author: SANDERS, Chief Justice. DIXON, Justice

text:
    STATE of Louisiana v. Samuel COREY.
    No. 58138.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      F. Irvin Dymond, Law Offices of Dymond & Crull, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Geraldine S. Veazey, Asst. Dist. Attys., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Orleans Parish Grand Jury indicted the defendant for the first-degree murder of Patricia Albernoski Giesick, a violation of LSA-R.S. 14:30. After trial by jury, he was found guilty as charged. The trial judge imposed the mandatory death sentence. On appeal, defendant relies upon seventeen assignments of error for reversal of his conviction and sentence; the remaining assignments of error, having been specifically abandoned, are not considered.

ASSIGNMENTS OF ERROR NOS. 6, 7, 8, AND 20

Assignments of Error Nos. 6, 7, and 8 relate to the testimony of Officer John P. Dillman of the New Orleans Police Department. Dillman identified documents he personally secured from the Ramada Inn, Holiday Inn, and Avis Rent-A-Car.

Assignment of Error No. 20 was reserved by defendant when the trial court allowed into evidence original telephone slips received from both the Quality Inn and Holiday Inn showing telephone calls made by the defendant. Defendant argues that these documents represented inadmissible hearsay information, and they were, therefore, inadmissible.

Assignments of Error Nos. 6, 7, and 8 are without substance. Defense counsel had originally objected to the introduction of this evidence, but when the State offered it into evidence, defendant specifically stated that he had no objection to its introduction into evidence. (Vol. IV, 12, 161-162). Defendant waived any right to raise these issues on appeal. LSA-C.Cr.P. Art. 841, State v. Marcell, La., 320 So.2d 195 (1975).

In Assignment of Error No. 20, defendant objects to the introduction of “telephone slips” from the Quality Inn and the Holiday Inn showing telephone calls made by defendant on certain dates in question. A police officer retrieved the telephone records from the Quality Inn and Holiday Inn showing that the defendant had called the Giesick residence. The defendant contends this was error because no employee of either motel testified concerning the telephone slips.

At trial, the officer testified that he had picked up the slips from the Holiday Inn on the day of the trial and brought them into court himself. He also testified that he had secured the document from the Quality Inn on April 22, 1975, identifying the document in court which bore his initials and date. The documents showed that the defendant had called the Giesick residence in Texas. Mrs. Giesick had previously testified that Corey had called her several times and that she was acting as a “go-between” for Corey and Giesick in a scheme to collect insurance on the life of Patricia Albernoski Giesick. The defendant denied calling Giesick. These documents tended to show that the defendant did telephone the Giesick residence from New Orleans.

While LSA-R.S. 15:434 specifically states that hearsay is inadmissible, it also recognizes exceptions to that general rule. LSA-R.S. 15:460 provides for the admission of business records under certain circumstances. In State v. Launey, La., 335 So.2d 435 (1976), we held:

“Business records are admissible in evidence if relevant and material without the necessity of identifying, locating or producing as witnesses the individuals who made the entries in the regular course of business.”

The trial court correctly stated:

“This court felt that the documents were business documents kept in the usual course of business, that they were properly identified by the retrieving officer and that they were proper rebuttal.”

Assignments of Error Nos. 6, 7, 8, and 20 are without merit.

ASSIGNMENT OF ERROR NO. 9

This assignment of error arose as a result of the trial court’s permitting the State to adduce testimony from an investigating officer relating to a statement made by the defendant in San Antonio, Texas prior to being advised of his constitutional rights enumerated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant alleges that the Miranda warnings were required because defendant was the focus of a criminal investigation and was in custody at the time the statement was made. The State argues that this contention is belied by the record and that the statements were properly admitted.

When an accused is in custody, Miranda warnings must be given prior to interrogation. However, when the questioning is non-custodial, Miranda warnings are not essential. The objective test to determine the necessity of the warnings must be applied. United States v. Hall, 421 F.2d 540 (2d Cir. 1969). An examination of the record normally discloses four factors that are particularly helpful in this task: (1) whether, prior to interrogation, probable cause existed to arrest the accused; (2) statements or actions by the police indicating an intention to hold or restrain him; (3) statements or actions by the accused indicating his reasonable belief that he is in custody; and (4) the extent to which the investigation has focused on the accused.

At the time Dillman questioned the defendant, the police did not have probable cause to arrest him. The questioning was merely investigatory. Defendant would have been permitted to leave if he had so desired, and, as the trial judge correctly noted, the defendant, at this stage, did not believe himself to be a suspect. There is no indication that the statements or actions of the officer gave the defendant reason to believe that he was in custody or under restraint when he was questioned. Therefore, the lack of Miranda warnings does not bar admission of the testimony regarding these statements. State v. Roach, La., 322 So.2d 222 (1975).

Assignment of Error No. 9 is without merit.

ASSIGNMENTS OF ERROR NOS. 10, 12, AND 14

These assignments of error are consolidated for discussion since, in each, it is contended that photographs admitted into evidence were so prejudicial as to outweigh their probative value, and that their admission constituted reversible error.

The State and defendant agree on the fundamental principle of law which governs the admissibility of the photographs: the probative value of the photographs must outweigh their prejudicial impact. State v. Smith, La., 327 So.2d 355 (1976).

In Assignment of Error No. 10, defendant alleges that certain photographs shown to the jury were inflammatory and highly prejudicial. The trial court excluded some photographs which it considered inflammatory or repetitious but allowed the introduction of the contested photographs. A careful examination of the record verifies the explanation for the introduction of the photographs given by the trial judge. The trial judge’s Per Curiam correctly disposes of the defense contention:

“This assignment of error was taken when, over objection by the defendant, this court permitted the State to introduce exhibits S-16 through S-22, S-30, 31 and 33, and to exhibit same to the jury. The objection of the defense was based on the fact that these photographs were inflammatory and highly prejudicial to the defendant. However, the court allowed the photographs into evidence after excluding a number of other photographs which it determined in its own mind to be inflammatory and/or repetitious. The reason for the introduction into evidence, over objection, was that the State had removed from the undercarriage of a 1974 Monte Carlo automobile which the State contended was the death vehicle particles of hair and scalp which the State again contended was that of the victim. The 1974 Monte Carlo was further linked by other evidence to the possession of the defendant, Sam Corey. It was, therefore, necessary for the State to lay the proper predicate for the exhumation of the deceased, the removal of particles of hair and scalp from the body of the deceased after exhumation and to link that up with the hair and skin particles found in the undercarriage of the 1974 Monte Carlo. These pictures reflecting this procedure, therefore had a definite function in the State’s case in chief. Further, the scenes depicted in these exhibits were highly probative and corroborative of the State’s main issue against the defendant, to wit: that the car rented by the defendant, Sam Corey, was the car used to kill the deceased, Patricia Albernoski Giesick.”

Even if photographs are unpleasant or repulsive, this does not mean that they are necessarily inadmissible. The test of admissibility is whether the probative value of the photographs outweighs the prejudice which may result from their display to the jury. In this case, the probative value of the photographs outweighed any prejudicial effect that they might have. State v. Cooper, La., 334 So.2d 211 (1976); State v. Smith (On Rehearing), La., 327 So.2d 355 (1976); State v. Beach, La., 320 So.2d 142 (1975).

Assignment of Error No. 12 relates to a photograph of the victim after she had been exhumed, S-27, introduced in connection with Officer Dan Henderson’s testimony. He identified the person in the photograph as the same person whose body he had found at the scene of the reported hit-and-run accident on January 16, 1974.

The relevance of this photograph and testimony is obvious: it provided the essential link between the body found at the scene of the crime and the exhumed body from which the hair and scalp particles were removed that ultimately established defendant as the driver of the murder vehicle.

Since the probative value of the photograph thus clearly outweighed any prejudicial effect it might have had, it was properly admissible in evidence. State v. Curry, La., 292 So.2d 212 (1974).

Assignment of Error No. 14 deals with a photograph of the victim taken prior to her death and identified by her mother at the trial. Defendant makes the novel argument that its admission constituted reversible error because it: “served to intensify the extent of the injuries suffered by the victim by providing a contrast.”

The introduction of this photograph was proper to establish the identity of the victim, and the photograph, taken prior to the victim’s death, was in no way gruesome; hence, it was admissible. State v. Smith, supra. Furthermore, as the trial judge points out in his Per Curiam, there was another very important reason for admitting the photograph into evidence:

“The Court allowed the introduction of S^46 in order to establish the identify of the victim. S-46 was a picture of the victim taken prior to her death and in no manner was gruesome or prejudicial to the defendant. As a matter of fact, the identity of the deceased could have been established by a showing of one of the previously introduced exhibits which depicted a morgue picture and/or the exhibits from the exhumation. However, the witness identifying Patricia Albernoski Giesick was the deceased’s mother and this court felt that a showing of any of the previous exhibits would not only be cruel and inhumane, but also would cause the witness to break into hysteria and thereby definitely prejudice the defendant. An identity by means of S^46 from the witness which could then be compared to the other exhibits by the jury would definitely establish an essential element of the State’s case, to-wit: the identity, without the possibility of any prejudicial effect to the defendant.”

