author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Rosell PALMER.
    No. 58630.
    Supreme Court of Louisiana.
    April 11, 1977.

      Charles B. Peatross, S. Judd Tooke, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

An April 8,1975 indictment by the Caddo Parish Grand Jury charged that Jimmy Ray Johnson, John L. Davis and Rosell Palmer murdered Thomas Williams on March 6, 1975 while engaged in the perpetration of armed robbery, contrary to Article 30 of the Criminal Code. The indictment was later dismissed as to Johnson and Davis, who appeared at Palmer’s trial as witnesses for the State. Palmer was tried, convicted of second-degree murder under a responsive verdict, La. Code Crim.Pr. arts. 809, 814, and sentenced to be imprisoned at hard labor for life without benefit of parole, probation or suspension of sentence for forty years. La.Crim.Code art. 30.1 (1976). On motion of the defendant, the sentence was thereafter amended to life imprisonment without benefit of parole, probation or suspension of sentence for twenty years, in lieu of forty years, to conform with the penalty provisions in effect at the time of the commission of the offense. La.Crim. Code art. 30.1 (1973). On this appeal eight assignments of error are argued.

Assignment 1

Prior to trial defendant filed a motion to quash the indictment on the ground that Article 30 of the Criminal Code was unconstitutional. The motion alleges that Article 30 violates the Fourteenth Amendment to the United States Constitution by denying due process of law and equal protection of the law; in denying the basic rights guaranteed under the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment; and by denying due process of law in its discriminatory application against blacks and males.

In argument the defense announces that the discussion on this assignment is a preface to Assignments 2, 3 and 4, the premise being that the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 246 (1972), striking down the death penalty, was a substantive decision reprobating the death penalty. He continues by pointing out that the decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), again struck down Louisiana’s death penalty statute, which had been amended in the interim between Furman and Roberts. Act 109 of 1973. Roberts found constitutionally infirm the procedure for imposition of the death penalty prescribed by the amended Article 30 under which defendant was prosecuted. Therefore, the Court annulled the sentence of death but allowed the conviction to stand. See State v. Jenkins, 340 So.2d 157 (La.1976) and State v. McDaniel, 340 So.2d 242 (La.1976). Also, Roberts attacked the “methodology” of Louisiana’s responsive verdict system, according to defendant’s argument.

No argument is made relating to the discriminatory application of Article 30, and no evidence was adduced to support the allegation.

With this preface, defendant proceeds to argue Assignments 2, 3 and 4.

Assignments 2, 3 and 4

The death penalty provision of Article 30 of the Criminal Code was amended by Act 109 of 1973 in an effort to conform with the decision in Furman. The amendment changed the former discretionary statute into a wholly mandatory one, requiring that the death penalty be imposed whenever the jury found the defendant guilty of the newly described crime of first-degree murder. Defendant was tried under the article as thus amended. The death penalty prescribed in this amended version of Article 30 was in turn held to be unconstitutional by the decision in Roberts, at a time subsequent to this prosecution. Roberts held that the mandatory death penalty prescribed in Article 30 was unconstitutional and the death penalty imposed in Roberts was set aside while the conviction was allowed to stand.

Defendant contends the Roberts decision also stands for the proposition that Louisiana’s “unique system of responsive verdicts,” La. Code Crim.Pro. arts. 809, 814, was declared unconstitutional by this language in the opinion:

“Second, Louisiana employs a unique system of responsive verdicts under which the jury in every first-degree murder case must be instructed on the crimes of first-degree murder, second-degree murder, and manslaughter and must be provided with the verdicts of guilty, guilty of second-degree murder, guilty of manslaughter, and not guilty. See La. Code Crim.Proc.Ann., Arts. 809, 814 (Supp.1975); State v. Cooley, 260 La. 768, 771, 257 So.2d 400, 401 (1972).” Roberts, 428 U.S. p. 332, 96 S.Ct. p. 3006.

This passage from the Roberts decision is not a holding of the Court. It is merely the Court’s reference to the second of two major differences between the Louisiana and North Carolina statutes governing first-degree murder cases, the Court pointing out that, by contrast, in North Carolina instructions on lesser included offenses must have a basis in the evidence adduced at the trial. This statement in the Roberts opinion was employed by the Court in reasoning that Louisiana’s mandatory death sentence statute violates the Eighth and Fourteenth Amendments and must be set aside. It was not the Court’s intention in so doing, as we view the opinion, to hold that Louisiana’s responsive verdict statutes are unconstitutional. These statutes were referred to only insofar as they might have an effect upon the imposition of a death penalty. Since no death penalty is involved in the case at bar, the quoted reference to responsive verdicts in Roberts does not apply here.

An attack upon the constitutionality of the responsive verdict statute was rejected by this Court in State v. James, 339 So.2d 741, in November 1976. This decision was rendered four months after Roberts. It was decided on the basis of a charge of first-degree murder under Article 30(4) of the Criminal Code where the defendant was convicted of second-degree murder. Other decisions since Roberts have recognized the viability of our responsive verdict statutes. E.g. State v. Finley, 337 So.2d 1151 (La.1976); State v. Turner, 337 So.2d 1090 (La.1976) and State v. McCoy, 337 So.2d 192 (La.1976).

If the foregoing quotation from the decision in Roberts does not have the effect of invalidating Louisiana’s responsive verdict statutes, then, defendant asserts, the following language of the Roberts decision renders that statute constitutionally infirm:

“Under the current Louisiana system, however, every jury in a first-degree murder case is instructed on the crimes of second-degree murder and manslaughter and permitted to consider those verdicts even if there is not a scintilla of evidence to support the lesser verdicts. See La. Code Crim.Proc.Ann. Arts. 809, 814 (Supp.1975). And, if a lesser verdict is returned, it is treated as an acquittal of all greater charges. See La. Code Crim.Proc.Ann. Art. 598 (Supp.1975). This responsive verdict procedure not only lacks standards to guide the jury in selecting among first-degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate.” Roberts, 428 U.S. p. 334, 96 S.Ct. p. 3007.

Our answer to this contention is again that the quoted language has reference to the effect of the responsive verdict on a death penalty, a fact situation not present in the instant case. While the effect of the responsive verdict on the imposition of the death penalty was a factor which may have induced the Roberts Court to invalidate the death penalty, the responsive verdict statutes were not declared unconstitutional.

The thrust of the Roberts decision was the Court’s condemnation of the mandatory character of the death penalty; the decision did not purport to affect responsive verdicts in non-capital eases. It is worthy of note that subsequent to the Roberts decision the legislature again amended Article 30, authorizing the death penalty in accordance with the recommendation of the jury. Act 657 of 1976 and Act 694 of 1976 (La. Code Crim.Proc. art. 905). However, apparently feeling that the responsive verdict statutes were not affected by Roberts, Articles 809 and 814 of the Code of Criminal Procedure were not amended by the Legislature.

Therefore, insofar as the contention in Assignment 2 avers that the foregoing proposition was a basis for quashing the indictment, that assignment has no merit. For the same reasons the claim in Assignments 3 and 4, that the foregoing arguments advanced by the defendant were grounds for invalidating the verdict, are also without merit.

Assignment 5

Defendant complains that the bill of particulars furnished by the District Attorney in response to his motion did not advise him of possible rewards of leniency offered to codefendants Johnson and Davis or of the existence of the fingerprints of Johnson or Davis in or around the apartment of the victim Williams where the killing took place.

No showing is made, and no part of the record is referred to, which would support a finding that rewards of leniency were offered to Johnson and Davis. The District Attorney categorically and emphatically denies that rewards of leniency were offered or given. Nothing in this record even remotely suggests that the District Attorney acted improperly in this respect.

The existence of the latent fingerprints of Johnson and Davis in the Williams apartment was not favorable or exculpatory evidence to which the defense was entitled. And the defense does not contend to that effect or otherwise inform the Court what the effect of such a nondisclosure would be upon defendant. This evidence tended to implicate Johnson and Davis, not defendant. Defendant, therefore, was not entitled to evidence which was not essential to his defense. State v. Hudson, 253 La. 992, 221 So.2d 484 (1969).

Assignments 6 and 7

For the first time in these proceedings defendant asserts in brief before this Court that the verdict of second-degree murder must be set aside because the State failed to prove either 1) specific intent to kill or inflict great bodily harm, or 2) that a death occurred during the perpetration of an armed robbery, both asserted to be essential elements of the crime charged, elements which are required to be proved to support a conviction.

