author: WATSON, Justice.

text:
    STATE of Louisiana v. William EDWARDS.
    No. 81-KA-2112.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Michael Jay Fontenot, Asst. Dist. Attys., for plaintiff-appellee.
    Percy A. Ford of Ford & Avants, West Monroe, for defendant-appellant.
   WATSON, Justice.

Defendant, William Edwards, was convicted by a unanimous twelve person jury of the second degree murder of Leon Marion Glowski. LSA-R.S. 14:3o.!. Edwards was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On appeal, he assigns five errors by the trial court.

FACTS

Defendant William “Billy Bird” Edwards was arrested in Memphis, Tennessee, in connection with the armed robbery of a 7-11 store in that city at approximately 1:00 A.M. on October 3, 1980. The vehicle used in the robbery was a 1979 beige and brown Oldsmobile Cutlass, which was registered to Leon Marion Glowski. He and his automobile had been missing since September 6, 1980. His body had been found in Monroe, Louisiana, on September 10, 1980. Death occurred from a skull fracture.

Edwards and two confederates had taken the car from Glowski in Houston, relieved him of $20 and put him in the trunk. They then undertook a nine hour trip from Houston to Monroe. Edwards’ mother, father, and sister resided in Monroe. On September 7, after the travelers visited the Edwards’ family, Glowski was severely beaten with the Oldsmobile jack handle, tied securely and left to die in a wooded area.

When Edwards was arrested in Memphis he confessed his participation in the homicide. The three men had no previous acquaintance with Glowski and apparently took him and his car on a whim. From the photographs in evidence, there is no doubt that the trio intended Glowski’s death.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that his confession to the Memphis police department should have been suppressed. Prior to making the statement, Edwards was taken to the hospital for treatment of a severe cut on the hand. He was then placed in a cell. The arrest was about 2:00 A.M. and questioning commenced about 10:00 A.M. In contrast to State v. Smith, 409 So.2d 271 (La., 1982), Edwards received medical attention before the questioning. He was fully advised of his constitutional rights before he made a statement about the armed robbery and before he made a subsequent statement about the murder. LSA-C.Cr.P. art. 703. Edwards is a high school graduate with one year of training in electronics and stated that he is able to read and write. He not only signed a written waiver of his rights, but also said in a transcribed dialogue that he understood the form and realized he was not required to say anything. He stated that he had not been threatened; that the statement was free and voluntary; and that the officers had been “exceptionally nice”. Edwards indicated that he had felt a compulsion to confess: if he had talked to his mother for any length of time, he would have told her what had happened. The State carried its burden of proof. LSA-R.S. 15:451. The trial court correctly ruled that the statements were completely voluntary, free from extraneous influences, and made after defendant had been thoroughly advised of his constitutional rights. Compare Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

This assignment completely lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The State’s opening argument referred to the fact that the defendant and his confederates had been smoking marijuana and it is contended that this was an impermissible reference to other crimes which mandated a mistrial under LSA-C. Cr.P. art. 770(2). The drug use was admissible evidence since it was an integral part of the events immediately preceding the criminal act and part of the res gestae. LSA-R.S. 15:447; 15:448. The motion for a mistrial was properly denied. State v. Haarala, 398 So.2d 1093 (La., 1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that the trial court erred in denying his challenge for cause of prospective juror Doris Scott. Doris Scott had been employed in the misdemeanor section of the district attorney’s office for three years prior to August of 1977. She had not been associated with that office for three years and nine months prior to the voir dire.

Now an insurance agent, Doris Scott had worked with, Ouachita Finishing and the telephone company after leaving state employment. She testified unequivocally that she could weigh the testimony of all the witnesses in a fair and impartial manner; that her work had never involved felony matters; and that her judgment in the matter would not be in any way affected by her past employment. The defense did not attempt to establish that she was in any way biased or prejudiced. Compare State v. Claiborne, 397 So.2d 486 (La., 1981).

Former employment with a prosecutor’s office does not automatically prevent an individual from being a fair and impartial juror. Even current employment in law enforcement has been stated to be non-disqualifying. See State v. Forbes, 111 La. 473, 35 So. 710 (1903); State v. Foster, 150 La. 971, 91 So. 411 (1922); State v. Reese, 250 La. 151, 194 So.2d 729 (1967); and State v. Skelton, 340 So.2d 256 (La., 1976). Compare State v. Simmons, 390 So.2d 1317 (La., 1980) and State v. Lewis, 391 So.2d 1156 (La., 1980). On the basis of her voir dire, there is no reason to find Doris Smith disqualified. Since her relationship with law enforcement was both distant in time and relatively brief, it is not reasonable to conclude that she would be influenced by it. LSA-C.Cr.P. art. 797(3); State v. Jones, 345 So.2d 1157 (La., 1977).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The defense used twelve peremptory challenges. Because Doris Scott cost one, it claims that an obnoxious twelfth juror, John Robert Lee, was not challenged for cause for fear of alienating him if the challenge failed. The state said it would not oppose allowing the alternate juror to replace Lee before the deliberations. However, no motion was made to this effect at the conclusion of the evidence.

Nothing in the voir dire shows Lee as being other than fair and impartial. Grounds for challenging Lee for cause were never stated. LSA-C.Cr.P. art. 795. None were revealed, but the state, in a commendable desire to avoid appellate difficulties, indicated its willingness to allow the thirteenth juror to serve. This alternative was available. Failing to move to substitute the alternate juror before deliberations waived any objection to Lee.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that the prejudicial effect of four photographs outweighed their probative value. The trial court excluded certain photographs but admitted other gruesome pictures, which were crucial to the question of specific intent to murder. The probative value of the photographs on this issue outweighs their prejudicial effect. The photographs were essential to prove an element of the crime charged, and were properly admitted into evidence. LSA-R.S. 14:30.1.

This assignment lacks merit.

For the foregoing reasons, the conviction and sentence of the defendant, William Edwards, are affirmed.

AFFIRMED.

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

      . LSA-R.S. 14:30.1 provides:
      “Second degree murder is the killing of a human being:
      “(1) When the offender has a specific intent to kill or inflict great bodily harm; or
      “(2) 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 parole, probation, or suspension of sentence.”

      . LSA-C.Cr.P. art. 703 provides:
      “A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
      “B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
      “C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
      “D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
      “E. An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The State may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of impeaching the defendant’s testimony at the trial on the merits.
      “If the defendant testifies before the jury at the trial on the merits, he can be cross-examined on the whole case.
      “F. A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.
      “G. When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement. “A ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.”

      . LSA-R.S. 15:451 provides:
      “Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

      . LSA-C.Cr.P. art. 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

      . LSA-R.S. 15:447 provides:
      “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

      . LSA-R.S. 15:448 provides:
      “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

      . The jury could have regarded marijuana usage as an exculpating factor in view of the cruel and wanton violence inflicted on Glowski.

      . LSA- C.Cr.P. art. 797(3) provides:
      “The state or the defendant may challenge a juror for cause on the ground that:
      * * * * * *
      “(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; ...”

      . LSA -C.Cr.P. art. 795 provides:
      “A juror cannot be challenged for cause by the state or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. A challenge for cause must be made before the indictment is read to the jury.
      “A peremptory challenge may be made by the state at any time before the juror is accepted by it, and by the defendant at any time before the juror is sworn.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Bonnie R. TONEY.
    No. 81-KA-2128.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Walter Lee Perkins, Nancy Gilliland, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ned D. Wright, Monroe, for defendant-appellant.
   NESTOR L. CURRAULT, Jr., Justice Pro Tem.

The defendant, Bonnie R. Toney, was charged by bill of information filed January 2, 1979 with felony theft, a violation of R.S. 14:67. After pleading not guilty, a plea bargain agreement was reached with the State and, on December 3, 1980, the initial plea of not guilty was withdrawn and a plea of guilty of attempted theft was entered. On May 7, 1981, the date set for sentencing, the defendant filed an oral motion to withdraw her guilty plea. This motion was denied and the trial judge sentenced the defendant to serve one year in the Ouachita Parish Jail and to pay $200.00 to the Indigent Defender Board. Defendant appeals on two assignments of error. We find merit in the contention that the defendant should have been permitted to withdraw her guilty plea which was based upon an incomplete Boykin waiver. We reverse the conviction and sentence and remand the case to the lower court.

Assignment of Error No. 1

By this assignment defendant urges that the trial judge erred in refusing to allow the defendant to withdraw the plea of guilty under Article 559 of the Louisiana Code of Criminal Procedure, where the defendant had not been properly advised of her rights at the time of entering the plea.

