author: MELVIN A. SHORTESS, Justice Ad Hoc. DENNIS, Justice, LEMMON, Justice,

text:
    STATE of Louisiana v. William B. CUNNINGHAM.
    No. 81-KA-1865.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don C. Burns, Dist. Atty., Russell Woodard, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
   MELVIN A. SHORTESS, Justice Ad Hoc.

Defendant William B. Cunningham was charged by bill of information filed June 10, 1980, with possession of a controlled, dangerous substance, to-wit: marijuana, with intent to distribute, a violation of La.R.S. 40:967. A motion to suppress the evidence was filed on October 14, 1980. After the trial court denied this motion, defendant pleaded guilty as charged, reserving his right to appellate review of the denial of his motion to suppress. State v. Crosby, 338 So.2d 586 (La.1976). The trial court accepted the plea and sentenced defendant to serve two years at hard labor and to pay a fine of $1,000.00 plus court costs, in default thereof, to serve 120 days in the Parish jail.

The two-year prison term was suspended and defendant was placed on supervised probation for three years. As a special condition of probation, he was sentenced to serve one year at the Ouachita Area Multi-Parish Prison. Defendant appeals, alleging as error the trial court’s denial of his motion to suppress. The defendant contends that certain evidence was illegally obtained during a search of his automobile, particularly the trunk area.

FACTS

On Sunday, March 23,1980, Trooper Dennis D. Ledbetter of the Louisiana State Police, working in Caldwell Parish, received a tip from a confidential informant that William Bruce Cunningham, Jr., was his drug supplier and that he lived in West Monroe, Louisiana. The informant stated that he was overdue to call defendant and volunteered to contact him and arrange for a delivery of more drugs to Caldwell Parish. At some time between noon and 3:00 p. m., Ledbetter contacted Trooper Johnny Paine at his home in Monroe, Louisiana. He advised Paine of the narcotics transaction he believed would take place and requested Paine to come to the Sheriff’s office in Columbia, Louisiana.

The informant told the officers that the defendant lived on Harmon Street in West Monroe and drove a dark green Dodge or Plymouth. Paine then contacted Trooper Randy Beckham and West Monroe Police Detective Bobby Smith and requested that they verify the address and car description given by the informant. This initial information was confirmed some time either pri- or to or directly after the informant phoned Cunningham to set up the delivery.

At approximately 4:22 p. m., the confidential informant, in the presence of Paine and Ledbetter, telephoned West Monroe and spoke to the defendant. The informant advised defendant that he could come to Caldwell Parish to pick up money that had been collected from previous sales and to deliver more drugs. The defendant agreed to bring the drugs, immediately. Ledbetter testified that he believes he attempted to contact the judge but could not get an answer. He stated that he felt he did not have enough time to go look for someone, because it was a Sunday afternoon, and the vehicle might soon be entering Caldwell Parish. Paine testified that the entire telephone conversation between informant and defendant was recorded and that he played the entire tape before leaving the courthouse. Paine further requested that Trooper Beckham and Detective Smith in Monroe continue their surveillance of defendant at his home and follow him into Caldwell Parish.

Ledbetter and another deputy then left the courthouse and proceeded toward the Ouachita Parish boundary line. Paine also proceeded to the Parish line in his unmarked vehicle. Beckham and Smith, coming from Monroe, informed the other officers by radio that defendant had left his residence and was proceeding toward Columbia in a green, 1975 four-door Dodge with a temporary license in the rear window.

At approximately 5:25 p. m., Ledbetter observed the defendant’s vehicle after it entered Caldwell Parish on Highway 165. He pulled the vehicle over, using his red light, while Paine pulled off the road in front of the vehicle. The officers from Monroe also arrived at the scene. Paine identified himself to defendant and advised him that he was going to search his vehicle, “under the authority of the Carroll Doctrine,” and gave defendant his Miranda warnings. The defendant had, at this time, stepped out of his vehicle. Beckham immediately got the keys from the ignition and opened the trunk of defendant’s automobile. Ledbetter was standing at the trunk with Beckham and testified that when the trunk was opened, he observed two boxes in the trunk compartment. He stated that each box contained zip-lock bags of suspected marijuana. The officers then arrested the defendant.

ISSUE NO. 1

The first issue in this case is whether the officers acted within constitutional limits in stopping defendant on a public road and conducting a warrantless search and seizure of his vehicle.

The Fourth Amendment of the U. S. Constitution and Article 1, Section 5, of the Louisiana Constitution protects citizens against unreasonable searches and seizures. Warrantless seizures are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Guzman, 362 So.2d 744 (La.1978). In the absence of a warrant, the State has the burden of proving that the search falls within one of the few well-delineated exceptions to the warrant requirement.

The exception urged by the State is outlined by the U. S. Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception to the warrant requirement is known as the “automobile emergency exception.” For a war-rantless search to be upheld under this exception, Carroll and its progeny require that two conditions be met:

... (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be “exigent circumstances” requiring an immediate warrantless search, i.e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” State v. Guzman, supra, 362 So.2d at 748, citing Chambers v. Maroney, 399 U.S. 42 at 51, 90 S.Ct. 1975 at 1981, 26 L.Ed.2d 419 at 428 (1970).

The officers here had obtained certain information from a confidential informant. They had a general description of the car, an address, and the informant’s word that defendant was a drug supplier. A drug transaction was arranged by telephone in the presence of the officers, and the defendant agreed to bring the drugs immediately. At this point the officers were forced to act quickly if they were to take full advantage of this valuable information. Thfere is mention of an attempt to contact the judge by telephone, but there was no answer. It was a Sunday afternoon, so the judge may have been harder to locate. But at this point, the officers were not certain that the defendant would follow through with the arranged drug sale. From the time the phone call by the informant was made, to the time when defendant was stopped and his car searched, only a little over one hour had elapsed. At some point, the officers from Caldwell Parish made radio contact with the officers from Monroe. The investigation was continued by cooperation from both law enforcement agencies. The officers waited until defendant entered Caldwell Parish and neared the point of delivery before pulling him over. Paine testified that when the vehicle entered Caldwell Parish he felt that there were more facts to support a probable cause determination, because at that point the automobile had arrived where it was expected. The vehicle was pulled over to the side of a public highway on a Sunday afternoon. The defendant was immediately alerted by Paine that his car would be searched. He was not placed under arrest until the marijuana was seized. Therefore, he would have been free to leave and to destroy any contraband in his vehicle had the officers left to get a search warrant.

The defendant argues that once the vehicle was detained and the officers were present, exigent circumstances did not exist, and a search warrant should have been sought. In State v. Guzman, supra, which has strikingly similar facts, the defendant made the same argument, and this court gave the following response:

There is substantial merit in the contention that police must obtain a search warrant for an automobile when they can do so without jeopardizing the contraband sought, but neither this court nor the United States Supreme Court has made that requirement. Although a search may be a greater intrusion into privacy than the sequestration, immobilization, impoundment or detention of the thing to be searched, and although a detached magistrate should be better able than the police to decide whether probable cause to search exists, the sequestration is itself a seizure. The validity of both seizures and searches is measured by the same constitutional standards. It would require an extension of constitutional law to permit the police to seize without a warrant, and then forbid them to search the thing seized unless a warrant is first obtained. 362 So.2d at 749.

In Guzman, the defendant was also pulled over on Highway 165 after a drug transaction was arranged through the cooperation of police officers and a communications worker. The officers possessed substantial information about a shipment of heroin. This court, however, felt that the officers were correct in concluding that their suspicion ripened into probable cause only when the ongoing investigation had progressed to a point where the defendant was identified as an occupant of the suspected car traveling on Highway 165. The search and seizure of the automobile in Guzman was held valid under the “automobile exception.”

