author: MARCUS, Justice .

text:
    STATE of Louisiana v. Preciado Julio ORDONEZ
    No. 67660.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., for plaintiff-appellee.
    Steven Broussard, Lake Charles, for defendant-appellant.
   MARCUS, Justice .

Preciado Julio Ordonez was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:967. After trial by jury, defendant was found guilty as charged and sentenced to serve ten years at hard labor. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

FACTS

On the morning of December 28, 1979, United States Customs Service Agent William J. Kennedy received word at his office in Cameron, Louisiana, from a confidential informer that a boat was lying about one hundred yards off the Louisiana coast and approximately four or five miles east of Rockefeller Refuge near Grand Chenier. The informer stated that the boat had apparently run aground. Kennedy contacted James Nunez, an agent with the Louisiana Wildlife and Fisheries Division, who made arrangements for a helicopter to take them over the area where the boat was sighted. The vessel was at anchor and appeared to be a shrimp trawler but it had no boards or fishing rigging attached to it. Kennedy saw no name, no homeport designation, and no registration numbers displayed on the vessel. Some of the crew members on the deck appeared to be black or Latin males.

Upon his return, Kennedy formed a boarding party composed of members of the Calcasieu Parish and Lake Charles Sheriff’s offices and the Louisiana Wildlife and Fisheries Division and deputized them as U. S. customs agents. He and five others proceeded by skipjack from Rockefeller Refuge to the vessel, while a helicopter, after leaving two armed men on shore, hovered over Kennedy and his party while they boarded the boat. Kennedy displayed his badge and shouted, “Federali,” and after assembling all of the vessel’s crew on deck, asked in limited Spanish for the captain. Defendant indicated through gestures and speaking Spanish that the captain had departed. When Kennedy asked for the ship’s documents, defendant was unable to produce any. At this point, Kennedy noticed that there was a canvas and rope securing the cargo hold of the vessel. He asked defendant in Spanish what he was carrying but defendant did not answer. He repeated the question, this time asking, “What are you carrying here, Marijuana?” to which defendant replied in Spanish, “a little bit.” Kennedy then removed the hatch cover from the cargo hold and discovered approximately ten tons of marijuana in burlap bundles in the hold. In his limited Spanish, Kennedy then attempted to place defendant and the rest of the crew under arrest, frisked them for weapons, and loaded them aboard the skipjack to be escorted to Rockefeller Refuge.

Defendant’s testimony revealed that the vessel had sailed from Columbia a month earlier and had been anchored offshore in its present location for sixteen days after the vessel had struck an object, damaging the rudder. The two Americans who hired him, one of whom served as captain, informed him during the voyage that the boat was carrying marijuana. When the rudder became damaged, defendant stated that the two Americans left in a small motorboat. They never returned to the boat and were apparently never identified or found.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress the marijuana seized as a result of a warrantless search by United States customs agents of the vessel on which he was arrested.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search at a border or its functional equivalents without probable cause of an individual or a conveyance seeking entry into our country from outside. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

In Almeida-Sanchez, the United States Supreme Court stated:

It is undoubtedly within the power of the Federal Government to exclude aliens from the country. [Citation omitted.] It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders....
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well.

In Ramsey, the Supreme Court further stated:

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. [Footnote omitted.] We reaffirm it now.

In view of the foregoing, we conclude that an individual or a conveyance seeking entry into our country from outside may be searched without probable Cause and without a warrant at a border or its functional equivalents.

In the instant case, United States customs agent Kennedy testified that the vessel was located approximately one hundred yards from the Louisiana coast and about four or five miles east of Rockefeller Refuge near Grand Chenier. Clearly, this was within what we consider the “functional equivalents” of the border itself. Secondly, we find that the record fully supports the conclusion of the officers that the vessel had crossed our border from foreign waters. The vessel bore no name or registration number. Nor did it have the necessary rigging to give the impression that it was a vessel engaged in fishing. Moreover, the crew appeared to be of foreign origin.

Hence, we conclude that the search of the vessel and the seizure of the contraband located thereon properly fell within our border search exception to the fourth amendment prohibition against unreasonable searches and seizures. The trial judge did not err in denying defendant’s motion to suppress.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in refusing to allow the filing of his motion to suppress an oral inculpatory statement.

Defendant’s original motion to suppress was limited to “a leaflike material (believed to be marijuana), presently in possession of the State. ...” The hearing on the motion began on February 5,1980. On February 6, 1980, defense counsel attempted to file a motion to suppress an oral inculpatory statement allegedly made by defendant. He argued that he only became aware of the statement during the hearing on the day before. The trial judge, relying upon La.Code Crim.P. art. 703, considered the motion untimely and in his discretion refused to allow the filing of the motion. During trial, the state laid a predicate for introduction of the statement in evidence outside the presence of the jury.

Since a hearing was held outside the presence of the jury on the issue of the voluntariness of the inculpatory statement and since defendant makes no showing of prejudice, we are unable to say that the trial judge’s refusal to permit the filing of the motion to suppress constituted reversible error.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a continuance.

The record reflects that defense counsel was appointed to represent defendant on or about January 10,1980. On the day of trial (February 11, 1980) prior to its commencement, defense counsel filed a written motion for a continuance alleging that a delay in the trial was necessary because of the difficulties he was having in communicating with his Spanish-speaking client. Although an interpreter was appointed on January 15,1980 to represent defendant and nine of the crew members, defense counsel stated that a separate interpreter was not appointed for defendant until February 8, 1980. He further argued that the promptness in which the case was brought to trial by the state added to his difficulties. Therefore, he contended that he lacked adequate time to prepare for trial. The trial judge denied the motion.

