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

text:
    STATE of Louisiana v. Johnny TAYLOR, Jr.
    No. 81-KA-2298.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Concurring Opinion Nov. 9, 1982.
    Rehearing Denied Nov. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Art Lententi, William C. Credo, Asst. Dist. At-tys., for plaintiff-appellee.
    Maurice S. Bell, Montgomery, Ala., James Manning, Metairie, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, Johnny Taylor, Jr., was indicted for first degree murder (R.S. 14:30). After a jury trial, he was found guilty as charged. The jury unanimously recommended the death penalty finding two aggravating circumstances: (1) the accused was engaged in the perpetration or attempted perpetration of armed robbery at the time he killed the victim; (2) the offense was committed in an especially heinous, atrocious or cruel manner. C.Cr.P. 905.4(a), (g).

On February 8, 1980 the victim, David Vogler, received a telephone call around 8:45 p.m. from a black male about an automobile which Vogler had placed for sale in the parking lot of Barker’s in Kenner, Louisiana. Vogler left his home in his Cadillac to show the red 1976 Buick Regal to the inquirer. He was not seen alive again by Mrs. Vogler. Around 12:45 a.m. Mrs. Vo-gler went to the parking lot in search of her husband along with her sister and her sister’s boyfriend. The red Buick was missing; the Cadillac was parked in the lot. Mrs. Vogler looked in the Cadillac window and saw her husband’s coat on the front seat. She saw two police cars stopped in the lot and asked the officers if they had seen the Buick. They assured her that they would be on the look out for it. Mrs. Vo-gler then returned to her mother’s house where she spent the night. At 9:00 o’clock the next morning she returned to the parking lot with her brother-in-law, Larry Hues-man. Huesman looked inside the Cadillac and saw blood on the upholstery. Fearing foul play, Huesman dropped Mrs. Vogler off and called the police. He met Officer Averett back at the parking lot and gave the officer Mrs. Vogler’s extra set of keys. When Officer Averett opened the trunk, he saw the body of David Vogler. An autopsy revealed that David Vogler died from multiple stab wounds.

Detectives William Fayard and Nick Con-gemi of the Kenner Police Department conducted an investigation. Customers and employees of the nearby businesses were interviewed with no success. Due to the rainy weather on the night of February 8 and the morning of the 9th, the car was towed to a security garage to dry out. On February 10 technician Joseph Deidrich dusted the car for latent fingerprints. Black hairs were recovered from the ceiling of the automobile, the sun visors and the inside trunk ledge. Deidrich also vacuumed the vehicle to collect debris.

On June 14, 1980 Chief Jimmy Acton stopped the accused in Millry, Alabama for a traffic violation. He was driving the Buick Regal. His cousin, Samuel Young, and his girl friend, Linda Pugh, were with him. A check on the automobile indicated that it was stolen and that the occupants might have been involved in a murder in Kenner, Louisiana. Defendant fled from the officer under the pretext of needing to urinate; his companions were arrested for possession of a stolen vehicle. On June 15, 1980 Detectives Fayard and Congemi drove to Millry and interviewed Young and Pugh. They compared the “vin” number on the automobile to the number of the vehicle registration form to determine that this vehicle was the one stolen from the Vóglers. The detectives opened the trunk and found receipts dated March 16, 1980 and May 3, 1980 bearing the name “James Taylor” for body work done on the Buick at Terry’s Body Shop. Congemi and Fayard drove, to Pritchard, Alabama and questioned Terry Webb, the owner of the repair garage. Webb gave them his copy of an estimate sheet dated February 9, 1980 which itemized repairs to be done to the car and a paint job requested by defendant. The Buick was driven back to Kenner, Louisiana.

Defendant was subsequently arrested on June 17, 1980 for an unrelated auto theft and incarcerated in Butler, Alabama. Detectives Fayard and Congemi drove to Butler on June 18 to question Taylor. Two statements were given by Taylor; neither statement satisfactorily explained how the accused came into possession of the Buick Regal. Eddie Slayton of the Alabama Bureau of Investigation took defendant’s finger and palm prints and gave them to Detective Fayard. These prints, along with those taken from the Cadillac, were sent to the FBI by registered mail on June 23, 1980. Ronald Young, a latent fingerprint specialist with the FBI, compared the two sets of prints and concluded that Taylor’s left palm print matched the partial palm print from the outside trunk lid based on forty points of identification. Samples of head hair taken from defendant during the interview showed similar characteristics to the hairs found in the Cadillac.

A warrant for defendant’s arrest was executed on June 17, 1980. A copy of the warrant was given to the authorities in Alabama. Taylor was indicted on August 28, 1980 and subsequently extradited to Louisiana.

Assignment of Error No. 1

Defendant urges that the trial court erred in denying his writ of habeas corpus on the ground that he was unconstitutionally transferred from Alabama to Louisiana without a pre-transfer hearing, without being advised of the nature of the offense for which he was indicted and without the benefit of counsel. See U.S. Const.amend. VI; Ala.R.S. 15-9-38; C.Cr.P. 267.

Taylor was arrested on an unrelated auto theft charge and incarcerated in Butler, Alabama. On June 17, 1980 an arrest warrant was issued in Jefferson Parish for second degree murder, armed robbery and theft. He was indicted for first degree murder on August 28, 1980; on October 23, 1980 a copy of the indictment, minute entry, arrest warrant and commitment for Taylor were sent to the Alabama authorities. On November 7, 1980 a formal request was made to the Governor of Alabama to extradite defendant to Louisiana to stand trial for murder. Taylor was surrendered on November 26, 1980.

An illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Although a detained suspect may challenge his confinement for probable cause, a conviction will not be vacated on the ground that the accused was detained pending trial without a determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

The case relied upon by the defense, Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), is inapposite. In Cuyler, the defendant had been convicted and was imprisoned in Pennsylvania. New Jersey sought to extradite the defendant for trial on charges there. The accused was extradited, tried, convicted and sentenced. There had been no pre-transfer hearing as required by the Uniform Extradition Act. Defendant sought declaratory, injunctive and monetary relief under 42 U.S.C. §§ 1981 and 1983. The court held that the defendant had stated a claim upon which relief could be granted. There was no suggestion that the New Jersey conviction was invalid because of any irregularities in the extradition process.

This argument is without merit.

Assignments of Error Nos. 2 and 4

Defendant argues that he was denied a fair trial because the state destroyed or lost evidence favorable to him in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he contends that the state improperly discarded two prints lifted from the seat belt guards and “lost” an additional print.

The state counters that routine police procedure was followed in handling the prints from the Cadillac. Further, since Taylor’s left palm print matched the palm print taken from the outside trunk lid, it is irrelevant whether or not additional prints existed because defendant’s presence at the trunk of the Cadillac is established.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment. Brady v. Maryland, supra. The test for materiality is whether the suppressed evidence creates a reasonable doubt that does not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Hicks, 395 So.2d 790 (La.1981); State v. Falkins, 356 So.2d 415 (La.1978), cert. denied 439 U.S. 865, 99 S.Ct. 190, 58 L.Ed.2d 175 (1978).

Technician Deidrich lifted one partial palm print from the outside trunk lid, one partial palm print from the inside trunk lid, two fingerprints from the seat belt guards, and four fingerprints from an inside passenger window; a total of eight prints. These notations are found on the outside of a small white envelope dated “2-10-80,” bearing item number B-4602-80. Fingerprint technician Larry Rolfes testified that he examined the “lifts” made by Deidrich. He determined that three of the prints were good and these prints were preserved; four remaining prints did not contain enough points for identification. Rolfes discarded the two prints taken from the seat belt guards which were on one lift. When asked on cross-examination about the seeming disappearance of one print, Rolfes explained that occasionally a technician may not be able to read what he is lifting and a mistake is made in his count. In any event, Rolfes testified that he examined all four lifts (which supposedly had eight prints according to Deidrich’s computations) and threw away one lift containing two prints from the seat belt guards, leaving three lifts. Thus, no prints were inadvertently lost.

The officers testified that the standard procedure is for prints to be placed in an envelope and secured in a locker pending pickup by the fingerprint technician. Generally, all evidence is turned over to the evidence custodian who logs it and keeps track of it on a chain of custody form. However, fingerprints are directed to the fingerprint technician so that they can be analyzed. If only smudges are visible, the technician on the scene does not attempt to lift a print. If lines are present, a lift will be made. The fingerprint specialist retrieves the prints from the locker and examines them to determine whether sufficient points exist to make an identification. If so, the prints are retained until a suspect develops. If not, the useless prints are discarded.

No Brady violation has been shown by defendant. All pertinent prints were turned over to the defense, including those that did not match defendant’s prints. The fingerprint technician merely threw away prints which were of no value, either as exculpatory or inculpatory evidence, because they contained insufficient points for identification purposes. Standard procedure was followed. Although Deidrich stated that he secured the prints in his locker to be picked up by the evidence custodian, Don Carson, Rolfes testified that he received the prints from Deidrich according to routine practices.