Code of Criminal Procedure Article 559 provides, in pertinent part, “The court may permit a plea of guilty to be withdrawn at any time before sentence.” The record reflects that the motion to withdraw the guilty plea was made timely. Defense counsel urged that the defendant was improperly “boykinized.” The trial court, in disposing of the motion, held:

Ms. Toney, whatever your name is, I just went downstairs and checked the minutes of the court. You were boykinized. You were placed on the witness stand and you were boykinized.

The court minutes for December 3, 1980 state:

that the defendant was advised by the court of his absolute right to plead not guilty and have a trial, advised of the charge, advised if he went to trial that he had the right of confrontation, against self-incrimination, compulsory process, and the right to remain silent, advised of right to appeal if he was convicted after a trial [was] held.

However, the following is the sentencing colloquy as reflected by the transcript of the proceedings:

BY THE COURT: And you wish to enter a plea of guilty to attempted theft?
BY MS. TONEY: Yes, sir.
BY THE COURT: Now have you heard me explain all this to these other people?
BY MS. TONEY: To this last person, that’s all.
BY THE COURT: Do what?
BY MS. TONEY: Only to this last man.
BY THE COURT: Do you understand what your rights are?
BY MS. TONEY: Yes, I do.
BY THE COURT: If you were charged— you were charged with felony theft and the maximum penalty for that, if it was $200.00, is two years in jail or the penitentiary or a fine. Now they’ve changed the charge to attempted theft, so the maximum penalty has been reduced to a fine — a maximum of not more than $200.00 or jail for not more than one year or both. Is that clear to you?
BY MS. TONEY: Yes, sir.
BY THE COURT: Have you been promised any particular sentence?
BY MS. TONEY: No.

As can be seen from the above colloquy, the trial judge failed to advise defendant of her right to a jury trial or her privilege against self-incrimination.

According to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), “a constitutionally valid guilty plea requires that the defendant expressly and knowingly waive his right to jury trial, confrontation of witnesses and privilege against self-incrimination. Currently in every Louisiana felony case, the trial judge is required to articulate the three rights described in Boykin. ...” State v. Cusher, 400 So.2d 601 (La.1981). This court in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1975) expounding Boykin held that “in taking a plea of guilty, an express and knowing waiver of at least these three federal constitutional rights must be made, which waiver cannot be presumed.” 260 La. 103, 255 So.2d 85.

Most recently, in State v. Jones, 404 So.2d 1192 (La.1981), it has become incumbent upon the trial courts, whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, to inform the defendant that by pleading guilty he waives (a) his privilege against self-incrimination; (b) his right to trial and jury trial where it is applicable; and (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequences. 404 So.2d at 1196. Because the record in the present case does not support a finding that the defendant voluntarily and knowingly waived her constitutional rights, the trial court should have permitted a withdrawal of the guilty plea. Accordingly, the guilty plea is ordered vacated, the conviction and sentence reversed, and the matter remanded to the district court.

REVERSED AND REMANDED.

WATSON, J., concurs in the result.

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


text:
    STATE of Louisiana v. Willie E. PHILLIPS.
    No. 81-KA-2230.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   WALTER I. LANIER, Jr., Associate Justice Pro Tem.

By a bill of information filed on April 4, 1979, the defendant, Willie E. Phillips, and three others, were jointly charged with committing simple burglary of an inhabited dwelling on February 16, 1979, in violation of La.R.S. 14:62.2. On May 4, 1979, the defendant plead not guilty. On December 3, 1979, pursuant to a plea bargain with the State, the defendant plead guilty to an amended charge of attempted simple burglary in violation of La.R.S. 14:27 & 62. The trial judge ordered a pre-sentence investigation, and on January 18, 1980, the defendant was sentenced to be committed to the Louisiana Department of Corrections at hard labor for a term of three years. The defendant appealed the sentence to this court contesting the accuracy of the pre-sentence investigation, alleging that the trial court did not fully comply with Article 894.1 of the Code of Criminal Procedure and that the sentence imposed was excessive. On December 15, 1980, this court vacated the original sentence and remanded to the trial court for a new sentencing hearing and re-sentencing on the grounds that “[D]efendant should have an opportunity to rebut the highly prejudicial allegation in the pre-sentence report that he had been involved in a succession of burglaries.... ” and for “failure of the trial court to fully articulate the reasons for the sentence, . . . ”. State v. Phillips, 391 So.2d 1155 (La.1980). On January 21, 1981, the trial court ordered a supplemental pre-sentence investigation returnable March 6, 1981. On April 10, 1981, a sentencing hearing was held and the trial court re-sentenced the defendant to serve eighteen months in the Jefferson Parish Prison. The defendant has again appealed his sentence assigning four errors.

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

The defendant contends that the District Court erred when it relied on the original and supplemental pre-sentence reports which did not include information concerning the particular role played by the defendant in the commission of the crime and did not refer to the defendant’s cooperation with the police and prosecution in the resolution of the case. The defendant contends that these omissions are in violation of Article 875 of the Code of Criminal Procedure which requires the investigating officer to “inquire into the circumstances attending the commission of the offense,...".

On March 16, 1981, the defense counsel wrote a letter to the investigating officer requesting that she interview Gerald Byers, a Jefferson Parish policeman, who would furnish information concerning the help given by the defendant to the police and the State, and interview a co-defendant, William Bode, who was given a suspended sentence and placed on probation, concerning the defendant’s degree of participation in the commission of the crime.

Counsel for the defendant did not subpoena William Bode or Gerald Byers for the second sentencing hearing. Counsel for the defendant indicated that he had spoken to counsel for Bode and was advised that Bode would not go to court to testify at a sentencing hearing or for any other reason. Counsel for the defendant indicated in his brief that the reason he did not subpoena Bode was because he “could not rely on his truthfulness in the courtroom.” As an alternative, he requested that the investigating officer interview Bode concerning Phillips’ participation in the crime for inclusion in the second pre-sentence report. Counsel for Phillips indicated that he did not subpoena Byers because he felt that the information that Byers possessed would be included in the pre-sentence report.

The information concerning the degree of participation of the defendant in the crime and his cooperation with the State and the police was brought to the trial court’s attention by way of a copy of the March 16, 1981, letter which was filed into evidence and by oral argument of counsel at the resentencing hearing. The defendant had the opportunity to subpoena Byers and Bode and chose not to do so. The defendant was interviewed for the original pre-sentence report and given an opportunity to provide mitigating facts and/or information but did not. The defendant was re-interviewed on February 5, 1981, concerning the circumstances surrounding his arrest but provided no additional information. The defendant elected not to take the witness stand to provide the information in question at the re-sentencing hearing.

The defendant next contends that the trial court erred “in placing undue emphasis on an allegedly incomplete community work probation requirement.” A review of the transcript of the re-sentencing proceeding shows that the trial judge quoted from the second pre-sentence investigation and indicated that the defendant only completed from 96 to 160 hours of the 200 hours of public work required by his prior probation but that otherwise his probationary period was considered satisfactory. Counsel for the defendant did not request a continuance or recess to subpoena the probation officer or the person who supervised the community service to explain this statement, nor did counsel contest the accuracy of this statement. Counsel for the defendant was given an opportunity to argue what weight should be attached to this information. While the record reflects that this was a factor considered by the trial judge, it does not reflect what weight he gave it.

The defendant claims that the trial court erred by failing to comply with the sentencing guidelines of Article 894.1 of the Code of Criminal Procedure and that the sentence imposed is excessive. The defendant asserts through counsel that he did not enter the home of the victim and only furnished transportation to those who did and that through his cooperation with the police this case was solved and his co-defendants convicted. Defendant further asserts that he is married with one child and one expected, that he has been regularly employed for over one year and entered into an asbestos worker apprentice program at the time of re-sentencing. The defendant argues that had the trial judge properly considered these factors, his sentence to confinement would have been suspended and that he would be given probation.

A majority of this court has held that Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment, and that although a sentence imposed may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and be subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). A trial judge’s reasons for sentence, as required by Article 894.1, are an important aid when reviewing a sentence for excessiveness. However, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The record reflects that on re-sentencing the trial court again did not adequately consider the 894.1 guidelines in particularizing the sentence of the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). However, where the sentence imposed is not “apparently severe” this court will not remand for compliance with Article 894.1. State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. Jones, 381 So.2d 416 (La.1980).