Assignments of Error Nos. 10, 12, and 14 are without merit.

ASSIGNMENT OF ERROR NO. 11

Here, defendant alleges that he was restricted in his cross-examination of Detective Dillman. The assigned error recites that: “the court sustained the state’s objection to defense counsel asking the witness, Dillman, a line of questions designed to show the officer’s experience as a witness, his knowledge of the rules of evidence relative to hearsay testimony, and the ultimate fact that the officer had deliberately interjected hearsay testimony knowing same to be improper and that the false inference created by the officer’s testimony was designed to prejudice the defendant.”

The record reveals that defense counsel had already questioned Dillman on the rules of evidence, especially hearsay. The court sustained the State’s objection only after the cross-examination became repetitious and argumentative. The trial judge was of the view that cross-examination of the witness was adequate and that defendant was not unduly prejudiced by his ruling. We agree.

Assignment of Error No. 11 is without merit.

ASSIGNMENT OF ERROR NO. 15

This assignment of error arose as a result of the trial court’s overruling defendant’s objection to an answer given by a State’s witness, David Louis Merrick, II. Merrick, an insurance salesman, had testified that the defendant and Claudius Giesick had questioned him in detail about buying an insurance policy. Merrick was asked what type of questions Giesick and Corey had asked. He first replied, “Well, I guess — I thought that they were lawyers or something.” At this point, defendant objected, stating: “Your Honor, I object to this. If the witness remembers what the questions were, I would have no objection, but to let him characterize the questions as a certain type . . .” The Court then stated: “I’ll sustain the objection. Just tell us what type of questions they were asking you.” The witness responded: “They were legally based questions.” Defendant again objected to the answer, but was overruled.

We find no error in the trial court’s ruling. It is well settled that a non-expert witness may draw natural inferences from facts personally observed by him. State v. Lewis, La., 288 So.2d 324 (1974). Due to the fact that Giesick and defendant asked the witness a variety of questions about insurance coverage which demonstrated technical knowledge of the law, this witness could infer that these questions were “legally based.” For example, Merrick related how defendant and Giesick questioned him about hit-and-run clauses, about accidents on public thoroughfares and about specific conditions under which payment would be received on the policy. It is obvious that the witness had a factual basis upon which to classify the questions.

Assuming, however, that the testimony was improper, the defendant has exhibited no prejudice to himself, and we are able to find none; therefore, if error was committed, the error was harmless. LSA-C.Cr.P. Art. 921.

Assignment of Error No. 15 is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant here assigns error to a question asked by the district attorney during the cross-examination of William Miller, one of defendant’s attorneys. The circumstances are reflected in the trial judge’s Per Curiam, as follows:

“This assignment of error was taken when the court overruled defendant’s objection to a question of Mr. William Miller by the State on its cross-examination, to-wit: ‘Mr. Miller, isn’t it a fact that at one time the district attorney’s office in San Antonio planned to indict you for perjury?’
“In order to understand the court’s ruling on this objection, the following should be pointed out. On the morning of April 25, 1975, and prior to the commencing of the trial for that day, Mr. Dymond and Mr. William Miller, co-counsel for the defendant Sam Corey, approached this court in chambers with the request that I allow Mr. Miller, since he was an attorney, to take the witness stand in order to refute certain derogatory remarks made by Claudius Giesick about Mr. Miller during Claudius Giesick’s testimony. In essence, Giesick had testified that when William Miller represented him that he had suggested he go to a psychiatrist in order to establish some type of insanity defense. Giesick further testified that Miller had suggested to Giesick that he lead the psychiatrist astray so that the psychiatrist would give a diagnosis favorable to Giesick. It was Mr. Miller’s desire that he be allowed to take the stand so that he could refute the statements of Giesick since they implied that Mr. Miller was acting'in an unethical manner. Although it was this court’s desire that Mr. Miller not take the witness stand, nor was it this court’s opinion that it was necessary, Mr. Miller and Mr. Dymond were adamant. Therefore, the court allowed Mr. Miller to testify. On direct examination Mr. Miller testified that he had at no time suborned perjury by instructing or advising Giesick to go to a psychiatrist and, by stating untruths, build up a defense to a criminal case. (See p. 47 April 25th trans.) By so testifying, it was this court’s opinion that Mr. Miller was placing his own character in evidence and that the question of the district attorney with regard to an indictment for perjury was proper. However, it should further be noted that Mr. Miller desired and did answer the question to the fullest.
“It should again be noted that Mr. Miller adamantly insisted upon taking the witness stand over this court’s advice that he should not.” Vol. I, Tr. pp. 29-30.

The State alleges that the question was permissible under State v. Luekett, La., 327 So.2d 365 (1976) and LSA-R.S. 15:490 which provides:

“The credibility of a witness may be attacked generally, by showing that his general reputation for truth or for moral character is bad, or it may be attacked only in so far as his credibility in the case on trial is concerned.”

We disagree. LSA-R.S. 15:495 prohibits cross-examination as to indictments. Since cross-examination as to indictments is prohibited, certainly cross-examination concerning an indictment which was never filed is prohibited. Though the question was impermissible cross-examination, we do not find that it was reversible error for several reasons: reversal cannot be predicated on such error due to the witness’s insistence on answering the question; counsel’s failure to object to subsequent questioning along the same line; and the lack of showing of prejudice to the defend; ant caused by the question. LSA-C.Cr.P. Art. 921; State v. Dimopoullas, 260 La. 874, 257 So.2d 644 (1972).

Further, it is well established that the control of the examination of witnesses is in the sound discretion of the trial judge and that his rulings will not be disturbed in the absence of abuse of this discretion. State v. Singleton, La., 321 So.2d 509 (1975). The court did admonish the jury to disregard the question. We find that this was sufficient to cure the defect and that there was no abuse of the discretion vested in the trial court.

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 17

This assignment of error arose as a result of the trial court’s overruling defense counsel’s objection to a question asked by the State during defendant’s cross-examination relating to statements the defendant made to a newspaper reporter. Defense counsel alleges that a proper foundation had not been laid for the question. Defendant was first asked:

“Q. Do you know a gentleman by the name of Pete Franklin, Mr. Corey?
“A. Yes Sir.
“Q. Who is Pete Franklin?
“A. He’s a reporter.
“Q. From San Antonio?
“A. Yes, sir.
“Q. Didn’t you tell Pete Franklin that you admitted to having been with Giesick at the Dallas-Fort Worth Airport many times, but that you had ‘absolutely nothing to do with any insurance’? Did you tell him that?
“A. I don’t recall.
“Q. You don’t recall?
BY MR. DYMOND: Your Honor, I don’t think a proper foundation has been laid for any conversations that are purported to .
BY THE COURT: Overruled.
BY MR. DYMOND: Note an objection, please.
“EXAMINATION BY MR. WHALEN:
“Q. Did you say that you were never with him at any time when he purchased insurance for himself or for his bride, nor were you with Giesick when he inquired about insurance? Did you tell Pete Franklin that?
“A. I don’t know. I don’t know if he even asked me that.
BY MR. DYMOND: Your Honor, this is a series of newspaper articles that would take me fifteen or twenty minutes to read.”

After objection was made and overruled, Corey was shown a series of newspaper articles in which he made the statement attributed to him by the reporter, Franklin; Corey again stated he did not recall making such statements. Nothing further was pursued along this line of questioning and the articles (S-52) were not then introduced.

It is clear from the above testimony that the defendant did not admit making the prior statement. Hence, the foundation was sufficient to permit the introduction of the statement itself from the newspaper articles. LSA-R.S. 15:493; State v. McMellon, La., 295 So.2d 782 (1974).

Assignment of Error No. 17 is without merit.

ASSIGNMENT OF ERROR NO. 19

This assignment of error resulted from the trial court’s denial of defendant’s motion for a mistrial in which defendant charged that the district attorney had made improper comments upon defendant’s testimony. The State contends that if any prejudice was generated by this remark, it did not warrant the granting of a mistrial.

The State was attempting to establish the defendant’s movements after committing the murder. The defendant’s memory became faulty when he was asked where he was when he found out that the victim was dead. He could not recall. The assistant district attorney replied: “Somehow I didn’t expect you would.”

This statement does not fall under Article 770 of the Louisiana Code of Criminal Procedure dealing with a mandatory mistrial, since it is not based on any of the grounds for mistrial enumerated in that article. See, State v. Batiste, La., 318 So.2d 27 (1975).

Article 771 of the Louisiana Code of Criminal Procedure might be applicable in this situation, this article states that if an improper comment is made by representative of the State, the trial court shall promptly admonish the jury to disregard such comment. A mistrial need not be granted if the trial court believes that any prejudice was cured by the admonition. In any event, it is incumbent on the party moving for the mistrial to request the admonition. State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). In this case, the trial court admonished the jury sua sponte.