In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Sam, 412 So.2d 1082 (La.1982); State v. Davis, 411 So.2d 434 (La.1982); State v. Provost, 352 So.2d 661 (La.1977). A proper foundation was laid by the prosecution for admission of the prints. The jury was aware of the defense’s intimation that a print had been lost and that only one of the three good prints matched the prints taken of defendant; it was for the jury to assess the weight to be given to this evidence.

These assignments lack merit.

Assignments Neither Briefed Nor Argued

Because this is a capital case, this court will review those assignments of error which are neither briefed nor argued. State v. Monroe, 397 So.2d 1258 (La.1981); State v. Jones, 332 So.2d 466 (La.1976). Assignment of Error No. 3

Defendant complains that the trial court erred in permitting the introduction of his statements made to detectives Fayard and Congemi in Alabama on the ground that they were made against his will and without benefit of counsel.

On June 18, 1980 detectives Fayard and Congemi questioned Taylor at the Choctaw County Sheriff’s Office. After advising defendant of his rights, the officers took a written statement in which Taylor said he bought the Buick from “two white dudes” on March 8, 1980. Midway through this statement, Detective Congemi told Taylor that they did not think he had been honest. The estimate from Terry’s Body Shop dated February 9, 1980 with Taylor’s name on it was shown to Taylor. Taylor acknowledged that he had lied in the first statement and agreed to give another statement.

Before the second statement was begun, Taylor was given his rights a second time and an oral statement taken. In this statement, Taylor said the Buick was brought to his house sometime in March by one Allen Thomas. This interview was halted by the detectives because they thought Taylor was not telling the truth.

Defendant testified that the officers advised him of his rights and he replied that he understood them. However, he stated that he requested an attorney but was not provided one. According to Taylor, the detectives showed him photographs of the deceased lying in the trunk of an automobile and told him that eyewitnesses saw Taylor in the parking lot. Defendant admitted at trial that he did not tell the truth in the first statement; his version of how he obtained the Buick paralleled the second statement. Taylor admitted fleeing after being stopped on his way back to Butler; he explained that he left because he was on probation and would “get more time” for driving a stolen vehicle. Taylor also admitted going to Webb’s shop on February 9, 1980. He asked that the Buick be painted a dark gray because he had been involved in a hit and run accident and did not want anyone to recognize the automobile.

The detectives testified that Taylor was informed of his rights before each statement, and that Taylor said he fully understood them. Detective Congemi testified that Taylor did not request an attorney. They did not threaten or coerce defendant in any way. There is some discrepancy between the officers’ recollections of whether defendant was shown any photographs. Detective Fayard testified that he showed defendant a picture of Vogler alive with his family; he did not show defendant any pictures of Vogler deceased. Detective Congemi, however, testified that no pictures whatsoever were shown to defendant; the only item shown him ws the estimate from the body shop.

Before a confession or inculpatory statement can be introduced into evidence, the state has the burden of affirmatively proving that it was made freely and voluntarily and not made under the influence of fear, duress, intimidation, menaces, threats, promises or inducements. State v. Petterway, 403 So.2d 1157 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981). It is also necessary that the state establish that the defendant who makes an inculpatory statement during a custodial interrogation has been informed of his “Miranda” rights. State v. Martin, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The admissibility of a confession or statement is a question for the presiding judge. His conclusions on the credibility and weight of a confession will not be overturned unless they are unsupported by the evidence. State v. Carter, 412 So.2d 540 (La.1982); State v. Campuzano, 404 So.2d 1217 (La.1981); State v. Martin, supra.

The record indicates that defendant was fully advised of his rights and that he comprehended them. There is no evidence of coercion or inducement. Further, the statements made by Taylor were not truly inculpatory; each statement offered an explanation of how Taylor came to be in possession of the Buick. The statements did not place defendant at the scene nor did Taylor confess involvement in the crimes committed in Kenner. The main inculpato-ry aspect of the statements was their obvious falsity.

This assignment lacks merit.

Assignment of Error No. 5

Defendant contends, that the trial court erred in allowing the introduction of palm and finger prints taken from him while he was incarcerated in Alabama, without bend-fit of counsel, on the ground that it amounts to self-incrimination.

This argument is without merit. The privilege against self-incrimination extends to evidence of a testimonial or communicative nature; it is not violated by the gathering of physical evidence from the accused. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Carthan, 377 So.2d 308 (La.1979). The prints, of course, (and hair samples) were taken with defendant’s consent.

For these reasons, the conviction should be affirmed.

MARCUS, Justice.

SENTENCE REVIEW

Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.Code Crim.P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La.Sup.Ct.R. 28, § 1, which provides:

Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(a) Passion, prejudice or any other arbitrary factors

There is no evidence that passion, prejudice or any other arbitrary factors influenced the jury in its recommendation of the death sentence. Nor has any argument to that effect been raised by defendant.

(b) Statutory aggravating circumstances

The jury found that two of the aggravating circumstances listed in La.Code Crim.P. art. 905.4 were present in this case:

(a) the offender was engaged in the perpetration of ... armed robbery, ...

(g) the offense was committed in an especially heinous, atrocious, or cruel manner;

The record amply supports the jury’s conclusion that the murder was committed while defendant was engaged in the perpetration of an armed robbery. La.R.S. 14:64. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. In response to a telephone inquiry, the victim, David Vogler, traveled in his Cadillac to a parking lot where he had placed his old Buick Regal with a “For Sale” sign and his phone number. When Vogler did not return home within a few hours, family members went to the parking lot and observed that while the car he had driven to the lot was still there, the Buick Regal was gone. The next morning, Vogler was found dead, stuffed in the trunk of the car he had driven to the parking lot. An autopsy showed that he had been stabbed over twenty times by a sharp knife at least three inches long. Defendant’s left palm print matched the partial palm print lifted from the outside trunk lid of the Cadillac based on forty points of identification. Samples of hair taken from defendant showed similar characteristics to the hairs found in the Cadillac. A repair estimate dated the day after the murder showed that defendant was in possession of the Buick Regal the morning following the murder. Defendant admitted that he acquired the automobile within hours of Vogler’s death. The evidence clearly supports the finding that the murder was committed by defendant while robbing the victim of his automobile.

The jury also found that the first degree murder of David Vogler was committed in an especially heinous, atrocious or cruel manner. La.Code Crim.P. art. 905.-4(g). We have previously construed this statutory aggravating circumstance as incorporating some idea of “torture or pitiless infliction of unnecessary pain on the victim.” State v. Sonnier, 379 So.2d 1336 (La.1979) (on original hearing); State v. English, 367 So.2d 815 (La.1979). To find that the murder was committed in an especially heinous manner, there must be evidence of serious physical abuse of the victim before death. The murder must be one that “causes death in a particularly painful and inhuman manner.” State v. Baldwin, 388 So.2d 664 (La.1980). In Baldwin, we held that there could be “no question that a prolonged beating” of an elderly woman left to die a lingering death is “an especially cruel way to commit murder.” In State v. Moore, 414 So.2d 340 (La.1982), where a twenty-year-old woman was raped and robbed and then stabbed thirteen times, seven of which were potentially fatal, this court held:

Because of the number of wounds inflicted and the fact that [the victim] died slowly with awareness of her impending death, the jury could reasonably have found that the offense was committed in an especially heinous, atrocious and cruel manner.

We have also held a murder to be especially heinous where the defendant chose to stab his victim some thirty to thirty-five times in the back, neck, head, arms, and hands. State v. Clark, 387 So.2d 1124 (La.1980).

In the instant ease, defendant enticed David Vogler out of the security of his home, late on a cold night, to an empty parking lot to rob him of his keys and the automobile he had left on the lot for sale. Vogler was found the next morning, stuffed into the trunk of the ear he had driven to the parking lot, barechested with his sweater pulled down to his wrists. He had suffered over twenty stab wounds, small puncture wounds, and superficial cuts and scratches to his arms, stomach, chest, neck and temples. The coroner found that almost all of these wounds had been created by a small but sharp knife at least three inches long. The majority of the wounds were pricks or shallow punctures, opening the skin and going through soft tissue, but not deep enough to cause major damage to internal organs. There were fourteen such shallow punctures into the soft tissue of the stomach alone. A few deep stabs completely punctured the victim’s liver, punctured his diaphragm twice causing collapse of the lower left lung, and severed the vagus nerve trunk of his left side. The coroner noted that “a person with a cut to that nerve would tend to experience a feeling of palpitation with an increased rate of heart beat, probably nausea and a sort of suffocating feeling....” In the coroner’s opinion, Vogler “probably died in the [car] trunk.... [His injuries were not] of the kind that ... in lay terms would be regarded as instantaneous or fatal [but] as if the kind of death that is going to take place over a period of minutes due to the collapse of the lungs and the blood leaks from the blood vessels.... [D]eath would occur probably within 10-20 minutes from the time of the infliction of the injury.” Obviously Vogler suffered serious physical abuse before being left to die in the trunk of his car. Death did not occur for ten to twenty minutes. Clearly, the murder caused death in a “particularly painful and inhuman manner.” Under the circumstances, we consider that the evidence fully supports the jury’s finding that the offense was committed in an especially heinous, atrocious, or cruel manner.

