author: HOBSON, Judge.

text:
    ARCHITECTONICS, INC., Appellant, v. SALEM-AMERICAN VENTURES, INC., Pequannock Shopping Plaza, Inc., and The Trustees of Guardian Mortgage Investors, Appellees.
    No. 76-1704.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1977.

      Leslie Telford of Nelson, Hesse, Cyril & Weber, Sarasota, for appellant.
    Stephen D. Busey of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appel-lees Pequannock Shopping Plaza, Inc. and Guardian Mortgage Investors.
   HOBSON, Judge.

This is an interlocutory appeal from the trial court’s order dismissing with prejudice three counts of appellant/Architectonics’ four-count complaint. Architectonics contends that its complaint could have sufficiently stated a cause of action for an equitable lien. We agree and reverse in part. Architectonics also argues that its complaint sufficiently stated causes of action on account stated and open account. We disagree and affirm in part.

The facts alleged in Architectonics’ complaint, which must be taken as true for the purpose of passing upon the sufficiency of the complaint to state a cause of action, may be summarized as follows:

In September 1973, Salem-American Ventures, Inc. (Salem) contracted with Architectonics for services in designing and constructing the Sarasota Hyatt House on land owned by Salem. After Architectonics entered into performance on the contract, Salem contracted to sell the property to Pe-quannock Shopping Plaza, Inc. (Pequan-noek). Pequannock was informed of the existence of the contract and Architectonics’ intent to file a claim of mechanic’s lien before Pequannock took title to the property. Pequannock induced Architectonics to delay in filing a claim of lien and to complete performance on the contract. In exchange, Pequannock promised to guarantee payment on the contract and to subject the property to any claim of lien later filed by Architectonics. Architectonics completed performance under the contract, the product of which was incorporated in the now substantially completed structure. Pequan-nock refused Architectonics’ request for payment of the balance due on the contract.

Guardian Mortgage Investors (Guardian) is the construction mortgage lender as the result of transactions with Salem approximately one year before Architectonics’ contract with Salem. After Architectonics’ request for payment from Pequannock, Guardian, as the real party in interest, requested and received a statement of account from Architectonics. Guardian did not give Architectonics notice of any dispute of the account and did not pay the balance.

Architectonics brought suit on a claim for approximately $50,000. The third amended complaint sought relief: from Pequannock on a contract theory; by imposition of an equitable lien on the improved property; from Guardian on the theory of “open account;” and from Guardian and Salem on the theory of account stated. A count in a prior complaint sought to foreclose a mechanic’s lien but was dismissed as unenforceable. Section 713.03, Fla.Stat. (1975). Architectonics does not here contend that dismissal of that count was improper.

Salem defaulted and has not participated in this appeal. Pequannock filed a motion to dismiss the count for an equitable lien. Guardian sought dismissal of the counts for an equitable lien, recovery on open account, and recovery on account stated. The trial court dismissed the count for an equitable lien as to both Pequannock and Guardian because Architectonics failed to state a cause of action and failed to allege inadequacy of a remedy at law. The trial court dismissed the counts on open account and account stated as to Guardian because the complaint established that there was no course of dealings between Architectonics and Guardian.

Architectonics first contends its complaint alleged facts sufficient to entitle it to an equitable lien on the improved property prior in dignity to the interests of both Pequannock and Guardian. An equitable lien is a remedial tool used to prevent an inequity of one party as against another. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). It may be used as a means of enforcing, against a piece of property, a party’s obligation which has resulted in a benefit to that .property. This obligation may arise through an agreement relating to the property which contemplates use of the property as security for the agreement or where the circumstances are such that considerations of right and justice require that the property serve as security for an obligation. See Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925). Imposition of an equitable lien upon specific property is particularly appropriate where the creditor has lost security in that property in reliance upon the false representations of one who later claims a superior interest in the property. See Lewinson v. Shaw, 56 So.2d 449 (Fla.1952) and Palmer v. Edwards, 51 So.2d 495 (Fla.1951).

Fitting snugly within these formulas is the classic case of Folsom v. Farmers’ Bank of Vero Beach, 102 Fla. 899, 136 So. 524 (1931). In Folsom a man named Harris was the mortgagee on instruments he pledged to the bank as security for his debt to the bank. Harris persuaded the bank to allow him to take the instruments, foreclose upon the mortgage which had gone into default, and buy the property. However, rather than executing new instruments making the bank the new mortgagee of the property as promised, Harris transferred the property without consideration to his daughter, Folsom. The trial court’s order overruling demurrers to the bank’s complaint for an equitable lien was affirmed. The bank, having lost the security of the pledged mortgage and notes upon Harris’ representations, was entitled to the security of an equitable lien on the property which in effect fulfilled Harris’ promise.

In the instant case also, the creditor, Architectonics, was induced to part with security in reliance upon the representations of one now claiming a prior interest in the property. By relying upon Pequan-nock’s false promises of payment and to subject its property to Architectonics’ claim, Architectonics failed to establish and perfect the security of its mechanic’s lien in the property. If Architectonics proves these allegations, it is entitled to an equitable lien prior in dignity to Pequannock’s interest. This result not only is required by considerations of right and justice, but also holds Pequannock to its promise of security. See Hall’s Miscellaneous Ironworks, Inc. v. All Southern Investment Company, Inc., 283 So.2d 372 (Fla. 1st DCA 1973).

The count for an equitable lien was also dismissed with prejudice because Architectonics failed to allege the inadequacy of a remedy at law, as where the obligor is insolvent. Although dismissal for this reason is supported by Lewinson v. Shaw, supra, under the authority of that case the dismissal must be reversed insofar as it is with prejudice. See also Marshall v. Scott, 277 So.2d 546 (Fla. 2d DCA 1973). The original obligor, Salem, has not filed any paper in the trial court and has defaulted. There is nothing in the record which shows that Architectonics’ remedies at law are necessarily adequate. Architectonics may well be able to allege inadequacy of a remedy at law. Accordingly, although dismissal was warranted, dismissal should have been with leave to amend.

Architectonics is not barred from an equitable lien by its failure to perfect its mechanic’s lien. The case of Crane Co. v. Fine, supra, has laid to rest prior inconsistencies between opinions on this point. In that case the Florida Supreme Court definitively established that the failure to perfect his statutory rights under the Mechanic’s Lien Act, Ch. 84, Florida Statutes (1975) does not foreclose a party from an equitable lien where special or peculiar equities exist. Architectonics’ loss of its mechanic’s lien in reliance upon the landowner’s representations gives rise to special or peculiar equities. Hall’s Miscellaneous Ironworks, Inc. v. All Southern Investment Company, Inc., supra. Architectonics may seek an equitable lien notwithstanding its failure to perfect its mechanic’s lien.

The trial court erred in dismissing with prejudice Architectonics’ count for an equitable lien prior to Pequannock’s interest. However, the trial court did not err in dismissing that count as it concerns Guardian. Architectonics attached to its complaint the construction loan instruments between Salem and Guardian. These attachments are considered a part of the pleadings for all purposes. Fla.R.Civ.P. 1.130(b). The complaint, through its attachments, shows that Guardian’s interest in the property arose approximately one year prior to Pequannock’s alleged representations to Architectonics. There are no allegations in the count for an equitable lien that Guardian had knowledge of, or participated in, Pequannock’s representations. Nor has Architectonics alleged that Guardian has retained any portion of the loan funds committed to the construction of the building. Cf. Crane Co. v. Fine, supra. This count fails to contain any allegations entitling Architectonics to an equitable lien prior to the interest of Guardian, and dismissal of Guardian from this count was proper. O. H. Thomason Builders’ Supplies, Inc. v. Goodwin, 152 So.2d 797 (Fla. 1st DCA 1963), cert. denied, 157 So.2d 818 (Fla.1963).

The counts seeking recovery on open account and account stated were properly dismissed as against Guardian. The “open account” claim alleges little more than that Architectonics is owed money and that, at Guardian’s request, Architectonics sent Guardian, as the real party in interest, a statement reflecting this debt. The “account stated” claim is based upon allegations that Architectonics “had business transactions” with Salem and Guardian, and that “they agreed to the resulting balances,” a statement of which was sent to Salem and Guardian without subsequent objection. The trial court dismissed these counts as against Guardian because they did not allege any ultimate facts which would show a course of dealing between Architectonics and Guardian. Architectonics’ only argument in this regard is that dismissal was improper because the counts strictly followed Official Forms numbers I.932 and 1.933.

