likewise, the testimony of Detectives Woo-dall and Schneider was to the same effect in regard to Mikell’s physical and mental condition at the time he made the second inculpatory statement on February 3.

Under the facts presented by this record, we are convinced that the state affirmatively proved that Mikell’s oral inculpatory statements were freely and voluntarily made after having been fully advised of his Miranda rights. Hence, the trial judge did not err in admitting the statements in evidence.

Assignments of Error Nos. 12, 13 and 15 are without merit.

ASSIGNMENT OF ERROR NO. 14

Defendants objected that a state witness, Doussan D. Rando III, was permitted to testify that he field tested certain substances for the presence of blood and that the tests were positive without any attempt being made to qualify the witness as an expert.

Rando testified that he was a criminalist at Louisiana State Police Crime Lab and that, in connection with his duties as a criminalist, he was called upon to obtain certain evidence from a blue Cadillac. He testified that in examining the car, he observed certain spots that appeared to be blood. He then field tested the substances for the presence of blood which resulted in a positive finding.

Ordinarily, a witness must be qualified before he gives an expert opinion, La.R.S. 15:466. In the present instance, while this witness might not be considered as having been properly qualified as an expert prior to expressing an opinion, no prejudice resulted from his testimony, for later at trial Walter Strata, Jr., who was duly qualified as an expert in the field of analysis and classification of blood, testified that the substance removed by Rando from the blue Cadillac was Group AB human blood. Hence, Assignment of Error No. 14 is without merit.

ASSIGNMENT OF ERROR NO. 17

After the close of the state’s evidence, defendants moved for a directed verdict of not guilty. Without considering the merits of defendants’ motions, the trial judge denied the motions based on the fact that article 778 of the Code of Criminal Procedure had been previously amended by the legislature to eliminate the authority of the court to grant a directed verdict of acquittal in a jury trial.

Defendants contend that there was no evidence of an attempted armed robbery, an essential element of the crime of first degree murder as defined in La.R.S. 14:30(1) (the statute under which they were tried). Therefore, they argue that the elimination of a right to a directed verdict of acquittal to a defendant who either elects to be tried by jury or who is compelled to be tried by jury because he is charged with a capital offense constitutes a denial of equal protection and due process rights as guaranteed under both the federal and state constitutions.

Article 778 of the Code of Criminal Procedure was amended by Acts 1975, No. 527, § Í. Defendant was tried after the effective date of this amendment. The amendment eliminated the authority of the court to grant a directed verdict of not guilty in a jury trial. The authority of the court to grant a directed verdict of acquittal is strictly a trial procedure. A defendant has no vested or absolute right in procedural matters; therefore, procedural matters are subject to legislative control. No substantive right of an accused is affected by a change in the law which deals only with procedures attached to a trial. There was no divesting of a substantive right as a result of this amendment. Hence, the elimination of the authority of the court to grant a directed verdict of acquittal in a jury trial is not a denial of defendants’ due process rights. Nor is there any merit in defendants’ claim that they have been denied equal protection of the law. Since the classification implicit in the statute is reasonable and applies to all persons similarly situated, there is no denial of equal protection. We find that the trial judge was correct in not considering the merits of defendants’ motion for a directed verdict of acquittal in this jury trial. Assignment of Error No. 17 is without merit.

ASSIGNMENT OF ERROR NO. 18

Defendants contend that the trial judge erred in overruling objections made by them during the cross-examination by the state of the defense witness Eileen Gibbs.

The witness first testified that she was with Carl Benion at his mother’s house on Saturday night, February 1, 1975 (date of crime). She stated that she recalled the particular day because on that Sunday Morning (February 2) at about one or two o’clock, she heard a news broadcast about a shooting and attempted armed robbery in Slidell. On cross-examination, the prosecutor questioned the witness about her use of the word “attempted” in her description of the broadcast of the robbery and her knowledge that nothing had been taken by the perpetrators. Defense counsel’s objection on the ground of harassment was overruled.

The prosecutor then proceeded to question the witness as to her whereabouts on the first day of each month for the several months immediately preceding the trial of this matter. He also questioned her about the day of the week of each of these dates. Defendants’ objection on the ground of immateriality and irrelevancy was overruled.

The rulings of the trial judge were correct. The prosecutor’s questions regarding her use of the word “attempted” in her description of the broadcast and her statement that nothing had been taken by the perpetrators were proper cross-examination and did not constitute harassment. Only a few questions were asked before the objection was made. Also, the prosecutor’s questions directed at the witness’ recollection of her whereabouts on the first day of each month for the several months preceding the trial and the day of the week of each of these dates was not irrelevant and immaterial in light of the witness’ testimony on direct examination. Rather, it was proper cross-examination.

Rulings of the trial judge in his regulation of proper direct or cross-examination of witnesses will not be disturbed on appeal in the absence of an abuse of discretion. We find no such abuse of discretion here. Assignment of Error No. 18 is without merit.

ASSIGNMENTS OF ERROR NOS.

19 AND 20

Defendants claim that the trial judge erred in permitting the state to improperly impeach defense witness Maurice Gibbs by use of prior arrests in violation of La.R.S. 15:495. Defendants’ motion for a mistrial was denied.

On cross-examination, not only was Gibbs allowed to be questioned about his arrest on the night before the trial, but he was also allowed to be interrogated concerning eight other arrests.

The credibility of a witness may not be impeached by asking him whether or not he has been arrested; his impeachment can only be secured as to prior convictions. La. R.S. 15:495; State v. Lewis, 328 So.2d 75 (La.1976). Hence, the ruling herein allowing Gibbs to be interrogated concerning his prior arrests was clearly error. However, we are unable to say that the rights of defendant Clark were so prejudiced thereby as to require the reversal of his conviction.

Maurice Gibbs’ alibi testimony, when viewed as a whole, does not in fact establish alibi for Clark. Gibbs merely testified that on the night of February 1, 1975 he saw Roy Clark at the Top Cat on Lowerline and Coolidge Court in New Orleans where a “record hop” was in progress. Although he stated that he was with Clark “[pjractically all night, all during the record hop that was going on,” nowhere does he say how long the record hop lasted. The witness only specifically mentioned seeing Clark sitting on the porch at nine o’clock. Terry Peterson was also called by the defense to establish alibi for Clark. She testified that she also saw Clark on the night of February 1, 1975 at Sam Shoal’s Bar located at the corner of Lowerline and Coolidge Court in New Orleans. However, she stated that the last time she saw him on that night was at ten o’clock.