The original pre-sentence investigation indicates that on February 16, 1979, an inhabited dwelling in Harahan, Louisiana, was burglarized. An automobile, a color television, a stereo, and five firearms were taken from the premises. All of the items taken were subsequently recovered by the Jefferson Parish Sheriff’s Office and were returned to their owner, except one firearm. The color television and stereo were found broken but the owner’s insurance company paid for the damages.

The defendant was originally charged with burglary of an inhabited dwelling pursuant to La.R.S. 14:62.2 which has a mandatory penitentiary sentence providing that the defendant “shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.” By plea bargain with the State, the original charge was amended to attempted simple burglary in violation of La.R.S. 14:27 and 62, which carries a maximum sentence of confinement with or without hard labor for a term not to exceed six years, and is subject to parole, probation and suspension of sentence. The fact that the legislature has singled out simple burglary of an inhabited dwelling for specific legislative action providing for an enhanced sentence greater than other types of simple burglary represents a legislative determination relative to the “seriousness of the crime” and should be considered in reviewing the excessiveness of the sentence imposed in this case. State v. Wright, 384 So.2d 399 (La.1980).

A second relevant factor is that the instant offense was committed while the defendant was still on active probation. A review of the original pre-sentence investigation shows that on August 31, 1978, after pleading guilty to a charge of unauthorized use of a movable (misdemeanor), the defendant was sentenced to serve ninety days in the Jefferson Parish Prison, which sentence was suspended and he was placed on active probation for a period of six months which terminated on February 29, 1979. The crime occurred on February 16, 1979. In his per curiam filed after original sentencing, the trial judge emphasized that “the defendant had already received the benefits of probation/suspension of sentence on an earlier charge and was in fact on probation at the time of the commission of the crime charged (although not revoked)” ... and that “he did not profit from the experience.” Obviously, the defendant did not respond affirmatively to probationary treatment.

In addition, during this simple burglary of an inhabited dwelling, five firearms were taken and one was not returned.

After balancing the aggravating factors with the mitigating factors of record, it cannot be said that the sentence is excessive since it falls into the lower range of what could have been imposed and is not “apparently severe”. At the re-sentencing the trial judge reduced the sentence from three years in the penitentiary to eighteen months in the Parish Prison. Clearly he must have considered mitigating factors brought to his attention. It would serve no useful purpose to remand this matter again for re-sentencing for failure to comply with Article 894.1 or for any other reason.

Assignments of Error Numbers 1, 2, 3 and 4 are without merit.

DECREE

For the reasons assigned, the defendant’s sentence is affirmed.

AFFIRMED.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . The second pre-sentence report omits any reference to “a succession of burglaries.” There is no allegation that this information affected the trial court at the re-sentencing.

      . Page 17, Transcript in Docket Number 80-KA 1208. The report is dated January 17, 1980.

      . See pp 31 through 38 of transcript.

      . Apparently, the State was impressed by the cooperation given by the defendant.

      . The original pre-sentence investigation in the record of Docket Number 80-KA-1208 shows that the defendant was not arrested for this charge until March 23, 1979.

      . See page 34 of the Transcript in Docket Number 80-KA-1208.


author: BLANCHE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Thomas J. FARRIS.
    No. 81-K[A]-2264.
    Supreme Court of Louisiana.
    April 5, 1982.

      C. Thomas Tolbert, Sulphur, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant was charged by bill of information with criminal trespass in violation of Cameron Parish Police Jury Ordinance Number 10-1-56 Sec. 44(A). He was tried before a judge, found guilty, and sentenced to fifteen days in jail; however, the sentence was suspended and the defendant placed on two years unsupervised probation. We granted defendant’s writ to review the constitutionality of the ordinance under which defendant was convicted.

The defendant argues that the trial court erred in denying his motion to quash the bill of information against him because the ordinance under which he was prosecuted is unconstitutionally vague and overbroad. The ordinance in question reads as follows:

No person shall hunt or fish on any unenclosed land or waters within the Parish of Cameron, Louisiana, without first obtaining the approval of the owner or lessee thereof, (emphasis supplied)

This ordinance was passed pursuant to authority granted by virtue of Act No. 355, Acts 1956 of the Louisiana legislature.

The constitutional requirement of definiteness for a regulatory law accompanied by a penal sanction emanates from the due process clause of the United States Constitution and Article 1, Sections 13 and 16 of the Louisiana Constitution. A statute with criminal sanctions is unconstitutional if it is vague, and the crippling constitutional defect in a vague law is that it does not give individuals adequate notice of the conduct prohibited by law. By the same token, neither does it give adequate standards for those charged with administering the law to follow in determining whether the statute has been violated. State v. Dousay, 378 So.2d 414 (La.1979); Schopler, Annotation, Indefiniteness of Language as Affecting Validity of Criminal Legislation or Judicial Definitions of Common-Law Crime — Supreme Court Cases, 16 L.Ed.2d 1231 (1966).

This Court has held that the constitutional guarantee that an accused be informed of the nature and cause of the accusation against him requires that a penal statute describe unlawful conduct with sufficient clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Dousay, supra. We have also held that the requirement that a statute be definite has been complied with when the language “has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden”, or when “the crucial words [or] phrases in the criminal statute have a fixed and definite meaning for a person of ordinary intelligence.” State v. Defrances, 351 So.2d 133 (La.1977); State v. Cloud, 248 La. 125, 176 So.2d 620 (1965).

In State v. Vanicor, 239 La. 357, 118 So.2d 438 (1960), this Court held unconstitutionally vague a statute which contained a prohibition against commercial fishing by means of artificially or electrically controlled devices and made it unlawful to possess any of those devices “under circumstances which indicate that said possession is for the purpose of illegally taking commercial fish”. We noted that the statute failed to specify what constituted such “circumstances” and furnished no clear definition of the word and no guide or standard by which such “circumstances” could be judged, although the word was susceptible to many interpretations. Criminal laws are to be construed stricti juris, and this Court has consistently refused to usurp legislative prerogatives by supplying definitions omitted in criminal statutes. State v. Murtes, 232 La. 486, 94 So.2d 446 (1957); State v. Truby, 211 La. 178, 29 So.2d 758 (1947).

In our view, the ordinance presently before the Court is unconstitutionally vague due to the fact that the ordinance does not define “unenclosed land or waters”, nor does that phrase have a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of the conduct forbidden. This is particularly true of the ordinance’s reference to “unenclosed waters.” It occurs to this Court that the word “unenclosed” has no meaning without an understanding of the word “enclosed”; therefore, in the absence of a definition of either, a person must reason his own interpretation of what type of waters are “unenclosed” by reference to the type of waters he determines to be “enclosed”. Water may be “enclosed” in the sense that it has no outlet to another body of water, for example, a landlocked lake, or a body of water may be enclosed because it is surrounded by an artificial barrier such as a dam, weir or bulkhead. Reasoning from the possible definitions we have fashioned for “enclosed waters”, “unenclosed waters” must necessarily be interpreted to mean water that is not “enclosed”. It might then be reasoned that such waters would have an outlet to another body of water or would not be encompassed by a barrier, either natural or artificial. Accordingly, under this definition, “unenclosed waters” would include all waters in Cameron Parish which are not landlocked or enclosed within barriers and, most assuredly, all navigable and non-navigable streams and rivers would be included in this definition. As demonstrated above, the circuitous reasoning necessary to discern the possible meanings of the phrase “unenclosed waters” convinces us that a person of ordinary intelligence who read this statute would not be given fair notice of the conduct forbidden, nor does the ordinance provide a definition to clarify the ambiguity.

The state contends that “enclosed” is adequately defined in R.S. 14:63 et seq. We find this contention to be devoid of merit. In the first place, the ordinance makes no reference to the cited statute’s definitions of “enclosed”. Further, the statutes deal with “enclosed” lands, not “unenclosed” waters, and, if the ordinance seeks to proscribe conduct on “unenclosed” waters, it should provide its own definition.

The very fact that the legislature determined it was necessary to define “enclosed” in the statutes cited supports this Court’s ruling that the undefined phrase “unenclosed water” is unconstitutionally vague. The legislature’s inclusion of a definition of “enclosed” indicates a concern that the term is ambiguous without definition and, therefore, requires explanation. Criminal statutes are to be strictly construed. We are unwilling to provide a definition of “unenclosed” by looking to the definition of “enclosed” in an unrelated statute, or by fashioning one independently, then reasoning that all things which are not “enclosed” are “unenclosed.” The ordinance is vague as it is written and this Court will not furnish a definition of “unenclosed” to illuminate its ambiguous language because the police jury failed to provide one.

We hold the ordinance to be unconstitutionally vague; therefore, we need not address relator’s other assignments of error. The defendant’s conviction is reversed and his sentence vacated and set aside.