In State v. Tant, 287 So.2d 458 (La.1973), there was a 24-hour delay from the time the officers were informed that the defendant’s vehicle contained drugs to the time of the subsequent search. The officers had chosen to place the car under surveillance and became concerned when it seemed that it might escape their jurisdiction. The court in Tant stated:

It is not unreasonable, and accordingly it is permissible for police to exercise discretion in not immediately obtaining a search warrant in numerous hypothetical circumstances among which is the effort to uncover further violations of the law. This is in keeping with the general aims and needs of law enforcement. Furthermore, by purposely imposing this restraint, the police afford themselves more time to gather information with which to convince an impartial magistrate that a search warrant should issue. 287 So.2d at 461.

A four-hour delay from the time a van departed from Dallas, Texas, to the time it was stopped and searched in Lincoln Parish, Louisiana, did not invalidate the search of the van on the grounds that the police should have obtained a warrant. State v. Hearn, 340 So.2d 1365 (La.1976). The facts in Hearn show that the officers acted on an informant’s tip and did not feel that they had probable cause until the information they had received was confirmed by the vehicle’s entrance into Lincoln Parish. The officer with the information that perhaps would have supported a search warrant was an integral part of the ongoing operation. The court found the surveillance was piecemeal and that all of the officers involved did not have complete information.

The delay in the present case was a little more than one hour. The officers herein were forced to respond quickly to confirm the information supplied by their informant. In good faith they waited for defendant to enter Caldwell Parish. Therefore, our review of the record, in light of the prior jurisprudence, reveals that there was probable cause and exigent circumstances to justify the warrantless search and seizure of defendant’s vehicle.

ISSUE NO. 2

Although we find that the warrantless search of the vehicle was justified under the “automobile emergency exception,” a second issue remains as to the constitutionality of the “search” and seizure of the boxes found within the trunk.

The State contends that the marijuana, contained in the two boxes located in the interior of the trunk, was in plain view. The officers had prior justification for opening the trunk, i.e., the automobile exception. If they inadvertently discovered the marijuana and it was immediately apparent without close inspection that this was contraband, then the “plain view” doctrine would operate to clothe the seizure with constitutionality. Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); Coolidge v. New Hampshire, supra, State v. Parker, 355 So.2d 900 (La.1978). The only evidence in the record to support the State’s position is the testimony of one of the two officers standing at the trunk when it was opened. Trooper Ledbetter testified:

At that time Trooper Beckham removed the keys from the ignition and opened the trunk of the vehicle, which was the place where our informant said Mr. Cunningham usually carried the narcotics. As the trunk was opened, I was at the rear of the car and I observed two boxes. Each of them contained zip lock bags of— which was suspected marijuana. (Tr. p. 16).

The defendant correctly states that an exception to the warrant requirement is never presumed. When a warrantless search is involved, the State must prove that an exception is applicable. Article 703(D) of the Louisiana Code of Criminal Procedure provides in pertinent part:

... the State shall have the burden of proving the admissibility ... of any evidence seized without a warrant.

Due to the paucity of evidence in the record, we are not prepared to find that the “plain view” doctrine is operative in this case to justify the seizure of the two boxes containing marijuana.

Nevertheless, the search and seizure of the boxes may be justified on other constitutional grounds. In Robbins, supra, the U. S. Supreme Court was confronted with the search of a container in the course of an automobile search. The defendant in Robbins was pulled over by police officers for erratic driving. The police approached the vehicle and smelled marijuana smoke as the defendant stepped out of his car. They searched the station wagon and found in the luggage compartment two packages wrapped in green opaque plastic. The officers then unwrapped the packages and found two bricks of marijuana.

Robbins was a plurality decision in which four U. S. Supreme Court justices held that the packages were protected by the Fourth Amendment, and their search and seizure was illegal. The Robbins court expressed concern for the “.. . reasonable expectation of privacy,” surrounding closed containers and refused to allow circumvention of the warrant requirement by the use of the automobile exception.

In recent years we have twice been confronted with the suggestion that this “automobile exception” somehow justifies the warrantless search of a closed container found inside an automobile. Each time, the court has refused to accept the suggestion. 101 S.Ct. at 2845.

In earlier cases, the U. S. Supreme Court had found warrantless searches of certain containers unconstitutional. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (luggage); U. S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (footlocker). The court in Robbins felt these cases were controlling:

[The Fourth] Amendment protects people and their effects, and it protects those effects whether they are “personal” or “impersonal.” The contents of Chadwick’s footlocker and Sanders’ suitcase were immune from a warrantless search because they had been placed within a closed, opaque container and because Chadwick and Sanders had thereby reasonably “manifested an expectation that the contents would remain free from public examination.” United States v. Chadwick, supra, 433 U.S. at 11, 97 S.Ct. at 2483.
Once placed within such a container, a diary and a dishpan are equally protected by the Fourth Amendment. 101 S.Ct. at 2846.

Therefore, since the defendant in Robbins had carefully wrapped and sealed the container in green opaque plastic, he too had manifested a reasonable expectation of privacy in the contents of the container. Once a container is surrounded with such an expectation, it may not be searched absent a warrant.

State v. Hernandez, 408 So.2d 911 (No. 81-K-1669) was decided by this court on December 14, 1981. Hernandez involved a tip from an informant who told the police that the defendant would be bringing marijuana in his truck to a Brown and Root Construction site to sell at work. The truck was adequately described, including the license number. The police were told that the defendant would have the marijuana somewhere under the seat of the truck. The police went straight to the construction site, after being called at 5:30 in the morning, to meet the defendant on arrival. They obtained the assistance of the chief of security at the site. A lawful search of the truck revealed a plastic Tupperware container in the cab of the truck behind the front seat. The security chief removed it from the vehicle. Upon opening the Tupperware container, the officers found the suspected marijuana, and the defendant was arrested.

In Hernandez, we found that the search and seizure of the car and the Tupperware container were valid. The Tupperware was found to be a container:

... lawfully seized during the lawful search of the automobile, which [was] reasonably likely to contain contraband.

Furthermore, the defendant in Hernandez had signed a company form authorizing the security officers to search all vehicles and their contents which were in the company parking lot for the purpose of discovering controlled dangerous substances. These two circumstances helped us conclude that the defendant could not have reasonably expected that the contents of the Tupperware container were to be shielded from the public view. Therefore, the Tupperware container was not protected by the Fourth Amendment from a warrantless search and seizure.

In United States v. Neumann, 585 F.2d 355 (8th Cir. 1978), the Eighth Circuit of the U. S. Court of Appeals was called on to determine the validity of a search of a closed, but otherwise unsealed department store box. The box was found sitting on the floorboard of an automobile. The court held that the search was valid:

This court is of the opinion that the warrant requirement in Chadwick should not be extended to the facts of this case. There is simply an insufficient expectation of privacy in an unsecured cardboard box sitting in plain view in the passenger compartment of an automobile.

The central focus of our determination in the present case must be, “What expectation of privacy surrounded these containers?” The officers had constitutional authority to open the trunk under the Carroll doctrine. The boxes themselves were within plain view once the trunk was opened. No testimony was elicited as to the size or shape of the boxes, or whether they were closed or sealed in any specific manner; but the facts and circumstances at hand gave the officers probable cause to believe that said boxes contained contraband. Hernandez, supra. We are of the opinion that these boxes were not surrounded with a sufficient expectation of privacy so as to be clothed with Fourth Amendment protection.

Therefore, we conclude that the search and seizure of the automobile, along with the search and seizure of the boxes found within the trunk, were within constitutional limits. The trial court’s denial of the motion to suppress is affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

LEMMON, J., concurs and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority’s attempt to distinguish the present case from Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), is unsuccessful. In Robbins, the high court specifically addressed the government’s contention that there is a constitutional distinction “between pieces of sturdy luggage, like suitcases, and flimsier containers like cardboard boxes,” 101 S.Ct. at 2845, and that the nature of a container may diminish the constitutional protection to which it otherwise would be entitled. The court rejected this argument because 1) it has no basis in the language or meaning of the Fourth Amendment and 2) because it is virtually impossible to perceive any objective criteria by which the task might be accomplished. The majority concedes that the state has not met its burden of proving that the warrantless search of the cardboard boxes is justified by one of the narrow exceptions to the warrant requirement. The motion to suppress, therefore, should have been granted.

LEMMON, Justice,

concurring.