Assignment of Error No. 19 is without merit.

ASSIGNMENT OF ERROR NO. 21

Defendant assigns as error the trial court’s permitting a state’s witness, Joe Schumacher, to testify on rebuttal over defense objection. This witness was the manager of the motel where Claudius and Patricia Giesick stayed in New Orleans. On April 24, 1975, he had testified that he had received a call from Methodist Hospital through one of his clerks notifying him of the death of Patricia.- He identified Corey as the man with Giesick on January 16, 1974, when the call was received. The testimony to which the defendant objected was taken on April 26, 1975, two days after this witness’s initial testimony. The questions asked by the district attorney merely re-established Schumacher’s occupation and the circumstances under which he came in contact with the defendant.

In the two-day period between Schumacher’s initial testimony and this incident, many other witnesses had given extensive testimony. The State, therefore, undertook to refresh the minds of the jurors as to Schumacher’s identity. Further, this testimony was proper rebuttal because the defendant had in the meantime stated that he wasn’t really sure where he was when he was informed that Patricia Alber-noski Giesick was dead. In effect, he had contradicted Schumacher’s prior testimony and made a factual statement. Hence, the testimony was proper rebuttal. State v. Washington, La., 272 So.2d 355 (1973); State v. Diggs, 261 La. 76, 259 So.2d 18 (1972).

Assignment of Error No. 21 is without merit.

ASSIGNMENT OF ERROR NO. 22

Defendant assigns as error the trial court’s denying defendant’s Requested Special Charges Nos. 1, 4, and 13.

Special Charge No. 1 dealt with accomplices and was essentially covered in defendant’s charges Nos. 2 and 3 which were granted.

Special Charge No. 4 was directed at the testimony of police officers: that such testimony was not to be given any greater weight than that of any other witnesses. In instructing the jury regarding how to deal with evidence adduced from experts and non-experts, the Court covered the subject matter of the requested special charge; therefore, its denial was not error.

Special Charge No. 13 dealt with reasonable doubt which was covered in the general charge; hence the denial of the special charge was not error.

Defendant also complains that he was not given adequate time in which to examine the' trial court’s intended jury charge. Specifically, defendant urges this Court to require the trial court to give the defendant “sufficient time” prior to the giving of the instructions in which to peruse the charges and make specific objections. The trial court followed the provisions of Article 801 of the Louisiana Code of Criminal Procedure. The same contention has previously been rejected in State v. Tarrance, 252 La. 396, 211 So.2d 304, cert. denied 393 U.S. 1038, 89 S.Ct. 662, 21 L.Ed.2d 586 (1968).

Assignment of Error No. 22 is without merit.

ASSIGNMENT OF ERROR NO. 23

Defendant alleges that the trial court erred when it denied defendant’s motion for a new trial in which defendant alleged that the State utilized a procedure designed to secure jurors who were prone to convict as demonstrated by their record of performance in the course of their duty as members of the petit jury venire from which the trial jury in this case was selected.

A challenge to the general venire or petit jury venire is properly raised by a Motion to Quash. LSA-C.Cr.P. Art. 532; State v. Speed, La., 335 So.2d 28 (1976).

In the present case, the defense neither used the proper procedural vehicle for raising its objection nor offered specific evidence of improprieties in the jury selection procedure.

Assignment of Error No. 23 is without merit.

ASSIGNMENT OF ERROR NO. 24

Defendant here assigns error to the trial court’s refusal to grant a new trial, contending, in effect, that the evidence it presented at the hearing on the Motion for New Trial showed that Mrs. Kathy Giesick, a witness for the State, committed perjury in testifying that she had not been granted immunity for her testimony against Sam Corey.

Since the assignment arises in the context of a Motion for New Trial based on newly discovered evidence, it is governed by the general rule that the trial judge’s ruling should not be disturbed in the absence of a clear abuse of discretion. State v. Barton, 181 La. 262, 159 So. 383 (1935). An examination of the record reveals no such abuse of discretion.

Appellant concedes in brief that his evidence was entirely circumstantial. The parties who could give direct evidence on the existence of a “deal” — the prosecuting attorney, and Mrs. Giesick — emphatically and unconditionally denied any such arrangement.

In rebuttal of this clear and convincing evidence, appellant presented the testimony of one Thomas Phillips, who claimed he had overheard Claudius Giesick say “They lied” on learning of his wife’s arrest.

When Giesick was called to explain what he meant, he stated that he was referring to his attorney when he said “they.” If anything is clear from Giesick’s testimony it is that his anger was due entirely to the representations of his attorney and not to anything the District Attorney or any officer of the District Attorney’s staff said or did.

Assignment of Error No. 24 is without merit.

On July 2, 1976, the United States Supreme Court invalidated the mandatory death penalty provision of our first degree murder statute, LSA-R.S. 14:30, as viola-tive of the Eighth and Fourteenth Amendments, Roberts v. State of Louisiana,U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Complying with this decision, this Court has concluded:

“ . . . that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense, La.R.S. 14:29 et seq., which we may presume to constitutional in the wake of Roberts v. Louisiana, supra. This penalty is imprisonment at hard labor for life without eligibility for 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. 111, § 1.”

State v. Jenkins, La., 340 So.2d 157 (1976); State v. Davenport, La., 340 So.2d 251 (1976). See also State v. Sledge, La., 340 So.2d 205 (1976); State v. Morris, La., 340 So.2d 195 (1976); State v. Lee, La., 340 So.2d 180 (1976); State v. Craig, La., 340 So.2d 191 (1976).

Since the United States Supreme Court struck down our provisions relative to capital punishment, the defendant must be resentenced. Roberts v. State of Louisiana, supra. The appropriate sentence to be imposed on a defendant properly convicted of first degree murder is the most severe penalty set forth for criminal homicide at the time of the offense. Therefore, the defendant must be resentenced to imprisonment at hard labor for life without the benefit of parole, probation, or suspension of sentence for a period of twenty years.

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

DIXON, J., dissents with reasons.

CALOGERO, J., concurs.

DIXON, Justice

(dissenting).

Because it appears that the conviction of the defendant was obtained, in part, by the use of inadmissible hearsay evidence, I respectfully dissent. On some assignments of error, I agree in the conclusion, but disagree in the treatment in the majority opinion and therefore concur in the disposition of Assignments Nos. 6, 7 and 8.

Assignment of Error No. 6

This assignment involved the introduction of S-10, a photocopy of the defendant’s bill at a Holiday Inn, and S-ll, the bill, reservation card and credit card invoice relative to the stay of the defendant at a Quality Inn. Although these exhibits were not initially introduced into evidence, Detective Dillman did testify that through the use of these records he was able to determine whether Mr. Giesick was accompanied by anyone into New Orleans. However, when the State did eventually offer these documents into evidence, defense counsel said that he had no objection to their introduction. It appears that the defendant did waive any objection he had.

Assignment of Error No. 7

State’s Exhibits S-4, S-5 and S-47 were records and receipts and documents regarding a rented car from Avis. Initially, when they were being discussed by Detective Dillman, the State sought to introduce them into evidence. Defense counsel objected on the grounds that the Avis man himself should testify to lay the foundation for the documents. The trial court sustained the objection and the documents were not introduced at this time. Subsequently the Avis man did testify and then the State again sought introduction of the documents into evidence. Defense counsel at this time indicated that he had no objection to their introduction. Consequently, the defendant waived any objection he may have had.

Assignment of Error No. 8

In this assignment the defendant objected to the testimony of Detective Dillman about the 1974 Monte Carlo (allegedly used in the crime) which had been traced through the business records discussed in Assignment No. 7 above. Certain photographs of the undercarriage of the car were given to the witness for identification. Numerous objections were made to questions asked of Dillman and a number were sustained. Finally, he testified that these were the same pictures that had been given to him by one Officer Palm who apparently had conducted the initial investigation of the car. These photographs were not introduced, as far as I can determine, and no error was committed.

Assignment of Error No. 20

Assignment No. 20 has to do with the “business records” exception to the hearsay rule. The defendant objected to the introduction of “telephone slips” from the Quality Inn and Holiday Inn, showing calls made by the defendant on certain dates in question. A police officer testified that he had retrieved the slips from the motels. No employee of either of the motels was put on the stand to establish any sort of foundation for the introduction of these records. When the State sought to introduce these documents into evidence, defense counsel objected. The trial judge overruled the objection and allowed the introduction of the documents. Here it appears that the defendant’s objection does have merit. The “business record” exception to the hearsay rule is embodied in R.S. 15:460:

“Any document, other than an authentic act, may be proved by any one who saw it written, or by a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.”

No such proof as required by this article was offered. The case of State v. Graves, 259 La. 526, 250 So.2d 727 (1971), recognized such an exception. The business records were held to be admissible. However, in that case, one of the clerks at the hardware store where the gun was bought testified at trial that all sales of guns were recorded in a “firearms record,” and that a second clerk had made that particular entry. The testifying clerk, however, identified the handwriting of the second clerk. Hence a proper foundation had been laid. This is not the case here.