The granting of refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear abuse of discretion. La.Code Crim.P. art. 712; State v. Reed, 378 So.2d 923 (La. 1980); State v. Lee, 364 So.2d 1024 (La. 1978); State v. Adams, 347 So.2d 195 (La. 1977). Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. State v. Parsley, 369 So.2d 1292 (La.1979); State v. Winston, 327 So.2d 380 (La.1976). We have generally declined to reverse convictions absent a showing of specific prejudice caused by the denial of a continuance. State v. Durio, 371 So.2d 1158 (La.1979); State v. Hammontree, 363 So.2d 1364 (La. 1978).

Defense counsel makes no showing of how he could have presented a better defense had he been given additional time to prepare his case. Absent a showing of specific prejudice, we are unable to say that the trial judge abused his discretion in denying defendant’s motion for a continuance.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting in evidence an oral inculpato-ry statement made by him in response to interrogation by customs agent Kennedy after his freedom had been restrained but before being advised of his Miranda rights.

The state laid a predicate for introduction of the statement in evidence outside the presence of the jury. Customs agent Kennedy and his party boarded the vessel and assembled the crew, including defendant, on the deck. Although the boarding party was armed, Kennedy testified that he did not believe anyone in his party had drawn his weapon. Although Kennedy had difficulty communicating with the Spanish-speaking crew, he managed to get responses to his inquiries as to where the captain was, from where the vessel was coming, and if the vessel had any papers. Kennedy then asked defendant in Spanish as he pointed to the hatch, “What are you carrying here?” Receiving no response, he repeated the question and asked: “What are you carrying here, Marijuana?” Defendant replied: “Po-quito,” meaning “a little bit” in Spanish. The trial judge found that since the statement was not made during “custodial interrogation,” no Miranda warnings were required. He also found the statement was freely and voluntarily made. Defendant noted his objection.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been . .. deprived of his freedom of action in any significant way.”

When customs agent Kennedy and his party boarded the vessel, they had no reason to believe that the cargo was composed of contraband. They had a right to board the vessel, examine the manifest and other documents and papers and search the vessel and any person thereon. The inquiries made by customs agent Kennedy as he boarded the vessel were made incidental to and in furtherance of this right. The inquiries were investigatory in nature. It was not the type of “custodial interrogation” that requires prior Miranda warnings. The trial judge did not err in permitting the statement in evidence.

Assignment of Error No. 4 is without merit.

DECREE

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

       Judges Frederick S. Ellis, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      . The state also urges that the search was valid under 19 U.S.C. § 1581(a) (1980), which provides:
      Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.
      However, we recognize that no Act of Congress can authorize violations of the Constitution. Almeida-Sanchez v. United States, supra.

      . Customs officers may go on board any vessel at any place in the United States or within the customs waters and examine the manifest and other documents and papers and search the vessel and any person located thereon. 19 U.S.C. § 1581(a) (1980). “Customs waters” is defined as waters within twelve miles of the United States coast. 19 U.S.C. § 1401 (1980); see also United States v. Caraballo, 571 F.2d 975 (5th Cir. 1978).

      . This search would also be valid under 19 U.S.C. § 1581(a) (1980). This statute requires that the vessel be located within “customs waters” and that it crossed into our customs waters from outside. United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976); United States v. Solmes, 527 F.2d 1370 (9th Cir. 1975). For the same reasons set forth in the text above, we find that the requirements were met here.

      .At the time of trial, La.Code Crim.P. art. 703(B) provided that a motion to suppress a confession or inculpatory statement must be filed no later than three judicial days before trial on the merits begins. Defendant filed his motion on Wednesday, February 6, and the trial was on Monday, February 11.


source: Caselaw Access Project

author:
MARCUS, Justice.
     DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Shirley HATHORN.
    No. 80-KA-1701.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Judith Lom-bardino, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Charles R. Jones, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Shirley Hathorn was charged in the same information with four counts of cruelty to juveniles in violation of La.R.S. 14:93. At arraignment, defendant entered pleas of not guilty and not guilty by reason of insanity. After a bench trial, defendant was found guilty as charged and sentenced to serve four years at hard labor on each count, with the sentences to run concurrently. The court suspended execution of the sentences and placed defendant on probation for five years under the conditions of probation of La.Code Crim.P. art. 895, with the specific condition that she receive psychiatric treatment until it is deemed no longer necessary by her physician. On appeal, defendant relies on nine assignments of error for reversal of her convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying her motion for a judgment of acquittal at the close of the state’s evidence. She argues that the state failed to produce sufficient evidence to sustain the convictions, specifically that “unreasonable pain and suffering” was caused to the children.

La.R.S. 14:93 provides in pertinent part:
Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.

The record reflects that on June 29,1979, defendant prepared a breakfast of eggs, grits and juice for her four children: James, age 15; Troy, age 14; Angel, age 12; and Navara, age 11. Defendant ground up into the food a quantity of rat poison which she had purchased on June 23, 1979, with the intent of killing her children with it. Defendant served the food to the children. At one point, defendant told the children that they did not have to eat the food and started to remove it, but the children told her that they were hungry and she allowed them to finish the meal. Defendant then consumed 120 sleeping pills in an attempt to take her own life. Upon her husband’s return home a short time later, defendant informed him of what she had done. She also told each of the children that she had fed them rat poison.

