author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Caster D. SIMS.
    No. 81-KA-3018.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., George H. Meadors, Asst.' Dist. Atty., for plaintiff-appellee.
    C. Sherburne Sentell, Minden, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Caster Sims, was charged by separate bills of information with operating a motor vehicle while intoxicated (La.R.S. 14:98), resisting an officer (La.R.S. 14:108), and possession of marijuana (La.R.S. 40:966). The three offenses were joined for' trial. After a bench trial, the defendant was found guilty of each offense as charged. He was sentenced to fines amounting to a total of $525 in addition to receiving a total of 100 days in the parish jail. Each jail sentence was ordered sus- ' pended, and the defendant was placed on supervised probation.

FACTS

During the early morning hours of February 4, 1981, Claiborne Parish Deputy Sheriff George Shirey was on patrol on U.S. Highway 79 near Pine Hill. Shortly after midnight, Shirey spotted a vehicle on the northbound shoulder of U.S. 79 off the paved portion of the highway. As Shirey drove slowly past the parked car, he noticed that its headlights were on and its motor was running. He also observed that a person was seated inside the car, under the steering wheel, slumped over and apparent ly asleep. After he passed the car, Shirey returned and pulled his police car behind the parked vehicle.

Shirey walked from his car to the parked vehicle and tapped on the driver’s door in an attempt to arouse the subject. Upon closer examination, the deputy recognized the person inside the car and knew him to be Caster Sims. Shirey opened the car door and called the defendant’s name. Again, Sims did not awaken. The deputy touched the defendant on the shoulder. Sims awoke, but appeared disoriented. At this time, the deputy noticed a faint odor which he believed to be alcohol. The deputy further noted that the defendant was mumbling and slurring his words.

Shirey asked to see Sims’ driver’s license. The defendant stood up to look for his license in his wallet, but fell back into the car seat. Deputy Shirey asked Sims to step to the rear of his vehicle in order to use the police headlights in the search for the license. As Sims walked to the rear of his car, Shirey observed that he swayed and supported himself against the car.

Suspecting that the defendant was intoxicated, Shirey asked Sims to perform two field sobriety tests. Sims did poorly on both tests. Shirey then placed Sims under arrest for DWI and for no driver’s license on his person.

Deputy Shirey informed the defendant that he was under arrest and asked him to put his hands on the car to be handcuffed. Although Sims put his hands on the car, he refused to be handcuffed. The deputy had to use physical force to place the cuffs on the defendant.

Once the defendant was handcuffed and seated in the back of the police car, Shirey returned to the defendant’s vehicle to turn off the lights, motor and stereo. He noticed several music tapes in addition to a mounted tape player in the defendant’s car. The deputy then walked back to the police car and radioed for a wrecker to bring the defendant’s vehicle to the sheriff’s office. Sims requested that his car not be moved.

Defendant’s car was towed to the Claiborne Parish Sheriff’s Office with Shirey and Sims following in the police car. At the sheriff’s office, Sims was given an auto-intoxication test. He registered .081 percent.

After the intoxication test was administered, Deputy Shirey informed Sims that he was going to inventory his car. Sims did not respond. Shirey then proceeded to inventory the car for valuables. Plastic bags containing marijuana were found in the glove compartment of the defendant’s car.

ASSIGNMENT OP ERROR NOS. 7 AND 8

By these assignments, the defendant argues that the trial court erred in denying his motion to suppress. He essentially contends that Deputy Shirey’s initial encounter with him resulted in an unlawful seizure which tainted all evidence secured thereafter.

Both the Fourth Amendment to the United States Constitution and La. Const, art. 1, § 5 require that a “seizure” of a person by a law enforcement official be founded upon an objective justification. When the “seizure” takes the form of an arrest, the police officer must have probable cause to believe that the person arrested has committed an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Hathaway, 411 So.2d 1074 (La.1982); See also La.C.Cr.P. art. 213. To temporarily detain a person for purposes of investigation, the officer must have a reasonable suspicion that the person is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lanter, 391 So.2d 1152 (La.1980); See also La.C.Cr.P. art. 215.1.

However, law enforcement officials do not need reasonable cause or probable cause to detain each time they encounter a citizen, for not all police-citizen contact involves a “seizure.” Policemen enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Harlan, J. concurring). A person is “seized” within the meaning of the Fourth Amendment and La.Const. art. 1, § 5 only when the law enforcement official, by means of physical force or show of authority, has in some way restrained the liberty of the citizen. State v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); See State v. Salazar, 389 So.2d 1295 (La.1980).

In this case, Deputy Shirey stopped to investigate, for he felt that the defendant Sims might be in trouble. He had previously observed the defendant slumped over the steering wheel of his car which had its motor running and its lights on. The deputy knocked on the driver’s door in hopes of arousing Sims. When Sims did not awaken, Deputy Shirey opened the car door, called the defendant’s name, and tapped him on the shoulder. The defendant awoke and voluntarily responded to the deputy’s request for a driver’s license, but he could not find his license in his wallet.

We find that, given the circumstances involved in this case, the deputy acted lawfully when he investigated the parked car.

When Deputy Shirey asked Sims for his license, he had reasonable cause to detain the defendant for purposes of further investigation. Within the deputy’s knowledge at that time were the following facts: the defendant had been asleep and slumped over the wheel of his car which had its motor running; he smelled of alcohol; and he slurred and mumbled his words as he spoke. Thus, Shirey had reason to suspect that Sims had committed the offense of DWI and could lawfully detain him for investigation.

Prior to the time that Sims was requested to produce his driver’s license, the deputy needed no probable or reasonable cause to detain, for he had not “seized” the defendant. The facts indicate that Shirey approached the parked vehicle merely to assist the driver. Shirey shook the defendant to arouse him, but only after he had knocked on the car door and had called the defendant’s name. No demands were made upon the defendant or force applied. No “seizure” had occurred, for Deputy Shirey had not restrained the liberty of the defendant, either by means of physical force or show of authority.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 9

The defendant claims that the trial court erred in denying his motion to suppress the marijuana found in the glove compartment of his car. He asserts that the marijuana was seized during an impermissible war-rantless search.

The record clearly establishes that Deputy Shirey conducted a search of the defendant’s car without a warrant. Therefore, the burden of proof shifted to the state to show affirmatively that the search and seizure were justified under the well-recognized exceptions to the warrant requirements of the Fourth Amendment and La.Const. art. 1, § 5. State v. Crosby, 403 So.2d 1217 (La.1981); State v. Hatfield, 364 So.2d 578 (La.1978).

The state contends that Deputy Shi-rey’s search of the defendant’s vehicle was a valid inventory search. Both this court and the United States Supreme Court have recognized a true inventory search to be an exception to the warrant requirement. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, 338 So.2d 633 (La.1976). To fall within the inventory exception, however, the state must prove that the impoundment of the defendant’s vehicle was necessary and that the inventory of the vehicle’s contents was necessary and reasonable in its scope. State v. Crosby, 403 So.2d 1217 (La.1981); State v. Jewell, 338 So.2d 633 (La.1976).

There are several factors which we have considered to be significant in determining whether a true inventory search has been conducted: (1) the vehicle could not have remained safely at or near the place it was stopped; (2) the search was not conducted in the field; (3) the tow truck was called before the search commenced; (4) formal impoundment procedures were followed; (5) the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency’s failure to afford him the protection of an inventory search; (6) arrangements were made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Hardy, 384 So.2d 432 (La.1980); State v. Killcrease, 379 So.2d 737 (La.1980); State v. LaRue, 368 So.2d 1048 (La.1979).

Applying these factors to our present case, we conclude that the state has sufficiently shown that the marijuana was seized during a true inventory search.

The defendant’s vehicle could not have remained safely at or near the place it was stopped. A mounted tape player and several music tapes were inside the defendant’s car. If the car was left alone on the public highway during the early morning hours, it may have been vandalized or the valuables may have been stolen from within the vehicle. Moreover, the car was parked near the intersection of U.S. Highway 79 and a parish road. Deputy Shirey testified that he had been concerned that the defendant’s vehicle was obstructing the view of drivers who attempted to turn onto the highway from the parish road.

With regard to the second and third factors enumerated above, the record clearly shows that the defendant’s vehicle was not searched at the scene of the stop. Deputy Shirey radioed for a wrecker to tow the defendant’s car to the sheriff’s office. Approximately one-half hour after the defendant’s vehicle arrived at the sheriff’s office, Deputy Shirey conducted his search.

Formal impoundment procedures were followed by the deputy. A standard police form was used by Shirey to list the items found during the inventory of the vehicle.

Deputy Shirey did not ask the defendant whether he would consent to an inventory search or whether arrangements could be made for someone to take possession of the car. On two occasions, the deputy did inform the defendant Sims that his car was going to be inventoried, but Sims did not respond.

Although the defendant did not consent to the search and was not asked if anyone could take possession of his car, we find that the facts sufficiently establish that Deputy Shirey’s search was a true inventory of the vehicle’s contents. Shirey clearly sought to protect the valuables inside the defendant’s car. He had no reason to suspect that marijuana would be found in the vehicle. The search was not conducted to secure evidence, but merely to inventory the vehicle’s contents in order to safeguard them, as incident to the vehicle’s necessarily being taken into lawful police custody. State v. Killcrease, 379 So.2d 737 (La.1980); State v. Hatfield, 364 So.2d 578 (La.1978); State v. Gant, 357 So.2d 513 (La.1978).

This assignment is meritless.