In State v. Launey, 335 So.2d 435 (La.1976), the “business records” doctrine was apparently expanded without mentioning R.S. 15:460. The following language was used:

“Business records are admissible in evidence if relevant and material without the necessity of identifying, locating or producing as witnesses the individuals who made the entries in the regular course of business. While some question may surround the failure to establish the unavailability of the Mamou Hardware representative who wrote the sales receipt, no such doubt exists with respect to the person who prepared the owner’s registration card for Evinrude in Wisconsin. Considering the distance and expense involved in requiring that person to appear at the trial, it can be considered that he was, for all practical purposes, unavailable. Because the Mamou Hardware sales receipt contained the same information it was merely cumulative and the failure to establish the unavailability of the writer was harmless.” 335 So.2d 435, 437.

The opinion in the Launey case formulates the broad rule:

“ 'A permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent if the record is the first collected and recorded memorial.’ Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449, 451 (1961), quoted in a footnote to State v. Hodgeson, 305 So.2d 421 (La.1974).” 335 So.2d 435, 437.

However, in both the Law Review article cited and the case of State v. Hodgeson, 305 So.2d 421 (La.1974), this rule was cited as the common law rule in this area.

In State v. Hodgeson, supra, error was alleged in the introduction of copies of the defendant’s telephone bill. However, the comptroller-office manager of the particular branch of the telephone company testified as to how the bills were compiled, that he supervised the compilation by workers in his office, and how the information was fed into the computer. This clearly distinguishes Hodgeson from Launey and the instant case. The following language was used in the Hodgeson decision:

“Defendant contends that the evidence was inadmissible because it was hearsay and violated the best evidence rule. R.S. 15:434 and R.S. 15:436. Its admission confronts this court with the issue of the admissibility of computer print-out sheets, the telephone statements in this case, under the recognized exception to the hearsay rule for business records prepared in the ordinary course of business. State v. Lewis, 288 So.2d 348 (La.1974); State v. Graves, 259 La. 526, 250 So.2d 727 (1971). See, Comment, ‘Business Records in Louisiana as an Exception to the Hearsay Rule,’ 21 La.L.Rev. 449 (1961); Green, ‘The Model and Uniform Statutes Relating to Business Entries as Evidence,’ 31 Tul.L.Rev. 49 (1956); McCormick, on Evidence, §§ 304-314 (2d Ed. 1972); 5 Wigmore, § 1517 et seq. (3d Ed. 1940); Anno: ‘Business Records as Evidence,’ 21 A.L.R.2d 773 (1952).”
“The Nebraska result was followed in King v. State ex rel., Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), where the Mississippi Supreme Court adopted the following rules for the admission of computer records and printouts:
“ ‘. . .we hold that print-out sheets of business records stored on electronic computing equipment are admissible -in evidence if relevant and material, without the necessity of identifying, locating, and producing as witnesses the individuals who made the entries in the regular course of business if it is shown (1) that the electronic computing equipment is recognized as standard equipment, (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.’ (222 So.2d 398).
“In adopting these rules as our own, we also note with approval Judge Ely’s concurrence in United States v. De Georgia, 420 F.2d 889 (9th Cir. 1969), in which he stated:
“ ‘. . . If a machine is to testify against an accused, the courts must, at the very least, be satisfied with all reasonable certainty that both the machine and those who supply its information have performed their functions with utmost accuracy. Therefore, it is essential that the trial court be convinced of the trustworthiness of the particular records before admitting them into evidence. And it should be convinced by proof presented by the party seeking to introduce the evidence rather than receiving the evidence upon the basis of an inadequate foundation and placing the burden upon the objector to demonstrate its weakness.’ (420 F.2d 895-896).” 305 So.2d 421, 427, 428. (Emphasis added).

In the case before us the telephone receipts picked up from the two motels did not appear to be computer print-outs. At least the same requisites should be met to establish the reliability of the hearsay evidence. The trial judge erred in not requiring proof of trustworthiness of the documents.

State v. Graves, supra, recognized the business records exception in Louisiana, although in that case a deputy clerk of the hardware store identified the practices used in the store for making the records and positively identified the handwriting of the other clerk who had made the particular entry sought to be introduced. Even with these safeguards, Professor Pugh questioned the propriety of recognizing this exception to the hearsay rule in criminal eases with the following language:

“It is a fundamental principle of Anglo-Saxon law that a defendant should not be sent to prison on unsworn testimony, and that he should have the right to full cross-examination of all persons who give evidence against him. To the extent an out-of-court statement is admissible on behalf of the state in a criminal case as an exception to the hearsay rule, this principle is abridged. Unquestionably, certain exceptions to the hearsay rule are clearly desirable. Although some business records should be admissible in criminal cases under narrow, restricted, well-defined circumstances, the writer seriously doubts whether in criminal cases Louisiana should embrace a broad regular course of business exception. To do so might well violate defendant’s constitutional right of confrontation.” Pugh, Work of the Louisiana Appellate Courts, for the 1971-72 Term: Evidence, 33 La.L. Rev. 169, 319 (1972-73).

At 21 Loyola L.Rev. 450, 468 (Tomeny, Best Evidence and Authentication of Documents (1975)), the author used the following language to describe the exception as employed in Louisiana:

“The rationale behind the common-law exception runs throughout the Louisiana jurisprudence. Safeguards are provided by the requirement that the record must have been made contemporaneously with the transaction, in the regular course of business, on the basis of the entrant’s personal knowledge. Mercantile inconvenience has also been recognized as a basis for excusing the entrant from actually appearing in court. Instead, the custodian of the records has been recognized as the proper party to authenticate them.”

Therefore, the fundamental consideration for the hearsay rule is the same as that underlying the business records exception: to assure the accused the right to confront and cross-examine the witnesses against him. United States Constitution, Amendment VI; Louisiana Constitution of 1974, Art. I, § 16. The business records doctrine has been established as a practical convenience for the administration of justice. However, practical considerations must not be permitted to dilute fundamental rights.

The proper procedure here would have been for the trial judge to sustain the defendant’s objection to the introduction of the “telephone slips” and then for the State to have produced the clerks who actually made those notations or the managers of the motels who could have testified as to the procedures used and could have verified the handwriting on the notations. In fact, in this case, when the trial court sustained the objections of defense counsel to the introduction of the Avis documents for want of a proper foundation, the State did produce the Avis employee involved who testified about the documents after which defense counsel did not object to the introduction of those documents. Whatever hardship is imposed upon the State in having to follow standard and accepted eviden-tiary procedures is far outweighed by the necessity of protecting the rights of the accused. Considering the fact that the State was using these telephone slips to show a plan between the defendant and Mr. Giesick regarding the murder, a proper foundation should have been required for their introduction into evidence.

      . The author of this opinion dissented from the sentence reduction in these judgments. See his dissent in State v. Davenport, La., 340 So.2d 251 (1976).


source: Caselaw Access Project

author: CALOGERO, Justice. SUMMERS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Rickey ALEXANDER.
    No. 58164.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Harold L. Savoie, Duson Bar, Inc., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Defendant Rickey Alexander was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. On November 26, 1975, a jury found defendant guilty as charged. Subsequently he was sentenced to death. Relying on seven assignments of error, defendant now appeals his conviction and sentence.

The incident from which this charge arose occurred on March 6, 1975, between 8:30 and 9:00 a. m. On the morning in question after having seen her children off to school and her husband off to work, the alleged victim went back to bed and was awakened by the doorbell. She got up, put on a robe and answered the door. A man standing at the door asked if her husband was home and when she responded in the negative, he asked her if she knew a George Patin. The woman stated that there was no one in the neighborhood by that name and proceeded to close the door. The man, however, put his hand on the door and pushed it open. The woman then began to scream and tried to get out the door, but he got her by the neck with both hands. Although she apparently' kept fighting and trying to get away, he continued to grasp her by the neck so that she could hardly breathe and struck her in the face several times. While she kept fighting and trying to get away, he took her to the floor of the kitchen and had sexual intercourse with her. He then left and she saw him drive away in a 1970 gold car and picked up three of the numbers of the license plate. She called her husband, the police subsequently arrived, and she was taken to the coroner’s office for examination at about 10:30 a. m. The coroner testified that she was bruised, that her jaw was swollen and that the results of the genital examination were positive for presence of spermatozoa. An investigation by the police led to defendant’s arrest the following day. A tape recording of a confession made by defendant was played to the jury, after having been found admissible. Defendant took the stand, however, and testified that he only made the statement because he was promised to be out by Monday if he did so. He stated that he had been having an affair with the victim, that on the morning in question he had gone to her house to call it off, that she had cursed at him and slapped him in the face, and that because of this he did hit her and put his hands around her neck.

ASSIGNMENTS OF ERROR NOS. 1, 4, and" 6.

