source: Caselaw Access Project

author: COVINGTON, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Marese TOOMER.
    No. 80-KA-2063.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Herbert R. Alexander, Bogalusa, Abbott J. Reeves, Asst. Dist. At-tys., for plaintiff-appellee.
    M. Reggie Simmons, Franklinton, for defendant-appellant.
   COVINGTON, Justice Ad Hoc.

Marese Toomer was charged by indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty and, on recommendation of the jury, was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on thirty assignments of error for reversal of his conviction and sentence.

FACTS

On December 18, 1978, Marese Toomer confronted his estranged girl friend, Sonja Thornton, in her car in the parking lot of a shopping center in Bogalusa, Washington Parish, Louisiana, and tried to persuade her to return to him. When she refused and attempted to drive away, the defendant went to his truck, got his pistol and fired five shots; one bullet struck the victim, fatally wounding her.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3 AND 4

Defendant contends that the trial judge erred in allowing the State to present evidence of and to argue “aggravating circumstances” of the alleged crime, and in erroneously charging the jury about such circumstances.

These assignments arise out of the interpretation of the first degree murder statute, La.R.S. 14:30, in effect at the time of the crime, December 18,1978, which read as follows:

“First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
“Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.”
Acts 1976, No. 657, effective October 1, 1967 through June 28, 1979.

The second degree murder statute, La. R.S. 14:30.1, which was in effect on the date of this crime, read as follows:

“Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
“Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of probation or suspension of sentence and shall not be eligible for parole for forty years.”
Acts 1978, No. 796, effective September 8, 1978 through June 28, 1979.

State v. Payton, 361 So.2d 866 (La.1978), was decided on June 30, 1978, and interpreted the murder statutes which were in effect then. The first degree murder statute was the same as that applicable here; however, the second degree murder statute contained the following extra subsection (B):

“The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure.”
[La.R.S. 14:30.1(B)]
Acts 1977, No. 121 effective September 9, 1977 through September 8, 1979.

The Payton Court, thus, held that this provision, by implication, redefined first degree murder as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance. After Payton, the legislature re-amended the second degree murder statute to delete subsection (B), effective as of September 8, 1978, to remove unaggravated specific intent killings from the scope of second degree murder and to recast such killings to be covered by first degree murder. A judicial clarification of the murder statutes did not come until the decision in State v. Perkins, 375 So.2d 1179 (La.1979), was rendered on September 18, 1979, several months after the present trial and conviction (in April 1979).

The record shows that the definitions of first and second degree murder, as construed by the Payton Court, were employed at all stages of the trial below. We hold that the use of a more exacting definition of first degree murder in the case at bar did not and could not have prejudiced the defendant. If the jury found him guilty of an offense which required both specific intent to kill (or inflict great bodily harm) and an aggravating circumstance, it would certainly have found him guilty beyond a reasonable doubt of an offense which required specific intent. State v. Eaker, 380 So.2d 19 (La.1980).

The case of State v. Williamson, 389 So.2d 1328 (La.1980), is distinguishable. In Williamson, the defendant was convicted of an offense for which no evidence had been offered and for which the State did not prosecute. A few days prior to the alleged crime, an attempted homicide, the legislature had changed the murder statutes to require more exacting essentials in order to fall within the scope of first degree murder than the old law had required. Under the new law, first degree murder was any of four restrictive specific intent killings and second degree murder was any specific intent killing and/or felony murder. The judge charged the jury that to find the defendant guilty of attempted murder they need only determine that he specifically intended to kill, and to find him guilty of attempted second degree murder they could do so only upon finding a commission of felony murder. The jury returned a verdict of attempted second degree murder, despite the absence of evidence of an underlying felony.

The portion of the State’s case to which Toomer particularly objects as prejudicial to his defense is the evidence of a witness about the presence of three persons on the sidewalk in the vicinity of the shooting when the offense occurred.

This witness, Elaine Carroll, was walking through the parking lot when the shooting took place and she was an eyewitness to the crime. As such a witness, her testimony was admissible, no matter what definition of the homicide charged was applicable at the time of the offense.

There is no merit in these assignments of error.

ASSIGNMENT OF ERROR NO. 5

By this assignment the defendant argues alternately that the State failed to prove “an aggravating circumstance,” an essential element of the crime of first degree murder, according to State v. Payton, supra, in that there was no proof that Toomer knowingly created a risk of death or great bodily harm to more than one person, which was the aggravating circumstance the State relied on.

The State presented the testimony of Ms. Carroll, a shopper who witnessed the shooting and who testified that she felt herself to be in danger. She, using a diagram of the parking lot, indicated her position in that lot when the shooting occurred. The defendant knew that there were persons in addition to the victim and himself in the parking lot. Based upon this evidence, the jury could have reasonably concluded that the defendant had knowingly created a risk of great bodily harm to more than one person.

This Court will review the sufficiency of the evidence in the record, and reverse, if upon the evidence when viewed in the light most favorable to the prosecution, no rational trier of fact could have found that every essential element of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d 664 (La.1981). We find that a rational jury could have found beyond a reasonable doubt that defendant had knowingly created a risk of death or great bodily harm to more than one person, and that defendant had the specific intent to kill or inflict great bodily harm.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 24

The defendant urges that the trial court erred on several grounds in denying his motion for new trial. The grounds dealing with the application of the Payton ruling have been discussed above. They have no merit.

Another ground for this motion was that the trial court erroneously prevented the defendant from introducing evidence of his good character as provided under Louisiana Revised Statutes 15:479, 480 by improperly restricting his examination of character witnesses. In attempting to interrogate these witnesses, defense counsel was not allowed to ask the question, “Have you heard the defendant’s reputation in the community discussed?” because the State’s objection was sustained by the Court. Defense counsel was thus unable to ask his next question, which, defense counsel asserts, would have been, “With regard to acts of violence, is the defendant’s reputation in the community good or bad?”

The defendant, for the purpose of showing that the defendant was not usually a violent person, called seven character witnesses.

La.R.S. 15:480 allows evidence of the good character of the accused, “restricted to showing character as to such moral qualities as have pertinence to the crime.” For example, the reputation of an accused for being a quiet, peaceable, law-abiding citizen in the community in which he lives has pertinence in a murder prosecution, whereas his reputation for truth or honesty is not pertinent. State v. Thornhill, 188 La. 762, 178 So. 343 (1938).

In the present murder trial, the defendant argues that he was denied the right to fully present the testimony of his character witnesses because the judge only allowed questions concerning the defendant’s reputation for acts of violence. He argues that the trial court only allowed defense counsel to ask each character witness whether they had heard the defendant’s reputation in the community discussed as it pertained to acts of violence. This brought a negative response.

La.R.S. 15:479 expresses the general rule that character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him. A witness is not in a position to testify affirmatively to the reputation of an accused unless he has heard it discussed. State v. George, 346 So.2d 694 (La.1977); State v. Harrison, 168 La. 1115, 123 So. 800 (1929).

In the instant case, the character witnesses testified that they had never heard any discussion of the reputation of the defendant as to moral qualities having pertinence to the crime of murder. There was then no other permissible question that could have been asked of them.

We do not think the defendant was prejudiced by the ruling of the trial judge, since the character witnesses testified they had never heard his reputation for acts of violence discussed in the community. The trial court was correct in restraining the testimony of these character witnesses; there is no merit in this assignment of error. See State v. Frentz, 354 So.2d 1007 (La.1978); State v. George, supra.

The last ground urged for a new trial is that the ends of justice would be served thereby. La.C.Cr.P. art. 851(5). This is a ground upon which the trial judge may grant a new trial. It presents nothing for this Court’s appellate review. State v. Matthews, 354 So.2d 552 (La.1978).

Assignments of Error Nos. 6 and 24 lack merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error the defendant asserts that the trial court erred in imposing an excessive sentence.

The defendant now reargues the mitigating facts which were presented to the jury during the sentencing phase of the trial. Under La.R.S. 14:30 the legislature has determined that upon conviction of first degree murder the punishment shall be death or life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Having found that the imposition of the death penalty was unwarranted, the jury had no choice but to recommend life imprisonment. The trial judge had no discretion in the imposition of sentence in accordance with the recommendation of the jury. La.C.Cr.P. art. 905.8; State v. Prejean, 379 So.2d 240 (La.1979).

It is urged that the life sentence and the denial of any chance for parole violates the Eighth Amendment of the United States Constitution as well as Art. 1, Section 20 of the Louisiana Constitution of 1974. Both of these provisions prohibit cruel, unusual or excessive punishment.

This argument was raised by the defendant in State v. Milby, 345 So.2d 18, 23 (La.1977), where this Court stated:

“[W]e cannot say that a life sentence for (what the jury found to be) the intentional murder of another human being is excessive, when the jury rejected factual defenses of intoxication and insanity.”

Similarly, the present jury found an intentional murder and rejected the defendant’s defenses, including the defense of intoxication.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 8

The defendant argues that the law under which he was convicted was unconstitutionally vague and ambiguous, such that the defendant lacked proper notice of the proscribed conduct. Furthermore, the defendant contends that the law failed to inform him of “the nature and cause of the accusation” against him as required by La.Const. of 1974 Art. 1, § 13.

