author:
WATSON, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Thomas POREE.
    No. 81-KA-0198.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Concurring in Part and Dissenting in Part Oct. 1, 1981.
    Rehearing Denied Oct. 9, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert Myers, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Matthew B. Collins and Calvin Johnson of Collins, Johnson & Volk, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Thomas Poree, was convicted of armed robbery in violation of LSA-R.S. 14:64, by a ten to two jury vote. He was adjudged a second offender and sentenced to 198 years at hard labor. LSA-R.S. 15:529.1(A)(1). The issue on appeal is whether the trial court erred in denying Poree’s motion to suppress evidence seized pursuant to a search warrant.

The warrant, dated June 21, 1979, authorizes a search of 639 N. Galvez Street in New Orleans and the seizure of: “$400 in U.S. Currency in various amounts or denominations; (1) ‘First National Bank of Commerce’ zipper money pouch color brown; (1) pr. of brown short pants; (1) unknown cal. grey colored revolver.” The affidavit by a New Orleans police officer recites the following:

“At about 8:50 AM on 6-21-79 an Armed Robbery occurred at the ‘International Electrical Worker’s Union Hall’ located at 1806 Canal St. in Orleans Parish in which about $400.00 in U.S. Currency was taken at gunpoint from the cashier. This money was placed into a money bag described above and taken by the perpetrator a NM about 25 years old with a white jumpsuit. After the perpetrator fled, the jumpsuit was abandoned in the 200 block of S. Prieur St. in an attempt to change clothing. In addition he was sighted by a witness who saw him remove the jumpsuit before fleeing. The officers recovered the jumpsuit in which a checkstub was found in the pocket, apparently forgotten, by the name ‘Thomas Poree’ which gave the officers a clue to the identity of the suspect. After obtaining personal records from the company involved the officers traced the stub to Thomas Poree who lived in the Lafitte Project at N. 639 Galvez St. and 615 N. Miro St. (N/M DOB 4-15-55. Offs. Johnson and P. Perrien then began searching for Poree finally spotting him within three hours of the robbery at the intersection of Orleans and N. Prieur Sts. Poree was taken into custody and brought back to the scene where he was positivly (sic) identified by the victim. Later two additional witnesses also posi-tivly (sic) identified Poree as the perpetrator. The arrested subject was then charged at CIU with RS 14 Art. 64 Rel. to Armed Robbery $400.00.
“Through a conversation with Poree prior to booking, the officers believe the stolen money and change of clothing along with the weapon are stored in Poree’s Project apt. It is respectivly (sic) requested that a search be warranted of Poree’s residence in order that any and all evidence and stolen property may be recovered to aid in the prosecution of Thomas Poree for Armed Robbery.”

The shorts and loaded revolver were found in the bedroom at 639 N. Galvez Street, approximately two blocks from the place Poree was arrested, and eight to ten blocks from the scene of the crime. Just over two hours elapsed between the robbery and Poree’s arrest. The money was never recovered.

Poree contends correctly that the allusion in the affidavit to a conversation between him and the police is insufficient to establish probable cause to search his residence. The facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit. LSA-C.Cr.P. art. 162; State v. Wells, 253 La. 925, 221 So.2d 50 (La., 1969); State v. Daniel, 373 So.2d 149 (La., 1979); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Since the contents of the officers’ conversation with Poree are not contained in the affidavit, that conversation cannot provide probable cause. However, the remaining facts in the affidavit support a reasonable belief that the items might be found at Poree’s residence.

Probable cause exists when facts and circumstances, within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Turnipseed, 362 So.2d 486 (La., 1978); United States v. Chester, 537 F.2d 173 (5th Cir. 1976); United States v. Damitz, 495 F.2d 50 (9th Cir. 1974).

The affidavit must show a sufficient nexus between the items to be seized and the place to be searched. Without direct observation, the appropriate connection may be manifested by the type of crime, the nature of the items sought, the extent of opportunity for concealment, and normal inferences as to where a criminal would be likely to hide the instrumentalities and fruits of the crime. United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970).

The items sought — a handgun, clothing, money, and a money bag — are objects which one might' expect to find at a person’s residence. Poree’s residence is close to the sites of the crime and his arrest; there was ample opportunity for him to return home after the crime, change clothes, and hide these items. United States v. Morris. The affidavit, taken as a whole, contains sufficient facts to support a reasonable determination that probable cause existed to search defendant’s residence. See State v. Baker, 389 So.2d 1289 (La., 1980); State v. Guidry, 388 So.2d 797 (La., 1980); United States v. Bowers, 534 F.2d 186 (9th Cir. 1976).

Although the affidavit for the warrant lists two separate residences for Poree, the record contains only one search warrant and it is for the Galvez Street address. The testimony taken at trial also does not indicate that any other search warrants were issued or that the Miro Street residence mentioned in the warrant was searched. However, in oral argument before this court and in supplemental briefs, it was suggested that a separate search warrant had been issued for the Miro residence. Defendant presented the additional argument that separate search warrants can not issue on the basis of one affidavit.

If there is adequate probable cause for the search of each place, and the places to be searched and the things to be seized are adequately described, the general rule in the United States is that a single warrant may authorize the search of two or more places which are owned by or under the control of the same person, even if they are not physically adjacent to one another. Williams v. State, 95 Okl.Crim. 131, 240 P.2d 1132 (1952); Brown v. State, 239 Ind. 358, 157 N.E.2d 174 (1959); State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969). A “separate warrant for each suspected place to be searched is not called for either by the letter or the spirit of the constitution, nor requisite for the protection of the public peace, or individual security. To require it would occasion useless delay and expense, and tend to defeat the salutary objects of the law.” 2 W. Lafave, “Search and Seizure: A Treatise on the Fourth Amendment”, Section 4.5(c), p. 83 (1978), quoting Williams v. State, supra. See also United States v. Olt, 492 F.2d 910 (6th Cir. 1974). If one affidavit is sufficient to search several places under one warrant, certainly one affidavit is sufficient for a search of several places under separate warrants. Even if there had been authorization to search both residences and it was later determined that probable cause existed only as to one, the warrant could be upheld as to the residence for which probable cause existed. People v. Hansen, 38 N.Y.2d 17, 377 N.Y.S.2d 461, 339 N.E.2d 873 (1975).

There was probable cause to search defendant’s residence for evidence of the armed robbery; the single affidavit could support a search of both residences, under one or separate warrants. Appellant has requested that we review the record for errors patent; there are none.

For the foregoing reasons, the conviction and sentence of Thomas Poree are affirmed.

AFFIRMED.

CALOGERO, J., concurs in part, dissents in part and assigns reasons.

DENNIS, J., concurs in part with reasons and dissents in part for reasons assigned by CALOGERO, J.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it affirms defendant’s conviction, but dissent from the affirmance of the sentence and feel that the case should be remanded and defendant resentenced.

In the present case, defendant was sentenced to 198 years imprisonment as a second offender. While defendant did not contest his sentence in his assignments of error, he did request that this Court review the record for any errors patent, that is, any errors “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920(2). The imposition of an illegal sentence is such an error [State v. Alexander, 362 So.2d 775 (La. 1978); State v. Delaney, 359 So.2d 976 (La. 1978); State v. Lindsey, 351 So.2d 1178 (La. 1977)], and therefore, the legality of defendant’s sentence is subject to our review.

Under La. R.S. 15:529.1(A)(1), where a person is prosecuted as a second offender and “the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest possible term and not more than twice the longest term prescribed for the first conviction.” In State v. Delaney, supra, we held that 99 years imprisonment did not exceed one’s natural life. Therefore, in a case like the present one, where the defendant is convicted of armed robbery which carries a 99 year maximum sentence, under this provision he is exposed to a maximum 198 year sentence, “twice the longest prescribed for the first conviction.” Although this section of the statute seems rather clear, the problem becomes evident when we view this sentencing provision along with the other provisions of the statute, particularly the sentencing provision for a fourth offender.

When a person is prosecuted as a fourth offender, under La. R.S. 15:529.1(A)(3), he “shall be sentenced . . . for a determinate term .. . but in no event . . . more than his natural life.” It was determined in State v. Alexander, supra, that a sentence of 100 years “clearly exceeds” one’s natural life. Therefore, a person convicted of armed robbery and prosecuted as a fourth offender is only exposed to a maximum life sentence (of less than 100 years). This is in contrast to the exposure of a second offender, to 198 years. Clearly such a result could not have been intended by the Legislature.

In reviewing the entire statute, it appears that in adopting this statute the Legislature never intended that it should apply to persons convicted of armed robbery. Each section of the statute pertaining to the enhancement of penalties for second, third or fourth offenders provides that the statute is only applicable to felonies “that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life.” La. R.S. 15:529.1(A)(1), (2), and (3). The maximum penalty for armed robbery is 99 years (La. R.S. 14:64), arguably more than the offender’s “natural life”, and, therefore, not covered by this statute. To hold otherwise leads to the irrational result referred to above, where a second offender convicted of armed robbery can be sentenced to 198 years, while a fourth offender can be sentenced to no more than 99.