A note at the end of each of these forms cautions the pleader that a copy of the account showing each item, the time of accrual, and amount of each entry, must be attached. The statement of account sent by Architectonics to Guardian was properly attached. This attachment became a part of the complaint for all purposes. Fla.R. Civ.P. 1.130(b). This statement establishes that any business transactions were between Salem and Architectonics and that Guardian was not a party to any transactions with Architectonics. Guardian was, at most, an interested observer to the business transactions. The rendition of an account statement does not create an obligation but only furnishes the basis upon which may be found an admission of the existence and amount of a pre-existing obligation. Where there has been no business transactions giving rise to the pre-existing obligation, a statement of account will not support an action on open account or account stated. See Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). The face of Architectonics’ complaint shows without contradiction that there was no obligation of Guardian to Architectonics which pre-exist-ed the account statement. The trial court did not err in dismissing the claims on open account and account stated.

That portion of the trial court’s order dismissing Architectonics’ count for an equitable lien is modified to grant leave to amend and as modified is affirmed. The remaining portions of that order are also affirmed.

BOARDMAN, C. J., and GRIMES, J., concur.


source: Caselaw Access Project

author:
SANDERS, Chief Justice. DENNIS, J.,
      TATE, Justice, DIXON, Justice CALOGERO, Justice

license: Public Domain

text:
    STATE of Louisiana v. A. J. DAVIES.
    No. 59441.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      James P. Bodenheimer, Bodenheimer, Jones, Klotz & Simmons, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, A. J. Davies, with attempted aggravated rape, a violation of LSA-R.S. 14:27 and 14:42. The jury returned a guilty verdict. The court sentenced him to forty-five years imprisonment at hard labor.

The defendant appeals. He relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defense complains of the court’s admitting testimony which revealed a “possible burglary or assault which occurred after the attempted aggravated rape for which [he] was tried, and for which he had been charged under a separate bill of information.” He alleges that such testimony was inadmissible as it was irrelevant and evidence of other crimes or misconduct for which the defendant was not on trial.

We adduce the following relevant facts:

The defendant, the victim, and her friends socialized at Sonny’s Night Club in the early morning hours of March 13, 1976. There, the defendant asked the victim to have sexual relations with him, but she refused.

About 3:30 a. m., when the victim and her friends left the club, the defendant ran behind them. In order to conceal themselves from the defendant, they ran into an alley. The defendant followed and entered the alley. He grabbed the victim by the neck and pulled her away. As her friends came to her aid, the defendant told them to “back off” or he “would blow [her] head off.” When he spoke, he reached into the waistband of his trousers. Believing he was reaching for a gun, everyone ran.

The defendant pinned his victim against a house, and began to choke her. He told her that he had observed her previously and that he was going to “have her” that night. Further, he advised her to cooperate since she “was going to be with [him] whether she liked it or not.”

The more she resisted, the more forceful he choked her. He choked her so strongly that she passed out for a few minutes. As she regained her senses, the police arrived and flashed a light on the defendant. Upon seeing this light, he jumped a fence and ran through a maze of alleyways.

The defendant then went to Sonny’s and next to visit a friend, Leon. About 4 a. m., he went to Jerry Ann, a former girl friend’s, house. No one let him in. Jerry Ann arose when she heard the door open. She first saw the defendant when he entered her bedroom carrying the board with which she blocked her back door. Jerry Ann testified that she had not seen him since 1973. She had not invited him, and did not know why he came.

Jerry Ann and the defendant drank coffee and spoke for a few hours in her kitchen. Charles, a friend of Jerry Ann, stated that the defendant acted abnormal and that he said he had a problem.

As it approached 7 a. m., Charles told the defendant he must leave so Jerry Ann could dress for work. The defendant reacted by trying to shove Charles and Charles’ sister, Patricia, into the kitchen. When he did so, Charles asked Patricia for a gun. Upon seeing the gun, the defendant said “Ladies, I wouldn’t advise you to do this because I have a .25.” As he spoke, he reached into his pants. Jerry Ann and Charles, fearing that he had a gun, hid themselves. Before Charles could retrieve the gun from Patricia, she shot the defendant.

He left Jerry Ann’s immediately. The defendant went to another friend, Minnie’s, house. Minnie called his mother, who then called the police.

About 7:30 a. m., the police apprehended him.

Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt. This rule applies notwithstanding that the evidence may disclose another crime. State v. Brown, La., 322 So.2d 211 (1975); State v. Graves, La., 301 So.2d 864 (1974); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). See also State v. Lane, La., 292 So.2d 711 (1974); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v. Goins, 232 La. 238, 94 So.2d 244 (1957); 29 Am.Jur.2d, Evidence, §§ 280 et seq., pp. 329 et seq. A court may admit a wide range of evidence to prove flight, concealment, and attempt to avoid apprehension. State v. Nelson, supra.

In 22A C.J.S., Criminal Law, § 625A, pp. 460 et seq., the general principles are correctly summarized as follows:

“While evidence of flight is not substantive evidence of guilt, or of premeditation or deliberation, since it is as consistent with innocence as with guilt, it is universally recognized that testimony as to flight, attempted flight, or concealment after the commission of an offense, or after one is accused of crime, is relevant evidence which may be shown as a criminating circumstance, particularly where such conduct is apparently inconsistent with the idea of innocence.
II * * *
“In proving flight and the attending circumstances, any facts tending to show them are relevant and admissible.
U * * *
“Testimony or evidence as to the conduct and actions of accused during the period of his flight is generally relevant, and criminal conduct by accused during this period may be shown where such conduct was an inseparable part of the flight, as where the criminal activity was to secure funds to finance and accomplish further flight, and to avoid apprehension for the original crime.
« * * *
“ ‘Flight,’ as evidence of guilt, consists not only in the act of leaving the jurisdiction, but it also comprehends continued concealment to avoid arrest and prosecution, and in criminal law the term is defined as the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.” [Footnotes deleted.]

The record reflects that defendant fled from the scene of the crime. His entry into the house of a third party and his resistance to leaving is evidence of his continued efforts to avoid apprehension. Thus, we hold that the evidence was admissible.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

The defense contends that the trial judge erred in denying his motion in arrest of judgment (Assignment of Error No. 2) and in sentencing him to forty-five years imprisonment (Assignment of Error No. 3).

In both assignments of error, the defendant alleges that his sentence is unlawful. He reasons as follows: the “punishment for the crime of attempt [is] based on the punishment provided for the offense attempted”; aggravated rape carried a mandatory death penalty; Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), held Louisiana’s mandatory death penalty for aggravated rape unconstitutional; therefore, as there is no valid punishment for aggravated rape, “attempted aggravated rape is not punishable under a valid statute.”

Selman, supra, held our mandatory death sentence for aggravated rape violative of the Eighth and Fourteenth Amendments. However, this invalidation has no effect upon our Legislature’s classification of aggravated rape as a capital crime for purposes of Louisiana law. In considering the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), on the classification of offenses, we stated:

“However, it was not the legislature, but the United States Supreme Court that has held the imposition and execution of the death sentence, as now applicable in our State, to be violative of the United States Constitution. No presumption arises that any other provision of Louisiana law has been affected by the United States Supreme Court, except those having to do with the imposition and execution of death sentences.” State v. Holmes, 263 La. 685, 269 So.2d 207 (1972).

At the time of the present crime, the offense of aggravated rape was classified as a capital offense. See State v. Tyler, La., 342 So.2d 574 (1977); State v. Moore, La., 340 So.2d 1351 (1976); State v. Whatley, La., 320 So.2d 123 (1975); State v. Rhymes, La., 284 So.2d 923 (1973); State v. Holmes, supra. Thus, we may fix the sentence for attempted aggravated rape by reference to the death penalty for aggravated rape.

A court may impose a sentence of fifty years or less upon one convicted of an attempt to commit a capital offense. LSA-R.S. 14:27 D(l). As the defendant’s 45-year sentence falls within the statutory limits, the sentence imposed is legal.

These assignments of error are without merit.

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

TATE, J., concurs and assigns reasons.

DIXON, J., concurs with reasons.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J.,

concurs but disagrees with the majority’s discussion relating to evidence of flight.

TATE, Justice,

concurring.

As to assignment of error No. 1, I respectfully concur. I do not believe that the extensive evidence of the entirely separate post-crime incident at the home of Jerry Ann Carter is relevant as evidence of flight.

As its “rebuttal” to the defendant’s testimony that he had gone to the Carter home after the encounter with the rape victim and had been shot there by a person unknown, the state introduced the testimony of Ms. Carter to show that a known person, Miss Patricia Brown, had shot the defendant when he said he had a gun. This was improper rebuttal. See La.R.S. 15:494: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.”

The shooting incident at the Carter home is collateral fact and is irrelevant to the crime for which the accused is on trial. If relevant, it is only tenuously so as showing that he said he had a gun, thus somewhat corroborating the victim’s supposition that he had a gun based upon his threat to “blow [her] head off.”

Although the evidence was improperly admitted as rebuttal, I am not at the present prepared to find its admission is reversible error: the incident had little probative force as evidence of guilt of the crime charged, and its prejudicial effect is somewhat balanced by its tenuous relevance as to the issue of whether the accused attempted to use force in the crime charged by claiming the possession of a gun, a claim reiterated in the Carter incident some thirty minutes later.

