author: SUMMERS, Chief Justice.

text:
    Estelle NASH v. Lucille J. KNOBLOCK et al.
    No. 65325.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.
    Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, for plaintiff-applicant.
    Leon C. Vial, III, Hahnville, for defendant-respondent.
   SUMMERS, Chief Justice.

This is a workmen’s compensation case in which the defendant appealed the judgment of the trial court and the Court of Appeal reversed the trial court. We granted a writ of certiorari. 376 So.2d 321.

On November 27, 1975 Estelle Nash was employed at a grocery store owned by Lucille J. Knoblock and her husband, who is since deceased. While operating an electric meat cutting machine in the course and scope of her employment, the plaintiff accidentally amputated the distal interphalan-geal joint, that is the first or outermost joint, of the middle finger of her left hand. The treating physician, Dr. David J. Vial, a general surgeon, wrote a letter on June 23, 1976 to the plaintiff’s counsel which was entered at trial upon stipulation of both counsel:

“This patient was first seen by me in the St. Charles hospital on November 26, 1975. She gave a history of sustaining a traumatic amputation of the distal middle finger of the left hand a' short time earlier when she cut it with a slicing machine. She was taken to surgery where a repair of the distal middle finger was done. The patient did well following the surgery and was discharged from the hospital November 28, 1975.
“She was followed in the office on an out-patient basis until March 22, 1976. She continued to improve and at that time I felt she could be discharged from my care with less than five percent disability of the left hand.”

On July 26, 1976 the plaintiff was examined by Dr. R. C. Grunsten, an orthopaedic surgeon. Dr. Grunsten examined the injured extremity, took a history from the plaintiff, ordered X-rays and later studied the X-ray pictures. Prior to trial he was deposed by attorneys for the plaintiff and his deposition was admitted at trial by stipulation of both counsel. Dr. Grunsten testified that the injury appeared to have healed well but that there was approximately thirty degrees loss of flexion in the proximal interphalangeal joint. He found the injuries revealed by the physical examination and X-rays consistent with the history reported by the plaintiff, that is, with amputation by a meat cutting machine. He further testified: “As a result of the loss of the distal portion of the long finger, it was my feeling that this patient had incurred a forty to forty-five percent partial disability referable to the left long finger.” He noted that this estimate was founded upon the belief that the patient should have received physical therapy to restore flexion to the PIP joint. He estimated that if such flex-ion were not restored, his estimate of loss of function to the finger would be increased to from sixty to sixty-three percent. Upon further questioning by plaintiff’s counsel, Dr. Grunsten stated that the disability to the finger could be equated to disability to the hand as a whole by taking twenty percent of the disability to the digit as disability to the hand, that is, approximately eight to ten percent disability to the hand based on his estimate of forty to forty-five percent disability to the finger. On the same basis, he answered counsel’s further questions to the effect that his estimate of a sixty to sixty-three percent disability without restoration of the lost flexion would convert to a twelve to thirteen percent disability to the hand as a whole.

About four months after she . was examined by Dr. Grunsten, the plaintiff filed a petition in the 29th Judicial District Court naming as defendants Lucille Knoblock and her husband Roy, owners of Roy’s Grocery in Boutee, Louisiana. The petition alleged that Estelle Nash was employed in the meat department of Roy’s Grocery, that she injured her finger in the manner described above, and that she was paid $1.25 an hour for an average of 54 hours per week. The petition then prayed for a judgment of compensation at the rate of $25.00 per week for 150 weeks together with a 12% penalty, attorney’s fees and interest.

The matter was tried upon the parties’ stipulations as to Nash’s wages, the fact of the accident, the loss of the distal portion of the long finger of Nash’s left hand, that the minimum compensation applicable under the act would be $25.00 per week, that the report of Dr. Vial and the deposition of Dr. Grunsten be submitted in evidence, and that certain medical bills remained outstanding. The case was submitted to the trial judge who gave judgment in favor of plaintiff for the sum of $25.00 per week for 150 weeks, for the two medical bills and the expert witness fee of Dr. Grunsten at the deposition, but denied the requested 12% penalty.

The defendant took a devolutive appeal arguing that the trial court erred in awarding judgment to the plaintiff upon the basis of a disability to her hand. The defendant pointed out that had the plaintiff suffered a complete loss of the finger, the schedule of benefits contained in Section 1221(4) of the Compensation Act would have limited her recovery to twenty weeks’ compensation at $25.00 per week. Instead, the trial judge awarded the same amount as the schedule provided for loss of an entire hand, that is, $25.00 per week for 150 weeks. Further the defendant argued that Section 1221(4)(o) prohibits an award of more compensation for any injury to a member than the schedule provides for loss of the entire member.

In opposition to the defendant-appellant’s claim, the plaintiff-appellee, Nash, argued that Section 23:1221(4)(c), the schedule for loss of a finger, was not determinative of Nash’s entitlement to recovery. Rather, she argued, where the medical experts testified to a percentage disability to the entire hand, the provisions of Section 1221(4)(e),’ the schedule for loss to the hand, should apply.

The following pertinent portions of Section 1221(4) are as follows:

“(4) In the following cases, the compensation shall be as follows:
“(c) For the loss of any other finger [than a thumb or first finger], . sixty-six and two-thirds per centum of wages during twenty weeks.
“(e) For the loss of a hand, sixty-six and two-thirds per centum of wages during one hundred fifty weeks.
“(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

The Court of Appeal in the instant case held that

“. . .It stands to reason that any partial loss of a finger will result in some percentage of the loss of the hand. This fact, however, does not defeat the application of the scheduled benefits for the loss of a finger where there exists no significant loss of function of the hand.”

372 So.2d 777, 779.

The court noted in passing that plaintiff had returned to a similar type of work little more than two months after the accident, and applied the finger schedule of Section 1221(4)(c) to amend the trial judge’s award, reducing the compensation to $25.00 per week for twenty weeks, subject to a credit of $250.00 already paid the plaintiff by the defendants.

Plaintiff’s application for a writ of certio-rari assigned three errors in the decision of the Court of Appeal: 1) that the court incorrectly applied two earlier cases to the present case; 2) that the court incorrectly distinguished a third earlier case from the instant case; and 3) that the court denied compensation for loss to the hand when the medical testimony showed a loss to the hand of between 5 and 13 percent.

In her first assignment, Mrs. Knoblock argues that where the Court of Appeal cited two cases in support of its conclusions and decided that in those two cases, as in the case at bar, the medical testimony “related to the percentage of disability both to a finger and to a hand”, in fact in the cited cases the testimony of the medical experts “established that the disability could be LIMITED to the FINGER ALONE.”

The first of the two cases thus cited by the Court of Appeal and questioned by the plaintiff was Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (1964). While working as a carpenter, Babineaux suffered an injury that necessitated the surgical amputation of his left index finger at the distal interphalangeal joint. He sought recovery for a permanent partial disability to the hand under the same provision as did the plaintiff in the case at bar, Section 1221(4)(e). One physician testified at trial, to the effect that on a chart devised by the American Medical Association for evaluating disability to the hand, Babineaux had suffered an 11% functional disability to the left hand as a result of the accident. The trial judge therefore cast the defendants for the scheduled compensation for a period of one hundred fifty weeks. The Court of Appeal certified the question to the Supreme Court which held that where the only evidence in the record was the testimony to the effect that the disability was 11% of the hand as a whole, the Court should apply the provisions of Section 1221(4)(o) to prorate disability to the member against the total allowed for loss of the member. For reasons which are not clear, the Court applied a different text than had the testifying physician to come up with an estimated 10%% disability to the left hand from the injury to the index finger. As 10%% of the allowance for loss of a hand was less than the statutory minimum weekly award, the plaintiff was allowed the minimum compensation per week for the number of weeks specified in the schedule for loss of an index finger. In reaching this conclusion, the Court was moved by the consideration that under the schedules as then constituted, it appeared that no provision of Section 1221 could apply to the loss of only one phalanx of any finger or toe other than the thumb or big toe, unless under the proration mandated by Section 1221(4)(o).