The defendant does not suggest that the actual murder statutes applicable to this case, La.R.S. 14:30 and 14:30.1, were vague in themselves, but rather that State v. Payton, supra, rendered those statutes so unconstitutionally vague that he lacked proper notice of the proscribed conduct. He contends that the trial judge mistakenly applied Payton to the amended statutes, despite the fact that the legislature had reenacted La.R.S. 14:30.1 and eliminated the Payton “amendment.” The vagueness which, it is argued, existed in the law at the time the defendant committed this offense, was whether first degree murder required only that a killing be committed with the “specific intent to kill or inflict great bodily injury” or whether an “aggravating circumstance” must also accompany that specific intent. The defendant argues that if lawyers and judges were unable to correctly determine the law, then such law must fall as failing to provide the requisite notice.

The constitutional guarantee that an accused be informed of the nature and cause of the accusation against him requires that penal statutes described unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Mallett, 357 So.2d 1105 (La.1978); State v. Gisclair, 363 So.2d 696 (La.1978).

There was no evidence offered to show that lawyers, judges and the general public could not comprehend the clear meaning of the law. The mere fact that some few persons misunderstand a particular law does not mean that the fault lies with the law. A reading of the statute shows no vagueness or unclearness.

The assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

These assignments of error also arise from the question concerning the applicability of State v. Payton, supra, to the present case. As discussed in connection with previous assignments of error, the testimony of Elaine Carroll was presented at the trial to establish that the defendant had knowingly created a risk of death or great bodily harm to more than one person. Ms. Carroll testified that she witnessed the shooting and took cover behind a brick column in the parking lot because she felt herself to be in danger. She further testified that there were two men whom she did not know on the sidewalk near her. The defendant focuses upon that testimony, concerning the other people possibly being put in risk of death or harm, and argues that he was entitled to the names of those men, which he had requested in a bill of particulars, because they were “victims” of the aggravating circumstances.

On April 25, 1979, prior to trial, the defense counsel argued to the trial court that the State’s answer to defendant’s bill of particulars was insufficient. The court upheld the State’s refusal to answer the following question:

“MR. SIMMONS:
Question Number Two is ‘State the name and address of the alleged victim or victims who were or might have been in risk of death or great bodily harm in addition to Sonja Thornton.’ Your Honor, I think on a bill of particulars we’re entitled to know that.”

The State had submitted only the name of Elaine Carroll, and refused to give defense counsel the names and addresses or the testimony of any other witness. The defendant argues that if other persons were placed in risk of death or bodily harm, then they were victims, not merely witnesses, and their names were subject to discovery prior to trial.

The Louisiana Constitution, Art. 1, Section 13 requires that the accused be informed “of the nature and cause of the accusation against him.” State v. Perkins, supra at 1181, interpreted this section to require that:

“The defense is entitled to pretrial notice of every aggravating circumstance upon which the state intends to rely in seeking the death penalty.”

The discovery rules in the Louisiana Code of Criminal Procedure, Articles 716 through 729.6, are intended to eliminate unwarranted prejudice which could arise from surprise testimony. In the present case the only testimony offered by the State of a witness to the aggravating circumstances was that of Elaine Carroll, whose name had been furnished to defendant prior to trial. Defendant argues that he was prejudiced by her reference to the presence of other unnamed people at the shopping center.

The State did not call these men and there is nothing in the record to suggest that the State knew their names or anything more about them. Defendant had not demonstrated how he was prejudiced by Ms. Carroll’s reference to these other people.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 10

The defendant challenges the constitutionality of La.C.Cr.P. art. 782 which states in pertinent part: “Trial by jury may be knowingly and intelligently waived by the defendant except in a capital case.” (Emphasis added).

The defendant filed an objection to jury trial, which was overruled. The defendant argues that his rights to due process and equal protection of the law were violated by forcing him to trial by jury. The defendant contends that the murder statutes in the present case were so confusing (due to the State v. Payton holding) that a trial judge would have been better able to apply the law to the instant facts than could a jury.

Article 782 of the Code of Criminal Procedure merely repeats the provision of the Louisiana Constitution, Art. 1, Section 17, which limits waiver of jury trial to non-capital cases. There is clearly no state constitutional right not to be tried by jury, except in the very unusual case where a fair jury trial is impossible or unlikely. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); State v. Muller, 351 So.2d 143 (La.1977). There is nothing in the record to suggest that a fair trial by jury was impossible or unlikely.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 11

The defendant argues in this assignment that the trial court erred in denying his motion to suppress the confession made by the defendant to the police at police headquarters. The defendant argues that he was too intoxicated to adequately comprehend or validly waive the Miranda rights which were given to him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The confession was handwritten by Officer Wayne Kemp and signed by the defendant in the presence of Officers Kemp and Ewell. This occurred immediately following his arrest and transportation to police headquarters, less than an hour after the shooting.

Officer Kemp testified that the defendant seemed aware of what was going on. Officer Ewell did not observe any alcohol on defendant’s breath. Toomer appeared to understand his rights and was coherent.

The defense called Mrs. Bobby Toomer Grosche, his mother, who testified at the motion to suppress hearing that when she went to police headquarters and saw her son soon after he had made the confession, he smelled strongly of alcohol and appeared drunk. Johnny Seal, the defendant’s brother-in-law, testified that he also saw Toomer at the police station; he smelled alcohol on Toomer. Finally, the defendant testified that he had been drinking beer at several bars throughout the morning prior to the shooting that day.

In State v. Rankin, 357 So.2d 803 (La. 1978), this Court held:

“Where the free and voluntary nature of the confession is challenged on the ground that he was intoxicated at the time of the interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying.”

The Rankin Court added that this determination is a question of fact and the trial court’s conclusion on the credibility and weight of the evidence will not be overturned unless unsupported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Manuel, 253 La. 195, 217 So.2d 369 (1968).

There is sufficient evidence in the present record to support the trial judge’s conclusion that the defendant was not so intoxicated as to negate his comprehension or render him unconscious of the consequences of what he was saying. The trial court’s determination of voluntariness was correct.

This assignment, therefore, is without merit.

ASSIGNMENT OF ERROR NO. 12

The defense argues that the trial court erred at the motion to suppress hearing in failing to limit the questioning of the defendant by the prosecutor on cross-examination in accordance with State v. Lovett, 345 So.2d 1139 (La.1977). In Lovett, this Court held that a defendant could take the stand, out of the presence of the jury, for the restricted purpose of testifying that a purported confession was not obtained freely and voluntarily, without subjecting himself to cross-examination upon the whole case. See State v. Day, 391 So.2d 1147 (La.1980).

The trial judge ruled that the questions could be asked “for the limited purpose of testing [the defendant’s] credibility and his memory as to what took place on that day.”

The questions were aimed at impeaching the credibility of the defendant. Each side is allowed to impeach the credibility of an adverse witness. When a defendant takes the stand, he may be cross-examined as any other witness. State v. Barnes, 365 So.2d 1282 (La.1978).

The questions were admissible for the limited purpose permitted by the trial judge. This limited admissibility does not infringe upon the defendant’s right not to incriminate himself.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 13 AND 14

These assignments of error relate to the following testimony of Officer Wayne Kemp at the trial, which the defendant argues was inadmissible hearsay.

“Q. What did Marese Toomer ask you?
A. He asked me, uh, how many years you think he’d get for manslaughter and, uh, at this time, myself and Lieutenant Ewell told him, we said, well, you’re not charged with manslaughter.
MR. SIMMONS:
I’m going to object to hearsay, Your Honor, what they told him.
MR. ALEXANDER:
Well, it was said in the presence of the defendant, Your Honor.
A. We advised him that he was not charged with manslaughter; that he was charged with murder and it was an entirely different thing and he said, yeah, but a good attorney will get me manslaughter. He said, how many years you get for that? And I said, I really couldn’t say. You know, I couldn’t get into that. And he said, well, I’ve thought it all out and he said, I think you get about ten years for manslaughter.”

Hearsay evidence is inadmissible in criminal trials. La.R.S. 15:434 and 15:463. State v. Jacobs, 344 So.2d 659 (La.1976). Hearsay has been defined by this Court in State v. Martin, 356 So.2d 1370 (La.1978):

“... testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value on the credibility of the out-of-court assert-er.”

This Court has held that evidence is non-hearsay when offered not to prove the truth of the facts recited but to prove that the utterance occurred, State v. Hatcher, 372 So.2d 1024 (La.1979), or that a conversation has taken place. State v. Ford, 368 So.2d 1074 (La.1978). As this Court pointed out in Ford, supra, 368 So.2d at 1077, “... a witness is generally competent to testify that a statement was made to him. In that case, the fact of the communication turns as much on the credibility of the in-court witness as it does the out-of-court asserter.”

We hold that the witness’ statements were not offered to show the truth of those statements, and were made in the presence of the defendant; and thus, are not hearsay. The statements were offered by the State during the laying of the predicate for the introduction of the confession to show that defendant was not intoxicated and that he had knowingly and freely waived his Miranda rights.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 15

The defendant urges that the State failed to comply with the trial court’s order to file an amended answer to the defendant’s discovery motion, and further failed to provide written pre-trial notice of inculpa-tory statements as required by La.C.Cr.P. art. 768. The record, however, contains a copy of the required 768 notice, and also a supplemental State answer containing the information ordered to be provided by the trial court; both were timely filed.