In our view, the “alibi” witnesses did not positively establish an alibi during the entire night of February 1, 1975 or more specifically at the time of the offense which occurred at about eleven o’clock on that night. Therefore, the improper impeachment of Gibbs does not result in reversible error. It should be observed that both the ambulance driver and attendant identified Clark as the man who flagged down the ambulance near the down ramp of the I — 10 at Claiborne Avenue and Derbigny Street in New Orleans at 11:50 p.m. on February 1, 1975. Anthony Brown also testified that he saw Clark at about midnight on that night at Orleans and Claiborne (about a block from the down ramp of the I — 10). It was at this time that Clark returned the car that he had borrowed from Brown earlier in the evening. Glenda Patterson testified that Roy Clark came to her house shortly after midnight and told her that Mikell had been shot and was in the hospital. Assignments of Error Nos. 19 and 20 are without merit.

ASSIGNMENT OF ERROR NO. 21

Defendants filed separate motions for a new trial grounded on the same contentions urged under previous assignments of error. For the reasons set forth therein, we find no merit in the alleged errors reurged in the motions for a new trial. Additionally, defendants assert in their motions for a new trial that the verdict is contrary to the law and evidence. The ruling of the trial judge denying a motion for a new trial grounded on a claim that the verdict is contrary to the law and evidence presents nothing for our review. Only where it is alleged that there is no evidence at all of some essential element of the crime charged is a question of law presented which this court can review. State v. Jack, 332 So.2d 464 (La.1976). However, one of the alleged errors reurged in the motions for a new trial was that the court erred in denying defendants’ motions for a directed verdict at the close of the state’s case. In the motion for directed verdict, defendants contended that there was no evidence of an attempted armed robbery, an essential element of the crime of first degree murder as defined in La.R.S. 14:30(1) (the statute under which they were tried). Accordingly, we will construe defendants’ claim in their motions for a new trial reurging as error the denial of the motion for directed verdict as an allegation of no evidence of an essential element of the crime charged, i. e., attempted armed robbery.

Our review of the record discloses ample evidence of attempted armed robbery by defendants Mikell and Clark. Without attempting to elaborate on the evidence adduced at trial since it is only necessary that we find some evidence of an attempted armed robbery, we point to the oral inculpa-tory statements made by Mikell at the hospital, as well as the testimony of Deputy David Wainwright, who stated that on May 5, 1975, while transporting Mikel and prisoners to Charity Hospital, Mikell told him that on the night of the offense, “I walked in, told him this was a holdup and he grabbed the gun and started shooting.” Certainly this constitutes some evidence of an attempted armed robbery. Moreover, there was some evidence of Clark’s participation in the offense charged. Hence, the motions for a new trial were properly denied. Assignment of Error No. 21 is without merit.

DECREE

For the reasons assigned, the convictions are affirmed, but the death sentences imposed on defendants are annulled and set aside and the case is remanded to the Twenty-Second Judicial District Court, Parish of St. Tammany, with instructions to the judge to sentence defendants to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.

SUMMERS, J.,

concurs in the conviction but dissents from the penalty holding for the reasons assigned in the dissent to State v. Lee, La., 340 So.2d 180.

DIXON, J.,

concurs, not being in accord with the treatment of assignments 5 & 16 and Assignments 19 & 20.

CALOGERO, J., concurs in result only.

DENNIS, J., concurs in the result.

      . Carl Benion was jointly indicted and tried with defendants Roy Clark, Jr. and Brent Mi-kell; however, the jury found him not guilty.

      . Times-Picayune, Slidell Daily Times, St. Tammany Parish Farmer, The Mandeville Banner, and The Daily Sentry News of Slidell.

      . The author of this opinion concurred in State v. Jenkins, No. 56,944, La., 340 So.2d 157, handed down Oct. 14, 1976, noting approval of the sentence imposed but for reasons different from those expressed by the majority.


source: Caselaw Access Project

author: DENNIS, Justice. SUMMERS, J., MARCUS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Robert SMITH.
    No. 57837.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 18, 1976.

      Joe D. Guerriero, O. P. Barnes, III, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Joe Rolfe White, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On March 26, 1975, the Morehouse Parish Grand Jury indicted defendant Robert Smith and Bobby Lee White for the first degree murder of Gerald Summerville. La. R.S. 14:30. The State elected to try the two men separately, and a severance was granted. On October 24,1975, a unanimous jury found defendant guilty as charged and he was subsequently sentenced to death. On appeal, he urges six assignments of error, one of which has been abandoned.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erroneously denied his motion for a change of venue which alleged that “due to great and widespread publicity given through news media of all kinds to the arrest of defendant, to the indictment against him, and to the alleged evidence against him, there exists a prejudice in the public mind of such a nature that [a] fair and impartial trial cannot be obtained in this parish.” After a lengthy hearing on May 19, 1975, the trial court found that publicity attending the murder had not provoked public prejudice against defendant, and denied the motion.

Gerald Summerville was fatally shot at approximately 11:00 p.m., March 17, 1975, by the would-be robbers of his grocery store in downtown Bastrop, Louisiana. Five days earlier the owner of a liquor store in Bas-trop was also shot and killed during the perpetration of a robbery. The coincidence of these two brutal crimes jarred the community and received extensive coverage in the press. However, by the time the hearing was held, two months after the murder, the publicity had subsided and public interest had substantially diminished. Another five months elapsed before the trial.

In a motion for change of venue the defendant has the burden of showing that he cannot obtain a fair trial in the parish where the prosecution is pending. More than -mere knowledge by the public of the facts surrounding the offense must be shown; additionally, there must be proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. La.C.Cr.P. art. 622; State v. Rudolph, 332 So.2d 806 (La.1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Bell, 315 So.2d 307 (La.1975).

The proof at the hearing focussed upon the notoriety of the two unrelated but temporally proximate murders and the alarm which they had engendered in the community. However, our review of the testimony revealed no evidence of public outcry against this particular defendant. In fact, several of defendant’s witnesses expressly declared that they felt defendant could get a fair trial in Morehouse Parish and stated that they had not encountered preconceived notions as to defendant’s guilt or innocence in the community. There is no convincing indication in the record that the news coverage of Summerville’s murder created an atmosphere of prejudice against defendant or that the witnesses did not respond frankly when they stated that defendant could receive a fair trial.

We conclude that the hearing judge did not abuse his broad discretion in denying the motion for change of venue. See State v. Rudolph, supra; State v. Berry, supra.

ASSIGNMENT OF ERROR NO. 3

Defendant complains of the court’s refusal to permit the impeachment of a state witness out of the presence of the jury.