The second case cited by the Court of Appeal and attacked by the plaintiff is Guardalabene v. Tenneco Oil Company, 246 So.2d 708 (La.App. 4th Cir. 1971). There the plaintiff suffered an injury resulting in amputation of the distal phalanx of the left thumb. The operating surgeon testified that the disability amounted to 50% of the thumb and 20% of the hand. A general and industrial surgeon who had treated the plaintiff and an orthopaedic surgeon to whom he had referred the plaintiff both testified that the thumb represents approximately 50% of the function of the hand, that loss of the distal phalanx of the thumb could not be separated from loss of function to the hand, and that the plaintiff had sustained a 25% loss of function of the hand. The Court of Appeal held:

“The medical testimony establishes that plaintiff’s disability is no more than normally would be expected following loss of the distal phalanx of his thumb and is limited to that loss. Even though the amputation necessarily results in a percentage disability to the entire hand, as the loss falls squarely within the strict wording of the statute relative to the thumb, plaintiff cannot recover compensation beyond the maximum provided by LSA-R.S. 23:1221(4)(a) and (k). See Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591; Spencer v. Kaiser Aluminum and Chemical Corp., La.App., 152 So.2d 215.”

246 So.2d 708, 710. Thus the decision clearly turned on the specific provision of Section 1221(4)(k) that loss of one phalanx of a thumb is to be considered as equal to the loss of one-half of the thumb, with proportionate compensation.

Contrary to the plaintiff-appel-lee’s contention, there is nothing in the case now before the bar to distinguish it from Guardalabene insofar as the appellate court in each case applied the schedule specifications to determine the appropriate compensation in spite of medical testimony relating the disability to the hand as a whole. Medical testimony as to disability is not determinative of the compensation to be awarded where the legislature has provided a specific remedy and the medical testimony fails to take the injury out of the statutory specification. In Babineaux, Guardala-bene and in the case at bar the testimony fails to relate the injury to the hand as a whole in any manner other than that the finger forms a component part of the hand. Thus the injuries in all three cases were clearly restricted to the fingers involved and thus the recoveries were clearly restricted to the scheduled compensation mandated by the legislature. Cf. Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3d Cir. 1979); Kimble v. Maryland Casualty Company, 360 So.2d 522 (La.App. 2d Cir. 1978). The plaintiff’s first assignment of error is thus without merit.

In a second assignment of error the plain-' tiff contends that the Court of Appeal should not have distinguished the instant case from Ellis v. Bemis Bro. Bag Company, 146 So.2d 667 (La.App. 4th Cir. 1962). In that case the injured worker was feeding material to a roller on a machine when the roller fell across his right hand. The tip of the index finger was injured, as was its knuckle. At trial, the judge observed apparent injury to the knuckle and that the plaintiff was unable properly to close his hand. The medical testimony was unanimous that the injury could be related to the whole hand rather than restricted to a finger, and the trial court awarded injury based on the scheduled compensation for disability to a hand. The Court of Appeal affirmed, particularly noting the trial judge’s personal observations of the plaintiff’s injured hand. Thus it is apparent that Ellis is on its face to be distinguished from the instant case and that the second assignment of the plaintiff at bar is without merit.

Plaintiff’s third assignment contends that the testimony of both physicians in the instant case showed a loss of use in the function of the hand as a whole. Dr. Vial did indeed report a loss of less than 5% in his letter, but the circumstances under which it was written are unknown and the content is too limited to justify any conclusion that he might have been identifying any disability other than that which, as the courts in Babineaux and Guardalabene noted, must necessarily accrue to the whole when one of its parts is injured. Dr. Grun-sten testified that plaintiff sustained an injury to one finger; only when questioned by her counsel whether the injury to the single finger could be related to the hand as a whole did he indicate that the proportion of the hand represented by a single finger could be used to reduce a percentage disability to one finger to a percentage disability to the whole hand. Further, he indicated that even to him it was an even question whether the middle finger involved in this case should be related to the whole hand or treated as an individual digit. Where the legislature has explicitly provided for the compensation to be based on a single finger, there is no merit in the contention that the schedule for the whole hand should apply.

For the reasons assigned, the decision of the Court of Appeal is affirmed. This appeal is to be at the cost of the plaintiff appellant.

DIXON, CALOGERO and DENNIS, JJ., dissent.


source: Caselaw Access Project

author: DIXON, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Johnny G. McINTYRE.
    No. 65439.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.

      Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

The defendant was indicted for aggravated rape and subsequently convicted. On appeal from that conviction this court reversed because of the trial court’s error in refusing a defense challenge for cause of a prospective juror who was a former police captain. State v. McIntyre, 365 So.2d 1348 (La.1978). Defendant was retried, again found guilty, and sentenced to life at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals from that conviction, urging eight assignments of error, four of which have been abandoned.

Assignment of Error No. 1

The defendant contends that the trial court erred in denying his challenges for cause of four prospective jurors. The defendant exhausted his peremptory challenged before completion of the petit jury panel, and is therefore able to complain of the court’s action in refusing his challenges for cause. C.Cr.P. 800.

C.Cr.P. 797 provides in part:

“The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; . . . ”

Defendant argues that under those provisions his challenges to prospective jurors Kimball, Mason, Tyler and Hortman should have been granted.

This court has repeatedly held that the trial court is vested with broad discretion in ruling on challenges for cause and that the trial court’s ruling will be reversed only when it appears, upon review of the voir dire as a whole, that the court’s exercise of its discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. State v. Dickinson, 370 So.2d 557 (La.1979); State v. Webb, 364 So.2d 984 (La.1978); State v. Drew, 360 So.2d 500 (La.1978). Furthermore, a charge of bias may be removed by the rehabilitation of a prospective juror. See State v. Webb, supra; C.Cr.P. 797. There have been instances, however, in which we have held that, because of the totality of the circumstances, it was unreasonable for the trial court to conclude that a prospective juror could be impartial despite his manifestations that he could. State v. Monroe, 366 So.2d 1345 (La.1978); State v. McIntyre, supra.

The challenges against prospective jurors Kimball, Mason and Tyler were essentially predicated on their prior knowledge of the offense and the defendant’s previous conviction. Mrs. Kimball had been called as a prospective juror in the defendant’s first trial but had been dismissed peremptorily by the defense. She had read a newspaper account of that trial and believed that the verdict had been guilty. Mr. Mason stated that a fellow employee of his had been on the jury in the first trial and had stated after the trial the he (the fellow employee) thought that the defendant had been proven guilty beyond a reasonable doubt. Mr. Tyler knew that the defendant had been found guilty in the first trial. He had read newspaper accounts of the alleged crime and had discussed it with acquaintances. He had an opinion that the victim had been raped and an impression that the defendant had done it.

Each of the prospective jurors also gave testimony that tended to rebut any inference of bias that might have arisen from the testimony set out above. Mrs. Kimball stated that she had not formed an opinion as to the defendant’s guilt or innocence. She testified that she would give the defendant the full benefit of the requirement that the state prove the defendant guilty beyond a reasonable doubt. Mr. Mason stated that the statements of his fellow employee would not influence his decision in this case. He further stated that his • decision would be based solely on the facts and the law as given to him by the trial court. Mr. Tyler stated that he would put aside any prior knowledge or discussions he had had about the case in making his decision and indicated that he would presume the defendant innocent and would not vote to convict unless the state had proven him guilty beyond a reasonable doubt.

From a review of the record we cannot conclude that the trial court abused its discretion in denying the defendant’s challenges for cause against these jurors. The circumstances do not indicate that the jurors could not be fair and impartial. The facts brought out by the defendant are not so strong as to cause us to overturn the trial court’s exercise of its broad discretion in this area.

The defendant’s challenge against prospective juror Hortman was based on her relationship to the prosecuting attorney. She stated that she did not know him on a personal basis but that she knew who he was. She had had dealings with his senior law partner and she assumed that the senior partner would not practice with someone unless he was (in the words of defense counsel) a “pretty fine man.” She was also acquainted with a number of state witnesses.