The defendant further argues that it was improper for the trial court to admit evidence concerning undisclosed oral inculpato-ry statements at the motion to suppress hearing, and cites State v. Qualls, 353 So.2d 978 (La.1977); State v. Boothe, 310 So.2d 826 (La.1975). These cases are inapplicable; they deal with introduction of such statements at trial, not at a hearing on a motion to suppress. Furthermore, it appears from the record that the State had actually provided a detailed description of the inculpa-tory statements prior to the hearing. See State v. Thomason, 353 So.2d 235 (La.1977).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 16

This assignment of error concerns the introduction by the State of demonstrative evidence, i. e., a sketch or diagram representing the parking lot wherein the murder occurred.

The defendant objected, arguing that the sketch was inaccurate and not to scale; hence, it was' not admissible to demonstrate the proximity of the other persons to the shooting. A police officer testified that he returned to the scene of the crime in order to draw the diagram. He also testified concerning how he made the sketch; it was not drawn to scale. The trial court ruled that the diagram was admissible for the limited purpose of showing the location of the victim’s vehicle in the parking lot and the relationship to the position of the surrounding stores. Such an objection merely goes to the weight, not the admissibility, of the demonstrative evidence.

This Court in the case of State v. Andrews, 369 So.2d 1049, 1051 (La.1979), held that:

“Maps or diagrams generally are admissible to aid the jury in understanding testimony if shown to be an accurate representation of the subject matter in question and the ruling of the trial court relative to admissibility will not be disturbed on appeal unless there has been abuse of discretion. 3 Wharton’s Criminal Evidence, § 641 (13th ed. Torcia, 1973). See also United States v. Goodwin, 470 F.2d 893 (5 CA 1972). In State v. Triplett, 285 So.2d 532 (La.1973), where the arresting officer had returned to the scene and drawn a sketch, this court held that admission of the sketch at trial was not an error. In so concluding, this court noted that the fact that the sketch was not absolutely accurate in every detail and distance did not negate its relevancy or render it inadmissible, but rather would go to the weight accorded the sketch by the jury.”

In the present case the defendant was also allowed to offer a diagram of the shopping center, (Defense Exhibit 30), which was drawn to scale by an investigator for the Public Defenders Office of St. Tammany Parish. Therefore, the jury was able to evaluate the possible conflicting diagrams, and accord the appropriate weight to be given to each one.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 17

The defendant claims that the trial court erred in disallowing the following question to Officer Kemp on cross-examination.

“Q. But you didn’t have any idea that he might have been intoxicated when he made this statement; T shot her until my gun was empty’? Though, that wasn’t a true statement, was it?”

The defendant contends that it was error for the court to cut off this line of cross-examination, designed to show that the officer intentionally made the confession more incriminating than the facts would actually prove. The subjective purpose underlying defense counsel’s reason for asking the question (actually two questions in one) is not revealed by the record. A legitimate purpose does not excuse an objectionable question. The question was objectionable as calling for an opinion or conclusion of the witness. It was also argumentative. It is also misleading if it is intended to convey the idea that Toomer fired his pistol only one time. The record contains ample evidence to support a conclusion that the defendant shot at the victim in her car until his gun was empty. Two shots went into the door lock, two through the windshield, and one struck Sonja Thornton in the head. His gun held five bullets and he fired all of them.

Defense counsel was allowed to rephrase his question as follows:

“Q. So, you’re asking this jury to believe that freely and voluntarily he made a statement more incriminating than the facts actually prove?”

Because defense counsel’s subsequent question, and others, rephrasing the objectionable question, were permitted and responded to, the defendant suffered no prejudice. If the court erred in disallowing the question, the error was harmless, there being no substantial violation of any constitutional or statutory right. La.C.Cr.P. art. 921; State v. Marcal, 388 So.2d 656 (La. 1980); State v. Walker, 344 So.2d 990 (La. 1977).

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 18 AND 19

By these assignments of error the defendant objects to portions of Ms. Carroll’s testimony. Ms. Carroll testified that she was in the shopping center parking lot when the shooting occurred, and that she got behind a brick column when she saw the defendant shooting because she was frightened. The defendant objected to the relevancy of any fear felt by the witness. The defendant argues that if the Payton holding were applicable, Ms. Carroll’s fear did not bear any relationship to her being in danger; and if Payton was not applicable, then her testimony concerning her fear was even more prejudicially irrelevant.

As pointed out above, Ms. Carroll, as an eye-witness to the shooting, would undoubtedly have been called by the State no matter what statutory definition of murder was in effect at the time of the offense. Her testimony concerning what she saw and how she reacted thereto was relevant and admissible.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 21

This assignment of error involves the trial court’s ruling sustaining the State’s objection to a question which had been asked by defense counsel and already answered by the State witness. The defendant urges that the question was a proper one, aimed at revealing the witness’ bias and that the ruling of the court constituted a comment upon the evidence adverse to the defendant.

La.R.S. 15:492 states that if the witness is biased “it is competent to question him as to any particular fact showing or tending to show such bias.” In the present case, the State witness was questioned concerning her refusal to answer defense counsel’s questions over the telephone prior to trial. She admitted that she refused; she said she did not think that she should talk to the defendant’s counsel outside of court. Refusal to talk to a person who identifies himself as defense counsel over the telephone is not indicative of bias. In any event, the question was asked and answered; therefore, defendant cannot claim an infringement on his rights under La.R.S. 15:492.

The defendant’s second argument on this question, that the court’s ruling to sustain the State’s objection constituted a comment by the judge on the evidence, is not supported by the jurisprudence.

La.C.Cr.P. Art. 772 prohibits any comment upon the evidence by the judge in the jury’s presence; however, a ruling on the admissibility of evidence and the remarks by a trial judge giving reasons for his ruling on objections are not objectionable as comments on the case unless such remarks are unfair or prejudicial. State v. Quincy, 363 So.2d 647 (La.1978). The judge made no unfair remark in his ruling.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 22

This assignment of error concerns the introduction of a report written by Jim Churchman, an employee of the State Police Crime Laboratory. The record, State Exhibit No. 13, is the official scientific analysis of the .38 caliber revolver, the five .38 caliber cartridge casings and a bullet fragment. During his direct examination, Mr. Churchman testified that the cartridge casing (State Exhibit No. 7) had been fired from the revolver (State Exhibit No. 6) and that the bullet fragments (State Exhibit No. 11) were also probably fired from that revolver. The defendant argues that the official report prepared by Mr. Churchman in which he described the tests performed and the conclusions he reached should not have been admitted because it was hearsay.

The report was not given to the jury to examine after they retired to deliberate. The expert witness was present in court, testified and was subject to cross examination. The report was prepared by the witness himself. The jury could get nothing from the report that it did not get from the expert’s explanation of the report in his testimony. The essential import of the contents of the report adds nothing to the expert’s testimony. We believe that it can be safely concluded that no harm resulted to the defendant by the admission of the report. State v. Stovall, 363 So.2d 658 (La. 1978).

The exception lacks merit.

[There is no Assignment of Error No. 23; the next Assignment of Error following No. 22 is numbered 24, which was treated with No. 6.]

ASSIGNMENTS OF ERROR NOS. 25 AND 26

The defendant urges as error the trial court’s admission of the character testimony of Jeff Lewis, who had known the accused in high school but had not known him since, which was presented by the State to rebut defendant’s evidence of good character. La.R.S. 15:481.

Initially the defendant argues that this character witness’ testimony was irrelevant because Mr. Lewis had not seen the defendant for 16 years, and did not know his recent reputation in the community. This objection was overruled by the trial court. The defendant also argues that the trial judge erred in overruling defendant’s objection to this witness’ description of the defendant’s character as “mean and extremely violent.” Defendant maintains that the witness should have been required to restrict his answer to “good” or “bad”.

The import of Lewis’ testimony was that the accused had a “bad reputation for being a peaceful citizen in the community.” This was permissible to rebut the alleged good character of the accused, which the defendant had put at issue. La.R.S. 15:481.

Inasmuch as the defendant put his own character and reputation at issue, the State properly called witnesses to testify in rebuttal thereof. La.R.S. 15:481. The error, if any, was harmless and furnishes no ground for reversal of the conviction. State v. Bagley, 378 So.2d 1356 (La.1979).

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 27

At the completion of the presentation of evidence during the guilt determination phase of the defendant’s bifurcated murder trial, the defense counsel requested that the witnesses remain sequestered during the closing arguments. The trial judge ruled that any witnesses who had been released would not be sequestered, with the understanding that any witnesses who were present in the courtroom during the closing arguments would not be able to testify at the sentencing phase of the trial.

La.C.Cr.P. Art. 905.1(A) reads as follows:

“Except as provided in Part B herein, the sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.”

The defendant argues that the sequestration rule was violated and the defendant was prejudiced because the district attorney placed his witnesses in the front rows, closest to the jury, to remind the jury of their testimony. Whether any of the state’s witnesses were in fact present during closing arguments is not shown in the record. However, if any or all were present, it would not be a violation of the sequestration rule unless the State attempted to use such witness’ testimony at the sentencing phase of the trial.

In any case, it is well established under La.C.Cr.P. Art. 764 [made applicable to the sentencing hearing by Art. 905.1(A)] that:

“An order of sequestration is intended to assure that a witness will testify as to his own knowledge of the case without being influenced by the testimony of other witnesses, and to strengthen the role of cross-examination in developing the facts.”

State v. Lewis, 367 So.2d 1155, 1158 (La. 1979).