ASSIGNMENT OF ERROR NOS. 1 AND 2

The defendant contends, by these assignments, that the trial judge committed reversible error by requesting, during the examination of Deputy Shirey, that the defendant stand and give his height and weight. Defendant argues that the trial judge’s request (1) violated the normal order of trial, C.Cr.P. art. 765 and (2) violated his Fifth Amendment rights.

The record shows that during the prosecutor’s questioning of Deputy Shirey concerning the resisting arrest charge, the trial judge interrupted and asked the defendant to stand and state his weight and height. The defendant’s first contention is that the normal order of trial set forth in La.C.Cr.P. art. 765 was violated, for testimony was elicited from the defendant during the state’s presentation of the evidence.

The relevant portion of La.C.Cr.P. art. 765 provides:

“The normal order of trial shall be as follows:
(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;”

La.C.Cr.P. art. 765 is procedural in nature and the record indicates it was adhered to in the present case. However, this article does not contemplate the presentation of evidence by the trial judge, and we do not approve of such conduct by the trier of fact. Such action may be interpreted as assistance to the state in the presentation of its case and reflect some bias on the part of the court. State v. Layssard, 310 So.2d 107 (La.1975).

Nevertheless, in this case, we find that the trial judge’s action is harmless error, for no prejudice resulted to the accused. The record shows that Deputy Shirey later estimated the defendant’s height and weight. In addition, the trial judge could personally observe these physical characteristics of the accused. Moreover, this was a trial before a judge and not a jury which may have been influenced by the judge’s request.

The defendant’s alternative argument is that the trial judge’s request denied him his Fifth Amendment privilege against self-incrimination. We find that the defendant is not entitled to relief on this issue, for he did not raise this objection at trial. It is well-settled that a new basis for an objection cannot be raised for the first time on appeal. La.C.Cr.P. art. 841; State v. Johnson, 889 So.2d 372 (La.1980); State v. Ferguson, 358 So.2d 1214 (La.1978); State v. Sanders, 357 So.2d 492 (La.1978).

These assignments are without merit.

ASSIGNMENT OF ERROR NOS. 3 AND 4

By these assignments, the defendant contends that there was insufficient evidence to prove that he was guilty beyond a reasonable doubt of driving while intoxicated, La.R.S. 14:98. He argues that the state failed to circumstantially prove that he “operated” his motor vehicle while intoxicated which is an essential element of La.R.S. 14:98.

In State v. Lindinger, 357 So.2d 500 (La.1978), this court emphasized that the state under La.R.S. 14:98 must prove that the defendant did operate his vehicle while intoxicated on the day in question. The state, in our present case, sought to prove this element of the crime through circumstantial evidence.

When we review a conviction based on circumstantial evidence, we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Parker, 416 So.2d 545 (La.1982); State v. Bindom, 410 So.2d 749 (La.1982); State v. Austin, 399 So.2d 158 (La.1981). Not every hypothesis of innocence must be excluded; only those which are reasonable.. State v. Bindom, 410 So.2d 749 (La.1982); State v. Austin, 399 So.2d 158 (La.1981).

As noted in the statement of facts, there were no eyewitnesses or direct proof that the defendant actually operated his vehicle while intoxicated. When Deputy Shirey first spotted the defendant’s vehicle, it was parked on the shoulder of a public highway. The deputy had no idea how long the car had been parked. The car motor was running; the stereo and lights were on. A subsequent inventory search of the -defendant’s car did not disclose any alcoholic beverage containers or tracings of burned marijuana.

One possible hypothesis which can be advanced is that the defendant parked his vehicle and then consumed alcoholic beverages or smoked marijuana while in his car to become intoxicated. Given the facts of this case, however, we find that this hypothesis is not reasonable. It is unlikely that the defendant consumed any alcoholic beverages in his automobile after he had parked, for no alcoholic beverage containers were found in the car. Equally improbable is the theory that the defendant smoked marijuana as he sat in his car on the side of the road. Deputy Shirey testified that the defendant’s car windows were rolled up when he initially approached the parked vehicle. Yet, the deputy only detected the smell of alcohol and did not encounter any odors resembling marijuana when he opened the defendant’s car door. In addition, no evidence of burned marijuana was found during the inventory search. Another hypothesis is that the defendant walked away from his car and drank alcoholic beverages or smoked marijuana to become intoxicated. We find this hypothesis is unreasonable in light of the fact that the defendant was discovered slumped over his steering wheel with the motor running and the lights and stereo in operation.

The only reasonable hypothesis is that the defendant operated his vehicle while intoxicated. Therefore, we conclude that, viewing the evidence most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis had been excluded.

These assignments are meritless.

ASSIGNMENT OF ERROR NOS. 12 AND 13

The defendant contends that the trial court erred in finding sufficient evidence to convict the defendant of resisting arrest under La.R.S. 14:108. He further argues that his warrantless arrest was unlawful, and, therefore, he could lawfully resist the arrest.

As to the defendant’s second contention, we find it is without merit, for Deputy Shirey did have probable cause to arrest the defendant for both DWI and no driver’s license on his person. Before the defendant was placed under arrest, Deputy Shirey had observed that the defendant Sims slurred his words and had difficulty standing and walking. The defendant smelled of alcohol and had failed two sobriety tests. In addition, Sims could not locate his driver’s license. Therefore, Deputy Shi-rey lawfully arrested Sims for DWI and no driver’s license on his person.

We also find that the evidence, when viewed in a light most favorable to the prosecution, was sufficient to convince a reasonable trier of fact of the guilt of the defendant, beyond a reasonable doubt, of every element of the crime of resisting arrest. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sharp, 414 So.2d 752 (La.1982); State v. Guillot, 389 So.2d 68 (La.1980).

Deputy Shirey testified that he was in uniform and driving a marked patrol car on the night of the arrest. Sims knew prior to that night that Shirey was a deputy sheriff. Shirey further testified that he told Sims that he was under arrest and asked him to place his hands on the car to be cuffed. Sims did place his hands on the car, but refused to allow Shirey to handcuff him. Sims turned away from the deputy when he attempted to cuff him. Shirey grabbed one of the defendant’s arms and placed the cuffs on it. The deputy then put the other cuff on Sims’ other arm as he resisted. Shirey testified that cuffing Sims did not require a great deal of force, but he felt that Sims was resisting to the utmost of his ability.

La.R.S. 14:108(b) specifically states that any post-arrest resistance or opposition to the arresting officer constitutes a violation of the statute. The state’s evidence clearly establishes that the defendant sought to resist or oppose Deputy Shirey as he acted in his official capacity.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 5

The defendant contends that the trial court erred in allowing the admission of the results of the defendant’s intoxime-ter test because the times indicated on the “Rights Form Relating to the Chemical Test for Intoxication”(l:56 a.m.) and on the printout of the test results (1:03 a.m.) suggests that the defendant was advised of his rights after the test.

By La.R.S. 32:661(0), the state must show that the defendant was advised of certain rights before the intoxication test was administered in order for the results of the test to be admitted into evidence. La.R.S. 32:661(C) provides:

When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.

In our present case, the defendant was advised of his rights, and he signed the required rights forms. The only question is whether the forms were signed before or after the intoxication test was administered.

We hold that the trial court did not err in finding that the rights forms were executed before the intoxication test was administered. Although the printout of the auto-intoximeter machine indicates that the rights were given after the test, the deputy sheriff who administered the test and Deputy Shirey testified that the defendant was advised of his rights and signed the rights forms before the intoxication test was conducted. -Both deputies explained that the confusion as to the times involved was due to a clerical error.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

The defendant asserts by this assignment that the trial court erred in allowing the introduction of the intoximeter test results because the state failed to show that the officer who administered the test was properly certified.

Deputy Sheriff William Jeffrey Pugh administered the auto-intoximeter test to the defendant. When questioned as’ to his qualifications, Deputy Pugh testified that hé had been certified as an operator of auto-in-, toximeters on October 29, 1980.. A copy of; his certification was admitted into evidence. Pugh also stated, however, that he took and, completed the four-hour certification course; for the auto-intoximeter given by the State Police in November, 1980.

Defendant argues that Pugh’s testimony" indicates that he was certified before he completed the auto-intoximeter course, and, thus, the test results should not have been" allowed into evidence.

We find that the defendant’s argument is without merit. Pugh’s testimony as to the month in which he was certified and the month in which he completed his auto-in-toximeter course did indicate he was certified before he finished the course. However, when Deputy Pugh was asked to clarify his testimony, he stated that he did complete the auto-intoximeter course before he was certified.

ASSIGNMENT OF ERROR NO. 10

The defendant contends that the trial court erred in admitting into evidence the bag of alleged marijuana and the crime report identifying the bag’s contents as marijuana, for the state failed to prove a proper chain of custody of the marijuana.

Deputy Shirey testified that he had marked the marijuana bags which were found in the glove compartment. He further stated that he had placed the bags into a larger evidence bag and had given Deputy Pugh the evidence bag. Pugh testified that he had received the evidence bag from Shi-rey and had given it to his replacement, Betty Moreland. However, the crime lab report, which identified the substance in the evidence bag as marijuana, stated that the bag had been submitted to the lab by W.W. Green. The state failed to show how W.W. Green had come into possession of the evidence bag.

The requirements for proper admissibility of demonstrative evidence were set forth in State v. Paster, 373 So.2d 170 (La.1979):

To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).