DIXON, Justice

(concurring).

We do not intend to leave the impression with lawyers in Louisiana that this court will accept citations from law encyclopedias as authoritative.

CALOGERO, Justice

(concurring).

I agree that assignment of error number one does not have merit. Testimony concerning defendant’s activity after the attempted aggravated rape for which he was tried was not evidence of another crime. Furthermore it was relevant. Defendant’s assertion at Jerry Ann’s house that he had a .25 caliber weapon tended to corroborate the attempt rape victim’s testimony that defendant had told her he had a gun. I am not, however, in accord with the majority’s view that relevant evidence of flight in this case includes the bizarre incident at his former girl friend’s house some three to four hours after commission of the crime with which he is charged.

      . It should be noted that the court properly admitted evidence of several previous convictions of the defendant (simple burglary, aggravated battery, carrying a concealed weapon, and aggravated assault). In addition, the defendant gave unsolicited testimony that he possessed marijuana (a violation of LSA-R.S. 40:966) and received stolen goods (a violation of LSA-R.S. 14:69).

      . LSA-R.S. 14:27 D(l) provides:
      “D. Whoever attempts to commit any crime shall be punished as follows:
      “(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;”

      . LSA-R.S. 14:42 provided in pertinent part:
      “Whoever commits the crime of aggravated rape shall be punished by death.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Robert C. COLLINS.
    No. 59255.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      Dewey E. Burchett, Jr., Thomas, Pres-tridge & Burchett, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Harvey P. Delaune, City Atty. for Bossier City, for plaintiff-ap-pellee.
   DIXON, Justice.

Defendant Robert C. Collins was charged with the crime of armed robbery, a violation of R.S. 14:64. A jury of twelve found the defendant guilty as charged. The trial judge sentenced the defendant to a term of thirty years. The defendant assigns six errors for reversal of his conviction and sentence.

Assignments of Error Nos. 2, 3, 4 and 5 were neither briefed nor argued and are thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of this crime are as follows. On December 12, 1974 William Tuwell was the attendant on duty at the Pel-State Fina Station on Airline Drive in Bossier City. At approximately 9:30 p. m. Mr. Tuwell was the only person at the station when a white male approximately thirty-five years old, six feet tall and weighing one hundred eighty-five pounds, approached the station. The man, later identified as the defendant, was dressed in a brown corduroy jacket, blue jeans, no shirt, shoulder length hair, bare feet and a Fu Man Chu moustache. The defendant approached the station on foot, told Tuwell that he had run out of gas, and he came inside the station to warm himself. Tuwell permitted the defendant to enter the office at the station and the defendant then pulled out a gun (which Tuwell later described as looking like a “Lugger”), held it approximately two feet from Tuwell’s head and demanded that the attendant turn over all of the money in the cash drawer. Tuwell complied, handing over $125.41 and the defendant left the station on foot. Tu-well then called the police and gave them the description of the perpetrator outlined above.

Police officers arrived within approximately five minutes, spoke with Tuwell, and then attempted to locate the defendant. Airline Drive, adjacent to the station, was undergoing widening and due to rain was very muddy. A police officer saw barefoot tracks in the mud leading from the station and was able to follow the tracks through the mud, across the street, through several backyards and over a white plank fence to the back of a residence located at 1442 Michael Street. (Two other officers were investigating a report that a man fitting the description of the robber had entered one of the houses next door to 1442 Michael Street. These two officers, Detective Bridges and Captain Lott, were at the house next door to 1442 Michael Street when the officer following the footprints found that they led to 1442 Michael Street). The officers knocked on the door at 1442 Michael Street and the defendant, Robert Collins, answered the door. Collins matched the physical description given by Tuwell, but he was wearing a T-shirt, shoes and pants other than blue jeans. After speaking to the owner of the house, Kitty Wendt, the officers informed the defendant that they were in search of the person who had robbed the service station and that he fit the physical description given to them. The police asked Collins if he was willing to go back to the service station with them and he agreed to go.

When the police returned to the station, Mr. Tuwell had already gone home, having been told to do so by his supervisor. Tuwell was called and within about twenty minutes (a total of less than an hour from the time of the robbery) he returned to the station and positively identified the defendant as the perpetrator of the robbery. The police then returned to 1442 Michael Street and Kitty Wendt granted the police permission to search the house. In the defendant’s bedroom the police found a pair of blue jeans on the floor behind a chair and the pant legs were wet. In a closet in the same room the police found a brown corduroy jacket. Behind a curtain on top of a window air conditioning unit in this same room the police found a .22 caliber “Rugger” pistol. After the defendant was transported to the police station the police asked him to remove his shoes. The police found dried mud between his toes and on one of his legs.

ASSIGNMENT OF ERROR NO. 1

Prior to the trial the defendant filed a motion to suppress the in-field identification of the defendant made by the victim, Mr. Tuwell. After an adversary hearing the trial judge denied the motion. The defendant objects to the denial of the motion to suppress and the trial judge’s permitting the testimony of Tuwell and the two arresting officers who testified that at the scene of the crime the victim identified the defendant as the perpetrator.

The defendant was brought back to the service station within forty-five minutes of the time that the crime was committed. When the defendant was first returned to the scene, Mr. Tuwell had already left, but he was contacted by telephone and told to return to the station. Upon arriving, Tu-well positively identified the defendant as the perpetrator of the crime. Essentially the defendant now argues that a lineup should have been conducted and that the one-on-one identification at the scene of the crime was so impermissibly suggestive as to taint the in-field identification and the subsequent in-court identification.

One-on-one “show-ups” of a suspect may be used in certain circumstances without being impermissibly suggestive. Such one-on-one identifications have been permitted in situations when the accused is apprehended within a relatively short period of time after the commission of the crime and is returned to the scene of the crime for an on-the-spot identification. See e. g., State v. Maduell, 326 So.2d 820 (La.1976); State v. Bland, 260 La. 153, 255 So.2d 723 (1971). See also, State v. Newman, 283 So.2d 756 (La.1973). The theory behind permitting such in-field identification is that prompt confrontations may promote fairness by “assuring reliability and the expeditious release of innocent suspects.” State v. Maduell, 326 So.2d at 825.

In the instant case, the defendant was apprehended within forty-five minutes of the perpetration of the crime and a very short distance from the scene of the crime. He closely fit the description of the perpetrator given by the victim. Within one hour of the commission of the crime the defendant was positively identified on the scene by the victim. The light at the station was good both at the time of the crime and at the show-up. There is no indication in the record that the identification by the victim was anything but spontaneous, nor that the policemen in any way influenced the identification. Although the victim was with the defendant for only approximately ninety seconds when he was robbed, the defendant was within two feet of the victim and the victim gave a detailed description of the defendant’s appearance. On the basis of these facts, and particularly the short period of time between the perpetration of the crime and the identification, we find that the on-the-scene identification was not so impermissibly suggestive as to taint that identification nor the subsequent in-court identification. The trial judge did not err in denying the defendant’s motion to suppress nor in permitting the victim and the police officers to testify as to the identification.

ASSIGNMENT OF ERROR NO. 6

Kitty Wendt, the defendant’s girl friend and an alibi witness for the defense, was being cross-examined by the prosecutor when the following exchange took place:

“Q How long have you and Robert Collins been living together?
“A Three months.
“Q And have you ever been over to Marshall, Texas?
“A Yes sir, I have.
“Q Arrested over there?
“A Yes sir.
“Q For what?
“A Burglary.
“MR. BURCHETT: Objection. I ask that the jury be retired.
“THE COURT: All right, Mr. Sheriff, will you retire the jury?
“(JURY RETIRED FROM THE COURTROOM)
“MR. BURCHETT: On the basis of the question, I move for a mistrial, in light of the question that was asked, it tends to show arrest and I cite as my authority, State versus Gaspard, [La.] 301 Southern Second, 344. I’d be happy to go get the book.”

Following a recess and the return of the jury, the trial judge made the following statement to the jurors:

“THE COURT: Ladies and gentlemen of the jury, immediately prior to the Court having you retired, the District Attorney had asked Mrs. Wendt a question that she had answered and the attorney for the defendant had moved for a mistrial. I’m going to deny the motion for the mistrial and I’m going to admonish you to ignore and erase from your mind the last question that was asked and the response by Mrs. Wendt to that question.
“MR. BURCHETT: I respectfully reserve a bill to the Court’s ruling with reference to mistrial.”

As the testimony reveals, defense counsel did not object to the question until after the witness had answered it. After the recess, the trial judge sustained the objection and. admonished the jurors to disregard the previous question and answer. However, the trial judge refused to order a mistrial.