Lewis also points out that this Court “... will look to the facts of the individual case to determine whether the violation resulted in prejudice to the defendant.” In the case at bar, counsel for defense does not allege that any of the non-sequestered witnesses were recalled to testify at the sentencing here. He has therefore failed to show prejudice within the intent of Article 764. The trial court did not abuse his discretion in allowing witnesses who would not testify at the sentencing stage to be released from the sequestration rule. State v. Sneed, 328 So.2d 126, 135 (La.1976); see also State v. Boutte, 384 So.2d 773 (La.1980).

ASSIGNMENTS OF ERROR NOS. 28 AND 29

These assignments of error urge that the trial court erred in refusing to instruct the jury concerning the crimes of Criminal Negligence or Negligent Homicide and in further refusing to allow defense counsel to argue either of these during closing argument.

La.C.Cr.P. art. 803 requires that the judge charge the jury as to any responsive verdicts which may be rendered to the indictment or charge. La.C.Cr.P. art. 814 lists the only verdicts responsive to a murder indictment:

Guilty
Guilty of Second Degree Murder
Guilty of Manslaughter
Not Guilty

Instructions on these permissible verdicts are mandatory. State v. Ferguson, 358 So.2d 1214 (La.1978).

Special requested charges are governed by La.C.Cr.P. art. 807 which provides, in part, that a special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly pertinent and correct.

The judge is required to charge the jury as to the law applicable to the case; he is required to cover every phase of the case which is supported by the evidence. State v. Clement, 368 So.2d 1037 (La.1979); State v. Marse, 365 So.2d 1319 (La.1978).

In State v. Clement, this Court pointed out, however, that:

“The requested charge, however, must be supported by the evidence, for the trial court is not required to instruct the jury on abstract principles of law. See State v. Fox, 251 La. 464, 205 So.2d 42 (1967); State v. Johnson, 250 La. 85, 193 So.2d 794 (1966).”

The general charge given by the trial court instructed the jury concerning the requirement of specific intent. The court illustrated this as follows:

“Thus, if you find that the defendant was in such an intoxicated condition that he did not have the specific intent required to commit first degree murder, you must find the defendant not guilty of first degree murder.”

In State v. Anderson, 390 So.2d 878 (1980) this Court was presented with a similar argument and held that the trial court’s refusal to instruct the jury concerning negligent homicide or criminal negligence was not error, in that no evidence had been introduced from which the jury could have inferred that those crimes were involved rather than murder or manslaughter.

In the present case the fatal shot was fired from an extremely close range and the defendant’s confession stated that he shot her because “I was going to have her one way or the other, because I love her.” It does not appear that any rational juror could have inferred that the killing was accidental. The defendant did not present any evidence to suggest an accident or negligence.

The jury’s verdict of guilty to the charge of first degree murder indicates that the jury was convinced beyond a reasonable doubt that the defendant possessed the requisite specific intent to kill or inflict great bodily harm.

The defendant also argues that the trial judge improperly restricted the scope of his closing argument. The trial court in the present case informed defense counsel, prior to closing arguments, that no discussion of negligent homicide would be allowed:

“THE COURT:
I’m going to tell you right now that that’s not something to be argued to this Jury. That’s not responsive to the charge or one of the possible verdicts.
MR. SIMMONS:
Your Honor, that will be fine. All I’m saying, it’s plausible that the defendant could have been firing at the windows or trying to scare the victim, and nobody knows what he’s trying to do, and it’s up to the State to prove it, but it’s up to the Jury to decide what his intent was and that’s to be inferred from the circumstances.
THE COURT:
Well, I’m just explaining what the Court expects you to do.
MR. SIMMONS:
Thank you, Your Honor.”

This colloquy immediately followed the defense counsel’s objection to the trial court’s ruling that the law on negligent homicide would not be charged to the jury. No objection was, however, made as to the court’s additional limitation of the closing argument. Defense counsel obeyed the judge’s instructions, and made no mention of accidental or negligent homicide in the closing argument. Thus, this objection was waived by the failure to make a contemporaneous objection. La.C.Cr.P. art. 841.

The trial court based this restriction upon La.C.Cr.P. art. 774, which provides in pertinent part:

“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 trial judge has wide discretion in confining the argument to the scope of the evidence. State v. Lee, 340 So.2d 180 (La.1976); State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972), and to the fair and reasonable conclusions to be drawn therefrom. State v. Weathers, 320 So.2d 895 (La.1975).

In the Weathers case this Court said:

“Broadly speaking, counsel must confine themselves in argument to the facts introduced in evidence, to matters of general or common knowledge, and to the fair and reasonable conclusions to be drawn therefrom. La.Code Crim.P. art. 774 (1966); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). The trial judge is accorded wide discretion in confining the closing argument to the scope of the evidence. State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972).”

The trial court properly excluded reference to accidental or negligent homicide. They were unrelated to the facts introduced in evidence. Hence, they were not within the scope of the closing argument.

In the present case, the trial court did not err in refusing the requested special charge on negligent homicide. It was not a responsive verdict and there was no evidence to support such a charge. In light of there being no evidentiary support for a theory that the defendant acted accidentally or negligently, the trial court’s restriction of counsel’s argument was proper.

There is no merit to these assignments.

ASSIGNMENT OF ERROR NO. 30

The defendant urges as error the trial court’s refusal to admit thirteen of twenty-five photographs of the scene of the crime. The defendant argues that these photographs were offered to show the inaccuracy of the State’s diagram and should have been admitted to demonstrate the inaccuracy of the allegation that other persons were in danger.

The trial court initially admitted eleven of the photographs because the State had no objection to them. The court ruled that the other fourteen photographs would be admitted if shown to be relevant to the testimony.

A foundation must be laid to establish that more probably than not demonstrative evidence is connected with the case, and has relevance. State v. Drew, 360 So.2d 500 (La.1978). In the present case defense counsel subsequently offered into evidence only one of the remaining photographs in connection with testimony presented. No attempt to offer the other unadmitted photographs was made, and no objection to the court’s initial ruling was noted; therefore, this assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.

MARCUS, J., concurs.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.


text:
    STATE of Louisiana v. Frank MOTTON.
    No. 80-KA-2104.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila Myers, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Mchael Barry, New Orleans, for defendant-appellant.
   COVINGTON, Justice Ad Hoc.

Frank Motton was charged by indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on fourteen assignments of error for reversal of his conviction and sentence.

FACTS

On the evening of June 23, 1979, William James Hardy a/k/a Jamie Hardy, visited the apartment where Motton was living with Hardy’s sister, Gwen, and put a gun to his sister’s head, threatening her. On the morning after the threat, June 24, 1979, Hardy returned to the apartment to apologize for his behavior, and became involved in an argument with his former girlfriend and other occupants of the apartment house. Hardy announced that he was going home to get a gun. Returning shortly af-terwards, he shot through the front door of the apartment. Motton shot back at Hardy, according to some of the witnesses; however, Motton denied shooting at that time.

The defendant’s version of the shooting incident was that after the disturbance, later in the afternoon of June 24, 1979, he armed himself and walked to the mailbox; on the way he encountered Hardy and Johnny Boy Wise, a friend of Hardy. Mot-ton said that he could see a bulge under Hardy’s shirt, which he thought was a gun. In light of Hardy’s actions earlier in the day, the defendant said he wasn’t going to take any chances, so he shot Hardy out of fear. Motton then turned himself in to the police. Wise gave a different version, which was apparently accepted by the jury; he stated that Motton approached Hardy with a gun in his hand, and after a brief greeting, shot Hardy.

ASSIGNMENT OF ERROR NO. 1

It is the appellant’s contention that the record reflects patent error in that it does not show that the counsel appointed by the court at the arraignment had been admitted to the bar for at least five years previous to such assignment.

The record reveals that Frank Motion appeared before the lower court on July 16, 1979, for arraignment on a charge of first degree murder, a capital offense. The court appointed counsel for arraignment only. The indictment was read, and defendant, through the appointed counsel, entered the plea of not guilty. A minute entry of the arraignment was entered in the record as follows:

“Defendant appeared before the bar of the Court, and the Court appointed J. Pharr, Esq., for arraignment only. The Court read the Bill of Indictment, then defendant thru counsel entered a plea of Not Guilty, which the Court ordered recorded. The Court set this matter for Motion to Determine Counsel for Friday, 7/20/79.”

Unattended by counsel, the defendant appeared at the July 20th hearing on the motion to determine counsel; the court reassigned the hearing for July 23, 1979. At the July 23rd hearing, Motton’s attorney, William B. Morgan, II, enrolled as counsel of record. Fifteen days were allowed to file any pleadings.

The record does not show any objection to the arraignment, or the filing of any motions questioning whether the counsel appointed to represent the defendant at the arraignment had been a lawyer for at least five years; and does not show how long Mr. J. Pharr, Esq., had practiced law. After certain motions, which are not relevant to this assignment for error, and several continuances, the suit was set for trial on December 17, 1979.

The defense argues that patent error exists, because the record fails to affirmatively show that the court-appointed attorney who represented the defendant at the arraignment had been admitted to the bar for the requisite period of time.

La.C.Cr.P. art. 512 provides:

“When a defendant charged with a capital offense appears for arraignment without counsel, the court shall provide counsel for his defense in accordance with the provisions of R.S. 15:145. Such counsel must be assigned before the defendant pleads to the indictment, but may be assigned earlier. Counsel assigned in a capital case must have been admitted to the bar for at least five years. An attorney with less experience may be assigned as assistant counsel.”