The officers had probable cause to believe there was marijuana somewhere in the vehicle, although the probable cause information did not focus on any particular place or container in the vehicle. Therefore, this is an “automobile” case and not a “container” case. State v. Hernandez, 408 So.2d 911 (La.1981).

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson and Lem-mon.

      . “The package visible in the photograph is apparently wrapped or boxed in an opaque material covered by an outer wrapping of transparent, cellophane-type plastic. (The photograph is not in color and the ‘green’ plastic cannot be seen at all.) Both wrappings are sealed on the outside with at least one strip of opaque tape. As thus wrapped and sealed, the package roughly resembles an oversized, extra-long cigar box with slightly rounded comers and edges. It bears no legend or other written indicia supporting any interference concerning its contents.” Robbins, supra, 101 S.Ct. at 2844, footnote 1 citing 103 Cal.App.3d 34 at 44, 162 Cal.Rptr. 780 (Rattigan, J., dissenting).

      . There are certain well-delineated exceptions to the warrant requirement. When the contents of a package or container are exposed to “plain view,” there is no need for a warrant. Likewise, when a container so clearly announces its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to the observer, then no warrant is necessary. Robbins, supra, 101 S.Ct. at 2846, 2847.


source: Caselaw Access Project

author:
SAVOIE, Justice Ad Hoc.
     DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. James BELL.
    No. 81-KA-1919.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Charles Kelly, Robert W. Gillespie, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Howard M. Fish, Shreveport, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

This matter comes before this Court on one (1) assignment of error: "The trial court erred in imposing an excessive sentence in violation of Article I, Section 20 of 1974 Louisiana Constitution”.

Defendant, James Bell, was charged by grand jury indictment with the March 10, 1979 aggravated rape of his nine-year-old niece, a violation of R.S. 14:42. As the result of a plea bargain, defendant withdrew his former dual plea of “not guilty and not guilty by reason of insanity,” entering a plea of guilty to the lesser offense of attempted aggravated rape on February 19, 1981, with the further understanding that the sentence to be imposed would not exceed ten years. He was sentenced on May 28, 1981, to serve ten years at hard labor and appeals on the basis that the sentence is excessive.

The defendant, at the time a twenty-nine year old married father of two daughters, had sexual relations with his nine year old niece. He is of marginal intelligence and, sometime after his arrest, was found to be incapable of assisting in his own defense and was committed to Feliciana Forensic Facility. After a year of treatment and regular administration of the drug, Thorazine, he was certified competent and returned for trial. At this point, a plea bargain arrangement was made whereby Bell would be permitted to plead guilty to the lesser crime of attempted aggravated rape and would be guaranteed a sentence not to exceed ten years at hard labor. The trial judge concurred in this arrangement and the plea was entered. The judge ordered a pre-sentence investigation performed and, after reading the report, he pronounced sentence, stating his reasons therefor in detail. There is no need to recapitulate here all that the judge said, except to state that his remarks represent a studied and conscientious compliance with Code of Criminal Procedure Article 894.1, which provides a statutory guide to the exercise of judicial sentencing discretion and requires the sentencing judge to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence”.

It has been held by this court that where a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by Article 894.1, State v. Curry, 400 So.2d 614 (La.1981). This continues to be true. But we commend Judge Clark for the practice followed here, where he put a ceiling on the sentence he would impose, but judiciously refused to agree to a particular sentence until he had been made fully aware of the circumstances of the crime by a careful investigation made on his orders.

In this case, Judge Clark imposed the maximum sentence within the limits to which he had agreed when he accepted the plea of guilty. The statement of his reasons shows his close familiarity with the defendant’s history and the circumstances of the crime. As stated there, James Bell had no criminal history, had a good work record, and had a history of mental disease which, at the time of sentencing, was, apparently, under control.

Judge Clark also found several aggravating circumstances present in this case. Without indicating exactly what information in the PSI he was relying on, the judge stated that “it is clearly indicated to this Court that (the defendant) is a sexual deviate”. The court further noted that the victim of the crime was a nine-year-old child, and that, in fact, the evidence indicated a completed act of aggravated rape had taken place.

As a general rule, a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980). In the present case, defendant’s admitted intercourse with a nine-year-old girl subjected him to a probable conviction of aggravated rape and an attendant sentencing exposure of life imprisonment, La.R.S. 14:42, a penalty which the accused’s plea dramatically reduced. Admittedly, the defendant’s mental instability played a large role in the State’s decision to negotiate his plea. Under these circumstances, the defendant has little reason to complain.

The sentence is affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

This case illustrates that State v. Curry, 400 So.2d 614 (La.1981) tends to confuse, rather than assist, sentence review and should be overruled. Does the majority read Curry to require that a plea bargain by a defendant of marginal intelligence, entered during his temporary Thorazine induced mental competency, bars this court from reviewing his sentence for constitutional excessiveness? Or, did the majority review the excessiveness of the sentence and find that the record as a whole justifies the punishment, mainly because the defendant received a ten year hard labor, but parolable, sentence after being allowed to plead guilty to attempted aggravated rape although the evidence indicates the rape was completed upon the nine year old victim? I believe the sentence should be affirmed on the latter basis only. Moreover, if this court were to treat a plea bargain as merely one circumstance to be considered in reviewing a sentence rather than a basis for a per se rule cutting off review entirely, it would promote more clarity and fairness in our penalty reviews.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.


author: FRED S. BOWES, Justice Pro Tern.

text:
    STATE of Louisiana v. Irvin WINN.
    No. 81-KA-2140.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Jeanette G. Garrett, and Donald R. Minor, of Indigent Defender Office, Shreveport, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, Irwin Winn, was convicted of three counts of armed robbery in violation of R.S. 14:64, one count of aggravated kidnapping in violation of R.S. 14:44, two counts of aggravated rape in violation of R.S. 14:42, and two counts of aggravated crime against nature in violation of R.S. 14:89.1. After a trial by jury, he was sentenced to twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence on each count of armed robbery, the sentences to run concurrently; life imprisonment at hard labor for aggravated kidnapping; ten years at hard labor for each count of aggravated crime against nature, the sentences to run concurrently; and life imprisonment at hard labor for each count of aggravated rape, the sentences to run concurrently. The trial court ordered the twenty-five year sentences for armed robbery to run consecutively with the life sentence for aggravated kidnapping and the life sentences for aggravated rape. On appeal, the defendant urges twelve assignments of error.

On April 26, 1980, at approximately 9:00 p. m., a man with a towel over his face, armed with a shotgun, went into Ward’s Chapel in Shreveport, Louisiana, and ordered everyone in the church to get down on the floor. He then stated that one of the ladies was to get up and get the wallets from the men. Thinking he was talking to her, Patricia Reliford did as he directed. When Ms. Reliford gave the wallets to the man, he grabbed her by the arm and took her outside, where he lead her into some woods across the street from the church. After taking Ms. Reliford deeper into the woods, he tied her hands behind her back with a necktie and removed her undergarments. On two separate occasions, in different parts of the woods, the man raped her and forced her to engage in oral sex. Ms. Reliford tried to resist her assailant but he held a gun to her head while he raped her. Eventually, the victim escaped to a nearby road and summoned help. Subsequently, Ms. Reliford, the pastor of the Chapel, and several witnesses, identified the man as the defendant, Irvin Winn.

Assignment of Error Number 1

By this assignment, defendant contends that the trial court erred in denying his motion to suppress the identification evidence. It is the defendant’s contention that the identification should have been suppressed because it was the result of suggestive identification procedures. He also argues that there was no independent basis for an in-court identification of him. With regard to the suggestiveness of the identification procedure, defendant maintains that Ms. Reliford was shown pictures of him twice, which implanted his features in her mind and tainted the identification of him.

At the motion to suppress, Ms. Reliford stated that on one occasion, she was shown a photographic lineup prior to viewing the physical lineup. She testified that she looked at eight pictures for about five minutes. Ms. Reliford claimed, however, that she was unable to identify her assailant from the pictures. When asked whether the defendant Winn was in that group of pictures, Ms. Reliford answered, “I didn’t remember. If he was in there, I didn’t know it.”