These alleged errors are raised for the first time on appeal. No motion for a new trial was presented alleging these errors, nor were these contentions raised in the motion in arrest of judgment. These assignments of error are therefore not properly presented for review and will not be considered. State v. Jamerson, 341 So.2d 1118 (La.1977); cf. State v. Ackal, 290 So.2d 882 (La.1974).

Assignment 8

In defendant’s motion in arrest of judgment it is alleged that the indictment charged that defendant committed the murder “on or about the 6th day of March 1975,” whereas all evidence at the trial was to the effect that Williams was murdered on March 7, 1975. For this reason, the motion alleges, the indictment is substantially defective and the judgment should be arrested. The trial judge denied the motion, and that ruling is assigned as error.

In its amended bill of particulars the State set forth that the exact time of the offense charged was unknown, but it is believed to have occurred during the late-night hours of March 6, 1975 or the early morning hours of March 7,1975. Inasmuch as the defense concedes that the evidence showed convincingly that the offense was committed on March 7, 1975, the information supplied in the bill of particulars prevented any surprise or prejudice which may otherwise have occurred because of the incompatibility between the allegation of the indictment and the evidence. Defendant was not misled. Moreover, at no time during the course of the trial was a defense objection raised to evidence relating to the date and time of the offense. La. Code Crim.Pro. art. 468; State v. Glover, 304 So.2d 348 (La.1974). The motion in arrest of judgment was properly denied.

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

      . La.Crim.Code art. 30 (1973):
      “First degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
      (2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
      (3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
      (4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
      (5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.
      For the purposes of paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator.
      Whoever commits the crime of first degree murder shall be punished by death.”

      . La.Crim.Code art. 30.1 (1973):
      “Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.
      Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years.”


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Herschel C. ADCOCK v. SURETY RESEARCH AND INVESTMENT CORPORATION et al.
    No. 58647.
    Supreme Court of Louisiana.
    April 11, 1977.

      E. Wade Shows, J. Glenn Dupree, Adcock & Dupree, Baton Rouge, for plaintiff-applicant.
   MARCUS, Justice.

This is a suit by plaintiff, Herschel C. Adcock, an attorney-at-law and resident of East Baton Rouge Parish, Louisiana, for the sum of $54,382.14 representing the balance due on a written contract for legal services performed by him in connection with the construction of a condominium project in Las Vegas, Nevada. Made defendants are Surety Research and Investment Corporation (hereinafter referred to as SRI), a Nevada corporation with its principal place of business in Los Angeles, California; Charles E. Johnson, Don C. Gunnell, Robert Burton and James R. Halford, all residents of California; and Horace B. Womack, a resident of East Baton Rouge Parish, Louisiana. All nonresident defendants excepted to the jurisdiction of the court to render a personal judgment against them and in addition three defendants, namely Gunnell, Burton and Halford, filed an exception to the manner in which service of process was effected. The exceptions to the jurisdiction of the court were sustained by the trial court and the court of appeal affirmed. We granted certiorari to review the correctness of this ruling.

In the latter part of March, 1973, Horace B. Womack asked plaintiff, his personal attorney, to accompany him to Las Vegas, Nevada in order that he might review certain legal documents which were to be drawn up in connection with a proposed business venture between Womack and SRI involving the construction of a condominium project in the Las Vegas area. However, upon their arrival, it was discovered that the right to purchase the property which had been chosen as the site for the project had been lost. As a result, negotiations between Womack and SRI fell thro'ugh. Prior to the departure of Wom-ack and plaintiff from Las Vegas, it was agreed that an alternative site would be selected so that the venture might continue.

In a matter of days, another piece of property was located and on April 3, 1973, Charles E. Johnson, president of SRI, arrived in Baton Rouge to negotiate a contract with Womack. The details of the agreement were negotiated and finalized in a written contract prepared by plaintiff on the following day (April 4) in Baker, Louisiana. During the course of negotiations, it was necessary for Johnson to make a long-distance telephone call for authority to increase Womack’s participation in the venture with SRI from twenty-five to fifty percent. Essentially, the contract provided that a Nevada corporation would be created which would own the condominium project. In return for his furnishing credit and for exercising his influence in obtaining financing for the project, Womack was to receive fifty percent of the stock of the newly-formed corporation in addition to a fee for his services. SRI was to own the remaining fifty percent of the stock. The contract also provided that Womack would supervise the construction of the project with the authority to negotiate a construction contract, to select the general contractor, to approve all major subcontractors’ bids, and to substitute subcontractors. It was further agreed that plaintiff would be paid one percent of the total loan on the project in return for his drafting the legal documents necessary for completion of the project.

The contract was signed by Womack and Johnson on April 4, 1973 in Baker, Louisiana. Johnson signed both individually and as president of SRI pursuant to a resolution of the Board of Directors of said corporation. Also appearing as parties in the contract were Gunnell, Burton and Halford who, in addition to agreeing to guarantee all loans in connection with the project, joined with the other appearers in agreeing to the payment of plaintiff’s fee as set forth in the contract. After the contract was signed by Womack and Johnson, the document was taken by Johnson to California where it was executed the next day (April 5) by Gunnell, Burton and Halford. The instrument was then returned to Louisiana. Subsequently, as plaintiff performed services pursuant to the agreement, he had numerous communications with Johnson.

It is plaintiff’s position that the activities of the five non-resident defendants within the state of Louisiana justify an exercise of personal jurisdiction of the courts of this state over them under La.R.S. 13:3201(a). Defendants, on the other hand, assert that this single transaction is not sufficient contact with the state to satisfy “traditional notions of fair play and substantial justice” as required by International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). La.R.S. 13:3201 in pertinent part provides:

A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;

The applicable statutory provision was designed to allow the courts of this state to exercise the broadest basis of personal jurisdiction over nonresidents permissible under the fourteenth amendment. Such an interpretation of the provision is in line with the intent of the Louisiana Legislature and conforms with the national trend in favor of ever-expanding jurisdictional limits.

Specifically, the statute extends personal jurisdiction of the courts over nonresidents “transacting any business in this state” for a cause of action arising from such activity. “Transacting business” is interpreted broadly and, according to Comment (d) of the Louisiana State Law Institute appearing beneath the statute, “is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase ‘engaged in a business activity’ of R.S. 13:3471(1).”

La.R.S. 13:3201 was enacted as a response to the decision of International Shoe Company v. State of Washington, supra, which announced a very permissive standard for the exercise of personal jurisdiction over a nonresident. In order to satisfy due process requirements, a nonresident must have “certain minimum contacts . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” The due process clause demands that the contacts with the state be such as to make it reasonable to require the nonresident to defend a suit within a particular state. The test enunciated in International Shoe Company v. State of Washington, supra, was reiterated in the later decisions of McGee v. International Life Insurance Company, supra, and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The end result of this line of reasoning is that, where a given activity bears a sufficient relation with a state, jurisdiction over a nonresident may be exercised consistently with due process requirements.

Because the present case does not involve the purchase or sale of products in the state, Moore v. Central Louisiana Electric Company, Inc., 273 So.2d 284 (La.1973), Fisher v. Albany Machine & Supply Company, 261 La. 747, 260 So.2d 691 (1972), and Riverland Hardwood Company v. Craftsmen Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971), are not applicable. Instead, the facts presented in this case revolve around a contract for services to be performed in connection with an out-of-state construction project. Consequently, Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (La.1973), is controlling.

In Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, supra, this court followed the trend of ever-expanding limits of jurisdiction. A nonresident corporation was held to be subject to the jurisdiction of the Louisiana court for a cause of action growing out of a contract for services to be performed by a Louisiana corporation in Indonesia. The contacts which justified the exercise of the court’s jurisdiction were that the defendant came to Louisiana to negotiate the contract, the contract was confected here, the services rendered by the Louisiana plaintiff furthered the business of the nonresident although not performed here, and the effect of the transaction was of a continuing nature evidenced by the frequent communications between the parties. Based upon these findings, the court found adequate reasons for subjecting the defendant to the jurisdiction of the Louisiana court.

The issue of the applicability of La. R.S. 13:3201 is basically a question of fact, the resolution of which will vary according to the circumstances of each case. Because the contacts which each of the defendants has with the forum differ, the issue as to each defendant must be dealt with separately.