We .have held that the mere fact that a juror is related to a participant in the case does not disqualify the juror from service. The party challenging the juror must also show that the relationship would influence the juror in arriving at a verdict. State v. Gray, 351 So.2d 448 (La.1977); State v. Jones, 345 So.2d 1157 (La.1977). In the instant case, the defendant fails to show how the rather tenuous relationship that the juror had with the prosecuting attorney could have influenced her decision in arriving at a verdict. The juror stated that she would be able to weigh the evidence and arrive at an impartial verdict. We cannot say that the trial court abused its discretion in finding that it was not reasonable to conclude that the juror’s relation with the prosecuting attorney would have influenced her in making her decision as to guilt or innocence.

This assignment of error lacks merit.

Assignment of Error No. 3

At the trial the coroner of Webster Parish, Dr. S. W. Pittman, testified as to the statements made to him by the victim of the crime. The trial court overruled the defendant’s objection to the testimony on the ground that the victim’s statements were part of the res gestae and hence admissible under an exception to the hearsay rule. The defendant assigns error to the trial court’s action.

R.S. 15:447 provides:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

R.S. 15:448 provides:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The defendant argues (and the state does not contest the point) that the statements were made several hours after the crime had occurred. It does not appear from the record that the statements were made under the immediate pressure of the crime, nor were the statements necessary incidents of the crime, or immediate concomitants of it, or a part of one continuous transaction involving the crime. Cf. State v. Drew, supra. Therefore, the statements were not a part of the res gestae and were not properly admitted in evidence.

Nor was the statement admissible under the exception to the hearsay rule, long followed by this court, that allows the admission of early complaints of rape victims. See State v. Hatcher, 372 So.2d 1024 (La.1979); State v. McCloud, 357 So.2d 1132 (La.1978); State v. Elzie, 351 So.2d 1174 (La.1977). The record indicates that the victim’s statements to Dr. Pittman were made a considerable time after the rape occurred, after the victim had spent an undetermined amount of time in the Bossier City, Shreveport and Minden police facilities. She had reported the rape to the police in those cities before talking to Dr. Pittman. Therefore, the victim’s statements to Dr. Pittman were not spontaneous declarations made under the pressure of the rape. Cf. State v. Hatcher, supra; State v. Elzie, supra.

We have held, however, that even if testimony is inadmissible hearsay, if it is merely cumulative or corroborative of other testimony adduced at trial, then the admission of the hearsay is harmless. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Ford, 336 So.2d 817 (La.1976). In the present case the testimony of Dr. Pittman was entirely consistent with that given by the victim and served merely to corroborate that testimony. It was harmless error for the trial court to admit the testimony.

This assignment of error lacks merit.

Assignment of Error No. 5

As the defendant relates the facts, the trial court instructed the jury, in reference to evidence as to flight, that: “You must decide whether such flight was due to consciousness of guilt or for other reasons unrelated to whether or not he was guilty.” The instruction is not in the record. The defendant does not deny that evidence of flight is admissible in criminal cases. See State v. Davies, 350 So.2d 586 (La.1977). He argues, however, that the trial court’s remarks amounted to an improper comment on the evidence in that the court instructed the jury that they must make some inference from any evidence of flight that might be introduced. The defendant argues that it is for the jury to decide if any inference at all is to be drawn from the evidence.

We find nothing improper in the court’s purported remarks. The court was merely reminding the jurors of their duty to review all of the evidence presented and to draw therefrom whatever inference that they thought proper. The court did not force the jurors to choose between two inferences but merely stated that a jury must either consider that evidence introduced is probative of the defendant’s guilt or that it is not.

This assignment lacks merit.

Assignment of Error No. 7

By this assignment of error the defendant urges the unconstitutionality of the non-unanimous verdict in criminal cases. He argues basically that a non-unanimous verdict system dilutes the standard that a defendant must be proven guilty beyond a reasonable doubt.

The less than unanimous verdict has been upheld by the United States Supreme Court and by this court. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); State v. Hodges, 349 So.2d 250 (La.1977); State v. Ledet, 337 So.2d 1126 (La.1976).

This assignment of error is without merit.

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

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Although I agree that the trial judge has great discretion in deciding whether to allow challenges for cause, I think it unlikely that a prospective juror, his protests to the contrary notwithstanding, can be impartial after: (1) having read a newspaper account of defendant’s first trial and agreed with the guilty verdict after being peremptorily challenged by defendant, or (2) having discussed the case with a fellow employee who was a member of the jury in defendant’s first trial and convinced' of his guilt.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Steven LUKEFAHR et al.
    No. 65179.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.
    Provino Mosca, Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, for relator, Roger Williams Ins. Co., surety, for defendants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William J. “Rusty” Knight, Asst. Dist. Atty., Franklinton, Julian J. Rodrigue, First Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-respondent.
   CALOGERO, Justice.

This, matter involves the forfeiture of three $40,000.00 appearance bonds posted on behalf of defendants, Steven Lukefahr, Joseph Trotta, and Gregory Falcone by the Roger Williams Insurance Company of Newport Beach, California. We granted writs upon application of Roger Williams Insurance Company complaining that the judgment of bond forfeiture of January 15, 1979 was illegal, as not in conformity with the controlling statute, R.S. 15:85 A(l), and that the trial court erred in refusing to set the judgment aside.

Defendants Lukefahr, Trotta, and Fal-cone had been convicted of possession of marijuana with intent to distribute and were out on bond pending appeal of their convictions to this Court. On January 5, 1979, prompted by knowledge that a brother of one of these defendants, one Thomas Lukefahr had failed to appear in the district court after his conviction had been affirmed in this Court (see State v. Lukefahr, 363 So.2d 661 (La.1978)) and also responding to the fact that suit had been filed in East Baton Rouge Parish to deny the Roger Williams Insurance Company the right to write bonds in this state and that judgment in such suit had been rendered against the Roger Williams Insurance Company in the East Baton Rouge district court, the trial court recalled on its own motion the earlier order setting bond.

The trial judge ordered defendants Luke-fahr, Trotta, and Falcone to appear before his court on January 15, 1979 “for the purpose of executing bond in a sum in excess of the amount now in existence to be fixed by the court, or alternately, for the purpose of being remanded to the parish jail pending final disposition of their appeal.” He ordered that “attorney for defendants and the bondsmen be notified and that in default of their appearance on January 15, 1979, that present bonds be forfeited and fugitive warrants be issued.”

The record indicates that on January 5, 1979, the clerk of court by regular mail sent a letter notifying the attorney of record of the January 5, 1979 court order (re January 15, 1979 appearance) and enclosing a copy of an extract from the minutes of January 5, 1979. A similar letter was sent to Roger Williams Insurance Company through Pat Horrigan Bonding Company of New Orleans.

On January 15, 1979, attorney Ferdinand Kleppner appeared on behalf of his clients Lukefahr, Trotta, and Falcone. Absent from court on that occasion were the three defendants and any representative of the surety Roger Williams Insurance Company. Attorney Kleppner filed a motion to quash, vacate and rescind the court’s order of January 5, 1979. The trial judge on January 15, 1979 denied that motion, ordered the bonds forfeited and rendered a judgment to that effect because of defendants’ failure to appear on that date. He also issued fugitive warrants. Notice of judgment together with certified copies of the judgment of bond forfeiture were sent certified, return receipt requested, to the lawyers of record for the defendants and to Roger Williams Insurance Company in Newport Beach, California and to Pat Horrigan Bonding Company of New Orleans.

On January 16, 1979, attorney Kleppner acting on behalf of the three defendants notified the court of defendants’ intent to seek writs in this Court and was given ten days in which to do so. He timely filed an application in this Court complaining that the trial judge committed reversible error when on January 5, 1979, he issued the order recalling the bond originally set for defendants for the avowed and stated purpose of either ■ increasing it or remanding defendants to jail. He also contended in his assignment of error that denial of the motion to quash was reversible error. This Court denied that application filed on behalf of the three named defendants, on January 30, 1979. State v. Lukefahr, Trotta, and Falcone, La., 367 So.2d 380, writ den. 1979.