By assignment of error number one, defendant argues that the trial court should have granted a new trial or dismissed the charge against defendant on the grounds that the verdict was contrary to the law and the evidence. By assignment of error number four, defendant contends that assuming there was a rape there was a total lack of evidence of the aggravated nature of the rape. By assignment of error number six, defendant argues that the medical evidence was inadequate to show a “connection” between the alleged victim and defendant.

These assignments of error are consolidated for argument as they all relate to a purported insufficiency of evidence introduced at trial. At the outset it should be noted that assignment of error number one is not argued in brief but is being discussed because defendant was convicted of a capital offense. That assignment is apparently based on the denial of a motion for a new trial, the grounds urged being that the verdict was contrary to the law and the evidence. The motion for a new trial, however, does not raise this issue but rather sets forth grounds which are the subject of assignments of error numbers five and seven, discussed infra. With these factors in mind, the specific assignments will be discussed more fully.

In criminal matters, the scope of this Court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, Sec. 5(C) (1974). A contention that a verdict was based on insufficient evidence is essentially a question of fact. Only where defendant has moved for a directed verdict during trial (permissible in jury trials prior to the recent amendment of article 778 C.Cr.P., Acts 1975, No. 527, § 1) or for a new trial based on the argument 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. See State v. Jack, 332 So.2d 464 (La.1976); State v. Jones, 303 So.2d 486 (La.1974); State v. Douglas, 278 So.2d 485 (La.1973). No such motions were made by defense counsel in the instant case. However, because of the capital nature of the offense, we will discuss the issue of whether there was at least some evidence of the essential elements of the crime.

Defendant was charged with the offense of aggravated rape. Rape is defined in La.R.S. 14:41 as follows:

“Rape is the act of sexual intercourse with a female person not the wife of, or judicially separated from bed and board from, the offender, committed without her lawful consent. Emission is not necessary; and any sexual penetration, however slight, is sufficient to complete the crime.”

Aggravated rape is defined at La.R.S. 14:42 as follows:

“Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
(1) Where the female resists the act to the utmost, but her resistance is overcome by force.
(2) Where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) Where she is under the age of twelve years. Lack of knowledge of the female’s age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by death.”

In the instant case there was at least some evidence that defendant had sexual intercourse with the victim, who was not his wife, without her consent. With respect to the aggravated nature of the rape, there was at least some evidence that the victim resisted the act to the utmost but that her resistance was overcome by force. The victim testified that throughout the episode she continued to fight defendant, pushing on him and trying to get away. In apparent reaction to this resistance, defendant had to grasp her by the neck leaving bruise marks. He also struck her in the face at least once, more likely several times, leaving her jaw swollen.

In specific response to defendant’s arguments on appeal, the fact that no weapon was introduced and that no clothing was exhibited to the jury is not controlling. The absence of a weapon does not mean that a victim’s utmost resistance was not overcome by force, and there was apparently no probative value to the clothes the victim was wearing under the facts of this case. She did not in fact testify that any clothing was torn or soiled during the incident. With respect to defendant’s argument that the medical evidence did not indicate any physical contact between the alleged victim and defendant there was testimony by the coroner that approximately one hour and a half after the alleged offense, a genital examination of the victim showed the presence of spermatozoa. In addition, the coroner testified that there is no test for determining that particular semen comes from a particular male, but only whether the spermatozoa is present or not. While the physician did state that there are some sophisticated tests for determining blood type from semen, no facilities for carrying out the test were available in Lafayette. The failure to carry out this test even if it was available would only go to sufficiency of the evidence. Absence thereof would not establish a total lack of evidence.

It is submitted that these assignments of error lack merit.

ASSIGNMENTS OP ERROR NOS. 2 AND 3.

By assignment of error number two, defendant argues that the recording of “some” statements made by defendant should not have been admitted into evidence because they were incomplete. By assignment of error number three, defendant argues that the confession itself was improperly admitted in that prior to giving the statement defendant did not affirmatively and positively indicate that he understood his rights.

Defendant was arrested on March 7,1975, the day following the alleged rape, in Breaux Bridge, Louisiana by an officer with the Breaux Bridge City Police. Almost immediately thereafter he was taken into custody by Detective Guy Barnett and Roland Boutte of the Lafayette Police Department and placed in their police unit to be transported back to Lafayette. Once in the police car, the officers gave defendant his rights orally. The rights were again given defendant when they arrived at their office. On this latter occasion he signed a waiver of rights form and gave a statement, in question and answer form, confessing to the rape. The giving of the rights in the police unit and some questioning of defendant during the ride back to Lafayette were tape recorded, as were the regiv-ing of the rights and the confession taken at the office.

Defendant contends that he did not adequately acknowledge his understanding of his rights prior to giving the statement. The tape recording taken during the ride from Breaux Bridge indicates that defendant was adequately informed of his rights. When told of his right to counsel, he indicated he did not understand. Following a re-explanation, he stated, “Oh, I understand.” The tape recorded at the office contains another reading of defendant’s Miranda rights and a response by him that he understood. One of the officers then read defendant a waiver of rights form and asked him “You wish to waive your rights which I just read to you, and give a statement now? Okay, would you sign this form right here.” While a verbal affirmative response by defendant does not appear on the tape, both detectives testified that defendant nodded affirmatively. In addition, defendant did sign the form.

Under the test set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the state has a heavy burden to prove that a waiver of rights did indeed take place. See also La.R.S. 15:451. Whether or not an accused understood his rights and intelligently waived them must be determined on the facts of each case. See, e. g. Narro v. United States, 370 F.2d 329 (5th Cir.), cert. denied 387 U.S. 946, 87 S.Ct. 2081, 18 L.Ed.2d 1334 (1967); State v. McNeal, La., 337 So.2d 178 (decided on rehearing September 13, 1976). Examining the circumstances of the waiver presented above, including the fact that defendant was informed of his rights twice and signed a waiver form, it would appear that the trial court correctly ruled that the waiver was valid. Under these facts, the attested to nodding of defendant’s head, rather than a verbal response, on one occasion, hardly can be said to invalidate defendant’s apparent comprehension and attendant free and voluntary confession.

With respect to recording of the statements, defendant contends that not all of his statement was taped. The facts as testified to by the police officers were that during the ride to Lafayette, after giving defendant his rights they questioned him as to his activities the preceding day; that among other apparently irrelevant admissions defendant told them about getting his car inspected and purchasing new tires on the previous day; that since defendant was not making admissions relevant to the offense for which he was arrested they turned the recorder off and did not question him further until they reached the office, but did tell him that they had finger prints found at the scene and that he would be fingerprinted for comparison; and that defendant was basically silent after that. When defendant was interviewed at the station, he signed a waiver of rights form and did give a confession at that time. Defendant states that all of what he said in the police car was not on the recording played in the courtroom, that in addition he had told them that he was having an affair with the alleged victim and that on the previous day he had gone to visit the victim in order to break off their relations. He also stated that he was told to confess, as he did, in return for a promise to be let off in several days. In rebuttal testimony, one of the officers affirmatively denied that defendant had tried to tell them anything about an affair with the victim.

La.R.S. 15:450 states as follows:

“Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.”

While it does appear that the tape recording was turned off during the latter part of the ride from Breaux Bridge to Lafayette, the entire tape recording was played before the jury, the first portion thereof having been played only after a request by defense counsel. In addition, the officers testified as to what was said during the remainder of the ride and rebutted defendant’s statement that he had indicated he had had an affair with the victim. Under these facts, there was compliance with the requirements of R.S. 15.450.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 5.

Defendant contends that the trial court erred in denying his motion for a mistrial on the grounds that at the close of the first day of trial, the men and women jurors were permitted to sleep in separate rooms.

Article 791 C.Cr.P. provides:

“[I]n capital cases, after each juror is sworn he shall be sequestered.”

and that

“[A] jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.”

The article does not require the jury be kept continually in one single group, but rather that they be sequestered so as to be secluded from outside communication. See State v. Cuchinelli, 261 La. 789, 261 So.2d 217 (1972); State v. Groves, 311 So.2d 230 (La.1975). The record reflects in the instant case that the male and the female jurors were permitted to sleep in separate rooms in the courthouse for the night and that each room was under the supervision of a bailiff. We find that the law was substantially complied with. Accordingly the assignment is without merit.

ASSIGNMENT OF ERROR NO. 7.

By assignment of error number seven, defendant argues that reversible error occurred when during closing argument the district attorney commented to the jury on the defense counsel’s failure to make an opening statement.

The thrust of a portion of the prosecuting attorney’s argument was that while the state had given an opening statement outlining the facts it intended to prove, defendant had not done so; that defendant’s testimony concerning the affair with the victim was less believable because the commitment to such course of defense was delayed until after defendant had opportunity to assess the quality of the state’s evidence. The prosecutor thus commented several times upon failure of the defense counsel to make an opening statement.