The attempt by the prosecutor to impeach the credibility of this witness by questioning her as to past arrests was clearly improper. R.S. 15:495. However, reference to a prior arrest of a witness (not the defendant) is not a ground for mandatory mistrial under C.Cr.P. 770. Rather, this question and answer fall within the purview of C.Cr.P. 771, which provides:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

Here, the trial judge not only sustained the defendant’s objection but admonished the jurors to disregard the offensive question and answer. The reference here was to a prior arrest of the witness and not the defendant. Although a violation of R.S. 15:495 might clearly be grounds for reversal, here the admonition of the trial judge was sufficient to cure any undue prejudice that the defendant might have suffered as a result of the improper questioning by the district attorney, and we find no abuse of the trial judge’s discretion in refusing to declare a mistrial.

After appellate briefs were filed in this case, but prior to oral argument before this court, the defendant secured different retained counsel. Defendant’s new attorney filed with this court a pleading styled “Motion to Remand.” In that motion the defendant seeks to raise the issue of the lack of effective assistance of counsel at his trial. Since no specifications of error were filed in this regard, the defendant wishes to have the case remanded to the district court for a hearing on the ineffective assistance claim. The defendant seeks to have this issue decided prior to a determination of his appeal by this court.

Based on the record before us now, we are unable to determine the merits of the defendant’s allegations as to effective assistance. The claim of ineffective assistance is more properly raised by an application for a writ of habeas corpus in the district court. In this manner the district court judge may order a full evidentiary hearing on the matter. State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976); State v. Marcell, 320 So.2d 195 (La.1975). Therefore, at this time we decline to rule on the issue of effective assistance of counsel and deny the defendant’s motion to remand.

Accordingly, since we find no error in the record before us now, the conviction and sentence of the defendant are affirmed,

      . C.Cr.P. 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Archie Lewis CHARLES.
    No. 59272.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      Charles W. Seaman, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Archie L. Charles was charged by bill of information with distribution of marijuana in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty as charged and sentenced to serve six years at hard labor. On appeal defendant relies on eight assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 & 7

Defendant contends the trial judge erred in refusing to select a new petit jury venire from which prospective jurors would be selected for voir dire examination for his case, and in failing to grant his motion for a new trial based on this same purported error. Defendant argues that members of the pet-it jury venire were present during part of the trial preceding his, a trial which was for the same offense as defendant is charged with in this case. He further claims that the petit jury veniremen observed him sitting in the courtroom during the previous trial and heard some or all of the testimony in the previous case. He contends that this situation made it impossible for the prospective jurors to segregate in their minds the facts and circumstances of the two cases, and that he was thereby denied a fair and impartial trial.

Defendant Charles was tried October 20, 1976. The trial of Milton L. Griffin for committing the same offense with the same undercover agent was held on the preceding two days. October 18th and 19th. Thirty-six persons were questioned on voir dire for defendant Charles’ trial. In response to the state’s questioning, many of these said that they were present in the courtroom for part of the previous trial; some had actually served on the earlier jury. Although defense counsel did excuse some of those persons, he accepted others, including one juror who had served in the previous trial, and at least three who stated that they had heard portions of the previous trial. Defendant did not file a motion to quash the petit jury venire; he did not challenge any prospective juror for cause on the basis that the juror’s knowledge of the Griffin trial would prevent him from being impartial in the Charles trial; and he used only ten of his twelve available peremptory challenges. Instead, he waited until after testimony was being taken and then objected to the use of the jury venire.

The setting aside of a jury venire is properly raised by a motion to quash, not by objection. State v. Corey, 339 So.2d 804 (La.1976); State v. Francis, 285 So.2d 191 (La.1973); C.Cr.P. art 532. In this situation, defense counsel could also have raised the issue by challenging for cause particular jurors who had knowledge of the previous case, C.Cr.P. art 797, and by exhausting his peremptory challenges, C.Cr.P. art 800. Defense counsel did neither of these, but merely waited until after all the jurors had been chosen and testimony had begun before voicing his objection to the entire ve-nire. It is a critical part of our criminal practice that alleged errors be brought to a trial judge’s attention for correction with dispatch. Counsel cannot knowingly participate in the choosing of a flawed jury and thereafter attempt to raise the issue by objection. Therefore, defendant’s complaints that the trial judge erred in overruling his objection and in failing to grant his motion for new trial based on the same ground lack merit.

ASSIGNMENTS OF ERROR NOS. 2 & 6

Defendant contends the trial judge erred in denying his motions for a mistrial and a new trial, motions which were based on the perjured testimony of a state witness, Trooper Elvin Lacey, Jr.

At defendant’s preliminary investigation, Trooper Lacey testified that he was alone when he made the undercover drug purchase from defendant. At trial he admitted that an individual named Terry Murray had been with him. Trooper Lacey acknowledged that he had lied under oath at the preliminary examination but sought to justify his action by explaining that Terry Murray had been working as a police informant on other cases and was expected to resume this activity after a brief jail sentence. The trooper claimed to have excluded Murray from his initial testimony in an effort to protect Murray’s identity and future usefulness as an informant. Defendant argues that he prepared his defense in reliance on the facts as testified to at the preliminary hearing and is prejudiced by any alteration of the facts at trial.

The commission of perjury by a police officer at a preliminary hearing is a serious matter, made criminal by our law. R.S. 14:123. This officer’s conduct, although reprehensible, is not the issue before us. We now review whether the admission at trial by the officer that he made a false statement at the preliminary hearing constituted grounds for a mistrial.

Article 775 of the Code of Criminal Procedure provides in pertinent part that:

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.”

Here, the question is whether the officer’s misconduct inside the courtroom made it impossible for defendant Charles to obtain a fair trial. We hold that it did not.

Defendant Charles was successful in totally impeaching the credibility of Trooper Lacey by demonstrating his prior inconsistent statement concerning Murray. The fact of the officer’s misconduct at the preliminary hearing was fully revealed to the jury at trial. Furthermore, informant Murray was present at trial and was subject to extensive cross-examination. Defendant made no request for a recess to assess the impact of Murray’s testimony, to investigate the informant’s background, or to alter his defense in any way.

Therefore, although we in no way condone the officer’s perjury, we find that his previous false statement did not here warrant the granting of a mistrial or the granting of a new trial. The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in granting the state a recess once defendant’s trial had begun.

The record reflects that the trial judge adjourned court from approximately three o’clock in the afternoon until the following morning due to the fact that an essential state witness had been subpoenaed to testify in another court and was therefore unavailable to testify for the state that afternoon. Defendant argues that the state should have known in advance that its witness would be unavailable and should not have gone to trial until such time as he could be present.

A recess is a temporary adjournment of a trial or a hearing that occurs after a trial or hearing has commenced. C.Cr.P. art. 708. The grant or denial of a recess is largely within the discretion of the trial court. State v. Sharp, 321 So.2d 331 (La.1975); State v. Richmond, 284 So.2d 317 (La.1973).

In the instant case defendant has made no showing, beyond his bare assertion, that he was in any way prejudiced by the relatively brief recess granted the state. We hold that the trial judge did not abuse his discretion in recessing trial due to the temporary unavailability of a state witness.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in admitting into evidence an envelope containing a matchbox filled with marijuana. He argues that the evidence was not sufficiently identified and connected with the case inasmuch as the evidence envelope bore the name Archie Lewis whereas defendant’s name is Archie Lewis Charles.

In State v. Dotson, 260 La. 471, 511, 256 So.2d 594, 608-09 (1971) this Court set forth the rules pertaining to the introduction of demonstrative evidence as follows:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient.
“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury.” [citations omitted]

At trial Trooper Elvin Lacey testified that he met the defendant Archie Lewis Charles at a baseball game. He said that during the game he left with the defendant and accompanied him to his home where he purchased a matchbox containing marijuana. Lacey stated that he wrote the name “Archie Lewis” on the matchbox as well as on the envelope in which he placed the evidence. He then turned the evidence over to the police crime lab for analysis.

The record leaves no doubt that the name Archie Lewis marked on the evidence envelope by Lacey was intended to designate the defendant Archie Lewis Charles. It is amply demonstrated in the record that it was more probable than not that the evidence was connected with the case. Accordingly the trial judge did not err in admitting the physical evidence at trial.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a directed verdict.

This matter was tried on October 20-21, 1976. Article 778 of the Code of Criminal Procedure was amended by Act No. 527, § 1 of 1975, effective September 12, 1975 to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. This amendment being procedural in nature, it is applicable to this trial which was held after the amendment’s effective date. State v. Clark, 340 So.2d 208 (La.1976); State v. Marmillion, 339 So.2d 788 (La.1976). Hence the trial judge had no authority to grant defendant’s motion for a directed verdict.

Assignment of error number five lacks merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying his motion for a new trial on the ground that the ends of justice would be served thereby because a picture of defendant in connection with the charge had appeared in a local newspaper ten months prior to trial. He argues that because of this publicity defendant did not receive a fair trial.