The witness, Mack Arthur Smith, had testified on direct examination that defendant and Bobby Lee White borrowed a .380 caliber pistol from him at about 10:00 p.m. on the night of the murder. The next morning, he stated, White returned the pistol and told him that defendant had killed Summerville with it, and on the following day, March 19, defendant had also visited him and reported shooting Summerville.

On cross-examination, defense counsel attempted to discredit the statement relative to defendant’s admission by establishing that the witness had not related it to the police in their interviews with him on March 19, 20 and 21. When confronted with the fact that he had not told police about the meeting with defendant the witness countered, “I told them in the statement that I gave.” Defense counsel then presented the witness with a copy of his March 21 statement and asked whether he could find in it any reference to this fact. The witness responded that he could not read well, and counsel then asked:

“If I were to tell you that I have examined this statement and cannot find anywhere in here any reference that Robert Smith ever came to your house and made any statements to you after the Summerville killing, would you be in a position to deny that?”

The witness answered, “yes.” At this time, counsel asked that the jury be removed so that he could read the statement to the witness, explaining that it contained inadmissible material which he did not wish to present to the jury. He planned to repeat his question when the jury was returned to the courtroom. The trial court refused the request, and we find no error in the refusal. The witness had already insisted that he told police of the encounter with defendant. Thus the predicate for impeachment of the witness had been fully laid. Counsel was in a position to impeach his testimony by either introducing the statement or by establishing that the statement did not contain a reference to an admission by the defendant through the officers who took the statement. It would have been permissible for the trial judge to grant defense counsel’s request, for the court may remove the jury from the courtroom at any time when considered in the best interest of justice. La.C. Cr.P. art. 794. However, we cannot say the court prejudiced the defendant’s rights or abused its discretion by refusing to do so in this instance.

Furthermore, counsel had previously impeached Mack Authur Smith’s credibility on this same point earlier in the trial. When he was asked by defense counsel why he did not report his meeting with defendant in the March 21 interview with the police, the witness replied, “I don’t know. I’m telling you the truth now.”

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant argues that the judge’s instruction to the jury concerning the credibility of accomplice testimony were inadequate and claims that the court erred in rejecting his requested special instructions on this subject. More specifically, he contends that the court “did not effectively impress upon the jury the fact that an accomplice may be motivated to falsify his testimony, nor did the Trial Court Judge in any way emphasize how the jury should weigh the credibility of an accomplice from the general instructions which the Court gave the jury on the credibility of all witnesses.”

A mere reading of the court’s instructions refutes this contention:

“Now, we refer to such a person as an accomplice. Now, I will remind you that such a person has a very obvious self interest in the outcome of the case and that his testimony may therefore be colored by his desire for leniency. So, you must review and consider and weigh the testimony of such a person very carefully with caution, not only in the light of all the circumstances of the case and all the rules that you apply to the other witnesses but also bearing in mind his special interest and his motives as you find them to be.”

Not only are these instructions adequate, but they also substantially track the language of defendant’s requested charge, which made it unnecessary that this be incorporated into the general instructions. La.C.Cr.P. art. 807.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

After the jury had deliberated for several hours, the foreman sent word to the judge that further instructions as to the possible responsive verdicts were desired; defendant alleges that the jury additionally made a specific request for information as to the corresponding penalties. A conference was held in the judge’s chambers and both counsel approved his decision to instruct the jury on responsive verdicts and their penalties. Defendant was consulted and informed the court, through counsel, that he had no objections to the court’s proposed action. However, pursuant to the court’s policy of recording a defendant’s consent to any off-the-record agreement, the judge said in open court:

“The court has been informed that the attorneys agree and that Mr. Smith, the defendant, has agreed that in addition to defining the crimes for you the court can tell you at this time what the law sets out as the penalties for each of these crimes, is that correct Mr. Smith? Is that your understanding?”

Defendant answered affirmatively, and the instructions were given. Before the jury was retired, however, defense counsel objected to the court’s questioning of defendant, contending that by seeking defendant’s express approval of the proposed instructions the court forced him to adopt a position inconsistent with his assertion of innocence. Counsel maintains that since an innocent man would be satisfied only with a verdict of not guilty, the logical inference to be drawn from defendant’s acquiescing in the court’s instructions was that he was guilty and would be happy with anything less than the death penalty.

Because the jury was aware its foreman had requested further instructions regarding the penalties, we find this argument unconvincing. Defendant was merely acceding to the jury’s own request for further instructions, and we do not think it likely that the jury could have drawn a negative inference from defendant’s cooperation in this matter.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

This assignment - relates to the court’s denial of defendant’s motion for a new trial, which was based upon the alleged errors previously considered. For the reasons stated above, we find that the motion was properly denied.

This assignment is without merit.

Although we affirm the conviction, the death penalty imposed in this case must be annulled and set aside. Subsequent to this appeal, the United States Supreme Court invalidated the death penalty of Louisiana’s first degree murder statute, La.R.S. 14:30, under which defendant was sentenced. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). For the reasons stated in State v. Jenkins, 340 So.2d 157 (La.1976), we.conclude that the appropriate sentence to be imposed upon conviction for first degree murder is the most severe valid penalty established by the legislature for criminal homicide at the time of the offense (March 26, 1975), La. R.S. 14:29, et seq. This penalty is imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1 as added by Acts 1973, No. Ill, § 1.

Accordingly, defendant’s conviction is affirmed, but the death sentence is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant to imprisonment at hard labor for life without eligibility for parole, probation, or suspension of sentence for a period of twenty years.

SUMMERS, J.,

concurs in the conviction but dissents from the holding on penalty for my reasons assigned in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs with penalty directed by majority for reasons assigned in his concurring opinion in State v. Jenkins, 340 So.2d 157 (La.1976).


author: DIXON, Justice. SANDERS, C. J., SUMMERS, J., MARCUS, J., SANDERS, Chief Justice

text:
    STATE of Louisiana v. Dwight HUNTER et al.
    No. 57843.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 18, 1976.

      Robert *J. Zibilich, Orleans Indigent Defender Program, New Orleans, for Dwight Hunter.
    Garland R. Rolling, Metairie, for James Hawthorne.
    Edward G. Koch, Jr., New Orleans, for Charles Petite.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Timothy W. Cerniglia, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.

      . The defendant also objected to the failure of the trial judge to order the disclosures in connection with the defendant’s motion for a severance. Insofar as these rulings affect the motion to sever they will be discussed in Hawthorne — Assignments of Error Nos. 10 and 23 below.

   DIXON, Justice.