A continuous chain of custody is not essential, provided the evidence as a whole establishes that it was more probable than not that the object introduced was the same as the object which was originally seized by the deputies. State v. Sharp, 414 So.2d 752 (La.1982); State v. Drew, 360 So.2d 500 (La.1978).

We find, in this case, that it is more probable than not that the marijuana introduced as evidence at trial was the same as that seized by Deputy Shirey. At trial, Deputy Shirey identified the evidence bag, its contents, and his handwriting on the bag. Deputy Pugh also identified the evidence bag. Furthermore, the crime lab report has Caster Sims’ name on it and states that five plastic bags of marijuana were found in the evidence bag. The same number of plastic bags were discovered in the glove compartment of the defendant’s car.

This assignment is without merit. ASSIGNMENT OF ERROR NO. 11

The defendant alleges that the trial court erred in allowing the admission of the certified crime lab report (certificate) which concluded that the evidence seized from the defendant’s car was marijuana. Sims argues that the state failed to provide him with proper notice required by La.R.S. 15:501 which states that the party seeking to introduce such reports must give the opposing party written notice of intention to do so not less than ten days prior to the commencement of trial.

We find that the defendant’s argument has no merit. The purpose of requiring notice of the state’s intention to use the certified criminal lab report is to permit the defendant to adequately present his defense and avoid being surprised. In our present case, state did establish that it sent notice to the defendant and defense counsel by letter dated March 23,1981. A copy of the crime lab’s report was attached to the letter. The defendant’s trial commenced on May 6, 1981. Although the state did not establish that the defendant received the notice, defense counsel concedes in brief that he received the notice. Therefore, the requirements set forth in La.R.S. 15:501 have been satisfied.

ASSIGNMENT OF ERROR NO. 14

The defendant argues that the trial court erred in overruling his objection to the bill of information which erroneously sets forth the statute for resisting an officer as La. R.S. 14:108 instead of La.R.S. 14:108.

Failure to cite the correct criminal statute number is a technical deficiency in the bill of information which is not grounds for reversal unless the defendant can show surprise or lack of notice which causes prejudice. C.Cr.P. art. 464; State v. Hicks, 376 So.2d 118 (La.1979); State v. Mallett, 357 So.2d 1105 (La.1978).

In the present case, no prejudice or surprise was shown by the defendant. The bill of information properly states that the defendant committed the offense of “Resisting an Officer.” The wording of the bill of information is sufficiently clear to inform the defendant that he is charged with resisting an officer. Further, the correct statute number, La.R.S. 14:108, is stated in one portion of the bill of information.

This assignment is without merit.

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

      . Sims was not charged with the offense of no driver’s license on his person because his license was found later in his wallet at the sheriffs office.

      . The facts involved in State v. Neyrey, 383 So.2d 1222 (La.1979) are very similar to our present case. In Neyrey, supra, we held that no investigatory “stop” had occurred.

      . In State v. Jernigan, 390 So.2d 1306 (La.1980), we upheld the warrantless search of the defendant’s car as a true inventory search even though the defendant did not consent to the search.

      . La.R.S. 15:501 states:
      The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.


source: Caselaw Access Project

author: BLANCHE, Justice. DIXON, C.J.,

license: Public Domain

text:
    STATE of Louisiana v. John E. BROGDON.
    No. 82-KA-0925.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Jr., Dist. Atty., Gregory Champagne, Don Almerico, Asst. Dist. Attys., for plaintiff-appellee.
    Victor Bradley, Jr., Norco, Manina D. Dubroca, Kenner, for defendant-appellant.
   BLANCHE, Justice.

Defendant John Brogdon was convicted of first degree murder for the killing of eleven-year old Barbara Jo Brown, a violation of LSA-R.S. 14:30. The jury of twelve recommended that the defendant be put to death, and the trial court sentenced him accordingly. In reaching its conclusion, the jury found three aggravating circumstances: (1) the defendant had been engaged in the perpetration of aggravated rape at the time of the murder; (2) the offense had been committed in an especially heinous, atrocious, and cruel manner; (3) the victim had been an eyewitness to a crime alleged to have been committed by the defendant. La.C.Cr.P. art. 905.4, secs, (a), (g), (h).

In appealing his conviction and sentence, the defendant assigns sixteen errors. Our review of the record shows that none of the assignments warrant reversal of the defendant’s conviction. Accordingly, we affirm the jury’s determination of the defendant’s guilt. However, because the trial judge erroneously instructed the jurors that they were required to impose the death sentence if they found that the evidence established the existence of one or more aggravating circumstances, we must vacate the death sentence and remand the case for a new sentencing hearing for the reasons we assigned in our recent opinion of State v. Watson, 423 So.2d 1130 (La.1982). The defendant has neither briefed nor argued four of the errors assigned with the trial court. Generally, assignments neither briefed nor argued are considered as abandoned. However, in cases where the death penalty has been imposed, we have generally reviewed such assignments as a matter of policy. State v. Lindsey, 404 So.2d 466 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981). Since these assignments present no substantial legal or factual questions requiring detailed analysis and involve matters governed by established principles of law, they will not be addressed in the body of this opinion, but instead will be set out in an appendix which will remain unpublished, yet nevertheless form part of the official record of this case.

FACTS

At approximately 7:00 p.m. on October 7, 1981, Barbara Jo Brown (Bobby) and her older sister Rubeta walked to a Time Saver convenience store a few blocks from their Luling, Louisiana home to use a pay telephone. While on the telephone, Rubeta saw the nineteen-year old defendant and seventeen-year old Bruce Perritt arrive at the store. Perritt approached Bobby and put his arm around her. Rubeta called her away and the two left the store. On the way home, Rubeta gave Bobby permission to visit a neighbor and told her that she would return for her in a few minutes.

Rubeta .returned for Bobby about ten minutes later and learned that she had returned to the Time Saver. Unable to find Bobby at the convenience store or at the homes of any of their neighbors, Rubeta notified their mother, who was at work, and called the police. A young friend of Bob-: by’s stated that she had seen her earlier that evening in a car, sitting between the defendant and Perritt. Shortly after 9:00 p.m., two young men were driving behind a levee near Luling and came upon Bobby’s body. Perritt’s vehicle was parked a short distance away. Shortly thereafter, two other men saw the defendant and Perritt walking on a road near the levee. The defendant was without a shirt and appeared disheveled. Based on this set of circumstances, the defendant and Perritt were ar-:. rested for the murder of Barbara Jo Brown.

The defendant voluntarily confessed to. the murder. In the statement, he described' a crime of unparalleled savagery and brutality. The defendant recounted how he-, and Perritt had picked up Bobby at the Time Saver and driven her to the levee.. The two repeatedly raped her and forced her to perform oral sex on them, all the while pummeling her with their fists. They then broke bottles on the cement and stabbed her repeatedly with the jagged edges. Perritt found a brick and hurled it at Bobby, striking her in the head. The defendant then used the brick to beat her until he “thought she was dead.” Throughout the ordeal Bobby had pleaded for her life and fought back against her two assailants as best she could. The extensive bruises and lacerations on her forearms were described by the pathologist as defensive in nature. The defendant stated that he had killed Bobby because she knew her assailants, and he was afraid that she would “tell on them” for raping her.

At trial, the pathologist testified that Bobby had been brutalized so extensively that her skull, internal organs, and vertebrae were exposed. Bobby’s vagina had been pierced with a sharp object all the way into her abdominal cavity. Two blood-covered, pointed sticks were found at the scene of the crime, both of which the defendant and Perritt had used to brutalize and torture their victim beyond that which they could accomplish with their hands and other crude weapons.

The defendant attempted to plead guilty to the crime, but the trial judge refused to accept the plea and entered for him pleas of not guilty and not guilty by reason of insanity. A sanity commission was appointed by the trial court, and, after a separate sanity hearing, the defendant was found capable of standing trial. At trial, the defendant’s only witness was a psychologist who testified that the defendant had suffered a psychotic episode at the time of the offense and did not, at that time, know the difference between right and wrong. She testified that the defendant has a borderline I.Q. and personality disorder which would account for his violent and aggressive nature. In rebuttal, the two sanity commissioners testified for the state that the defendant had understood the natural consequences of his acts at the time of the offense.

ASSIGNMENT OP ERROR NO. 1

By this assignment, the defendant urges that the trial court erred in denying his motion for a change of venue without holding a contradictory hearing on the matter. More specifically, he argues that pre-trial publicity relating to the case, particularly that concerning the trial court’s rejection of his guilty plea, had been extensive enough to warrant a change of venue. See La.C. Cr.P. arts. 621, 622.

On December 10, 1981, at a hearing on the defendant’s motion to suppress his confession, the defendant called to the court’s attention that a motion for a change of venue had been filed. The court denied the motion, but reserved the defendant’s right to re-urge the motion at the time of jury selection should it become apparent that an impartial jury could not be selected due to prejudicial pre-trial publicity. The trial judge made it clear to counsel that he would be amenable to granting the motion for change of venue at that time if the proper grounds were shown. Defendant did not object to the judge’s ruling. Moreover, counsel failed to re-urge the motion before, during, or after voir dire as suggested by the judge. Consequently, the defendant never adduced any evidence in support of his motion, relying instead on voir dire to uncover the existence of any community prejudice.

During voir dire, defense counsel and the prosecution questioned all prospective jurors extensively about whether any of them had been prejudiced by or had formed a fixed opinion as to the defendant’s guilt or innocence as a result of news media accounts of the case. Notably, a full jury was ultimately impaneled. But following the jury selection, the defendant did not re-urge the motion for change of venue; rather, the defendant filed a motion to quash the entire venire from which the final jury had been selected on the grounds that poor whites and teenagers had been systematically excluded as potential jurors. The trial judge denied this motion, and the case proceeded on the merits.