To resolve this incongruity in the law, either this statute should not be applied to armed robbery, or the maximum limit of 99 years imprisonment for fourth offenders should also apply to second offenders. As the statute presently is applied, permitting the imposition of 198 years imprisonment for a second offender and limiting a fourth offender’s exposure to only 99 years imprisonment, it is unconstitutionally excessive, failing to provide any rational gradation of punishment in relation to the gravity of the offense or the recidivism of the offender. (See, State v. Terrebonne, 354 So.2d 1356 (La. 1978), Tate, J. and Dennis, J. concurring.

For the foregoing reasons, I concur in the affirmance of defendant’s conviction but dissent from the affirmance of the sentence.

       Judges Frederick Stephen Ellis, Morris A. Lot-tinger, Jr., and Eleven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.

      . A search of defendant’s residence for a handgun, clothing and money — evidence of an armed robbery — was upheld in United States v. Morris, 491 F.Supp. 222 (S.D.Ga., 1980), where defendant’s residence was near the crime site.

      . See LSA-C.Cr.P. art. 162; LSA-Const. art. I § 5.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Roger S. BOURGEOIS.
    No. 81-KA-0588.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., W. C. Douglas Friederi-chsen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Michael S. Fawer, E. Sue Bernie, and Matthew H. Greenbaum, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Roger S. Bourgeois, pleaded guilty to possession of cocaine with intent to distribute, a violation of R.S. 40:967(A), and was sentenced to 15 years at hard labor. Bourgeois appeals his conviction claiming that the trial court erred in its refusal to grant a motion to withdraw his guilty plea and that the reasons given in imposing sentence were inadequate.

Special Agent Ray Egan of the Drug Enforcement Administration in New Orleans was informed by the Dade County Sheriff’s Office in Miami that one of their officers had spoken to Bourgeois at the Miami airport. At that time, defendant appeared to be nervous and gave conflicting responses when questioned. Bourgeois then checked his suitcase at the ticket counter and it was placed on a plane bound for New Orleans. Egan was given a complete and accurate description of the suitcase and its check claim number. Because of heavy fog, planes were delayed and re-routed, and neither Bourgeois nor his suitcase could be located that night.

The next day, Egan was informed that the defendant would be arriving in New Orleans at 5:00 p. m. Defendant’s suitcase arrived at 2:00 p. m. and a police dog, trained in sniffing for narcotics, signalled the presence of drugs in the suitcase. When the defendant arrived, he proceeded to the baggage area. He remained standing at the exit door looking nervously in all directions. Despite the fact that the suitcase came around the conveyor belt twice, the defendant made no attempt to retrieve it. Suddenly, the defendant turned and ran through the exit door. He was pursued and stopped in the parking lot by Officer Egan.

Egan advised the defendant of his Miranda rights and took Bourgeois and the suitcase to a third floor office used by the Sheriff’s Department. Though Bourgeois had denied ownership of the suitcase, he decided to cooperate and sign a consent to search form when Egan began preparing an application for a search warrant. The suitcase was opened and found to contain 44 grams of cocaine, several other drugs and some clothing.

Bourgeois, pursuant to a plea bargain agreement, pleaded guilty to possession of cocaine with intent to distribute and was sentenced to 15 years at hard labor. On appeal, this Court affirmed his conviction but remanded the case because the trial judge failed to give reasons in imposing sentence as required by C.Cr.P. art. 894.1. On remand, Bourgeois moved to withdraw his guilty plea claiming that the underlying facts failed to establish his possession of cocaine. The trial court denied his motion and provided reasons to support the 15 year sentence. Defendant again appeals to this Court claiming that the trial judge arbitrarily denied his motion and failed to state for the record the factual considerations taken into account in imposing sentence.

Assignment of Error Number 1

Defendant argues that it was error by the trial court to deny his motion to withdraw his guilty plea. The trial court concluded that it would be improper to consider the motion because Bourgeois’ sentence had not been vacated by this Court. State v. Banks, 383 So.2d 1009 (La.1980). Though our earlier remand of this case did specifically vacate the sentence imposed we find no error in the trial court’s denial of the motion to withdraw the guilty plea.

C.Cr.P. art. 559 provides that the court may permit a guilty plea to be withdrawn at any time before sentencing. This Court has consistently held that discretion to permit withdrawal of a guilty plea is vested in the trial judge. However, that discretion cannot be exercised arbitrarily and abuses of discretion can be corrected on appeal. State v. Frank, 391 So.2d 1133 (La.1980); State v. Compton, 367 So.2d 844 (La.1979). Based on the facts of this case, the trial court’s denial of the motion to withdraw the guilty plea was not an abuse of discretion.

Bourgeois attempted to withdraw his plea because he claimed there was no evidence that he actually possessed cocaine while in Louisiana. But, it is well-settled that a guilty plea by its nature admits factual guilt and relieves the state of the necessity to prove it by a contested trial. State v. Crosby, 338 So.2d 584 (La.1976).

There is no argument by Bourgeois that his plea was not knowingly or voluntarily made, nor does he argue that the state breached the plea bargain agreement. Bourgeois does not claim lack of notice as to the nature of the charge against him nor does he claim that the plea is constitutionally infirm for any other reason. Accordingly, this assignment of error lacks merit.

Assignments of Error Numbers 2 and 3

Bourgeois claims that the trial court failed to follow the sentencing guidelines found in C.Cr.P. art. 894.1 and imposed an excessive sentence.

The maximum sentence for a violation of R.S. 40:967(A) is imprisonment for 30 years at hard labor and a fine of $15,000. Thus, the defendant’s sentence of 15 years at hard labor falls within the statutory limits. This Court has held, however, that a sentence within the statutory limits may be reviewed for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). The reasons given by the trial court in imposing sentence are an important aid to this Court when reviewing a sentence complained of as excessive. Sepulvado, supra. Under art. 894.1, the trial judge must state for the record the considerations taken into account and the factual basis for his conclusions in imposing sentence in order to insure that each sentence imposed is individualized to the offender as well as to the offense. C.Cr.P. art. 894.1; State v. Little, 377 So.2d 332 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978). As stated in Jackson, the trial judge ought to consider such factors as:

“. . . the defendant’s personal history (e.g. age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant’s prior criminal record; the seriousness of the crime, the circumstances of the offense, the likelihood that defendant will commit another crime, and his potential for rehabilitation through correctional services other than confinement.”

On remand, an extensive hearing was conducted by the trial judge, at which time mitigating circumstances were heard. Lionel Bourgeois, the defendant’s father, testified that his son’s behavior was partly occasioned by his separation from his family. He also stated that defendant was deeply humiliated as a result of his conduct, that his son wished to correct any errors which he may have made in the past, and that he was presently trying to improve himself. To combat his drug problem, Bourgeois sought professional guidance. He has seen a therapist and has undergone intensive counseling at DePaul Hospital. The father expressed the utmost concern for his son’s future. To provide a stable and supportive environment for his son, Lionel Bourgeois offered the defendant residence in the family home in the event he was given a probationary sentence.

To this testimony, the trial judge responded that “Defendant’s paternal parent had established an enviable record with regard to his own life, but defendant’s father was not involved in this case.” Concerning the defendant’s personal background, the trial judge further stated, “I think that because of the fact that he has had such an imminently good family where he came from, it’s even less reason why he should become involved in narcotics, not more.” Thus, it is evident that the trial judge discarded the defendant’s family background and their desire to support their son during his probationary period. Further, the judge found that such a background was a lessor excuse for defendant’s conduct and that he was more deserving of punishment.

The trial judge concluded that it was likely that the defendant would commit another crime in the future, that the defendant is in need of a custodial environment and that a lesser sentence would deprecate the seriousness of the crime.

With regard to the likelihood that defendant would commit another crime, and the observation that defendant is in need of a custodial environment, the trial judge disregarded that this was the defendant’s first conviction and referred to the fact that Bourgeois had been arrested on three previous occasions for drug-related offenses. Concerning this, he stated, “While it is true the defendant was acquitted of some of the charges, the rap sheet does not indicate that there were any dispositions on several of the others, but the fact remains that Mr. Bourgeois has a very long history involving drugs.” Thus, it may be concluded that the trial judge, because of defendant’s past involvement with drugs, believed that there was an undue risk that during the period of suspended sentence or probation, defendant would commit another crime.

With regard to the conclusion that a lesser sentence would deprecate the seriousness of the crime, the trial judge noted that the present guilty plea was taken in consideration of a plea bargain agreement in which two other charges were dropped. These charges dealt with Bourgeois’ possession of the seven dilaudid tablets and one ounce of liquid methadone. However, we believe that the trial judge did, in fact, consider an inappropriate factor, namely, the rampant distribution of narcotics in the community. In his reasons for sentence, the trial judge stated:

“. . . It is difficult for children to escape the association of people who are attempting to pass drugs to these children and get even their lunch money, in gram-mer (sic) schools, elementary schools, high school, college campuses, in fact, even in this very Court.”