On January 31, 1975, shortly before 1:00 a. m., the three defendants, Dwight Hunter, James Hawthorne and Charles Petite, entered the home of Anita Prados, age eighty. After taking a quantity of cash from her purse, and with a gun at the victim’s head, the defendants ordered the victim to remove her clothes. She was gagged with a napkin and two of the three defendants proceeded to rape her. The defendants were apprehended in the victim’s apartment immediately after the rapes occurred. The defendants were tried jointly before a twelve man jury on the charge of aggravated rape. Defendant Hawthorne was found guilty as charged and sentenced to death. Defendants Hunter and Petite were found guilty of attempted aggravated rape and each was sentenced to serve twenty years in the custody of the Department of Corrections. It is from these convictions and sentences that the defendants appeal.

Hawthorne — Assignments of Error Nos. 1, 2, 3, 4, 5, 6, 7 and 8

The defendant filed an application for a bill of particulars and a prayer for oyer, and objected to the refusal of the trial court to order the State to provide the following information to the defendant:

“Information on when, where, under what circumstances and by whom the defendant was identified prior to trial; the exact text of oral statements pertaining to the alleged crime made by codefend-ants; production for defense inspection any weapon or weapons used in the offense; a complete list of witnesses to be called at trial; production of physical evidence obtained from any person; medical reports of examinations conducted by the coroner’s office on the victim; production for defendant inspection of results of ballistic reports, fingerprints and blood tests for use at trial.”

Pursuant to C.Cr.P. 484 the court may require the prosecutor “to furnish a bill of particulars setting up more specifically the nature and cause of the charge against the defendant.” Here, though, the defendant’s demands constitute a request for full blown pretrial discovery.

This court has often held that the bill of particulars and prayer for oyer does not entitle the defendant in a criminal case to discover the details of the evidence with which the State expects to prove its case. State v. Redfud, 325 So.2d 595 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. Kado, 300 So.2d 461 (La.1974). There was no error in the trial judge’s refusal to order discovery of these items.

Hawthorne — Assignments of Error Nos. 10 and 23

Defendant contends that the trial judge erred in refusing to grant a severance prior to or during trial. Before trial began, all three defendants filed motions for severance pursuant to C.Cr.P. 704. Defendant Hawthorne based his motion for severance on the ground that the defenses of the three accused were antagonistic.

Neither in his written motion nor in the hearing on the motion to sever did the defendant demonstrate how the defenses to be presented were antagonistic. The mere allegation that the defenses are antagonistic is not sufficient to require a severance. State v. Medlock, 297 So.2d 190 (La.1974); State v. Baker, 288 So.2d 52 (La.1973).

In defense of his failure to provide concrete proof of antagonistic defenses, the defendant cites the trial court’s failure to order discovery which, the defendant claims, prevented him from securing such proof. Discovery for the purpose of possibly using the evidence discovered to make a showing of an antagonistic defense is not within the bounds of Louisiana’s criminal discovery procedure. See State v. Redfud, supra. It would permit the defendant to obtain otherwise nondiscoverable evidence merely in the hope of establishing an antagonistic defense.

Defendant’s second argument in support of his motion to sever is that the State was in possession of oral exculpatory statements made by the codefendants which, if introduced in the absence of his codefendants’ taking the stand, would deny defendant Hawthorne his Sixth Amendment right to confrontation. Defendant alleges that since the statements of Hunter and Petite were exculpatory as to themselves, they would be inculpatory as to defendant Hawthorne. . This argument was based on the fact that the victim might, and in fact did, testify that less than all three defendants had sexual intercourse with her.

At the hearing on the motion to sever, the State revealed that the statements were to the effect that each of the accused admitted being in the victim’s residence, but denied the act of intercourse. Additionally, the prosecutor indicated that the State would not introduce these statements at trial unless one of the defendants denied being at the victim’s home. In fact the statements were never introduced at trial. Since these statements were never offered into evidence, there has been no violation of the defendant’s Sixth Amendment right to confrontation. United States Constitution, Amendment Six; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Monk, supra; State v. Frierson, 302 So.2d 605 (La.1974).

At trial each defendant was called as a witness by his codefendants and each defendant exercised his Fifth Amendment right and refused to testify. The fact that a defendant wishes to call his coaccused as a witness is not sufficient ground for severance. This is so because the codefendant not being tried can assert the Fifth Amendment privilege and refuse to testify at the defendant’s trial. State v. Medlock, supra; State v. Baker, supra. There was no abuse of discretion by the trial judge in failing to grant the severance. State v. Frierson, supra.

Assignments of Error Nos. 12, 13, 15, 16, 17 and 18 all concern the trial judge’s rulings during the voir dire proceedings. Assignment of Error No. 14 was neither briefed nor argued and is deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Hawthorne—Assignment of Error No. 12

Defendant contends that the trial judge erred in permitting the State to question the members of the jury venire on the subject of their belief in capital punishment. At the time of trial, conviction of aggravated rape carried the penalty of death. R.S. 14:42. In addition, C.Cr.P. 798 provided:

“It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
“(1) The juror is biased against the enforcement of the statute charged to have been violated, or is of the fixed opinion that the statute is invalid or unconstitutional;
“(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s (guilt; or “(3) The juror would not convict upon circumstantial evidence.”

Therefore, since there was specific statutory authority for this line of questioning, and the death penalty was a potential sentence in the case, there was no error in permitting examination of the jurors on their belief in capital punishment.

Hawthorne—Assignments of Error Nos. 15 and 16

In these assignments of error the defendant contends that the trial court erred in allowing the State to qualify prospective jurors as to (1) their ability to return a capital verdict (this alleged error has already been discussed in Assignment of Error No. 12 above); (2) their ability to apply the law of “principals;” (3) their ability to return orally a guilty verdict if polled at the end of the trial, and (4) whether the ages of the defendants (sixteen, seventeen and eighteen years of age) would have an effect on the ability of the juror to return a capital verdict.

The ability to apply the law of “principals,” to return orally a guilty verdict, and the ages of the defendants were all relevant to the issue of capital punishment in this case. (Jurors were excused for cause when they indicated that they could not vote to convict a sixteen year old of a capital crime and others were excused when they said that they could not convict if it were not proved that all three had in fact “committed” the rape). In addition, the pertinent part of C.Cr.P. 797 provides:

“The state or the defendant may challenge a juror for cause on the ground that:
“(4) The juror will not accept the law as given to him by the court.”

Clearly, the ability to apply the law of “principals” is relevant to the question of whether the juror will accept the law as given to him by the court. (At trial the victim testified that only two of the three perpetrators of the crime actually had sexual intercourse with her). The regulating of the scope of voir dire examination is left to the wide discretion of the trial judge. State v. Corbin, 285 So.2d 234 (La.1973). Counsel should be given wide latitude in their voir dire examinations. State v. Brumley, 320 So.2d 129 (La.1975). There was no abuse of discretion on the part of the trial judge in permitting this examination.