(c) Proportionality to the penalty imposed in similar cases

Supreme Court Rule 28, § 4 provides that the district attorney shall file with this court a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence actually imposed and a synopsis of the facts in the record concerning the crime and the defendant.

In the instant case, the list reveals that there have been twenty-one first degree murder prosecutions in the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson since January 1, 1976. Of these prosecutions, fifteen, including the instant case, resulted in verdicts of first degree murder. Out of these fifteen, the death penalty was recommended by the jury in five cases, including the present case. In all five of these cases the defendants were the actual killers. In this case and two others, the killings occurred during armed robberies, a statutory aggravating circumstance, and at least one other aggravating circumstance was found by the jury. In the fourth and fifth death cases, there was either a risk of death or great bodily harm to more than one person or multiple aggravating circumstances.

In the ten remaining first degree murder verdicts in Jefferson Parish, where a death sentence was not imposed, there was only one aggravating circumstance or a complete absence of such circumstances, or there were present mitigating circumstances which justified the jury’s recommendation of life imprisonment. One case draws our attention, State v. Shilling, No. 82-KA-1820 (docketed but not yet set for argument). There, defendant and another man brutally beat and stabbed their victim, took $30 out of his pants pocket, and then slit his throat and drowned him. Only a life sentence was recommended. However, we are not bound to reverse every death sentence from Jefferson Parish that comes before us for review in the future just because in one case the jury spared the defendant’s life. Proportionality is a safeguard against arbitrary and capricious action by a jury. We do not find that the jury in the instant case acted arbitrarily in comparison with juries in similar eases when it recommended the death sentence.

According to the Capital Sentence Report, defendant is a twenty-nine year old black male, one of eight children whose parents are divorced. He is separated from his wife, although he sometimes lives at her house. The rest of the time he lives with his mother. He has three children from his marriage; he contributes child support irregularly, mostly around the holiday season. He is also the father of three illegitimate children to whom he does not contribute support. Taylor’s employment record is sporadic. He was unemployed at the time of the instant crime. He served in the military, but in 1977 was given an undesirable discharge because of an accusation of larceny. In 1979, he was convicted of grand larceny, and he has pending in Alabama charges for receiving stolen property and robbery. Prior to his return to Louisiana, he was apprehended in Alabama when he swerved and just missed a police car. He was driving without a license. There were both beer and marijuana in his car and two .12 gauge shotguns, one of which was in the trunk. Taylor escaped and made his way to Mississippi where he was apprehended in another stolen automobile. This arrest led to his return to Louisiana to stand trial on the instant charge.

After considering both the crime and the defendant, we are unable to conclude that the sentence of death in the instant case is disproportionate to the penalty imposed in similar cases in Jefferson Parish.

In sum, based on the above criteria, we do not consider that defendant’s sentence of death constitutes cruel, excessive or unusual punishment.

For these reasons, the sentence should be affirmed.

DECREE

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

DIXON, C.J., dissents with reasons from the sentence review portion of the opinion.

LEMMON, J., assigns additional concurring reasons.

DIXON, Chief Justice

(dissenting from the sentence review of the majority).

I respectfully dissent from the sentence review of the majority.

The jury found that the instant offense was committed in an “especially heinous, atrocious or cruel manner.” In order for a murder to be “especially heinous,” there must exist evidence that there was “torture or the pitiless infliction of unnecessary pain on the victim.” State v. Sonnier, 402 So.2d 650 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. English, 367 So.2d 815 (La.1979); State v. Clark, 387 So.2d 1124 (La.1980), cert. denied 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830 (1981). Where the wounds were inflicted to kill, not to maim or to inflict pain, the manner in which the offense was committed cannot be termed “especially heinous.” See State v. Culberth, 390 So.2d 847 (La.1980). It is evident that the murder was brutal — the victim was stabbed twenty times and left in the trunk to die. The physician who performed the autopsy on the victim testified that death was not instantaneous; the victim could have lived for ten to twenty minutes after infliction of the wounds.

In State v. Clark, supra, the victim was stabbed with a butcher knife some thirty to thirty-five times and then shot once. This court concluded that substantial evidence supported the jury’s finding that the offense was committed in an especially heinous manner in light of the fact that the defendant could have killed the victim with the gun, yet chose to stab him repeatedly before the shooting.

In State v. Moore, 414 So.2d 340 (La.1982), the victim suffered thirteen stab wounds, seven of them potentially fatal. This court upheld the jury’s finding that the offense was perpetrated in an especially heinous manner because of the number of wounds inflicted and the slow death endured by the victim.

This case parallels State v. Monroe, supra. In that case, the defendant broke into the victim’s house and stabbed her seven times; three of the wounds caused the death. The victim lost over two quarts of blood, her lungs were punctured and one of her ribs was severed. Her death was also not instantaneous; she lived long enough to call out for her daughter and to reach for the telephone. This court held that, although the murder was brutal, it was not proved beyond a reasonable doubt that the offense was especially heinous.

A murder like this one and the one in State v. Monroe, supra, or State v. Culberth, supra, is surely hatefully or shockingly evil (heinous). But before the act of killing can be used as one of the “aggravating circumstances” which will justify the death penalty (C.Cr.P. 905.4), it must be committed in an especially heinous, especially atrocious or especially cruel manner.

In the present case, the state failed to prove beyond a reasonable doubt that the offense was committed in an especially heinous manner. Due perhaps to the relatively short blade, several of the wounds were superficial and not fatal. There was no showing that the wounds were inflicted to maim or to torture the victim; rather, all of the evidence leads to the conclusion that the killer’s efforts were designed simply to kill.

Proportionality of Sentence

Under Supreme Court Rule 28, § 1(c), this court must determine “whether the sentence imposed is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

The sentence imposed in this case is disproportionate with sentences in other similar cases.

The Death Sentence Proportionality Analysis submitted to this court by the Jefferson Parish District Attorney’s Office shows that there have been twenty-one first degree murder prosecutions in Jefferson Parish since January 1, 1976. Of these prosecutions, fifteen resulted in convictions of first degree murder, four ended in convictions of second degree murder and two culminated in verdicts of manslaughter. Out of the fifteen first degree murder convictions, the death penalty was recommended by the jury in five cases.

In another death ease presently pending before this court, State v. Sawyer, 442 So.2d 95 (La.1982), the jury found three aggravating circumstances: the defendant was engaged in the perpetration of an aggravated arson, the defendant had been convicted of an unrelated murder, and the offense was committed in an especially heinous manner. The evidence revealed that the victim had been badly beaten, burned and mutilated.

In State v. Berry, 391 So.2d 406 (La.1980), the defendant shot a security guard during the armed robbery of a bank. The jury sentenced the defendant to death finding three aggravating circumstances: the defendant was engaged in the perpetration of an armed robbery, the victim was a policeman and the defendant created a risk of death or great bodily harm to more than one person.

The death sentence was also recommended in State v. Lindsey, 404 So.2d 466 (La.1981), after the jury found that the defendant created a risk of death or great bodily harm to more than one person. The facts surrounding the offense indicated that the defendant was involved in an armed robbery at the time of the shooting. This court reversed the death sentence due to specific references to the possibility of a pardon or commutation by both the prosecutor and the trial court.

Finally, in State v. Smith, 400 So.2d 587 (La.1981), the defendant was sentenced to death upon the finding that he created a risk of death or great bodily harm to more than one person by randomly shooting at a group of youths. This court remanded the case for development of additional facts regarding the existence of the aggravating circumstances.

In the remaining first degree murder convictions, a sentence of life imprisonment was imposed. A companion case to State v. Sawyer, supra, resulted in the conviction of Charles Lane; a life sentence was imposed.

In State v. Wilson and Moses, 404 So.2d 968 (La.1981), defendants fired a gun into a crowd of people, killing the victim. Life imprisonment was recommended.

In State v. Sharp, 418 So.2d 1344 (La.1982), defendant stabbed two persons to death during a domestic dispute. Once again, a life sentence was imposed.

In State v. Tuckson, 414 So.2d 360 (La.1982), a life sentence was recommended where defendant shot the victim under circumstances suggesting a burglary of the victim’s truck.

A life sentence was also recommended in State v. Goza, 408 So.2d 1349 (La.1982). In that ease, the state maintained that defendant procured someone to kill her husband. Defendant argued that her husband was killed as the result of an armed robbery. Both the conviction and sentence were reversed on appeal.

In State v. Shilling, No. 82-KA-1820, an eyewitness testified that the defendant brutally beat and stabbed the victim under facts indicating a robbery. Life imprisonment was imposed.

In State v. Love, 410 So.2d 1045 (La.1982), the evidence indicated that the defendant shot the victim in the head during an armed robbery. This court reversed the jury’s recommendation of life imprisonment, finding that no aggravating circumstances had been proved beyond a reasonable doubt (under the old statutory scheme).

In State v. Riggins, 388 So.2d 1164 (La.1980), the defendant shot the victim, a sixty-eight year old shopkeeper, four times during an apparent armed robbery. Life imprisonment was recommended.

In State v. Andrews, 369 So.2d 1049 (La.1979), the defendant stabbed the victim to death during a heated argument. The offender and the victim were competitors in a sandlot football game. A life sentence was received.