This Court had occasion to interpret article 512 in State v. George, 262 La. 409, 263 So.2d 339 (1972), vacated as to sentence, 411 U.S. 902, 93 S.Ct 1532, 36 L.Ed.2d 192 (1973). When retained counsel was hospitalized at the time of the defendant’s arraignment, the trial court appointed counsel for arraignment only. The facts showed that the appointed counsel had not been admitted to the bar for the requisite five years. The defendant assigned error that his arraignment was defective as violative of article 512. In finding no merit to the assignment of error, this Court said:

“Code of Criminal Procedure Article 512, upon which the defendant relies, provides for assignment of counsel in capital cases when the accused appears at arraignment without counsel. Under Article 515 assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of assigned counsel, and the court may appoint other counsel in substitution of or in addition to the lawyer previously assigned or specially assigned to assist the defendant at arraignment. The Comment under Article 515 states: ‘The last clause of this article, referring to counsel in substitution for counsel “specially assigned to assist the defendant at the arraignment,” recognizes the frequent practice of appointing a presently available lawyer to assist a number of defendants in determining the proper plea at the arraignment. Then after the arraignment the court may appoint other counsel to represent the defendants in the trial of their respective cases.’ Plainly the Code contemplates an assignment at arraignment that may be temporary, as in this case where the accused had his own retained attorney who was not present in court.” (263 So.2d at 341)

This Court further observed in State v. George, supra, that there was no showing of prejudice since the defendant’s retained counsel had ample time to change the plea.

The assignment of error in the instant case is not as strong as that in State v. George, supra, because there the counsel had been admitted less than five years, while here no evidence was offered that the appointed attorney had been admitted less than five years (the record does not reflect how long he had been practicing at the time of the appointment), or that the plea entered at the arraignment of Motion was not the proper plea, or that Motion attempted to change his plea, or was denied opportunity to file any motion or change of plea. He does not contend or show that any prejudice resulted from the entry of the plea of not guilty. Motton was in no way prejudiced by his arraignment with the court-appointed attorney representing him for that purpose.

Nevertheless, the defense argues that the minutes of record do not affirmatively show that the court-appointed counsel “had been admitted to the bar for at least five years,” so that under State v. Youchunas, 187 La. 281, 174 So. 356 (1937), where the court minutes failed to show affirmatively that the accused was represented by counsel in a felony prosecution, Assignment of Error No. 1 shows reversible error. The defense also cites La.C.Cr.P. art. 514 as codifying the Youchunas rule. See Official Revision Comment under La.C.Cr.P. art. 514.

La.C.Cr.P. art. 514 reads:

“The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to court-appointed counsel.”

We find that article 514 was complied with. The minutes herein show that the defendant was represented by counsel at all stages of these proceedings (by court-appointed counsel at the arraignment and by retained counsel at all other stages). There is no showing that the defendant was not represented throughout by qualified and skilled counsel.

For these reasons, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to quash grounded on a claim that La.C.Cr.P. arts. 412, 413, and 414, and La.R.S. 15:114, governing the selection of grand jurors in Orleans Parish, are unconstitutional as violative of the Due Process and Equal Protection clauses of the constitutions of the United States and Louisiana. The basis for his contention is that the cited legislation denies him the right to an impartially selected grand jury because it vests in the respective Judge of an Orleans Parish Criminal District Court the power to select all twelve grand jurors from a list of not less than seventy-five names submitted by the jury commission to the judge; whereas in the other parishes, except for the foreman (who is selected by the Court), eleven members of the grand jury are determined by lot. The defense urged that the constitutionally defective selection process in Orleans Parish rendered the indictment and the subsequent proceedings, based on the indictment, null.

This Court has held that a defendant who claims that the method of selection of grand juries violates his constitutional rights must make an affirmative showing that the system of selection has fostered discrimination, either in his particular case or in a historical context. State v. Willie, 360 So.2d 813 (La. 1978). There has been no such showing by the defense in the case at bar. The assertion that the grand jury selection system used in Orleans Parish offers a potential for abuse “in that the Orleans Parish defendants are subjected to consideration of their cases by a Grand Jury selected by a process far more likely to be infected (perhaps unconsciously, subtly, and even unprovably) by the prejudices (be they racial, ethnic, economic, sexist, occupational, etc.) of the single selecting judge than are the country parish defendants whose Grand Juries are, with the lone exception of the foreman, drawn by lot, i. e., random selection”, without any proof of abuse, does not constitute an affirmative showing of discrimination.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. S

The defense protests that “the court overruled defendant’s objection to hearsay during the testimony of State witness Pearl Bradley at the trial on the merits.” Pearl Bradley, who was the aunt of the victim, lived in the vicinity of the shooting. In the course of the State’s direct examination, the following occurred:

“Q. Did you of your own knowledge, you didn’t see the actual shooting going on that morning, did you, Ms. Bradley?
A. No, I didn’t.
Q. Sometime during the day, did you learn from people that [was] what had happened? Somebody told you what had happened?
MR. MORGAN (the defense attorney): I’m going to object to that.
MS. MYERS (the prosecuting attorney): I’m not asking for the details of it, only to establish a state of mind of this witness, Your Honor.
THE COURT:
I will let her answer yes or no, then I want to hear your next question. Just answer yes or no.
THE WITNESS:
What was the question?
MS. MYERS RESUMES DIRECT EXAMINATION:
Q. Did you learn what had happened from somebody that morning, Ms. Bradley, without seeing, it, somebody told you what had happened?
A. Yes.”

The state continued this line of questioning without further objection by defense counsel. Ms. Bradley then was asked if she had spoken to Hardy on the day of the shooting. The following colloquy took place:

“A. That’s right, uh-huh.
Q. Could you tell the jury, Ms. Bradley, not what he said, as you recall it, but what you told him? What kind of things were you telling him?
A. I just asked him what happened. And he said, ‘What you mean what happened?’ I said, ‘What you did this morning?’ And he said that he shot back. I said, ‘Were you the one doing the shooting first?’ He said, ‘First, no.’ I said, ‘Oh, yes, I did, I heard two shots.’ He said, ‘Yes, I shot.’ Then he told me that Frank shot back at him. I said, ‘Yeah, I heard you all back there shooting like you’all were crazy.’ I said, ‘Where that gun at?’ He said, ‘I don’t have it.’ Then I searched him. I said, ‘Let me see?’ Then I patted him down. He didn’t have it on him then.
Q. When you tell the jury that you patted him down, Ms. Bradly, could you actually tell us what you did with your hands?
A. Yes, he had on a t-shirt. I put my hands on his behind and patted him on down. And he had his hand up like this, and said, T told you I ain’t got no gun.’ I said, ‘What you do with it?’ But he wouldn’t tell me what he do with it. He just didn’t answer.
Q. Were you satisfied after patting him down, Ms. Bradley, that he didn’t have a gun on him?
A. Yes, I was satisfied.”

The defense now objects to the witness’ narrative of the conversation between her and the victim as inadmissible hearsay evidence.

As reflected from the quoted testimony, the only objection made by defense counsel was to the inquiry concerning whether or not somebody told the witness what had happened on that occasion. The court immediately intervened to assure that only a “yes” or “no” answer would be given. When an affirmative response was given by the witness, the State pursued this line of questioning without further objection, and elicited the testimony which the defense now considers hearsay. We agree the testimony is hearsay. See State v. Martin, 356 So.2d 1370 (La.1978).

However, it is not all hearsay which is erroneously admitted that presents a ground for reversal. The record reveals that defense counsel objected at the beginning of this series of questions, but no ground therefor was stated. Despite the trial court’s indicating that counsel should be alert to the up-coming questions, no objection was made to the question which elicited the narrative from the witness Bradley, and no motion to strike or admonitory rulings were requested. At no time did defense counsel suggest a ground for his objection. An objection stating no basis or ground presents nothing for this Court to review; consequently, there is no merit to the appellant’s argument. State v. Lewis, 353 So.2d 703 (La.1977).

Moreover, since no objection or ground therefor was made by defense counsel to the testimony of Ms. Bradley regarding her conversation with the victim, this issue has been waived under La.C.Cr.P. art. 841.

It is well established, under the contemporaneous objection rule that an irregularity or error at the trial can not be availed of after verdict unless the defendant timely made known his objection and the grounds therefor. State v. Boutte, 384 So.2d 773 (La.1980); State v. Arnold, 367 So.2d 324 (La.1979).

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 4

By this assignment the defense contends that the trial judge erred in sustaining the prosecution’s objection to a question asked on cross examination of State’s witness, Johnny Boy Wise, by defense counsel. The objection was made during the following testimony of Wise:

“Q. So you were with James the night before he was killed?
A. Yes, I was.
Q. Were you with him when you were with his sister?
A. (NO RESPONSE)
Q. Were you with him when he put the gun to his sister’s head?
A. Yes, I was.
Q. He cursed her out, and said that he was going to blow her brains out, didn’t he?
A. No, he didn’t.
Q. What did he say?
A. He was just clowning around and stuff with her. You know, he didn’t say nothing about blowing her brains out or nothing.
Q. With that pistol?
A. With that pistol.
Q. He didn’t tell her that. If she said he was cursing and said that he was going to blow her brains out, she would be lying? Is that right?
MS. MYERS:
Your Honor, Counsel can’t ask a witness to comment on testimony of another witness.
THE COURT:
I agree, sustained.
MR. MORGAN RESUMES CROSS EXAMINATION:
Q. All right, don’t answer that. Where did that incident take place that he put the gun on her head?
A. What?
Q. Where ... when did that happen that he put the gun at his sister’s head?
A. It happened at night time.
Q. Where?
A. In front of the house.
Q. Whose house?
A. Frank and Gwen’s house.
Q. In front of Frank and Gwen’s house on the sidewalk?
A. Yep.
MR. MORGAN:
I have no more questions.”