Article 851(4) of the Code of Criminal Procedure allows the granting of a new trial when:

“The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.”

Defense counsel argues that the fact that both he and defendant were living outside Sabine Parish at the time the picture was published in the Sabine Index justified his failure to raise the issue prior to trial.

Prejudice against an accused because of newspaper coverage is normally a ground for change of venue, but not for new trial. State v. Carricut, 157 La. 140, 102 So. 98 (1924). It is only when the defendant shows that the evidence could not have been discovered by the use of reasonable diligence before the verdict that the Code of Criminal Procedure authorizes the granting of a motion for new trial. Defense counsel’s allegation that both he and the defendant lived out of the parish at the time of the publication of defendant’s picture in the local newspaper does not constitute such a showing. Consequently, defendant’s motion was properly rejected.

For these reasons, the conviction and sentence of defendant Charles are affirmed.

      . Although the objection was made during the state’s evidence, defense counsel requested and received permission from the judge to have the objection noted as being made before any testimony was taken.

      . Defendant incorrectly refers to the recess as a continuance. Article 708 of the Code of Criminal Procedure makes it clear that a temporary adjournment that occurs after a trial or hearing has commenced is a recess.


author: DIXON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Errol Anthony DOMANGUE.
    Nos. 59290-59292.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      Barron M. Whipple, Eddie N. Pullaro, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Errol Anthony Domangue was charged with an attempted aggravated rape. After trial by jury on September 20, 1976 defendant was found guilty of attempted simple rape, and later sentenced as a multiple offender to twenty years at hard labor. Defendant relies upon eight assignments of error for reversal of his conviction.

On February 15, 1976 the victim was awakened by a knocking sound at her front door. She assumed it was her common-law husband and attempted to go back to sleep. A short while later she discovered an intruder in her bedroom who jumped on top of her. She felt a knife at her neck which was subsequently rubbed over her body. As she attempted to push the intruder off of her, she felt a chain around the person’s neck. The intruder sexually molested the victim but was interrupted short of intercourse by the return of the husband. The attacker fled out the rear door and jumped a fence. The husband flagged down a cruising police ear, and the officers found the defendant in a vacant lot a short distance from the victim’s house.

Assignments of Error Nos. 1 and 2

In Assignment of Error No. 1 defendant contends the trial judge erred in denying an oral motion for a continuance of a sanity hearing made on the ground that defense counsel had received one of the examining physician’s reports on the day of the hearing. In Assignment of Error No. 2 defendant argues that the trial court erred in not concluding that the examinations of the defendant by the sanity commission conducted in the presence of a police officer were improper and void.

Prior to conducting the sanity hearing the record reveals some confusion concerning whether defendant continued in his desire to plead not guilty and not guilty by reason of insanity. However, the last entry in the record concerning this point (made just prior to voir dire) reveals that defendant abandoned the dual plea and desired to be tried on a plea of not guilty. Furthermore, absolutely no evidence was adduced by either the State or defense relative to the allegation that defendant was legally insane at the time of the commission of the offense. In Assignment of Error No. 1 defendant argues that the continuance was needed because his attorneys had received one doctor’s report prior to the date set for the sanity hearing but had only received the supplement to that report on the day of the hearing. The supplement dealt with the physician’s opinion concerning the defendant’s sanity at the time of the commission of the offense. Likewise, the thrust of Assignment No. 2 is that the sanity examinations were invalid because the presence of the police officer tainted defendant’s responses relative to his alleged insanity at the time of the commission of the offense. Since defendant abandoned his insanity defense and since the first two assignments concern errors in connection with the dual plea, we conclude that these alleged errors are moot. Accordingly, these two assignments do not present reversible error.

Assignment of Error No. 3

In this assignment defendant contends that the trial judge erred in refusing to permit defense counsel to inquire into the victim’s past sexual relationships with men other than her common-law husband and the defendant. Defendant argues that past jurisprudence indicates that this is a proper line of inquiry when defendant relies upon the defense of consent. Nonetheless, E.S. 15:498, added by La.Acts 1975, No. 732, § 1, provides: “Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.” This amendment became effective on September 12, 1975, prior to the commission of the instant offense (February 15, 1976). Accordingly, the trial judge correctly limited such testimony to relationships with defendant.

This assignment lacks merit.

Assignments of Error Nos. 4 and 5

The investigating officers found a knife near to the point where defendant jumped the fence as he fled from the house. The officers testified that the knife had much less of an accumulation of moisture from dew than the surrounding areas. The victim initially testified that this knife looked like the knife used by the intruder but during cross-examination admitted that she never really saw the knife but only felt it upon her body. In addition, the victim testified that a chain which the defendant was wearing at the time of the arrest felt like the chain she touched around the intruder’s neck. When the State attempted to introduce these items into evidence the defense objected and argued that the proper foundation had not been laid. The objections were overruled and these rulings form the basis of Assignments Nos. 4 and 5 which will be treated together as they involve the same issues.

The defendant’s arguments on these two assignments are based upon the contention that the testimony adduced at trial did not sufficiently connect these items to the alleged offense and the defendant. However, the knife was found shortly after the commission of the crime very near the fence over which the intruder climbed. In addition, the knife had much less dew accumulation than the nearby areas. The victim testified that the chain the defendant was wearing felt very similar to the chain worn by her attacker. Thus, the fact that the knife was found in close proximity to the fence over which the attacker escaped was relevant evidence and was admissible. Likewise, the victim sufficiently connected the chain worn by the accused with the chain worn by the attacker. The items themselves were demonstrative of relevant evidence and thus properly admitted.

These assignments lack merit.

Assignment of Error No. 6

In this jury trial defendant moved for a directed verdict after the close of the State’s case in chief. The overruling of this motion forms the basis for this assignment of error. La.C.Cr.P. 778 formerly provided that a trial judge could direct a verdict for the accused in a jury trial. However, by La.Acts 1975, No. 527, § 1, C.Cr.P. 778 was amended to provide that only in bench trials could the judge direct a verdict at the close of the State’s case; the portion of the former statute allowing a directed verdict to be made in a jury trial was repealed. Since this statute went into effect prior to the commission of the alleged offense and prior to trial thereon, the trial judge correctly refused to grant the motion for a directed verdict.

This assignment lacks merit.

Assignment of Error No. 7

During closing argument by defense counsel the common-law husband of the victim began to cry. No verbal outburst occurred. After some time the prosecutor noticed that the man was upset and had him removed from the courtroom. The defense counsel requested that the jury be removed and then moved for a mistrial contending that the man’s actions constituted “prejudicial conduct” within the meaning of C.Cr.P. 775. The trial judge noted that the crying was hardly audible and that he did not become aware of it until it was called to his attention. At this point the man was immediately escorted from the courtroom. The judge also noted that the conduct was not verbal and that the jury could not have made any inferences from the man’s actions. Accordingly, the judge refused to order a mistrial but, after obtaining defense counsel’s consent, admonished the jury to disregard the incident and not to draw any conclusions from it. This ruling forms the basis of Assignment of Error No. 7.

It has been consistently held that when the conduct does not fall within the mandatory mistrial provisions of C.Cr.P. 770, the judge has the sound discretion to determine whether the activity or comment so prejudiced the defendant that he could not receive a fair trial. See, e. g. State v. Johnson, 333 So.2d 223 (La.1976). In this case the crying episode was barely audible and the man was escorted from the courtroom promptly. The judge fully admonished the jury to disregard the incident, and was satisfied that the incident did not deprive the defendant of a fair trial. We find no abuse of the trial judge’s discretion.

This assignment lacks merit.

Assignment of Error No. 8

In this assignment defendant contends that the trial judge erred in refusing to order a new trial. The basis of his motion and his argument on this assignment deal exclusively with the alleged errors discussed in Assignments numbered 1 through 7. These alleged errors have been disposed of above and, thus, this assignment presents no reversible error.

The conviction and sentence are affirmed.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

In assignment of error number two, defendant Errol Domangue argues that the court below erred in failing to conclude that the sanity examinations of him were void because they were conducted in the presence of a police officer.

The legislature and courts have consciously allowed sanity commission procedures to be flexible so that doctors conducting such examinations can do so in the way that the particular facts of the case warrant. C.Cr.P. art. 644, esp. official revision comment; State v. Faciane, 233 La. 1028, 99 So.2d 333 (1957). Nevertheless, sanity commission procedures must comport with the basic minimum requirements of fundamental fairness and fair trial. La.Const. art. I, §§ 2, 5,16. It seems to me clear that the presence of law officers at the sanity commission examination would almost necessarily interfere with the examining process, detract from the focus of the interview, break down the confidentiality between doctor and patient, and generally fail to meet our minimum constitutional standards. Therefore, I would caution against allowing police personnel into sanity examinations in any but the most unusual and justifiable situations.