Defendant and the four children were taken to the hospital for treatment. The children were administered a “charcoal-tasting” liquid and a quantity of water to induce vomiting. Each of the children subsequently vomited. The children were also given shots and each child had to have a blood sample taken.

While the children generally testified favorably to their mother by denying that they experienced any pain or suffering as a result of the poisoning or their subsequent hospital treatment, Navara Hathorn did state that he experienced “some pain” in his stomach after eating breakfast and Angel Hathorn admitted that the induced vomiting had hurt her. Both of these children complained of the liquid administered to induce vomiting.

After review of the evidence, we are convinced that defendant’s conduct in feeding rat poison to her children and their subsequent treatment at the hospital caused them unjustifiable pain or suffering. Moreover, the knowledge by these children, who were of ages of understanding, that their mother had attempted to kill them by feeding them rat poison must have adversely affected them psychologically. This is further evidence of unjustifiable pain or suffering. Clearly, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found “unjustifiable pain or suffering” beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hence, the trial judge did not err in denying defendant’s motion for a judgment of acquittal.

Assignment of Error No. 1 ip without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in allowing in evidence certain inculpatory statements made by her to Ms. Lise Le-Blanc. She argues that the statements were not freely and voluntarily made after having been advised of her Miranda rights.

Lise LeBlanc, a caseworker with the Child Protection Center, testified that she had interviewed defendant on June 29, 1979, in the emergency room at the hospital after receiving a referral concerning alleged child abuse. She identified herself to defendant and told her for whom she worked. Defendant freely spoke with her and told her that she had given her children some rat poison and had taken some sleeping pills because of marital problems. Ms. LeBlanc again interviewed defendant on July 3, 1979, in the psychiatric ward at the hospital. She again identified herself and told defendant why she was there. Defendant recounted a history of marital problems and stated that, upon learning that a job transfer she had hoped for had not come through, she had bought sleeping pills with the intent of killing herself and rat poison with the intent of killing the children. Defendant then described how she had put the rat poison in the children’s breakfast and fed it to them. Ms. LeBlanc testified that in neither instance did she threaten, coerce or promise anything to defendant in order to get defendant to speak to her. At the conclusion of the state’s predicate for both statements, the trial judge found that defendant’s statements were free and voluntary.

Before a confession or inculpatory statement can be introduced in evidence, it must be affirmatively shown by the state that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. If the interrogation and subsequent confession are in a non-custodial situation, the only showing which the state must make is whether the confession is free and voluntary, as the Miranda warnings apply only to custodial interrogations. State v. Pittman, 368 So.2d 705 (La.1979).

In the instant case, defendant had not been placed under arrest at the time of her interview with Ms. LeBlanc. Nor was Ms. LeBlanc a law enforcement officer with powers of arrest. Clearly, no Miranda warnings were required, as defendant’s statements were made in a noncustodial situation and defendant was not being subjected to interrogation by a police officer. Moreover, the record affirmatively shows that the noncustodial inculpatory statements were freely and voluntarily made. Hence, the trial judge did not err in admitting the statements in evidence.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying her an opportunity to question Lise LeBlanc as to evidence of prior child abuse on the part of defendant.

During cross-examination, defendant attempted to elicit testimony from Lise Le-Blanc, a caseworker at the Child Protection Center, as to evidence that defendant had previously abused her children. The state objected on the ground that the question was irrelevant. The trial judge sustained the objection.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435; State v. Johnson, 343 So.2d 155 (La.1977). Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441. The trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978).

Clearly, the evidence sought to be introduced by defendant would not have tended to prove or disprove any material issue in this trial. We find no abuse of discretion by the trial judge in determining that the testimony sought to be adduced was irrelevant and thus inadmissible.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in allowing redirect examination of James Hathorn and Lise LeBlanc on matters not covered in cross-examination.

During redirect examination of James Hathorn and Lise LeBlanc, the prosecutrix asked questions of both witnesses to which defendant objected on the ground that the questions were beyond the scope of redirect examination. The trial judge overruled the objection in both instances.

La.R.S. 15:281 provides that redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity to recross on the new matter brought out on the redirect is not denied.

Pretermitting the question of whether the questions asked on redirect were in fact beyond the scope of the cross-examination, we find no abuse of discretion by the trial judge in the instant case in allowing these questions on redirect. In both instances, defendant was allowed the opportunity to recross-examine the witness as to the matters in question.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in refusing to allow Bonnet Randall to read a document into the record.

On direct examination, defense counsel asked Bonnet Randall, a character witness for defendant, to read to the court a document on which the witness’ signature appeared. The document apparently contained a statement attesting to the good character of defendant, signed by the witness and a number of other persons. The prosecutrix objected to the reading of the document. The trial judge sustained the objection.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court as-serter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick, Evidence (Cleary ed. 1972), § 246. Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434; State v. Sheppard, 350 So.2d 615 (La.1977).

The document at issue was written evidence of a statement made out of court, offered to show the truth of the matter asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Accordingly, the content of the document constituted hearsay evidence. Moreover, it was not admissible under one of the exceptions to the hearsay rule. Hence, testimony as to its content was properly excluded by the trial judge as inadmissible hearsay.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in allowing in evidence the testimony of Dr. Edward Schwery. Defendant argues that the witness’ testimony was irrelevant.