We find that counsel for the defense acquiesced in the ruling of the court below; consequently, this objection has been waived under La.C.Cr.P. art. 841. State v. Benitez, 381 So.2d 815 (La.1980); State v. Webb, 364 So.2d 984 (La.1978).

ASSIGNMENT OF ERROR NO. 5

On appeal, the defendant argues for the first time that a photograph of the deceased (Exhibit S-9) was inadmissible, because its gruesomeness made its probable inflammatory or prejudicial effect outweigh its probative value. Defendant’s only objection at the trial to the photograph, however, was on the ground that it was irrelevant or a proper foundation had not been laid for its introduction into evidence.

The record in the instant case shows that defense counsel at the trial stated when S-9 was offered into evidence:

“BY ME. MORGAN:
I’m going to object in the line of evidence. There has been no evidence introduced.”

The test of admissibility for allegedly gruesome pictures is whether their probative value outweighs the possible prejudice that may result from their display to the jury State v. Lewis, 353 So.2d 703 (La. 1977); State v. Williams, 343 So.2d 1026 (La.1977). Photographs of the body of a deceased victim have generally been held relevant to prove the corpus delicti, to corroborate other evidence of the manner in which death occurred, to establish location, number and severity of the wounds, and to establish the identity of the victim. State v. Landry, 388 So.2d 699 (La.1980); State v. Cooper, 334 So.2d 211 (La.1976).

This Court in State v. Landry, supra at 704, stated:

“Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Valentine, 364 So.2d 595 (La.1978).
“In the instant case, two photographs were admitted, one depicting a gash on the victim’s face, and the other showing the location of wounds on the victim’s torso. The defendant argues that they were not relevant because he stipulated as to the identity of the victim, and the cause of his death, two facts which are often shown by the use of photographs. The existence of such a stipulation necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect; nevertheless, the decision remains one for the trial court. State v. Sterling, 377 So.2d 58 (La.1979).
“The photographs of the victim clearly show the location and severity of the wounds he sustained. That evidence is relevant to show intent to kill or inflict great bodily harm. The photographs were thus relevant to an issue not stipulated to by the defendant, and had a probative value that overcame any possible prejudicial effect on the jury. The trial court did not err in admitting the photographs.”

Moreover, defense counsel did not object to the photograph’s use at the trial on the ground he now maintains is the basis for its inadmissibility, i. e., its inflammatory effect outweighs its probative value. This is a new basis for objection. It is the settled law of this state that a new basis for objection is not permitted for the first time on appeal. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Quincy, 363 So.2d 647 (La.1978).

As set.forth in the preceding reasons, an irregularity or error to which an objection was not contemporaneously made can not be raised by the defendant for the first time after verdict. The defendant must have timely made known his objection and the grounds therefor. La.C.Cr.P. art. 841.

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

By these assignments the defendant urges that the trial court erred in allowing “prosecutorial misconduct” during the trial. More specifically, the defense asserts that the prosecuting attorney in effect “testified” during an attempt to impeach the defendant, who testified in his own defense; and, further that the prosecutor expressed his personal opinion concerning the facts of the case and the veracity of the defendant.

During cross examination of Motion by the State, he disagreed with certain state witnesses who testified that, from a location nearby, they had seen the encounter between the defendant and the deceased. The instant assignments of error stem from the following colloquy:

“Q. My question is, then all those people are incorrect, is that correct, Mr. Mot-ton, Mr. Dupre is incorrect ...
A. Yes.
Q. Ms. Foster’s incorrect ...
A. Yes, they are incorrect.
Q. Ms. Robinson is incorrect ...
A. Yes, yes.
Q. Plus all the Hardys and all the Brad-leys are all incorrect?
A. They’re incorrect.
THE WITNESS:
Um, excuse me, Your Honor, but from the pictures that the D.A. have, that corner can only be seen from two or three angles. Anybody on Terpsichore Street where ... from the side where we was at, anybody on Terpsichore off of any angle, if they wasn’t on the exact opposite corner, you cannot see around that corner.
MS. MYERS RESUMES CROSS EXAMINATION:
Q. Mr. Motion, would it surprise you to know that I was out there when ...
THE COURT:
No, Ms. Myers. You are testifying.
MS. MYERS:
Well, Your Honor, I believe the witness’s comment is without any substantiation. He’s just ...
THE COURT:
Well, Ms. Myers, just a minute. Just disregard that.
MS. MYERS:
I’m sorry, Your Honor, I apologize to the Court.
THE COURT:
And you should that is testimony un-sworn, disregard it, Ladies and Gentlemen.”

The defense asserts that these objectionable statements by the prosecutor destroyed the defendant’s credibility as a witness and suggested to the jury that the prosecutor was “privy to facts/information which were not introduced into evidence and which confirmed the prosecutor’s personal belief in the merits of the state’s case.”

While it is generally considered error for a prosecutor to state an individual belief concerning the accused’s guilt when that remark is made in such a way that the jury may conclude that the prosecutor’s belief is based on evidence outside the record, the expressing of an opinion based on evidence within the record is permissible. State v. Procell, 365 So.2d 484 (La.1978); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). In this case the prosecutor’s belief and opinion were based on the combined testimony of several state witnesses as well as her own observations, and did not directly urge a guilty verdict on the basis of evidence outside the record. Her remarks were merely argumentative and were, thus, objectionable; however, defense counsel made no objection to these remarks at trial, and did not move for a mistrial, thereby failing to properly preserve the issue for this Court to review on appeal. La.C.Cr.P. art. 841. Nothing is presented for appellate review. State v. Benitez, supra.

In addition, the trial judge immediately stopped the prosecutor, exacted an apology, and admonished the jury to disregard the remarks. In State v. Procell, supra, the Court said:

“Although it is generally considered erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor’s belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). In this case the beliefs and opinions expressed were based upon the evidence produced at the trial. There was no attempt on the part of the prosecutors to express beliefs or opinions based upon facts or circumstances dehors the record. None of the remarks directly urged a guilty verdict on the basis of evidence outside the record or solely on the beliefs of the prosecutors. Most of the remarks expressed the prosecutor’s opinion of a witness’ testimony; an argument on the credibility of a witness being proper. La.Code Crim.Pro. art. 774; State v. May, 339 So.2d 764 (La.1976). “If it can be considered that the remarks of the prosecutors were impermissible under the rule expressed in Sercovich, the law nevertheless provides a remedy for the defendant. Article 771 of the Code of Criminal Procedure mandates that the judge ‘shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the State, in the mind of the jury.’ The judge did admonish the jury in the instant case, and properly ruled that a mistrial should not be granted. La.Code Crim.Pro. art. 775; State v. Duke, 358 So.2d 293 (La.1978); State v. Rittiner, 341 So.2d 307 (La.1977); State v. Landry, 262 La. 32, 262 So.2d 360 (1972).”

For these reasons, these assigned errors, numbers 6 and 7, are without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

Defendant contends that the trial judge commented on the evidence in contravention of the no-judge-comment rule of La.C.Cr.P. art. 772, which reads:

"The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

The assignment arose in the following context:

“MR. MORGAN DURING HIS CLOSING ARGUMENT:
... Ms. Myers leads you to believe that he (defendant) went on [to] the corner, and while he was waiting there, walked up [up walked] the Defendant [victim]. How was he to know that the Defendant [victim] was even coming on that corner? How was he to know that the Defendant [victim] was not even picked up by the police, cause the police were looking for him. A man that was not unfamiliar with jail. He had already been convicted and went to prison with Johnny Wise.
MS. MYERS:
Your Honor, there has been no testimony that the victim was ever convicted of a crime.
THE COURT:
That is correct. Disregard that. You are going to be, Ladies and Gentlemen, the judges of the testimony in the case. I hesitate to comment on it, but the testimony I will in this case, the testimony does not indicate that the Defendant was ... rather the victim was convicted of a crime. My recollection of testimony indicated that an association was made in jail or prison, but without regard to a conviction.
MR. MORGAN:
Well, then I will rephrase it. The victim was not unfamiliar with jail. He had been jail, as testified with Johnny Wise, who had been convicted and gone out and purchased a gun with the victim ...”

In the case at bar the remarks to which the defense objects were not a comment on the facts; the judge simply pointed out that the defense counsel had in error referred to the victim as having been convicted of a crime when there was no evidence of a conviction, rather the testimony indicated a prison or jail association with Wise. The judge’s comment in no way permits a reasonable inference that it expresses or implies the judge’s opinion as to a material issue or the defendant’s innocence or guilt.

Moreover, we believe that his remarks were proper because they are within an exception to article 772. A trial judge’s remarks made while giving reasons for a ruling are not objectionable as comments on the case unless they are unfair or prejudicial to the accused. State v. Williams, 375 So.2d 1379 (La.1979); State v. Hodgeson, 305 So.2d 421 (La.1974). As these remarks of the trial judge while ruling on an objection were not unfair or prejudicial to the defendant, these assignments of error have no merit.

ASSIGNMENT OF ERROR NO. 10

By this assignment the defendant claims that reversible error was committed by the trial judge in his charging of the jury on the weight and effect of “character evidence.”