I agree, however, with the majority decision in this case that this defendant’s assignment lacks merit because his insanity defense was abandoned.


author: SANDERS, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Charles Ray SPEARS.
    No. 59311.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      Walter C. Dumas, Trial Atty., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Tangipahoa Parish Grand Jury indicted Charles Ray Spears for: (1) the second degree murder of John E. Reid, in violation of LSA-R.S. 14:30.1; (2) the attempted murder of Roy E. Walters, in violation of LSA-R.S. 14:30 and 14:27; and (3) two counts of armed robbery, in violation of LSA-R.S. 14:64. After a trial, the jury found defendant guilty of all charges. The trial judge sentenced him to: (1) life imprisonment for the second degree murder conviction, without benefit of probation, parole, or suspension of sentence for twenty years; (2) twenty years for the attempted murder conviction; (3) ninety-nine years, without benefit of probation, parole, or suspension of sentence, for each armed robbery. The trial judge ordered all sentences to run consecutively.

Defendant appeals his convictions and sentences, relying upon eight assignments of error.

On August 8, 1975, Charles Ray Spears entered the Goodyear Service Store in Hammond, Louisiana, and purchased a radio. After completing his purchase, he drew a gun and ordered the two employees, Roy Walters and John Reid, to handcuff themselves together with handcuffs which he gave them. Spears opened the safe, took the money in the bank bag, and then rifled the cash drawers. Spears then took Reid’s wallet and shot each employee in the back of the head leaving Reid dead and Walters blinded, deafened, and semi-conscious. Walters regained consciousness and telephoned for help. Several months later, after Walters regained his eyesight, he identified Charles Ray Spears as the assailant.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant alleges that the trial court erred in admitting a cassette tape into evidence.

This assignment of error, having neither been briefed nor argued, is considered abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

Moreover, defense counsel requested that the cassette be transcribed and admitted into evidence. Having requested its admission, defendant cannot now be heard to complain.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, defendant complains that the trial court erred in denying his motion to suppress the pre-indictment lineup identification on the basis that he was not represented by counsel.

The United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), held that an accused is entitled to counsel at a lineup when adversary criminal proceedings are initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Arrest alone does not entitle an accused to have counsel present at his lineup. In Kirby, the Court noted:

“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.”

Applying the holding in Kirby, this Court has consistently held that the presence of an attorney is not required at lineups held prior to the filing of bills of information or indictments. State v. Rudolph, La., 332 So.2d 806 (1976); State v. Stewart, La., 325 So.2d 819 (1976); State v. Nero, La., 319 So.2d 303 (1975); State v. Lawrence, La., 294 So.2d 476 (1974).

In the instant case, defendant was not formally charged by indictment until three months after the lineup. Defendant, therefore, had no constitutional right to counsel.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, defendant contends that the lineup identification procedure was so unnecessarily suggestive as to be violative of his due process rights.

In State v. Newman, La., 283 So.2d 756 (1973), we stated:

“Due process prohibits the conduct of an identification procedure in a manner that it is unnecessarily suggestive and conducive to irreparable mistaken identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Foster v. Califormia, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). In a determination of whether an identification procedure was impermissi-bly suggestive, reference must be made to all circumstances. State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Foster v. California, supra; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).”

The record reflects that all five males, including the defendant, were black males wearing jail uniforms and were approximately the same build, height, and complexion. Defendant was allowed to choose the number he would wear. The victim picked Charles Ray Spears in each of the three successive viewings.

We conclude that the lineup was fairly conducted, and thus defendant was not denied due process.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 6

In Assignment of Error No. 6, defendant complains that the trial judge erred in denying his motion for the production of favorable evidence.

It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, when the evidence is favorable to the defendant and is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Defendant argues that the State possessed a confession made by defendant relating to a murder charge in Orleans Parish which contained exculpatory information. At the time of defendant’s request, the State answered that it was not in possession of evidence favorable to the defendant.

After reviewing the confession, we conclude that the confession was not exculpatory. Accordingly, the trial court judge properly denied defendant’s motion. State v. Robinson, La., 342 So.2d 183 (1977).

Assignment of Error No. 6 is without merit.

ASSIGNMENTS OF ERROR NOS. 15, 16 AND 19

As defendant has neither briefed nor argued Assignments of Error Nos. 15 and 16, they are considered abandoned. State v. Phillips, supra; State v. Blanton, supra; State v. Carlisle, supra.

In Assignment of Error No. 19, defendant argues that the trial judge erred in admitting into evidence photographs of the murder victim’s face and leg. He contends that the photographs had an inflammatory effect on the jury.

The test of admissibility is whether the probative value of the photographs outweighs their probable inflammatory effect. State v. Curry, La., 292 So.2d 212 (1974); State v. McCauley, La., 272 So.2d 335 (1973); State v. Gibson, La., 271 So.2d 868 (1973).

One of the black and white photographs at issue depicts the murdered victim’s head and shoulders. In addition, the photograph illustrates that the victim’s eye was blackened. The other black and white photograph of the victim’s foot shows an identification tag, indicating that the name of the victim was John Reid.

Photographs of the body of a deceased victim have generally been held relevant to prove the death; to corroborate other evidence of manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Williams, La., 343 So.2d 1026 (1977); State v. Cooper, La., 334 So.2d 211 (1976); State v. Beach, La., 320 So.2d 142 (1975).

After examining the photographs in question, we conclude that they are not gruesome. Moreover, they are relevant to prove the identity of the murder victim. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them into evidence.

Moreover, defendant failed to object at the time the photographs were introduced into evidence. Defendant’s objection when the State attempted to show them to the jury was not timely. LSA-C.Cr.P. Art. 841. State v. McCray, La., 327 So.2d 408 (1976); State v. Gibson, La., 323 So.2d 446 (1975).

Assignments of Error Nos. 15, 16, and 19 are without merit.

ASSIGNMENT OF ERROR NO. 20

In Assignment of Error No. 20, defendant complains of the trial court’s denial of his motion for a directed verdict. He alleges that the State failed to prove an essential element of the armed robbery: that something of value was taken.

The State charged defendant with the August 8, 1975, armed robbery of Roy Walters and John Reid and brought defendant to trial in August, 1976. By Act No. 527 of 1975, the Legislature amended LSA-C.Cr.P. Art. 778 by eliminating the directed verdict in cases triable by jury. The effective date of that amendment was September 12, 1975. We have held the amendment procedural in nature and thus applicable to all trials held after its effective date. State v. Hodges, La., 349 So.2d 250 (1977); State v. Clark, La., 340 So.2d 208 (1976); State v. Marmillion, La., 339 So.2d 788 (1976); State v. Marks, La., 337 So.2d 1177 (1976). Hence, the trial court properly denied defendant’s motion for a directed verdict.

Assignment of Error No. 20 is without merit.

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

DIXON, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I do not agree with the majority decision that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) completely disposes of the accused’s claim that he had a right to be represented by counsel at his preindictment lineup because defendant Kirby did not ask for legal assistance and apparently had no lawyer at the time of the lineup. Because defendant herein did not strongly assert his right to have counsel present, and the record suggests that he affirmatively waived that right, I agree with the majority decision that defendant’s right to counsel was not impinged.

      . In an unnumbered assignment of error, defendant complains of the trial court’s admission of his confession of another murder into evidence. He also contends the trial court erred in allowing testimony of police officers refuting defendant’s testimony that the confession was extorted by physical violence.
      Defendant’s allegations of error are not embodied in a formal assignment of error. His contention first appears in his brief.
      Article 844 of the Code of Criminal Procedure provides:
      “The party appealing shall designate, in writing, those errors which are to be urged on appeal.
      “This assignment of errors shall be filed within the time specified by the trial judge.
      “The trial judge may submit such per cu-riam comments as he desires.”
      Moreover, Article 920 of the Code of Criminal Procedure provides:
      “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (Emphasis added.)
      Hence, these allegations of error are not properly before us on appeal.

      . The lineup was conducted on March 25, 1976. The Tangipahoa Parish Grand Jury indicted defendant three months after the lineup.


author:
MARCUS, Justice.
      CALOGERO, Justice, DIXON, Justice

text:
    STATE of Louisiana v. Everett TWINER. STATE of Louisiana v. James W. WOMACK.
    Nos. 59312, 59313.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.
    Crawford A. Rose, Jr., Rayville, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., Willian R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-relator.
   MARCUS, Justice.