Hawthorne — Assignments of Error Nos. 18 and 17

Assignment of Error No. 13 presents the most serious question for consideration among the voir dire errors alleged. After the State had challenged two jurors for cause on the basis of their beliefs in capital punishment, defense counsel requested the right to traverse the State’s voir dire of those jurors the State challenged for cause. The trial judge refused the request and permitted no traverse. Ultimately twenty-seven more jurors were excused for cause by the State on the ground of the jurors’ beliefs on capital punishment. In Assignment of Error No. 17, the defendant objected to the challenge for cause, based on the jurors’ bias against capital punishment, and those areas discussed in Assignments of Error Nos. 15 and 16 above, of six potential jurors.

The trial judge' was in error in refusing to permit defense examination of the twenty-seven prospective jurors. See State v. Breaux, 154 La. 320, 97 So. 458 (1923). Therefore, the refusal of the trial judge to permit voir dire of these veniremen to test the opinions expressed might have resulted in the State’s being permitted to improperly excuse a number of jurors for cause on the capital punishment issue. (For example, these jurors might have had only general misgivings about capital punishment). Thus the result would be a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A review of the record reveals that, in fact, jurors Mitchell, Cross, Dugar and Duplessis might have been improperly excused. C.Cr.P. 800 provides in pertinent part:

“The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.”

The excusal for cause of six jurors was objected to by the defendant while the State still have seven peremptory challenges remaining. Even if the defendant is correct in asserting that the fact of unex-hausted peremptories will not cure a With-erspoon violation, reversal of the conviction is not required. In each of the cases cited by the defendant in which the Supreme Court reviewed cases with Witherspoon errors (Speck v. Illinois, 41 Ill.2d 177, 242 N.E.2d 208 (1968), rev’d 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971); Bernette v. Illinois and Tajra v. Illinois, 45 Ill.2d 227, 258 N.E.2d 793 (1970), rev’d 403 U.S. 947, 91 S.Ct. 2290, 2291, 29 L.Ed.2d 858 (1971); Mathis v. New Jersey, 52 N.J. 238, 245 A.2d 20 (1968), rev’d 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971); Wigglesworth v. Ohio, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969), rev’d 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Whan v. Texas, 438 S.W.2d 918 (Tex.Cr.App.1969), rev’d, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971)), only the sentence was overturned and the cases were remanded for resentenc-ing. Witherspoon made clear that the remedy for wrongful excusal was the prohibition of the imposition of the death sentence and not reversal of the conviction. See State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971). However, due to the decisions of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) and Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the sentence of the defendant Hawthorne must be vacated in any event. Since the death penalty may not be constitutionally imposed, no valid complaint can be based on Witherspoon violations. State v. Rester, 309 So.2d 321 (La. 1975); State v. Fallon, 290 So.2d 273 (La. 1974). Therefore, the erroneous actions of the trial judge do not require reversal of the conviction but merely resentencing of the defendant.

Hawthorne and Petite — Assignment of Error No. 18

In this assignment the defendants contend that the trial court erred in failing to swear in and sequester each juror immediately after acceptance by the State and defense. C.Cr.P. 788 provides in pertinent part:

“ . . . When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a jur- or.”
In addition C.Cr.P. 791 provides:
“A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
“In capital cases, after each juror is sworn he shall be sequestered.
“In noncapital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time upon order of the court.”

Here, the trial judge did not administer the oath to each juror as he was chosen. Rather, all jurors were sworn together after the alternate juror was chosen. Therefore, there was a technical violation of C.Cr.P. 791. However, the record reveals that all were chosen the same day and the jurors were in fact sequestered at all times. The purpose of sequestering the jurors is to protect them from outside influence. State v. Ahrens, 250 La. 391, 196 So.2d 250, cert. den., 389 U.S. 871, 88 S.Ct. 156, 19 L.Ed.2d 152 (1967). Since the jurors were in fact sequestered and no prejudice to the defendants had occurred, the technical violation of C.Cr.P. 788 does not constitute reversible error. C.Cr.P. 921.

Hawthorne — Assignment of Error No. 22

Hunter and Petite — Assignments of Error Nos. 7 and 10

In these assignments all of the defendants objected to the trial judge’s permitting a witness to testify as to what the victim told him on the night of the offense. Officer John Riviere, who participated in the arrest of the defendants, was called as a witness by the State. On the night of the crime the three defendants were hiding in the bathroom of the victim’s house when the police arrived.

Officer Riviere testified that he was with Miss Prados as the three accused were brought out of the bathroom; that as Hunter was led out Miss Prados said that Hunter was one of those who raped her; that as Petite was brought out Miss Prados stated that Petite was the one who tied her mouth up, and that Miss Prados identified Hawthorne as the individual who had raped her and who held the gun to her head while Hunter raped her.

The record does not reveal that any of these statements were made in response to questions posed by Officer Riviere. These statements by the victim were made within minutes of the completion of the crime while the perpetrators were still in the house attempting to hide from the police. While the officer’s account of the victim’s statements was hearsay, it clearly falls within the exception to the hearsay rule recognized by this court that the early complaint of a rape victim is admissible. State v. Brown, 302 So.2d 290 (La.1974). Reliability for such hearsay declarations is said to be supplied by the excitement of the event. McCormick on Evidence, § 297 (Cleary ed. 1972); 4 Wigmore on Evidence, § 1138-40 (Chadbourn ed. 1972); 6 Wigmore on Evidence, § 1761 (3d ed. 1940). The trial judge did not err in permitting this testimony.

Hawthorne — Assignment of Error No. 19

In this assignment the defendant contends that the trial court abused its discretion in allowing Detective Ward to be qualified as an expert to draw a blackboard sketch of the victim’s apartment. The prosecutor stated that the sketch was not drawn to scale and was being exhibited to the jury merely to show them a general layout of the rooms to help them better follow the testimony. No qualification of Detective Ward as an expert was ever made. In addition, the defendant never contended that the drawing was in any way inaccurate or prejudicial. This assignment lacks merit.

Hawthorne — Assignment of Error No. 21

In this assignment the defendant objected to the qualification of Philip Aviles as an expert in the field of forensic identification, more particularly, in the identification of seminal fluid. The witness testified that he had been a criminalist with the New Orleans Police Department for fifteen months and received formal on-the-job training throughout that time. He held a Bachelor of Science Degree from Southern University. He indicated that he. had performed over fifty examinations of the type in question. He had been qualified as an expert in Sections “A,” “E,” “G” and “J” of the Criminal District Court of New Orleans.