Defendant also argued at the motion to suppress that Ms. Reliford’s identification of him was further tainted because she “had the opportunity” to see him prior to the physical lineup. Before the lineup, defendant was sitting in a room in the police station while Ms. Reliford was waiting in the next room. Although the door between the two rooms was open, the defendant could not testify that Ms. Reliford actually saw him. He merely asserted that she had the opportunity to do so.

With regard to the identification of the defendant in the physical lineup, Ms. Reli-ford maintained that she based her identification on the physical appearance and characteristics of the defendant, i.e., size, height, weight and voice. Each of the six men in the lineup were made to step forward and say: “Come on and be quiet.” Although, at one point in her testimony, Ms. Reliford stated that she recognized the defendant by his voice, she later said that she recognized him before he said anything.

The evidence does not indicate that the identification procedures were unduly suggestive. Manson v. Brathwalte, 432 U.S. 98, 97 S.Ct. 2243, 53 S.Ct. 140 (1977). If the photograph of the defendant was actually shown to Ms. Reliford prior to the lineup, she didn’t remember it. She stated that she did not recognize the defendant in the photographic lineup. Even if she did see the defendant’s photograph, this fact did not have any bearing on what happened later, in light of her perception at the time of the photographic lineup. There was also no evidence to show that Ms. Reliford saw the defendant in the next room in the Detective Division. These facts formed the basis of the trial judge’s decision to deny the motion to suppress and we agree.

Even assuming that the identification procedures were suggestive, there was a sufficient independent basis for the in-court identification. Ms. Reliford stated that she was in the woods with the defendant “for a long time.” She was able to observe the lower part of his face, i.e., the lips and chin area. When he had a mask on, she was able to observe his eyes. At trial, Ms. Reliford maintained that she had recognized the defendant at the lineup by his voice, his beard, and his physique. It is well established that even if a pre-trial identification of an accused was the product of impermissible suggestion, the in-court identification is, nevertheless, admissible if it has an independent basis. State v. Stewart, 389 So.2d 1321 (La.1980); State v. Rudolph, 332 So.2d 806 (La.1976), and cases cited therein.

For these reasons, this assignment is without merit.

Assignment of Error Number 2

By this assignment, defendant contends that the trial court erred in denying his motion to suppress physical evidence. The evidence seized inside the house included some shoes and socks, and eighteen dollars from a nightstand in the defendant’s room. None of these were introduced into evidence at trial. A hat belonging to Winn, and a wallet taken in the armed robbery, were found beneath a barn on the property where the defendant lived. A photograph of the hat with the wallet inside, along with the wallet itself, was introduced at trial.

During the late evening hours of April 26, 1980, or the early morning hours of April 27, 1980, the defendant was arrested and taken to the police station. Later that morning, after the crime was committed, the police went back to the defendant’s residence. Winn had lived with Roland Franklin, the owner of the house, since he was two years old. After arriving at the house, the police obtained Franklin’s consent to search. Defendant argues that Franklin’s consent was not freely given, and that Franklin did not have the right to consent to a search of the defendant’s bedroom.

It is well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Bourgeois, 388 So.2d 359, 362 (La.1980). However, when the State seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given.

It is clear from the hearing on the motion to suppress that Franklin’s consent was freely and voluntarily given. He stated that he realized he did not have to let the officers search the house or yard but that he wanted them to do so. Clearly, Franklin had the right to consent to a search of his house and grounds. Whether he had the right to consent to the search of the defendant’s room is an issue that does not have to be addressed, as none of the items seized from the defendant’s room were offered into evidence. Since the hat and wallet were seized under Franklin’s barn, pursuant to Franklin’s consent to search his property, the trial judge was correct in denying the motion to suppress.

This assignment has no merit.

Assignment of Error Number 8

By this assignment, defendant argues the trial court erred in denying his motion to quash, alleging prejudicial join-der. The defendant was charged by a single indictment with eight separate offenses; armed robbery (3 counts); aggravated kidnapping (1 count); aggravated rape (2 counts); aggravated crime against nature (2 counts). He contends that the joinder of these crimes was prejudicial, in that it was too difficult for the jury to segregate each offense and to consider the evidence in determining whether all the elements of all the offenses had been proven beyond a reasonable doubt. The defendant further states that considering the heinous and sexual nature of some of the charges there was a great likelihood that any jury would be hostile to a person on trial for eight counts of this nature.

C.Cr.P. Art. 493 provides for joinder of offenses:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

The offenses in question certainly seem to meet the “same act or transaction” requirement of Art. 493. Clearly, the evidence produced at the motion to quash and at the trial itself indicated that these crimes were a continuous transaction, from start to finish, involving the victim and the defendant. It can also be stated that the jury was able to segregate each offense and consider the evidence in determining whether each element of the offenses was proven beyond a reasonable doubt. The jury was polled as to each count and gave its verdict as to each count.

Defendant also alleges that he was prejudiced by the joinder of these offenses and that they should have been severed. La.C. Cr.P. Art. 495.1 provides for severance of offenses:

If it appears that a defendant or the State is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In State v. Washington, 386 So.2d 1368 (La.1980), this Court discussed the various factors to be considered by a lower court in applying Art. 495.1:

“... the trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. See Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); United States v. Weber, 437 F.2d 327 (3rd Cir. 1970).”

This Court held in State v. Webb, 364 So.2d 984 (La.1978), that charges of aggravated kidnapping, armed robbery, and attempted aggravated rape, arising out of the same crime spree, were properly joined. In this case, there are no facts to indicate that the jury was hostile to the defendant or overwhelmed by the charges against him. We, therefore, find that the offenses were not improperly joined.

For these reasons, this assignment lacks merit.

Assignment of Error Number 4

By this assignment, defendant contends that the trial court erred in denying his requests for supplemental discovery.

The defendant made two requests for supplemental discovery. In the first request, he asked that any and all statements made by Patricia Reliford be made available to him. The second request sought production of all police reports made in connection with this case. Defendant argued that these items should have been made available to him to examine for exculpatory evidence. He alleges that there was conflicting testimony at the motion to suppress concerning whether the defendant’s picture or a photographic lineup was shown to the victim before the live lineup.

Defense Counsel refers this Court to its decision in State v. Sylvester, 388 So.2d 1155 (La.1980). There we applied a “reasonable doubt that did not otherwise exist” standard, in deciding whether a request for production of a statement should have been granted.

As set forth in Assignment of Error Number 1, supra, Ms. Reliford herself testified at the motion to suppress that she was shown a photographic lineup before she viewed a physical lineup. The requested documents were examined “in camera” and were found by the trial judge to contain no exculpatory evidence, except that in her statement Ms. Reliford indicated that she had not seen the defendant’s face very clearly. Ms. Reliford also testified at trial that she had not seen the defendant’s face clearly, and that she had viewed a photographic lineup prior to identifying the defendant in a physical lineup. From these facts, it is clear that the production of police reports and a prior statement by the victim revealing the same facts would not have created a “reasonable doubt that did not otherwise exist.” State v. Sylvester, supra.

This assignment is without merit.

Assignment of Error Number 5

By this assignment, defendant asserts that the trial court erred in denying a defense challenge for cause against prospective juror, Miriam Ellzie.

La.C.Cr.P.Art. 797, pertaining to challenges for cause, provides in pertinent 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 submits that Ms. Ellzie’s recent and lengthy employment with the Caddo Parish Clerk of Court’s office made it reasonable to conclude that she was not impartial. Art. 797(2). He also argues that her relationship with the District Attorney’s office and the prosecutor was such that it was reasonable to conclude that it would have influenced her in reaching a verdict. Art. 797(3). Ms. Ellzie’s job duties were related to the criminal justice system in that she prepared all the criminal appeals from Caddo Parish for review by this court. By virtue of her employment, she knew the assistant district attorney prosecuting the case and also stated that she had handled many appeals in cases that were prosecuted by him.