Reversed.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not consider that the ordinance prohibiting hunting and fishing on unenclosed land or waters without first obtaining the approval of the owner or lessee is unconstitutionally vague.

Accordingly, I respectfully dissent.

      . The statutes referred to are R.S. 14:63, entitled “Criminal trespass”, and R.S. 14:63.12, entitled “Criminal trespass upon marshland”. We note that R.S. 14:63 has been amended, but the effective date was several months after the offense at issue here; therefore, the amendments do not apply.


text:
    STATE of Louisiana v. Addison MITCHELL, Sr.
    No. 81-KA-2325.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, William O’Hara, Kendall P. Green, William R. Campbell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    M. Craig Col wart, New Orleans, for defendant-appellant.
   NESTOR L. CURRAULT, Jr., Justice Pro Tem.

Addison Mitchell, Sr. was charged by bill of information with the offense of indecent behavior with a juvenile, a violation of Louisiana Revised Statute 14:81. After a trial by jury he was found guilty as charged. Subsequently, the State filed a multiple offender bill against the defendant. After hearing, the trial judge determined him not to be a multiple offender and sentenced the defendant to serve three years at hard labor. On appeal, the defendant relies on two assignments of error for reversal. Finding merit to the second of the assigned errors, we reverse.

Factual Synopsis

Kerry Santa Cruz, an eleven-year-old young man, testified that on a certain Saturday he and his six-year-old sister, Rochell, visited a man named “Noonie.” “Noonie,” the defendant herein, lived across the street and was a friend of the Santa Cruz family. When Kerry left “Noonie’s” house, Rochell remained behind.

Rochell Marie Santa Cruz, the victim of the crime, testified that while she was alone with the defendant he “stuck his hand” under her clothes. When he did that she began to bleed. After being asked, “Did ‘Noonie’ stick his fingers in you,” she replied affirmatively.

Later that night, Sharon Maria Santa Cruz, the victim’s twenty-two-year-old sister, noticed blood stains on a pair of Roc-hell’s underwear. She asked Rochell what had happened and the child told her that she had “hit herself on a girl’s porch.” The next morning Sharon again questioned Ro-chell. Finally, the child tearfully admitted that “Noonie played in her bootie.” According to Sharon, Rochell was referring to her vagina.

After discovering this information, Sharon called their mother to report the incident. All three of them then went to Hotel Dieu Hospital where Rochell was examined. Doctor Myron E. Moorehead examined Ro-chell and found blood stains on her external genitalia. Her hymenal ring was dilated and had a small laceration. No sperm was found during the examination. Rochell told Dr. Moorehead that someone named “Noo-nie” had hurt her down below with his hand.

Subsequently, defendant was arrested and convicted of the present offense.

Defendant contends the trial court erred in allowing the State to impeach his testimony by use of a letter written by the defendant to the victim’s family, the existence and contents of which were not disclosed to defense counsel despite a discovery request.

On October 6, 1980, defense counsel filed an extensive Motion for Bill of Particulars, Discovery and Inspection, requesting among other things “Did the defendant make any oral or written confession, statement, and/or admission, whether inculpatory or exculpatory,” to which question the State responded “No.” Trial commenced on October 30, 1980. On the second day of trial, the defendant, Addison Mitchell, Sr., took the stand and denied responsibility for the incident. During cross-examination, the prosecutor handed defense counsel a letter to peruse. Prior to questioning concerning the letter, a recess was requested and a discussion ensued in chambers. The defense counsel advised the court that the State was in possession of a letter from the defendant requesting forgiveness from the victim’s family. He asserted that the letter was a “complete surprise” to him as he had been informed the State had no inculpatory statements, admissions or confessions. The State responded that it had only been advised of the letter on the previous day and had a xerox copy but had not received possession of the original letter until the morning of the second day of trial. The position was taken that the letter was being used for impeachment purposes only. In permitting the use of the letter over the objection of defense counsel the trial court held:

In view of the District Attorney’s statement that he came into possession of the challenged document this morning and would not have attempted to introduce it had the defendant not taken the stand, the answer to the bill of particulars was filed sometime, prior to the reception of the letter to the District Attorney and further, the Assistant District Attorney who offers, or who is in possession of the document, has turned it over to the defense for review prior to attempting to impeach the defendant; and for those reasons, I’m going to deny the motion (for mistrial) by counsel.

Louisiana Code of Criminal Procedure Article 716A provides:

Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.

Louisiana Code of Criminal Procedure Article 729.3 provides:

If subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

Louisiana Code of Criminal Procedure Article 729.5A provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

The discovery rules in the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Toomer, 395 So.2d 1320, 1329 (La.1981).

This Court has previously held that where the defendant is lulled into a misapprehension of the strength of the State’s case and suffers prejudice when the (oral) statements are subsequently introduced at trial, basic unfairness which constitutes reversible error results. State v. Boothe, 310 So.2d 826 (La.1975); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Sharp, 338 So.2d 654 (La.1976); State v. Hatter, 350 So.2d 149 (La.1977).

In the present case, the prosecutor received the evidence on the morning of the second day of trial. Before notifying the defendant of the evidence, the prosecutor reopened his case and questioned the victim’s mother. The State then rested and the defendant took the stand. It was not until cross-examination of the defendant had begun that the State provided defense counsel with notice of the letter and its contents.

Although the State’s failure to comply with discovery procedures will not automatically demand a reversal, if the defendant is prejudiced by the failure to disclose he is entitled to a reversal. State v. Davis, 399 So.2d 1168 (La.1981).

If the State had furnished the defendant with a copy of the letter prior to trial or even prior to the beginning of his testimony, time to prepare a defense might have been available. Had defense counsel known of the existence of the letter earlier, it is arguable that a different trial strategy would have been employed, including the choice of not permitting the defendant to testify.

We conclude that the defendant was prejudiced by the State’s violation of the discovery Statute. A substantial right of the accused, that is, the right to prepare a defense was affected. Hence, the trial judge , abused his discretion in failing to grant a mistrial or prohibit the State from introducing the letter.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


author: BLANCHE, Justice.

text:
    James RALEY v. James CARTER, et al.
    No. 81-C-2340.
    Supreme Court of Louisiana.
    April 5, 1982.

      James J. Zito, Baton Rouge, for applicant.
    Charles W. Franklin, Terrence C. McRae, Franklin, Moore & Walsh, A. Shelby Easterly, III, Taylor, Porter, Brooks & Phillips, Baton Rouge, for respondents.
   BLANCHE, Justice.

James Raley instituted a tort action against the job supervisor, safety officer, plant manager, and project manager of the company to which his employer was under contract for injuries he sustained when he fell through an open hole in a catwalk while working as a millwright. The sole issue before this Court is whether or not the remaining defendant is entitled to a reduction of the judgment by the share of three co-defendants who settled and were released by the plaintiff on the morning of trial.

On the morning of trial the suit was dismissed with prejudice as to the safety officer, plant manager, and project manager; however, plaintiff reserved his rights against the job supervisor, James Carter, and his insurer and the trial proceeded against these defendants only without objection. No evidence was adduced at trial by either party tending to prove or negate liability on the part of the released co-defendants. After trial, the district court ruled that James Carter had been negligent and judgment was rendered against Mr. Carter and his insurer in the amount of $140,878.98. The defendant requested a reduction of the judgment by 75% due to the fact that three of the four co-defendants had been released. The trial court denied this request, but the court of appeal reversed and held that the defendant was entitled to the requested reduction because the plaintiff was bound by his pleading that the released defendants were joint tort-feasors. La.App., 401 So.2d 1006.

It is settled law that when there are four joint tortfeasors and three are released by the plaintiff, the plaintiff can only claim one-fourth of the total award against the remaining tortfeasor. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). Nevertheless, the negligence of parties released from the suit remains an issue in the trial because the remaining tortfeasor is only entitled to a reduction of the award if the parties released are proven to be joint tortfeasors. As stated above, no evidence was introduced at trial to prove that the released defendants were jointly negligent.

In Danks v. Maher, 177 So.2d 412 (La.App. 4th Cir. 1965), cited by the court of appeal, the plaintiff filed a medical malpractice suit against her doctor, the hospital and their respective insurers. After trial was almost completed but before the case was submitted to the jury, the plaintiff settled her claim against the doctor and his insurer and those parties were released and dismissed from the suit; however, she reserved her rights against the remaining defendants. The Fourth Circuit observed that the dismissal of the doctor from the lawsuit so near the end of trial unfairly shifted the burden of proving the released defendant’s negligence from the plaintiff to the remaining defendants and held that plaintiff was bound by her pleadings. Accordingly, the court reduced the judgment rendered against the hospital by one-half.