The law, while requiring an opening statement from the state (See La.C. Cr.P. articles 766, 769) permits a defendant to waive opening statement. (See Article 765). Exercise of the legal right not to give an opening statement should not therefore be used to prejudice a defendant, it would logically seem. And Article 774 defining the scope of argument does not seem specifically to permit such comment. Furthermore, defendant’s right to remain silent without being exposed to prejudicial inferences deriving therefrom could arguably be impaired by a prosecutor’s comment on defendant’s failure to make an opening statement. However, no cases have been cited to us nor have we uncovered any which discuss this narrow legal point.

We find it unnecessary in this case to resolve the legal question in light of the procedural position in which the matter is presented.

Only once to the prosecutor’s several references did defendant object and on that occasion he moved for a mistrial (to which he might not have been entitled even if his claim is meritorious—see Article 770) and, in the alternative, that the comment be “stricken.” The judge responded, not by denying the alternative mistrial motion, but by admonishing and instructing the jury that defendant had a right under the law to make or not make an opening statement as he saw fit. Counsel’s succeeding comment (“and I chose not to do so, your Honor, and I have a right to do so”) indicates that the judge’s admonition, or instruction, to the jury, satisfied defendant’s request that the district attorney’s argument be “stricken.”

There is no merit to assignment number seven.

We note that defendant’s commission of the crime of aggravated rape, his conviction, and his sentence to death all occurred during the year 1975. The then prevalent aggravated rape statute, R.S. 14:42, has been found to suffer from the same constitutional infirmities as the United States Supreme Court, in Roberts v. Louisiana, - U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d - (1976), determined exists in our post-Furman murder statute. In accordance with our decisions in State v. Smith, 340 So.2d 247 (La.1976); State v. Watkins, 340 So.2d 235 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Morris, 340 So.2d 195 (La.1976); State v. Hunter et al., 340 So.2d 226 (La.1976); State v. Lee, 340 So.2d 180 (La.1976); State v. Craig, 340 So.2d 191 (La.1976), we must remand this case for resentencing of defendant to the most serious penalty for the next lesser included offense available at the time the crime was committed (vis., simple rape). As we noted in these cases, the legislature obviously intended to impose the most serious penalty available under the law. Although there is a range of from one to twenty years for simple rape, the most serious penalty is twenty years at hard labor.

Accordingly the conviction is affirmed and the case is remanded for resentencing.

DENNIS, J., concurs.

SUMMERS, J.,

I concur with the holding on conviction and dissent from penalty for the reasons in the dissent I filed in State v. Lee, La., 340 So.2d 180.

      . “Art. 774. Argument; scope
      The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      The argument shall not appeal to prejudice.
      The state’s rebuttal shall be confined to answering the argument of the defendant.”


author: MARCUS, Justice. DENNIS, Justice

text:
    STATE of Louisiana v. Rose Marie DAVIS.
    No. 58166.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 14, 1976.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Rose Marie Davis was indicted by the grand jury for the second degree murder of Senola Marie Hodges in violation of La.R.S. 14:30.1. After trial by jury, she was found guilty as charged and subsequently sentenced to life imprisonment at hard labor. On appeal, defendant relies on five assignments of error for reversal of her conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 6, 8, 9 AND 12

These assignments of error were argued together. They relate to testimony of certain witnesses, viz., Mrs. -Katie Reddicks (No. 6), Anderson Price (Nos. 8 and 9), and Detective Wayne Cooper (No. 12) during the course of trial concerning acts of alleged misconduct by defendant prior to and after the commission of the crime charged. It is urged that the testimony in each instance was irrelevant and was of such a nature that it created prejudice against defendant in the mind of the jury to such an extent that it prevented her from obtaining a fair trial. Therefore, she argues that the trial judge erred in refusing to grant a mistrial at the time each of these remarks was made, citing La.Code Crim.P. arts. 771 and 775.

Mrs. Katie Reddicks, mother of the victim, testified that she was in Teenie’s bar sometime before the homicide and had been seated at a table with the defendant. Three teenage girls came in to buy soft drinks. As they left, defendant followed them outside and threw bricks “and things” at these young girls. The victim followed defendant and told her to come back into the bar. Although defendant objected to this testimony as being irrelevant and prejudicial, she made no motion for a mistrial.

The testimony regarding the confrontation between the victim and defendant shortly before and at the place where the murder was committed is a relevant circumstance tending to show the commission of the offense. La.R.S. 15:435 and 441. In any event, even if irrelevant, we do not consider that the testimony was of such a prejudicial nature as to constitute reversible error. La.Code Crim.P. art. 921.

Next, defendant contends that Anderson Price was permitted to testify that he owed defendant money because she had sexual relations with him earlier in the day at his home. It is urged that this testimony was elicited in an attempt to demonstrate to the jury that defendant had previously engaged in immoral conduct.

Price testified that he had been with defendant since 6:00 a.m. on August 13, 1974 (date of crime) when she came to his apartment where they had sexual relations on two occasions. Defendant also cleaned his apartment for him. Price stated that he promised to give defendant $10.00 for having slept with him but had only paid her $5.00. They left his apartment and ultimately arrived at Teenie’s bar about 9:00 or 9:30 that night. While at the bar, defendant became angry with Price because he had given her less money than he promised. Therefore, she removed his wallet, containing money, a credit card and his driver’s lieénse, from his pocket. Price’s credit card and driver’s license were recovered from defendant’s purse when she was arrested on August 22, 1974 (some nine days after the crime). At the time of her arrest, defendant denied knowing anything about the murder in question. She told the police officers that she did not know the location of Teenie’s bar and could not have committed the murder as she was in jail at the, time. It was later discovered that she had not been arrested and jailed until approximately two and a half hours after the stabbing had occurred. Nevertheless, the state was confronted with a denial by defendant that she had been present at the bar at the time of the crime. Accordingly, it was quite relevant for the state to offer testimony relative to the circumstances surrounding the taking of Price’s wallet by defendant at the bar on the night of the stabbing and the subsequent recovery of its contents from defendant’s possession in order to corroborate Price’s testimony that defendant was present at the bar on the night of the murder and to refute defendant’s statement to the contrary. In any event, even if irrelevant, we do not consider it of such a prejudicial nature as to have made it impossible for defendant to have obtained a fair trial. In sum, the trial judge did not err in denying defendant’s motion for a mistrial. La.Code Crim.P. arts. 771 and 775.

Finally, defendant urges that the trial judge erred in allowing Detective Wayne Cooper to testify as to a prior arrest of defendant for an unrelated offense.

This arose in the following context. Detective Cooper was asked if defendant had made a statement at the time of her arrest (August 22). He replied that she had denied knowing the location of Teenie’s bar and stated that she could not have committed the murder because she was in jail at the time. The detective was then asked if he had checked her story. He replied that he had discovered that defendant was arrested for public intoxication but not until approximately two and a half hours after the stabbing had occurred. It was at this point that defendant moved for a mistrial.

First, the testimony relating to the time of defendant’s prior arrest for public intoxication was relevant to refute defendant’s statement that she could not have committed the murder because she was in jail at the time. Moreover, defendant herself called a correctional officer (Jeanne Cecilia McGlory) and established the fact that she had been arrested at 2:10 a.m. on August 14, 1974 for public intoxication. Defense counsel brought out by this witness that defendant was highly intoxicated at the time of her arrest. The apparent purpose for offering testimony of this nature was to support her defense. Defendant, an epileptic, also introduced medical testimony seeking to impress the jury with the effect of intoxication upon her condition. This was done in an effort to make it appear to the jury that she could not have had the requisite specific intent to commit a murder on the night of August 13. Defendant took the stand and admitted her arrest during the early morning hours of August 14 for being drunk. Consequently, even assuming that the testimony of Detective Cooper relative to defendant’s prior arrest for public intoxication was irrelevant, no prejudice resulted. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignments of Error Nos. 6, 8, 9 and 12 are without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that the trial judge erred in denying her motion for a mistrial after prejudicial hearsay testimony was given by Anderson Price.

Price had escorted defendant to the bar on the night of the stabbing. During the examination of this witness by the state, he was asked:

Did anything unusual take place while you were in there, sir?

To which Price responded:

Nothing unusual except for the fact that I was in there with Rose, and they said Rose had stabbed a lady.

When defendant’s motion for a mistrial was denied, the trial judge admonished the jury to disregard Price’s statement as being hearsay. Defendant claims that the prejudice resulting from the statement was not cured by the admonition.

Price’s statement was clearly hearsay testimony and was therefore inadmissible. Nor was it admissible under any of the well-recognized exceptions to the hearsay rule. The only question is whether it was of such a prejudicial nature as to have required the granting of a mistrial. We think not for the following reasons.