The trial court has wide discretion in determining the competence of an expert witness. State v. Grove, 306 So.2d 308 (La. 1975); State v. Thorson, 302 So.2d 578 (La. 1974). The discretion of the trial court will not be disturbed in the absence of abuse. State v. Richmond, 278 So.2d 17 (La.1973).

There was no abuse of discretion here. This assignment lacks merit.

Hawthorne — Assignment of Error No. 20

Officer James Scott, one of the arresting officers, was called as a witness for the State and identified defendant Hawthorne and the other two defendants in court as the men he arrested on the night of the crime. After these identifications, the prosecutor had the witness identify certain money allegedly stolen from the victim on the night of the crime. The testimony was as follows:

“Q. O.K. I show you an envelope and contents which I’m marking as State Exhibit Thirteen and ask if you can identify the contents and, if so, how?
“A. Yes, sir, I can identify all. There are four $1.00 bills and three $5.00 bills. It has my initials on them on the left bottom corner of each bill.
“Q. Who did you turn this property over to?
“A. To the detectives in the Detective Bureau.
“Q. Now, off of which of these three subjects did you recover this?
“A. Off of Dwight Hunter, sitting directly in the middle.
“Q. Let the record reflect the witness has identified Dwight Hunter. I would like the record also to reflect that this witness has properly identified each of the . . . ”

At this point, counsel for defendant Petite objected and moved for a mistrial apparently on the ground that it was for the jury to determine whether the money was properly identified. The trial court denied the motion for a mistrial.

Defendant argues that since proper identification was a question for determination by the jury, the prosecutor’s comment was prejudicial and the denial of a mistrial was error. We cannot say as a matter of law that this comment by the prosecutor was so prejudicial as to require a mistrial. C.Cr.P. 771, 775. This assignment lacks merit.

Hawthorne — Assignments of Error Nos. 24 and 25

These assignments of error were neither briefed nor argued and are therefore deemed abandoned. State v. Matthews, supra; State v. Edwards, supra.

Hawthorne — Assignment of Error No. 11

The defendant contends that the failure of the State to compensate his court appointed attorney for his services violates his rights under Article 1, § 13 of the Louisiana Constitution of 1974 to be provided with compensated counsel. The pertinent portion of Article 1, § 13 of the Louisiana Constitution of 1974 provides:

“ . . .At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.” (Emphasis added).

As this court held in State v. Bryant, 324 So.2d 389 (La.1976), the last sentence of that section is aimed primarily at furnishing qualified counsel for indigents. In that regard there is no showing that the defendant was not represented by skilled and diligent counsel. Nor is there any indication that defense counsel will not be compensated. See R.S. 15:141; State v. Wells, 324 So.2d 399 (La.1976). Therefore, we cannot say that the defendant’s rights under Article 1, Section 13 of the Louisiana Constitution of 1974 have been violated. This assignment lacks merit.

Hawthorne — Assignments of Error Nos. 9 and 26

In these last assignments of error defendant Hawthorne contends that the trial court erred in denying defendant’s motion to quash the indictment and in denying the defendant’s motions for a new trial and in arrest of judgment. Defendant argues that the imposition of the death penalty for the crime of aggravated rape constitutes cruel and unusual punishment.

The death penalty imposed on defendant Hawthorne in this case may not be imposed due to the decisions of the United States Supreme Court in Roberts v. Louisiana, supra, and Selman v. Louisiana, supra. However, since the record reveals no other reversible error, the conviction is affirmed. State v. Thomas, 310 So.2d 517 (La.1975); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972); State v. Singleton, 263 La. 267, 268 So.2d 220 (1972). Therefore, this case will be remanded to the trial court for resen-tencing of the defendant Hawthorne in accordance with the procedure prescribed by the court in State v. Craig, La., 340 So.2d 191; State v. Lee, La., 340 So.2d 180 and State v. Sledge, La., 340 So.2d. 205. He will thus be resentenced to the most serious penalty for a lesser included offense which existed at the time of the commission of the crime. On January 31, 1975 the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. The legislature obviously intended the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

Accordingly, the convictions and sentences of defendants Hunter and Petite are affirmed. The conviction of defendant Hawthorne is affirmed and the case is remanded for resentencing of defendant Hawthorne.

SANDERS, C. J.,

concurs in the conviction but dissents from the sentence and assigns written reasons.

SUMMERS, J.,

concurs in the conviction but dissents from the sentence for the reasons assigned in the dissent to State v. Lee, La., 340 So .2d 180.

MARCUS, J.,

concurs in affirmance of convictions and sentences of Hunter and Petite and conviction of Hawthorne, but dissents from penalty directed by majority for Hawthorne for reasons assigned in his concurring and dissenting opinion in State v. Craig, 340 So.2d 191 (La.1976).

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence).

I agree with Mr. Justice Summers that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

Absent majority agreement on the jury hearing procedure, however, I would order the trial judge to impose a sentence of life imprisonment. Reduction of the sentence for aggravated rape from death to twenty years is a far too drastic reduction. In my opinion, such a change does violence to legislative policy.

For the reasons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence.

      . Defendants Hunter and Petite also assign as error the refusal of the trial court to grant their request to order the prosecutor to disclose any and all statements made by the victim. The defendants were not entitled to discover that evidence. See Hawthorne Assignments of Error Nos. 1-8 above.

      . In fact, in his brief in support of this argument defendant says:
      “The appellant is not here suggesting that his trial counsel was unmotivated or inadequate, but rather that the Constitution secured his right to compensated counsel, which in the opinion of the drafters of the Constitution, would act more vigorously in his defense. Appellant’s trial counsel was not compensated, therefore his right to such counsel was denied.”


author: CALOGERO, Justice. SANDERS, C. J., SUMMERS, J., MARCUS, J., SANDERS, Chief Justice

text:
    STATE of Louisiana v. Kenneth E. WATKINS.
    No. 57904.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 18, 1976.

      W. S. McKenzie and Frank W. Middleton, III, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

A sixty-three year old nurse from a central placement service in Baton Rouge responded to a request for home nursing service and drove to defendant’s home. Upon being admitted she was forcibly assaulted and raped. Thereafter she was placed in the trunk of her automobile and driven away. She was left in a wooded area, near a field, tied with a rope. She ultimately freed herself and was taken to the Sheriff’s Office. She later identified defendant as her assailant.

Defendant was indicted for aggravated rape in violation of R.S. 14:42 and thereafter entered a plea of not guilty and not guilty by reason of insanity. The trial jury found him guilty as charged and he has been sentenced to death.