In State v. Manieri, 378 So.2d 931 (La.1979), the defendant strangled and stabbed the victim, an eleven year old boy, thirty times. Upon completion of the murder, defendant and his brother made the scene appear as though a burglary had occurred. A life sentence was imposed.

A review of these first degree murder convictions indicates that juries in Jefferson Parish have imposed the death penalty where the defendant knowingly created a risk of death or great bodily harm to more than one person or where a combination of aggravating circumstances existed. However, juries have not recommended the death sentence where the sole aggravating circumstance was that the defendant was engaged in the perpetration of armed robbery. On the facts, the instant case most closely resembles State v. Manieri, supra, and State v. Shilling, supra. In both of these cases, a sentence of life imprisonment was imposed. This court ought to conclude that the death sentence imposed in this case is disproportionate to the sentence imposed in similar cases in Jefferson Parish, and vacate the sentence.

LEMMON, Justice,

concurring.

I subscribe to and have signed the opinion of the court, but submit this concurring opinion to point out that the significance of the “especially heinous, atrocious or cruel” statutory aggravating circumstance has decreased considerably since the present capital sentencing law was first enacted in 1976.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court approved the use of statutory aggravating circumstances as a method of channeling the jury’s discretion in deciding which murderers should be subject to the death penalty and which should not. And in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court also approved a method of channeling jury discretion whereby the use of aggravating circumstances in the definition of the essential elements of first degree murder serves the same purpose of narrowing the class of murderers who are “death eligible”.

After the Gregg and Jurek decisions, the Louisiana Legislature in 1976 enacted a new capital sentencing procedure patterned after the one approved in Gregg v. Georgia. Between 1976 and 1979 (except for the “Payton period”), the use of the “especially heinous, atrocious or cruel” aggravating circumstance in the penalty phase of the trial was particularly important, because a jury could consider a death sentence when there was a specific intent killing and any one of the statutory aggravating circumstances listed in C.Cr.P. Art. 905.4. There was significant jurisprudence during that period concerning the “especially heinous, atrocious or cruel” aggravating circumstance.

In 1979 the Legislature amended R.S. 14:30, which now defines first degree murder to require proof of one of four enumerated circumstances as an essential element of the crime. (These four “aggravating elements” are also among the statutory aggravating circumstances listed in C.Cr.P. Art. 905.4.) Under present law, a murder committed in an “especially heinous, atrocious or cruel” manner, without further proof of an “aggravating element” of first degree murder enumerated in R.S. 14:30, would be second degree murder. The class of “death eligible” murderers in Louisiana is now narrowed in the guilt phase, rather than in the penalty phase, as was done in Gregg and under the previous Louisiana law. In effect, Louisiana now has a hybrid procedure somewhere between the Georgia procedure approved in Gregg and the Texas procedure approved in Jurek. The significance of this apparently unplanned legislative development is that the murderers who are not “death eligible” because of the lack of “aggravating elements” are now eliminated during the guilt phase of the bifurcated trial and are not even exposed to a penalty hearing. And those murderers who are “death eligible” under present law may still present proof of mitigating circumstances to the jury during the penalty phase. However, proof in the penalty phase of additional aggravating circumstances not listed in R.S. 14:30 (such as the “especially heinous, atrocious and cruel” aggravating circumstance) is now not as pertinent to the determination of which murders and murderers are “death eligible” as it is to the determination of whether this particular murderer should be sentenced to death for this particular murder. See State v. Sawyer, 442 So. 2d 95 (La.1982), decided this day.

Finally, it is important to note that the evidence offered in the present case to prove the “especially heinous, atrocious or cruel” statutory aggravating circumstance was admissible under the applicable “rules of evidence”. C.Cr.P. Art. 905.2 and 905.4. Therefore, defendant was not prejudiced by the introduction of the evidence, whether or not the jury returned a finding of this particular aggravating circumstance and whether or not the evidence supported the finding in that regard. Nevertheless, I agree that the statutory aggravating circumstance was supported in this case.

      . At trial, Terry Webb positively identified defendant as the individual to whom he spoke on February 9, 1980 concerning repair work on the Buick Regal.

      . The front of the envelope reads as follows:

      . A “lift” is a piece of plastic on which the prints are placed to preserve them.

      . The defense also challenges Deidrich’s testimony on cross-examination arguing that Deid-rich failed to recognize prints he was supposed to have lifted. A close reading of this testimony indicates, however, that defense counsel was questioning Deidrich about photographs taken of the lifts and not the lifts themselves. The state does not suggest that these photographs, made for the purpose of comparison by the FBI to Taylor’s prints, were taken by Deid-rich. It follows that he would not recognize the handwriting or printing on them.

      . Dixon, C.J. is in the minority on the sentence review portion of this review. See the dissent which follows.

      . State v. Shilling, No. 82-KA-1820 (docketed but not yet set for argument); State v. Sawyer, 442 So.2d 95 (La.1982); State v. Sharp, 418 So.2d 1344 (La.1982); State v. Lane, 414 So.2d 1223 (La.1982) (a companion to Sawyer); State v. Tuckson, 414 So.2d 360 (La.1982); State v. Love, 410 So.2d 1045 (La.1982); State v. Goza, 408 So.2d 1349 (La.1982); State v. Wilson and Moses, 404 So.2d 968 (La.1981); State v. Lindsey, 404 So.2d 466 (La.1981); State v. Smith, 400 So.2d 587 (La.1981); State v. Berry, 391 So.2d 406 (La.1980); State v. Riggins, 388 So.2d 1164 (La.1980); State v. Manieri, 378 So.2d 931 (La.1979); State v. Andrews, 369 So.2d 1049 (La.1979).

      . The other four cases were Sawyer, supra; Smith, supra; Berry, supra, and Lindsey, supra.

        . The two cases involving armed robberies, in addition to the instant case, were Berry and Lindsey, supra. In Berry, a police officer was killed during the course of an armed robbery. In Lindsey, the defendant committed, or attempted to commit, armed robbery of a woman in a shopping mall parking lot, then shot her in the back, and threatened the lives of those who pursued him. The conviction was affirmed in Lindsey but the sentence was vacated and the case remanded for a new sentencing hearing because of references by the prosecutor and the trial judge to the possibility of a pardon and commutation during the sentencing hearing.

      .The two other death cases were Sawyer and Smith, supra. In Sawyer, there were multiple aggravating circumstances. In Smith, there was a risk of death or great bodily harm to more than one person. The conviction was affirmed in Smith but the case was remanded to the trial judge for development of additional facts relating to the existence of the aggravating circumstance found by the jury.

      . State v. Lane, supra (Defendant was not the actual killer.); State v. Sharp, supra (Intoxicated Vietnam veteran killed wife’s relatives when they tried to force him to leave their house in which his wife was staying since she decided to seek divorce.); State v. Goza, supra (Defendant was not the actual killer. The conviction and sentence were reversed and the case remanded for further proceedings.); State v. Andrews, supra (Defendant and victim were teenagers who had been arguing over football game.); State v. Manieri, supra (Defendants, two brothers ages 17 and 21, went to an acquaintance’s house looking for marijuana; they killed eleven-year-old son of woman who asked them to leave her house.); State v. Love, supra (No aggravating circumstances established. The conviction and sentence were reversed and the case remanded for retrial.); State v. Tuckson, supra (On review, this court set aside the conviction and remanded the case for entry of guilty of second degree murder. Entry of unoccupied vehicle was not aggravated burglary.); State v. Wilson and Moses, supra (Defendants, both black, got into confrontation with a group of eighteen white males who were drinking beer in shopping center parking lot; defendants fired several shots, fatally wounding one person. The convictions and sentences were reversed and the case was remanded for a new trial.); State v. Riggins, supra (Defendant shot an elderly man who was in the process of closing up his business.); State v. Shilling, supra (Defendant and co-defendant stabbed and beat victim, took $30 from his pants pocket, and later slit his throat and drowned him.).

      . Louisiana’s former capital sentencing procedure was declared unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

      . See State v. Payton, 361 So.2d 866 (La.1978), in which this court held that the 1977 amendment to second degree murder “impliedly amended” the first degree murder statute to require the prosecution to prove an “aggravating circumstance” as an element of first degree murder.

      . See State v. English, 367 So.2d 815 (La.1979); State v. Clark, 387 So.2d 1124 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830; State v. Culberth, above; State v. Monroe, 397 So.2d 1258, 1259 (La.1981); and State v. Sonnier, 402 So.2d 650 (La.1981).

      . Thus, the murder in State v. Culberth, 390 So.2d 847 (La.1980), if committed after the 1979 amendment, would not have been chargeable as first degree murder. In that case a woman was stabbed to death by a former boyfriend as she waited on a street corner for a bus.