The answer or statement was completely unsolicited and unresponsive. Such testimony is not chargeable against the state to provide a ground for reversal of a conviction. State v. Jones, 332 So.2d 466 (La.1976); State v. Luneau, 323 So.2d 770 (La.1975); State v. Howard, 283 So.2d 197 (La.1973). Nor does such testimony mandate the granting of a mistrial. State v. Gabriel, 308 So.2d 746 (La.1975). Under La.Code Crim.P. art. 771, the applicable article here, it is within the trial judge’s discretion to grant a mistrial if he believes that an -admonition is insufficient to assure a defendant a fair trial. State v. Gabriel, supra. In the instant case, the trial judge, on his own motion, gave an admonition upon his refusal to grant a mistrial. We do not consider that the trial judge abused his discretion in refusing the mistrial, as any prejudice created by the unsolicited and unresponsive statement by the witness was cured by the admonition.

Our conclusion is fortified by other testimony in the record. The record reveals that there were only three people, viz., Augustine Johnson, barmaid, Senola Marie Hodges, victim and employee at bar, and Rose Marie Davis, defendant, in the bar at the time of the stabbing. The victim and Augustine Johnson were attempting to close the bar but were having difficulty getting defendant to leave. They even threatened to call the police. Augustine Johnson testified that she told the victim to leave, and she would finish closing the bar. Defendant got up as the victim approached the position where defendant had been sitting. At this point, Augustine Johnson heard profane language and the victim explain to defendant that she did not use such language and did not appreciate hearing it. Augustine Johnson stated that the next thing she saw was defendant walking out of the bar as the victim came over to her and stated that the “lady cut me.” The witness then stated that the victim “showed me where the lady cut her, had stabbed her.” Clearly, these statements referred to defendant, as she was the only other person present. Detective Wayne Cooper also testified, without objection, that defendant had been “identified to me by witnesses as the person who had committed a homicide.” We conclude that the hearsay statement of Price that “they said Rose had stabbed the lady” was merely cumulative and corroborative of the testimony of these two witnesses. The admission of the hearsay testimony under these circumstances does not constitute reversible error and supports our conclusion that the trial judge did not abuse his discretion in denying defendant’s motion for a mistrial. State v. Ford, 336 So.2d 817 (La.1976).

In sum, Assignment of Error No. 7 is without merit.

DECREE

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

DENNIS, Justice

(dissenting).

The state improperly elicited evidence of a prior offense by the defendant.

      . Assignments of Error Nos. 1, 2, 3, 4, 5, 10, 11, 13 and 14 were neither briefed nor argued in this court. Therefore, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So .2d 675 (La.1975).

      . While defendant made an objection, the objection is not urged in the assignments of error argued on appeal. This is probably due to the fact that such statements made by the victim to the witness, Augustine Johnson, immediately after she was stabbed are admissible as res gestae, an exception to the hearsay rule. La. R.S. 15:447 and 448; State v. Batiste, 318 So.2d 27 (La.1975).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Mark SMITH.
    No. 58170.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Remy F. Gross, II, John L. Diasselliss, III, LaPlace, Julian R. Murray, Jr., Murray, Murray, Ellis & Braden, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Parish of Jefferson, Me-tairie, for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Mark Smith, was indicted on February 10,1975 with first degree murder, a violation of La.R.S. 14:30. Defendant entered a plea of not guilty and not guilty by reason of insanity. He was subsequently tried, convicted, and sentenced to death. He now appeals, relying on five assigned errors and additional errors allegedly patent on the face of the record for reversal of his conviction and sentence.

At approximately 7:00 a. m., Sunday, January 26, 1975, Mark Smith, David Howell and Charles Haynes, who were traveling through Louisiana in a stolen car, ran a red light in LaPlace. Police stopped the vehicle, and upon discovering that the driver, Haynes, had an out-of-state driver’s license and no registration certificate for the automobile, escorted all three to the sheriff’s office. Haynes was unable to post the required $94.00 bond and was detained. Defendant and Howell were allowed to leave, but defendant assured Haynes that they would try to get the money necessary for his release. At approximately 11:00 a. m., defendant and Howell arrived at the Historian Motel, several miles from LaPlace on Airline Highway, and obtained the manager’s permission to park their car in the motel lot in order to get some sleep since they could not afford a room. As a precaution, the manager took down the automobile’s license number, and at 1:30 p. m. she noticed that the car was gone. Defendant was next seen at approximately 7:30 p. m. on the patio of Dad’s Drive-In, a restaurant located next door to Tassin’s Texaco Station. Employees of the restaurant inquired of defendant if he wanted to eat but he responded in the negative. They closed the drive-in shortly thereafter, noticing as they left that the Texaco station appeared to be open. A neighbor of Tassin who had been visiting with him at the station departed at around 8:15 p. m. as Tassin was preparing to close. At approximately 8:30 p. m. defendant and Howell returned to the Historian Motel, walking hurriedly into the office. Defendant kept his left hand in his jacket pocket which was visibly protruding; in his right hand he held a number of small bills. He asked the manager of the motel to exchange the small bills for larger ones, explaining that the money was needed to get a friend out of jail. Howell remained outside the door urging defendant to leave. When the manager’s husband and a motel quest entered the office, defendant and Howell left. Thereupon, the manager telephoned the police to report this incident and gave them the license number of the car. When defendant and Howell arrived at the sheriff’s office they were arrested for theft of the automobile. A check with the National Crime Information Center had revealed that the car was stolen. It was discovered across the street, and a search of the glove compartment produced a RoiTan cigar box resembling that in which Tassin had stored his money and a .22 caliber revolver containing live ammunition in all cylinders but one, which was empty. Later that evening, police discovered Tassin’s body lying near his desk in the darkened service station. He had been fatally shot once through the chest and was still clutching a pen or pencil in his right hand in a writing position. The coroner examined him at 11:00 p. m. and estimated that he had been dead for not more than four hours. Subsequently, a .22 caliber bullet was discovered on the floor, and a firearms identification expert testified that it had been fired from the gun recovered from defendant’s automobile. The expert further stated that the gun had a hard trigger pull.

ASSIGNMENT OF ERROR NO. 1

This assignment relates to the trial court’s denial of defendant’s motion to suppress a confession given to members of the St. John the Baptist Sheriff’s Office.

Following defendant’s arrest for car theft, sheriff’s deputies questioned him about the automobile and about a service station robbery which had occurred earlier that day in Baton Rouge. Defendant denied any involvement in that crime but confessed to having robbed and shot Tassin, and signed a written statement to that effect.

Subsequently, defendant alleged in a motion to suppress that he had not been timely informed of his Miranda rights and that the confession had been coerced. The trial judge concluded after a hearing that the evidence did not support defendant’s allegations and denied the motion. Prior to trial the district attorney informed defense counsel by written notice in accordance with La.Code of Criminal Procedure article 768, that the State intended to use defendant’s confession at trial.

Because of the seriously incriminating nature of the confession, defense counsel made a statement to the jury at the commencement of trial, admitting that defendant had shot Tassin during the course of a robbery but asserting that the gun had fired accidentally in a struggle initiated by Tassin. Defense counsel informed the jury that under these facts, to which defendant would testify; defendant could be convicted of second, but not first, degree murder. During the presentation of its case in chief, however, the State did not introduce the confession, contrary to the written notice given defendant in accordance with La. Code of Criminal Procedure article 768. Since defense counsel believed the State had not carried its burden of proving either first or second degree murder, and because he anticipated the prosecution would attempt to introduce the confession in rebuttal, the defense decided to rest its case upon the presumption of innocence and without testimony by the defendant. Although the jury was instructed that statements and arguments by counsel were not to be considered as evidence, and even though it was instructed that the defendant was not required to testify, defense counsel argues that the foregoing sequence of events worked to the great prejudice of his client. Due to the fact that all of these developments stemmed from the confession of the defendant, which he contends was unlawfully obtained and should have been suppressed, defendant argues the conviction and sentence should be reversed.

As a general rule, the propriety of denying a motion to suppress evidence becomes a moot issue if the evidence is not introduced at trial. State v. Monk, 315 So.2d 727 (La.1975); State v. Jacobs, 281 So.2d 713 (La.1973); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). Defendant contends, however, that because of the unusual sequence of events in this case, the general rule should not apply. We cannot agree. The disadvantage, if any, suffered by defendant in the trial of the case, resulted from legitimate strategy and counter-strategy employed by prosecution and defense counsel, and not from any basically unfair procedure. La.Code of Criminal Procedure article 768 requires the State to forewarn the defendant prior to its opening statement that it intends to introduce a confession in evidence, but it does not prevent it from deciding against introduction of the confession during trial. State v. George, 312 So.2d 860 (La.1975). The defendant may make an opening statement if he chooses, but none is required of him by law. La.C.CR.P. art. 765. Furthermore, defendant is entitled to make a closing argument to the jury. Id. Thus, defense counsel was not compelled to make an opening statement implicating the defendant in the killing of Mr. Tassin. Nor was the State guilty of illegal or unfair conduct in failing to introduce the confession. Defense counsel undoubtedly was aware that the trial could develop as it did, but, nevertheless, chose to approach the jury with a plea for conviction of a lesser included offense in his opening statement, rather than waiting until his closing argument. In view of the overwhelming evidence of defendant’s complicity in the robbery-murder apart from his confession, this strategy might not have been unreasonable even if the confession had been suppressed. In any event, in this appeal we are not called upon to pass judgment upon decisions of trial counsel, which may be complained of through a writ of habeas corpus alleging ineffective assistance of counsel. See, State v. Marcell, 320 So.2d 195 (La.1975). Rather, we must determine whether defendant was denied a fair trial by action of the prosecution and the trial court when combined with our rule of law that the question of whether evidence should have been suppressed prior to trial becomes a moot issue if the evidence is not introduced at trial. Under the circumstances of this case we conclude defendant was not denied due process or basic fairness by the events complained of in this assignment.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 5

Defendant complains of the trial court’s denial of his motions for a directed verdict requested at the close of the State’s evidence and for a new trial. Both motions asserted that the State had failed to prove all essential elements of the crime of first degree murder, and defendant contends that the court erred in refusing to rule that the jury had convicted on insufficient evidence.