Defense counsel correctly points out that service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause. State v. Lewis, 391 So.2d 1156 (La.1980). However, that is not the case here. One who has previously worked in a Clerk of Court’s office would not be classified as “one associated with law enforcement duties.” The cases defendant relies on all deal with prospective, former, or current employees of the police department or District Attorney’s office. See, State v. Lewis, supra; State v. Simmons, 390 So.2d 1317 (La.1980); State v. McIntyre, 365 So.2d 1348 (La.1979). Ms. Ellzie was merely an employee of the Clerk of Court’s office, performing administrative, and not law enforcement, duties.

A trial judge is vested with large discretion in ruling on a challenge for cause. His ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Lewis, supra. Ms. Ellzie testified on voir dire that her acquaintance with the district attorney and the prosecutor on a professional level would in no way affect her deliberation on the facts in the case. In light of this testimony by Ms. Ellzie and the above-discussed standard in State v. Lewis, supra, we do not find that the trial judge abused his discretion in denying the defendant’s challenge for cause.

For these reasons, this assignment is without merit.

Assignment of Error Number 6

By this assignment, defendant argues that the trial court erred in allowing the prosecution to exercise a peremptory challenge before the defense had the opportunity to conduct voir dire examination of the prospective juror. He contends he was denied his constitutional right to conduct a full voir dire examination of prospective jurors under La.Const.Art. 1, Sec. 17. Defendant cites State v. Claiborne, 397 So.2d 486 (La.1981) in support of this proposition.

In State v. Claiborne, supra, the defendant’s conviction was reversed because the State was allowed to challenge a juror for cause before the defendant was given an opportunity to examine the prospective juror. Claiborne is not applicable here, however, since the State used one of its peremptory challenges to exclude the juror in question. Under La.C.Cr.P. Art. 795, a peremptory challenge may be made by the State at any time before the juror is accepted to serve on the jury panel.

It is true that allowing the State to exercise a peremptory challenge before the defense has had a chance to examine the prospective juror is not in strict compliance with the codal provisions governing the selection of jurors. La.C.Cr.P.Art. 786 provides that the Court, the State, and the defendant, shall have the right to examine prospective jurors. Under La.C.Cr.P. 788, after the examination provided for in Art. 786 is conducted, a prospective juror is then tendered first to the State for acceptance or rejection, then to the defendant. However, the defendant was in no way prejudiced by the trial court allowing the peremptory challenge to be exercised. La.C.Cr.P. Art. 921. In State v. Nix, 327 So.2d 301, 327 (La.1976), this Court held that a defendant has no standing to complain of the manner in which the State exercises its peremptory challenges.

Additionally, defendant did not object at the time the State exercised its peremptory challenge. Therefore, he is barred from asserting this issue on appeal. State v. McDermitt, 406 So.2d 195 (La.1981), La.C. Cr.P.Art. 841.

Therefore, this assignment is without merit.

Assignment of Error Number 7

By this assignment, defendant maintains that the trial court erred in allowing a State witness to make an in-court identification of him.

Margaret Williams was the first witness to testify for the State. She was present in the church when the intruder entered. Although Ms. Williams did not view any type of lineup at the police station after the crimes were committed, she did view pictures of the lineup in the district attorney’s office on the morning of the trial.

During the trial, the judge sustained the defense’s objection to the prosecutor’s attempt to have Ms. Williams look at the pictures taken at the lineup and try to identify the defendant. However, he allowed Ms. Williams to make an in-court identification of the defendant over defense counsel’s objection. The trial judge stated that he was overruling the objection because of prior testimony from the witness with regard to the conditions.

Ms. Williams did not positively identify the defendant at trial. When asked if, based on her observations in the church that night, she could identify anyone in the courtroom as the perpetrator of the crime, she replied, referring to the defendant, “that looks like his body-build right there.”

The witness had the opportunity to observe the defendant in a well-lighted church. The armed intruder had commanded her attention for several minutes. She was able to describe his clothing, his mask, and the type of gun he was carrying. In our opinion, the totality of the circumstances indicate that the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

This assignment is without merit.

Assignment of Error Number 8

By this assignment of error, defendant contends that the trial court erred in permitting corroboration of a key witness’ testimony before she testified.

The State’s key witness in this trial, Ms. Patricia Reliford, was the seventeenth witness to testify. Reverend Leroy Ward, called as the State’s seventh witness, was not present in the church when the intruder entered. He gave the police Irvin Winn’s name as a suspect when he learned that the man wore dark clothing and a hat. On the night the offenses occurred, or early the next morning, Reverend Ward was in the police station where he saw the defendant.

At the trial, during redirect examination, the prosecutor asked Reverend Ward whether, while he was at the police station, he, himself, or anyone else, influenced Ms. Reliford in choosing somebody in a lineup. Over the objection of defense counsel, Reverend Ward was allowed to answer this question. He responded, “No.”

Defendant relies on R.S. 15:484 in asserting that the trial court erred in allowing the prosecutor to question Ward about the lineup proceedings involving Ms. Reliford.

La.R.S. 15:484 provides:

Before a witness has been sworn he can be neither corroborated nor impeached, nor is testimony to establish the credibility of a witness admissible until that credibility has been attacked.

As stated , by this Court in State v. Batiste, 363 So.2d 639 (La.1978), one of the reasons underlying this rule of evidence is that:

“... courts have recognized that an attempt to establish the credibility of a witness before that credibility has been assailed carries the inherent prejudicial danger of bolstering, in advance, a witness’ testimony and increasing its probative strength with the jury.” 363 So.2d at 640.

In Batiste, this Court found prejudicial error had occurred where a U. S. Attorney testified that all charges except one had been dismissed against a certain witness in exchange for his testifying “completely and truthfully,” where that witness had not yet testified.

In this case, Reverend Ward was not testifying to the “truth” of Ms. Reliford’s future testimony. He was merely relating what he observed at the police station and what he did or did not say to her. Although his response did indirectly corroborate Ms. Reliford’s later testimony that she was not told who she should choose from the physical lineup, it is our opinion that Reverend Ward’s testimony was not the type intended to be excluded under R.S. 15:484.

This assignment has no merit.

Assignment of Error Number 9

By this assignment, defendant urges that the trial court erred in refusing to permit introduction of preliminary hearing transcripts for impeachment purposes. The defense attempted to introduce Detective Gary Foster’s testimony at the preliminary hearing to impeach Patricia Reliford’s identification testimony at trial. The Court refused to admit this testimony because there was no showing that Detective Foster was unavailable to testify.

La.C.Cr.P. Art. 295 provides in pertinent part:

The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.

At the time of trial, Detective Foster was no longer with the Shreveport Police Department. Although the State subpoenaed Foster, it did not call him at trial. It did indicate, however, that Foster could be available within two hours if the defense wished to call him to testify. At no time did the defense ask that the witness be called to appear in person.

This court has held in State v. Kaufman, 304 So.2d 300 (La.1974), that a showing of unavailability must be made before a witness’ former testimony can be admitted. However, since Detective Foster’s preliminary hearing testimony was not being offered to prove the truth of the matter asserted, but only to establish that a prior inconsistent statement was made, the trial judge erred in excluding the evidence. State v. Hennigan, 404 So.2d 222 (La.1981); State v. Bazile, 386 So.2d 349 (La.1980).

It is not clear, however, why defense counsel believed Detective Foster’s preliminary hearing testimony would have helped defendant. In no way does it contradict Ms. Reliford’s version of her ability to recognize the defendant. During cross-examination at the preliminary hearing, Detective Foster testified that Patricia Reliford stated that she recognized the defendant by his voice and description, i.e., height and weight. When defense counsel cross-examined Ms. Reliford at trial, she denied saying that she recognized the defendant by voice alone. A review of the trial and preliminary examination testimony reveals that there were no prior inconsistent statements made by Ms. Reliford concerning her identification of the defendant. In fact, Detective Foster’s prior testimony served to reinforce Ms. Reliford’s story.

Although the preliminary hearing testimony of Detective Foster should have been admitted, there is no evidence that the trial court’s ruling in any way prejudiced the defendant. We, therefore, find that the trial court’s ruling in refusing to permit introduction of preliminary hearing transcripts did not constitute reversible error. La.C.Cr.P.Art. 921.