At trial, the state called as a rebuttal witness Dr. Edward Schwery, a clinical psychologist, apparently to rebut the testimony of defense witness Dr. Joseph Marnell. Dr. Schwery testified that he had examined defendant on August 29, 1979, two months after the date of the crime (June 29, 1979). Defendant argues that because Dr. Schwery was unable to testify as to defendant’s mental state at the time of the commission of the offense, any testimony concerning defendant’s state of mind two months later would be irrelevant.

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441. The trial judge’s ruling as to the relevance of evidence will not be disturbed absent clear abuse of discretion. State v. Echols, 376 So.2d 1244 (La.1979).

In the instant case, defendant had entered a plea of not guilty and not guilty by reason of insanity. Dr. Marnell testified that in the week following the offense, he had diagnosed defendant as suffering from a depersonalization neurosis at the time of the crime which rendered her unable to tell the difference between right and wrong. Dr. Schwery testified that although he could not describe defendant’s mental state at the time of the offense, he had found defendant to be “essentially normal” and he had found no residuals from depersonalization neurosis in defendant such as he would have expected to find had she indeed been suffering from that disorder two months previously. Clearly, such testimony by a clinical psychologist based on an examination subsequent to the time of the offense was relevant to the issue of defendant’s sanity. We are unable to say that the trial judge abused his discretion in allowing such testimony in evidence.

Assignment of Error No. 6 is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in denying her motion for a new trial in finding that she failed to establish the defense of insanity by a preponderance of the evidence and in finding defendant guilty beyond a reasonable doubt.

At arraignment, defendant entered a plea of “not guilty and not guilty by reason of insanity” as to all counts. At trial, defense witness Dr. Joseph Marnell, a psychiatrist with the Tulane University School of Medicine, testified that he had examined defendant on the date of her admission to Charity Hospital and determined that there was no evidence that she was insane and that she did know right from wrong. Dr. Marnell thereafter saw defendant on a daily basis for a week while she was at the hospital and examined her several times following her release. Dr. Marnell subsequently concluded that at the time of the offense, defendant was suffering from a depersonalization neurosis which rendered her incapable of distinguishing right from wrong.

Dr. Edward Schwery, a clinical psychologist testifying as a state rebuttal witness, stated that he had examined defendant in August of 1979 and found her to be essentially normal with no mental disorder present in her functioning. Dr. Schwery testified that he found no residuals of depersonalization neurosis in defendant and that such residuals would be expected in a person who had suffered that disorder two months previously. He stated that persons suffering from a neurosis might experience anxiety or have difficulty functioning, but “usually are very well in contact with reality,” and that the situation was rare in which a person suffering with neurosis could in fact be insane.

A legal presumption exists that the defendant is sane and responsible for his actions. La.R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La.Code Crim.P. art. 652. If the circumstances indicate that because of a mental disease or mental defect the defendant was incapable of distinguishing between right and wrong with reference to the conduct in question, the defendant shall be exempt from criminal responsibility. La.R.S. 14:14. Defendant argues that she established the affirmative defense of insanity by a preponderance of the evidence and that no rational trier of fact could have found her sane on the evidence in the record.

The only testimony presented by defendant at trial to establish her insanity was that of Dr. Marnell. His testimony taken with that of Dr. Schwery is inconclusive as to whether defendant was in fact suffering a depersonalization neurosis at the time of the offense and whether such a disorder would have rendered her incapable of distinguishing between right and wrong. The testimony of character witnesses for defendant was to the effect that she had never demonstrated any erratic or abnormal behavior in their presence. Defendant described to Ms. Lise LeBlanc and to Dr. Marnell the planning of her suicide and the deaths of her children for a number of days prior to the offense and stated that she had purchased the rat poison six days before the crime with the intent of killing her children with it. Defendant also stated that upon feeding the poison to the children, she had changed her mind and had regrets about what she had done, but allowed the children to eat the poison anyway. She was able to tell her husband exactly what she had done and stated to each of the children that she had fed them rat poison. Her memory of the incident was clear and she had no difficulty in recounting the details of her acts.

Viewing the evidence in the light most favorable to the prosecution, we conclude that defendant did not establish the affirmative defense of insanity by a preponderance of the evidence, and we find that any rational trier of fact could have found defendant guilty beyond a reasonable doubt. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hence, the trial judge did not err in denying defendant’s motion for a new trial.

Assignments of Error Nos. 7 and 8 are without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant urges this court to review the record for error patent on its face. Having done so, we find none. La.Code Crim.P. art. 920(2). Assignment of Error No. 9 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Shirley Hathorn was convicted of four counts of cruelty to juveniles, R.S. 14:93, and was sentenced to four years at hard labor on each count, the sentences to run concurrently. The sentences were suspended under C.Cr.P. 895, with the special condition that she receive psychiatric treatment until deemed no longer necessary by her physician. Additionally, she was placed on a five year probation. She has appealed her convictions and sentences, relying upon eight assignments of error. The children were returned to the custody of defendant. Her first assignment should require reversal of her convictions and sentences.