      .The Legislature’s initial effort to comply with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), involved a similar narrowing of the definition of first degree murder and a mandatory death penalty for ail first degree murders under the new definition. The United States Supreme Court struck down this approach in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), primarily because the “mandatory” feature of the procedure failed to accord discretion to the jury based on a focus on the circumstances of the particular offense and the character and propensities of the offender. The 1976 capital sentencing law, enacted after the decisions in Roberts and Gregg (see note 1, above), adopted the bifurcated trial procedure. The procedure enacted in 1976 vests the jury with sentencing discretion in the penalty phase, after consideration of both the aggravating and the mitigating circumstances.
      I note, however, that in Roberts v. Louisiana, above, and in Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) four of the eight justices now on the Court opined that a state is not constitutionally forbidden to provide for a mandatory death penalty for certain crimes. The reasoning was that “the commission of certain crimes conclusively establishes that the criminal’s character is such that he deserves death”, whether or not there are mitigating circumstances.

      . Supreme Court Rule 28 requires that this court review the record to determine if the jury’s finding of at least one statutory aggravating circumstance was supported by the evidence. That requirement is now automatically fulfilled when the jury’s finding of guilty of first degree murder is supported by the record.

      . I believe that one purpose of including “especially heinous, atrocious or cruel” aggravating circumstance in the statutory scheme was to separate those murderers who are disposed to take a human life for the sheer pleasure of doing so from those murderers who have killed once on the spur of the moment or on particular motivation unlikely to reoccur and would probably never kill again. That purpose was served in this case.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Lewis T. GRAHAM, Jr.
    No. 81-KA-3328.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Dec. 10, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Bobby D. Sutton and Glenn Walker, Shreveport, for defendant-appellant.
   DENNIS, Justice.

On March 31,1980, Kathleen Graham was beaten to death with a sledgehammer while she slept in the bedroom of her home in Shreveport. Living in the home at the time of Mrs. Graham’s murder were her husband, Dr. Lewis T. Graham, Jr., who shared the master bedroom with her, and three minor children, who slept in nearby bedrooms.

About 5:00 a.m., Lewis T. Graham, Jr. called the Shreveport Police Department and advised an officer that intruders had broken into his home and severely injured his wife. Dr. Graham also called a neighbor across the street, who in turn called another neighbor. The second neighbor went immediately to the Graham home and found Lewis Graham in the front hallway. He saw liquor bottles scattered over the den floor. Also on the floor was a set of binoculars that had been removed from its case. Dr. Graham and the neighbor went to the rooms of each of the children and woke them from their sleep.

The police arrived a few minutes later, and an officer kicked down the locked door of the master bedroom and entered. He saw Kathleen Graham lying on her back on the left side of the bed. Her face was covered with blood. Also, blood was present on the ceiling, walls, bedspread and linen, and carpet. A sledgehammer and a knife lay on the floor on the left side of the bed. The carpet on the left side of the bed was stained with blood. Much blood was present on the right side of the bed itself. Lewis Graham had blood on the front and back of his tee-shirt and the front of his undershorts. The shower, tub, and lavatory in the master bedroom were wet and the lavatory contained blood.

The overhead garage door was found partially raised. The door leading from the garage to the kitchen was found pulled to, but not closed because the dead-bolt was extruded. Scuff marks appeared on the door facing. A crowbar was found on the garage floor. A can of coins and a flashlight were found on the driveway leading into the garage. The hammer, knife, crowbar, flashlight and coins all belonged to the Grahams.

Police officers found no sign of forced entry. Several neighbors of the Grahams had been home all night and heard nothing unusual. However, two neighbors stated that their dogs had awakened them during the night of the murder.

The coroner revealed the cause of Kathleen Graham’s death to be blunt head trauma caused by an instrument consistent with the sledgehammer found in the bedroom. A forensic pathologist testified that Mrs. Graham had sustained at least four blows to the top of her head with a sledgehammer while she was lying on the right side of the bed as it would appear to a person standing at the foot. These blows were struck in rapid succession and rendered her unconscious and incapable of voluntary movement. She did not die immediately but lived for some fifteen to thirty minutes after the first blows. After she was beaten on the right side of the bed, Mrs. Graham was moved onto her back on the left side of the bed as viewed from its foot, where she received what the expert considered to be the final blow, a massive blow to her forehead also delivered with the sledgehammer.

Lewis Graham was not seriously injured. He sustained the following wounds: an abrasion on his forehead; a cut across the entire palm of his left hand which required no treatment; and an incision type wound on the flank underneath his left arm which required one stitch.

On the morning of the murder, Lewis Graham recounted the following version of facts to the Shreveport police:

His wife woke him between 2 and 3 a.m. hearing noises. Dr. Graham checked in several rooms of the house but found all the doors closed and nothing unusual. He returned to the bedroom and set his alarm clock for a time close to 5 a.m. so that he could study. He placed the clock on the floor. He got into the left side of the bed and fell into a deep sleep. He next remembers the bed lurching or shaking. He heard a scream and was pushed or pulled from the bed. He felt more than one person was handling him and felt a sharp pain under his left arm. A brief struggle took place. He was then thrown across the room where he fell on his stomach and lay unconscious. He was unable to describe anything about his assailants), although he felt that there were probably two of them.
When Dr. Graham awoke he was on his stomach. He turned on the bedroom light and saw a horrible scene, knowing immediately his wife was probably dead. He went to the bathroom to see how badly he had been hurt. He noticed the blood on his shirt. He then turned the bedroom light off and locked the master bedroom door so that his children would not see this horrible scene. He proceeded to the kitchen where he looked up the number of the Shreveport Police, called them and then a neighbor, Mrs. Godwin. She in turn called another neighbor, Mr. Siragusa. Dr. Graham put on his pants which were located in the family room, turned on the porch light and waited for the police to arrive. Mr. Siragusa arrived before the police and they, Dr. Graham and his neighbor, then checked on the children. He sent the children across the street. He noticed some cabinet doors opened in the den and liquor bottles strewn on the den floor.

On several subsequent occasions, including during his testimony at trial, Dr. Graham related his version of the events surrounding his wife’s death which, except for a few inconsistencies, substantially tracked this first statement.

The Northwest Criminalistics Laboratory performed certain tests on. physical evidence seized from the Graham residence. The tests revealed the following: Kathleen Graham had blood type “A”; Lewis T. Graham, Jr., had blood type “0”; the sledgehammer was determined to have type “A” on it; the knife was determined to have type “0”; the blood on the bed linens was of type “A”. The stain under the left arm of the defendant’s tee-shirt was type “0”; the spatters on the front of the tee-shirt and the drips on the back and front of the right shoulder were type “A”. The spatters on the defendant’s undershorts were type “A”. They concluded that the blood spattering the headboard of the bed, the lamp, the clock and various places was all human blood. Shreveport police identification personnel discovered a latent fingerprint impression on the handle of the knife which was matched to the defendant.

Mr. Herbert McDonnell, the state’s blood spatter expert, examined the tee-shirt of the defendant and concluded that the stains on the front and back on the right shoulder of the shirt were consistent with the type of cast-off spatter found on the shirt of a person who has administered a beating with an object similar to a sledgehammer. He considered that the size and concentration of the blood stains on the front of the defendant’s tee-shirt indicated that the defendant was within two to four feet of the victim at the time she was beaten. He identified what he considered to be wipe marks down the left side of the defendant’s tee-shirt. Mr. McDonnell found blood which had coagulated before it was scattered by the sledgehammer’s blow on the lamp and headboard of the bed and on the front of the defendant’s undershorts. He testified that human blood coagulates in three to five minutes which would mean that a time period of three to five minutes elapsed between the two beatings of Mrs. Graham. Mr. McDonnell determined from the size and concentration of the blood spatters on the front of the defendant’s undershorts that the defendant was within two to four feet of the victim when the last beating was administered.

Mrs. Judith Bunker, the defendant’s blood spatter expert, testified that the spots on the front of the defendant’s clothing could have been minute particles of tissue. She further testified that she was unsure as to the coagulation time of blood, but that she would agree with whatever coagulation time was given by Mr. McDonnell, with whom she was acquainted. In a separate context, relating to the amount of blood lost by the defendant, Dr. Petty, a forensic pathologist, testified that coagulation times vary with individuals.

Defendant, Dr. Lewis T. Graham, Jr., was charged by indictment with the second degree murder of his wife. A Caddo Parish jury convicted the defendant as charged by a vote of 10-2 and the trial judge sentenced him to life imprisonment. He moved for a new trial on several grounds and for a motion in arrest of judgment, but the trial judge overruled all of his motions. In this appeal, the defendant makes fourteen assignments of error. Because we find that each of his assignments is without merit, we affirm the defendant’s conviction and sentence.

1. SUFFICIENCY OF EVIDENCE (ASSIGNMENT NO. SEVEN)

Defendant contends that the evidence is constitutionally insufficient to support his conviction because all of the evidence was circumstantial as to his identity as the killer and did not exclude every reasonable hypothesis of his innocence. We conclude that this assignment is without merit. The hypothesis of innocence advanced by the defendant is not a reasonable one.

The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.