The amount of cocaine found in defendant’s suitcase at the time of his arrest was no more than IV2 ounces. Although defendant did plead guilty to possession with intent to distribute, the small amounts would seem to be more consistent with amounts for his own personal consumption.

The trial judge was in possession of a pre-sentence investigative report outlining the defendant’s social history with a recommendation that, although the defendant presented a high-risk case for probation, his first offender status merited probation consideration. The parole-probation officer concluded his report by recommending that Bourgeois undergo counseling sessions and voluntary service through community organizations. The judge rejected this recommendation in favor of defendant’s incarceration, evidently believing that a lesser sentence would deprecate the seriousness of the crime.

Thus, because the record indicates that the trial judge was aware of and considered the mitigating circumstances, a remand for compliance with C.Cr.P. art. 894.1 is unnecessary. State v. Day, 391 So.2d 1147 (La.1980). Rather, we consider the issue of whether the trial judge abused his sentencing discretion based on the record and on the reasons stated in pronouncing sentence.

In light of the facts of this case and the mitigating circumstances present, we are of the opinion that the trial judge abused the vast discretion accorded him in performing his sentencing function.

The record reveals that Bourgeois is a first offender. He has not engaged in the use of drugs since his arrest, approximately 2V2 years ago. Defendant’s family has offered him support and assistance. Bourgeois’ commitment to rehabilitation demonstrates a change of character which decreases the need for a custodial environment and lessens the conclusion that he will be involved in future criminal activity. The trial judge’s characterization of all children who may eventually receive drugs as victims of defendant’s crime was an inappropriate factor to consider. By concentrating on the pervasiveness of drugs in society, the trial judge failed to impose an individualized sentence.

With regard to violations of the controlled dangerous substance law, C.Cr.P. art. 893 provides that the court may suspend the imposition or execution of sentence for first offenders, where suspension is allowed under law, if it would be in the best interests of the public or defendant. Considering all the facts and circumstances of this case, including the pre-sentence investigation report, we are of the opinion that a sentence of 15 years at hard labor is not in the defendant’s, nor the public’s best interest.

Consequently, even though the sentence imposed was within the statutorily defined range, we find it to be grossly out of proportion to the severity of the crime and nothing more than a needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

Accordingly, the defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside and the case is remanded to the trial court with instructions to the trial judge to sentence the defendant in accordance with law.

       Judges Wallace A. Edwards, Remy Chiasson and Elmo E. Lear of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . C.Cr.P. art. 894.1 provides:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if: (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      “B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation: (1) The defendant’s criminal conduct neither caused not threatened serious harm; (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm; (3) The defendant acted under strong provocation; (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; (5) The victim of the defendant’s criminal conduct induced or facilitated its commission; (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained; (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime; (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur; (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime; (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      “C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” Added by Acts 1977, No. 635, § 1.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Gerald T. KERSEY.
    No. 81-KA-0760.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
    Richard C. Goorley, Monroe, for defendant-appellant.
   CALOGERO, Justice.

Gerald T. Kersey was indicted by the Ouachita Parish grand jury for the crime of negligent homicide, a violation of La.R.S. 14:32. On October 3 and 4, 1980, he was tried before a six member jury and found guilty as charged. Thereafter, he was sentenced to five years at hard labor. He appeals from his conviction and sentence on the basis of five assignments of error, four of which are argued. We find none of them meritorious.

On April 5, 1980, at about 3:43 A.M., the Monroe Police Department checked the report of a black man lying in a lane of traffic on South 10th Street. Upon reaching the scene, the officers found a man lying semi-conscious in the street. It appeared to the officers that the man had been hit by a car. He was severely injured, and he was taken to the hospital. At approximately 6:00 A.M., a Louisiana State Trooper, B.B. Lewis, noticed a damaged automobile parked six blocks from the location where the injured man was found, at a residence on South 10th Street. At that time, the trooper and two police officers awakened the occupants of the residence to inquire as to the ownership of the damaged automobile. A woman answered the door and responded that her son, Gerald T. Ker-sey, owned the car. He was summoned to the door, advised of his Miranda rights, and questioned. He was arrested for negligent injury. However, after the victim died three days later, he was charged anew, this time with negligent homicide.

The North Delta Crime Laboratory positively identified blood, hair, and clothing samples that were removed from defendant’s car as having identical characteristics as the victim’s. Positive comparisons were also made between paint and glass samples taken from the victim’s clothes and the crime scene, and the paint and glass taken from defendant’s car. Defendant admitted driving the car home that morning from a nightclub and that he had been drinking heavily. The block of South 10th Street where the victim was found was on the route defendant took from the nightclub to his home. There were no eyewitnesses to the accident and defendant denied having any knowledge of having been involved in an accident. After trial, defendant was found guilty of negligent homicide and sentenced to five years imprisonment at hard labor.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

By these assignments of error defendant argues that the trial court erred in denying his motion for a new trial based on the contention that the verdict was contrary to the law and evidence. More particularly, defendant contends that there was no evidence of criminal negligence, nor of defendant’s driving the vehicle in question at the time of the accident.

La.R.S. 14:32 provides:

“Negligent homicide is the killing of a human being by criminal negligence.
“The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
“Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.”

To establish criminal negligence the state must prove that defendant’s conduct evidenced “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

Defendant argues that there was only proof of ordinary negligence as opposed to criminal negligence. Defendant contends that the circumstantial evidence produced by the state was insufficient to support a finding of criminal negligence and/or a finding that he was driving the vehicle at the time of the accident.

This Court has recently addressed the question of the sufficiency of evidence necessary to support a conviction where the evidence is only circumstantial in State v. Austin, 399 So.2d 158 (La.1981) and held that under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) “. . . when we review a conviction based on circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.”

Concerning the issue of whether there was sufficient proof that defendant was driving the car at the time of the accident, the evidence established the following:

The victim was found lying semi-conscious in the street at 1004 South 10th Street, at approximately 3:43 A.M. He was bleeding profusely as his legs were almost severed. It appeared from the severity of the wounds and the scattering of his clothing articles that he had been hit by a motor vehicle. At the scene of the accident, the officers found pieces of windshield wiper blades that later proved to be the type used on a 1979 Ford Mustang automobile.

A damaged 1979 Mustang was located six blocks away at 1615 South 10th Street. Its front windshield was heavily damaged, the hood had scuff marks on it, the right front bumper area was damaged, blood and hair were on the surface of the car and clothing patterns were on the chrome of the windshield. The blood and hair were scientifically identified, the blood as human and the hair as having Negroid characteristics. The clothing pattern matched the pattern of the victim’s clothes. The paint smears on the victim’s shoes and the glass taken from the victim’s clothes were analyzed and found indistinguishable from the paint and glass of the Mustang. The foregoing scientific evidence was supported by the testimony of Mr. Ray Heard, criminalist and supervisor of the Northwest Louisiana Criminalistics Laboratory.

At about 6:30 A.M. on the morning the victim was found, three officers went to the residence where the damaged Mustang was located. The defendant’s mother answered the door and upon being asked who the Mustang belonged to, responded that it was her son’s, the defendant. She told the officers that her son was inside the house asleep. She was asked to go and get him, which she did. When defendant appeared he produced a valid driver’s license and admitted that he owned the Mustang. At that point defendant was informed of his rights. Thereafter, upon questioning, the defendant admitted that he had driven the Mustang earlier that night. He stated that he had been at a nightclub where he had been drinking “quite heavily” and that he had left the nightclub alone and driven the Mustang home. He stated that he left the nightclub sometime after midnight and in driving home he took a route that passed the location where the victim was found. He further stated that he had not allowed anyone else to use his car that night and that no one else had keys to the car. His keys were in his room and the car was parked outside and locked at 6:30 A.M. when the officers approached his house.

In proving that defendant was criminally negligent, the state introduced the testimony of the officers that were at defendant’s house the morning of the incident. They testified that defendant still looked groggy and smelled of alcohol. Defendant admitted that he drove his car home on the night in question after having been drinking “quite heavily”. In their investigation of the scene of the accident, the officers noted that there were no skid marks or debris, indicating that the vehicle that hit the victim had not tried to either swerve or brake. Finally, the victim was left in the street, critically injured, after being struck by the Mustang.

The question presented for our determination is whether a rational trier of fact could conclude that the foregoing evidence excludes every other reasonable hypothesis than that the accused was the driver of the vehicle that hit the victim and that he was criminally negligent in doing so. We find that a rational trier of fact could do so.