Applying the above standards to the defendants, SRI and Johnson, the facts of the case before us warrant the conclusion that these two defendants had sufficient contacts with the state of Louisiana to justify an exercise of jurisdiction by our courts. In fact, the situation presented here is analogous to that presented in Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, supra. Initially, contact was made in Louisiana with Womack, a Louisiana resident. Johnson, acting on behalf of defendant corporation as well as on his own behalf, came to Louisiana for the specific purpose of negotiating with Womack and formalizing the business arrangement among the parties. The contract was negotiated, drafted and executed by these parties in Louisiana. It provided for a joint venture between SRI and» Womack with each party owning fifty percent of the stock of the newly-formed corporation. Certain authority to bind SRI was delegated to Womack in that he was empowered to enter into construction contracts, to appoint a general contractor, and to deal with subcontractors. Plaintiff, a Louisiana attorney, was retained by the parties to draft the legal documents necessary for completion of the project. Although the project was to be constructed outside of the state, the arrangement embodied a continuing transaction over a period of time in the future with a substantial amount of plaintiffs legal services being rendered in Louisiana. During the period that followed the confection of the contract, there were numerous communications between plaintiff and Johnson. These communications evidence the continuous nature of the venture. Also illustrative of the nature of the relationship among the parties is the fact that there were several subsequent agreements among the parties which implemented the original contract. Basically, these pertained to the furnishing of letters of credit and to the procuring of loans for the project. The fact that the contract was signed by the remaining defendants outside of Louisiana and therefore arguably might be considered a California contract is merely a single contact to be examined relative to the jurisdictional issue. Resolution of the jurisdictional issue depends upon the degree of contact which the nonresident defendants have with the forum state.

Based upon the foregoing facts, we conclude that the defendants, SRI and Johnson, were transacting business in this state within the meaning of La.R.S. 13:3201(a). Clearly, there were sufficient contacts to satisfy “traditional notions of fair play and substantial justice” demanded by the fourteenth amendment.

As for the remaining individual defendants, namely Gunnell, Burton and Hal-ford, we reach a different result. The record does not manifest any contact by these defendants with the state of Louisiana. They were never present in the state either directly or indirectly through an agent, for the record is devoid of any evidence which would indicate that Johnson acted as an agent for them. The contract itself bears no such showing and the fact that it was taken to California for their signatures is a strong indication that Johnson had no authority to bind them in any manner. In the absence of any connection with the state, an exercise of personal jurisdiction over these three defendants would violate the due process standards set forth in International Shoe Company v. State of Washington, supra, and McGee v. International Life Insurance Company, supra. Therefore, we conclude that these defendants are not subject to the jurisdiction of the Louisiana court. This holding renders unnecessary an examination of the exception to the sufficiency of service of process raised by these defendants.

DECREE

The judgment of the court of appeal affirming the district court in sustaining the exception to the court’s jurisdiction,in per-sonam as to Johnson and Surety Research and Investment Corporation is reversed, and the case is remanded for trial on the merits. The judgment of the court of appeal affirming the district court in sustaining the exception to the court’s jurisdiction as to Gunnell, Burton and Halford is affirmed.

      . 336 So.2d 265.

      . 339 So.2d 18.

      . See Comment (a) in West’s LSA-R.S. 13:3201; McMahon, Civil Procedure, 25 La.L.Rev. 28 (1964).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Darryl J. MOORE.
    No. 58662.
    Supreme Court of Louisiana.
    April 11, 1977.

      Raleigh Newman, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Prank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Darryl J. Moore was indicted on a charge of second-degree murder, a violation of R.S. 14:30.1, for the murder of Vicki Diane Nas-sar. The defendant entered a plea of not guilty and not guilty by reason of insanity. A jury of twelve found him guilty as charged by a vote of ten to two. The defendant was sentenced to imprisonment at hard labor for life, without eligibility for parole, probation or suspension of sentence for forty years. The defendant assigns seven errors for reversal of his conviction and sentence.

Assignment of Error No. 6 was neither briefed nor argued and is thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

On Sunday, November 30, (or December 7) 1975, the defendant and Danny Walter went to Houston, Texas to see Leroy Pattin to buy some marijuana. Pattin had arranged for the defendant to buy marijuana from a “connection,” and the defendant and Walter met the “connection” and a number of other persons in a room in Houston to see the marijuana. Rather than buy the marijuana, however, the defendant exited the meeting and when the “connection” left, the defendant put a plastic gun to his head, stole two pounds of marijuana and $200 from him and then returned to Sulphur, Louisiana.

Subsequently, the defendant learned that the “connection” and two other men were looking for him and that someone was going to “take care of” him. The defendant, fearful for his life, moved from his home in Sulphur and spent time at his parents’ house in Vinton and Danny Walter’s home in Orange, Texas. A few weeks later, while back in Sulphur picking up his belongings, the defendant saw Vicki Nassar. Vicki and her husband Nicki were also involved with trafficking in marijuana and one or both of them had apparently been in the room in Houston where the defendant stole the marijuana. Vicki indicated that she and her husband were breaking up. The defendant and Vicki arranged to meet Saturday night in front of the Vinton High School. However, after discussing the situation with Danny Walter, the defendant decided not to meet Vicki. Two days later, on Monday, February 2,1976, the defendant and Danny Walter were driving around Sulphur when they again saw Vicki Nassar. She stopped her car and rolled down her window; the defendant pulled up next to her. They talked and Vicki asked where the defendant had been on Saturday night. The defendant replied that he didn’t feel like being set up by her to which she replied, “They didn’t see you there.” At this point the defendant reached down between the console and the passenger seat where he had a .22 caliber magnum pistol. He pushed Danny Walter out of the way and fired three shots at Vicki Nassar, killing her.

Assignments of Error Nos. 1 and 2

Following the State’s opening statement, defense counsel requested the trial judge to issue instanter subpoenas directed to the State or the sheriff’s department to furnish the defendant with a copy of the complaint relative to the shooting of Vicki Nassar, and all other complaints or affidavits which may have been filed against the defendant which the State or the sheriff’s office may have in their possession. The request also sought the issuance of a subpoena for the production of “rap sheets” on all of the State’s witnesses who were not police officers. The trial judge ruled that the State was not required to furnish that information and therefore denied the motion. That denial forms the basis of Assignments of Error Nos. 1 and 2.

As to the complaint regarding the shooting of Vicki Nassar, defense counsel did not indicate why he wanted the complaint at the time it was requested. There is no allegation nor showing that the defendant had inadequate notice of the crime with which he was charged, nor that he was in any way surprised. In addition, no prejudice to the defendant was alleged nor demonstrated. Therefore, the failure of the trial judge to issue the subpoena for this complaint does not constitute reversible error. C.Cr.P. 921.

The defendant pleaded not guilty and not guilty by reason of insanity. In brief the defendant alleges that access to the other complaints against the defendant was necessary in order to inform the jury of specific instances of his antisocial behavior in the past to show that he was not in full control of his faculties and did not know the difference between right and wrong at the time of the offense.

The defendant first made his requests for these complaints after trial had already begun. It thus appears that the complaints would not have been used in preparation for trial (i. e., to locate the complainants to have them testify at trial) but rather for use at trial itself. This is not a situation where the existence of the complaints is in question. Had the subpoena issued and the complaints produced, they would have been inadmissible at trial as hearsay. The defendant may have been entitled to this information if needed to prepare for trial, but the fact that the request was not made until the trial was under way demonstrates that this was not the purpose for which the documents were sought. Since the complaints themselves would have been inadmissible, no prejudice was suffered by the defendant as a result of the trial judge’s ruling.

The defendant’s final request was for “rap sheets” on all prosecution witnesses other than police officers. Presumably the information contained in these sheets would have been used by the defendant to impeach the credibility of the State’s witnesses. The Code of Criminal Procedure does not specifically authorize the issuance of “instanter subpoenas.” However, C.Cr.P. 732 provides:

“A subpoena may order a person to produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court shall vacate or modify the subpoena if it is unreasonable or oppressive.”

The Code of Criminal Procedure provides no time limit as to when such applications for subpoenas must be filed. Prudence would dictate however that when the need for documents exists and is known prior to trial that counsel file his application for the issuance of a subpoena at least prior to the commencement of trial.

In this case the motion for issuance of the subpoenas was not made until after the State completed its opening statement. In addition, the record, as designated by the defendant, does not give a list of the State’s witnesses nor any indication whether any of the witnesses in fact had criminal records. It is possible that defense counsel was able to impeach State witnesses through the use of prior convictions. Lastly, the defendant does not allege that he was prejudiced as a result of this ruling, nor is any prejudice discoverable in the record before us. Therefore, although a defendant might be entitled to those records if a proper and timely application for subpoena was filed, the action of the trial judge here did not constitute reversible error.