On June 29, 1979 Mrs. Hathorn served a breakfast of grits and eggs to her four children, aged, fifteen, fourteen, twelve and eleven. The grits contained fragments of-rat poison which had been ground up into pieces. While the children ate, or shortly afterward, the defendant attempted suicide by consuming one hundred twenty sleeping pills. However, she changed her mind and reported to her husband what she had done. The entire family was rushed to Charity Hospital. The children were tested, treated and made to vomit. Mrs. Hathorn spent a week in the psychiatric ward.

Charged with cruelty for the poisoning of her four children, Mrs. Hathorn waived trial by jury, and was tried before the judge alone. Only two factual issues were seriously contested at trial — whether the children suffered and whether the defendant was legally insane, at the time of the commission of the instant offense. Mrs. Hat-horn admitted that she had poisoned the children in an attempt to kill them. Her motive in doing so, according to Dr. Joseph Marnell, her psychiatrist, was to spare them from the misery she had known all her life.

In Assignment of Error No. 1, the defendant contests the trial judge’s denial of her motion for acquittal at the close of the state’s case in chief. C.Cr.P. 778. Specifically, she argues that the state failed to prove that the children experienced “unjustifiable pain or suffering,” an element of the offense of cruelty to juveniles. R.S. 14:93. In evaluating the sufficiency of the evidence used to convict, the inquiry of this court is:

“... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... ” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

See also State v. Harveston, 389 So.2d 63 (La.1980); State v. Guillot, 389 So.2d 68 (La.1980); State v. Morgan, 389 So.2d 364 (La.1980); State v. Williams, 389 So.2d 384 (La.1980).

After viewing the evidence in a light most favorable to the prosecution, I find that no rational trier of fact could have concluded that the state proved pain or suffering beyond a reasonable doubt. Two of the children testified that they experienced neither pain nor suffering; one admitted only slight and transitory pains after, breakfast; the fourth admitted to slight discomfort while vomiting. Only a trace of warfarin, a substance used in some rat poisons, was found in the blood of three of the four children. Warfarin does not cause pain or suffering, but is an anti-coagulant used in treating some circulatory diseases, which, in large doses, will cause a reaction like hemophilia.

In denying the defendant’s motion for acquittal, the trial judge apparently relied upon the state’s argument that, despite their testimony at trial, the children were in pain when blood was drawn and vomiting induced. The record evidence in this case does not support this conclusion. Even if the trial judge discredited the children’s testimony, there is no other evidence establishing that the children underwent either pain or suffering.

Where, as here, “unjustifiable pain and suffering” is an element of the offense, the burden is upon the state to prove beyond a reasonable doubt that pain or suffering occurred. There is no evidence — either direct or circumstantial — upon which a rational trier of fact could base a finding that either pain or suffering occurred because blood was drawn and vomiting induced.

The state’s argument in brief is that the children experienced psychological harm as a consequence of knowing their mother tried to kill them. Cf. State v. Barr, 354 So.2d 1344 (La.1978). The record is devoid of any evidence of psychological harm. By contrast, Dr. Marnell, the defendant’s psychiatrist, testified that he had examined the children and found no significant psychological residuum from the incident.

The evidence adduced at trial does not support the verdict of guilty of violating R.S. 14:93. Nor is the evidence sufficient to sustain a conviction for attempted cruelty to juveniles. Warfarin, the active ingredient in the rat poison, does not itself cause any pain, according to the testimony of Dr. Monroe Samuels, a pathologist who testified for the state. Warfarin is an anti-coagulant, used in treatment of cardiovascular diseases. Additionally, only a trace of warfarin was found in the children’s blood. According to Dr. Samuels, this amount, although detectable, was not even enough to “quantify.” Thus, absent the induced vomiting, there apparently was not enough war-farin ingested to produce any results whatsoever.

The absence of evidence on pain and suffering should require that the convictions be reversed. The state failed to prove essential elements of the offenses charged.

Although the state failed to prove that the defendant’s action constituted cruelty to juveniles, the record evidence before us would be sufficient to sustain a conviction for attempted murder. By her own admission, the defendant specifically intended to kill her children. Additionally, the Criminal Code defines battery as “... the intentional administration of a poison or other noxious liquid or substance to another.” R.S. 14:33. Mrs. Hathorn might have been charged with simple battery, R.S. 14:35, simple assault, R.S. 14:38, or mingling harmful substances, R.S. 14:38.1. Several options were available to the state, but the state chose instead to prosecute the defendant for a crime whose elements were not, and, in all probability, could not have been, proven.

For the foregoing reasons, the convictions and sentences should be reversed, and the case dismissed.

       Judges Edmond L. Guidry, Jr., J. Burton Foret and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defense counsel styled his motion as one for a directed verdict, but under the Code of Criminal Procedure, the proper motion is one for acquittal.

      . No test results were presented at trial on the fourth child. Two tests were run on one of the children, the first indicating traces of warfarin while the second indicating that no warfarin was present in the blood.

      . In State v. Byrd, 385 So.2d 248, 251 (La. 1980), this court announced that, even “[w]hen the evidence does not support a conviction of the crime charged ... the discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict....” The Criminal Code defines attempt as “... a separate but lesser grade of the intended crime....” R.S. 14:27. For this reason, attempt is classified as a responsive verdict by the legislature. C.Cr.P. 815. Therefore, if the record evidence supported a conviction for attempted cruelty to juveniles, this court would order a judgment of conviction for that lesser and included offense.


author: BLANCHE, Justice. LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Jamie HICKS.
    No. 67698.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., Crawford Rose, Asst. Dist. Atty., for plaintiff-appellee.
    Richard Burnes, Alexandria, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Jamie Hicks, was convicted of the second degree murder of Sheldon Clax-ton in violation of R.S. 14:30.1. Defendant filed a motion for a new trial and now appeals from the trial judge’s denial of that motion and from his conviction, raising five assignments of error before this Court. For the following reasons, we affirm the ruling denying the motion for a new trial and affirm the defendant’s conviction.