Prior to the trial of this case in January, 1976, the statute relative to directed verdicts was amended to provide that the trial court may direct a verdict of not guilty in judge trials only. La.Code of Criminal Procedure article 778, amended by Acts 1975, No. 527, § 1 (effective September 12, 1975). However, defendant contends that the prior law permitting directed verdicts in jury trials accorded substantive rights, and argues that since it was in effect at the time of the offense it should have been given effect at the trial. There may be merit to this contention. However, we shall pretermit discussion of the constitutional issue because we find that the evidence summarized at the beginning of this opinion supported the denial of a directed verdict by the trial judge. The facts that the murder weapon was difficult to fire and that the victim was holding a pen when he died tended to refute defendant’s theory that the shooting was accidental. Furthermore, the sum total of the evidence indicated that if defendant were not directly responsible for the killing, his participation in the crime was sufficient to make him guilty as a principal. La.R.S. 14:24; State v. Willis, 322 So.2d 169 (La. 1975); State v. Broussard, 312 So.2d 325 (La.1975). Additionally, defendant’s presence near the scene of the crime shortly before it occurred, and his control of the money shortly after the robbery were facts from which the jury might have concluded that defendant himself committed the fatal act.

Defendant additionally argues that to postpone consideration of the sufficiency of the evidence until the conclusion of the trial abridges the defendant’s privilege against self-incrimination since evidence presented by the defense which cures possible deficiencies in the State’s case may be weighed in the balance. This argument was considered at length and narrowly rejected by a four member majority of this Court in State v. Smith, 332 So.2d 773 (La. 1976). The writer of the opinion in the instant case continues to disagree with the majority opinion in Smith, but recognizes that it is dispositive of this issue.

Defendant challenges the court’s denial of his motion for a new trial, alleging that the trial judge did not decide whether the evidence supported the verdict or alternatively that his conclusion in the State’s favor was erroneous. In its oral reasons for denying the motion, the trial court clearly demonstrated that it had evaluated the sufficiency of the evidence: “I must only satisfy myself that this jury had sufficient evidence to arrive at [the] conclusion that they did arrive at. This verdict is not unsupported by the evidence.” Defendant claims, however, that the court erred in finding that the evidence established that he harbored the specific intent to kill Tassin or even that he committed the robbery-murder.

Where, as here, the State’s case depends upon circumstantial evidence the rule is: “ * * * assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. We have held that the issue of whether every reasonable hypothesis of innocence had been excluded presents a question of law. State v. Pryor, 306 So.2d 675 (La.1975); State v. Williams, 310 So.2d 513 (La.1975). Because of the evidence summarized at the beginning of this opinion and discussed again above in relation to the motion for directed verdict we conclude that, if the jury assumed every fact to be proved that the evidence tended to prove, it would have been justified in concluding that every reasonable hypothesis of innocence had been excluded.

Although we are troubled by the possibility that the jury disregarded the instructions of defense counsel and the court that arguments of counsel are not to be considered as evidence and weighed defense counsel’s admissions of defendant’s complicity in the crime against him, our consideration of this matter is foreclosed by our conclusion that there was ample evidence properly before the jury to support its verdict.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendant urges his second ground for the motion for a new trial: that remarks in the State’s closing arguments were made solely to appeal to prejudice and to mislead the jury. Only one of the allegedly prejudicial remarks was objected to; the remainder went unchallenged at the time. In each case, defense counsel’s failure to timely request an admonition or move for a mistrial constituted a waiver of the alleged error. State v. Marcell, supra; State v. Knight, 323 So.2d 765 (La.1975).

La.Code of Criminal Procedure article 841 provides that an error cannot be availed of after the verdict unless it was objected to at the time of the occurrence. The articles relative to prejudicial remarks, La.Code of Criminal Procedure articles 770 and 771, require a contemporaneous motion for a mistrial or request for an admonition. These rules promote judicial economy by preventing a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been corrected at the time or should have put an immediate halt to the proceedings. See, State v. Marcell, supra.

Defendant’s sole objection was entered when the prosecutor commented: “again, there’s a reason for the emphasis on second degree murder.” Following the objection, the jury was removed from the courtroom, and the judge instructed counsel not to comment on penalties. After the jury was returned, the State resumed its argument without again touching upon this area. We find that the corrective measures taken by the court were sufficient to avoid any prejudice to defendant and that because the State was prevented from completing its statement no admonition would have been required had it been requested.

This assignment is without merit.

Defendant advances a number of additional arguments relating to errors which were not included in defendant’s assignments of error but which are said to be discoverable from an inspection of the pleadings and proceedings and hence, reviewable by this Court under La.Code of Criminal Procedure article 920.

First, he complains of the trial court’s failure to instruct the jury on the law applicable to a defense of insanity which was required by defendant’s plea of not guilty and not guilty by reason of insanity, or the definition of armed robbery, an essential element of the felony-murder with which defendant was charged.

Pursuant to a request by defense counsel, the trial court supplied him with a written copy of its proposed instructions to the jury. At trial, defense counsel expressly approved the court’s instructions, stating,

“ * * * [W]e are satisfied with the court’s charges as presented with the exception of our special requested charge Number 24 which relates to direct and circumstantial evidence and request that that charge be included in the Court’s charges together with the charges regarding the defendant not having to take the stand.”

The court complied with counsel’s request and included the additional charge in its instructions. Counsel did not at this time nor while the judge was instructing the jury call the court’s attention to the omissions complained of here. Had he done so, the court may have been as receptive as it was to the requested special charge and could have corrected the deficiency. Absent an objection however, defendant may not raise this issue on appeal, for we have consistently held that a defect in the general charge is not an error “discoverable by a mere inspection of the pleadings and proceedings.” State v. Mitchell, 319 So.2d 357 (La.1975).

Next, defendant argues that the invalidation of the death penalty under La. R.S. 14:30 by the Unitéd States Supreme Court in Roberts v. Louisiana, - U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), requires the reversal of his conviction. We have held that Roberts requires only the reversal of the sentence in capital cases. State v. Jenkins, 340 So.2d 157 (La.1976); State v. McDaniel, 340 So.2d 242 (La.1976). Jenkins further established the guidelines for resentencing defendants convicted of first degree murder:

“ * * * [W]e conclude that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense, La.R.S. 14:29 et seq., which we may presume to be constitutional in the wake of Roberts v. Louisiana, supra. This penalty is imprisonment at hard labor for life without eligibility for 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.”

Thus, although the death penalty must be vacated, defendant’s conviction under La. R.S. 14:30 is valid.

However, the invalidation of the capital sentence poses additional problems in this case. At the time of the offense, defendant, aged 16, was a juvenile and subject to the jurisdiction of the juvenile court except in certain statutorily delineated instances. At that time, La.R.S. 13:1570 provided in pertinent part:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish:
u * * *
“(5) Who violates any law or ordinance, except a child charged with having committed a capital crime or a crime defined by any law defining attempted aggravated rape after having become fifteen years of age * * *.” (emphasis supplied).

Defendant maintains that when the death penalty was declared unconstitutional, first degree murder lost its status as a capital crime, and he should have been remanded to the custody of the juvenile court. (Cf. La.C.Cr.P. art. 933(2): “ ‘Capital offense’ means an offense that may be punished by death”). The identical issue was raised after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), struck down the death penalty provision of our prior first degree murder statute, La.R.S. 14:30 (1950). State v. Whatley, 320 So.2d 123 (La.1975). Whatley held that the district court retained jurisdiction over a juvenile charged with first degree murder because “as enacted, La.R.S. 14:30 (1950) constituted a legislative classification that the crime of murder constituted a capital offense, and that conduct punishable by this 'statute remained a ‘capital’ crime for purposes of Louisiana law (even though Fur-man held that the death sentence could not actually be imposed or executed).” 320 So.2d at 125. Defendant was charged, tried and convicted for an offense which the legislature classified as “capital,” and Roberts has no bearing upon the jurisdiction of the district court in this matter.

For the foregoing reasons, defendant’s conviction is affirmed, but the death sentence imposed upon him 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.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., concur.