The evidence establishes that the victim was struck by defendant’s Mustang and that no one else but defendant had driven the Mustang on the night in question. The evidence also supports a finding of criminal negligence in that defendant was driving the vehicle after drinking quite a bit, he made no attempts to swerve or brake and he did not stop after hitting victim in order to render aid. Therefore, we find that there was sufficient evidence to enable a rational trier of fact to conclude, beyond a reasonable doubt that no one but defendant could have caused the victim’s injuries and that he was criminally negligent since his conduct evidences “such a disregard of the interest of others that [it] amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

ASSIGNMENT OF ERROR NUMBER FOUR

By this assignment of error, defendant argues that “the trial court erred in overruling and denying defendant’s motion for a mistrial based on the prosecutor’s statements in closing argument dealing with defendant’s failure to testify and not giving a statement while under arrest at the police station.” In brief to this court, defendant also argues that the prosecutor erroneously elicited testimony concerning defendant’s post-arrest silence. We will discuss this latter point first.

During the trial, the prosecutor questioned one of the arresting officers as follows:

“Q. All right. Did he cease talking at this point?
“A. Yes Ma’am.
“Q. All right. Did he give any further statements or did he assert his right to remain silent at this point?
“A. He asserted his right — . .. . ”

At this point defense counsel objected to the questioning arguing that reference to defendant’s post-arrest silence violated his constitutional rights. The objection was overruled but the trial judge admonished the jury that no significance should be attached to a person’s assertion of his right to remain silent.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that because an accused’s post-arrest silence is “insolubly ambiguous” and a jury is apt to draw inappropriate inferences from the fact that a defendant chose to remain silent, “. . . the use for impeachment purposes of petitioner’s silence at the time of arrest and after receiving Miranda warnings, violated the Due Process clause of the Fourteenth Amendment.” In State v. Montoya, 340 So.2d 557 (La.1976), this Court held that the decision in Doyle also applied to instances where a defendant did not take the stand. It was noted therein that “there is even less justification . . . for the state to call attention to his silence at the time of arrest than there is in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, Montoya held that it was reversible error for the prosecutor to elicit testimony from the arresting officer concerning defendant’s post-arrest silence.

In this case, however, the reference to defendant’s post-arrest silence does not appear to be for the purpose of simply calling the jury’s attention to it or having the jury make an inappropriate inference. When the objected to questioning is read in context with the rest of that officer’s testimony, it is clear that the reference was made in an attempt to show that the entire statement made to the officers had been provided to the jury. According to the witness police officer, defendant was advised of his Miranda rights and then willingly answered a succession of questions. He made some statements that were exculpatory and some that were inculpatory in effect. The reference to defendant’s post-arrest silence arose at the close of the officer’s testimony and was more a way of exploring how the interrogation was concluded than an effort to call attention to the silence.

Also, defendant’s post-arrest silence did not remain “insolubly ambiguous”. Doyle v. Ohio, supra. There was testimony presented which indicated that defendant answered all the officer’s pertinent questions including the fact that he did not know how the damage to his ear had occurred. He told the officers that he had left a nightclub sometime after midnight and had driven home along the same route where the victim was found. He admitted that he had been drinking at the nightclub during the evening and that he left the nightclub alone. But he stated that he had not been involved in an accident on his way home and that he did not know how the damage to his car had happened. Thus, it was more reasonable for the jury to infer that the defendant was not, rather than that he was, avoiding giving incriminating admissions when he invoked his right to remain silent.

For the foregoing reasons and notwithstanding that the interrogation came dangerously close to offending defendant’s significant constitutional right to remain silent, we feel that the defendant was not prejudiced by this reference to his post-arrest silence and a reversal of the conviction because of the reference is not warranted.

Additionally, however, reversal of the conviction would not be the proper remedy in this case because defense counsel did not make a motion for a mistrial at the time the improper questioning occurred. Defendant’s objection to the district attorney’s question followed not only the question, but also the response to the question by the police officer. Therefore, the questionable remarks had already been made and the jury exposed to the fact that the defendant did at some point assert his Fifth Amendment right to remain silent. Sustaining the objection at that point would have done little to purge the answer from the jury’s mind. A sustaining of the objection would have only prevented the prosecutor from pursuing that line of questioning. However, the prosecutor here did in fact desist from that line of questioning after the defense objection. Furthermore, although the trial judge did overrule the objection, he nevertheless admonished the jury not to place any significance on the fact that a person chooses to remain silent rather than answer questions because every person has the right to remain silent. It was incumbent on defense counsel at this point to move for a mistrial if that was the action desired.

Under La.C.Cr.P. art. 771, where the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial judge is required, upon the request of the defendant or the state, promptly to admonish the jury. In such cases where the trial judge is satisfied that an admonition is not sufficient to assure the defendant a fair trial, upon motion of the defendant, the trial judge may grant a mistrial.

In the presént case, defense counsel moved for neither an admonition nor a mistrial. The admonition that was given by the trial judge was unsolicited. Without having made a motion for mistrial, the defendant got all the relief to which he was entitled when the trial judge, while perhaps erroneously overruling defendant’s objection, gave the admonition which he did to the jury. State v. Hamilton, 356 So.2d 1360 (La.1978). To hold otherwise would allow the defendant, after a trial error has been made, to sit back silently and not call the court’s attention to the error at the time when it could be remedied, insuring his right to a reversal on appeal if convicted, but proceeding with the trial in hopes of an acquittal. Such procedural tactics are not permitted. It is for this reason that procedural rules have been devised requiring the offended party to call any error to the judge’s attention at a time when it can be remedied. Then, upon an erroneous ruling by the trial judge, the party has preserved his right to seek relief on appeal.

This procedural posture, coupled with the negligible potential for prejudice discussed above, prompts us to find this argument without merit.

Next, defendant argues that the trial court erred in not granting him a mistrial because of the prosecutor’s comments in his rebuttal argument to the jury.

In his rebuttal argument, the prosecutor said:

“Now, as I told you before, because the defendant left the scene, we can’t prove degree of intoxication. We don’t have a blood alcohol or breath test and, of course, if the defendant had had nothing to hide, he wouldn’t have fled the scene and if the way that this happened was what happened, why didn’t he tell the Officers in April.”

Defense counsel objected at this time and moved for a mistrial. He argues that the trial judge erred in refusing his request because under La.C.Cr.P. art. 770, a mistrial is mandatory upon motion of defendant where reference is made by the district attorney to “[t]he failure of the defendant to testify in his own defense.”

When the above comment is read in context with the rest of the prosecutor’s rebuttal argument, and with the defense argument which the prosecutor was rebutting at the time, it is clear that the prosecutor was not referring to defendant’s failure to testify in his own defense at trial. Nor was he referring to defendant’s post-arrest silence. Rather it was a reference to an inconsistent statement defendant made when questioned by the police officers in April.

Defense counsel in closing argument had suggested among other possibilities that the defendant may have, without gross negligence, struck the victim and fled the scene because he panicked. The district attorney’s argument, in effect, was a rebuttal to defense counsel’s version of the accident, i. e., if the accident happened the way defense counsel is suggesting that it did or might have, then why did the defendant, when he spoke to the police officers in April, state that he had not been involved in an accident at all, rather than that he fled the scene out of fear, if that was what really happened. While it is perhaps true that the prosecutor could have been a bit more careful about the words she chose, the intent of the prosecutor clearly was to refer to the inconsistent statement that the defendant did make rather than to any silence on his part. Of course, since the defendant’s statement that he had not been involved in an accident was properly admitted at trial, such a reference to it was properly within the scope of closing argument by the prosecutor. La.C. Cr.P. art. 774. Therefore, we find no error in the trial judge’s refusal to grant a mistrial based on the prosecutor’s remark.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error defendant argues that the trial court erred in overruling his objection to the introduction of oral statements he made to the officers. He challenges the free and voluntary nature of his statements on the ground that he was intoxicated at the time of the interrogation.

In support of his argument, defendant offers the testimony of Lt. Beckham of the Monroe Police Department who stated that at 6:30 A.M. when defendant was awakened, he did not appear fully alert and did appear to be somewhat groggy. Defendant also relies on the testimony of Trooper Lewis, in support of his argument, who stated that defendant appeared to be still “under the influence.” Trooper Lewis also stated, “If I would have stopped him driving and he appeared as he appeared at that time, I would have advised him of his rights and run him through the process for DWI.” There is no other evidence to support defendant’s argument that he was intoxicated at the time he was interrogated.

The question presented by this assignment of error is whether the above testimony of the officers is sufficient evidence of defendant’s intoxication to support his challenge to the free and voluntary nature of the confession.

This court recently reiterated the standards for introducing a confession into evidence in State v. Robinson, 384 So.2d 332 (La.1980):

“Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights.”

In the instant case, there was uncontro-verted testimony from two police officers, Martin and Beckham, and one state trooper, Lewis, that defendant freely and voluntarily made the statements in the presence of his parents after receiving the proper Miranda warnings. All of these officers testified that although defendant appeared groggy, he seemed to understand his rights. Trooper Lewis also testified that although defendant did appear to have been drinking, he did not notice any physical defects or anything else along that line.