The evidence adduced at trial shows that on September 16, 1979 at approximately 10:45 p. m., defendant left the Tallulah, Louisiana residence he shared with Ann Spencer in search of Spencer. Spencer had informed defendant she would be home at 10:30 and when she did not return at that time, Hicks left on his bicycle to look for her. He soon found her with Sheldon Clax-ton, a man she had been dating notwithstanding her relationship with defendant. Claxton and Spencer were returning from a grocery store, and Claxton carried a bag of groceries which he had purchased and also held Spencer’s bicycle as they walked down the street. Hicks then confronted the couple and inquired of Spencer concerning her absence from the home. Hicks was armed with a pistol and, according to Hicks, when he first encountered the couple, Claxton reached inside his grocery bag and defendant then pulled his pistol and demanded that Claxton not reach into the bag since defendant did not know what it contained. According to defendant, when he saw tnat Claxton had merely reached for a soft drink, he then placed his pistol in a front pocket of his sweater.

An argument over Hicks’ relationship with Ann Spencer finally erupted into a fight between the two. Both Spencer and Hicks testified that Hicks and Claxton began exchanging blows almost simultaneously. Spencer testified that after the fighting began, the defendant and Claxton were standing close to the side of the street near a ditch when defendant pulled a gun and fired about five shots at Claxton. According to Spencer, Claxton fell to his hands and knees after the shots were fired and defendant tried with his foot to shove Clax-ton’s hands out from under him. Spencer stated that Claxton then grabbed Hicks by the legs, and Hicks began beating Claxton over the head with his pistol. According to defendant Hicks, he pulled his pistol and shot Claxton only after Claxton made two attempts to reach into his pants. Defendant remembers firing his weapon three times. He admits that he tried to knock Claxton’s hands out from under him after the shooting and that he struck Claxton twice over the head after he had grabbed defendant’s legs. After the shooting was over, Hicks testified he felt Claxton’s pockets, and felt a cigarette lighter, a pocket knife, and some change. He then left the scene on his bicycle, but later returned, handing his pistol over to the police who, by that time, had arrived on the scene.

Three witnesses who testified that they were in the area of the shooting at the time it occurred corroborated portions of the above testimony at the trial of defendant. Deborah Frost said she saw defendant fighting with someone, heard shots and saw defendant hitting someone who was in the ditch on the side of the street. Her companion Ronnie Jones testified that he saw Jamie (Hicks) shooting down into the ditch, saw him jump down in the ditch and beat someone with his gun, then heard him shouting to Ann Spencer, “he’s dead, now you don’t need him.” Marie Porter, another witness to the events of that night, stated that she saw Hicks push Claxton into the ditch, shoot him as he came up after Hicks, then jump down and beat Claxton. She also testified that she heard the defendant tell Spencer “he’s dead now”.

Dr. Kermit Walters testified that the victim, Sheldon Claxton, received three gunshot wounds the night in question, one to his scalp, one to his groin, and a fatal shot to his chest. Claxton also had a black eye resulting from a blow dealt with a blunt instrument or a fist. The victim died in a hospital in Vicksburg, Mississippi from the gunshot wound to the chest.

Defendant’s sole defense at trial was that he was acting in self defense when he shot the victim. Hicks testified that he kept his pistol for his own protection and took it with him that night because he though something may have happened to Spencer. His only explanation for pulling the trigger (an action he admitted he intended) was that he saw defendant “going into his pants”. Ann Spencer the center of the controversy, testified that she did not see the victim reach into his pants, although her testimony reveals that she did not witness the entire altercation. Spencer did state that defendant owned a pocket knife and that he had it with him earlier that night. She also said that she had told Jamie at some point before the night of the shooting that Claxton had a .357 Magnum. According to Ann Spencer, Claxton had threatened the defendant about a week or two before the shooting, but Spencer did not explain the content of the threat. Also, Spencer related that Claxton had told her the day before the shooting that “he would like to get a chance to swing on him [Hicks]”. Spencer testified that Claxton did not, to her knowledge, have his pistol with him the night of the shooting and that she did not see him take his pocket knife out of his pants.

At the hearing of defendant’s motion for a new trial, Joanne Claxton testified that she retrieved her brother Sheldon Claxton’s personal effects from the hospital in Vicksburg, Mississippi where Claxton died from the gunshot wounds inflicted by defendant Hicks. She was given Claxton’s wallet, a set of keys, some change and a pocket knife. Ann Spencer testified at the hearing that Joanne Claxton told her that the above items of Claxton’s had been turned over to her.