In Wall v. American Employers Insurance Co., 386 So.2d 79 (La.1980), plaintiff brought suit against three defendants for the wrongful death of their daughter. Pri- or to trial, plaintiffs settled with and released two of the three defendants; however, the negligence of the released parties was litigated at trial. At the conclusion of trial, the district court found that the plaintiffs had judicially confessed the negligence of the released defendants in their pleadings, but further held that the negligence of the two released defendants had been proved by a preponderance of the evidence, and determined that any negligence on the part of the remaining defendant was not a proximate cause of the accident. Therefore, he did not render judgment against the remaining defendant.

The court of appeal reversed the district court’s ruling that the negligence of the remaining defendant was not a proximate cause of the accident and held the remaining defendant liable for the plaintiff’s damages; however, they reduced the judgment by two-thirds, holding that plaintiffs were bound by their pleading that the two released defendants were negligent. We granted writs to review the correctness of the court of appeal’s determination that the two released defendants were joint tort-feasors based upon a holding that the plaintiffs were bound by the pleadings. This Court held that the court of appeal’s reliance upon the allegations in plaintiffs’ original petition was erroneous. We found that defendant was entitled to a reduction, but our conclusion was based upon the trial court’s finding that the negligence of the released tortfeasors had been proven by a preponderance of the evidence at trial.

In the area of law considered in Danks v. Maher, supra, and Wall v. American Employers Insurance, supra, fairness to the defendant was of paramount importance. In order to claim contribution from a released tortfeasor, the remaining defendant will ordinarily be required to establish the negligence of the released defendant at trial. In cases where a plaintiff reaches settlement with one or more defendants well prior to trial, the remaining defendant is afforded ample opportunity to prepare to carry this burden of proof.

In Danks, plaintiff settled with two of four defendants just prior to completion of trial. Reasoning that the remaining defendants had been unfairly deprived of an opportunity to establish the joint negligence of the parties released, the court reduced the plaintiff’s award by the share of those defendants with whom plaintiff had settled.

In Wall, plaintiff settled with two of the three defendants at an unspecified time pri- or to trial. Our allowance of a reduction of the plaintiffs’ award was based upon a finding that defendant had had a fair opportunity, and had successfully established negligence on the part of the released defendants at trial.

The instant case presents a situation somewhere between Danks and Wall. Carter and his insurer were aware that plaintiff had settled with the other defendants before trial began. Under the circumstances of this case, we are unwilling to hold that the remaining defendants were unfairly deprived of an opportunity to establish fault on the part of the released co-defendants. The result reached in Danks, supra, was harsh and its application should be strictly limited to cases in which settlement is reached only after the commencement of trial.

A pre-trial settlement shifts the burden of proving negligence on the part of the parties released from the plaintiff to the remaining defendants. As settlement was reached in this case prior to trial, Carter and his insurer were free to request a continuance in order to prepare to meet their unexpectedly altered burden of proof. Failing to request such a continuance, or to offer at trial any evidence of negligence on the part of the released co-defendants, Carter and his insurer cannot complain of a judgment finding them solely liable to plaintiff. The court of appeal erroneously ordered the reduction of plaintiff’s award by the shares of the co-defendants released on the morning of trial.

To hold otherwise would seriously impair pre-trial settlement negotiations. Aware of the possibility that a late settlement may result in the reduction of an award rendered after trial with the remaining defendants, a plaintiff may feel forced to choose between an early (and probably unsatisfactory) compromise or proceeding to trial against all defendants. Our courts have repeatedly refused to implement jurisprudential rules which would reduce the plaintiff’s incentive to reach settlement with defendants without the need for trial. McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir. 1978); State through Department of Highways v. Hunter, 309 So.2d 786 (La.App. 1st Cir. 1975).

Nor would we require a plaintiff to prepare two cases, one to establish the negligence of all named defendants; the other (held in reserve) to establish the lack of fault of any defendant with whom plaintiff may happen to compromise prior to trial. Such a requirement would unduly hamper a plaintiff, who already bears by far the heavier burden of proof in any tort action.

The appellees maintain that the court of appeal correctly gave the factual allegations contained in the plaintiff’s petition the effect of judicial confessions. We cannot agree.

In Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979), we stated: “It is well settled that a judicial confession is a party’s explicit admission of an adverse factual element and that it has the effect of waiving evidence as to the subject of the admission, of withdrawing the subject matter of the confession from issue.”

In the instant case, plaintiff’s petition contained no allegations which were adverse to his own interest. Rather, plaintiff alleged facts and circumstances on which he based his (non-binding) conclusion that all defendants were negligent and, hence, all liable for his damages. To give the factual allegations of a plaintiff’s petition the binding effect of judicial confessions would render a defendant powerless to contest the plaintiff’s suit. By its very nature, a plaintiff’s petition places facts at issue. Only a defendant may conclusively admit those allegations in the petition which are adverse to his interest and, therefore, relieve the plaintiff of his obligation to prove those allegations at trial.

For the foregoing reasons, the judgment of the court of appeal is reversed.

REVERSED.


author:
NESTER L. CURRAULT, Jr., Justice Pro Tem.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Fred J. CHAMPION.
    No. 81-KA-2491.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Framer, Dist. Atty., Walter P. Reed, Peter Garcia, Abbott J. Reeves, John J. Williams, Asst. Dist. Attys., Leo R. Hemelt, II, Sp. Prosecutor, for plaintiff-appellee.
    Salvador J. Liberto, Jr., S. Austin McEl-roy, Public Defender Office, Covington, for defendant-appellant.
   NESTER L. CURRAULT, Jr., Justice Pro Tem.

The defendant was charged by bill of information with the armed robbery of Richard Heap, a violation of Louisiana Revised Statute 14:64. Defendant pleaded not guilty to that charge. On March 9, 1981, the defendant appeared in court for trial without counsel. Although he informed the court that he had retained Mr. Salvatore Panzeca to represent him, Mr. Panzeca was not present in court. So that the defendant would be represented at trial, which was reset to April 16, 1981, the court appointed the Public Defender’s Office to represent Mr. Champion.

On the day of trial, appointed counsel appeared with the defendant and moved for a continuance. He maintained that he had not had sufficient time to prepare an adequate defense. After a lengthy discussion of this issue, the trial court denied the motion and proceeded to trial.

A verdict of guilty as charged was returned. The trial court denied a motion for a new trial which alleged that the verdict was contrary to the law and evidence and that defense did not have time to adequately prepare for trial. Subsequently, the defendant was sentenced to serve ninety-nine years at hard labor without benefit of probation, parole, or suspension of sentence.

On appeal defendant urges two assignments of error.

Assignment of Error No. 1

In this assignment, the defendant contends that he was denied counsel of his choice.

The Office of the Public Defender represented Fred Champion at his arraignment on January 6, 1981. At this hearing two motions were heard which were filed on December 4, 1980 on behalf of the defendant by the Public Defender’s Office: Application for Bill of Particulars and Prayer for Oyer. On January 8, 1981, Mr. Wendall Tanner of the Public Defender’s Office represented the defendant at a Motion for Bond Reduction.

On March 9, 1981, the defendant appeared in court unrepresented, insisting that Mr. Salvatore Panzeca had been retained. In appointing Mr. Salvador Liberto of the Public Defender’s Office as counsel for the defendant, the trial court stated:

Mr. Champion says Mr. Panzeca is his lawyer. And as far as I’m concerned, Mr. Panzeca is not his lawyer because he’s not entered himself as counsel of record and he’s not here today. I’m not going to delay this case anymore. I’m looking to the Public Defender’s Office unless Mr. Panzeca enters himself with a written motion that he’s counsel of record.

Accordingly, some thirty-eight days prior to trial, the Office of the Public Defender was representing the defendant. Although Mr. Panzeca visited the defendant, the record does not reflect any enrollment as counsel.

This Court acknowledges that an accused has a right to be represented by counsel of his choice. However, such right may not be used to obstruct the orderly administration of justice.