Assignment of Error No. 3

During the trial the State sought to introduce the defendant’s confession into evidence. Defense counsel objected on the grounds that the confession was not freely and voluntarily given and that it contained evidence of other crimes which should be excluded. The defendant neither briefed nor argued the question of the voluntariness of the confession, and it is thereby deemed abandoned. State v. Matthews, supra; State v. Edwards, supra.

The confession recounted the entire series of events that led up to Vicki Nassar’s murder, including the robbery of the marijuana and $200 from the “connection” in Houston and an assault by the defendant on one of the persons who had been present at the meeting in Houston. The defendant contends that pursuant to R.S. 15:450 and the decisions of this court in State v. Snedecor, 294 So.2d 207 (La.1974); State v. Fontenot, 292 So.2d 194 (La.1974) and State v. Haynes, 291 So.2d 771 (La.1974), the trial judge should have deleted that portion of the confession that made reference to other offenses and only permitted the introduction of that portion of the confession dealing with the murder of Vicki Nassar.

The relevant portion of the trial judge’s per curiam to this assignment reads as follows:

“In this instance, the ‘other crimes’ are related to the offense for which the defendant was being tried. The recital of the prior events was offered by the defendant to the deputies in his statement in explanation of his reason for killing the victim. A reading of the confession reveals his fear of reprisal for his having ‘ripped the guy off,’ his hiding and his suspicion of the victim intending to ‘set’ him up. The entirety of the confession sheds light on the meaning to him of her utterance immediately preceding the shooting, ‘They didn’t see you there.’ “The portions that might be considered as referring to other crimes cannot be excised without affecting the remainder. Deletion of the portion referring to the events in Houston would have rendered his account of the shooting not only senseless, but completely unexplained. Further, it would have allowed defendant to improperly capitalize on such lack of explanation for the shooting in urging his defense of insanity.”

We are in agreement with the trial judge. The defendant pleaded not guilty and not guilty by reason of insanity. The events in Houston prior to the murder demonstrate the defendant’s motive for shooting Mrs. Nassar. The chain of events leading up to this crime (including the references to the “other offenses”) are relevant to explain the crime charged. It would be impossible to delete a portion of the confession without significantly altering its meaning. Therefore, since the confession was voluntarily given and the portions objected to by the defendant were independently relevant to explain the crime charged, the trial judge did not err in permitting the introduction of the entire confession. Cf. State v. Scott, 320 So.2d 538 (La.1975); State v. Hollingsworth, 337 So.2d 461 (La.1976).

Assignment of Error No. 4

The defense called Dr. James A. Brown as a witness. Defense counsel questioned him as to his qualifications, background and training and then tendered him as an expert witness in the field of neurosurgery. The State then traversed the witness on his qualifications. The State also questioned the witness on his expertise in other fields of medicine. It is this second line of questioning by the State that the defendant contends was improper and an impermissible means by which to discredit this witness.

As the defendant points out, the witness was only tendered as an expert in the field of neurosurgery and defense counsel stipulated that he was not being offered as an expert in psychiatry or any other field. However, the witness also testified on direct examination that he had practiced and combined the fields of psychiatry, neurology and neurosurgery, had done a residency in orthopedic surgery and had subsequently done work in orthopedics.

R.S. 15:466 provides:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

Clearly the prosecutor was entitled to question the witness concerning his qualifications; since the witness had indicated that he had expertise in other areas, questions concerning those areas were not improper. The scope of examination of witnesses is within the sound discretion of the trial judge and his rulings will not be disturbed in the absence of an abuse of discretion. State v. Calloway, 324 So.2d 801 (La.1976); State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972). There was no abuse of discretion here.

This assignment lacks merit.

Assignment of Error No. 5

The State presented its case in chief and rested, after which the defense presented its evidence. The State then offered its rebuttal evidence and rested. At this point the defense requested the privilege of introducing rebuttal evidence on the issue of temporary insanity. The trial judge denied the motion and the defendant assigns that denial as error.

The normal order of trial in criminal cases is set out in C.Cr.P. 765 which provides:

“The normal order of trial shall be as follows:
“(1) The selection and swearing of the jury;
“(2) The reading of the indictment;
“(3) The reading of the defendant’s plea on arraignment;
“(4) The opening statements of the state and of the defendant;
“(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument; “(6) The argument of the state, the defendant, and the state in rebuttal;
“(7) The court’s charge;
“(8) The announcement of the verdict or mistrial in jury cases, or of the judgment in non jury cases; and
“(9) The discharge of the jury in jury cases.
“When there is more than one defendant, the court shall determine the order of trial as between them.
“A defendant may waive his opening statement.”

While there is no provision for rebuttal by the defendant, number (5) of the above quoted article authorizes the trial judge, in his discretion, to permit the introduction of additional evidence after the case has been presented by the State and the defense.

The only reason defense counsel offered in support of his motion was that since the defendant has the burden of proof in establishing the defense of insanity, he should be entitled to rebuttal after the State offers evidence to refute that defense. The defendant did not outline what evidence he sought to adduce. In addition, he has not alleged that he was prejudiced, nor is any prejudice demonstrated in the record. Under these circumstances the trial judge did not abuse his discretion in denying defendant’s motion.

Assignment of Error No. 7

After the trial judge had charged the jury and the jurors had retired to deliberate, defense counsel objected to the jury charge on the ground that the jurors could have become confused as to the deféndant’s burden of proof on his defense of insanity. Specifically, the defendant contends that the wording of the charge may have led the jurors to believe that the defendant must establish the defense of insanity by “proof beyond a reasonable doubt” rather than by a “preponderance of the evidence.” The portion of the charge that defense counsel found objectionable is as follows:

“And now, ladies and gentlemen, I charge you that if you should be convinced beyond a reasonable doubt from the evidence and the law as I have given it to you, that the accused in this case is guilty of second degree murder, it will be your duty to convict him of that offense. If, however, you should not be convinced beyond a reasonable doubt that he is guilty of second degree murder, but you should be convinced beyond such a doubt that he is guilty of manslaughter, then it will be your duty to render a verdict of guilty of manslaughter. If you should not be convinced beyond a reasonable doubt that the accused is guilty of either second degree murder or manslaughter, then it will be your duty to render a verdict of not guilty. If you are convinced beyond a reasonable doubt that the accused committed the offense, but you are further convinced that at the time of the commission of the offense the defendant was insane under the rules I have given you, then it will be your duty to render a verdict of not guilty by reason of insanity.” (Emphasis added).

However, the part of the charge dealing with the defendant’s burden of proof immediately preceded the portion attacked, so that the entire section of the charge provided:

“I charge you that the defendant is presumed to be sane. The defense of insanity, at the time of the commission of the offense is an affirmative defense and must be established by the defendant. The accused need not prove his insanity beyond a reasonable doubt. The burden of proof which is placed upon the accused is to establish such insanity by a preponderance of the evidence. The term ‘preponderance of the evidence’ means that evidence or that part of the evidence which is of greater weight, or which is more convincing, and which best accords with reason and probability. A greater number of witnesses will not necessarily constitute a preponderance of the evidence, because you may believe some of the witnesses and you may not believe others. A ‘preponderance of the evidence’ more properly may be said to be that part of the evidence, which, because of its apparent correctness, its convincing nature, its quality or weight, tips the scales. If the evidence presented tips the scales in favor of the party upon whom this burden of proof rests, in this case the defendant, then you should conclude that he has proved his defense of insanity by a preponderance of the evidence. If the evidence fails to tip the scales in his favor, however, then you should conclude that he has failed to prove his defense of insanity by a preponderance of the evidence.
“And now, ladies and gentlemen, I charge you that if you should be convinced beyond a reasonable doubt from the evidence and the law as I have given it to you, that the accused in this case is guilty of second degree murder, it will be your duty to convict him of that offense. If, however, you should not be convinced beyond a reasonable doubt that he is guilty of second degree murder, but you should be convinced beyond such a doubt that he is guilty of manslaughter, then it will be your duty to render a verdict of guilty of manslaughter. If you should not be convinced beyond a reasonable doubt that the accused is guilty of either second degree murder or manslaughter, then it will be your duty to render a verdict of not guilty. If you are convinced beyond a reasonable doubt that the accused committed the offense, but you are further convinced that at the time of the commission of the offense the defendant was insane under the rules I have given you, then it will be your duty to render a verdict of not guilty by reason of insanity.”