On February 9, 1979, present relator Roger Williams Insurance Company represented by attorney John Cosentino filed a motion to set aside the bond forfeiture urging in his assignment of error that “the trial judge committed reversible error when he issued the order recalling the bond originally set for defendants due to their non-appearance, which order is in clear violation of Article 834 of the Louisiana Code of Criminal Procedure. Article 834 provides that a defendant has a right to be present but his presence is not essential to the validity of the proceedings in three described situations.

The trial judge set the rule for February 26, 1979, and on that date denied the relief sought, refusing to set aside the bond forfeiture judgment.

On March 23, 1979, Roger Williams filed a motion for time to seek writs and the trial court gave them until April 8, 1979. That application was timely filed and given No. 64,395 on our docket. On May 21,1979, this Court denied writs. See State v. Lukefahr, et al, 371 So.2d 266. Then on July 17, 1979, Roger Williams, represented by different attorneys, filed several pleadings in the district court: motion to enroll as counsel; motion to set aside bond forfeiture (to which was attached an order for setting the rule) for reasons which included an attack upon the adequacy of notice to surety to appear on January 15, 1979; and failure to specifically comply with R.S. 15:85A(1). The trial judge allowed enrollment of counsel, refused to set the rule, and summarily denied the motion to set aside the bond forfeiture for the reason that “defendant has already held (sic) a hearing based on the same allegations. The relief was denied and the Supreme Court denied writs.”

Counsel on the same date, July 17, 1979, filed a motion for an appeal which the trial judge denied on the grounds that it was untimely. Counsel also filed for time in which to seek writs in this Court and the trial judge gave him thirty days in which to do so. Counsel filed the application for writs in this Court on the same day, July 17, 1979. The writ was numbered No. 65,179 on our docket and we granted writs on September 18, 1979. The case was docketed, briefed, and argued.

We now conclude that this writ was improvidently granted inasmuch as at the time of the application arid writ grant the matter at issue, relator’s right to have the judgment of bond forfeiture set aside, had been finally litigated and concluded favorably to the state and unfavorably to Roger Williams Insurance Company.

Relief to a surety from bond forfeiture is available by writ under our supervisory jurisdiction. See Kaercher v. Tighe, La., 380 So.2d 1365, per curiam opinion handed down this very day March 3, 1980. Relator in fact sought writs on March 23, 1979, only twenty-seven days after the trial court’s judgment refusing to set aside the bond forfeiture. Therefore the issue concerning whether the judgment of bond forfeiture was improper was decided in our earlier writ denial on May 21, 1979, and the issue was finally litigated at that time.

It could be argued that the judgment was not enforceable (collectible) on May 22,1979 because under the provisions of R.S. 15:85B in effect at the time, the judgment was subject to being set aside upon the surrender or appearance of the defendant at any time within six months after rendition of the judgment forfeiting the appearance bond.

R.S. 15:85B prior to the 1979 amendment by Acts 1979, No. 786 § 1 provided:

“Any judgment forfeiting an appearance bond rendered under the provisions of this Section shall, at any time within six months after rendition, be set aside upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.”

Even assuming that our supervisory jurisdiction might timely be sought repetitiously within the six months surrender or appearance period (a question we need not here answer) such would be of no comfort to relator because more than six months had expired between the date of the rendition of the judgment of forfeiture on January 15, 1979, and the filing of the writ application on July 17, 1979.

We therefore do not reach the merit of the contention which attracted our attention when we improvidently granted the writ, namely, whether the trial judge fully complied with R.S. 15:85 A(l) and whether the surety was properly served with the notice requiring defendants’ appearance on January 15, 1979.

Decree

For the foregoing reasons the writ is recalled, and the trial court’s judgment of July 17, 1979, denying relator’s motion to set aside bond forfeiture is affirmed.

AFFIRMED.

       Chief Judge PAUL B. LANDRY, Jr. retired, participated in this decision as an Associate Justice Ad Hoc.

      . His argument was that such procedure was in violation of C.Cr.P. art. 321, for no good cause was shown.

      . It should be noted that attached to the application was a copy of the motion to set aside filed in the district court in which there was the allegation that “no proper notices of the hearing in question were served upon the defendants or upon surety . . . ” a contention which counsel had apparently abandoned, for it was not asserted in the writ application.

      .Even had the appropriate relief been by appeal relator’s motion for appeal first filed in the district court on July 17, 1979, would have been too late. State v. Sandoz, 258 La. 297, 246 So.2d 21 (La.1971), (decided prior to enactment of the 1974 Constitution) related in a footnote that the appeal, being in the nature of a civil appeal, was governed by the applicable appeal periods under the Code of Civil Procedure. (At the time of an appeal in the early part of 1979, that time period would have been fifteen days for a suspensive appeal and sixty days for a devolutive appeal. C.Civ.P. arts. 2087, 2123.)

      . That application was obviously timely. While it is not entirely clear how long a litigant has to seek relief from a judgment refusing to set aside bond forfeiture, he surely has under our supervisory jurisdiction as much time as he would have had if his right to review were by appeal.

      . Today the applicable time period is sixty days as per amendment by Acts 1979, No. 786 § 1.

      . It can be argued that while the judgment may not be enforceable because the six months surrender period has yet to run, nonetheless deficiencies in the judgment concerning notice of the hearing and other related issues are separate and independent matters not controlled by the issue of surrender within six months.

      . R.S. 15:85 B, as effective at the times in issue here provided for setting aside a judgment of bond forfeiture because of surrender “at any time within six months after rendition.” The same statute today as amended by Acts 1979, No. 786 § 1 effective September 9, 1979, in counterpart language says “within ninety days of the mailing of notice of the forfeiture.”

      . R.S. 15:85 A(l) provides in pertinent part:
      “ . . . the judge, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety . . . .”

      . Although the transcript and minutes do not suggest that at the January 15, 1979 hearing there was offered or introduced into evidence proof of service upon the surety, there does appear in the record a copy of a letter dated January 5, 1979, apparently sent by regular mail, directed to the Roger Williams Insurance Company thru the Pat Horrigan Bonding Company in New Orleans, enclosing certified copy of extract of minutes of January 5, 1979 and notifying that defendants were ordered to appear in court on January 15, 1979.


author:
DIXON, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Irving JONES.
    No. 65628.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Jay C. Zainey, McPherson, Weber, Zainey & Booth, New Orleans, for defendant-appellant.
   DIXON, Justice.

On August 13, 1977 an employee of a Seven-Eleven food store in New Orleans was robbed at gunpoint of the contents of the store’s cash register. Six days later the robbery victim selected a photograph of Irving Jones from a group of seven photographs presented to him by the police, and identified it as that of his assailant. Twenty months later Jones, whose name was actually Willis Wilson but who had assumed the Jones alias during this period, was arrested and charged with armed robbery. He was found guilty of that offense by the vote of ten members of a twelve person jury and was sentenced to fifteen years at hard labor, without benefit of probation, parole or suspension of sentence. The defendant’s appeal is based on five assignments of error, the last of which is urged by the defendant himself in a pro se brief to this court.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying his challenge for cause of a prospective juror whose husband had been the victim of a similar armed robbery one year earlier, and whose home had been burglarized. However, in response to questioning by the prosecution and by the court regarding the effects of these experiences, this prospective juror expressed her conviction that she was capable of giving the defendant a fair and impartial trial. Although she also manifested her disagreement with defense counsel’s analogy of proof beyond a reasonable doubt to a football field touchdown, her subsequent expression of her own concept of reasonable doubt was a fairly accurate approximation of that standard. The trial court’s evaluation of a prospective juror’s fairness and impartiality is entitled to great weight and will not be set aside unless it is arbitrary and unreasonable. State v. Webb, 364 So.2d 984 (La.1978). Because the voir dire examination supports the trial judge’s determination that this prospective juror could fairly and impartially serve, this assignment of error is without merit.