In previous opinions we have attempted to formulate a single precept incorporating both standards. See, e.g., State v. Austin, 399 So.2d 158 (La. 1981). (“Therefore, when we review a conviction based upon 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.” Id. p. 160). Upon further reflection, however, a merger does not appear to promote clarity but could lead to a distortion of the standards. A combination of the rules may incorrectly imply that, when all of the evidence of the defendant’s guilt is circumstantial, due process requires more than evidence which would satisfy any rational juror of proof of guilt beyond a reasonable doubt. On the other hand, an in-tandem articulation may seem improperly to diminish the requirement of the circumstantial evidence rule by implying that, in a close case, this court will defer to the jury’s finding rather than follow its own determination of whether there is a reasonable hypothesis of innocence. Although in many instances separate and dual applications of the rules will yield the same result, out of an abundance of caution we will proceed to apply each standard separately, as it was given to us by the framers.

The characterization of evidence as “direct” or “circumstantial” points to the kind of inference which is sought to be drawn from the evidence to the truth of the proposition for which it is offered. If the inference sought is merely that certain facts are true because a witness reported his observation and the assumption that witnesses are worthy of belief, the evidence is direct. When, however, the evidence is offered also for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted, then the evidence is circumstantial evidence of this further fact-to-be-inferred. McCormick, § 185 p. 435. In the present case, although direct evidence was introduced to prove that the victim was murdered in her bed with a sledgehammer while the defendant was present, it qualifies only as circumstantial evidence of the crucial fact-to-be-inferred, i.e., that the defendant was the killer.

One hypothesis of innocence is suggested by defendant’s arguments and testimony: Two or more intruders entered the Graham house on the night in question without awakening the Grahams or their three children, escaping the attention of the Grahams’ dog, and leaving only questionable signs of forcible entry. They picked up a sledgehammer and a knife in the house and proceeded to the main bedroom where the Grahams were sleeping. One or more of the intruders seized the defendant while another beat his wife’s head with a sledgehammer. At this time, the front of the defendant’s tee-shirt and shorts were spattered with his wife’s blood. During a brief struggle, the defendant received a small one-stitch wound from the knife, and was rendered unconscious when he was thrown against a wall. The intruders decided not to molest him anymore but continued to savagely beat his wife’s head. Because the defendant came to rest face down he received blood spatters on the back of his tee-shirt and shorts in addition to that on the front. During or after the sledgehammer murder one or more of the intruders took a can of coins which defendant said contained $150 in dimes, but later the can was discarded in front of the house. They also scattered some bottles of liquor across the den floor and tampered with a set of binoculars. The murderers overlooked or were not interested in several items of value such as Mrs. Graham’s diamond ring and an antique pistol. They departed without being seen by anyone, even the defendant who was unable to describe them, without disturbing or awakening any of the three children, and again without being detected by the family dog.

We do not think this is a reasonable interpretation of the situation, assuming every fact to be proved that the evidence tends to prove. The odds are heavily against the coincidence of the series of unlikely events upon which the hypothesis depends. The possibility that the murder occurred in this way is reduced further by the facts inconsistent with defendant’s theory which the evidence also tends to prove. In comparison with the prosecution’s hypothesis of defendant’s guilt, which is consistent overall with the evidence, the defendant’s circumstantial theory of innocence is remote.

Severally, the events of the defendant’s hypothesis are each unlikely: A forcible yet silent, almost traceless entry by two unidentified and undescribed intruders; a heinous sledgehammer murder of a woman in her sleep by selective killers who had little malice toward her husband and none toward her children; a fortuitous manipulation of defendant’s torso during the slaying that gave him the bloody coating of a murderer; a highly selective burglary by criminals who preferred dimes to other more precious valuables; a trackless disappearance of villains seen only by defendant, who silently, efficiently committed their bizarre crime with implements they discovered at the house and left no clues to their identities behind. The odds against all of these events taking place in one criminal transaction are extremely high.

The hypothesis of defendant’s innocence conflicts with several of the facts which the evidence tends to show. According to the state’s expert witness, the cast off blood stains on defendant’s shoulders were not consistent with his asserted facedown reclining position but were consistent with his guilt. The same expert’s testimony tends to prove that there was coagulated blood on the front of defendant’s underclothes which could not have been obtained consistently with defendant’s story but which was consistent with his guilt.

There were many other details which were more fully consistent with the prosecution’s theory than with a hypothesis of innocence. The blood spatters on defendant’s shorts were denser than those on his tee-shirt, indicating a greater likelihood that he was standing when the spatters occurred. The blood spatters on both front and back of defendant’s clothes were totally consistent with his role as the murderer. According to the state’s experts no one’s fingerprints but the defendant’s were found on the knife. Although defendant claims he was cut with the knife before being thrown face down there was no blood at the place he said he landed. There were transfer patterns on defendant’s tee-shirt consistent with the wiping of blood from an instrument such as a knife, although it could not be said conclusively that it was caused by the knife in the instant case.

Consequently, we conclude that, assuming every fact that the evidence tends to prove, the evidence excludes every reasonable hypothesis of innocence. For all of the reasons expressed, we further conclude that defendant was not denied due process of law and that this conviction is clearly based upon evidence from which, when viewed in the light most favorable to the prosecution, a rational juror could find that the essential elements of defendant’s crime had been proved beyond a reasonable doubt. Thus, the evidence is both constitutionally and statutorily sufficient to support the defendant’s conviction.

2. JURY EXPERIMENT (ASSIGNMENT NO. ONE)

Defendant contends that the trial court committed reversible error in denying his motion for a new trial based upon an independent blood coagulation experiment by several jurors during their deliberations. We conclude that this assignment is without reversible merit because there is not a reasonable possibility that the juror’s experiment affected the verdict.

According to evidence educed by fhe defendant, after the case had been submitted to the jury one of the jurors, in the presence of four others, pricked his finger and determined that it took four and one-half minutes for his blood to coagulate. The experiment occurred at about 1:30 a.m. in a hotel room where the five jurors had continued to discuss the case after earlier jury deliberations from 5:20 p.m. to about 12:00 p.m. had ended without a verdict. The next morning, which was Sunday, the jury began deliberations shortly after 8:15 a.m. and by 9:00 a.m. reached a verdict of guilty by a 10-2 vote.

Our law provides that the jury shall be sequestered during its deliberations, after the judge delivers the charge, so as to be secluded from outside communications. La.C.Cr.P. art. 791. The purpose of sequestering jurors is to protect them from outside influence and from basing their verdict upon anything other than the evidence developed at trial. State v. Marchand, 362 So.2d 1090 (La.1978); State v. Hunter, 340 So.2d 226 (La.1976); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). See also C.Cr.P. at 793 (relative to the use of evidence in the jury room).

Accordingly, a juror who considers evidence not developed or admitted at trial violates his sworn duty and may be guilty of misconduct. Under our statutory law, however, no juror is competent to testify to his own or his fellows’ misconduct or to give evidence to explain, qualify, or impeach any indictment or any verdict found by the body of which he is or was a member. R.S. 15:470. Nevertheless, it is now clear that the statute must yield and that our courts are required to take evidence upon well pleaded allegations of prejudicial juror misconduct violating an accused’s constitutional right to due process, to confront and cross-examine witnesses or to a trial by a fair and impartial jury and to set aside the verdict and order a new trial upon a showing that a constitutional violation occurred and that a reasonable possibility of prejudice exists. Durr v. Cook, 589 F.2d 891 (5th Cir.1979), vacating State v. Durr, 343 So.2d 1004 (La.1977). Because the accused is not required to show actual prejudice, the state may legitimately invoke the prohibition of R.S. 15:470 to bar inquiry into the mental processes of an individual juror. Cf. State v. Wisham, supra; State v. Marchand, supra; State v. Abney, 347 So.2d 498 (La.1977).

In the present case, the trial judge correctly followed the law at the new trial motion hearing by taking evidence upon the allegations of unconstitutional and prejudicial juror misconduct. He also correctly excluded any evidence of actual effect or prejudice upon the jury deliberations. Finally, he ruled correctly in our opinion that it had not been shown that a reasonable possibility of prejudice existed.

The problems presented by an experiment conducted by jurors on their own defy precise, systematic analysis. A juror is expected to draw upon his general knowledge and experience in deciding the case, and he is encouraged to participate in full and robust debate and deliberations with his fellows in reaching a verdict. However, he should not consider facts relating to the case unless introduced at trial under constitutional and legal safeguards. State v. Sinegal, 393 So.2d 684 (1981). Accordingly, when a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. All of these elements must be weighed in determining whether there is a reasonable possibility that the defendant’s right to a fair trial has been prejudiced.

The jurors’ experiment in the present case does not represent a radical departure from our expectations that a juror will employ his own ordinary experience in the deliberations. Any normal human being will experience his share of childhood scrapes, razor nicks, blood test pricks and various other episodes producing practical knowledge of blood coagulation. To say that a juror could not pass a fraction of an inch beyond the record to recall and employ this type of practical knowledge in his deliberations is to ignore centuries of history and the true, function of the jury. Cf. United States ex rel Owen v. McMann, 435 F.2d 813 (2d Cir.1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646. Although the juror’s experiment in this ease cannot be classified as proper conduct, it was performed within the jury room and dealt with a subject well within the experience and practical knowledge of all jurors. As contrasted with other cases, it did not involve jurors conducting tests of matters beyond their normal ken or going outside the jury room to obtain esoteric knowledge or special information pertaining directly to the case. See e.g. State v. Sinegal, supra; Durr v. Cook, supra. Consequently, the danger that the jurors’ common sense would be overcome by the experiment’s instructive or dramatic effect was well tempered by an average juror’s practical experience with blood coagulation.