The charge is not incorrect and needed no clarification.

This assignment has no merit.

Accordingly, the conviction and sentence of the defendant are affirmed.

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


author: SUMMERS, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Thomas R. BUCKLEY.
    No. 58699.
    Supreme Court of Louisiana.
    April 11, 1977.
    Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a bill of information numbered 30719, filed on June 25,1975, the District Attorney of DeSoto Parish charged appellant Thomas R. Buckley with distribution of marijuana on April 25, 1976, in violation of Section 966(A) of Title 40 of the Revised Statutes. After having been found guilty by a jury on November 25,1975 appellant was sentenced on December 10, 1975 to imprisonment for ten years at hard labor, to run consecutively with the sentence imposed as a result of a prior conviction on November 6, 1975. Three errors are urged on appeal.

Assignment 4

Appellant asserts that he has twice been convicted of the same offense and has by reason thereof been subjected to double jeopardy, contrary to the United States and Louisiana Constitutions. U.S.Const., amend. V; La.Const, art. I, § 15 (1974); La.Code Crim.Pro. arts. 591-98.

The facts upon which the decision in this case is based disclose that Trooper Gary Bordelon of the Louisiana State Police was working as an undercover narcotics agent assigned to the parishes of Red River and DeSoto. He obtained information from “Henry” an employee at a service station near Patrick’s Truck Stop where Bordelon worked, that appellant was one of the area’s biggest “pushers”. After arranging to see appellant, on April 24, 1975 he contacted him at his house, and, in a brief discussion, asked him to come outside. Appellant came out and brought what appeared to be two marijuana joints, lit them and passed them to Bordelon and the men with him standing near Bordelon’s car. Bordelon then inquired if appellant had any “bags” of marijuana to sell. He was told that no marijuana was available at that time, but appellant was to get a shipment the next day, April 25. They arranged for appellant to come at noon the next day to Patrick’s Truck Stop in Armistead where Bordelon was working to deliver the one bag Bordelon wanted to buy.

When appellant did not show up, Borde-lon returned to appellant’s house that evening and asked him why he hadn’t shown up. Appellant replied that he was late in getting the shipment, but when queried by Bordelon replied that he had “bags” to sell. Bordelon then left, drove down the road and returned a short time later at which time he purchased marijuana in a clear plastic bag, paying $10.

Bordelon again left appellant’s house and immediately placed the plastic bag in an evidence envelope, sealed it and put it in his brief case which he locked in the trunk of his car. He later delivered the evidence envelope to Agent Price in Shreveport.

Appellant also refers this Court to a former conviction on November 6, 1975 for distribution of marijuana, wherein he received a sentence on December 10, 1975 of five years at hard labor. He directs the Court to the record in the November 6,1975 conviction pointing out that the testimony of Trooper Bordelon on that trial disclosed that the charge in the November 6, 1975 conviction involved the same offense; that both convictions used virtually the same evidence; and there was only one transaction, one sale of marijuana.

Trooper Bordelon testified at the November 6, 1975 trial that he contacted defendant in the manner related in the November 25,1975 trial in order to make a purchase of marijuana. On the first occasion defendant stated that he did not have any marijuana for sale. They arranged to meet the next day, April 25, at 12 o’clock at Bordelon’s place of employment, Patrick’s Truck Stop. Appellant did not show up at that time, so Bordelon returned to his house that evening and then purchased one bag of marijuana in a clear plastic bag from appellant for $10. Bordelon then sealed the bag in an evidence envelope and later gave it to Agent Price in Shreveport. On the basis of the foregoing evidence appellant was convicted in the November 6 trial. The conviction and sentence were affirmed by this Court.

The basis for the two separate charges is made clear by reference to the preliminary examination held on July 31, 1975, a hearing in which three charges then pending against appellant were consolidated. These charges involved the distribution of the marijuana cigarettes on April 24, referred to in the above testimony and two charges for distribution on April 25 involving the purchase of two bags of marijuana. At that time Trooper Bordelon testified substantially as set forth herein. The important evidence which the preliminary examination makes clear is Bordelon’s testimony that on April 25 when he purchased the first bag of marijuana he said:

“I just think we left the residence and drove down the road a short distance and I got to thinking and said well, I believe I will go get another bag, so I turned around and went back.”

In this testimony Bordelon said he then went back to appellant’s house and told him he needed another bag of marijuana, which defendant sold to him for $10. The bag, he said, looked like the first one. Bordelon then went to town with the two bags of marijuana which he later delivered to Agent Price.

From all of this evidence the pertinent fact bearing upon the issue of double jeopardy is that Bordelon purchased one bag of marijuana from the defendant for $10 about 6 o’clock on the night of April 25. This purchase is the basis of the conviction of November 6, 1975. He then got in his car and drove down the road a short distance, turned around and returned to defendant’s house where he got out of his car, walked to the house and purchased a second bag of marijuana for $10. This second purchase is the basis for the conviction of November 25, 1975.

The protection against double jeopardy is embodied in the Federal and State Constitutions. U.S.Const., amend. V; La.Const. Art. I, § 15 (1974); State v. Cotton, 341 So.2d 362 (La.1976); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974). It is the guarantee against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction; and against multiple punishments for the same offense.

The principle is stated in Article 591 of the Code of Criminal Procedure:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

and, by the terms of Article 596,

“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in- the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

Louisiana applies the “same evidence” test in determining if a second trial constitutes double jeopardy. This test holds that offenses are the same if the elements required to support conviction upon one of the offenses would have been sufficient to warrant conviction upon another. That is to say, where the gravamen of the second offense is essentially included within the offense for which first tried the second prosecution is barred because of former jeopardy. State v. Cotton, 341 So.2d 362 (La.1976); State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

The “same evidence” rule is not intended to indicate that an offender, who goes on a crime spree and violates more than one criminal statute within a short time span, cannot be prosecuted for more than one offense without violating the prohibition against double jeopardy. State ex rel. Wikberg v. Henderson, supra.

Examples of valid prosecutions for multiple crimes committed within a narrow time span may be found in this Court’s decisions. E.g. State v. Cotton, 341 So.2d 362 (La.1976); State v. Pettle, 286 So.2d 625 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Ysasi, 222 La. 902, 64 So.2d 213 (1953); State v. Cannon, 185 La. 395, 169 So. 446 (1936).

In the case at bar two separate sales of marijuana were made by defendant at different times. While the transactions were markedly similar and essentially the same evidence was used in both prosecutions, they were indeed separate, both in time and with respect to the object of the sale — a separate and distinct package of marijuana. Although the time span separating these sales or offenses was narrow it was sufficient to isolate them and set them apart.

There is no merit to this Assignment.

Assignment 5

Defendant contends that the findings of the jury were manifestly erroneous and contrary to the law and evidence. Defendant was entrapped is one reason for this contention, the other being that two State witnesses were not present to corroborate the testimony of the State’s only witness, Trooper Bordelon. Thus it is asserted the presumption arises that the testimony of the absent witnesses would be unfavorable, or, in effect, that they would have contradicted Trooper Bordelon’s testimony.

The entrapment issue is not argued on appeal.

As the presumption issue is understood, the defense contention is that Section 432 of Title 15 of the Revised Statutes establishes a presumption . . that evidence under the control of a party and not produced by him was not produced because it would not have aided him.” Therefore, the State’s failure to produce two witnesses who were with Trooper Bordelon on the occasion of his visits to defendant’s house results in a presumption that these witnesses would contradict Bordelon’s testimony. When this presumption is considered in juxtaposition to Bordelon’s testimony the result is that his testimony, presumptively contradicted, was not sufficient evidence to overcome the presumption of innocence in favor of the accused and support the jury finding of guilt.

This assignment amounts to a contention that the jury’s finding of fact on the question of guilt or innocence was in error, a contention this Court cannot consider. This Court cannot review fact questions in criminal cases. Only where there is no evidence at all that a crime has been committed is a question of law presented which gives this Court jurisdiction on appeal, for in criminal cases our review is limited to questions of law only. La.Const. art. V, § 5(C) (1974).

As the narrative of fact in this opinion makes clear, there was some evidence of the crime charged, and this Court does not delve into the sufficiency of that evidence— that is a question of fact.

Assignment 6

Again the defendant contends “The evidence was legally insufficient to convict defendant.” As the treatment of Assignment 5 makes plain, sufficiency of evidence on a question of guilt or innocence is not a matter within this Court’s appellate jurisdiction.