Accordingly, this assignment is without merit.

Assignment of Error Number 10

By this assignment, defendant maintains that the trial court erred in allowing the State, in its rebuttal argument, to present an argument concerning the Atlanta child murders. Defendant argues that the reference to the Atlanta child murders was a matter outside the record and, by its nature, clearly appealed to prejudice.

La.C.Cr.P. Art. 774 sets forth the permissible scope of closing argument:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

A review of the record indicates that during rebuttal argument the State analogized its failure to produce the towel and the stolen money in this case with the Atlanta police’s failure to find the bodies of the young people in that case. The prosecutor was trying to make the point that all the evidence of a crime is not always found. In our opinion, the State was only “answering the argument” of defense counsel concerning the failure of the State to produce the rag and the stolen money. That is certainly permissible under Art. 774.

Even assuming that the prosecutor’s comments did not fall within the permissible scope of Art. 774, their use would not have constituted reversible error. Before this Court will reverse a conviction on the basis of improper argument, it must be convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Heads, 370 So.2d 564 (La.1979). In Heads, the prosecutor referred to the facts of the highly-publicized “Son of Sani” case. This Court found that the reference was made during a clearly permissible argument concerning the value and weight to be given to the character testimony presented by the defense, and did not constitute reversible error. La.C.Cr.P.Art. 921.

In this case, the prosecutor’s reference to the Atlanta murders was made during a' clearly permissible rebuttal to closing arguments raised by the defense that the State failed to produce the towel and the stolen money. We do not feel that these remarks contributed to the verdict.

Therefore, this assignment is without merit.

Assignment of Error Number 11

By this argument, defendant contends that the trial court erred in denying his motion for a new trial, which was based on insufficient evidence to support a verdict. Defendant submits that the evidence adduced at trial only supported convictions for the lesser offenses of simple robbery, forcible rape, simple kidnapping and crime against nature. He also maintains that the conviction should not be allowed to stand because of the contradictory testimony given by the State’s key witness, Patricia Reliford, on the identification issue. In short, defendant urges that no rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty as charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A review of the evidence presented at trial reveals that there was, indeed, sufficient evidence to convict the defendant of the greater offenses.

Defendant argues that the shotgun found by the police was unloaded and, hence, did not constitute a “dangerous weapon” under R.S. 14:64. However, an unloaded gun has been found to satisfy the “dangerous weapon” requirement for armed robbery. State v. Levi, 259 La. 591, 250 So.2d 751 (1971). Additionally, the presence of the gun prevented Ms. Reliford from resisting to the utmost the defendant’s sexual attack upon her. There was testimony to the effect that the defendant would not kill Ms. Reli-ford as long as she cooperated with him. Since the defendant’s implied threat was “accompanied by apparent power of execution”, there was clearly sufficient evidence to convict him of aggravated rape. R.S. 14:42.

With regard to the aggravated kidnapping conviction, this Court has held that seizure of a person with intent to commit rape satisfies the requirement under R.S. 14:44 that the perpetrator has the intent to force the victim to give up anything of apparent present or prospective value. State v. Polk, 376 So.2d 151 (La.1979); State v. Sonnier, 379 So.2d 1336 (La.1979). We feel there was sufficient evidence to convict the defendant of aggravated kidnapping.

Finally, according to Ms. Reliford’s testimony, she was forced to engage in oral-genital sex. This has been held to constitute a crime against nature. State v. Phillips, 365 So.2d 1304 (La.1978). Since Ms. Reliford was “prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution,” there was sufficient evidence to find the defendant guilty of aggravated crime against nature. R.S. 14:89.1.

Defendant’s additional argument that the identification evidence was so weak and contradictory that it cannot be deemed trustworthy is also unsupported by the record. Ms. Reliford’s identification testimony given during direct and cross-examination at trial was not contradictory. It was essentially the same as the testimony that she gave at the preliminary hearing. (See Arguments I, IV, IX, supra)

Accordingly, this assignment is without merit.

Assignment of Error Number 12

By this assignment, defendant contends that the trial court erred in imposing an excessive sentence.

The trial judge imposed the following sentences on the defendant: 25 years at hard labor without benefit of parole, probation or suspension of sentence on each count of armed robbery, the sentences to run concurrently; life imprisonment at hard labor for aggravated kidnapping; 10 years at hard labor for each count of aggravated crime against nature, the sentences to run concurrently; life imprisonment at hard labor for each count of aggravated rape, the sentences to run concurrently. The trial court ordered the 25-year sentences for armed robbery to run consecutively with the life sentence for aggravated kidnapping and the life sentences for aggravated rape. Defendant submits that all of the sentences should have been ordered to run concurrently. Because consecutive sentences were imposed, he argues the sentence should be considered excessive.

Defendant refers this court to C.Cr.P.Art. 883 which provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

According to defendant, the wording of the statute indicates that it is preferable to impose concurrent terms of imprisonment for offenses constituting parts of a common plan or scheme. He relies on State v. Cox, 369 So.2d 118 (La.1979), where it was noted that concurrent rather than consecutive sentences are the usual rule under American theory and practice, at least for a defendant without a criminal record and in the absence of a showing that the public safety requires a longer sentence.

In his statements of reasons for sentencing, the trial judge noted that the defendant did have a prior criminal record. Winn had been convicted of carrying a prohibited weapon in Texas in 1972 and in Caddo Parish for the unauthorized use of a weapon in 1976. There was also a pending charge in Rapides Parish, which had been reduced to unauthorized use of a weapon and for which there was still an outstanding bench warrant. The judge apparently believed that the public safety required a longer sentence in this case. He stated that a lesser sentence would not be considered in view of the seriousness of the crime, and that correctional treatment and a custodial environment were absolutely necessary.

The trial judge took into consideration the mitigating, as well as the aggravating, circumstances involved. He mentioned the defendant’s good work history and good school record, his lack of involvement with juvenile authorities, and his honorable discharge from the Air Force after attaining the rank of sergeant. The judge stated, however, that there was clearly an undue risk that the defendant would commit another similar crime.

From the record, it appears that the trial court adequately complied with the sentencing guidelines in C.Cr.P.Art. 894.1. The defendant was found guilty of not one but several vicious crimes for which the legislature has designated very long terms of imprisonment and we feel that the sentences imposed upon the defendant were not “so disproportionate to the crime committed as to shock the court’s sense of justice.” State v. Bonanno, 384 So.2d 355 (La.1980). Therefore, the trial court did not abuse its large discretion in sentencing and the defendant’s sentences should be upheld. State v. Spencer, 374 So.2d 1195 (La.1979).

This assignment is without merit,

DECREE

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

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward Dufresne, Jr., of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.

      . Ms. Reliford had told the police that the defendant told her, several times during the incident, to “come on and be quiet."


author:
FRED S. BOWES, Justice Pro Tern.
     CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana v. Thomas LOWDINS.
    No. 81-KA-2271.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., Evelyn Oubre, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appel-lee.
    Alvin B. King, Terry Thibodeaux, Lake Charles, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, Thomas Lowdins, was charged by a grand jury with crime of second degree murder, in violation of La. R.S. 14:30.1. He was tried before a twelve-person jury which found him guilty as charged. The court then sentenced him to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on ten assignments of error for reversal of his conviction. Assignment numbers four, five and ten were neither briefed nor argued and therefore are considered abandoned.

Mary Ann Francis was killed on November 15, 1980. Ms. Francis and the defendant, Thomas Lowdins, had been living together in the victim’s home for a week prior to the murder. Ms. Francis had left Low-dins and stayed with her mother for a few days. She returned to her home on Saturday. Later that evening, there were ten to twelve people inside her house. Without saying a word, Lowdins walked up to the house, opened the door, pulled out a pistol, and shot Ms. Francis. As she fell to the floor, Lowdins fired two more shots at her and then spoke, asking where somebody else was. There was no evidence of a quarrel or provocation prior to the killing.