The trial judge gave the following instructions on character evidence:

“Now the general reputation of an accused for honesty, peace and quiet, is competent evidence. It is to be considered by you the jury together with all the other testimony and the physical evidence which I permitted you to view. Now general reputation of a man is an opinion held of him by persons in the community, and who live in his neighborhood, or vicinity. It is not the personal opinion of the witness as to the Defendant’s character that is to be considered by you. Reputation means what others in the community known to the witness think of the Defendant. So when the Defendant’s good reputation for honesty, peace and quiet has been established, then the presumption of law is that the crime charged is inconsistent with his former life and character, and the jury should give him the benefit of the presumption to him. Now a man’s good character may sometimes create a reasonable doubt of the Defendant’s guilt when no such doubt would have existed but for such good character. But when a man’s guilt has been established beyond a reasonable doubt, then the question of good character could not avail the accused. In other words, evidence of good character cannot destroy conclusive evidence of guilt beyond a reasonable doubt.”

Upon his completion of the charges to the jury, Judge Ward requested suggested charges and objections from the State and the defense. Both counsel responded that they had neither suggestions nor objections. The record, thus clearly reflects that the defense raised no objection to the charges. Since in the case at bar no objection was made at the time of the charges, the defendant can not complain of the charges on appeal. State v. Simms, 381 So.2d 472 (La. 1980); State v. Mitchell, 319 So.2d 357 (La. 1975).

Nevertheless, the appellant argues that “Inasmuch as the trial court’s charge to the jury does not constitute ‘evidence’ in the case, and is included in the record of this cause on appeal, inspection thereof for error is permissible under Art. 920, C.Cr.P." There is no merit in this contention. Under Article 920, La.C.Cr.P., a defect in the general charge is not an error “discoverable by a mere inspection of the pleadings and proceedings.” See State v. Craddock, 307 So.2d 342 (La.1975), and the cases therein cited. An objection to a jury charge must be made before the jury retires for deliberation or the objection is untimely. State v. Jefferson, 379 So.2d 1389 (La.1980).

This Court has consistently held that a jury charge must be considered as a whole, and particular expressions in a charge must be construed in context of the entire charge and it has declined to reverse a conviction on the ground of an erroneous charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Dardar, 353 So.2d 713 (La.1977); State v. George, 346 So.2d 694 (La.1977).

In State v. Dardar, supra at 715:

“In reviewing an objection made to a jury charge, we must consider the charge as a whole and construe particular expressions in context. This Court will not disturb a trial judge’s ruling unless the disputed portion, when viewed in light of the entire instruction, is erroneous and prejudicial. State v. George, La., 346 So.2d 694 (1977); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, 154 La. 295, 97 So. 449 (1923).”

We conclude that the defendant was not prejudiced by the instructions given by Judge Ward in the instant case. There is no merit in this assignment.

ASSIGNMENT OF ERROR NO. 11

By this assignment the defendant urges that the trial court, at the hearing on the motion for new trial erred in overruling a defense objection to the State’s asking Catherine Eubanks, the first witness called by defense on the hearing, her opinion about “who was right or wrong in the shooting that killed Jamie?”

The testimony giving rise to this objection follows:

“Q. Okay, but did you reach any conclusion as to who was right and who was wrong in the shooting that killed Jamie?
BY MR. MORGAN:
I’m going to object to that—
BY THE WITNESS:
Well, frankly, I couldn’t say because I don’t—
BY MR. MORGAN:
Wait, wait.
That’s for the court, the judge and the jury in deciding wrong.
BY MS. MYERS:
Your Honor, I think the witness can give her conclusion because of the nature of this proceeding. I have questions to ask her relative to — depending on what her conclusion is, the nonappearance of this witness, Your Honor.
BY THE COURT:
Yes, overruled. Answer the question. BY THE WITNESS:
Who was right or wrong?
EXAMINATION BY MS. MYERS:
Q. Right, who did you think was right or wrong?
A. Well, Mam, I don’t like to see nobody get hurt and I — like I said, I was a friend of both of the men. From what I know, I know Jamie supposedly had shot in Frank’s house and, well, like I say, Mam, I don’t think none of them was right, you know, even if Jamie would have shot Frank.
Q. I take it then, it is safe to say you didn’t think that Frank was totally at fault?
A. I’m not saying it was Frank’s fault and I’m not saying, you know, it was Jamie’s fault or who — I’m not saying both of them — I’m not saying one was right and the other one was wrong.
Q. Okay. Am I correct in saying, Ms. Eubanks, after witnessing the incident, you had no opinion?
A. Well, like I said, I didn’t want to get involved because I was a friend of both of them and I just kept it all, you know, to myself cause they had other people that saw what happend besides me.
Q. Can you tell us why you’re involved now, Ms. Eubanks?
A. Because last — let me see, I believe this was last month, they told me that Frank was found guilty and a whole lot of old stuff and they told me that a whole lot of people had some things to say that wasn’t really true and they said that — they said that Frank shot Jamie down and just drove off. They said all kinds of things. And, mostly what made me came down was because from what I can see for myself from across the street, it was self defense.”

The defense now asserts that the question was improper as the witness was not qualified to give an opinion on the matter in question. The question was not calculated to have this witness for the defense determine the accused’s guilt or innocence of the crime charged, as the defendant now argues; guilt had already been fixed by the jury at the trial. The question was admissible for the purpose of ascertaining the state of mind of the witness, or proving her credibility, or leading up to why she had not testified at the trial.

In any event, the question and answer were not prejudicial to the defendant, for the witness indicated she did not know who was right or wrong, and finally said the shooting was done in self defense.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 12

The defendant contends the trial judge erred in denying his motion for a new trial.

Following his conviction, a motion for new trial was filed on the grounds of a verdict contrary to law and evidence, and newly discovered evidence. La.C.Cr.P. art. 851(1) and (3).

In considering a motion for new trial based on newly discovered evidence, the test to be used is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Huckaby, 368 So.2d 1059 (La.1979); State v. Williams, supra. The newly discovered evidence presented at the hearing on the defendant’s motion does not meet that test.

In reviewing the denial of such motions, this Court has held that the trial judge has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and his ruling will be disturbed only when there is a clear showing of abuse of this discretion. State v. Manning, 380 So.2d 54 (La.1980); State v. Provost, 352 So.2d 661 (La.1977); State v. Robinson, 337 So.2d 1168 (La.1976).

In the instant case, the testimony of Ms. Eubanks, who was a close friend of defendant’s father, was contrary to that of all the State witnesses and even to that of the defendant. She is the only one to say that the victim actually had a gun in his hand at the time of the shooting and to indicate that Wise, the friend of Hardy, may have removed the weapon from the scene. The testimony of Ms. Robinson, who was a visitor at the Motton apartment, was concerned with the time interval between Motion’s leaving his apartment and the sound of gunfire, was in contradiction of that of State witnesses that Motton loitered on the corner, apparently lying in wait for Hardy. She heard the shots “a couple of seconds” (maybe three seconds) after Motton left the apartment. By his denial of a new trial, it is obvious Judge Ward found this testimony incredible. Moreover, other evidentiary facts amply support the State’s version of the crime.

Review of the “newly discovered evidence” relied upon by the defense, particularly that of Ms. Eubanks, convinces us that this issue was purely one of credibility. Where credibility is involved, the trier of fact is undoubtedly better situated to make the determination, and the principles announced above do not permit a finding that the trial judge abused his discretion.

Further, the defendant’s contention that this “new evidence” was not discovered and available to him at the date of the trial is not substantiated by the record. These witnesses could have been procured with the exercise of the slightest diligence. The proposed evidence must not only be newly discovered, but also not discoverable by reasonable diligence before the verdict for it to justify the granting of a new trial. State v. Bell, 377 So.2d 275 (La.1979); State v. Lee, 343 So.2d 1060 (La.1977); State v. Drake, 319 So.2d 427 (La.1975).

Defendant finally argues in this part of his assignment of error that the evidence was insufficient to convict Motton of first degree murder. The basis of this argument is that Judge Ward, in denying the motion for new trial, expressed the opinion that “I did feel a more appropriate verdict was Manslaughter.” This was his personal opinion, not his judicial opinion. His judicial opinion was that the evidence was sufficient to convict the defendant for first degree murder, as shown by his denial of the motion for new trial.

In view of the foregoing, we are unable to say the trial judge erred in denying the defendant’s motion for a new trial. Assignment of Error No. 12 is without merit.

ASSIGNMENTS OF ERROR NOS. 13 AND 14

In these assignments the appellant makes a two-pronged attack on the sufficiency of the evidence to convict on a charge of first degree murder.

Defendant’s Assignment of Error No. 13 is addressed to the question of the sufficiency of the evidence to convince a rational trier of fact of the existence of every essential element of the crime of first degree murder beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The defendant urges that the evidence in the instant case was totally lacking as to any of the “aggravating circumstances” set forth in La.C.Cr.P. art. 905.4; and, that the indictment and trial of defendant for first degree murder constituted such an “overcharge” as to render the proceedings, including the verdict, violative of defendant’s due process rights, since the prosecuting attorney conceded that no statutory aggravating circumstances existed in the instant case. (Assignment No. 14)

The “no evidence” standard was first questioned by this Court in State v. Poree, 386 So.2d 1331 (La.1980), fn. 6, p. 1333; and, it has now been disavowed by this Court in State v. Roy, 395 So.2d 664 (La.1981). We hold that in light of Jackson v. Virginia, supra, as construed by State v. Roy, supra, the “no evidence” standard is no longer viable. We believe that henceforth the rule to follow is that in order to find sufficient evidence to support a verdict of conviction, it must be concluded that after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the defendant was guilty beyond a reasonable doubt. See Jackson v. Virginia, supra. The due process clause of the Fourteenth Amendment of the United States Constitution demands that the State must prove beyond a reasonable doubt every essential element necessary to constitute the crime charged. In re Win-ship, supra.