It is apparent from the record that the trial judge did not refuse to hold a contradictory hearing on the motion for change of venue; rather, he requested that the defendant defer final disposition of the matter until the time of voir dire where it could be more readily determined whether it would be impossible to empanel an impartial jury. Therefore, the ultimate question for our resolution seems to be whether the trial court’s denial of the pre-voir dire motion for a change of venue without a contradictory hearing, but with an invitation that counsel re-urge the motion at the time of voir dire, constituted reversible error per se. We are of the opinion that such action of the trial judge in deferring final disposition of the matter until the time of voir dire did not violate La.C.Cr.P. art. 621. Further, we are of the opinion that the defendant, having failed to re-urge the motion at the time of voir dire as requested by the trial judge, should be precluded from arguing on appeal that the trial court erred in denying the motion without a contradictory hearing.

La.C.Cr.P. art. 621 provides:

“A motion for a change of venue may be filed by either the state or the defendant. It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.
• A contradictory hearing shall be held upon the motion.”

Despite the mandatory language of this article, it is not error for a trial judge to fail to hold a contradictory hearing on a motion for change of venue where ultimate action on the motion is deferred until voir dire. State v. Bolton, 354 So.2d 517 (La.1978).

In Bolton, the defendant argued that the trial judge erred in failing to hold a contradictory hearing on his motion for change of venue and in “referring” the matter to voir dire because such action denied him the right to call independent witnesses to demonstrate community prejudice. The defendant did state in support of his motion that he had “lived a fast life in the past” and didn’t think that the “peoples” of the parish would give him a fair trial. At that point, the trial judge deferred the matter to voir dire, and the defendant failed to object to the procedure or raise the matter again. We held that the defendant could not be heard to complain on appeal as to an issue he failed to bring to the attention of the trial court. 354 So.2d at 519.

A similar situation is present here. Brog-don’s counsel brought it to the attention of the trial judge at the hearing on the motion to suppress that he had filed a motion for change of venue. The judge asked the defendant to defer an ultimate determination of the merits of his motion until voir dire. Indeed, the judge made it clear that the motion would be granted if the proper grounds were shown at that time. At the risk of being repetitive, we again note that the defendant did not object to the judge’s ruling at that time, nor did he re-urge the motion before, during, or after voir dire, bypassing the opportunity to offer any evidence from independent witnesses to demonstrate community prejudice. It would be manifestly unfair to allow the defendant to remain mute on the matter at trial and then to urge on appeal improper denial of his motion once the jury returned a verdict which was unfavorable to him. We are doubtful that the motion would have been granted considering the decided lack of community prejudice revealed on voir dire.

Here, the defendant was afforded a lengthy voir dire examination of all potential jurors. Indeed, a jury was ultimately impaneled. The burden is upon the defendant to prove that there exists such a prejudice in the collective minds of the people of the community that a fair and impartial trial is impossible. State v. Bell, 315 So.2d 307 (La.1975); State v. Flood, 301 So.2d 637 (La.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782. Because the defendant failed to object to the actions of the trial judge in deferring final disposition of the venue question until voir dire, and because the defendant failed to raise again the motion at the time of voir dire despite the invitation of the trial judge, it is impossible for us to say that the defendant proved the existence of such prejudice that a change of venue should have been granted.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant argues that the trial court erred in refusing to accept his guilty plea. Prior to trial, the defendant sought writs from this court on that very issue, and we denied writs on December 4, 1981. State v. Brogdon, 407 So.2d 727 (La.1981).

La.C.Cr.P. art. 557 provides:

“A court shall not receive an unqualified plea of guilty in a capital case. If a defendant makes such a plea, the court shall order a plea of not guilty for him.”

Additionally, a defendant in a capital case may not waive his right to a trial by jury. La. Const, art. I, sec. 17. The trial judge is free to reject a defendant’s unilateral offer to plead guilty in order to deprive the state of the right to seek the death penalty in an appropriate case. State v. Robinson, 421 So.2d 229 (La.1981). Here, the state made it clear to the judge that it would seek the death penalty. The judge properly rejected the unqualified plea.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant urges that the trial court erred in denying his motion to quash the venire from which the jury was chosen on the grounds that teenagers over the age of eighteen and poor whites were excluded. Specifically, the defendant asserts that the jury pool in St. Charles Parish is selected from the list of registered voters in the parish, and teenagers and poor whites are sub-classes which take very little interest in registering to vote. He further contends that he was denied an opportunity to present evidence on the issue.

Our review of the record shows that the defendant’s contentions are without merit. His motion was argued and considered at length at the conclusion of voir dire. Further, the use of voter registration lists as the sole source from which a venire is compiled is a constitutionally sound practice unless the defendant can show that such a practice discriminates against a certain class of persons to the extent that the venire does not represent .a fair cross-section of the community. State v. Eastin, 419 So.2d 933 (La.1982); State v. Daigle, 344 So.2d 1380 (La.1977).

The defendant made no showing that the exclusion of non-voters from the venire operated as class discrimination against teenagers and poor whites or that the venire did not represent a reasonable cross-section of the community. Other than the bare allegation, there was no showing that teenagers or poor whites were less likely to register to vote than other groups. Of the prospective jurors in this case, 63 were male, 47 were female, 80 were white, and 30 were black. This is virtually a perfect cross-section of the population of St. Charles Parish. Without a showing that teenagers of voting age and poor whites were discriminated against as a class, the motion was properly denied.

This assignment is without merit. ASSIGNMENT OF ERROR NO. 4

By this assignment, the defendant urges that the trial court erred in denying the motion to suppress his confession. Specifically, he argues that his statement cannot be regarded as having been given freely and voluntarily because his “intellectual disability” precluded his complete understanding of the essential nature of his constitutional rights. The defendant alleges that he is mildly retarded with an I.Q. of 64 to 70.

After a careful review of the record, we conclude that the defendant’s statement was freely and voluntarily given. The interrogating officers took extra precautions to ensure that the defendant fully understood his constitutional rights. In this case, the defendant’s asserted lack of intelligence does not operate to vitiate the vol-untariness of his confession.

Upon learning that the defendant had only an eighth grade education, the interrogating officer took precautions to ensure that the statement was taken in compliance with LSA-R.S. 15:451. Prior to the defendant’s statement on the details of the incident, the following interchange occurred:

“Q: [D]o you understand your Miranda rights warning that [was] just read to you and you signed?
A: Yes, sir.
Q: Do you know how to read and write the English language?
A: Yes, sir.
Do you understand that you do not have to say anything to us at this time and that if you do it will be used against you in court? «©
Yes, sir. <¡
Do you want to talk to a lawyer right now and have him present with you before you say anything to us? O*
No, I don’t need a lawyer. I just want to get this off my mind.
Have any threats been made to you by any policeman or anyone tonight to make you give us this statement? <y
No, sir.
With your rights in mind, the right not to say anything to us at this time, your right to have a lawyer with us at this time, I will ask you once more John, do you still want to give us a statement now? g*
Yes, sir. I’m ready .... ”
sk A sk * * sfe

At the conclusion of the detailed description of the crime, the following interchange occurred:

* * * * . * *
“Q: Is there anything that you would like to add to this statement [or] delete from it?
A: That’s about Jit], sir.
Q: [H]as anyone made any threats to you to make you give us this statement or has anyone promised you anything?
A: No, sir ....
Q: Have you read this statement before you signed it?
A: Yes, sir. I have.
Q: Is this your statement, true and correct, John?
A: Yes, sir. That’s how it went down

The defendant’s initials appeared at the end of each colloquy. At the hearing on the motion to suppress, the interrogating officer testified that the defendant was asked to read the statement thoroughly and did so for approximately ten minutes before signing. Testimony revealed that the defendant had been read his Miranda rights no fewer than five times prior to the confession. At all times the officers used simple language, and the defendant’s own psychologist testified that his statement that he “didn’t need a lawyer” and that he “just wanted to get this off his mind” indicated that the defendant understood the consequences of his confession.

When the issue in a case on appeal is whether a defendant’s lack of intellectual ability precluded him from effectively understanding the essential nature of his constitutional rights, much weight is accorded the trial court’s assessment. State v. Coleman, 395 So.2d 704 (La.1981); State v. Trudell, 350 So.2d 658 (La.1977); State v. White, 329 So.2d 738 (La.1976). The conclusion of the trial court as to the admissibility of a confession should not be overturned unless it appears that the conclusion is wholly unsupported by the evidence. State v. Dison, 396 So.2d 1254 (La.1981); State v. Jackson, 381 So.2d 485 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).

Our review of the record reveals that the evidence in this case preponderates in favor of the trial judge’s determination that the defendant’s confession was freely and voluntarily given. Despite the defendant’s low intelligence level, the state has affirmatively shown that the statement was given freely and voluntarily in compliance with LSA-R.S. 15:451. Moderate mental retardation or low intelligence do not of themselves vitiate a free and voluntary confession. The critical factor in such cases is whether or not the defendant was able to understand the rights which were explained to him. State v. Anderson, 379 So.2d 735 (La.1980); State v. Collins, 370 So.2d 533 (La.1979). The defendant in this case clearly understood his rights.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant argues that the trial court erred in finding that he was sane at the time of the offense and that he was competent to stand trial. Specifically, he contends that there was overwhelming evidence that he was insane at the time of the offense and that he is presently incapable of understanding the nature of the proceedings against him or aiding in his defense. We disagree.