In State v. Johnson, 389 So.2d 1302, 1304 (La.1980), this court held:

While a defendant’s right to the counsel of his choice is firmly established in our law, that right may not be used to obstruct the orderly procedure in our courts nor to interfere with the fair administration of justice, and this Court has long so ruled. State v. Lee, 364 So.2d 1024 (La.1978); State v. Anthony, 347 So.2d 483 (La.1977); State v. Frezal, 278 So.2d 64 (La.1973)

and further, at 1304, citing State v. Lee, supra,

The right of the defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the criminal justice system of which it is a part. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973)

In the instant case, sufficient time had elapsed since the arrest of the defendant on November 24, 1980 for counsel to have been retained. At least one continuance was granted in order to obtain representation. At that time, in an abundance of caution, the Court had appointed a member of the Public Defender’s Office and indicated to both the defendant and counsel that another continuance would not be tolerated. Accordingly, this Court finds no merit to the defendant’s contention that he was denied counsel of his choice. Additionally, it is noted that no contemporaneous objection was lodged either when such counsel was appointed or on the day of trial. Thus, the alleged error was not preserved for appeal. Defendant alleges that this is error patent on the face of the record. We disagree. It is scarcely clear that Panzeca might have been retained by the defendant and the present record before us suggests otherwise.

Assignment of Error No. 2

By this assignment the defense argues that the trial judge erred in not granting a continuance so that the Public Defender could prepare a defense.

Counsel was appointed on March 9, 1981. Throughout the month of March and into April he inquired if the defendant had retained other counsel, despite having been informed by the trial court that he represented the defendant until Mr. Panzeca “enrolled as counsel of record.” Counsel need only to have checked the record to see that this had not been done.

Additionally, on April 16, 1982, the second date set for trial, the defendant informed counsel that Mr. Panzeca did not intend to represent him. Thus, for two days prior to trial, the defendant did nothing to assure himself of an adequately prepared attorney for trial. Although he contends he did not receive notice of trial, the transcript reveals at least an oral notification by the trial court on the occasion of the first continuance.

The granting or refusal to grant a motion for continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal. State v. Simpson, 403 So.2d 1214, 1216 (La. 1981). Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. This court has generally declined to reverse convictions absent a showing of specific prejudice caused by the denial of the continuance. State v. Simpson, supra; State v. Ordonez, 395 So.2d 778 (La.1981).

Considering the factual circumstances of this case, it does not appear that the trial court abused its discretion in denying the motion for continuance.

This assignment lacks merit.

DECREE

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

DENNIS, Justice,

concurring.

I respectfully concur.

Although the defendant may be entitled to postconviction relief because of ineffective assistance of counsel, it does not appear that the trial judge abused his discretion by denying a continuance under these circumstances.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


author: WALTER I. LANIER, Jr., Justice Pro Tem.

text:
    STATE of Louisiana v. James E. JONES.
    No. 81-KA-2519.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Stephen Wimberly, Abbott J. Reeves, William C. Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, New Orleans, and Joseph Montgomery, Metairie, of Indigent Defender Board; William Noland, New Orleans, for defendant-appellant.
   WALTER I. LANIER, Jr., Justice Pro Tem.

By bill of information filed on April 13, 1981, the defendant, James E. Jones, and James E. Johnson were jointly charged with committing armed robbery of Margaret Davison on March 24, 1981, in violation of La.R.S. 14:64. The defendant was arraigned on May 15, 1981, and plead not guilty. On June 10-12,1981, the defendant was tried and found guilty. On June 19, 1981, he was sentenced to serve fifteen years in the custody of the Louisiana Department of Corrections at hard labor without benefit of probation, parole or suspension of sentence. The defendant has appealed and urges two assignments of error:

ASSIGNMENT OF ERROR NO. 1

In his original brief the defendant claims that the trial court committed error by failing to grant a recess of the trial so that the co-defendant, James Johnson, “no longer needed Fifth Amendment protection ...” and could be questioned about a letter purportedly written by him which supported the defendant’s claim of compulsion (La. R.S. 14:18[6]). In his supplemental brief, the defendant urges that the “Trial Court misinterpreted Ruling # 81-K-1528 [sic] of the Supreme Court of Louisiana, permitting counsel for the witness to assert the Fifth Amendment privilege in his stead.” The defendant contends that these actions are in violation of the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution of 1974 and denied him the right to “present a defense”.

The testimony introduced by the State at the trial showed that on March 24, 1981 at approximately 2:30 a. m., two men committed armed robbery of the Time Saver at 401 Lapalco Boulevard in Gretna, Parish of Jefferson, Louisiana. Margaret Davison was the cashier on duty this night. The persons who committed the robbery entered the Time Saver separately with the second man entering approximately ten seconds after the first man. Both of the robbers were armed with pistols. The first man took $109.00 from Miss Davison. The second man stopped inside the door and forced a customer, Leon Robinson, who arrived while the robbery was in progress, to lie on the floor where he put a gun to his head and robbed him of his wallet and $10.00 in cash. Davison and Robinson both identified the defendant as the second man. After the robbers left, the crime was reported. The defendant and James Johnson were arrested shortly thereafter in a parked car two or three blocks from the scene of the robbery. The defendant, James Jones, was seated on the drivers side of the parked car. A .32 caliber pistol loaded with 2 live rounds was found on the seat next to him. James Johnson was seated on the passenger side of the vehicle. A .38 caliber pistol loaded with 6 live rounds was found on the floor board under the seat on the passenger side. Also found in the vehicle was cash money and Leon Robinson’s wallet.

At the trial James Jones claimed the defense of compulsion. He testified that a friend of his by the name of James Johnson, also known as Ray Vaughn, held a gun on him and forced him to enter the Time Saver; that Johnson gave him an empty gun and followed him into the store; and that he was forced by Johnson to rob the cashier while Johnson stood by the door. He further testified that Johnson made him take the wallet and money from Leon Robinson and that he merely followed Johnson’s orders throughout the incident out of fear for his life.

Prior to the trial the defendant asked for a severance and it was granted. On June 3, 1981, the defendant applied for a writ of habeas corpus ad testificandum for the production of James Johnson at the trial of the case, which was denied by the Trial Judge because “There is a present sanity hearing on James Johnson & until his hearing is completed the Court would deny this motion.”

On the second day of the trial, June 11, 1981, counsel for the defendant called James Johnson as a defense witness. Johnson was represented by Mr. Roy Lad-ner. Mr. Ladner advised the Court that he was not certain how coherent or able his client was to claim his Fifth Amendment rights. He stated that if it appeared that the witness was not able to exercise his Fifth Amendment rights properly, he would ask that a declaration of incompetency be made at that time. Mr. Ladner further advised the Court that a motion for a sanity commission had been filed in Johnson’s case; that two psychiatrists were appointed but were unable to make a final decision until additional neurological examinations were made; and that because of Johnson’s condition, he was unable to properly evaluate any defenses that might be available to him or his ability to testify in the trial. Counsel for the defendant, Jones, insisted on exercising his right to compulsory process of Johnson. An unsworn interrogation of Johnson was conducted by the Court out of the presence of the jury. A review of this interrogation shows that the witness identified himself as Johnson with an address of Tuscadero State Hospital (California), that he did not know his age, that he said he knew the difference between telling the truth or riot, but he failed to respond to some of the questions propounded. He was then questioned by his own attorney and indicated that he knew that he did not have to testify against himself, that he did not know what he was charged with, but appeared to be confused as to when he should answer questions or when he should not answer questions. At this point, the Trial Judge ordered the witness to be sworn and the jury returned to the courtroom. After Johnson was sworn, his counsel objected to any questions being asked by the State or the defense and requested authority to apply to this Court for supervisory writs. The Trial Judge granted this request and gave counsel until the following morning, June 12, 1981, to get a reply.

On June 12, 1981, under Docket Number 81-KA-1528, this Court denied the supervisory writ with the following instructions:

“The trial judge found that the witness is competent. Counsel for the witness need not rely on ‘signals’ to the witness to advise him that he should invoke the Fifth Amendment right against self-incrimination, but may advise the defendant when he is asked a question, and may speak for him in claiming the Fifth Amendment privilege if, as it appears, defendant cannot speak because he suffers from expressive aphasia.”

Upon commencing Court on June 12, 1981, counsel for Johnson advised the Court that Johnson no longer wished for him to be his attorney since he thought he was a psychiatrist and was a conspirator and working for his (Johnson’s) opposition. This request was denied by the Trial Judge and he ordered Mr. Ladner to continue as Johnson’s attorney. Thereafter, in the presence of the jury, counsel for the defendant, Jones, made the following statement:

“Your Honor, I understand that the Supreme Court ruling is in favor of the ruling of Your Honor, in this matter, and that Mr. Ladner will be allowed to stand with the witness, I had called yesterday, when he testifies, and invoke the Fifth Amendment for him.”