The jurors’ timing of blood clots on a pricked finger did not deprive the defendant of the benefits of constitutional and legal safeguards to the same extent as oth-. er tests described in reported decisions. The experiment here did not depend heavily on the jurors’ powers of observation or on the reliability and credibility of a juror’s report upon phenomena observed outside the jury room. Cf. Durr v. Cook, supra. Consequently, the loss of an opportunity to confront and cross-examine those who conducted the experiment was not as potentially prejudicial to the defendant. Furthermore, the rules of evidence would not necessarily have barred the introduction of the blood clot test evidence in this case. Demonstrative evidence offered for its circumstantial value may be admitted within a broad discretionary power of the trial court to weigh the probative value of the evidence against whatever prejudice, confusion, surprise and waste of time are entailed. McCormick § 212, p. 527. Consequently, the practical benefits the defendant lost because he was not able to assert his constitutional and legal rights at trial with respect to the experimental evidence were not of crucial magnitude in this case.

The juror’s experiment tends to corroborate the prosecution expert witness’ opinion that human blood coagulates in three to five minutes. In our opinion, however, there is not a reasonable possibility that the jurors’ experiment contributed decisively to the guilty verdict. In a different context another type of experiment could prevent a jury from recognizing a reasonable doubt or a reasonable hypothesis of innocence presented by the evidence. In the present case, however, there is no reasonable hypothesis of innocence and the evidence clearly supports a finding of guilt beyond a reasonable doubt even without the state’s theory involving blood coagulation time. Moreover, the experiment in this case, when viewed in the context of the evidence presented at trial and the ordinary experience most persons have had with blood coagulation, does not appear to be so persuasive or dramatic as to skew the judgment of the jury or cause it to disregard the evidence presented at trial.

During the trial, Mr. McDonnell testified that human blood coagulates within three to five minutes. Based on this and his opinion that some of the blood on the defendant’s clothes had coagulated before it was spattered on defendant, this expert witness expressed the opinion that defendant could not have received the blood spatters in the manner in which the defendant described the events surrounding the murder.

However, Mr. McDonnell admitted he had not tested the spots on the defendant’s clothes to make certain they were from pre-coagulated blood. Mrs. Bunker cast doubt on his theory when she testified that the spatters could have been caused, by particles of the victim’s flesh mixed with blood which coagulates more rapidly than pure blood. Dr. Petty in giving testimony in relation to the coagulation of defendant’s blood stated that the coagulation time of human blood varies with the circumstances of the case and the individual. On the other hand, there is even less blood coagulation evidence supporting the defendant’s hypothesis of innocence. There was no affirmative evidence at trial whatsoever to the effect that the victim’s blood could have coagulated with the rapidity necessary to fit within the defendant’s account of the crime events.

When we weigh all of the evidence pointing toward defendant’s guilt against the defense’s unlikely hypothesis of innocence, including defendant’s unusual story of how he got his wife’s blood spattered on both the front and back of his underclothes, all of the evidence concerning blood coagulation time recedes in importance. Ultimately, the blood coagulation theory is not essential to the state’s case. Furthermore, the juror experiment added virtually nothing to the theory. At most, it was cumulative to Mr. McDonnell’s opinion about blood coagulation time. Since his opinion was not disputed at trial, the corroborative effect of the experiment was slight. We do not think Dr. Petty’s testimony disputed the McDonnell opinion. He said that coagulation times can vary, but he was not asked about the three to five minute period as an average or normal time. Mr. McDonnell said that coagulation time for human blood is three to five minutes, but he was not asked if this interval could vary under any circumstances. In short, there was at most only a possible area of conflict between the two experts which was not explored or drawn into focus. On top of this, the whole foundation of McDonnell’s coagulation theory was called into question by Bunker’s testimony that defendant’s clothes did not have precoagulated spatters and McDonnell’s admission that he couldn’t be positive that they did. In essence, the jury experiment was cumulative to a part of a state expert’s testimony which was not disputed at trial and which was not essential to a prosecution case that, excluded every reasonable hypothesis of innocence and formed the basis for a rational finding of guilt beyond a reasonable doubt.

3.BAILLIF’S REMARK TO JUROR (ASSIGNMENT NO. 2)

Defendant contends that an unauthorized communication to the jury by its bailiff requires reversal because it was prejudicial to the accused. Midway through the trial, a bailiff told a juror that it would be up to the judge how long the jury would deliberate and it could be anywhere from five minutes to five days. An unauthorized communication to the jury by the bailiff requires reversal of the verdict, if the communication is prejudicial to the accused. State v. Marchand, 362 So.2d 1090 (La. 1978). Such a communication during trial is presumed prejudicial if it is about the matter pending before the court, Id., but here the matter was not about the case itself and thus the burden was on the defendant to prove that the incident was prejudicial. The trial judge ruled that the defendant had failed to carry this burden because the jurors were apprised during voir dire that the trial would be an extended one and were questioned at length on how this would affect their personal situations. The trial judge’s impression was that the remark was harmless. It appears that the remark was offhand and casual, although somewhat careless. Its impact, if any, was lessened by the fact that it occurred several days before deliberations began. It was not totally inaccurate, since the deliberation time of the jury would have fallen within the range given. The trial judge was there; he saw and heard the witnesses. Our review convinces us that his judgment was reasonable. Accordingly, we find that this assignment lacks merit.

4.ALTERNATE JUROR PARTICIPATION (ASSIGNMENT NO. THREE)

Defendant contends that a prejudicial unauthorized communication occurred when an alternate juror expressed his interpretation of evidence presented at trial to a principal juror. This assignment is without merit. The episode occurred during trial before the alternate had been discharged. As we indicated in discussing jur- or experiments, a juror’s duty to refrain from receiving evidence or communications not developed or admitted at trial serves the same purpose as sequestration, to protect him from outside influence and from basing his verdict on anything other than the evidence developed at trial. Consequently, under the circumstances, the jurors did not violate their duty. During the trial, an alternate juror has the same functions, powers, facilities, and privileges as the principal jurors. C.Cr.P. art. 789. Consequently, his communication to a principal juror before his discharge is not an outside influence, and the trial judge correctly refused to allow the jurors to testify regarding this subject pursuant to R.S. 15:470 because the allegations of misconduct did not state a cause to believe any improper or prejudicial event had occurred.

5.SUBPOENA DUCES TECUM (ASSIGNMENT NO. 4)

By this assignment of error, the defendant asserts that the trial court erred in quashing his subpoena duces tecum which requested that the state produce:

A copy of all offense reports, memoranda, or letters of citizen’s complaints, and any and every other writing, communication and/or records of any and every residential and/or commercial or business burglary or attempted burglary or unlawful entry to such premises, including entry for purposes of rape, vandalism, theft, or any other purpose occurring between the dates of January 1, 1978 and March 31, 1980, within the area bounded by Live Oak Drive on the North, Kingston Road on the South and Mansfield Road on the West, Shreveport, Louisiana.

The state objected that the subpoena was unreasonably burdensome and oppressive. The state also asserted that the requested records might affect pending litigation, reveal the identification of confidential informants, contain records of unfinished convictions and the arrest records of defendants and status offenders. The trial court quashed the subpoena but ordered the state to file into the record a monthly summary of burglaries for the police district in which defendant’s home was located for the period requested by the defendant. The defendant objected, stating that he also wanted the burglary offense reports and statistics on other crimes that were listed in his subpoena.

Although the defendant was indicted on July 15,1980, the Shreveport Police Department was not served with the subpoena until July 6, 1981 or approximately one week before the trial began on July 13. Two police officers testified at the hearing on the motion to quash that to comply with the subpoena would require approximately ninety days. One of the officers estimated that the cost of a manual search for the information would require $10,000.00 in overtime pay.

The defendant has a constitutionally guaranteed right to compulsory process. La. Const, art. I, sec. 16. However, the very statute upon which the defendant relies for his subpoena provides that “the court shall vacate or modify the subpoena if it is unreasonable or oppressive.” La.C. Cr.P. 732.

In the present ease, the subpoena was served upon the police department only one week before the scheduled trial. To accumulate the subpoenaed material would have taken almost three months and cost several thousand dollars. Given these facts, we do not believe that the trial judge committed reversible error when he quashed the subpoena as unreasonable and in its stead ordered the police to provide the defendant with a monthly summary of burglaries for the police district in which the defendant’s home is located.

Therefore, this assignment of error lacks merit.

6. CONSTITUTIONAL ATTACKS (ASSIGNMENTS NO. FIVE AND SIX)

By this assignment of error, the defendant contends that the mandatory imposition of a sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for second degree murder constitutes cruel and unusual punishment in violation of La. Const, art. I, § 20 (1974) and the Eighth and Fourteenth Amendments of the United States Constitution. We have rejected this argument consistently. See, e.g. State v. Landry, 388 So.2d 699, 706 (La.1980); State v. Brooks, 350 So.2d 1174 (La.1977).