In terms of capacity to proceed, the defendant must presently lack the capacity to understand the nature of the proceedings against him or to assist in his defense. The incapacity must result from a mental disease or defect. La.C.Cr.P. art. 641; cf. State v. Bennett, 345 So.2d 1129 (La.1977). The determinations of the trial judge in such matters are entitled to great weight on appellate review and will not be overturned absent an abuse of discretion. State v. Rochon, 393 So.2d 1224 (La.1981); State v. Jones, 376 So.2d 125 (La.1979); State v. Hamilton, 373 So.2d 179 (La.1979).

Contrary to the contentions of the defendant, the evidence is overwhelming that he is presently capable of understanding the nature of the proceedings against him and aiding in his defense. At the sanity hearing, the two court appointed sanity commissioners, Dr. Ritter and Dr. Super, both testified that the defendant suffered from no mental disease or defect which would render him incapable of understanding the nature of the proceedings against him or incapable of aiding in his defense. The defendant presented no evidence in rebuttal. The two physicians recognized that the defendant was of borderline intelligence; however, while subnormal intelligence is a relevant factor in assessing a defendant’s present capability to stand trial, it is not of itself dispositive of the issue. State v. Square, 257 La. 743, 244 So.2d 200 (1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760; State v. Bailey, 233 La. 40, 96 So.2d 34 (1957). Here, the great weight of the evidence indicated that the defendant was presently capable of standing trial, despite his low intelligence. Therefore, it cannot be said that the trial judge abused his great discretion in reaching this determination.

For purposes of the insanity defense, the burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. The defendant must show that he suffered from a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. LSA-R.S. 14:14; State v. Roy, 395 So.2d 664 (La.1981); State v. Poree, 386 So.2d 1331 (La.1980); State v. Weber, 364 So.2d 952 (La.1978). The relevant inquiry on appeal is whether the defendant adduced evidence of his insanity at the time of the offense such that any rational trier of fact could have concluded that he carried the burden of proving his insanity by a preponderance of the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, supra. In our opinion, it could not have been concluded by a rational trier of fact that the defendant proved his insanity by a preponderance of the evidence.

At trial on the merits, the defendant’s own psychologist admitted that the defendant generally knows the difference between right from wrong and was presently thinking clearly enough to appreciate the consequences of his actions and the gravity of his offense. The principal focus of the defendant’s argument centered on his low intelligence and alleged tendency to experience “psychotic episodes” of violent behavior.

The two sanity commissioners, on the other hand, both testified in rebuttal that the defendant had understood the natural and probable consequences of his acts toward the victim and knew at that time the difference between right and wrong. Both doctors agreed that the defendant was of borderline intelligence. As in assessing capacity to proceed, subnormal intelligence is a relevant factor in assessment of the defendant’s insanity at the time of the offense. State v. Square, supra; State v. Bailey, supra. However, low intelligence is not of itself dispositive of the issue, and the great weight of the evidence here indicates that the defendant’s low intelligence was not such an overwhelming factor that he should be deemed insane at the time of the offense. Therefore, due to the paucity of evidence which would support the defendant’s claim of insanity at the time of the offense, and due to the great weight of evidence tending to negate that claim, we find that the defendant failed to carry his burden of proof by a preponderance of the evidence.

In conclusion, we find that, under these circumstances, the trial judge did not abuse his great discretion in finding that the defendant was capable of standing trial. State v. Rochon, supra. Neither may it be said that the evidence of the defendant’s insanity at the time of the offense was such that any rational trier of fact could have concluded that he had carried the burden of establishing his insanity by a preponderance of the evidence. State v. Roy, supra.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment, the defendant argues that the trial court erred in admitting into evidence an authentic copy of the victim’s birth certificate in order to prove that she was under twelve years of age for purposes of aggravated rape under LSA-R.S. 14:42. The authentic copy of the certificate which was introduced had been issued by the office of the State Registrar and bore his official seal. Specifically, the defendants asserts that the “best evidence” of the victim’s age would have been the testimony of her mother, or, in the alternative, the state custodian of the original certificate.

Copies of an official document which are certified to by the officer who is the legal custodian of such documents are equivalent to the original in authenticity. LSA-R.S. 15:457. We have held that a copy of a victim’s birth certificate certified to by the State Registrar is admissible into evidence to establish the victim’s age for purposes of the carnal knowledge statute, even in the absence of testimony by the mother of the victim. State v. Dierlamm, 189 La. 544, 180 So. 135 (1938). We see no reason why the same rule should not obtain for purposes of aggravated rape.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment, the defendant argues that the trial court erred in admitting into evidence certain gruesome photographs of the victim’s body. Two of the objectional photographs were introduced during the guilt phase of the trial, and two more were introduced during the penalty phase. The defendant makes no specification as to which of these four photographs he deems objectionable, therefore it will be assumed that he questions the admission of all. Because we must vacate the death sentence on other grounds and order a new penalty hearing, we need not assess the admissibility of the two photographs at the penalty phase.

The first of the two photographs introduced at the guilt phase was a color photograph of the body of the victim lying in the darkness some distance away from the photographer. In the foreground was the brick used to kill the victim and a discernable trail of blood was visible from that point to where the body lay in the distance. The second photograph was taken at the morgue and depicts a close-up of the victim’s back showing numerous stab wounds, scratches, and bruises.

It is well-settled that the admission of gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value. It is equally well-settled that post-mortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing the cause of death, and to provide positive identification of the victim. State v. Tonubbee, 420 So.2d 126 (La.1982); State v. Perry, 420 So.2d 139 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981).

The two photographs admitted at the guilt phase were relevant to show the location of the body, the manner of death and attempted disposal of the body, and the specific intent of the defendant to kill the victim. The pictures were relatively inoffensive, and it is abundantly clear that their probative value outweighed any prejudice to the defendant.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

By this assignment, the defendant argues that the trial court erred in admitting evidence which was illegally seized from Per-ritt’s automobile without a search warrant. These items were two blood samples taken from inside the vehicle, a belt, a knife, and a pair of men’s undershorts. Specifically, the defendant claims that the car had been in police custody for more than eight hours before it was searched and there were no exigent circumstances justifying the search without a warrant.

Our review of the record shows that the defendant failed to move to suppress the evidence before trial. He did object to its admission at trial. Pre-trial, the defendant had moved to suppress only his confession and certain hair, blood, and saliva samples taken from him with his consent. At the time the motion was heard on these items, the defendant had already been made aware of the state’s intention to introduce into evidence the items seized from Perritt’s vehicle. This specification of error seems simply to be an afterthought.

The proper method by which to attack the unconstitutionality of a search and seizure is by the motion to suppress. La.C.Cr.P. art. 703; State v. Hardy, 344 So.2d 1018 (La.1977); State v. Collins, 308 So.2d 263 (La.1975). A simple objection at trial to the admissibility of evidence may not serve as a basis upon which to attack a search and seizure as unconstitutional. State v. Royal, 255 La. 617, 232 So.2d 292 (1970).

Here, we had a contemporaneous objection, but no motion to suppress. Therefore, the defendant should be precluded from challenging on appeal the constitutionality of the search of Perritt’s vehicle, especially in light of the overwhelming evidence against the defendant derived from independent sources. Cf. Lawrence v. Henderson, 478 F.2d 705 (5th Cir.1973); State v. Royal, supra.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 9

By this assignment, the defendant argues that the trial court erred in denying his motion for a mandatory mistrial under La.C.Cr.P. art. 770. Specifically, the defendant alleges that the prosecutor improperly elicited testimony from a defense witness concerning other crimes committed by him.

During trial, the defendant called to the stand a psychologist whose testimony was intended to prove his insanity defense. She testified that the defendant had a tendency to react violently during certain “psychotic episodes.” Under cross-examination, the psychologist stated that, in her opinion, the defendant was likely to suffer a violent episode when drinking. When asked how she formulated that opinion, the psychologist stated that the defendant had a “history of assault” and had told her that he had been arrested for assault once before.

La.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:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;”

It is readily apparent that the prosecutor did not elicit testimony which requires a mandatory mistrial within the meaning of art. 770(2). The witness did not intimate knowledge of any details of past crimes which the defendant may have committed but merely stated that the defendant had told her of past violent acts and a past arrest for assault. These statements were intended to bolster her claim that the defendant had suffered an uncontrollable “psychotic episode” at the time of the offense. It was proper for the state to ascertain the basis for the psychologist’s conclusion that drinking triggered violent behavior in the defendant. Moreover, the trial judge admonished the jury to disregard any testimony regarding the defendant’s arrest for a past assault.

Indeed, these statements which the defendant now claims were improper and entitle him to a mistrial were intended to bolster his own defense of insanity. In situations such as this, we cannot allow the defendant to decry the testimony of his own witness as to the basis for her conclusion that the defendant had suffered an uncontrollable psychotic episode at the time of the offense. In light of these circumstances, the jury surely viewed the defendant’s objection as incongruous with his insanity defense. At any rate, any error which arose out of the witness’ testimony was cured by the trial court’s admonishment. Cf. State v. Albert, 381 So.2d 424 (La.1980); State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046; State v. Lewis, 353 So.2d 703 (La.1977).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 14

By this assignment, the defendant argues that the trial court erred in refusing to admonish the jury to disregard an implication by one of the sanity commissioners testifying for the state that the defendant had “confessed” to the offense. This witness was testifying in rebuttal to the defense psychologist who claimed that the defendant had suffered a “psychotic episode” at the time of the offense and did not at that time know the difference between right and wrong.