For the reasons assigned the conviction and sentence are affirmed.

CALOGERO, J., dissents.

DENNIS, J.,

dissents. The short separation in time between the two transactions and other circumstances convince me that to treat this as an additional offense rather than a continuation of the offense for which defendant was previously convicted would constitute a denial of due process and perversion of the legislative intent.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Roma YOUNG.
    No. 58707.
    Supreme Court of Louisiana.
    April 11, 1977.

      Robert F. DeJean, Sr., Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty'. Gen., William C. Pe-gues, III, Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Roma Young, was charged by bill of information with second degree murder, for the fatal shooting of her husband, Clovees Young. La.R.S. 14.30.1. She was convicted by a twelve member jury, and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for a period of twenty years. On appeal defendant relies on five assignments of error for reversal of her conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 and 2

Defendant, in these assignments, complains that the trial judge improperly admitted into evidence over timely objection, a written confession executed by the defendant at the Beauregard Parish Sheriffs Office in DeRidder, Louisiana, some two hours after the shooting. Defense counsel had unsuccessfully opposed admission of the statement arguing that defendant had been hysterical at the time it was taken, and had therefore been unable knowingly and intelligently to exercise her constitutional rights; that the written statement was a direct product of prior inculpatory statements elicited by the police at the crime scene at a time when defendant was clearly incapable of understanding and exercising her constitutional rights; and that the interrogating officers had violated defendant’s constitutional rights by refusing to allow her to confer with counsel before taking the written statement.

Evidence adduced at trial established that the shooting occurred at the Young’s mobile home near Ragley, Louisiana, in Beauregard Parish, shortly before two o’clock on the afternoon of August 10, 1973. Deputy James McCarty, of the Beauregard Parish Sheriff’s Office, was the first law enforcement officer to reach the scene. When he arrived he found the defendant kneeling over her mortally wounded husband, in a state of obvious emotional distress. She spontaneously declared:

“Why did I do it — I love him so much— God don’t let him die.”

After securing the crime scene and tending to the wounded victim, Deputy McCarty questioned Mrs. Young about the shooting. Before doing so, however, he advised her of her constitutional rights. In response to this questioning defendant admitted that she shot her husband when he informed her that he was leaving her. The oral inculpa-tory statements elicited by Deputy McCarty at the crime scene were not presented to the jury, as the trial judge ruled them inadmissible on the theory that defendant was so emotionally upset at the time, she could not have understood her rights as they were given to her, and therefore had not knowingly and intelligently waived them.

Clovees Young was taken by ambulance to a hospital in Lake Charles, where he died as a result of his wounds. At Deputy McCarty’s request, Roma Young was taken to the Sheriff’s Office in DeRidder. After again being advised of her rights, and after signing a waiver of rights form, Mrs. Young dictated a type-written statement, admitting that she shot her husband. She read the statement after it was completed, initialed certain corrections, then signed it. This statement was taken between 4:00 and 4:15 p. m., a little more than two hours after the shooting. Defendant was thereafter placed under arrest.

The trial judge ruled that the written inculpatory statement executed by the defendant at the Sheriff’s Office in DeRidder was admissible, apparently accepting the testimony of the three law enforcement officers who had been present when it was taken that Mrs. Young appeared reasonably calm, that she indicated her desire to waive her rights after she was informed of them, and that she was neither threatened nor promised anything in exchange for her statement.

Defense counsel first contends that the record shows Mrs. Young, at the time she executed the written confession, was emotionally distraught and hysterical, and therefore unable to give a free and voluntary statement. Our examination of the record, however, reveals abundant evidence upon which the trial judge could rely, supporting his conclusion that defendant had calmed down and was not, at the time the written statement was executed, in such a state of emotional distress as to be unable to waive her constitutional rights. The trial judge’s factual determination in this respect is entitled to great weight, and will not be overturned absent clear abuse. State v. Hills, 337 So.2d 1155 (La.1976); State v. Alexander, 328 So.2d 144 (La.1976); State v. White, 321 So.2d 491 (La.1975); State v. Scott, 320 So.2d 538 (La.1975). No abuse or error has been demonstrated by defendant in this instance.

Defense counsel next argues that the written statement should have been excluded because it was a direct product of the earlier oral statements which the trial court had excluded on the ground that the defendant had been emotionally unable to understand and waive her constitutional rights.

As we said in State v. Davis, 336 So.2d 805 (La.1976):

“ * * * In securing evidence, the state may not obtain a first statement by violation of constitutional safeguards, and then claim that a second confession secured by reason of the illegal first confession is admissible because (directly as the result of the first illegal admissions) the accused now again freely admits his guilt (since he has already ‘confessed’, albeit the alleged confession is illegal and inadmissible). See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
“Nevertheless, if the second confession is truly voluntary and is not a product of the first, it is not inadmissible simply because of any technical deficiency in the Miranda warnings given before the first interrogation. The second confession may nevertheless be admissible, if (granting establishment "of the prior technical illegality) it is not obtained by exploitation of the initial illegality, but instead is shown by the state to be sufficiently an act of free will entirely purged of and independent of the primary taint. See Brown v. Illinois at 95 S.Ct. 2259 (1975).” (Emphasis supplied.) 336 So.2d at 807.

Further, we acknowledged in State v. Welch, 337 So.2d 1114 (La.1976), that

“When a defendant urges suppression of an inculpatory statement given subsequent to a prior inculpatory statement that is inadmissible because it is not free and voluntary or because the Miranda directives were not followed in conducting interrogation leading to the initial confession, the proper inquiry is whether the conditions that rendered the earlier confession inadmissible carried over to invalidate the subsequent one. Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Randall v. Estelle, 492 F.2d 118 (5th Cir. 1974) * * *.” (Emphasis supplied) 337 So.2d at 1120.

Applying the principles articulated in these cases to the particular facts presented in the present case, we conclude that defendant’s written confession was sufficiently removed in circumstance from the previous oral statements to eliminate whatever taint might have been created by the earlier statements, even assuming, without ruling upon, their inadmissibility. The oral and written statements were separated by approximately two hours, and the defendant had undergone considerable emotional change. Before the written statement was taken, defendant was once again fully informed of her constitutional rights under Louisiana Constitution Article I, § 13 (1974), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and she indicated that she understood and desired to waive them, and signed a waiver of rights form to that effect. Defendant then dictated a statement to the typist, read it, initialed minor corrections, and signed it. We are satisfied, based on our examination of the record, that the State demonstrated that defendant’s written confession was an act of her free will, completely independent of her earlier oral statement, and as such was properly admitted.

Defense counsel finally argues that the written confession should have been excluded because defendant was not afforded an opportunity to confer with counsel. Deputy McCarty testified that after being advised of her rights and prior to signing the waiver of rights form, defendant indicated to him that she had talked to an attorney in Lake Charles about marital problems she had been having, and asked him whether he thought she should contact that attorney. Deputy McCarty responded that he could not answer that question for her — that she would have to make up her own mind, “but that she had the right to call him right now and to seek counsel with him and also to have an attorney present.” Defendant gave no indication that she wished to exercise her right to confer with counsel. Instead she signed the waiver of rights form and made her statement.

We find no violation of Miranda in Deputy McCarty’s comments. He was not obliged to express his personal opinion to the defendant. What he did tell her satisfied the guidelines set down by the United States Supreme Court in Miranda v. Arizona, supra.

For the foregoing reasons, we find no reversible merit in defendant’s first and second assignments of error.

ASSIGNMENT OF ERROR NO. 3

After the State rested its case-in-chief, defendant called a number of witnesses in an effort to establish the dangerous character of the deceased, in order to support her claim of self defense. Defendant’s several attempts to elicit this testimony were frustrated when the trial judge, in each instance, sustained the State’s objection that such character evidence was inadmissible until a proper foundation was established. Defendant complains that this ruling improperly forced her to take the stand to provide a foundation for the character evidence.

La.R.S. 15:482 provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

Defendant argues that evidence of an overt act of aggression or hostility by the deceased against the accused had already been adduced by cross-examination at the time the trial judge made his rulings. Defendant apparently refers to the testimony of Deputy James McCarty which was elicited during cross-examination on the predicate to the admission of defendant’s written confession. At this time Deputy McCarty testified that he had obtained a warrant to search the Young residence some three days after the shooting because he was informed by two of defendant’s neighbors that the defendant had told them after the incident that her husband had attacked her with a kitchen knife. However, when this testimony was given the jury had been removed from the courtroom.