Assignment of Error Number 1

By this assignment, the defendant contends that the trial judge erred in excusing prospective jurors without the presence of defense counsel. After the roll call of cases set for trial that morning had been completed, and the defendant had announced his readiness for trial, the judge questioned prospective jurors at the bench concerning their requests for hardship excuses. Subsequently, some of the jurors were excused.

The defendant bases his argument on La. C.Cr.P. Art. 831 which states in pertinent part:

A defendant charged with a felony shall be present:
(3) at the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;

However, this court stated in State v. Williams, 258 La. 801, 248 So.2d 295 (1971):

(1) A trial court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. La.C.Crim.P. Art. 783. He may excuse members of the venire in advance of the time of trial, providing he does not abuse his discretion in this regard. Official Revision Comment (b), Article 783; State v. Ceaser, 249 La. 435, 187 So.2d 432 (1966).
(2) A juror is not “called” or “examined” within the meaning of La.C.Crim.P. Art. 831(3), until he is called for examination in the trial of that particular defendant, see La.C.Crim.P. Art. 761. The defendant need not be present when the trial judge excuses prospective jurors before his own case is called for trial. State v. McGuire, 254 La. 560, 225 So.2d 215 (1969).

In this case, the roll was called for the jurors and they were afforded the opportunity to submit special reasons for being excused. Since the defendant’s case had not yet been called for trial, there was no need for either counsel to be present at this procedure. According to La.C.Cr.P. Art. 783, the court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror in a particular case. In this case, the jurors were called but not yet sworn. Therefore, the trial court committed no error in excusing these jurors.

Accordingly, this assignment is without merit.

Assignment of Error Number 2

By this assignment, the defendant contends that the trial court erred by denying his motion to defer the presentation of his opening argument until after the completion of the State’s case. The defendant bases his argument on La.C.Cr.P. Art. 765 which provides that the defendant may waive his opening statement. Traditionally, the judge has the discretion in dealing with the order of trial; therefore, the defendant claims that the judge abused that discretion by not allowing his opening statement after the State’s case.

The defendant’s argument, regarding the trial judge’s discretion in dealing with the order of trial as prescribed by La.C.Cr.P. Art. 765, is contrary to the jurisprudence of Louisiana. In State v. Thomas, 395 So.2d 802 (La.1981), after the State had presented its evidence on the first of two counts, the defendant moved to be allowed to present his defense to that count before the State presented evidence on the second count. The trial court denied the motion and this court upheld that ruling. It noted that Art. 765 prescribes the normal order of trial and found no authority for varying that order. As the Official Revision Comments to Art. 765 indicate, “The provision of La.Code Civ.P. Art. 1632, which authorizes the court to vary the order when circumstances justify, is omitted from this article, because it seems dangerous in criminal cases.” The Comment also notes that “Variations can occur, ...” but defense counsel has made no compelling argument that the trial court’s refusal to vary the normal order of trial prejudiced the defendant.

For these reasons, this assignment is without merit.

Assignment of Error Number 3

Defendant contends that the trial court erred in refusing to suppress oral, inculpa-tory statements made by him to police upon their second visit with him. He alleges that these statements were taken in violation of his right to counsel.

During the police officer’s first interview with the defendant, he expressed a wish to talk with an attorney, at which time the officers terminated the questioning. Detective Reinecke testified that the next day he received a message from the defendant, who wanted to talk to him. Detectives Reinecke and Guillory then went to the jail for a second interview. After being advised of his Miranda rights, the defendant gave the inculpatory statement at issue. The statement was never offered into evidence. Reference, only to a portion of its contents, was made in the State’s opening argument, when the prosecutor stated that the defendant had purchased the gun a short time before the shooting.

At the motion to suppress, defendant testified that on Monday, November 17, 1978, he surrendered himself to the Sheriff’s Department but refused to give a statement until he talked to an attorney. He stated that on the afternoon of Tuesday, November 18, 1980, two detectives requested a second interview with him in the jail. Defendant then testified that the detectives told him that they wanted to get a statement for the Grand Jury to indict him for first degree murder. At this point, Low-dins decided that he should give his side of the story. Thereafter, he gave an oral, inculpatory statement. At the hearing, defendant insisted that he did not request the second interview, as the detectives had testified.

The basis for the defendant’s motion to suppress was that the second interrogation, at which the statement was taken, was made in violation of the standards set forth by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In Edwards, the United States Supreme Court held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he had been advised of his rights.” The Court also held that the accused is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications with the police.

In this case, there was a dispute as to whether the defendant initiated the interrogation after declaring that he wished to see an attorney. After hearing all the evidence at the motion to suppress, the trial judge decided the credibility question in favor of the police officers, who testified that the defendant requested the second interview.

Admissibility of a confession is, in the first instance, a question for the trial judge, whose conclusions on credibility and weight of testimony relating to voluntariness will not be overturned unless they are not supported by the evidence. State v. Lewis, 353 So.2d 703 (La.1977).

We feel that the trial court’s determination on the motion to suppress was supported by the evidence.

Even assuming the circumstances of obtaining the inculpatory statement did violate the standards set out in Edwards supra, the question would then become whether the error is a reversible one. Looking at the facts of this case, it appears that ten or twelve eye-witnesses to the actual shooting would be ample testimony to support the specific intent element of second degree murder. The time at which the defendant purchased the gun used would hardly affect the jury’s verdict in light of this other overwhelming evidence. Thus, even if the prosecutor’s remarks were error, and the statement should have been excluded, that error would be harmless and no reason for a reversal.

This assignment is without merit.

Assignment of Error Number 6

By this assignment, defendant contends that the trial court erred in refusing to give special requested jury charges regarding the presumption of intoxication contained in La.R.S. 32:662(A)(1). The defendant argues that his requested charge was a correct statement of the law under R.S. 32:662. Counsel argued in brief that the statute touched upon the central issue at trial: the degree of defendant’s intoxication at the time he shot the victim down.

We feel the requested charge was not “wholly correct and pertinent” to the case under La.C.Cr.P. Art. 807. La.R.S. 32:662 deals with legal intoxication for the purpose of the operation of automobiles on the open road. Intoxication for purposes of the motor vehicle code, and the degree of intoxication necessary to negate an essential element of a major felony offense, are clearly different matters. Defense counsel’s charge was potentially misleading, as it invited the jurors to conclude that because the defendant was legally presumed intoxicated, he lacked the specific intent to commit the crime. R.S. 14:15(2). The trial court, therefore, correctly refused to give the charge. La.C.Cr.P. Art. 807.

This assignment is without merit.

Assignments of Error Numbers 7, 8 and 9

By these assignments, defendant argues that the trial court erred in charging the jury that the State need only prove its case by a preponderance of the evidence. After the charge was read to the jury, the defense objected and moved for a mistrial. The judge denied the defendant’s motion and reread a portion of the charges to the jury with “beyond a reasonable doubt” substituted for “preponderance of the evidence.” Defendant contends that the jury was confused by the conflicting standards for guilt and, therefore, a mistrial should have been granted.

There is no evidence to support defendant’s argument that a group of reasonable people, such as the jury, could not change the standard for guilt to “beyond a reasonable doubt” without confusion. Since the jury was properly reinstructed by the judge, there appears to be no grounds for the defendant’s argument.

Accordingly, these assignments are without merit.

DECREE

For the above reasons, the conviction of the defendant is affirmed.

ON APPLICATION FOR REHEARING

CALOGERO and DENNIS, JJ.,

concur in the denial of the application for rehearing while expressing reservations about that portion of the majority opinion which finds no merit to assignment of error number three by reason of harmless error (in the alternative).

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.


text:
    STATE of Louisiana v. Clifton LEWIS.
    No. 81-KA-2540.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    Helen Ginger Roberts, and Edward E. Roberts, of Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, Clifton Lewis, was convicted by a jury of forcible rape in violation of R.S. 14:42.1. The sentence was twenty-four years at hard labor; the first eight years without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence. Assignment of Error Number 4 was neither briefed nor argued, and therefore it is considered abandoned.