Assignment of Error Number 1

Defendant first contends that the trial judge erred in denying his motion for a new trial in view of the fact that the prosecution incorrectly responded to an inquiry defendant made in his application for a bill of particulars. In that application, defendant posed the following question to the state: “What, if any, dangerous1 weapon or instrument was found on the victim at the scene of the crime during the commission of the alleged crime or during the investiga tion of the crime charged.” The state responded: “No dangerous weapon of any type was found upon the victim.” Defendant argues that this response was incorrect and that the state was thereby withholding evidence favorable to the accused and denying defendant due process of law in violation of the rule set out by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). The evidence does not support defendant’s contention that the state denied him Brady material. A fair inference from the evidence is that defendant knew as much or more about the knife as the state. In any event, any “withheld” evidence did not create a reasonable doubt as to defendant’s guilt, and defendant was not denied a fair trial.

At trial, the defendant testified that after shooting Claxton, he felt the deceased’s pockets and determined that there was a knife, a cigarette lighter and some change in his pockets. Ann Spencer also testified at trial that the deceased had a knife in his possession earlier that evening. Spencer not only gave this testimony at trial but the defense elicited the same information from her as early as the preliminary hearing.

At the hearing on the motion for a new trial, the deceased’s sister, Joanne Claxton, testified for the first time. She stated that she went to the hospital where her brother died and received her brother’s personal belongings. Among the items given to her was a folding pocket knife. There is some indication that a member of the Tallulah police force may have known that a pocket knife had been recovered from the victim’s body since Joanne Claxton stated at the hearing that “uh, Wilmore was with me” when she received her brother’s personal effects. The record of the hearing does not reveal any clue as to the identity of “Wil-more”, but the record at trial shows that an Officer Ernest Wilmore of the Tallulah Police participated in the investigation of the shooting at issue and testified at defendant’s trial. At defendant’s trial, Officer Buddy Cupit, another of the investigating officers, testified that no one searched the shooting victim at the scene because he was seriously wounded.

The state insists that it was not aware of the existence of the pocket knife at the time the defense requested whether a dangerous weapon was found on Claxton. The state maintains that the knife was never in its possession and that it became aware of the existence of the knife at the preliminary examination when the defense elicited testimony from Ann Spencer concerning the knife. The defense alleges that the testimony adduced at the hearing of the motion for a new trial shows that a dangerous weapon was found on the victim and that the state denied defendant Brady material when it stated to them that no dangerous weapon was found on the victim.

It was not conclusively established that the state’s response to defendant’s request was inaccurate. In addition to this pertinent lack of knowledge of the knife’s existence by the state, it is further unknown whether the knife possessed such qualities as to qualify as a dangerous weapon. The pocket knife was never produced at the hearing on the motion for new trial, although the victim’s sister testified it was still in her possession. The defense did not otherwise attempt to prove that the knife was a dangerous weapon. Nevertheless, even if it is assumed that all knives are dangerous weapons, the state’s response could be construed as a truthful one because to the best of its knowledge no knife was found by the state or any of its agents at the scene of the crime or during the investigation.

According to Brady, supra, “. .. the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution . .. ”. The test for materiality, for purposes of Brady, is whether the omitted evidence creates a reasonable doubt that does not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Falkins, 356 So.2d 415 (La.1978).

Considering the evidence at trial, even assuming that the state is guilty of withholding evidence favorable to the accused, we fail to see how this fact deprived the defendant of a fair trial. An admission by the state that a pocketknife had been recovered on the body of the victim, or the production of the knife itself would not, in our view, have created a reasonable doubt as to defendant’s guilt in light of the great weight of evidence against this defendant. Hicks himself testified that he shot Claxton after he made two attempts to reach into his pants. At no point did defendant testify that he had any knowledge that the victim had a weapon in his possession that night or that he saw any weapon in the victim’s possession. The fact that the victim did have a pocket knife would do little to bolster defendant’s self defense argument since defendant was apparently unaware of that fact and only observed the victim reaching toward his pocket. It is also significant that the state did not at any juncture throughout the trial deny that the victim Sheldon Claxton may have had a pocket knife in his possession the night of the incident. The state argued only that, even accepting defendant’s contention that Claxton reached for his pocket, such an action did not justify the defendant in responding with gunfire. The introduction of a knife or the admission that a knife was found on the victim would not, therefore, have altered the strength of the state’s case against the defendant.

We find it significant that prior to trial the defense was alerted to the existence of the knife from testimony elicited by defendant at the preliminary hearing. Nevertheless, defendant apparently made no attempt to secure the knife despite his knowledge of testimony that a knife existed. The state denies that it knew about the knife at the time defendant requested information concerning any dangerous weapons found on the victim, and it occurs to us that when allegedly exculpatory information becomes equally available to the defense at the time it becomes available to the state, the defendant should not be entitled to complain that the state failed to reveal the evidence to the defense.

In any event, any nondisclosure in this case did not, in our opinion, deprive defendant of a fair trial and the reversal of a conviction under Brady is not called for unless the omission of the undisclosed evidence deprived defendant of his constitutional right to a fair trial. State v. Falkins, supra.

This assignment is without merit.

Assignment of Error Number 2

In defendant’s second assignment of error, he argues that the trial judge incorrectly instructed the jury just after the voir dire examination when he gave a preliminary statement of the law, including a detailed definition of second degree murder (the crime with which defendant was charged), but omitting any definition of or reference to manslaughter (a responsive verdict to a charge of second degree murder). Defendant feels that had the judge instructed the jury at that point on the crime of manslaughter, the jury might have been more likely to render a verdict of guilty of manslaughter as opposed to second degree murder. We are not aware of any requirement that the trial judge must inform the jury of responsive verdicts to the crime charged in his preliminary remarks. The jury was well aware that it could have returned a verdict of manslaughter. In closing argument this was brought to their attention by the state, and in the judge’s instructions, the charge was again offered and the crime of manslaughter was carefully defined and explained. In addition to there being no merit to this assignment of error, the defendant did not object to the trial judge’s instructions and cannot raise any alleged error in those instructions on appeal. State v. Mitchell, 319 So.2d 357 (La.1975); C.Cr.P. art. 841.