In Robinson supra, this court addressed the issue presented here, a challenge to the voluntariness of a confession on the basis of intoxication, and stated:

“Where the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he was saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Rankin, 357 So.2d 803 (La.1978). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977).”

The trial judge in the instant case determined that the confession was admissible. Since the testimony of the three law enforcement officers supports the judge’s decision, and there is no controverting testimony, the judge’s conclusions should not be overturned.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

By this assignment of error defendant argues that the trial court erred in sentencing defendant to five years at hard labor because the judge did not comply with the guidelines of La.C.Cr.P. art. 894.1 and because the sentence was excessive.

Sentencing began with the trial judge allowing defendant to make a statement. Defendant informed the court that he had placed himself in an alcoholic treatment center after which he entered the Substance Abuse Clinic seeking to overcome his alcohol and drug abuse problem. At this time, he was working part-time for his father’s tax service and part-time for his father-in-law’s service station. The defendant claimed not to have had a drink since the trial in October.

The court listed defendant’s prior convictions: possession of marijuana, 1970, at which time the charge was classed as a felony but the judge gave defendant three years probation; possession of marijuana again in 1973, for which defendant received six months imprisonment; and now the current charge, negligent homicide. The judge read the probation report that defendant had admitted being on alcohol and amphetamines the night of the accident. He noted that defendant’s drug and alcohol abuse covered a ten year period.

The judge noted the seriousness of the crime and found no mitigating circumstances. He decided that, since a man’s life was ended, any sentence less than imprisonment would deprecate the seriousness of the crime. Defendant’s ten year abuse of drugs and alcohol had culminated in the death of another human being such that defendant now needed a period of institutional confinement. Accordingly, the trial court imposed a maximum sentence of five years imprisonment at hard labor.

Defendant alleges that the trial judge did not follow the guidelines of Art. 894.1 and that the sentence imposed was excessive. It has been determined that ex-cessiveness of sentence poses a question of law reviewable under the appellate jurisdiction of this court. State v. Sepuivado, 367 So.2d 762 (La.1979). Sepuivado further states that the trial court must articulate specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial court need not articulate every aggravating and mitigating circumstance presented in 894.1, the record must reflect that it adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). Thus, while the defendant’s sentence here does not exceed the maximum allowed under R.S. 14:32 (five years), the sentence may nonetheless be reviewed to determine if the trial court complied with Art. 894.1 and if it exceeded its discretion in sentencing. As a general rule, a sentence is excessive, “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980).

In the instant ease, the judge did not particularize the history of the defendant. Although he did not articulate every aggravating and mitigating circumstance presented in La.C.Cr.P. art. 894.1, the record reflects that he adequately considered these guidelines, as demanded by the court in State v. Gulden, 399 So.2d 194, 200 (La.1981). He let the record reflect that he considered not only the seriousness of the offense and the past history of the defendant, but also defendant’s personal history, particularly his “. . . potential for rehabilitation.” State v. Molinet, 393 So.2d 721 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978).

The trial court left some gaps in the personal background of the defendant, but nevertheless, the judge’s familiarity with the defendant, coupled with the sufficiently complete record left by the judge, indicates that the sentence in this case was not imposed in an arbitrary manner and is not excessive. State v. Williams, 397 So.2d 1287 (La.1981). This case is defendant’s third conviction over a ten year span which involved drug abuse, and it culminated with the death of another human being. On this record, the maximum penalty, five years, is not disproportionate to defendant’s conduct, nor a clear abuse of the triál court’s broad sentencing discretion. State v. Bonanno, supra; State v. Spencer, supra.

This assignment lacks merit.

DECREE

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

AFFIRMED.

       Judge Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, and Judges Thomas J. Klie-bert and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . It is well settled that this court will not review allegations of error that are not contained in formal assignments of error. While it seems that this argument (that testimony was elicited concerning defendant’s post-arrest silence) was not presented in the assignment of error lodged in the trial court, we prefer to address the issue, giving the defendant the benefit of the doubt that it is covered by Assignment of Error Number Four which is on a similar point and arguably ambiguous, than to deny him appellate review of the issue on this technical ground.

      . As pointed out by this court in State v. Smith, 336 So.2d 867 (La.1976), La.C.Cr.P. art. 770, with its mandatory mistrial provision, does not apply to references to defendant’s post-arrest silence by the prosecutor or by witnesses, but only applies to references to defendant’s failure to testify at trial. La.C.Cr.P. art. 771 is the applicable provision concerning the proper remedy where references are made to a defendant’s post-arrest silence.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Glenn E. COLEMAN.
    No. 81-KA-0772.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Michelle Roberts, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas J. Divens, Gretna, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, Glenn E. Coleman, was charged by a two count bill of information with attempted first degree murder and possession phencyclidine (P.C.P.) with intent to distribute. R.S. 14:27; R.S. 14:30; R.S. 40:967. By separate bills of information, Wendell Miller and Freddie Edwards were also charged with possession of P.C.P. with intent to distribute. After a trial by jury, defendant was found guilty on both counts. He was sentenced to twenty years at hard labor for the attempted murder conviction, and to ten years at hard labor for the possession charge, sentences to run concurrently.

On August 10, 1979, officers of the New Orleans and Gretna Police Departments obtained a search warrant and went to the residence of Freddie Edwards. They knocked at the door and announced their presence. Miller opened the door slightly. Officer Larry Arthur identified himself as a police officer and told Miller that they had a search warrant. Miller then attempted to shut the door but the policemen forced it open. A number of gunshots were fired at the officers. Officer Arthur received a superficial gunshot wound in the abdominal area. Subsequently, defendant, Miller and Edwards were arrested.

The police then proceeded to search the residence pursuant to the search warrant. A plastic bag containing green vegetable matter, later identified as seventy-eight grams of mint leaves with P.C.P., and nine tinfoil packets containing mint leaves with P.C.P. were recovered. A .38 caliber revolver and a 357 magnum were also seized.

Defendant appeals his conviction, asserting five assignments of error.

Assignment of Error No. 1

In this assignment, defendant contends that the trial court erred in allowing two witnesses, Freddie Edwards and Wendell Miller, to invoke the Fifth Amendment privilege against self-incrimination and refuse to answer all questions pertaining to this case.

After the jury had been chosen, Edwards was called to the stand outside of the presence of the jury. Prior to direct examination by defense counsel, the judge asked Edwards if he had been advised of his rights in connection with testifying in the case at bar. Edwards responded in the affirmative. Defense counsel then began direct examination:

“Q. State your name and address.
A. Freddie Edwards, 544 Houma Blvd., now.
Q. What was you (sic) address on August 10, 1978-79?”

At this point, the trial judge interrupted to advise Edwards that if he answered one question about the case he would have to respond concerning the entire case. The judge continued:

“You have the right since you are not charged with this shooting and since you made the statements that you made in connection with this shooting to invoke the privilege of self incrimination under the Fifth Amendment. The question asked you obviously has to do with the address.”

He then asked Edwards what he wished to do and Edwards replied that he “prefer[red] to take the Fifth.”

“You refuse to answer any questions about this case whatsoever under you (sic) right of the Fifth Amendment? Is that what you are telling me?”

Edwards responded yes. Defense counsel then asked the court whether he could continue questioning the witness. On the court’s suggestion, defense counsel stipulated that he would have asked Edwards about the whole case and that Edwards would have consistently invoked the Fifth Amendment privilege.

Following Edward’s invocation of the privilege, defense counsel informed the court that another witness, Wendell Miller, had decided to invoke the privilege after consultation with his attorney. Miller was sworn in and the trial judge asked him whether he had decided to testify. In reply, Miller invoked the Fifth Amendment privilege. The court then instructed defense counsel to ask the first question.

“Q. Mr. Miller, how did that conversation between you and Mr. Hyman begin? A. Well, my lawyer wasn’t there and I just came up to him, just talked to him.
Q. You went up to him?
A. Yes.
Q. Where did you reside on August 10, 1979?
BY THE COURT:
Let me explain this to you. He is now asking you the first question that pertains to the case. If you are going to take the Fifth as you have told me, now is the time to do it.”

Miller then stated that he wanted to take the Fifth Amendment. Defense counsel argued that Miller waived his right by answering the initial question regarding the conversation with Edward’s attorney. The court responded that Miller had invoked the Fifth Amendment and that the court would uphold his exercise of that right. According to the trial judge, defense counsel stipulated that he intended to question Miller on the entire case and that Miller would invoke the privilege throughout the questioning. Defense counsel objected to the ruling. No stipulation, as such, appears in the record as intimated by the trial judge. Defense counsel did indicate to the court prior to Miller taking the stand that he was aware Miller was going to invoke the privilege.

The Fifth Amendment to the United States Constitution reads in pertinent part:

“No person . .. shall be compelled in any criminal case to be a witness against himself.”

This privilege against self-incrimination in the Federal Constitution is embodied in the Louisiana Constitution in the clause: “No person shall be compelled to give evidence against himself.” Article 1, Section 16, Louisiana Constitution (1974). The principle espoused in the Federal Constitution was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653, 661 (1964).

The protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951). As explained in Hoffman:

“The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, . . . and to require him to answer ‘if it appears to the court that he is mistaken.’ ” (Citation omitted). Hoffman, id.

Further, it is well settled that whereas an accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. State v. Wilson, 394 So.2d 254 (La.1981); In re Parker, 357 So.2d 508 (La.1978). Hence, it will be constitutionally required in virtually every case that the witness invoke the Fifth Amendment protection question by question. However, we have recognized certain unique instances where it is evident from the nature of the question and the position of the witness that an answer or explanation of a refusal to answer any question posed could result in an injurious disclosure. See Hoffman v. United States, supra; State v. Darby, 403 So.2d 44 (La.1981); State v. Wilson, supra.

In the instant case, defendant does not explain how testimony of either Edwards or Miller would have aided his defense. Because the FBI agents would be unavailable for trial, their testimony was videotaped beforehand. Full direct and cross-examination was conducted and Edwards’ statements to the agents were read verbatim. This videotape was introduced by the defense at trial. Edwards’ statements were favorable to Coleman in that Edwards admitted firing the shots and declared that Coleman had not handled a firearm at all on the evening in question. Therefore, all exculpatory remarks made by Edwards were put before the jury for their consideration. Although it is true the defendant was denied the right to cross-examine Edwards, defense counsel’s stipulation that the privilege would be repeatedly asserted amounts to a realization that any testimony by Edwards would necessarily be incriminating. Indeed, although Edwards had been convicted on the possession charge, he had not as yet been sentenced. Therefore, his conviction was not final and he was in danger of potential exposure to further prosecution.

Defendant has also failed to prove that he has been prejudiced by Miller’s refusal to testify. There is no indication that any testimony by Miller would have helped defendant’s case. Moreover, Miller’s testimony at Edwards’ trial was also read to the jury at defense counsel’s request. It is undisputed that he merely acknowledged his presence at the residence where the offenses occurred and claimed ownership of the P.C.P. Once again, it appears that the only favorable statement made by Miller, namely, that he owned the drug, was put before the jury. Although Miller pleaded guilty to the charge of possession and sen-fence had already been imposed at the time of Coleman’s trial, it cannot be assumed that he was no longer exposed to prosecution for other crimes arising out of the events on August 10, 1979. Thus, Miller was also place in reasonable apprehension of danger and was justified in invoking the protection of the Fifth Amendment.

Defendant’s first assignment of error lacks merit.

Assignment of Error No. 2

Defendant contends that the trial court committed reversible error in failing to grant his motion to reset trial to a date when witnesses allegedly crucial to his case would be available to testify.

Special agents J. Ronald Hunter and Clifford H. Anderson were subpoenaed by the defense. In his brief, defendant states that he orally advised the court through his attorney that these witnesses would be out of town on the date set for trial and requested that the trial date be rescheduled. Instead, the witnesses’ testimony was preserved by videotape and played to the jury.

Defendant argues that the motion to reset should be treated as a motion for a continuance. Denial of a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Durio, 371 So.2d 1158 (La.1979). No such showing has been made.

This assignment lacks merit.

Assignment of Error No. 3

Defendant argues that the trial court committed reversible error in denying his motion for a mistrial when the prosecutor made purportedly prejudicial and inflammatory remarks during rebuttal argument.

In order to reverse a conviction on the ground that remarks made during the trial were improper, this court must be convinced that the jury was influenced by the remarks and that the remarks contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979). We are not convinced that the remarks complained of, though arguably improper, so affected the jury as to preclude the jurors from reaching an independent decision based upon the evidence.

This assignment lacks merit.

Assignment of Error No. 4

In this assignment, defendant submits that the trial court erred in qualifying Officer Andrew Haab as an expert in the field of packaging, trafficking and distributing P.C.P., urging that Officer Haab had insufficient credentials.

Competency of expert witnesses is a question of fact within the sound discretion of the trial judge, and his rulings on qualifications of experts will not be disturbed unless clearly wrong. State v. Walker, 394 So.2d 1181 (La.1981); State v. Williams, 386 So.2d 1342 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), cert. den. 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). R.S. 15:466 provides:

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

Officer Haab has been a policeman for fourteen years, the last eleven years being spent with the narcotics division. He has participated in the investigation and arrest of persons for possession and distribution of P.C.P. on approximately two hundred fifty occasions. Officer Haab attended the D. E. A. drug school and has qualified as an expert in every section of Criminal District Court in New Orleans, in Baton Rouge, in Jefferson Parish and in federal court. He also worked undercover for three years and carried out several hundred drug purchases from various suspects. In light of his education and practical experience, we find that the trial judge did not abuse his discretion in qualifying Officer Haab as an expert.

This assignment lacks merit.

Assignment of Error No. 5

Defendant objects to the trial court’s curtailment of defense counsel’s examination of Officer Haab, a state witness. Officer Haab testified on direct examination that he participated in the execution of the search warrant and in defendant’s arrest. On cross, the defense sought to elicit the facts upon which the search warrant was obtained, on the theory that the residence listed in the search warrant was not the defendant’s home and thus defendant could not be in possession of items discovered in the refrigerator of that residence. The trial court ruled that the question posed was one of law, and, as such, impermissible.

The ruling of the trial judge as to the scope and extent of cross-examination should not be disturbed in the absence of an abuse of discretion. State v. Eaker, 380 So.2d 19 (La.1980). There is no showing of an abuse of discretion in this instance.

This assignment lacks merit.

Finding no merit in the assignments urged by the defendant, the convictions and sentences are affirmed.

       Judges Remy Chiasson, Wallace A. Edwards and Elmo E. Lear, of the First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Before defendant’s trial commenced, Miller pleaded guilty to the charge of possession with intent to distribute and was sentenced. Edwards was found guilty of attempted possession with intent to distribute; he had not yet been sentenced when defendant’s case came up for trial.

      . The statements referred to by the trial judge were made by Edwards to FBI agents in connection with a claim by Edwards that his civil rights had been violated during the arrest. In the first statement, Edwards admitted shooting a gun toward the door after police started shooting inside the house. In a later statement, Edwards stated that defendant did not handle a pistol at any time during the evening in question and that the only move made by defendant upon commencement of the shooting was to jump behind the sofa.

      . Only Edwards’ statements to the FBI agents are a part of the record. The transcript merely recites that the clerk read Miller’s testimony to the jury; its contents were not included in the transcript. However, both the brief for the state and the defendant’s brief are in accord that this was the substance of Miller’s earlier testimony.

      . No written motion to reset the trial date or to continue the trial appears in the record.

      . The record reveals that defense counsel did not move for a mistrial following the first remark about which complaint is made. We are therefore only concerned with subsequent remarks made by the prosecution which portrayed defendant as a man whose livelihood was dealing in drugs.
      Defendant also objects to the state’s reference to defendant’s failure to show that he did not live at the residence where the drugs were found. Despite defendant’s assertion that this constituted a comment on the defendant’s failure to testify on his own behalf, it is more properly viewed as a reference to the defense’s inability to refute the state’s case. Thus, it was proper argument. See State v. Sims, 346 So.2d 664 (La.1977).


author: KLEES, Justice ad hoc.

text:
    STATE of Louisiana v. Randy JOHNSON.
    No. 81-KA-0971.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dee. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland V. McKneely, Jr., Asst. Dist. Atty., for plaintiff-appel-lee.
    Ford E. Stinson, Jr., Benton, Steven G. McKenzie, Asst. Indigent Defender, Bossier City, for defendant-appellant.
   KLEES, Justice ad hoc.

Defendant Randy Johnson was charged by bill of information with armed robbery, in violation of La.R.S. 14:64. Initially defendant pleaded not guilty, but after a plea bargain was reached with the state, he withdrew his former plea and entered a plea of guilty as charged. The trial judge accepted the plea and ordered a pre-sen-tence investigation report. Prior to sentencing, on March 3, 1981, defendant filed a motion to withdraw his guilty plea. On the same day, the motion to withdraw his guilty plea was heard and denied. Defendant was sentenced to serve twenty years at hard labor without the benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction and sentence on the basis of three assignments of error.

The following facts were adduced from the plea hearings and the sentencing proceeding:

On January 10, 1978, at approximately 6:30 P.M., defendant approached the service station of Gibson Discount Store in Bossier City. Defendant wore a ski mask and was armed with a .22 revolver. He pointed a gun at the attendant, James T. Ayres, and told him that if he did not open the door he was going to blow his head off. The attendant gave the defendant the money. Defendant ran away from the station, went to the Holiday Lanes, and there called a cab. The police responded to the robbery, stopped the cab and arrested the defendant. The ski mask and revolver were recovered from the cab, and a search of the defendant uncovered the money taken from the service station, in his groin area, wadded up in toilet tissue. Defendant was taken back to the service station, where he was identified by eyewitnesses to the robbery. At the police station, defendant was questioned by Sergeant Charles Duncan. Defendant stated that he committed the robbery because he needed money to buy heroin for his $250.00 per day habit.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By these assignments, the defense contends that the trial court erred in: (1) denying defendant’s motion to withdraw his guilty plea; and (2) failing to appoint defendant new counsel to represent him at the hearing on the motion to withdraw his guilty plea, when one of the grounds for withdrawal was that his attorney had intimidated him into pleading guilty.