Defendant appeals the conviction and sentence relying upon fifteen assignments of error.

ASSIGNMENT OF ERROR NO. 1.

In assignment of error number one defendant alleges that the trial court erred in denying his motion to quash based on the systematic exclusion of women from the grand jury. He urges this Court to reconsider its previous rulings on this issue.

This very defendant has previously raised this issue before this Court in an application for a writ of mandamus prior to the trial. We denied him relief. State ex rel Watkins v. Lear, 309 So.2d 343 (La.1975).

The issue was before the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Supreme Court held Louisiana’s constitutional and statutory provisions excluding women from jury venire unconstitutional. However, in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the Supreme Court ruled that the Taylor decision would not be applied retroactively as a matter of federal constitutional law. This Court has likewise held that Taylor v. Louisiana, supra., as a matter of Louisiana constitutional law, is not to be applied retroactively. State v. Gaines, 315 So.2d 298 (La. 1975); State v. Nero, 319 So.2d 303 (La. 1975); State v. Rester, 309 So.2d 321 (La. 1975); State v. Sonnier, 317 So.2d 190 (La. 1975).

As the grand jury indicted the defendant on December 17,1974, one month before the Taylor decision was handed down, Taylor is not applicable.

Assignment of error number one is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 14.

Defendant complains that the trial court committed error in denying his motion to quash on the ground that the death penalty is unconstitutional under the constitutions of the United States and the State of Louisiana (assignment number two) and he contends that the death sentence imposed is unconstitutional (assignment number fourteen). The assignments have merit so far as imposition of the death penalty is concerned in light of the recently decided United States Supreme Court decision in Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

In accordance with our decisions in State v. Lee, 340 So.2d 180 (La.1976) and State v. Craig, 340 So.2d 191 (La.1976), we find that the case must be remanded for resen-tencing of defendant to the most serious penalty for a lesser included offense at the time the crime was committed (December 10, 1974). At that time, attempted aggravated rape was punishable by imprisonment for not more than twenty years. La.R.S. 14:27(D)(1). Simple rape carried a penalty of one to twenty years. La.R.S. 14:43. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

ASSIGNMENT OF ERROR NO. 3.

In assignment of error number three defendant, complains that the trial court erred in admitting evidence of events and alleged criminal acts which took place after the alleged offense was committed. He argues that his relevancy objection was improperly overruled.

The facts surrounding the alleged rape are:

The defendant called a central nurse-placing service requesting a nurse to sit with his elderly mother. The victim in this case, a nurse, accepted this appointment of service, drove to defendant’s home, parked her automobile and entered defendant’s residence at which time she was forcibly assaulted and raped. Her hands and feet were tied and she was placed in the trunk of her automobile and driven away. She was left in a wooded area tied with a rope securing her to the area. The defendant drove away. She freed herself and approached a farmer working in a nearby field and hysterically told him that she had been raped. She was taken to the local law enforcement authorities and subsequently got in touch with her family and was driven home.

LSA-R.S. 15:441 provides:
“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. “Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

Connexity of evidence is a matter of fact for the jury to decide so long as the testimony or the objects introduced are shown to the satisfaction of the trial judge to have some relevancy; that is, some logical or rational connection with facts sought to be proved. State v. Lane, 292 So.2d 711 (La. 1974).

Testimony and physical evidence concerning the aforementioned events which took place after the rape and at locations away from the scene of the rape in this case were relevant and corroborative, and thus admissible.

Assignment of error number three is without merit.

ASSIGNMENT OF ERROR NO. 8.

In this assignment of error defendant complains of the trial court’s permitting the state to offer as rebuttal evidence over his objection the tape of an oral inculpatory statement made by the defendant. We just recently had occasion to reverse a conviction because, among other reasons, the prosecution waited until rebuttal to introduce a confession or inculpatory statement which in fact did not properly constitute rebuttal to the defendant’s case. See State v. Turner and Glover, La., 337 So.2d 455 (La.1976). As we pointed out in Turner, the state may not reserve part of its case in chief for rebuttal after the defense has put on its case and when the defense can no longer present evidence to rebut the state’s case, for among other reasons it is contrary to statute and to the rules of fair play. As is also noted in that case, however, this rule “cannot always be enforced with cast iron inflexibility and must yield in its application to the sound discretion of the trial judge whose ruling will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately for the purpose of deceiving and obtaining an undue advantage of defendant.” Furthermore, in Turner, the commission of the criminal act was very much in dispute and the evidence of the oral inculpatory statement submitted in rebuttal quite damaging to defendant’s case.

This case is somewhat different from Turner.

Defendant had entered a plea of not guilty and not guilty by reason of insanity. Evidence that he had committed the rape was overwhelming and virtually undisputed. The principal issue was the insanity of the defendant at the time of perpetration of the crime. Our law imposes upon defendant the burden of proving insanity. See State v. Berry, 324 So.2d 822 (La.1976). Accordingly the state in presentation of its case in chief limited its proof to defendant’s commission of the rape. When the defendant put on his case, he attempted to prove that he was insane at the time of the commission of the offense and he produced, among other evidence, the testimony of Dr. Curtis Steele who gave his opinion that defendant could not distinguish right from wrong at the time of commission of the offense, because he suffered from a “hysterical neurosis of the disassociated type.” In the doctor’s opinion, under stress, this defendant would disassociate from normal consciousness. Particularly, defendant contended in conversation with the various psychiatrists that he could not remember anything surrounding the incident. In effect he purported to suffer amnesia.

In rebuttal the state produced testimony of Dr. F. A. Silva (which is discussed in a bit more detail in the succeeding assignment). And the state also attempted to counter the defense position that defendant could not recall any events surrounding the incident and was in a disassociated (or unconscious) state at or about the time of this rape. They introduced the taped oral incul-patory statement given to the police in which the defendant exhibited an apparent awareness and a recollection of the events surrounding the incident.

The fact that this taped statement involved seriously inculpating admissions was hardly damaging to the defendant with respect to commission of the rape in view of the uncontroverted evidence that defendant had committed the offense. We find that it was relevánt rebuttal evidence to the insanity defense, and in this respect for which effectively introduced, timely rather than belatedly presented.

The assignment is not meritorious.

ASSIGNMENT OF ERROR NO. 9.

When the state in rebuttal attempted to introduce into evidence the taped confession, or inculpatory statement, taken by the police shortly after defendant was turned over to them by his mother and stepfather, counsel moved to have it suppressed for the further reason that defendant did not have the mental capacity to have intelligently waived his constitutional rights.