First, the appellant argues that the evidence in the case at bar was totally lacking as to any of the “aggravating circumstances” set forth in La.C.Cr.P. art. 905.4, which constituted an essential element of the crime of first degree murder under La.R.S. 14:30 (as it read prior to the June 29, 1979 amendment).

The thrust of these assignments is that because the prosecutor informed the trial court that there were “no aggravating circumstances” in this case, an essential element of the crime of first degree murder was not proven. There is no merit to this argument. At the time of the perpetration of this crime, first degree murder was not defined in such a way that “aggravating circumstances” was an essential element; it was defined so that specific intent to kill or to inflict great bodily harm was the essential element. It was at the sentencing stage of the proceedings that “aggravating circumstances” had to be taken into consideration. La.C.Cr.P. arts. 905.3, 905.4. In order to fix the death penalty for this crime, the jury, at the sentencing stage of the trial, was required to find the existence of a statutory aggravating circumstance.

La.R.S. 14:10(1) defines specific intent as follows:

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

La.R.S. 15:445 reads in part as follows:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

In State v. Williams, 383 So.2d 369, 373 (La.1980), this Court said:

“Specific intent is a state of mind and as such, it néed not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. Thus, charging the victim in a threatening manner and trying to get at him with a knife over a bar as [has] been found to be evidence of specific intent to kill. State v. Garner, 241 La. 275, 128 So.2d 655 (1961). Likewise, the pointing of a gun at the victim as it was fired has been ruled evidence of a specific intent to kill. State v. Procell, 365 So.2d 484 (La.1978).”

There is ample evidence in the record viewed in the light most favorable to the prosecution to establish that the defendant here armed himself with a pistol, lay in wait for Hardy and shot the victim on sight without warning, with specific intent, all because of an earlier altercation. There was sufficient evidence to convince a rational jury of the existence of every essential element of the crime of first degree murder beyond a reasonable doubt. We find that the State has proved beyond a reasonable doubt every fact necessary to constitute the crime of first degree murder.

These assignments do not show reversible error.

DECREE

For the reasons assigned, the conviction and sentence of Frank Motton are affirmed.

AFFIRMED.

MARCUS, J., concurs.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . See e. g. State v. Huckaby, 368 So.2d 1059, 1065 (La. 1979); State v. Williams, 354 So.2d 152 (La.1977). Based on the theory that this Court’s appellate jurisdiction in criminal matters extends only to questions of law, LSA-Const. Art. 5, § 5(C), and it is only where a defendant has moved for a new trial based upon the contention that there is no evidence at all of the crime charged or an essential element thereof, is a question of law presented which this Court can review.

      . The crime in question occurred on June 24, 1979. The present statute defining “first degree murder” requires the existence of one of the enumerated aggravated circumstances. This statute (La.R.S. 14:30) became effective June 29, 1979, some four days after the offense in question. The statute in effect at the time the crime was committed defined “first degree murder” as “... the killing of a human being when the offender has a specific intent to kill Or to inflict great bodily harm.” Hence, an “aggravating circumstance” was not an essential element of the crime. The legislature amended 14:30.1 to define second degree murder as an unaggravated specific intent homicide and then this Court in State v. Payton, 361 So.2d 866 (La. 1978), stated that by this amendment, "... the legislature clearly intended by implication to remove this type of conduct from the definition of first degree murder and to redefine the capital offense as a specific intent homicide accomplished with a statutory prescribed aggravating circumstance.” However, by Act No. 796 of 1978 the legislature again amended La.R.S. 14:30.1 by repealing the provision which was the source of the “implied amendment” theory of Payton, supra. At the time of the offense in question, “second degree murder” was defined as:
      “Section 1. Section 30.1 of Title 14 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows: “ § 30.1. Second Degree Murder

        “Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.”
      See also State v. Perkins, 375 So.2d 1179 (La. 1979).


author: LEMMON, J.,

text:
    Spencer G. WALL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 80-C-2638.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re New Orleans Public Service, Inc., applying for writ of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 389 So.2d 80.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.

LEMMON, J.,

would grant the writ, set aside the jury verdict as abusive of its discretion, and remand to the court of appeal for fixing of quantum without assigning any weight whatsoever to either award by the jury.


text:
    In re James C. FREEMAN.
    No. 80-KH-2742.
    Supreme Court of Louisiana.
    Jan. 2, 1981.
   In re James C. Freeman, applying for writs of certiorari and prohibition (Order Transferred to Supreme Court from the Court of Appeal, Fourth Circuit). No. 12122. Parish of Orleans. No. 183-845. (Juvenile Court, Div. C).

On the showing made, denied.


text:
    STATE of Louisiana v. Tracy P. JOHNSON.
    No. 81-K-0032.
    Supreme Court of Louisiana.
    Jan. 6, 1981.
   In re Tracy P. Johnson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafourche. No. 96906.

Denied.


text:
    STATE of Louisiana v. Rafael BERMUDEZ.
    No. 80-K-2890.
    Supreme Court of Louisiana.
    Jan. 8, 1981.
   In re Rafael Bermudez, applying for writs of certiorari, prohibition, mandamus, and for stay order. Parish of Jefferson. No. 80-483.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Joseph ALPINE v. STATE of Louisiana.
    No. 80-KH-1782.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Joseph Alpine, applying for remedial writs. Parish of Orleans. No. 266-289.

Writ granted. Application filed with pending appeal, 80-KA-2849, as a supplemental assignment of error.


text:
    STATE of Louisiana v. Bennie WATKINS.
    No. 80-K-2380.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Bennie Watkins, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Tangipahoa.

Granted.


text:
    Tommy R. McCRORY v. Earl C. ROCHESTER and Truck Service, Inc.
    No. 80-C-2866.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Tommy R. McCrory, applying for writ of certiorari, or review, to the First Circuit, Court of Appeal. Parish of East Baton Rouge. 393 So.2d 176.

Granted.


text:
    Joan Dee Royal LEMOINE v. Joseph Lester LEMOINE.
    No. 80-C-2841.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Joan Dee Royal Lemoine, applying for certiorari or writ of review, Court of Appeal, First Circuit. Parish of Pointe Coupee. 393 So.2d 251.

Denied.


text:
    John M. SPAIN v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION.
    No. 80-C-2712.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re John M. Spain, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 226.

Granted.


text:
    STATE of Louisiana v. John R. KENNEDY.
    No. 80-K-2612.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re John R. Kennedy, applying for writs of certiorari, prohibition, mandamus, and review. Parish of Rapides. No. 196-444.

Granted.


text:
    STATE of Louisiana v. Jeff LEE.
    No. 80-K(A)-2704.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re State of Louisiana, through the District Attorney, Marion B. Farmer, applying for remedial writs. Parish of St. Tammany. No. 79437.

Granted.


text:
    STATE of Louisiana ex rel. Willie A. THOMAS v. STATE of Louisiana.
    No. 80-KH-2795.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Willie A. Thomas, applying for writ of certiorari. Parish of DeSoto. No. 39582.

Granted. An evidentiary hearing is ordered to determine whether relator waived his right to appeal.


text:
    STATE of Louisiana v. David TYLER.
    No. 80-K-2823.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re David Tyler, applying for writ of certiorari or review. Parish of Ouachita. No. 39808.

Writ granted.


text:
    STATE of Louisiana v. Dale J. GUILLOT.
    No. 80-K-2934.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Dale J. Guillot, applying for remedial writs. Parish of Avoyelles. No. 44458.

Granted. Sentence set aside. Case remanded to trial court for hearing and determination as to whether relator should be permitted to withdraw his guilty plea.


text:
    STATE of Louisiana v. George G. ESTER.
    No. 80-K-2865.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re George G. Ester, applying for writs of certiorari and review. Parish of Caddo. Nos. W-2901 and W-2901VÍ

Denied in part; not considered in part. Relator’s application is denied relative to his aggravated assault conviction. It is not considered relative to his conviction for resisting an officer as the appeal of that conviction is presently pending before the district court.


text:
    STATE of Louisiana ex rel. Tommy PORTER v. STATE of Louisiana.
    No. 66591.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Tommy Porter, applying for remedial writs. Orleans Parish. Nos. 272-231 and 272-443.

Denied.


text:
    STATE of Louisiana ex rel. James L. WILLIAMS v. Honorable Oliver P. SCHULINGKAMP, Judge, Orleans Parish Criminal District Court.
    No. 67550.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re James L. Williams, applying for writ of mandamus. Parish of Orleans. Nos. 246-514 and 244-954.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Walter BRUMFIELD v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67786.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Walter Brumfield, applying for writs of certiorari and review. Parish of East Baton Rouge. No. 6-74-2084, Section IV.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. John Charles STEIN, Jr. v. Frank BLACKBURN, Warden et al.
    No. 80-KH-1551.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re John Charles Stein, Jr., applying for writs of habeas corpus and supervisory. Parish of Caddo. Nos. 94-047 and 94-048.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles A. HEALY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1583.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Charles A. Healy, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. No. 243-565.

Denied.