The following colloquy occurred:

* * * * * *
“Q: Did your examination also delve into the sanity of the defendant at the time of the commission of the crime?
A: To a degree. We did discuss with him what had been going on in his mind and his behavior the day of the offense.
Q: From your evaluation and examination were you able to determine whether or not he knew the natural consequences of his acts and knew the difference between right and wrong?
A: Yes, I determined that he did know the nature of his acts and did know — the nature and consequences of his acts and did know the difference between right and wrong.
Q: At the time of the commission of the crime?
A: Yes.”
* * * * * *

In support of his plea of not guilty by reason of insanity, the defendant attempted to demonstrate by the testimony of his psychologist his state of mind at the time of the offense. Certainly it is fundamental in our law that the state has the right by way of rebuttal testimony to establish that the defendant did indeed know the difference between right and wrong at the time of the offense. Further, we do not agree with the defendant that the testimony cited implies that the defendant “confessed” to the crime. The testimony merely relates the doctor’s opinion as to the state of mind of the defendant at the time the offense was committed. At any rate, any objection to the testimony became moot when the defendant’s full confession to the murder was introduced into evidence later in the trial.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 15

By this assignment, the defendant urges that we reverse his death sentence because the prosecutor, during rebuttal closing argument at the penalty phase, referred to him as an “animal.” Because we must vacate the death penalty on other grounds, this assignment is moot. However, even if it were not moot, the defendant failed to object to the comment or move for a mistrial under La.C.Cr.P. art. 771.

La.C.Cr.P. art. 771 provides:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

We have held that where the defendant neither objects to the comments made to the jury, moves for a mistrial, or asks that the jury be admonished to disregard the comments, then the trial judge had been afforded no opportunity to cure the alleged error, and the matter is not appropriate for appellate review. See La.C.Cr.P. art. 841; State v. Bernard, 358 So.2d 1268 (La.1978).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 16

By this assignment, the defendant urges that the trial court erred in failing to wait 24 hours after denial of his motion for a new trial before imposing sentence. Because we must vacate the death penalty on other grounds, this assignment is also moot. However, even if it were not moot, our review of the record shows that the trial judge did wait 24 hours before imposing sentence.

La.C.Cr.P. art. 873 provides that sentence shall not be imposed until at least twenty-four hours after a motion for a new trial is overruled. Our review of the record revealed that the trial judge stated as follows:

$ # * * *
“[On the case State v. Brogdon], let the record reflect that in accordance with law yesterday we were in court and the court denied the motion for a new trial filed on behalf of John Brogdon. And according to Article .873 of the Code of Criminal Procedure he is entitled to a 24-hour delay.
John Brogdon wished to exercise that privilege and have that 24-hour delay, and this matter was reset for sentencing today.”
* * * * * *

Therefore, based on the record, the trial court was in complete compliance with the strictures of art. 873. In any event, failure of the trial court to wait the entire twenty-four hour period before imposing sentence is harmless error absent a showing that the failure to observe the delay caused the defendant to suffer some actual prejudice thereby. State v. White, 404 So.2d 1202 (La.1981). The defendant has made no such showing in this case.

Accordingly, this assignment of error lacks merit.

REVIEW OF THE PENALTY PHASE

Under La.C.Cr.P. art. 905.9, we are required to review every death sentence. Our review of the record reveals that the trial judge in this case gave to the jury the identical instruction which we deemed improper in State v. Watson, 430 So.2d 1130 (La.1982).

The judge instructed the jury as follows:

‡ # sft sfc sje $
“[If there is no doubt in your mind that the state has established one or more of the aggravating circumstances which I have just outlined for you], then you are obliged to return a sentencing recommendation of death.
[I]f the state fails in establishing the aggravating circumstances beyond a reasonable doubt, the jury would not be authorized to even consider the penalty of death. In that event, the sentence would be life imprisonment without parole .... ” (emphasis supplied)
a}e % Hi * jj<

As we noted in Watson, this is an inaccurate statement of the law. Under La.C.Cr.P. art. 905.3, the jury may consider recommending the death penalty upon finding that the state has proved one or more aggravating circumstances beyond a reasonable doubt. This instruction incorrectly told the jury that it must return a recommendation of death if it found that the state had proved one or more aggravating circumstances beyond a reasonable doubt. Such an improper instruction deprives the jury of the sentencing discretion which is vital to the constitutionality of our capital sentencing scheme. State v. Watson, supra; cf. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

The trial judge did give a rather detailed explanation of mitigating factors which the jury could have considered in deciding whether or not to recommend the death penalty. However, this explanation did nothing to vitiate the judge’s mandatory directive that the jury must recommend the death penalty if it found the existence of one or more aggravating circumstances. If anything, the explanation probably indicated to the jury that the presence of such mitigating factors would serve to negate an initial finding of any aggravating circumstances rather than merely operate to mitigate against the death penalty once such aggravating circumstances were found. Further, we can find no place in the record where the judge corrected his misstatement or the existence of any other facts which might distinguish this case from Watson.

Therefore, as in Watson, we find that the inaccurate jury instruction in this case requires that we set aside the penalty of death and order that the penalty phase be re-tried in accordance with the law.

DECREE

For the foregoing reasons, the conviction of the defendant, John Brogdon, is affirmed. However, because of the erroneous jury instruction delivered by the trial judge at the penalty phase, the sentence of death is vacated, and the case is remanded to the trial court for a new penalty hearing in accordance with the law.

AFFIRMED; SENTENCE OF DEATH VACATED AND CASE REMANDED.

DIXON, C.J.,

concurs, disagreeing with the treatment of assignments # 1 and 4, and being of the opinion that those issues referred to as “moot” are likely to recur on retrial and should be treated to guide the trial court.

      . Perritt was convicted of first degree murder for his part in this crime.

      . The trial judge properly refused to accept the guilty plea in a capital case. See La.C.Cr.P. arts. 552, 557: “A court shall not receive an unqualified plea of guilty in a capital case. If a defendant makes such a plea, the court shall order a plea of not guilty for him.” See assignment of error number two, infra.

      . There is some discrepancy in the order of treatment of these assignments by the defendant in his brief on the merits. Originally, the defendant filed only fifteen assignments with the trial court; however, his brief on the merits discusses only eleven of the original fifteen and adds a sixteenth. For purposes of clarity, we treat these assignments in the order filed with the trial court, adding the sixteenth urged in brief.

      . The defendant only exercised nine of his twelve peremptory challenges.

      . 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, meances, threats, inducements or promises.


text:
    STATE of Louisiana ex rel. Wilfred YOUNG v. CLERK OF COURT, CRIMINAL DISTRICT COURT, SECTION “A”, PARISH OF ORLEANS, State of Louisiana.
    No. 82-KH-2371.
    Supreme Court of Louisiana.
    Dec. 10, 1982.
   In re Wilfred Young, applying for writ of mandamus, Parish of Orleans, No. 246-148.

Grant[ed], The district court is directed to act on relator’s petition within 14 days.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 82-C-2889.
    Supreme Court of Louisiana.
    Dec. 23, 1982.
   In re Louisiana Public Service Commission, applying for reconsideration of granted writ with order of December 20, 1982, 424 So.2d 1025. Parish of East Baton Rouge, No. 260-912.

Denied.

DENNIS, J., would grant a rehearing.


text:
    RAPIDES MERCHANTS ASSOCIATION et al. v. RAPIDES PARISH POLICE JURY. RAPIDES MERCHANTS ASSOCIATION, et al. v. RAPIDES PARISH POLICE JURY and Marshall T. Cappel, Sheriff.
    No. 83-C-0030.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Rapides Merchants Association, et al, applying for supervisory writs, to the Court of Appeal, Third Circuit. Parish of Rapides, Ninth Judicial District Court, 413 So.2d 196, 421 So.2d 953 and 421 So.2d 955.

Denied.


text:
    Robert KELSO, et al. v. Constance L. LANGE, et al.
    No. 83-C-0011.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Robert Kelso, et al, applying for writ of certiorari, and review, Third Circuit Court of Appeal. Parish of Rapides, Ninth Judicial District Court, 421 So.2d 973.

Denied.


text:
    Edward R. ROZELL v. LOUISIANA ANIMAL BREEDERS COOPERATIVE, INC., et al.
    No. 82-C-2380.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Edward R. Rozell, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, No. 14927, East Baton Rouge Parish, 422 So.2d 435.

Granted.


text:
    Crystal ROLAND v. Ignatius I. TEDESCO, III, et al.
    No. 83-C-0052.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Crystal Roland, applying for writ of review and certiorari, to the Court of Appeal, Second Circuit. Parish of Caddo, First Judicial District Court, 421 So.2d 1158.

Granted. The judgment dismissing plaintiff’s suit is set aside, because of an abuse of discretion in denying a continuance. The suit is reinstated.


text:
    Lloyd GUILLOT and Karen Sellers Guillot v. FISHERMAN’S PARADISE, Flying Bridge Marina, Inc., Gilbert Dozier and Gerald Strickland.
    No. 83-C-0057.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Lloyd Guillot and Karen Sellers Guillot, applying for writ of certiorari and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, Nin-teenth Judicial District Court, 422 So.2d 1194.