On December 13, 1980, at approximately 7:00 p. m., Debra Rose Lambert had returned from taking her live-in companion to work when she was confronted by a masked man in her house. The intruder hit her over the head and, after she fell to the floor, he started ripping off her clothes. Although her assailant was masked with a loose-fitting flour sack, Ms. Lambert recognized him by his voice and build as her next door neighbor, Clifton Lewis, and called him by name several times. After beating Ms. Lambert with the butt of a rifle, Lewis then marched her back to the bedroom where he raped her. When Lewis left, she went to a neighbor’s house where the police were called. On the basis of Ms. Lambert’s report, the authorities arrested Lewis later that morning. At the station house, the defendant gave two written statements, the second of which amounted to a full confession of the sexual assault on Ms. Lambert.

Assignment of Error Number 1

By this assignment, the defendant contends that the trial court erred in ruling that the defendant’s statements were freely and voluntarily given and that the waiver of his rights was made knowingly and intelligently.

Defendant bases his argument against the knowing and intelligent waiver of his rights on the testimony of Dr. James Quil-lin, a clinical psychologist, who examined Lewis to determine his mental capacity. Dr. Quillin concluded that Lewis was a borderline retardee, ranking in the fourth to ninth percentile of the general population. His mental age was about eleven or twelve years old. Although defendant, in his brief, noted that Dr. Quillin’s report indicated that Lewis’ mental functions were like someone with severe brain damage, he failed to point out that part of Dr. Quillin’s testimony which explained the test results. Dr. Quillin testified that when the original data is combined with the test results, it becomes clear that, although defendant was in the borderline area of impairment in each test, there was no severe brain damage. Essentially, his brain was fairly slow.

Responding to the questions regarding defendant’s ability to understand his Miranda warnings and waive his constitutional rights, Dr. Quillin testified that Lewis understood all of the words in the standard waiver form that was read to him, but he had serious doubts about whether he could understand some of the constitutional rights which are implicit in the waiver form. We feel that there are many people in the general population who would not understand all the constitutional rights implicit in a waiver form. This inability of the defendant does not necessarily render his waiver involuntary.

There was additional testimony by Dr. Quillin that the defendant could not read or write very well. Officer Dennis Richards of the Rapides Parish Sheriff’s Department testified that at least three times before taking any statement, he read Lewis his Miranda warnings and carefully explained the waiver of rights form, including his constitutional rights, with the knowledge that Lewis could not read or write at all. Officer Richards then assured the court that he felt that the defendant understood those rights and signed the waiver form freely, voluntarily, and without force, threats, or intimidation. He further stated that nothing was promised to the defendant for waiving his rights and making an incul-patory statement. Although the interview was conducted in two sessions, it was the defendant who terminated the first interview and the defendant who initiated the second interview. Thus, the statement was elicited, not only with the cooperation of Lewis but also at his request, as clearly appears from the written statements themselves.

Although Dr. Quillin testified that he didn’t think Lewis genuinely understood all of his constitutional rights as contained in the waiver, the trial judge weighed all the factors and ruled that the defendant did make a knowing and intelligent waiver of his rights and that the statement was freely and voluntarily given. The trial judge’s decision was based on the jurisprudence of this state where this court has repeatedly held that moderate mental retardation and low intelligence do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Anderson, 379 So.2d 735 (La.1980).

Thus, this court has emphasized that the critical factor is whether or not the defendant was able to understand the rights being explained to him.

In light of Dr. Quillin’s .testimony, the State had the burden of proving that the defendant’s mental defect did not preclude him from giving a free and voluntary confession with a knowledgeable and intelligent waiver of his rights. State v. Coleman, 369 So.2d 1286 (La.1979). In this case, the three officers who dealt with Lewis, from the time of arrest through the taking of his statements, all testified that they had read him his rights. Officer Richards testified that since he thought that the defendant could not read or write, he was especially careful to explain the rights read from the waiver form to him, as well as the meaning of the waiver of rights. The defendant responded affirmatively to all questions regarding his understanding. The testimony adduced at the motion to suppress and at trial supports the conclusion that, although the defendant, Clifton Lewis, was in a custodial environment, his confession was given freely, knowingly, and intelligently.

This assignment is without merit.

Assignment of Error Numbers 2 & 3

By these assignments, the defendant contends that the trial court erred in permitting repeated prosecutorial references to the psychological impact of this incident upon the victim. During the prosecutor’s direct examination of the victim, Debra Lambert, he asked her if she had sought counseling of any type since this incident. Defense counsel objected that this information was irrelevant and inadmissible. The court sustained the objection. Later, defense counsel moved for a mistrial under La.C.Cr.P.Art. 770(1), which was denied.

During closing argument in rebuttal, the prosecutor again referred to the effects on the victim after the attack by saying: “We don’t know how it affected her subsequent to the attack, but obviously the law was violated.” Defense counsel objected to the remark and the judge instructed the jury to disregard it.

Defendant claimed that the remarks were prejudicial and violated La.C.Cr.P.Art. 774. Additionally, defendant argued that prejudice should be presumed and the burden should rest-on the prosecution to prove that the inflammatory remarks did not contribute to the verdict.

Under La.C.Cr.P.Art. 771, the judge is within his discretion, in the absence of clear prejudice, to admonish the jury to disregard a prosecutor’s objectionable remark. State v. Jackson, 396 So.2d 1291 (La.1981). In this case, there was no clear prejudice to the verdict, given the victim’s identification of her assailant as the defendant, and the admission at trial of his inculpatory statement. Any error that may have occurred was cured by the judge’s admonition to the jury.

These assignments are without merit.

Assignment of Error Number 5

By this assignment, defendant contends that the sentence of twenty-four years imprisonment, for the conviction on the lesser offense of forcible rape, is excessive because the trial judge failed to mention the mitigating factors when imposing the sentence, as required by La.C.Cr.P.Art. 894.1. Defendant contends that defense counsel’s arguments which review the defendant’s miserable childhood, coupled with his alcohol abuse from age thirteen and his low mental capacity, were not mentioned by the trial judge when sentencing the defendant.

While the trial court need not articulate every aggravating and mitigating circumstance presented in 894.1, the record must reflect that it adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). Both the prosecutor and defense counsel presented arguments that dealt with mitigating and aggravating circumstances at the sentencing hearing, which we must presume the judge took into consideration, and, before sentencing the defendant, the judge mentioned the seriousness of the crime of forcible rape as established by the legislature when they set the maximum prison time at forty years. The defendant received twenty-four years, eight of which were without benefit of parole, probation or suspension of sentence. In addition, the judge mentioned the terror of the victim produced by her masked assailant when he beat her about the head and body with the gun stock, requiring stitches, then ripping off her clothes, marching her through the house at gunpoint, tying her up and raping her. The judge felt that the vicious nature and seriousness of the crime demanded a sentence in the upper range. Additionally he noted that, although the defendant was young (18) and this was his first felony conviction, these considerations did not outweigh the trauma to the victim when deciding on the amount of time.

As a general rule, a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). Although the trial judge did not specifically mention La.C.Cr.P.Art. 894.1 when sentencing the defendant, the record indicates that he was taking cognizance of it when he individualized the sentence imposed by considering the aggravating and mitigating circumstances of the case. State v. Vaughn, 378 So.2d 905 (La.1979). He took into account the pleas for mercy on behalf of the defendant and the excellent memorandum which was prepared and filed by his attorney. He also considered that the offense of forcible rape is punished severely by the legislature and that the crime committed by the defendant was an extremely vicious crime. In State v. Austin, 399 So.2d 158 (La.1981), a twenty-five year sentence for forcible rape was affirmed by this court for a crime that displayed far less viciousness. The court ultimately concluded that, any lesser sentence would deprecate the seriousness of the offense. The same can be said to be true in this case.

On the record left by the trial court of sentencing, and given the viciousness of the defendant’s attack on the victim, the imposition of a twenty-four year sentence does not appear grossly disproportionate to the offense. State v. Bonanno, supra.

“Accordingly, this assignment is without merit.

DECREE

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

DIXON, C. J., concurs.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.