Deputy McCarty’s testimony, given out of the presence of the jury, was not “evidence of hostile demonstration or of overt act on the part of the person slain” within the contemplation of La.R.S. 15:482. The overt act foundation requirement must be satisfied by a proper introduction of admissible “evidence of hostile demonstration or of overt act on the part of the person slain” before the fact-finder. Professor Wigmore explains the purpose of the overt act foundation requirement:

“When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, [emphasis in original] one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action:
u $ * *
“There ought, of course, to be some other appreciable evidence of the deceased’s aggression, for the character-evidence can hardly be of value unless there is otherwise a fair possibility of doubt on the point; [emphasis supplied] moreover, otherwise the deceased’s bad character is likely to be put forward to serve improperly as a mere excuse for the killing, under the pretext of evidencing his aggression, and it is often feasible to obtain untrustworthy character-testimony for that purpose. * * * ” I Wigmore on Evidence, § 63 at pp. 467-70 (3d ed. 1940).

The effect, then, of such character evidence is a matter to be weighed by the finder of fact, and the trier is hampered in its ability to do so unless it is also presented with “appreciable evidence of the deceased’s aggression.”

Since, at the time defendant unsuccessfully attempted to elicit character evidence regarding the deceased’s violent nature, no evidence of specific overt acts of violence or hostility by him against the accused had been presented to the jury, we cannot conclude that the trial judge erred in excluding the character evidence. The foundation required by La.R.S. 15:482 had not been laid.

Subsequent to the rulings of the trial judge excluding character evidence of the deceased’s violent nature, defendant called Deputy McCarty, and in the presence of the jury elicited testimony similar to that previously given out of the presence of the jury. Defense counsel did not then recall the character witnesses whose testimony had been previously excluded. Instead he called the defendant to the stand, and she repeated her version of the incident, including her assertion that the deceased had attacked her with a knife. It was only after she testified, that defense counsel recalled the character witnesses and elicited their testimony concerning the bad character of the deceased. In view of these events, we cannot conclude that the trial judge’s earlier rulings, which we find were correct, had the effect of forcing the defendant to take the stand.

We find defendant’s third assignment of error without merit.

ASSIGNMENT OF ERROR NO. 4

Mr. Lloyd Jackson, a friend and neighbor of the accused, was called to testify in behalf of the defendant. As the State’s cross-examination of this witness was apparently being concluded, the trial judge, because of the late hour, recessed court until the following morning. When court reconvened, the State expressed a desire to cross-examine Mr. Jackson further. However, Mr. Jackson, who had neither been dismissed by the court nor released from the court’s sequestration order, was not present and available for continued cross-examination. At the State’s request a bench warrant commanding his attendance was issued.

Defendant contends the trial court erred in forcing her to interrupt the orderly presentation of her case by permitting the State to recall and continue cross-examination of Mr. Jackson, after examination of the defendant’s final witness.

This assignment is groundless. Not only did defendant fail to object to the procedure utilized by the trial judge in this extraordinary situation, the record clearly indicates that it was at defense counsel’s suggestion that the defendant’s final witness was called and examined before the State concluded its cross-examination of Mr. Jackson.

No prejudice whatsoever is alleged or demonstrated by this assignment of error, which we find utterly without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in commenting on the evidence presented in the case. The record does not show that defendant objected to the trial judge’s comments. La.C.Cr.P. art. 841; cf. State v. Refuge, 300 So.2d 489 (La.1974).

This assignment is without merit.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

      . The correctness of this ruling is not before us in this appeal, and we specifically withhold judgment on whether the oral statements were properly excluded by the trial judge.

      . The witnesses called were the accused’s physician, the accused’s daughter, and a friend and neighbor of the accused.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Charles Ray WALKER and Gary Dean Walker.
    No. 58723.
    Supreme Court of Louisiana.
    April 11, 1977.

      Steven N. Cowel, Shreveport, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The State charged Charles Ray Walker and Gary Dean Walker by separate bills of information with attempted murder of Leslie N. Furguson, a violation of LSA-R.S. 14:27. After a consolidated trial, the jury found each defendant guilty. The court sentenced Charles Ray Walker and Gary Dean Walker to serve twelve years at hard labor.

On defendants’ application, we granted an out-of-time appeal. State ex rel. Walker v. Henderson, La., 320 So.2d 903 (1975). In this out-of-time appeal, defendants raise numerous assignments of error.

The facts surrounding defendants’ arrests are:

Defendants and two other accomplices removed a glass plate from Pope’s Cleaners and Men’s Store in Bossier City during the early morning hours of December 28, 1972, and effected an illegal entry. A silent alarm sounded which caused Leslie N. Fur-guson, an employee of a night patrol service, to respond by proceeding to the scene. As Furguson drove his vehicle into the parking lot at the burglarized establishment, he observed two black males standing on the sidewalk next to the building. One of the men, later identified in court as Gary Dean Walker, fired a small caliber pistol at Furguson four times. The other man fired a large caliber pistol at him. However, Furguson could not identify his assailant as Charles Ray Walker. After firing at Fur-guson, both men fled. When the police arrived, they found an accomplice still in the building. Defendants were subsequently apprehended.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendants complain that the trial court erred in denying them a preliminary examination.

In State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), we stated that the right to a preliminary examination is designed primarily to determine whether probable cause exists to charge the accused.

Defendants alleged in their motion for a preliminary examination, that they are innocent and that there is no proof against them. Defendants have been tried and found guilty by a jury. We have consistently held that after a defendant has been tried and convicted by a jury, the question of probable cause is moot. State v. Luckett, La., 327 So.2d 365 (1976); State v. Monk, La., 315 So.2d 727 (1975); State v. Richardson, 258 La. 62, 245 So.2d 357 (1971).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendants complain of the denial of the following information requested in the motion for a bill of particulars:

“What weapon, if any, is alleged to have been used by the defendant or his co-defendants?
“Who is alleged to have used said weapon?
“Exactly how defendant is alleged to have committed the alleged crime.”

In State v. Nance, La., 315 So.2d 695 (1975), we held that a defendant does not have a right to be informed of “the type of dangerous weapon used” in a bill of particulars.

The purpose of the bill of particulars is to more fully inform the defendant of the nature and cause of the charge against him with sufficient information before trial to properly prepare his defense. LSA-C.Cr.P. Art. 484.

However, a bill of particulars may not be used to discover the details of the evidence with which the State expects to prove its case. State v. Hunter, La., 340 So.2d 226 (1976); State v. Redfud, La., 325 So.2d 595 (1976); State v. Monk, La., 315 So.2d 727 (1975); State v. Kado, La., 300 So.2d 461 (1974).

Explaining “exactly how” defendant or defendants are alleged to have committed the crime and who is alleged to have used the weapon is providing evidentiary details to which defendants are clearly not entitled.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, defendant Charles Ray Walker argues that the trial court erred in refusing police and arrest records pertaining to him during his custody in the Bossier City Police Department. He contends that police and arrest records are public records and thus he is entitled to them.

In State v. Square, 257 La. 743, 244 So.2d 200 (1971), we denied the same information, noting the well established rule limiting pretrial discovery. Defendant’s reliance upon the Public Records Act, LSA-R.S. 44:1 et seq., is misplaced. LSA-R.S. 44:3 permits any sheriff or district attorney, police officer, investigating officer, or investigating agency of the State to withhold from disclosure any evidence in their possession until after the records have been used in court or the criminal charge has been disposed of. The trial court correctly denied defendants’ request for the arrest and police records.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, defendant Charles Ray Walker contends that the trial court erred in denying his motion for the appointment of an investigator to assist in his defense.

We have held that, absent a clear showing of special circumstances, a motion to appoint an investigator is correctly denied. State v. Jackson, La., 324 So.2d 398 (1975); State v. Cummings, La., 324 So.2d 401 (1975). In the instant case, defendant made no showing warranting the appointment.

Assignment of Error No. 4 is without merit.

ASSIGNMENTS OF ERRORS NOS. 6 AND 7

In Assignment of Error No. 6, defendants complain that the trial court erred in allowing the introduction of two oral inculpatory statements of a co-perpetrator without the State’s having given the requisite “768 notice.” LSA-C.Cr.P. Art. 768. In Assignment of Error No. 7, defendants complain that the trial court erred in refusing to grant their continuance request when they learned of the introduction of the oral inculpatory statement.