The defendant also asserts that the mandatory sentence unconstitutionally denies the defendant the right to have the trial court exercise its discretion in imposing sentences under La.C.Cr.P. arts. 893 and 894.1. However, we have recognized that the decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. State v. Prestridge, 399 So.2d 564, 582 (La.1981).

The defendant further contends that the use of the non-unanimous verdict violates the Sixth and Fourteenth Amendments and Louisiana Constitution article I, § 16 (1974). We recently rejected such an argument in State v. Belgard, 410 So.2d 720, 727 (La.1982). In doing so, we expressly followed decisions of the United States Supreme Court in its approval of the non-unanimous verdict in certain cases. See Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

Accordingly, these assignments of error lack merit.

7. JURORS’ RELIGIOUS SERVICES (ASSIGNMENT NO. 8)

By this assignment of error, defendant contends that the trial court erred in not allowing him to question two jurors regarding daily prayer services held by the jury foreman (who was a Presbyterian minister) for the jurors and the possible effect of such religious services upon the jury’s deliberations.

The policy behind our “jury privilege” statute, R.S. 15:470, is to preserve the confidentiality of the deliberation among jurors and to add to the finality of jury verdicts. State v. Wisham, 384 So.2d 385, 387 (La.1980). The privilege is not absolute and we have recognized that it must yield to a substantial showing that the defendant was deprived of his constitutional rights. State v. Sinegal, supra. Durr v. Cook, supra.

Defendant asserts that he was tried while the jury was charged with religious fervor. However, the record as limited by the trial court’s application of the jury privilege does not support his contentions. Religious services among jurors do not amount to a substantial deprivation of constitutional rights necessary to overcome the prohibition against juror testimony. Voir dire is an opportune time to examine any religious attitudes which might adversely affect the defendant.

Accordingly, this assignment lacks merit.

8. JUROR PREJUDICE (ASSIGNMENT NO. NINE)

By this assignment of error, the defendant contends that the trial court erred in denying his motion for new trial based on the allegation that one of the jurors, Barney Burks, had a preconceived and unalterable opinion regarding defendant’s guilt.

Specifically, the defendant alleges that the Juror Burks, when asked before voir dire why he did not claim his age exemption from jury duty, responded, “[Y]ou don’t want to see that man [the accused] go free, do you?” It is also alleged that after the verdict of guilty, Burks told a newspaper reporter that “he was determined not to let Graham go free.... ” Finally, the defendant asserts that his defense was prejudiced by Mr. Burks’ failure to reveal the fact that his daughter had committed suicide while her husband was at home with her and that he, Mr. Burks, attributed her emotional state and her death to her husband.

The trial judge ruled that Mr. Burks did not have a preconceived opinion. Mr. Burks testified at the hearing that he did not make either statement. The trial judge noted that Mr. Burks had been thoroughly questioned during voir dire for approximately an hour. Mr. Burks had testified that he would base his decision only on the evidence presented at trial. He testified that he agreed with the presumption of innocence and the burden of proof being on the state to prove guilt beyond a reasonable doubt. The trial judge observed that at least two other jurors should have heard the first statement, made before voir dire, and these witnesses did not testify at the hearing on the motion. The judge declared that the post-trial statement merely indicated that Mr. Burks was determined not to let the guilty defendant go free in light of all the evidence against him. On the issue of the deceased daughter, the trial judge noted that Mr. Burks was never questioned concerning any deceased children he might have. Thus, the failure of the prospective juror to reveal something which was not asked about did not amount to an effort to deceive the defendant.

We will reverse a trial judge’s denial of a motion for a new trial only when that denial is an abuse of discretion. State v. Molinaro, 400 So.2d 596 (La.1981). In the present case, the trial judge was faced with conflicting testimony between Mr. Burks and several witnesses. The trial judge indicated doubts regarding whether the first statement occurred and offered a reasonable, constitutionally sound interpretation for the second statement. Additionally, the trial judge was convinced that the failure of Mr. Burks to declare that he had a deceased daughter was not a deception by Mr. Burks. We cannot say that the conclusions of the trial judge on this issue were incorrect.

Accordingly, this assignment of error lacks merit.

9. CUMULATIVE EFFECT OF ASSIGNED ERRORS (ASSIGNMENTS NO. TEN AND ELEVEN)

By assignment of error number ten, the defendant contends that the trial court erred in denying his motion for a new trial based on the grounds set forth in previous assignments, specifically, numbers 1, 2, 3, 8, and 12. The only additional argument presented is that the combined effect of those assignments violated the defendant’s right to a jury trial and traditional notions of fair play and due process.

By assignment of error number 11, defendant contends that the trial court erred in overruling defendant’s motion for arrest on the grounds that the non-unanimous verdict and mandatory sentencing scheme are unconstitutional.

We previously addressed and rejected each of these contentions. Therefore, we will not discuss the merits of each assignment further. Furthermore, the combined effect of the incidences complained of, none of which amounts to reversible error, did not deprive the defendant of his right to a fair trial.

Accordingly, these assignments lack merit.

10. NEWLY DISCOVERED EVIDENCE (ASSIGNMENT NO. TWELVE)

By this assignment, the defendant asserts that the trial court erred in denying his motion for new trial based upon newly discovered evidence. Some two weeks after the conclusion of defendant’s trial, defense counsel received a handwritten letter which purports to be a confession to the murder of Kathleen Graham.

The Code of Criminal Procedure, art. 851(3) provides for a new trial whenever:

New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence has been introduced at the trial it would probably have changed the verdict or judgment of guilty.

The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980).

At a hearing on the motion for a new trial, it was shown that the alleged writer of the letter did not agree with the way the trial was going, suggested to a co-worker that the co-worker write an anonymous letter, and admitted that he had been hospitalized in a mental institution.

Considering the foregoing dubious circumstances behind the writing of the letter, it is highly unlikely that if the letter had been introduced at the trial it would have changed the verdict of guilty. Thus, the trial judge did not abuse his discretion when he denied the motion for a new trial.

Therefore, this assignment of error lacks merit.

11. AUTOPSY PHOTOS (ASSIGNMENT NO. THIRTEEN)

By this assignment of error, the defendant asserts that the trial court erred in denying his motion for production of autopsy photographs of the victim as part of the coroner’s proces verbal prepared pursuant to La.R.S. 33:1565. The trial court ruled that the photographs were not part of the proces verbal but that the defendant could utilize the criminal discovery articles to obtain the photographs. The defendant objected to the use of the discovery scheme and argued that forcing him to file a discovery motion caused him to be exposed to discovery reciprocity under C.Cr.P. art. 724 and accordingly forced him to surrender evidence to the state in violation of his Fifth Amendment rights.

Under our law a proces verbal refers to a written summary or report of facts. See, e.g. C.C.P. 2890. Thus, the trial judge was correct when he refused to hold the photographs as part of the coroner’s proces.

However, the defendant argues that this application of our law to his situation deprived him of his Fifth Amendment rights against self-incrimination. The Fifth Amendment privilege against self-incrimination applies only to evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1965). The limited reciprocal discovery rights given the state when the defendant invokes discovery provisions allows the state access to only evidence of a non-testimonial nature. See C.Cr.P. 724. Thus, the defendant’s Fifth Amendment rights were not violated.

In the present case, the defendant received the actual report of the coroner, without photographs. To that extent, he received a benefit inasmuch as he was entitled to only the proces verbal.

In light of these facts, we conclude that the trial judge did not err when he ruled that the defendant could not have aecess to the autopsy photographs as part of the pro-ces verbal.

Accordingly, this assignment of error lacks merit.

12. CONSTITUTIONAL ATTACK ON JURY SHIELD LAW (ASSIGNMENT NUMBER FOURTEEN)

By this assignment, defendant contends that La.R.S. 15:470, our jury privilege statute, is unconstitutional.

The Louisiana rule as embodied in La. R.S. 15:470 follows the general rule that “a juror’s testimony or affidavit is not receivable to impeach his own verdict.” 8 Wig-more, Evidence § 2345 (McNaughton ed. 1961).

In recent times, we have come to realize that the absolute language of the statute cannot be applied so as to deprive a criminal defendant of his constitutional rights. For example, in State v. Sinegal, supra, we reasoned that if the defendant presented a substantial claim that his constitutional rights had been infringed, the jury privilege cannot be used to bar testimony by jurors regarding their alleged improprieties. Our application of the jury privilege statute in this manner alligns with the Fifth Circuit’s construction of the same statute. See Durr v. Cook, 589 F.2d 891 at 893-94. Moreover, this approach of looking behind an eviden-tiary privilege has been virtually mandated by the United States Supreme Court. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

As construed in this case and other decisions by this court, the statute is constitutional.

Accordingly, this assignment lacks merit.

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

AFFIRMED.

      . This rule is to be distinguished from the related precept which provides that in a criminal case, any unauthorized communication by a non-juror with a juror during trial or deliberation about the matter pending before him is deemed presumptively prejudicial. State v. Wisham 371 So.2d 1151 (La.1979); State v. Marchand 362 So.2d 1090 (La.1978).