Thereafter, in the presence of the jury, she made a motion for a mistrial on the grounds that the competency of Johnson was discussed in front of the jury on June 11,1981. The jury was then retired and after argument on this motion, the request for a mistrial was denied by the Trial Judge. During the course of the argument for a mistrial, counsel for the defendant, Jones, made the following statement:

“It’s not that I don’t want him present and it’s not that I’m objecting to the ruling of the Supreme Court. What I am objecting to, is an. argument — a challenge, to my witness, in the presence of the jury, and I think that’s a valid argument and it is supported in this quote.”

Thereafter, still out of the presence of the jury, counsel for the witness, Johnson, again requested to be released as counsel of record. This request was denied by the Trial Judge with the observation that “This man needs competent counsel, for the purposes that the Court set out yesterday.” Immediately thereafter, still out of the presence of the jury, counsel for the defendant, Jones, made a motion to recess the trial until Johnson’s competency could be finally determined in another Division of the Twenty-Fourth Judicial District Court. This motion was also denied.

The jury was then returned to the courtroom and in the presence of the jury, counsel for the defendant, Jones, made the following statement:

“Your Honor, the defense would like to call Mr. James Johnson, who is also known as Ray Vaughn to the stand. “For the record, Your Honor, the defense would note that the Supreme Court has ruled that Mr. Ladner, as the attorney for the witness, must be present at this time and will be allowed to invoke the Fifth Amendment for him.”

Counsel for the defendant, Jones, then commenced questioning the witness, Johnson. The witness again claimed that he was living in the Tuscadero State Hospital in California, that a “bunch of devils is working — working a conspiracy against me, yea.... ” and that “There’s alot of devils in here right now. And they all got wings, and be flying, and I been trying to let everybody know about it, you see.” Counsel for the defendant, Jones, then commenced to question the witness, Johnson, about a letter purportedly written by him while in jail and counsel for the witness invoked the Fifth Amendment on his behalf. The witness then blurted out, after his counsel’s claim of a Fifth Amendment privilege, that the letter was his. Counsel for the State then requested that the jury be retired and the Court so ordered. (The letter in question is that found at pages 19 and 21 of the transcript purportedly written by James Johnson in the Jefferson Parish Correctional Center on or about April 9, 1981.) During the course of the discussions out of the presence of the jury, counsel for the witness advised counsel for the defendant that he was invoking the Fifth Amendment to any questioning of the witness about the letter because the letter would incriminate the witness. After reading the letter, the Court agreed. Counsel for the defendant offered to introduce the letter into evidence and the Trial Judge ruled that to do so would violate the witness’ Fifth Amendment rights.

While still out of the presence of the jury, the witness remarked that “I don’t want this devil here representing my case. I know that he’s a conspirator, yeh. He looks just like one. And that’s the reason why, that he’s doing what he’s doing now. And may — everybody knows that he’s a conspirator. I know you’re a conspirator, yeh.” Counsel for the witness then requested that other counsel be appointed for the witness, which request was denied by the Court.

The jury was again returned to the courtroom and defense counsel continued to question Johnson. To most of the questions, counsel for the witness invoked the Fifth Amendment without objection from counsel for the defendant. During cross-examination by the State, counsel for the witness invoked the Fifth Amendment to almost all of the questions asked, and there was no objection from counsel for the defendant. The witness was thereafter excused.

In the original brief filed herein, counsel for the defendant states that “Defendant does not quarrel with James Johnson’s exercise of his right against self-incrimination, but feels that the Trial Judge should have recessed the case until James Johnson no longer needed Fifth Amendment protection, C.Cr.P.Art. 708.” A recess is a temporary adjournment of a trial that occurs after the trial has commenced. State v. Charles, 350 So.2d 595 (La.1977). The granting of a recess is a matter within the sound discretion of the Trial Judge and will not be reversed in the absence of a showing of an abuse of that discretion. State v. Telford, 384 So.2d 347 (La.1980). The fact that a witness claims his privilege under the Fifth Amendment and refuses to testify is not a valid basis for a recess, a continuance or a new trial, unless it can be demonstrated with certainty that the privilege will not be available to the witness in the immediate future. State v. Bice, 390 So.2d 1270 (La.1980) and Docket Number 81-KA-0322 of this Court decided December 14, 1981. No such showing has been made in this case.

For the first time on appeal, the defendant urges that the Trial Court committed error by permitting counsel for the witness to assert the Fifth Amendment privilege for him in lieu of requiring the witness to assert the privilege personally. He argues that the witness did not have expressive aphasia, that he demonstrated a willingness to testify, that he wished to discharge his attorney and that he was found competent to testify by the Trial Judge. After the order entered by this Court in Docket Number 81-KA — 1528 on June 12, 1981, counsel for the defendant specifically stated in front of the jury that counsel for the witness had authority pursuant to this Court’s ruling to invoke the Fifth Amendment privilege for the witness, and stated that she did not challenge or object to the ruling of this Court in that regard. The record amply demonstrates that there were serious questions raised concerning the ability of the witness to properly assert his Fifth Amendment privilege. Under these particular factual circumstances, counsel for the witness properly exercised the Fifth Amendment privilege on behalf of his client.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant claims that the Trial Court erred by failing to comply with the sentencing guidelines of Article 894.1 of the Code of Criminal Procedure, and that the sentence to fifteen years at hard labor in the custody of the Louisiana Department of Corrections without benefit of probation, parole or suspension of sentence is excessive.

A majority of this Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment, and that although a sentence may be within statutory limits, it may violate a defendant’s Constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). A Trial Judge’s reasons for sentence, as required by Article 894.1, are an important aid to an appellate Court when called upon to review a sentence complained of as excessive. However, the Trial Judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The record reflects that the Trial Court did not adequately consider the 894.1 guidelines in particularizing the sentence of the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). However, where a sentence imposed is not “apparently severe” and is in the “lower range” of the sentencing scale, this Court will not remand for compliance with Article 894.1. State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980). Armed robbery is considered an extraordinarily serious crime in the State of Louisiana. State v. Douglas, supra. In State v. Jones, 381 3o.2d 416 (La.1980), an employee of a 7-11 Food Store was robbed at gun point of the contents of the store’s cash register. The defendant in that case was convicted and sentenced to fifteen years at hard labor without benefit of probation, parole or suspension of sentence. Although the Trial Judge failed to comply with the 894.1 guidelines in that case, we declined to remand because the defendant’s sentence was not apparently severe and was not an abuse of discretion. That case is almost identical to the instant case and the result should be the same.

Assignment of Error No. 2 is without merit.

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . Transcript p. 308.

      . Transcript pp. 309 and 310.

      . Transcript pp. 310 and 311.

      . Transcript pp. 314 to 316.

      . Transcript p. 317.

      . Attached to the writ application is a letter from Dr. E. T. Frank, Jr., dated May 27, 1981, who examined a prisoner named Ray Vaughn and made a preliminary diagnosis of expressive aphasia.

      . Transcript p. 327.

      . Transcript p. 328.

      . Transcript p. 331.

      . Transcript pp. 332 and 333.

      . Transcript p. 333.

      . Transcript pp. 338 and 339.

      . Transcript p. 340.

      . The letter is inadmissible hearsay. State v. Landry, 388 So.2d 699 (La.1980); State v. Martin, 356 So.2d 1370 (La.1978); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Herman, 304 So.2d 322 (La.1974).

      .Transcript p. 348.

      . Transcript pp. 348 and 349.

      . The request for the recess in the Trial Court was to get a “final determination of this man’s competency” in another Division of the Twenty-Fourth Judicial District Court. Transcript p. 332. This objection was not raised or briefed on this appeal.

      . Sentencing procedure at pages 480 and 481 of the transcript.

      . “I have reviewed the records and I’ve come to the conclusion that you are in need of correctional treatment. 1 sentence you to fifteen (15) years in the State Penitentiary with the Department of Correction.
      “The armed robbery statute provides, that whoever commits the crime of armed robbery, should be imprisoned at hard labor for not less than five (5) years and not more than ninety-nine (99) without benefit of parole, probation or suspension of sentence. I sentence you to fifteen years. I think any lesser sentence would deprecate the seriousness of this offense.
      I return you to the custody of the Sheriff’s Office, to be forewarded [sic] to the Department of Corrections, at the earliest opportunity.”


author: EDWARD A. DUFRESNE, Justice Pro Tem.

text:
    STATE of Louisiana v. Gregory STEPHENS.
    No. 81-KA-2584.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric Harrington, Asst. Dist. Atty., for plaintiff-appellee.
    James E. Beal, Natchitoches, for defendant-appellant.
   EDWARD A. DUFRESNE, Justice Pro Tem.