The trial judge entertained evidence on the predicate, considered the conflicting expert medical testimony, and denied the motion to suppress. Defendant’s assignment of error number nine arises from this ruling.

The evidence favorable to defendant on the question included the testimony of his mother and stepfather that prior to their arrival, with defendant at the sheriff’s office he appeared to be in a dazed condition, unresponsive and unaware of his general surroundings. His mother testified that before the date in question, on several occasions he had suffered blackout spells whereupon he was prone to act in a violent manner and that he had no recollection of these incidents. The parish coroner, Dr. Hipolite Landry, Jr., two months after the incident in question, found defendant unable to assist counsel in his defense, although at a later time prior to trial the coroner and Dr. Silva found that he was able to assist his counsel).

The defense psychiatrist, Dr. Curtis A. Steele, opined that at the time of the incident defendant was suffering from a hysterical neurosis of the disassociated type during which he was prone to disassociate from normal consciousness into a fugue state and do things over which he had no control. The police officers who took the taped statement from him testified essentially that defendant appeared nervous and at times irrational.

On the other hand, the psychiatrist appointed by the court, Dr. Silva, testified that he had examined defendant on three separate occasions. His opinion with respect to defendant’s competence at or about the time of the incident, was that defendant was a disturbed person. His intelligence was low but he was not retarded. His grasp of reality was not very good but he was nonetheless legally sane, that is, he could distinguish right from wrong. He testified that defendant was not psychotic and that his purported amnesia concerning events surrounding the rape was questionable in light of defendant’s differing ability to recollect, evident from the three examinations, or interviews.

The trial judge apparently concluded that at the time the oral statement was given defendant was not suffering from such mental incapacity as would preclude his freely and voluntarily giving a statement. And, of course, there was no indication at all that the statement was coerced. Under the circumstances we cannot say that the trial judge erred. The finding of the trial judge in these respects is entitled to great weight. State v. Peters, 315 So.2d 678 (La. 4975).

ASSIGNMENT OF ERROR NO. 13.

In State v. Babin, 319 So.2d 367 (La.1975) we held that “when the trial judge was not included in the general charge instruction explaining or quoting the law applicable to a verdict of not guilty by reason of insanity, then upon defendant’s request he must read the defendant’s wholly applicable, wholly correct suggested charge to the jury. Article 807, C.Cr.P.” In that case we did not prescribe, and stated that we preferred not to prescribe, any particular form that such instructions must take.

In State v. Liesk, 326 So.2d 871 (La.1976), we held that “where the defendant properly pleads not guilty and not guilty by reason of insanity upon a proper request the law pertaining to the consequences of a verdict of not guilty by reason of insanity must be included in the charge to the jury.”

Defendant contends that in this case, the trial judge advised counsel that he intended to instruct the jury concerning the consequences of the verdict of not guilty by reason of insanity. Accordingly, defense counsel did not present in writing or otherwise, a requested charge as to the applicable law (which appears generally in article 654 through 658 inclusive of the Code of Criminal Procedure). During the charge the trial judge did indeed instruct the jury on the effect of a verdict of not guilty by reason of insanity by paraphrasing appropriate portions of C.Cr.P. articles 654 and 655.

After the charge was completed and the case submitted to the jury, counsel for defendant objected, contending that the trial judge should not have omitted reference to the provision in the law for notice to the district attorney. In brief he claims the judge should have read the entirety of articles 654 through 658. Inasmuch as defendant did not present a requested special charge, in view of his belated and narrowly articulated objection, and in light of the trial judge’s conscientious effort to comply with State v. Babin, supra, by instructing the jury as to the consequence of a finding of not guilty by reason of insanity, we find no merit in the assignment of error.

OTHER ASSIGNMENTS OF ERROR

The remaining assignments of error are likewise without merit. These include assignment of error number four, a complaint that the trial court failed to declare a mistrial after a state witness nonre-sponsively testified that she had ample time to get a good look at defendant “before and in the lineup”; assignment of error number five, wherein the defendant claims prejudice from the trial court’s permitting the open court fingerprinting of defendant; assignment of error number six wherein for the same reasons discussed under assignment of error number three, above, defendant complained of allowing the testimony of a farmer who discovered the victim in the field where she had been left; assignment of error number seven, wherein for the reasons noted under assignment of error number three, above, defendant objected to the introduction of the rope used to tie the victim in the field, her purse, key ring, fountain pen, billfold and pictures discovered in the field; assignment of error number ten, a contention that the trial court erred in reading to the jury the provisions of R.S. 14:42; assignment of error number eleven wherein he claims that the court should have given the jury a responsive verdict of forcible rape notwithstanding R.S. 14:43.1 was not enacted until after the offense charged in the instant case; assignment of error number twelve, wherein defendant complains that the trial court erred by charging the jury that state law places the burden of proof of insanity on the defendant (see State v. Berry, supra.); assignment of error number fifteen, which is rendered moot by Roberts v. State of Louisiana, supra.

For the reasons assigned the conviction of defendant is affirmed, but the death sentence imposed upon him is annulled and set aside, and the case is remanded to the district court for resentencing.

AFFIRMED IN PART, REMANDED.

SANDERS, C. J.,

concurs in conviction but dissents from sentence and assigns written reasons.

SUMMERS, J.,

concurs in the conviction but dissents from the holding on penalty. See dissent in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs in affirmance of defendant’s conviction but dissents from penalty directed by majority for reasons assigned in his concurring and dissenting opinion in State v. Craig, 340 So.2d 191 (La.1976).

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence).

I agree with Mr. Justice Summers that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

Absent majority agreement on the jury hearing procedure, however, I would order the trial judge to impose a sentence of life imprisonment. Reduction of the sentence for aggravated rape from death to twenty years is a far too drastic reduction. In my opinion, such a change does violence to legislative policy.

For the reasons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence.

      . The pertinent instruction was as follows: “. . . There has been some discussion by both sides in the argument concerning the results of the verdict of not guilty by reason of insanity. Article 654 of the Code of Criminal Procedure states that where a verdict of not guilty by reason of insanity is returned in a capital case, the Court shall commit the defendant to the proper state mental institution for custody, care, and treatment. Article 655 says when the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654, which I just read, can be discharged or can be released on probation without danger to others or to himself, he shall recomniend a discharge or release of the person in a report to the Court by which the person was committed. A person committed pursuant to this article may make application to the Court by which he was committed for discharge or for release on probation. Such application by a committed person shall not be filed until the committed person has been confined for a period of at least six months after the commitment. If the determination of the Court is adverse, the applicant shall not be permitted to file another application until one year has elapsed from the date of the determination. .