Assignment of Error No. 2

Defendant was identified as the perpetrator of this armed robbery when the victim selected, out of a group of seven photographs displayed to him by the police, a police department photograph of Jones made some ten years earlier. This photograph, signed on the reverse side by the victim at the time of the identification, was introduced at trial- by the prosecution as proof of the out-of-court identification. Defendant contends that the trial court erred in permitting this “mug shot” to be shown to the jury because, as evidence of a prior criminal record, it was prejudicial to defendant.

To be admissible, a photograph must be relevant to a material issue at trial, and its probative value must outweigh any possible prejudicial effect upon the jury. State v. Jones, 345 So.2d 1157 (La.1977); State v. Redwine, 337 So.2d 1041 (La.1976); State v. Cooper, 334 So.2d 211 (La.1976). With the exception of some evidence of the defendant’s guilty behavior in allegedly attempting to avoid apprehension by the police, the state’s entire case rested on the victim’s identification of this photograph as that of the man who robbed him at gunpoint, and on his in-court identification. Because of the photograph’s relevance to the material issue of identification, and its probative value, this evidence was properly admitted, and defendant’s assignment of error is without merit.

Assignment of Error No. 3

In this assignment, defendant argues that his conviction by the non-unanimous verdict of a twelve person jury, a procedure authorized by Article 1, § 17 of the Louisiana Constitution and C.Cr.P. 782, violates the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Defendant concedes that the United States Supreme Court has upheld the use of non-unanimous verdicts in cases involving twelve person juries. He notes, however, that in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), that court recently held that unanimity is constitutionally required where a jury is composed of only six persons. Defendant’s contention that Burch implies that the verdict of a twelve person jury must also be unanimous is belied by that opinion itself, which specifically indicates that the unanimity required of a six person jury is a function of its reduced size. This argument is therefore without merit.

Assignment of Error No. 4

Defendant here contends that his sentence of fifteen years at hard labor without benefit of probation, parole or suspension of sentence is an excessive punishment, in violation of Article 1, § 20 of the Louisiana Constitution. His sentence falls in the lower range of sentences which might have been imposed within the statutory limits of five to ninety-nine years for the crime of armed robbery. We have held, however, that even when a sentence is within the statutory limit, it may be reviewed by this court for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). We have also held that in imposing sentence, the trial judge must comply with the mandatory requirements of C.Cr.P. 894.1, individualizing the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Cox, 369 So.2d 118 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979).

In sentencing Jones, the trial judge stated. only that a lesser sentence would deprecate the seriousness of the crime; he provided no factual bases for the length of- the sentence imposed, and he did not consider the possible existence of statutory mitigating factors. A sentence may be vacated and a case remanded for re-sentencing, however, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Cox, supra; State v. Jackson, 360 So.2d 842 (La.1978). Otherwise, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. Because defendant’s sentence is not apparently severe, we cannot find that the trial judge abused his wide discretion. This assignment of error lacks merit.

In a brief submitted to this court by defendant himself, Jones contends that he was prejudiced by certain comments made by the prosecution in its closing argument to the jury. Jones claims that the prosecutor at that time directed the jury’s attention to his mother’s failure to appear to testify in his behalf regarding his presence at a party at the time of the robbery, the only defense presented by defendant, and that the prosecutor suggested that this failure to appear was proof that his mother was convinced of defendant’s guilt. Attached to defendant’s brief is a certificate from the Orleans Parish Coroner’s Office, showing that his mother died eight months before his trial, the victim of a homicide.

The trial transcript shows that defense counsel was careful to introduce testimonial and documentary evidence of the subsequent death (and consequent inability to appear to testify) of a key figure in Jones’ alibi defense, a man who was allegedly Jones’ co-honoree at a two day party given by Jones’ sister. However, in the course of their extensive testimony concerning the party and its participants, Jones’ alibi witnesses made only fleeting reference to the fact that his mother and father had looked in on the celebration, e. g., question by the state: “Who else was there?”: answer by defendant’s sister: “My mama passed over, but she left. My daddy he came by, but they left. They didn’t stay.” Defense counsel’s failure to introduce evidence of Jones’ mother’s subsequent death is therefore quite understandable; he would have had no reason to anticipate the state’s use of her failure to appear at trial.

However, defense counsel also failed to raise any objection to this portion of the state’s closing argument, nor did he move for a mistrial on the ground of the state’s prejudicial remarks, as provided by C.Cr.P. 771. The absence of a timely objection or motion for mistrial constituted a waiver of this alleged error. State v. Mallett, 357 So.2d 1105 (La.1978); State v. Sims, 346 So.2d 664 (La.1977); State v. Smith, 339 So.2d 829 (La.1976). This error is therefore not properly presented for our review on appeal.

The conviction and sentence of the defendant are affirmed.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur. If defendant’s contention concerning his lawyer’s failure to object to the District Attorney’s argument has merit, his relief is by way of writ of habeas corpus alleging ineffectiveness of counsel.

       Chief Judge PAUL B. LANDRY, Retired, pari Ad Hoc. :ipated in this decision as an Associate Justice

      . Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), ten jurors out of twelve; Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), nine jurors out of twelve.

      . The prosecutor stated: “And look at the witnesses. His two sisters and a very, very good friend. Where are all these other people? Where is Ted and Donald and that whole group? Where is his mama' and daddy who were at the party? Where are all those other people? You mean to tell me if you were on trial for armed robbery, you couldn’t round up all your friends if you had been at some birthday party, any of you all? Armed robbery. That is a serious offense, and you can’t get your friends, your so-called friends to come down here for you? That strikes me very, very strange, ladies and gentlemen. . . . ”

      . In his brief, defendant claims that he urged his counsel to object to the prosecutor’s remarks, but that counsel informed him that an objection would be. improper.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. John A. TOMASETTI, Jr.
    No. 65744.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      A. Kennon Goff, III, Goff, Goff, Levy & Hearn, Ruston, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., T. J. Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., Ruston, for plaintiff-respondent.
   MARCUS, Justice.

John A. Tomasetti, Jr. was charged by bill of information with possession with intent to distribute cocaine in violation of La.R.S. 40:967. Defendant filed a motion to suppress the six grams of cocaine found in a package addressed to him pursuant to a search warrant. He argued that the affidavit upon which the warrant was issued failed to disclose probable cause. After a hearing, the trial judge denied the motion. We granted defendant’s application under our supervisory jurisdiction to review the correctness of this ruling. La.Const. art. 5, § 5(A).

The evidence adduced at the suppression hearing is not in dispute. James Earl Hawkins, agent employed by the United States Justice Department, Drug Enforcement Administration in Shreveport, Louisiana, testified that he was informed by Jim Borden, DEA agent in Tampa, Florida, on April 26, 1979, that Borden and another agent had tested the white powder contained in a package shipped at the Federal Express Office in Tampa by one Bill McVay to J. Tomasetti, 804 Ponder Avenue in Ruston, Louisiana. The white powder proved positive for the presence of cocaine. The package was resealed for shipping. Borden then contacted Hawkins who in turn contacted Trooper Robert Ellis of the Louisiana State Police in' Ruston and related the aforesaid information to him. Ellis testified that he confirmed, through a local utility company, that a John Tomasetti resided at 804 Ponder Avenue, the address on the package. A further check of the license plate (New Jersey) on a gold Toyota parked at that address revealed that the vehicle was registered in the name of Margurite Tomasetti of Middlesex, New Jersey.

When the package arrived in Ruston, defendant was contacted and informed that the package had arrived. Defendant indicated that he would pick up the package immediately. A surveillance had been placed on defendant’s residence and the bus station. Within five minutes, defendant arrived at the bus station, identified himself as the addressee, received the package, and signed a receipt for it.