Everett Twiner and James W. Womack were charged by separate bills of information with willfully and unlawfully selling beverages having an alcoholic content in excess of one-half of one percent by volume in violation of Ordinance No. B-935 of the Parish of Richland. Defendants filed motions to quash the bills of information in which they attacked the validity of Ordinance No. B-935 on the ground that it was adopted pursuant to an improperly called local option election. Specifically, defendants argued that La.R.S. 26:586 provides that, after the petition has properly been filed with the governing authority, the date for the election shall be fixed not less than forty-five nor more than sixty days from the date of the adoption of the ordinance or resolution ordering the election; whereas, in the instant case, the police jury fixed the date for the election only forty-one days from the date of the ordinance ordering the election. Defendants contended that this was a substantial violation of the requirements of the local option law; therefore, the election was illegal and Ordinance No. B-935 adopted pursuant to said illegal election was of no force and effect.

The trial judge sustained defendants’ motions to quash. The state then requested orders of appeal from the adverse rulings which were granted by the trial judge. Thereafter, on motions of defendants, the trial judge rescinded the orders of appeal on the ground that the state was not entitled to appeal the quashing of the bills of information. The state then applied to this court for supervisory writs, which applications were granted. The state asserts two assignments of error.

ASSIGNMENT OF ERROR NO. 1

The state contends that the trial judge erred in granting defendants’ motions to quash the bills of information. The state argues that defendants were charged pursuant to a valid ordinance in that the election was called and conducted in substantial compliance with La.R.S. 26:581, et seq., (local option law) but in any event, defendants could not collaterally attack the validity of the election in these proceedings since no qualified elector instituted suit within thirty days of the promulgation of the results of the election to have the election declared null and void as required by La. R.S. 26:590.

Stipulations of fact by and between the district attorney and defense counsel were filed in the district court in which it was agreed that in 1976 a petition, valid in form, calling for a local option election on the proposition of whether the sale of beverages containing more than one-half of one percent alcohol by volume should be permitted in ward 7 of Richland Parish was duly circulated in said ward. The petition was timely filed with the registrar of voters of the parish and was subsequently published in the official parish journal. The petition, with the registrar’s sworn verification, was filed with the police jury which, after verifying that the petition complied with the requirements of law, timely adopted an ordinance ordering the election. It was stipulated that the ordinance ordering the election fixed the date of the election at forty-one days from the date of the adoption of the ordinance calling the election in contravention of La.R.S. 26:586, which provides that the date fixed for the election shall be no less than forty-five nor more than sixty days from the date of the adoption of the ordinance ordering the election. In all other respects, the local option election was properly called and conducted. The results of the election were duly promulgated by ordinance and published in the official journal of the parish. Since the required number of qualified electors voted against permitting the sale of beverages containing more than one-half of one percent alcohol by volume in ward 7, the Richland Parish Police Jury adopted Ordinance No. B-935 prohibiting the sale of such alcoholic beverages in said ward and prescribing penalties for violation of the ordinance as a fine not to exceed one hundred dollars or imprisonment for not more than thirty days, or both, in accordance with La.R.S. 26:595. No suit to contest the legality of the local option election was filed within thirty days of the promulgation of the results of the election.

In treating the nullity of a local option election, La.R.S. 26:590 provides:

If the petition fails to substantially comply with the requirements provided in this Chapter or if the other requirements specified in this Chapter for the calling or conduct of the election are not substantially complied with, the election is illegal and ineffective and may be declared null and void by any court of competent jurisdiction at the suit of any elector who was qualified to vote in the election. This suit shall be brought within thirty (30) days of the promulgation of the results of the election. (Emphasis added.)

In mandatory terms, this provision requires that a suit challenging the legality of a local option election be instituted within thirty days of the promulgation of the results of the election. After the expiration of the thirty-day period, the legality of the election is conclusively presumed and is immune from further attack.

Applying this statutory interpretation to the instant case, since no suit to annul the local option election was brought within thirty days of the promulgation of the results thereof, any procedural defects in the local option election could no longer be asserted. The legality of the local option election was conclusively presumed. Therefore, Ordinance No. B-935 could not be attacked on the basis of any alleged irregularities in the calling or conduct of said election. Hence, the ordinance was valid. Since defendants were charged pursuant to a valid ordinance, the trial judge erred in granting defendants’ motions to quash the bills of information.

ASSIGNMENT OF ERROR NO. 2

The state contends that the trial judge erred in granting defendants’ motions to withdraw the orders which permitted appeals by the state from the quashing of the bills of information. It is argued by the state that an appeal from an adverse ruling on a motion to quash a bill of information was authorized by La. Code Crim.P. art. 912(B).

The state’s contention is without merit. Under La.Const. art. 5, § 5 (D-E) (1974), the state has no right to invoke the criminal appellate jurisdiction of this court for our review of final pre-conviction adverse judgments or rulings, except in criminal cases in which a law or ordinance has been declared unconstitutional. State v. Nichols, 337 So.2d 1074 (La.1976); State v. James, 329 So.2d 713 (La.1976). Accordingly, La. Code Crim.P. art. 912(B) is no longer applicable insofar as it permits the state to appeal final pre-conviction adverse judgments or rulings. Rather, where the state desires review of a final pre-conviction adverse judgment or ruling in a criminal case, application to this court for a writ of review is the proper procedure for the state to follow. La.Const. art. 5, § 5(A) (1974); State v. Nichols, supra; State v. James, supra. Hence, the trial judge did not err in granting defendants’ motions to withdraw the orders of appeal.

Assignment of Error No. 2 is without merit.

DECREE

For the reasons assigned, the rulings of the trial judge sustaining defendants’ motions to quash the bills of information are reversed, and the cases are remanded to the trial court for further proceedings not inconsistent with this opinion.

DIXON, J., dissents with reasons.

CALOGERO, Justice,

dissenting.

In my view, R.S. 26:590 has no relevance to defendant’s attack on the ordinance under which he is being prosecuted.

DIXON, Justice

(dissenting)

I respectfully dissent.

R.S. 26:590 has no application to these cases. A valid statute is essential to a valid conviction. (See C.Cr.P. 859(2) and Official Revision Comment). To require that a person arrested must have brought suit to nullify the statute within a certain time from the passage of the ordinance is to deny him due process and infringe upon the powers of the judiciary.

These are criminal actions, not suits to declare an election invalid. R.S. 26:590 does not pretend to limit all attacks upon the election, but only applies to suits by “any elector who was qualified to vote in the election.” R.S. 26:590. It may be that there was “substantial compliance” with the statutory procedure, but the majority opinion, as it stands, must not be taken at face value.

      . By agreement of all parties, the motions to quash the bills of information filed by defendants were consolidated for the purpose of trial.

      . La.R.S. 26:586 provides:
      The governing authority with whom the petition is filed by the Registrar of Voters shall attach to the petition its' sworn verification showing the day, month and year the petition was filed with it.
      If the petition conforms to all the provisions of this Chapter, the governing authority shall order the election. The ordinance or resolution of the governing authority ordering the election shall be adopted at a regular meeting held not less than thirty nor more than forty-five days from the date the petition was filed with the governing authority by the Registrar of Voters.
      The governing authority shall remove the name of any signer of the petition if requested to do so in writing within thirty days of the date the petition was filed with it. If the number of written requests for withdrawal from the petition reduces the number of qualified petitioners to less than the required twenty-five per cent, the election shall not be ordered and the petition shall be null and void and cannot be used again.
      The date fixed for the election shall be not less than forty-five nor more than sixty days from the date of the adoption of the ordinance or resolution ordering the election.

      . 342 So.2d 1116 (La.1977).


author: SANDERS, Chief Justice. CALOGERO, J., DIXON, Justice

text:
    STATE of Louisiana v. Curtis SAWYER.
    No. 59336.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      Antonio E. Papale, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.

      . Examples are:
      “Now, after Terry Jordan, the fifteen year old saw this, she ran into the kitchen. Now, one thing out of all the witnesses that the State introduced, I ask that you pay particular to Terry Jordan. She is fifteen or sixteen years old. At any time she testified the defendant’s attorney had a right to cross examine every witness that we put up here. Was there any problem — was it ever shown that she was wrong in something? Are we going to believe that there was a massive conspiracy on the part of Terry Jordan? The mother? All these people have come here to lie and convict that man? That’s what they want us to believe. And, as part of that conspiracy they are willing to say that a fifteen year old girl — that’s hard to believe. That one — that witness alone I believe — on that witness alone." (Emphasis supplied.) Tr. 11.
      “. . . [H]e’s standing this close and he decides to fire directly at him. If he’s this close with the gun, then the victim could have just grabbed his hand. He’s lying when he tells us that. But, he doesn’t fire one shot with that gun. But, this man, five eight, one hundred forty seven pounds just keeps on coming. And, so what he to do? He has to put that pistol right between his eyes and pull the trigger — that’s the only way I can stop him . . he couldn’t run away, but, I know if I shoot him he’d probably stop coming.” (Emphasis supplied.) Tr. 16.
      “Now, defense attorney says that Sharon was intoxicated. I don’t agree to that — I don’t buy that. She had been drinking and she admitted it. But, look at all the series of events which occurred afterwards which the defendant himself talked about. Does that appeal to you — the way an intoxicated person would act? Carry on a conversation — that’s not the way a person who was so intoxicated she clearly didn’t see what was going on.” (Emphasis supplied.) Tr. 20.