Defendant was charged with the crime of armed robbery. (La.R.S. 14:64). On May 4, 1981 he was tried before a jury which found him guilty as charged. The trial court sentenced him to serve ten (10) years at hard labor without benefit of parole, probation or suspension of sentence. From this conviction and sentence the defendant appeals, relying on three assignments of error.

Facts:

At trial, victim Batt Lewis testified that he had been working at a Coast Service Station in Natchitoches, Louisiana for about three weeks when the armed robbery occurred. It was the day before Thanksgiving and he was working the one to nine shift. At some time in the afternoon he saw defendant, Gregory Stephens, at the station and spoke to him. Although he could not remember defendant’s first name, he knew his face and last name since he had dated defendant’s sister several years before and .had continued to see defendant around town. Later that evening, Lewis— alone — was preparing to close the station. He counted the receipts ($1,660.00) and had placed the cash in the desk when a man suddenly came through the door to purchase cigarettes. After making his purchase the man paused for a moment, said thank you and left. Surprised by the man’s entrance, Lewis decided to lock the door until he could leave for the night, but as he returned to his work, he heard a noise at the door again. Outside was another man, followed by the man who had purchased the cigarettes. When defendant unlocked the door the first man, with a stocking over his face, pushed his way in and pointed a gun at him. The two intruders took Lewis to the back room, where they threatened to blow his brains out if he didn’t tell them where the money was. Lewis recognized the man wearing the stocking mask as Gregory Stephens, the defendant herein. After Mr. Lewis told his assailants that the money was in the desk drawer, defendant gave the gun to the other man and retrieved the cash. Then defendant told the other intruder, “Pop him, man,” and started to leave. The man with the gun followed defendant out of the door without further incident. Fearing for his life, Mr. Lewis waited a short while before going down the street to phone the police. He returned to the station for an interview with the City Police. At this time, he identified one of the robbers as Stephens.

Assignments of Error Nos. 1 & 2

Defendant argues that the trial court erred in permitting testimony about two inculpatory statements made by the accused, when no Article 768 notice had been supplied by the prosecution.

The first statement emerged from the testimony of the victim while narrating the details of the crime. This statement consisted of the impulsive words of the defendant and is covered by La.R.S. 15:447; as res gestae it is admissible into evidence without prior notice to defendant. State v. Kimble, 407 So.2d 693 (La.1981). Accordingly the defendant’s complaint about the admission of the statement by the victim is without merit.

The second statement, which defendant also argues was inadmissible without the Article 768 notice, was contained in the testimony of Walter Delphin, the arresting officer. Delphin testified that he was transporting defendant in his police vehicle when defendant said, “If I had my gun, I would pop you, too.” Defendant argues that because this statement was in-culpatory and made while in police custody, it was not admissible into evidence without notice. In State v. Bodley, 394 So.2d 584, 589 (La.1981) this court defined “inculpato-ry statement” as used in Article 768 as “an out-of-court admission of incriminating facts made by the defendant after the crime has been committed”. Furthermore, “[a]n incriminating statement is one which admits a fact tending to establish guilt, or from which guilt may be inferred.”

Defendant’s statement does not admit facts tending to establish guilt. However, even if we were to find that defendant’s statement was inculpatory and that Article 768 notice was required, its admission by the trial court was not reversible error. In State v. Smith, 401 So.2d 1179 (La.1981), this Court found that if there is no reasonable possibility that the evidence complained of might have contributed to the conviction, the error was harmless beyond a reasonable doubt. In the instant case, the defendant was named and positively identified by the victim. The evidence of defendant’s remark to Officer Delphin was not necessary for his conviction. Therefore, the admission of the statement was, at the most, harmless error. Accordingly, this assignment has no merit.

Assignment of Error No. S

Defendant argues that the trial court committed “manifest error” in allowing the defendant into the courtroom in shackles. Jurors were milling around the courtroom as defendant was seated in the enclosed jury box having his ankle restraints removed. Defendant claims that this incident was sufficient to prejudice him by depicting him as a criminal before trial. The trial judge refused to question the prospective jurors about whether they had noticed the restraints because to do so would only have called their attention to the incident, causing more prejudice to the defendant.

It is clear that a defendant should not be shackled or handcuffed before the court except under exceptional circumstances. State v. Wilkerson, 403 So.2d 652 (La.1981). In this case, however, the defendant’s appearance would not have called any attention to his status. He was dressed in ordinary clothes and there is no specific evidence that any of the prospective jurors even noticed him. Thus, there is no showing of prejudice to the defendant. The incident took place before the jurors were called on their voir dire. After all were sworn, they indicated under oath that they could give the defendant a fair and impartial trial. The trial judge properly handled the incident and he also indicated in the record that the defendant had not been prejudiced. This assignment has no merit.

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

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

      . Code of Criminal Procedure Article 768 provides: If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence. R.S. 15:447 Res gestae defined; admissibility Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. John L. BULLOCK.
    No. 81-K-2593.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Paul H. Schneider, Asst. Dist. Attys., for plaintiff-relator.
    Brian Perry, New Orleans, for defendant-respondent.
   LEMMON, Justice.

The issue in this case is whether the notice of judgment of bond forfeiture to the surety was adequate to comply with the requirements of R.S. 15:85 A(l).

Defendant was released after arrest on a $1,500 surety bond issued by Allied Insurance Company, but failed to appear for arraignment. On November 7, 1980, the trial court rendered a judgment forfeiting the bond.

The clerk of court mailed notices to the surety and to its agent, consisting of certified copies of the judgment and of the bond. The power of attorney number appearing on the certified copy of the bond was 526794, whereas the complete power of attorney number was B5-526794.

On September 16, 1981, the surety moved to rescind the judgment of bond forfeiture on the basis that the notice failed to include the full power of attorney number, as required by the statute. After a hearing, the trial court granted the surety’s motion. We then granted the state’s application for cer-tiorari in order to review the judgment 409 So.2d 627.

The surety’s agent testified that the prefix B5 on the power of attorney number was a code signifying the state in which the bond was issued and the maximum amount of the bond which was authorized by that power of attorney. Thus, B5 indicated a bond issued in Louisiana for $5,000 or less.

The purpose of R.S. 15:85 A(l)’s requirement that the notice of forfeiture include the power of attorney number is to insure that the surety can quickly identify its obligation and the power of attorney on which that obligation is based. Requiring prompt and adequate notice to the surety enhances the surety’s chances of locating the defendant and surrendering him to the court for trial, a desirable objective from the point of view of both the surety and the state. See State v. DeLaRose, 391 So.2d 842 (La.1980).

The notice in the present case provided prompt and adequate notice to the surety of the forfeiture so as to afford a reasonable opportunity to locate and surrender the defendant. Although the statute only requires that the notice include the power of attorney number, this notice provided defendant’s name and address, the charge, the amount and date of the bond, the name of the surety’s agent, the name of the court in which the bond was posted, and the power of attorney number, which was complete and accurate except for the prefix.

The prefix apparently was not significant in the identification of the bond and power of attorney, because the surety’s agent had written the power of attorney number on the original bond without the prefix. Moreover, the prefix was easily determinable. Since the notice informed the surety that the bond was issued in Louisiana, the surety knew the prefix letter was B. And since the notice informed the surety that the amount cf the bond was $1,500, the surety knew the prefix letter was 5, inasmuch as the agents always used the smallest power necessary to cover the bond and $5,000 was the smallest power available. Thus, the missing letter and number could have been determined instantly from the face of the bond, which was included in the notice.

We conclude that the notice in this case adequately complied with the requirements of R.S. 15:85 A(l). In any event defendant was in no way prejudiced by the only inadequacy that he has pointed out.

The judgment of the trial court on the motion to rescind is reversed, and the judgment forfeiting the bond is reinstated.

      . R.S. 15:85 A(l) provides in pertinent part:
      “All bonds taken to secure the appearance of any person before any district court executed by a surety company authorized to do business in the State of Louisiana or an agent of such a company, except at a preliminary examination, shall be forfeited and collected as follows:
      “(1) If at the time fixed for appearance such person fails to appear and answer when called, the judge, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, shall forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof. After entering the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture, which shall include the power of attorney number used to execute the bond, to the surety on the bond....” (Emphasis supplied.)

      . Executed bonds were introduced to show B5, BIO and B25 prefixes on bonds with maximum amounts of $5,000, $10,000 and $25,000, respectively. The surety’s agent also explained that the sequence numbers (the last six digits) were much higher on the $5,000 powers because bonds in that range were issued much , more frequently.