As defendant came out of the bus station, Trooper Ellis, together with Deputy Jim Tuten, stopped defendant, gave him his rights, and brought him across the street to the courthouse for questioning. Defendant stated that the package was in his hand when he left the bus station but that it was taken from him at some point by Trooper Ellis and placed on a table in front of him during questioning. The officers requested defendant’s permission to open the package, but he refused to sign the waiver form presented. Because of his refusal to consent to a search of the package, the officers decided to procure a search warrant. Trooper Ellis executed the affidavit and obtained a search warrant. Upon his return to the courthouse, the package was opened; it contained approximately six grams of cocaine. While Trooper Ellis stated that he had not placed defendant under arrest at the time of questioning, he admitted that defendant was under detention and, if he had tried to walk off, they would have “physically” stopped him.

The affidavit upon which the search warrant was issued recited the following facts to establish probable cause:

Affiant received a call from U. S. Drug Enforcement Agent Jim Hawkins in Shreveport, Louisiana reference a [sic] envelope containing cocaine that was due to be shipped to Ruston, La. from Tampa, Fla. I received this call approximately 9:00 a. m. April 27,1979. Agent Hawkins informed affiant that Federal Agents, including Agent Hawkins, had knowledge that a [sic] envelope or package addressed to J. Tomassetti [sic], 804 Ponder Avenue, Ruston, La., from Bill McVay, 5404-H Ginger Court Apt., Tampa, Fla. would be arriving by April 30, 1979. Said Agent Hawkins informed affiant that the said package or envelope contained cocaine, a controlled dangerous substance.
Agent Hawkins further informed affiant on April 30, 1979 that said package would arrive in Ruston on the 2:50 p. m. eastbound Continental Trailways Bus. At approximately 2:50 p. m., said bus did arrive at the Ruston Bus Station and said package or envelope was delivered to the manager of the Ruston Bus Station for delivery or pick-up by John Tomassetti [sic]. At approximately 3:00 p. m. manger, [sic] Mr. Barnett, called John Tomas-setti [sic] at a phone number 255-8079 which was on the bus bill and advised him that his package had arrived at the bus station. At approximately 3:05 p. m. John Tomassetti [sic] arrived at the Ru-ston Bus Station and picked up said package or envelope after first signing for it. John Tomassetti [sic] exited the bus station with the package or envelope in his possession.

La.Code Crim.P. art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

See also U.S. amend. 4; La.Const. art. 1, § 5 (1974).

The affidavit submitted to the magistrate may be based on hearsay, but, if so, it must set forth the underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Mena, 344 So.2d 357 (La.1976); State v. Paciera, 290 So.2d 681 (La.1974).

The fact that the information in the instant case was supplied by a named law enforcement officer, i. e., “United States Drug Enforcement Agent Jim Hawkins in Shreveport, Louisiana,” is sufficient to support the credibility of the informant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Beusch, 596 F.2d 871 (9th Cir. 1979). However, the affidavit fails to establish the reliability of the information in that it does not recite the underlying circumstances from which Hawkins had concluded that the package contained cocaine. Thus, the affidavit fails to establish probable cause, making the search warrant invalid. Nevertheless, the state contends that seizure of the package and its subsequent search is valid as incident to a lawful arrest for which no warrant was required. We agree.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, .in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrantless search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

In order to ascertain the validity of the seizure of the package and its subsequent search in this case, we must determine when defendant was actually arrested and whether the arrest was based upon probable cause to believe that he had committed a crime.

La.Code Crim.P. art. 201 defines “arrest” as follows:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

The statutory definition of “arrest” is keyed to the concept of restraint. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: “You are under arrest,” that are determinative of when an arrest is actually made. State v. Marks, supra; State v. Warren, 283 So.2d 740 (La. 1973). In the instant case, we are convinced that defendant was arrested when he was stopped by the police as he exited the bus station and taken by them to the courthouse for questioning. He was unmistakably restrained; he was under arrest. The fact that he was not verbally advised that he was under arrest until after the package was subsequently opened does not alter the fact of arrest.

A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.

In the instant case, Trooper Ellis had received information from Agent Hawkins that the package addressed to defendant had been tested and found to contain cocaine. Ellis verified that the named addressee, defendant, did in fact reside at the address shown on the package. Defendant was approached by the officers as he exited the bus station with the package in his possession. We conclude that ample probable cause existed prior to the arrest of defendant. Accordingly, since the arrest was constitutionally valid, the seizure of the package from defendant and its subsequent search were permissible as incident to his arrest. The package, a 12" X 15" white and blue “Courier-Pak” envelope, was within defendant’s immediate possession and control at the time of his arrest. Since a search of the package could have been made on the spot at the time of the arrest, the subsequent search could legally be conducted later when defendant arrived at the place of detention. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); State v. Rogers, 324 So.2d 403 (La.1975). The seizure of the package and its subsequent search were incident to a lawful arrest and therefore the contents thereof (cocaine) were admissible in evidence. The trial judge correctly refused to suppress the evidence.

DECREE

For the reasons assigned, the ruling of the trial judge denying the motion to suppress is affirmed; the case is remanded to the district court for further proceedings.

       Chief Judge PAUL B. LANDRY, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . The instant case is factually distinguishable from United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, federal agents removed a heavy, double-locked footlocker from the trunk of defendant’s automobile at the time of his arrest and transported the footlocker to their headquarters where it was subsequently searched.


author:
      WATSON, Justice.
     DENNIS, J.,

text:
    STATE of Louisiana v. Dave ALBERT.
    No. 65765.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
    J. Michael Small, Alexandria, for defendant-appellant.
   WATSON, Justice.

James E. “Tobe” Roberts, Johnny Lawrence, and Dave Albert were indicted for the first degree murder of Tobe’s wife, Barbara Roberts, in violation of LSA-R.S. 14:30. The State accepted a plea of guilty to second degree murder by Lawrence. A severance was granted between Roberts and Albert, and separate indictments were filed. In the first trial of Dave Albert, a mistrial was ordered. In this second jury trial, defendant Albert was found guilty as charged. At the hearing on sentencing, the jury was unable to agree on a verdict, and Albert was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. LSA-C.Cr.P. art. 905.-8. The appeal relies on twenty of twenty-three assignments of error.

FACTS:

At approximately 8:00 A.M. on July 27, 1977, Barbara Roberts was murdered at her home in Vidalia, Louisiana. She and her husband were legally separated. Tobe Roberts had beaten his wife severely before abandoning the family home and was living with a girl friend, Sherry Freeman. He suspected his wife of a romantic involvement with Eddie Housley. He had armed Albert and Lawrence, employees in his farm operations, and directed them to watch his wife. On July 23, 1977, Roberts left for a Florida vacation accompanied by the couple’s two teenaged children and Sherry Freeman. Barbara Roberts did not stay in her home at night while the children were gone because of fear. She visited with her sisters, Doris Sutherland; Charlotte Jenkins; and Bobbie Walden. The night before the murder, Barbara was at the Walden home. She left at 7:40 A.M. intending to feed the pet rabbit of her daughter Tammy on the way to work. While inside the house on this errand, she was choked, hit and fatally wounded by a bullet in her right temple. The State’s theory is that Tobe Roberts hired Albert and Lawrence to commit the murder.

ASSIGNMENT ÓF ERROR NUMBER ONE

Defendant contends that the trial court erred in denying his motion to quash on the ground of double jeopardy.

After jury selection was complete in Albert’s first trial, the State called Johnny Lawrence. On direct examination, Law.-rence testified that Albert shot Barbara Roberts and then ran into the barn and told Lawrence what he had done. The two fled, abandoning their guns in a ditch. They hitchhiked to the home of Albert’s sister, where they changed clothes. After describing these events, Lawrence said he had been threatened in jail by unidentified people and was frightened. Despite a defense objection, the court allowed Lawrence to invoke the Fifth Amendment. The next day, when Lawrence again took the stand and stated that he was afraid he would be killed if he said anymore, the court advised that he would be protected and could not refuse to testify on that basis. The court denied Lawrence the protection of the Fifth Amendment, because he feared retaliation rather than self-incrimination. Lawrence was held in contempt of court for his silence and confined to Parish Prison. A motion for mistrial by counsel for Albert was granted.

Defendant claims that this second trial places him twice in jeopardy for the same offense.