DENIAL OF THE MOTION TO WITHDRAW GUILTY PLEA

Defense counsel argues in brief that defendant should have been allowed to withdraw his guilty plea after he testified that his plea was the result of constant intimidation by his former counsel and the district attorney.

The relevant facts surrounding the plea bargain agreement and defendant’s subsequent motion to withdraw the guilty plea are as follows:

On February 27, 1978, defendant appeared in court for arraignment, represented by counsel. The defendant, again represented by counsel, appeared in court on March 30, 1978 for trial; twelve jurors were drawn and sworn and the case was adjourned until the next day. On the next day, defendant failed to appear before the court. The property bond was forfeited and a bench warrant was issued for defendant’s arrest. Defendant was apprehended two years later. The case was set for trial on September 22, 1980. On August 26, 1980, defendant appeared in court represented by the Indigent Defender Board. Defense counsel filed a motion to withdraw as counsel of record and the trial judge gave defendant until September 2, 1980 to enroll new counsel of record. Because defendant was unable to retain counsel, the Indigent Defender Board was re-appointed. On November 17, 1980, defendant and his attorney spoke to the District Attorney. A plea bargain was discussed but not reached whereby in return for the guilty plea, the defendant would not receive a sentence of more than twenty years and the District Attorney would not file a multiple offender bill. The case was called for trial and ten prospective jurors were selected and seated. At that point, defendant withdrew his plea of not guilty and entered a plea of guilty as charged. The trial judge accepted the plea and delayed sentencing, pending a pre-sen-tence investigation report. On March 3, 1981, defendant appeared in court and moved to withdraw the guilty plea. It was argued and denied. Defendant was then sentenced. On March 17, 1981, defendant appeared in court represented by an attorney with the Indigent Defender Board who moved that the Indigent Defender Board be withdrawn as counsel of record. The motion was argued and granted. The trial judge then appointed Ford Stinson, Jr., to represent defendant on appeal.

At the hearing on the motion to withdraw the guilty plea, defendant testified under direct examination by defense counsel, that his attorney had told him he “had better enter into the plea bargain because if he did not plead guilty, he would be found guilty and might not ever get out of jail.” He testified that the District Attorney told him in the presence of defense counsel that based on the witnesses and defendant’s admitting the commission of the crime, he would be found guilty if he went to trial. Defendant further testified that he did not enter his guilty plea until “after he was intimidated by all of you, everybody in this courtroom, everybody in this whole jail system. Threats.”

The District Attorney, Henry Brown, Jr., with whom the plea bargain was entered, was called by the state to testify at the hearing. He stated that defendant and his attorney had requested to speak to him the morning of the trial. He stated that defendant began telling him that he was set up by one David Johnson and he did go to the scene, but someone was supposed to help him who worked at the store. The District Attorney stated that he informed defendant that he could tell his story to the jury, that as far. as he was concerned that he would have to go to jail. He further testified that he informed the defendant and his attorney of the evidence against the defendant and of what the witnesses would testify to. The District Attorney stated that it was not until the jurors were seated and were about to be questioned on the voir dire examination that defendant informed his attorney that he wanted to plead guilty.

La.C.Cr.P.Art. 559 provides that the court may permit a plea of guilty to be withdrawn at any time before sentencing. This Court has consistently held that discretion to permit a guilty plea to be withdrawn is vested in the trial judge. That discretion, however, cannot be exercised arbitrarily and abuse of discretion can be corrected on appeal. State v. Franks, 391 So.2d 1133 (La.1980); State v. Banks, 383 So.2d 1009 (La.1980).

In denying defendant’s motion to withdraw his guilty plea, the trial judge relied on defendant’s reason for alleging intimidation and his colloquy with defendant prior to accepting his plea. He stated that defendant had not made a sufficient showing of anything that would warrant a withdrawal. of his plea. He further stated that he had given defendant every opportunity to tell the court if there was any intimidation, threat, force, or coercion prior to accepting his plea, and defendant had responded that there was none.

It is apparent to us that the trial judge did not abuse his discretion in denying defendant’s motion to withdraw his guilty plea. An examination of the record of the guilty plea reveals a conscientious and meticulous effort on the part of the trial judge to explain the rights waived, the possible consequences, and to determine the voluntariness of defendant’s plea.

Moreover, defendant’s testimony shows not that he was intimidated, but that he properly and thoroughly was advised by defense attorney that it was more than likely he would be found guilty after trial. Also, the “intimidation” that defendant claims was present, appears to have resulted not from the actions of defense counsel or of the District Attorney, but rather by the overwhelming evidence against defendant and his choice between two undesirable alternatives. See, State v. Beatty, 391 So.2d 828 (La.1980).

Under the circumstances, the trial judge properly denied defendant’s motion to withdraw his guilty plea.

FAILURE TO APPOINT NEW COUNSEL

Defense counsel urges that the trial court erred in failing to appoint defendant new counsel to represent him at the motion to withdraw his guilty plea. Counsel argues that because defendant sought to withdraw his guilty plea based on an allegation that the attorney who represented him had intimidated him into entering the guilty plea, the trial court should have appointed defendant new counsel for the hearing of the motion. Defense counsel also argues that the trial judge should have realized from the outset of the hearing that a conflict existed between defendant and his then attorney.

As a general rule, this Court has held that an attorney laboring under an actual conflict of interest, cannot render effective legal assistance to the defendant he is representing. State v. Franklin, 400 So.2d 616 (La.1981). If a criminal defendant is represented at trial by an attorney not merely appointed or retained, who labors under an actual and not merely a potential conflict of interest, the defendant has been denied effective assistance of counsel as a matter of law; and, unless he has knowingly waived his Sixth Amendment right to conflict free representation, reversal is automatic. No prejudice need be shown. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).

In the instant case, defendant’s then attorney was placed in an uncomfortable position by his client, however, this does not seem to be the type of actual conflict contemplated by the above cited authorities. Defendant’s allegation, if based on specific instances of intimidation, or substantiated in any way, would have been grounds for allowing him to withdraw his guilty plea and proceed to trial represented by another attorney. Defendant’s assertions of misconduct, however, are nothing more than an attempt to further delay his sentence. As stated above, defendant’s only allegation against his attorney was that he repeatedly advised him that the best course of action would be to plead guilty by way of a plea bargain with the State — advice that was properly given in light of the abundance of evidence against defendant.

Defense counsel allowed defendant to take the stand and give his testimony of what he considered intimidation. He also thoroughly cross-examined the District Attorney concerning his conversations with defendant. When the trial judge denied the motion, defense counsel immediately noted an objection to protect defendant’s right to appellate review. Even if new counsel had been appointed to try the motion, defendant’s reason for claiming intimidation would still have been meritless and the motion would have been properly denied.

Based upon the overwhelming evidence of guilt and the voluntariness of defendant’s guilty plea, a delay of the proceedings to appoint defendant new counsel for the hearing on the motion to withdraw the guilty plea appears to have been unnecessary.

And we find these assignments of error without merit.

ASSIGNMENT OF ERROR NO. 3

Here, defendant contends the trial court erred in imposing an excessive sentence.

The maximum penalty which can be imposed for a violation of La.R.S. 14:64 is ninety-nine years at hard labor, without the benefit of parole, probation or suspension of sentence. Defendant was sentenced to serve twenty years at hard labor, without the benefit of parole, probation or suspension of sentence.

Defense counsel urges that La.R.S. 14:64 is unconstitutional in that it results in the imposition of cruel, excessive or unusual punishment in violation of La.Const.1974 Art. I § 20.

This Court has previously held that the possible ninety-nine year sentence of imprisonment for armed robbery is not cruel, excessive or unusual. State v. McCrae, 383 So.2d 388 (La.1980); State v. Victorian, 332 So.2d 220 (La.1976); State v. Stewart, 325 So.2d 828 (La.1976), cert. denied, 425 U.S. 997, 96 S.Ct. 2213, 48 L.Ed.2d 822 (1976).

He further urges that the sentence is excessive under the facts of this case and therefore constitutes cruel and unusual punishment as to this particular defendant.

This argument is meritless.