Prior to trial, the State gave notice of its intention to use written, as well as oral inculpatory statements. Defendants complain that they were surprised and requested a continuance because they were led to believe by the State that only written statements, copies of which they had received, existed because of comments made by the State at a hearing on a motion to produce evidence.

The trial court ruled that because defendants were given the requisite notice prior to trial that the State intended to use the oral and inculpatory statements, the codal requirement of “Article 768 notice” was met. In addition, after listening to the tape recording of the alleged misleading statements made by the State at the hearing on the motion to produce, the court concluded that the State made it clear that oral statements did exist and that the State could not produce them because they were not reduced to writing.

We agree with the lower court’s conclusion that the defendants were informed of the existence of oral statements by the following statement:

“As far as the motion to examine statements of co-defendants, the state will state that we do have statements given by two co-defendants which have been recorded and reduced to writing and those statements we’d' be happy to furnish the defense counsel. We can not furnish him statements, verbal statements because of the fact that we have no recording or anything of the verbal statements, but we can produce to him and give him copies of the transcriptions of statements taken by the co-defendant and if he desires it, of course, he’s welcome to listen to the records themselves.” (Tr. p. 11.)

Additionally, it appears that the oral in-culpatory statements were not introduced into evidence. Defendants’ contention that the substance of the statements was used is not substantiated by the record. However, even if we assumed that the oral inculpato-ry statements were admitted into evidence, the requisite 768 notice was given and thus the court properly admitted them into evidence.

Moreover, defendants’ surprise allegation is insufficient to warrant the granting of a continuance. The granting of a continuance is within the sound discretion of the trial judge, and absent a showing of an abuse of discretion, that ruling will not be disturbed on appeal. State v. Weathers, La., 304 So.2d 662 (1974); State v. Richardson, supra.

Regardless, because defendant’s motion or request for a continuance was not in writing and there is no provision in the law for an oral motion for continuance, a ruling on an oral motion presents nothing for review. State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).

Assignments of Error Nos. 6 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 8

In Assignment of Error No. 8, defendants complain that the trial court erred in admitting a gun into evidence over an objection.

Because the gun was previously admitted into evidence without defendants’ objection, we cannot consider defendants’ later objection to the evidence on appeal. LSA-C.Cr.P. Art. 841. State v. McCray, La., 327 So.2d 408 (1975); See also State v. Varice, La., 292 So.2d 703 (1974).

Assignment of Error No. 8 is without merit.

ASSIGNMENTS OF ERROR NOS. 9, 10, 11, 12, AND 13

In Assignments of Error Nos. 9,10, and 11, defendants complain that the trial court erred in allowing the State to exceed the scope of permissible examination in questioning defendants concerning prior felony convictions. Defendants argue that their prior felony convictions were irrelevant to the voluntariness of their inculpato-ry statements and also that that issue was not within the proper scope of examination.

In Assignments of Error Nos. 12 and 13, defendants complain that the trial court erroneously allowed questioning of Gary Dean Walker and his mother concerning the guilt or innocence of defendants. Defendants argue that such evidence was not relevant to a determination of the admissibility of defendants’ oral inculpatory statements.

Each objection was made to questions asked outside the presence of the jury. Moreover, all of the evidence adduced was offered to determine the voluntariness of the inculpatory statements. The trial judge ruled that the statements were inadmissible. The trial judge did not allow any of the evidence to be heard by the jury.

We conclude that these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 15 AND 16

In Assignments of Error Nos. 15 and 16, defendant Charles Ray Walker complains that the trial court erred in allowing State’s witness Jerry Fields, an accomplice, to testify to statements made by Charles Ray Walker concerning his escape route. Defendant objected to the testimony, arguing that it was inadmissible because irrelevant and hearsay.

LSA-R.S. 15:434 provides:

“Hearsay evidence is inadmissible, except as otherwise provided in this Code.”

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. State v. Junegain, La., 324 So.2d 438 (1975); State v. Varnado, La., 310 So.2d 111 (1975); State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971); Pugh, Louisiana Evidence Law, pp. 388-389 (1974). As a general rule, hearsay is inadmissible as evidence. LSA-R.S. 15:434.

However, hearsay testimony relating to a confession or an admission is admissible under a widely recognized exception to the hearsay rule. LSA-R.S. 15:449 et seq.; State v. Brown, La., 319 So.2d 409 (1975); State v. Butler, La., 302 So.2d 585 (1974); McCormick on Evidence, §§ 144, 145 (Cleary Ed.1972).

LSA-R.S. 15:435 provides:

“The evidence must be relevant to the material issue.”

We find that the trial court properly admitted the evidence as it was an admission and thus an exception to the general hearsay prohibition and relevant.

Assignments of Error Nos. 15 and 16 are without merit.

ASSIGNMENT OF ERROR NO. 17

In Assignment of Error No. 17, defendant argues that the trial court erred in overruling his objection to the releyancy of the following question asked of Robert Hall, an accomplice of defendants:

“Q. * * * [D]id you obtain it from any particular place or any particular person?”

Applying LSA-R.S. 15:435, quoted in Assignments of Error Nos. 15 and 16, in State v. Moore, La., 278 So.2d 781 (1972), we stated:

“The impact of this bland little sentence is easily overlooked. Its English counterpart is: ‘ * * * nothing may be given in evidence which does not directly tend to the proof or disproof of the matter in issue.’ (Emphasis added). Archbold, Pleading, Evidence & Practice in Criminal Cases, 34th Ed. §§ 1015, 1016. Correctly interpreted, R.S. 15:435 means that, in a criminal case, no evidence shall be admitted that is not relevant to (tending to prove or disprove) the matters in issue.”

On the question of relevancy of evidence, much discretion is vested in the trial judge. State v. Pierre, 261 La. 42, 259 So.2d 6 (1972). A ruling of the trial judge as to relevancy should not be disturbed in the absence of a clear showing of abuse of discretion. State v. Junegain, supra; State v. Davis, 259 La. 35, 249 So.2d 193 (1971). We conclude that there was no abuse of discretion here.

Even assuming that the evidence was not relevant, the trial court’s ruling was harmless error. LSA-C.Cr.P. Art. 921.

Assignment of Error No. 17 is without merit.

ASSIGNMENTS OF ERROR NOS. 18 AND 19

In Assignments of Error Nos. 18 and 19, defendants complain of the trial court’s error in allowing State’s witness Robert Hall, an accomplice to testify to comments by Charles Ray Walker to Hall about going to the bus station.

These two assignments of error are without merit for the same reasons stated in Assignments of Error Nos. 15 and 16.

ASSIGNMENT OF ERROR NO. 20

In Assignment of Error No. 20, defendants complain that the trial court erred in allowing the State to read the law concerning aggravated burglary to the jury over their timely objection. Defendants argue that the State’s argument exceeded the scope of argument set forth in Article 774 of the Code of Criminal Procedure.

During the trial, the defense raised the issue of aggravated burglary by implying that since the two co-perpetrators were originally charged with aggravated burglary, but pled to a simple burglary charge, there was a favor given the men by the charge reduction. The response- of the State was that the crime of aggravated burglary was improper because no one was inside the business at the time of the burglary.

The trial court, therefore, properly allowed the State to present the jury with the information concerning an aggravated burglary. The State obviously was attempting to clarify evidence elicited by defense. Considering the context in which the statute was argued to the jury, it was within the proper scope of argument.

Assignment of Error No. 20 is, therefore, without merit.

ASSIGNMENT OF ERROR NO. 21

Both defendants filed motions for a new trial. In his motion, Gary Dean Walker complained of the inconsistent testimony of the State’s witnesses. Charles Ray Walker alleged that the verdict was contrary to the law and the evidence. The motions raise only a question of the sufficiency of the evidence. We have consistently held that such motions present nothing for appellate review absent a total lack of evidence to prove the crime of an essential element. State v. Perkins, La., 343 So.2d 730 (1977); State v. Cade, 244 La. 534, 153 So.2d 382 (1963); State v. Williams, La., 310 So.2d 513 (1975).

After a review of the record of this case, we cannot say that there is a total lack of evidence to support the convictions.

In their brief, defendants also argue prejudicial remarks by the District Attorney in his closing argument to the jury. The motions for a new trial made no allegation of this nature. Hence, this question is not before us.

Assignment of Error No. 21 is without merit.

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

DIXON, J., concurs, disagreeing at the treatment of assignment No. 3.

      . Assignments of error neither briefed nor argued are considered abandoned. Therefore, as defendants neither briefed nor argued Assignments of Error Nos. 5 and 14, they are considered abandoned.