LSA-C.Cr.P. art. 591 provides:

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

The mistrial was granted at the request of defense counsel, but it is argued that the motion was not voluntary, because the only alternative was to proceed without the constitutional right of confronting Lawrence on cross-examination. It is also contended that the mistrial was not legally ordered under C.Cr.P. art. 775:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
“(1) The defendant consents thereto;
“(2) The jury is unable to agree upon a verdict;
“(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
“(4) The court finds that the defendant does not have the mental capacity to proceed;
“(5) It is physically impossible to proceed with the trial in conformity with law; or
“(6) False statements of a juror on voir dire prevent a fair trial.
“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

The trial court’s second ruling that Lawrence could not invoke the Fifth Amendment was correct. The witness had a real or imaginary fear which was unrelated to self-incrimination. See State v. Jones, 363 So.2d 455 (La., 1978). Even if his motive had been to avoid self-incrimination, his testimony on direct examination waived his Fifth Amendment privilege as to the substance of that testimony. Compare State v. Bolen, 338 So.2d 97 (La., 1976) which involved cross-examination about matters not covered on direct. The court was aware of the prejudice to defendant which resulted from the refusal of further testimony and stated: “Johnny, you got all this started, you’re in the middle of it now, we’re gonna have to stop the whole trial.” (Tr. 5, December 1, 1977, testimony).

Even granting that defendant’s motion for a mistrial did not amount to “consent of the defendant” under LSA-C.Cr.P. art. 591, the mistrial was legally ordered under LSA-C.Cr.P. art. 775. Lawrence’s refusal to testify constituted a “legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.”

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the trial court erred in not granting a change of venue, based on the Concordia Parish news coverage of the murder, the mistrial, the trial of co-defendant Roberts and the guilty plea of co-defendant Lawrence. The trial judge took the motion under advisement until the completion of voir dire and then denied the motion.

LSA-C.Cr.P. art. 622 provides:

“A change of venue shall be granted, when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

At the time of the murder, there were various newspaper reports. The voir dire of these prospective jurors began almost a year later. Although most of the jurors had heard or read something about the case, many of them said it had been in the past when the murder first occurred. See State v. Bell, 315 So.2d 307, 317 (La., 1975). Only nine of sixty-two prospective jurors indicated that they had fixed opinions about the matter.

One article referred to Barbara Roberts’ slaying as one of three. sensational murders which took place in the parish during the prior year. It quoted Sheriff Fred Schiele as saying it was merely an unfortunate coincidence that two local people had been the victims of murder during a relatively short period. No details of the Roberts’ murder were recounted. Another article described the discovery of a pistol believed to have been used in the murder and said that Albert and Lawrence had been arrested as material witnesses. A subsequent account states that the grand jury had indicted Roberts for first degree murder, Albert for first degree murder, and Lawrence as an accessory after the fact. The articles are factual and not inflammatory. In an interview with Albert’s defense attorney, he is quoted as admitting that most of the publicity centered around the victim’s husband rather than Albert, which is the case. There are no details in any of the articles which point to Albert’s guilt, or tend to create prejudice against him. Defendant did not prove that a fair trial was impossible because of prejudice in the community. State v. Bell, 346 So.2d 1090 (La., 1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that a mistrial should have been granted because the District Attorney in the course of his preliminary statement to the prospective jurors prejudiced the defendant by referring to other trials. While explaining the purpose of the voir dire examination, the District Attorney said:

“The second thing we’ll be going into is the matter of whether or not there should be a change of venue. That is, whether or not, since this case, we all know, this is not, this will be the second or third trial involving the particular incidents involving Mrs. Roberts, that. . . .” (Tr. 0453)

■ Defendant contends that Louisiana C.Cr.P. art. 857 requires that the jury be unaware defendant has previously been tried. See State v. Reed, 324 So.2d 373 (La., 1976). Here, unlike State v. Lee, 346 So.2d 682 (La., 1977), the remark did not pin-point defendant as being involved in the previous trials and there was no reference to a conviction. The prosecutor’s vague remark was relevant to the change of venue question and was probably interpreted by the prospective jury members as referring to the trials of the co-defendants. The trial court correctly concluded that any prejudice which may have resulted was not sufficient to prevent a fair trial. Denial of the mistrial was not an abuse of discretion.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

This assignment of error relates to prospective juror Charles King. The defense used a peremptory challenge on King and contends that he should have been excused for cause because of a preconceived idea about the case. All of defendant’s peremptory challenges were exhausted.

King testified that he had read about Barbara Roberts’ death, but had heard very little discussion about the matter. He said he had formed an impression about the case but stated, “I’m totally free of any fixed opinion.” (Tr. 0478) In essence, King said he had an open mind and could give the defendant a fair trial solely on the basis of the evidence presented in court. The trial court did not abuse its discretion in refusing to excuse him for cause. LSA-C.Cr.P. art. 797(2); State v. Sheppard, 350 So.2d 615 (La., 1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

The defendant contends that the trial court abused its discretion in excusing prospective black juror Lee A. McCoy, Jr., for cause. Prior to the voir dire, McCoy told the court he had known defendant Albert for many years and had graduated with him from high school. McCoy said on voir dire that he would prefer not to judge the case of his close personal friend, and the court excused him. The court acted properly. LSA-C.Cr.P. art. 797(3). Moreover, even if juror McCoy should not have been excused for cause, there was no prejudice to the defendant because the State exercised only six of its twelve peremptory challenges. LSA-C.Cr.P. art. 800; State v. Labostrie, 358 So.2d 1243 (La., 1978).

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant contends that a mistrial should have been granted because prospective juror Charles Harbor volunteered that he had been a prospective juror: “On the same case once before.” (Tr. 0542) No request was made that the jury be admonished to ignore or disregard the comment. The unsolicited remark did not specifically refer to defendant Albert and could have been construed to refer to grand jury proceedings or the Roberts’ trial. The trial court concluded that the remark did not prevent a fair trial. There was no abuse of discretion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

Defendant complains that the State should not have been allowed to use a peremptory challenge to excuse a prospective black juror, emphasizing that defendant Albert is black and victim Barbara Roberts was white. Counsel for defendant concedes in brief that there has been no showing of systematic exclusion of blacks from petit juries in Concordia Parish over a period of time, but points out that blacks were absent from this particular jury.

Without a showing of systematic exclusion of blacks over a period of time, the State is entitled to exercise its peremptory challenges as it chooses. State v. Brown, 371 So.2d 751 (La., 1979); State v. Washington, 375 So.2d 1162 (La., 1979); State v. Roosevelt Allen, 380 So.2d 28 (La., 1980). Further Mrs. Washington was in an advanced stage of pregnancy and a former co-worker with defendant Albert’s two sisters.

There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER ELEVEN

Defendant contends that the trial court erred in allowing hearsay testimony by Bobbie Walden about Barbara Roberts’ state of mind on the night prior to her death. Bobbie Walden intermingled her description of the victim’s physical state with references to remarks she had made. The jury was admonished to disregard Bobbie Walden’s statement that Barbara Roberts said she was afraid her husband was going to kill her. The hearsay statement would have been highly prejudicial if husband Tobe Roberts had been on trial. In Albert’s case, the prejudice was less and the remark may have been admissible to explain “the immediately antecedent circumstances of the murder.” State v. Weedon, 342 So.2d 642 at 647 (La., 1977). Any error was cured by the judge’s admonition. LSA-C.Cr.P. art. 771.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

Defendant contends that the victim’s sister, Doris Sutherland, should not have been allowed to testify about Tobe’s physical abuse of Barbara, his extramarital pursuits and his paranoia about imaginary relationships on the part of his wife. Since a conspiracy between Tobe Roberts, David Albert, and Johnny Lawrence was established, infra, the evidence of Tobe Roberts’ animosity and ill-treatment of his wife was admissible to show the motive behind the conspiracy.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR . NUMBER THIRTEEN

Defendant contends that a mistrial should have been granted when a recorded statement was played in which Albert was asked by Deputy Paul Scott if he knew his rights, and he answered that he did. After an objection that the taped statement constituted an indirect reference to other crimes, the jury was told they could consider other offenses only to prove motive or intent. Counsel for defendant contended that the admonition was prejudicial because there was no evidence of other crimes.