Granted.


text:
    Henry BRIDGEWATER v. STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS.
    No. 83-C-0072.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Henry Bridgewater, applying for writ of certiorari and review, First Circuit Court of Appeal. Parish of East Baton Rouge, Nineteenth Judicial District Court, 422 So.2d 1214.

Granted.


text:
    STATE of Louisiana, ex rel., Robert MYLES v. Honorable Frank A. MARULLO, Judge Criminal District Court.
    No. 81-KH-2830.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Robert Myles, applying for writ of mandamus. Parish of Orleans, No. 265-242.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Raymond P. PERIQUE v. Edwin A. LOMBARD, Clerk of Criminal District Court Parish of Orleans, and Ellis M. Gill, Court Reporter.
    No. 81-KH-3102.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Raymond P. Perique, applying for writs of mandamus. Parish of Orleans, No. 242-843.

Denied; the records sought apparently do not exist.


text:
    STATE of Louisiana, ex rel. Sherman GILLS v. Judge Frank SHEA, Section “G” Criminal District Court, Parish of Orleans.
    No. 82-KH-1638.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Sherman Gills, applying for writ of mandamus. Orleans Parish, No. 261-754.

Denied.


text:
    STATE of Louisiana ex rel. Michael Dale LEATHERWOOD v. STATE of Louisiana.
    No. 82-KH-1771.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Michael Dale Leatherwood, applying for remedial writs. Parish of Beauregard, No. CR-633-80 & CR-634-80.

Denied.


text:
    STATE of Louisiana ex rel. Almecia BARRETT v. Honorable Frank J. SHEA, Judge Parish of Orleans, Sect. “G”.
    No. 82-KH-1829.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Almecia Barrett, applying for writ of mandamus, prohibition and habeas corpus. Parish of Orleans, Criminal District Court, No. 246-219.

Denied.


text:
    MAGNOLIA CONSTRUCTION CO., INC. v. Vernon CAUSEY, et al.
    No. 83-C-0013.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Magnolia Construction Co., Inc., applying for writ of certiorari to the Court of Appeal, Third Circuit. Parish of Beauregard, Thirty-Sixth Judicial District Court, 421 So.2d 990.

Denied.


text:
    Paul G. SMITH, et al. v. W.A. MONCRIEF, et al.
    No. 83-C-0014.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re W.A. Moncrief, et al applying for certiorari or writ of review to the Twelfth Judicial District Court, Third Circuit, Court of Appeal. Parish of Avoyelles, 421 So.2d 1127.

Denied.

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


text:
    Roy WELCH and Rosa Welch v. COMMUNITY MOTORS, INC., Chrysler Corporation, and A.R.A. Manufacturing Company.
    No. 83-C-0019.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Roy Welch and Rosa Welch, applying for writs of certiorari, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa, Twenty-First Judicial District Court, 422 So.2d 1196.

Denied.

WATSON, J., would grant the writ.


text:
    John M. KELLEY v. Arlton STRINGER.
    No. 83-C-0028.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re John M. Kelley, applying for writs of certiorari and/or review, to the Court of Appeal, Second Circuit. Parish of Jackson, Second Judicial District Court, 422 So.2d 189.

Writ denied.


text:
    Harold GRANGER, Individually and for the Minor, Timothy Granger v. Charles Rodney ROBERTSON, et al.
    No. 83-C-0029.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Harold Granger, applying for supervisory writs, Third Circuit, Court of Appeal, Parish of Rapides, Ninth Judicial District Court, 421 So.2d 977.

Denied.

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


text:
    STATE of Louisiana v. Michael McMAHON. In re Ellwest Stereo Theater.
    No. 82-K-2951.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Ellwest Stereo Theater, applying for writ of certiorari to review and stay order. Parish of Orleans, Criminal District Court, Magistrate Section, No. 129-496; Fourth Circuit, Court of Appeal, No. K-0319.

Granted. The court of appeal order is set aside. The case is remanded and the trial judge is directed to determine, after an expedited evidentiary hearing, if necessary, whether there is a bona fide purpose of preserving the objects in question as evidence in a criminal proceeding. See United States v. Polak, 312 F.Supp. 112, 116 (E.D. Pa.1970); Eurpo Books v. Pamerleau, 41 Md.App. 114, 395 A.2d 1195 (Md.1979); Porno, Inc. v. Municipal Court, 33 Cal.3d 122, 108 Cal.Rptr. 797 (1973). Cf. Heller v. New York, 413 U.S. 483 at 491-93, 93 S.Ct. 2789 at 2794-95, 37 L.Ed.2d 745 (1973).


text:
    Sunset CAREY, and Stanley Cormier v. Dennis ORY, et al.
    No. 83-C-0038.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Allstate Insurance Company, applying for writ of certiorari, to the Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court, 421 So.2d 1003.

Denied.


text:
    Janice Campbell EDWINS v. Roy M. LILLY, Jr., et al. CONSUMER CREDIT CORPORATION, et al. v. Roy M. LILLY, Jr., et al.
    No. 83-C-0039.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Washington Bank and Trust Company, applying for writ of certiorari or review, First Circuit, Court of Appeal, Parish of Washington, Twenty-Second Judicial District Court, 422 So.2d 1217.

Denied.


text:
    Diana Smith WHIPPLE v. Keith M. WHIPPLE.
    No. 83-C-0053.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Keith M. Whipple, applying for writ of certiorari, or review to the Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court, 424 So.2d 263.

Denied.


text:
    Glen PEVETO and Melva Peveto v. Allen L. AUSTIN, The Early American Insurance Co. and City of Bossier City.
    No. 83-C-0058.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Glen Peveto and Melva Peveto, applying for writ of review and certiorari to the Court of Appeal, Second Circuit. Parish of Bossier, Twenty-Sixth Judicial District Court, 421 So.2d 1204.

Denied.

DENNIS, J., would grant the writ.


text:
    Aubrey MAXWELL, et ux. v. Lawrence E. GIBSON and City of Monroe.
    No. 83-C-0041.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Lawrence E. Gibson and City of Monroe, applying for writ of certiorari, to the Court of Appeal, Second Circuit. Parish of Ouachita, Fourth Judicial District Court, 421 So.2d 1175.

Denied.


text:
    Eldridge Mack WILLIAMS v. CINGLARE CENTRAL FACTORY and Liberty Mutual Insurance Company.
    No. 83-C-0059.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Eldridge Mack Williams, applying for writ of certiorari or review and mandamus to the Court of Appeal, First Circuit. Parish of West Baton Rouge, Eighteenth Judicial District Court, 422 So.2d 1226.

Denied.


text:
    Kathleen Mathews, wife of/and James E. MATHEWS v. H.G. DEARIE REAL ESTATE, INC. and R.J. Gaffney.
    No. 83-C-0073.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Kathleen Mathews, wife of/and James E. Mathews, applying for writs of certiorari or review, to the Court of Appeal, Fifth Circuit. Twenty-Fourth Judicial District Court, Jefferson Parish, 422 So.2d 454.

Denied.


text:
    Peggy W. CAUSEY v. Billy Jack MONROE, et al.
    No. 83-C-0075.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Continental Casualty Co., applying for writs of certiorari or review, to the Court of Appeal, Second Circuit, Twenty-Sixth Judicial District Court. Bossier Parish, 421 So.2d 1151.

Denied.

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


text:
    Robert Lee BENTON v. DOLESE CONCRETE CO., Employers National Ins. Co. and ABC Ins. Co.
    No. 83-C-0079.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Robert Lee Benton, applying for writs of certiorari or review, to the First Circuit, Court of Appeal, Nineteenth Judicial District Court. East Baton Rouge, 423 So.2d 659.

Denied.


text:
    Janice Campbell EDWINS, et al. v. Roy M. LILLY, Jr., et al. CONSUMER CREDIT CORPORATION, et al. v. Roy M. LILLY, Jr., et al.
    No. 83-C-0103.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Jim W. Richardson, Jr., applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Washington, Twenty-Second Judicial District Court, 422 So.2d 1217.

Denied.

WATSON, J., would grant the writ.


text:
    Roy WELCH and Rosa Welch v. COMMUNITY MOTORS, INC., Chrysler Corporation and A.R.A. Manufacturing, Co.
    No. 83-C-0132.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Community Motors, Inc.; applying for writ of certiorari or review, First Circuit Court of Appeal. Parish of Tangipa-hoa, Twenty-First Judicial District Court, 422 So.2d 1196.

Denied. Result correct.


text:
    STATE of Louisiana, ex rel. William F. EDGECOMBE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-2519.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re William F. Edgecombe, applying for a motion to proceed in forma pauperis, application for writ of mandamus and application for writ of certiorari, Parish of St. Bernard.

Granted. The district court is ordered to act on relator’s petition no later than February 15, 1983.


text:
    STATE of Louisiana, ex rel., Bryan Mark SANDERS v. CLERK OF COURT, 28TH JUDICIAL DISTRICT COURT, PARISH OF LASALLE, State of Louisiana.
    No. 82-KH-2641.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Bryan Mark Sanders, applying for writ of mandamus. Parish of Lasalle.

Granted. The district court is ordered to act on relator’s petition summarily if appropriate or in the alternative hold an eviden-tiary hearing within 30 days.


text:
    STATE of Louisiana, ex rel. Larry BARR v. CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT.
    No. 82-KH-2791.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Larry Barr, applying for writs of mandamus and certiorari. Parish of Caddo, No. 93039.