   SANDERS, Chief Justice.

The Orleans Parish Grand Jury indicted defendant, Curtis Sawyer, for second degree murder. The jury returned a responsive verdict of manslaughter. The State charged defendant as an habitual offender under LSA-R.S. 15:529.1 based on three pri- or felony convictions. The lower court, finding defendant to be an habitual offender as charged, sentenced him to serve twenty-one years in the custody of the Department of Corrections, with credit for time served and to pay court costs. On appeal, defendant relies upon four assignments of error for reversal of his conviction and sentence. Alternatively, defendant prays for a remand to the lower court for resentencing as a second offender.

Following are the context facts revealed by the transcript:

About 10:30 p.m., on May 26, 1975, defendant was visiting his estranged wife, Sharon Sawyer, in her mother’s third floor apartment in the Fisher Home Project in New Orleans. Mrs. Sawyer had been living with her mother for about five months since her separation from defendant.

During defendant’s visit, he and Mrs. Sawyer began arguing about whether or not they would “go back together,” and defendant “punched” Mrs. Sawyer.

Meanwhile, Daneel White, the victim, arrived on the premises. Jerry Dillon had driven White to the project to visit Mrs. Sawyer to discuss a misunderstanding. Dil-Ion remained outside on the ground level talking to two men, while White went upstairs to visit with Mrs. Sawyer. Shortly after White went upstairs, Dillon and the other men heard two shots and ran upstairs, finding White lying on the porch just outside the apartment. White had been shot in the head near the left eyebrow. Sawyer was standing near the victim with a revolver in his hand. The victim subsequently died of the gunshot wound.

At trial, Sawyer testified in his own defense, asserting that he had shot the victim in self-defense.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the lower court erred in admitting into evidence a photograph, which was shown to the jury, depicting the victim’s body. The photograph shows the bullet wound to the victim’s head and what appears to be a tracheotomy on the neck. Defendant alleges that the photograph served only to inflame the jury to his prejudice. He reasons that, since neither the shooting nor the identity of the deceased was at issue, the photograph could have no evidentiary value.

We find that defendant’s complaint is without merit. We have reviewed the questioned photograph and find that it is not gruesome. Although observable, the wounds are not open. The photograph portrays very little blood.

The determination of the proper use of photographs is within the sound discretion of the trial judge, who can determine whether they serve a proper place in the jury’s enlightenment, and his ruling will not be disturbed unless the inflammatory effect clearly outweighs the probative value. State v. Barber, La., 271 So.2d 853 (1973); State v. Giles, 253 La. 533, 218 So.2d 585 (1969). In the case before us, the trial judge did not abuse his discretion. In his Per Curiam, the trial judge explains that the photograph was not a gory one; it showed the entry point of the bullet and showed the bullet wound was directly between the eyes, providing a basis for an inference that the gun was aimed directly and deliberately at the victim and not in hasty self-defense. This Court has held that photographs, even if gory, are admissible if they shed light on any issue. State v. Frezal, 278 So.2d 64 (La.1973); State v. Hamilton, 249 La. 392, 187 So.2d 417 (1966); State v. Scott, 198 La. 162, 3 So.2d 545 (1941). In State v. Normand, La., 298 So.2d 823 (1974), in a similar situation, this Court held non-inflammatory photographs were admissible despite the fact that defendant did not dispute that she shot the victim or that the shots resulted in the decedent’s death.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

During the State’s questioning of defendant’s wife, the State sought to elicit testimony that she had previously indicated to authorities that she did not wish to cooperate with them because she had been threatened. The defense objected to any testimony regarding the threat, and the objection was sustained by the trial court. The court instructed the jury to disregard the reference to the threat. The jury was then removed from the courtroom for further discussion of the issue by the trial judge and attorneys. Defense counsel moved for mistrial, which was denied. When the jury returned to the courtroom, the trial judge again instructed them to disregard the reference to the threat.

Defendant correctly argues that evidence of threats communicated to a witness by a person who has no connection with the defendant is irrelevant and inadmissible in a criminal prosecution. State v. Hillman, La., 298 So.2d 746 (1974). In the case before us, the identity of the person making the threat was not revealed. However, reference to the threat does not necessarily require a mistrial or reversal. In State v. Hillman, supra, the trial judge permitted a state’s witness to testify that he had received threatening telephone calls from an unidentified person about eight days after the defendant’s arrest. The defendant objected to this testimony on the ground of relevancy. The objection was overruled. Defense counsel asked that the judge instruct the jury to disregard the testimony. When the request was denied, counsel reserved a bill of exception. On appeal, the State conceded that the remarks were irrelevant, but urged that the error committed was harmless under LSA-C.Cr.P. Art. 921. This Court found that the ruling of the trial court admitting the testimony was harmless error.

In the case before us, the trial judge sustained the objection and twice instructed the jury to disregard the reference to the threat. We conclude that the trial judge correctly overruled the motion for a mistrial.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in denying his motion for a mistrial based upon statements made by the prosecutor to the jury during closing argument. Defendant alleges that these statements indicated the prosecutor’s personal opinions regarding the credibility of certain witnesses, among them the defendant, and indicated the prosecutor’s personal belief in defendant’s guilt.

It is impermissible for a prosecutor to abandon his argument on the evidence and express his personal opinion as to the guilt of the defendant. Thus, in State v. Kaufman, La., 304 So.2d 300 (1974), this Court held it was error for the prosecutor to emphasize to the jury that he would not be prosecuting if he did not think he had a case. However, the prosecutor’s expression of views is ordinarily non-reversible if it is apparent that his views are either expressly or impliedly based on the evidence rather than on personal knowledge of facts outside the record. LSA-C.Cr.P. Art. 774; State v. Kaufman, supra.

In his Per Curiam, the trial judge concludes that the prosecutor’s arguments were based on the evidence produced at the trial. We agree.

Each of the contested statements is associated with an analysis of the evidence. When the arguments are examined in context, it is clear that they are based on the evidence, lack of evidence, or conclusions of fact that may be drawn. LSA-C.Cr.P. Art. 774. Hence, we find no merit in this argument.

The defendant also complains of the prosecutor’s reference in argument to the defendant’s prior convictions.

After the defendant took the stand as a witness in his own behalf, the State was allowed to show that he had four prior convictions.

Article 770 of the Louisiana Code of Criminal Procedure provides for a mistrial on motion of defendant when the prosecutor refers to another crime committed by the defendant “as to which evidence is not admissible.” That article, of course, is inapplicable here, because the evidence of the prior convictions were properly admitted in evidence.

The defense, however, complains of the emotional appeal based on the prior convictions. When the argument is viewed as a whole, as must be done, we conclude that it does not go beyond the parameters of permissible comment on the evidence.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Here, defendant alleges that the trial court erred in denying his post-trial Motion to Quash a bill of information charging him as a fourth offender pursuant to the provisions of the Louisiana Habitual Offender Law, LSA-R.S. 15:529.1. He based his motion on the fact that two of the prior offenses, although felonies at the time he was convicted, were by legislative enactment subsequently reduced to misdemeanors. Thus, he argues that he should be sentenced as a second offender rather than as a fourth offender.

Defendant’s argument is without merit. The status of the offenses are determined as of the time of the conviction. We have previously resolved this issue adversely to defendant’s position. State v. Broussard, 213 La. 338, 34 So.2d 883 (1948); State v. Ambrose, 212 La. 1062, 34 So.2d 261 (1948).

Assignment of Error No. 4 is without merit.

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

DIXON, J., concurs in part and dissents in part with reasons.

CALOGERO, J.,

concurs as to the conviction, but dissents from that part of the opinion which affirms the sentence imposed for a fourth felony offender. He should have been sentenced as a second felony offender.

DIXON, Justice

(concurring and dissenting).

I concur in the majority opinion, except that I respectfully dissent from the treatment of Assignment of Error No. 4.

Cases relied upon by the majority, State v. Broussard, 213 La. 338, 34 So.2d 883 (1948) and State v. Ambrose, 212 La. 1062, 34 So.2d 261 (1948), both arose after the adoption of the Louisiana Criminal Code. There was a “general saving clause statute,” Act 35 of 1932, which provided that the repeal of any criminal statute, required by the adoption of the criminal code, would not have the effect of releasing or extinguishing any criminal penalty, unless the repealing act expressly provided.

Such is not the case in the matter before us. In the absence of statutory material demonstrating a legislative intent to the contrary, we can only conclude that the habitual offender statute is designed to enhance the penalty for offenses committed by one who has committed previous offenses, which are felonies at the time of the enhancement of the penalty.

In my opinion, the defendant may be sentenced as a second offender, but not as a fourth offender.