The question posed to defendant on the tape was not by a court official and thus not within the purview of LSA-C.Cr.P. art. 770; State v. Foote, 379 So.2d 1058 (La., 1980). Moreover, it does not refer to other crimes. It was not prejudicial. LSA — C.Cr.P. art. 771. Defendant cannot complain about the effect of the admonition, because it was provoked by his objection. Compare State v. Ross, 320 So.2d 177 (La., 1975).

ASSIGNMENTS OR ERROR NUMBERS FOURTEEN, FIFTEEN, SIXTEEN, SEVENTEEN, EIGHTEEN, AND NINETEEN

These assignments of error relate to the question of whether the State established a prima facie case of conspiracy, as required by LSA-R.S. 15:455.

The State proceeded on the theory that Tobe Roberts hired Johnny Lawrence and Dave Albert to murder his wife while providing himself with an alibi trip to Florida. The trial court correctly concluded that the State proved a prima facie case of a murder conspiracy.

Massive evidence, both direct and circumstantial, was adduced before the trial court ruled that a prima facie case of conspiracy had been established. State v. Kaufman, 331 So.2d 16 (La., 1976). Defendant Albert was charged only with murder and not with conspiracy to murder but the conspiracy aspect was essential to show the motive for the crime.

The evidence showing the conspiracy was cumulative and must be considered as a whole. Bobbie Walden, a close friend of the deceased, testified that Barbara Roberts exhibited a nervous and frightened state of mind prior to her death, looking exhausted and terrible. She had been at her home only a few minutes on the morning when she was killed. Her car was still running outside the door with her purse on the seat. According to the investigation of Deputy Roberts, the murder was not committed in the course of a burglary. The medical testimony was that there was no evidence of sexual assault, thus eliminating another common motive for violent crime.

Lawrence assisted police officers in recovering a pair of blue jeans with Tobe Roberts’ name written inside, a glove which was a mate to one found at the murder scene, and other clothing identified by Lawrence as being that worn by him and Albert when the crime was committed.

Albert, on August 2, 1977, admitted that he had watched Barbara Roberts at her home on many nights at the instructions of her husband and was often armed on these occasions. A .357 magnum pistol was found in the Vidalia canal at a location pointed out by Johnny Lawrence. It was stipulated that the .38 caliber bullet found near Barbara’s body on the morning of her death was fired from that pistol. Charlotte Jenkins testified to an occasion when Barbara Roberts was so badly injured that Charlotte spent the night with her in the hospital. Barbara Roberts appeared frightened and terrified. At approximately 4:00 A.M., Tobe Roberts came in the room with a pistol pointed in his hand. Approximately a month before the Roberts separated, Charlotte Jenkins went to the home and saw Dave Albert squatting in a semi-hidden condition inside. He appeared to be hiding from her. James Sweeny, a neighbor of the Roberts, testified that he saw Tobe Roberts and a black man running out of the Roberts’ home early one morning in April of 1977. Roberts had a gun in his hand and the two appeared to be searching for someone. Sweeny could not identify the black man with Tobe Roberts because his attention was focused on the gun.

Attorney Lloyd Love testified that Barbara Roberts had asked him to proceed with a divorce in July, the month of her death. A property settlement proposed by her husband was rejected as insufficient on July 22, 1977, the last date on which a divorce could be obtained before the summer court recess.

Trooper John Patrick of the Louisiana State Police testified that he examined Tobe Roberts’ bank account and ascertained that Roberts paid Dave Albert checks totaling $1,890 for “labor” between April 30, 1977, and August 7, 1977. Roberts’ account also showed a cash withdrawal of $6,000 on July 22, 1977, and a cash deposit of $4,000 on August 2, 1977, the first being approximately five days prior to the murder and the second approximately five days afterward.

Walter Davis, III, testified that he leased 1,100 acres to Tobe Roberts and had traded Roberts a .357 magnum pistol in exchange for a Winchester rifle on April 16, 1974. He identified the serial number on that gun as 4K9125, the number on the gun found in the Vidalia canal. Davis also testified that he observed that gun or a similar one in Dave Albert’s truck in April of 1977. He observed Dave Albert and Johnny Lawrence together on Sunday, July 24, preceding the murder on July 27.

Eddie Housley testified that he had not had any improper relationship with Barbara Roberts prior to her death.

Wayne Roberts testified that he had seen a weapon similar to the murder weapon in Dave Albert’s truck prior to the murder.

Jesse White, Jr., testified that, about a week after the murder, Albert asked White to go with him to search for a rifle he said he had lost in the Vidalia canal.

Dorothy Richardson testified that two men, one of whom she recognized as Dave Albert, caught a ride with her on the day of the murder. Both were wet and muddy and claimed that they were fleeing from a game warden. She subsequently learned that the other man was Johnny Lawrence. There was testimony that there were no game wardens on duty that day anywhere in the area.

Tammy Roberts testified that Albert was regarded as a member of her family. Both he and Lawrence were armed and on guard at the Roberts’ home prior to her mother’s death. On one occasion, Dave Albert was inside the house and “jumped out” (Tr. 1147) at her with a gun in his hand when she came home from school. She identified the blue jeans with her father’s name inside as similar to those worn by her father and given to Albert.

Sherry Freeman said she first met Albert early in 1977 at the Roberts’ residence about 5:00 A.M. He was in a truck with a shotgun leaning out of the window. On the Saturday of the Florida departure she observed Roberts exhibit a wallet containing about $10,000 to Albert and Lawrence. Roberts then gave Albert “something” (Tr. 1163). At this point, the trial court ruled, out of the jury’s presence, that the State had established a prima facie case of conspiracy. Sherry Freeman was then allowed to testify that:

“Tobe said, ‘We won’t have to worry about her when we get back, she’ll be gone’.”

There was overwhelming evidence of a conspiracy. See State v. Sheppard, 350 So.2d 615 (La., 1977); State v. Bell, 346 So.2d 1090 (La., 1977).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NUMBER TWENTY AND TWENTY-ONE

These assignments of error relate to the testimony of Walter Kelly, II, who was incarcerated with Tobe Roberts. Kelly testified that he was paid by Roberts to copy three letters which were intended to exculpate Albert and implicate Lawrence. Part of the testimony and the letters were objected to as hearsay but were admitted under the coconspirator exception to the hearsay rule. LSA-R.S. 15:455. Since the State established a prima facie case of conspiracy, supra, the evidence was properly admitted.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-TWO

Counsel for defendant objects to the trial court’s failure to give the jury a special written charge as follows:

“Mere presence at or near a crime scene at or near the time the crime was allegedly committed, without more, does not render one guilty of the offense committed.”

The trial court ruled that the contents of the requested charge were adequately covered in the general charge defining an accessory after the fact. The essence of the requested special charge; i. e., the fact that Albert may have been present when Barbara Roberts was murdered did not necessarily make him guilty of murder, was adequately covered by the general charge.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-THREE

Defendant complains that a statement in the prosecutor’s closing argument constituted a reference to Albert’s failure to testify in his own behalf and justified a mistrial. The comment was: “Every man has a right to be silent, but no man has a right to lie.” (Tr. 1313) In context, it clearly referred to defendant’s pretrial statement and not to his failure to testify. See State v. Frank, 344 So.2d 1039 (La., 1977).

This assignment of error is without merit.

For the reasons assigned, the conviction and sentence of defendant Dave Albert are affirmed.

AFFIRMED.

DENNIS, J.,

concurs, but disagrees with statement of law relative to exclusion of black jurors.

CALOGERO, J., concurs.

       Chief Judge PAUL B. LANDRY, Jr., participated in this decision as Associate Justice ad hoc, in place of SUMMERS, C. J.

      . Assignments of error two, three and nine have been abandoned.

      . LSA-C.Cr.P. art. 857:
      “The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.”

      . LSA-R.S. 15:455:
      “Each co-conspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”