Granted. The district court is ordered to furnish relator with a copy of his Boykin transcript.


text:
    STATE of Louisiana v. Caesar T. HARMASON.
    No. 83-KK-0051.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Caesar T. Harmason, applying for supervisory writs, and stay order to the First Circuit, Court of Appeal, No. 83-KW-0046 Judicial District Court, No. 4r-28-298 Section V. (East Baton Rouge Parish).

Granted and remanded to the district court. The rulings complained of are vacated. The trial judge shall either grant the motion to suppress the in-court lineup or recuse himself from the motion to suppress.


text:
    STATE of Louisiana, ex rel., Barry Edward BALLARD v. Donald B. GUILLORY, Warden.
    No. 82-KH-1351.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Barry Edward Ballard, applying for writs of habeas corpus, certiorari, prohibition, mandamus and other remedial writs. Parish of Ouachita, No. 36336.

Denied.


text:
    STATE of Louisiana ex rel. Garrett D. RICHARDSON v. Chief Leslie BONANO.
    No. 82-KH-1498.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Garrett D. Richardson, applying for remedial writs. Parish of Orleans, No. 267-196.

Denied.


text:
    STATE of Louisiana, ex rel. Edward THOMAS, Jr. v. CADDO INDIGENT DEFENDER BOARD.
    No. 82-KH-1658.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Edward Thomas, Jr., applying for remedial writs. Caddo Parish, No. 113325.

Denied.

CALOGERO, J., concurs in the denial. Relator presents no particularized need.


text:
    STATE of Louisiana ex rel. Irving JONES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-1687.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Irving Jones, applying for writ of habeas corpus, or certiorari. Parish of Orleans, No. 270-119.

Denied.


text:
    STATE of Louisiana ex rel. L’Dee SMITH v. Johnnie JONES, Warden, Louisiana Correctional Institute for Women St. Gabriel, Louisiana.
    No. 82-KH-1688.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re L’Dee Smith, applying for writ of certiorari. Parish of Ouachita, No. 36981.

Denied.


text:
    STATE of Louisiana ex rel. Curtis GORDON v. CLERK OF COURT CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 82-KH-2202.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Curtis Gordon, applying for writ of habeas corpus. Parish of Orleans, Criminal District Court, No. 248-250.

Denied.


text:
    STATE of Louisiana ex rel. Cassandra LEVERT v. Honorable Edwin LOMBARD, Clerk Parish of Orleans.
    No. 82-KH-2480.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Cassandra Levert, applying for writ of mandamus. Parish of Orleans, Criminal District Court, Nos. 256-468 and 268-685.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Louis JACKSON v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-2733.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Louis Jackson, applying for writ of habeas corpus. Natchitoches Parish, No. 27-893.

Denied.


text:
    STATE of Louisiana, ex rel. Gary A. HAISCH v. STATE of Louisiana, Hon. Judge Jerome M. Winsberg, Court Stenographer.
    No. 82-KH-2845.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Gary Haisch, applying for remedial writs. Parish of Orleans, No. 269-824.

Denied.


text:
    STATE ex rel., Charles CARSTAUPHEN v. STATE of Louisiana.
    No. 82-KH-2963.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Charles Carstauphen, applying for remedial writs. Parish of Vernon, No. 640105.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana ex rel. Ernest Reginald PICHO v. Honorable Thomas W. TANNER, Judge, Parish of St. Tammany 22nd Judicial District Court.
    No. 83-KH-0007.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Ernest Reginald Pichón, applying for writ of mandamus. Parish of St. Tammany, Twenty-Second Judicial District Court, No. 50751.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Glenn A. BORDELON v. Honorable Charles GAUDIN, Judge 24th Judicial District Court Parish of Jefferson.
    No. 83-KH-0025.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Glenn A. Bordelon, applying for writ of mandamus. Parish of Jefferson, No. 79-2938.

Denied. Moot.


text:
    Willie Paul WILSON, Individually and as Administrator of the Estate of his Minor Child Michael Wayne Wilson v. Elmer Dale ALLEN.
    No. 83-C-0060.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Willie Paul Wilson, et al., applying for writ of certiorari, to the Court of Appeal, Second Circuit, No. 15017. Parish of Richland, Fifth Judicial District Court, No. 23631.

Denied.


text:
    STATE of Louisiana, ex rel. James Earl SPIKES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0068.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re James Earl Spikes, applying for writ of certiorari, prohibition, and mandamus. Parish of Washington, No. 27172 and 27171.

Denied.


text:
    Louis DE JOHN, Sr. v. Sam VINCE.
    No. 83-C-0080.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Sam Vince, applying for writ of certiorari to the Court of Appeal, First Circuit, Nos. 82 CA 0778 and 82 CM 0693; Nineteenth Judicial District Court, East Baton Rouge Parish, No. 251989.

Denied. The result is correct.


text:
    STATE of Louisiana, ex rel. Jackie FLAGG v. Ross MAGGIO, Jr., Warden Louisiana Department of Corrections.
    No. 83-KH-0087.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Jackie Flagg, applying for writ of mandamus. Parish of Iberia, No. 30-K-872.

Denied. Moot.


text:
    TERREBONNE PARISH POLICE JURY v. HOUMA SALT WATER DISPOSAL CORPORATION.
    No. 83-CC-0186.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Terrebonne Parish Police Jury, applying for supervisory writs, to the Thirty-Second Judicial District Court. Parish of Terrebonne, No. 70608; Court of Appeal, First Circuit, No. 83 CW 0073.

Denied.


text:
    STATE of Louisiana In the Interest of Lavar BROOKS.
    No. 83-CK-0237.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re State of Louisiana, through. the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, mandamus and stay order, Juvenile Court. Orleans Parish, No. 198-508 A.

Denied. The child remains under the jurisdiction of the juvenile court; a date for hearing has been fixed; the child was returned to the mother on a finding of no probable cause for continued protective custody; the conditions of the return of the child include close supervision by the mother; and the O.H.D. has been ordered to continue its investigation.


text:
    STATE of Louisiana v. Linda E. JULIAN and Walter Watson. STATE of Louisiana v. Leroy JULIAN and Walter Watson.
    No. 82-C-2965.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Walter Watson, applying for writ of certiorari, and emergency stay order. Parish of Orleans, Civil District Court, Nos. 82-13733 and 34; Fourth Circuit, Court of Appeal, No. C-0446.

Granted and remanded to the court of appeal for argument and opinion. The question of whether the relator has vested rights under the 1979 amendment to R.S. 15:85(B) presents an important question of law not previously decided that calls for resolution by the court of appeal.


text:
    Diana M. PARKER v. Leonard O. PARKER, Jr.
    No. 82-C-2902.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In re Diana M. Parker, applying for writ of certiorari and review to the Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court, 424 So.2d 1070.

The stay order issued herein is recalled and relator’s writ is denied.


author: COVINGTON, Judge.

text:
    Mable BURTON, et al. v. Ronald HINTON, et al.
    No. 82 CA 0318.
    Court of Appeal of Louisiana, First Circuit.
    June 11, 1982.
    Milton Osborne Jr., Baton Rouge, for plaintiff-appellant Ronald Hinton.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee Dairyland Ins. Co., et al.
    James R. Coxe, III, Baton Rouge, for defendants-appellees Mable Burton and Corrine Samuels.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees Dairyland Ins. Co., et al. and Mable Burton.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

COVINGTON, Judge.

This matter is before us on a motion to dismiss the appeal of Ronald Hinton, a defendant, filed by Dairyland Insurance Company, also a defendant, on the ground of mootness.

This case is consolidated with the case of “Ronald Hinton versus Dairyland Insurance Company, et al.,” Number 82 CA 0317 on the docket of this Court. Both cases are now pending hearing. Judgment was rendered in the trial court March 5, 1982, and signed on March 10, 1982, in favor of Corrine Samuels and against the defendants, Ronald Hinton and Dairyland Insurance Company. The claim of Mable Burton was dismissed. She has not appealed the judgment against her.

On April 1, 1982, Hinton moved for a devolutive appeal. Thereafter, on April 19, 1982, Dairyland paid the judgment in favor of Corrine Samuels, and obtained a satisfaction of judgment in which Samuels released Hinton and Dairyland from the judgment and requested the judgment be cancelled.

The instant case, and the case with which it was consolidated, concern an automobile accident. Hinton was uninsured. Dairy-land was the uninsured motorist carrier of Burton, the driver of the car in which Sam-uels was a passenger. The trial court (in both cases) found Hinton negligent. On appeal, he seeks reversal of that court’s finding that he was negligent. The record does not reflect that Hinton has, beyond doubt, acquiesced in the judgment, or abandoned his appeal. Major v. Louisiana Department of Highways, 327 So.2d 515 (La. App. 1 Cir.1976).

The appeal of a final judgment is a matter of right. Appeals are favored by our law and should be maintained wherever possible. Taylor & Taylor Builders, Inc. v. Moore, 393 So.2d 792 (La.App. 2 Cir.1981). We do not agree with mover that the matter is now moot, just because mover has satisfied Samuels’ judgment. Hinton still has his interest in having the issue of negligence decided in his favor. He should be accorded an opportunity to present the question of negligence for review, and to have the judgment “revised, modified, set aside, or reversed by an appellate court,” if the record supports his position. LSA-C. C.P. art. 2082; Cohn Realty Company, Inc. v. Able Moving & Storage Co., 402 So.2d 104 (La.App. 1 Cir.1980).

For the assigned reasons, the motion to dismiss the appeal is denied.

MOTION DENIED.