The sentence imposed by the trial judge falls in the lower range of sentences which might have been imposed under the statute. This Court has held, however, that a sentence, although within the statutory limit, may be reviewed by this Court for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge’s reasons for imposing sentence as required by La.C.Cr.P.Art. 894.1, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981). This court has held that a sentence is excessive if it is grossly out of proportion to the severity of the crime, or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). At the sentencing hearing the trial court relied on the presentence investigation report in imposing sentence. The trial judge informed defendant of letters he had received from several people and members of defendant’s family on his behalf. He noted that defendant was twenty-four years old and was classified as a third felony offender. While noting that defendant had no prior juvenile record, the trial judge stated that defendant was arrested on another charge of armed robbery in 1974 which was later reduced to simple burglary and that defendant received one year confinement for that offense. The trial judge also noted that defendant was arrested in 1975 for attempted theft and was given ten days suspended sentence. He stated that defendant was arrested in 1976 for simple battery and was sentenced to ninety days in jail. The trial judge concluded that defendant had two simple robbery felony convictions, in addition to the present conviction, and four misdemeanor convictions. He noted that defendant was a high school drop out, finishing only the eleventh grade, but found that he had not been regularly employed since leaving school. The trial judge then concentrated on the present offense. He found that defendant was initially arrested for the armed robbery in 1978; but he jumped bail at the time of trial and was not apprehended again until July, 1980. He emphasized that defendant’s mother is a school cook and is being held responsible for the $10,000 surety bond. He stated that despite the fact that her wages were being garnished at the rate of $140.00 per month for the debt, she still wrote a letter to the court asking him to be lenient with defendant. The trial judge also noted that defendant had denied using drugs in the pre-sentence investigation report, although he had admitted committing the armed robbery to support his $250.00 per day drug habit. The trial judge concluded that there was an undue risk defendant would commit another crime. He also stated that defendant was not eligible for a suspended sentence or probation because of the offense charged and that defendant was in need of correctional treatment or custodial environment that can be provided most effectively by commitment to an institution. The trial judge followed the wording of the La.C.Cr. P.Art. 894.1 in finding that none of the mitigating factors listed were present. He then stated that if it were not for the plea bargain and the recommended maximum of twenty years he would impose a more serious penalty than the one he was going to impose.

While the trial judge merely listed the mitigating factors in Art. 894.1(B) at the conclusion of his sentencing statement, the entire sentencing transcript indicates that the considerations taken into account were based upon the factual determinations stated earlier. As stated in State v. Spencer, supra, if the trial court has stated the factual basis and individual considerations on which the sentence is based, then review will focus upon whether the trial court’s large discretion has been abused. State v. Cox, supra.

It does not appear that the trial judge abused his discretion in sentencing this third felony offender. In light of defendant’s prior criminal record, the seriousness of the offense involved, and the fact that he escaped in order to avoid punishment for the instant offense, the sentence imposed does not appear grossly out of proportion to the severity of the crime, nor is it a purposeless and needless imposition of pain and suffering.

This assignment lacks merit.

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

       Judge Ned E. Doucet, Jr., Court of Appeal, Third Circuit and Judges Thomas J. Kliebert, and Robert J. Klees, Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Judge John A. Dixon and Associate Justices Pascal F. Ca-logero, Jr., James L. Dennis, Jack C. Watson.


author: WATSON, Justice. LEMMON, Justice, DIXON, Chief Justice

text:
    John Robert BROUSSARD and Patsy L. Broussard, Individually, Etc. v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, et al.
    No. 81-C-1205.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      Terrell D. Fowler, and Rex Townsley, of Cox, Cox & Townsley, Lake Charles, for plaintiff-applicant.
    Andrew L. Plauche, Jr., of Plauche & Maselli, Lake Charles, for defendant-respondent.
   WATSON, Justice.

The issue here is whether the trial court committed reversible error in failing to instruct the jury on the principles of strict liability enunciated in Loescher v. Parr, 324 So.2d 441 (La.,1975).

Plaintiffs’ eighteen month old son, Jeremy Shawn Broussard, sustained personal injuries when an aquarium stand turned over and the five gallon aquarium on top broke. The parents, John Robert and Patsy L. Broussard, brought this suit for damages against the neighboring owners of the aquarium and their homeowner’s insurer. Defendants are Helman and Ellen Turner and Pennsylvania Millers Mutual Insurance Company.

A jury decided 11 to 1 that defendants were not guilty of negligence which was a cause in fact of the accidental injury to Jeremy. The Court of Appeal affirmed. Broussard v. Pennsylvania Millers Mutual Ins. Co., 398 So.2d 205 (La.App. 3 Cir. 1981). A writ was granted to review the judgment. 401 So.2d 987 (La.,1981).

The accident occurred while Ellen Turner was babysitting with the Broussard children, Jeremy and his older sister, Angelique. Jeremy, Angelique and the two young Turner children were watching a children’s program on television in the den. An unlighted aquarium sat on a stand in a distant corner of the room. Mrs. Turner walked through the adjoining kitchen to pick up some laundry and turned back toward the den to see the aquarium “coming down on top of” Jeremy. (Tr.251) She had been gone only momentarily. The five gallon glass container was sitting on a black metal stand which was described as “excessively strong” for that purpose (Tr.389). The aquarium contained water, fish and about three pounds of gravel. The stand was designed to hold the aquarium at a seated eye level and relied on the weight of the contents to keep the aquarium in place. A ledge about four inches from the floor could have held a second aquarium but it was empty. There was no evidence that the stand or the aquarium itself were in any way defective. Although the Turners had had it between six months and a year, it had never fallen. Jeremy was apparently climbing on it and pulled it down. He had been in the Turner home on a regular basis, but had never exhibited any particular interest in the aquarium. When the glass broke, it severely lacerated him.

The jury was charged that plaintiffs’ suit was based on Civil Code art. 2315 and that the key word in that article is fault. Fault was defined as conduct below the standard of care which we might reasonably expect from an ordinarily prudent person under similar circumstances.

Plaintiffs requested that the jury be charged with LSA-C.C. art. 2317 and Loescher v. Parr, supra. The trial court denied the requested charges and stated in denying a motion for new trial that an Article 2317 situation was not presented to the jury. The Court of Appeal affirmed on the ground that there was no evidence introduced to show the existence of a defect or vice in the aquarium or its stand; a trial judge is not required to instruct about a theory of law which has no basis in the evidence.

There was no expert testimony to establish a design defect. Plaintiffs contend that a defect must be presumed from the fact of the accident. It is argued that the toppling of the aquarium stand was “an unusual occurrence” which would not have happened if the item had not been defective. Marquez v. City Stores Co., 371 So.2d 810 at 813 (La.,1979).

Jones v. City of Baton Rouge, 388 So.2d 737 (La.,1980) held that a catch basin cover which gave way beneath a pedestrian was defective because it presented an unusual risk of falling. Hunt v. City Stores, Inc., 387 So.2d 585 (La.,1980) held that an escalator with a propensity for trapping small tennis shoes was defective; the custodian and manufacturer were liable because they were aware of the risk of harm but failed to warn the public. Here, in contrast to Jones and Hunt, there was no evidence that this aquarium stand presented an unexpected risk. Aquarium stands, like most household objects, can pose a hazard to small children. Toddlers are swift and ingenious. See, for example, Carter v. Salter, 351 So.2d 312 at 315 (La.App. 3 Cir. 1977) writ denied 352 So.2d 1045; overruled on other grounds at 395 So.2d 739. Tables and chairs, the usual furniture, can topple when used for climbing. Such incidents are among the normal hazards of childhood. There were no previous falls to provide an inference that this stand presented a risk of injury greater than that of other household accouterments. The fact that the aquarium stand fell was not such an unusual event that it can be said it would not have happened without a defect. A defect cannot be inferred solely from the fact that the accident occurred.

Absent a showing that this aquarium stand had some particular lack of stability, the jury could not have found it to be defective. Considering the totality of the evidence, the trial court’s failure to charge the jury on the principles of strict liability is not reversible error.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, C. J.

LEMMON, Justice,

concurring.

The trial court should have given the requested instruction, since both sides presented some evidence on whether or not the stand was defective. Nevertheless, on this record the jury could not have concluded that the stand was unreasonably unsafe for its intended use, and a verdict for plaintiffs by a properly instructed jury would have to be reversed.

The court of appeal reached the correct result.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Any five gallon aquarium with fish in it that an eighteen month old child can pull over on himself is unreasonably dangerous and defective. In addition, a baby-sitter who leaves such a child alone — even momentarily — in a room with such a dangerous contraption is guilty of fault as a matter of law.

      . A directed verdict was granted in favor of third party defendants, the vendors of the aquarium and the stand.

      . Requested charges were as follows:
      “(1) A person is responsible not only for the damage occasioned by his own act, but for that which is caused by the act of persons from whom he is answerable, or of the things which he have in his control. Louisiana Civil Code article 2317.” (Tr.158)
      “(2) Under article 2317 of the Louisiana Civil Code strict liability attaches when a defective thing in one person’s custody causes damages to another. The person in whose custody the defective thing is can excape (sic) liability only when the damage is caused by the fault of the victim, by the fault of a thrid (sic) party or by an irresistible force.” (Tr.159)