This, assignment is without merit.

Assignment of Error Number 3

Defendant next argues that the state did not carry its burden of proof that the homicide was not committed in self defense. The defense asserts that the state failed to carry their burden of proof because the scales which measure the burden of proof were materially affected and placed in imbalance by three factors.

The defense again argues the significance of the failure of the state to introduce the pocket knife or any evidence concerning the knife. We have dealt with this argument in discussing defendant’s first assignment of error. We again observe that the jury heard evidence concerning the knife, and its production would not have created a reasonable doubt that otherwise did not exist in light of the great weight of the evidence against him.

Defendant secondly contends that witness Ann Spencer felt that she was under pressure from the district attorney’s office to testify in a particular manner. Apparently, the defense is arguing that the district attorney prompted Ms. Spencer to testify that the defendant was standing over the victim while the victim was in the ditch, and was firing down on him. The defense feels that this view of the facts was aimed at bolstering the state’s contention that the shooting was not in self defense. There is no evidence that witness Ann Spencer was intimidated by the district attorney’s office, or that she testified to anything other than the truth. At the hearing on the motion for new trial, Spencer testified that the district attorney told her “if I didn’t tell the truth, I could go see my mother and my three children that night because I wouldn’t see them no more.” Defendant’s contention has no merit since this witness testified that the victim was shot standing up, not while he was down in the ditch, and since she repeatedly specified that she told the truth at trial as to what she saw on the night in question.

Finally, defendant asserts that the prosecution misstated that it was the defense’s burden to prove self defense in this case. Defendant’s contention that the state failed to prove lack of justification because the state advised the jury that the burden of proving self defense was on the defense is also without merit. It is true that in a homicide prosecution where the defendant asserts the defense of self defense, the state must prove beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated in self defense. State v. Patterson, 295 So.2d 792 (La.1974). We feel that the state has met this burden of proof. (See discussion in Assignment of Error Number 4, below.) Defendant points to the following statement by the prosecution in closing argument as wrongfully shifting that burden of proof: “Now, he also had to show us, assume that he could have shown that, he would have to show that a killing is necessary to save himself from that danger.” Defendant did not object to this statement at trial and its propriety cannot, consequently, be raised before this Court for the first time on appeal. State v. Carthan, 377 So.2d 308 (La.1979); C.Cr.P. art. 841.

We find no merit in this argument even if it were before us. When taken in context, the state was merely arguing in the statement at issue in closing argument that the facts did not indicate self defense. Furthermore, the jury was specifically instructed, prior to retiring to consider the evidence in the case, that it was the state’s burden to prove beyond a reasonable doubt that defendant did not fire the shots in self defense that led to the victim’s death.

Assignment of Error Number 4

Defendant raises the argument here that a new trial should have been granted to defendant under C.Cr.P. art. 851(1) on the grounds that the verdict is contrary to the law and evidence, and under art. 851(5) on the grounds that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal rights. In support of these contentions, defendant adopts his arguments under Assignment of Error Number 3 (discussed above). He further argues that if this Court finds that the alleged errors defendant complains of above and below do not individually entitle him to a new trial they should cumulatively mandate that the court grant him a new trial. Finally, defendant argues that he was deprived of effective assistance of counsel at trial (defendant was represented by an attorney from the Indigent Defender Office at trial, and retained different counsel for appeal). Defendant contends that trial counsel was ineffective as defendant filed his own “legal work” in court as the basis for the only assignment of error in defendant’s motion for a new trial.

We hold that the verdict of guilty of second degree murder is clearly supported by the evidence in this case. In reviewing a case to determine whether the evidence supports a conviction, this Court examines the record to determine if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 389 So.2d 384 (La.1980). The defendant admitted that he intended to pull the trigger to shoot the victim Sheldon Claxton and several witnesses testified that they observed the shooting. Ann Spencer testified that the victim was standing close to the defendant when defendant fired several shots in his direction. The victim subsequently died of the gunshot wounds. A rational trier of fact could certainly have found from this evidence that the defendant had a specific intent to kill or commit great bodily harm and that the state has proven these essential elements of the crime of second degree murder beyond a reasonable doubt. Also, the evidence shows that defendant shot a victim who had not attacked him with any weapon. A rational trier of fact could have found, beyond a reasonable doubt, that based on this evidence the defendant did not kill the victim in self defense.

We reject defendant’s argument that a cumulation of errors in the trial below entitles him to a new trial so that the “ends of justice may be served”. As noted herein, we have found no such “cumulation” in the trial below. Further, this Court has held that although a trial judge may grant a new trial on the ground that the ends of justice would thereby be served, a denial of a request for a new trial on this ground presents nothing for appellate review. State v. Matthews, 354 So.2d 552 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977).

We will not address defendant’s argument on appeal regarding ineffective assistance of counsel. A claim of ineffective assistance of counsel is more properly raised by application for a writ of habeas corpus in district court where a full evidentiary hearing may be conducted. State v. Deloch, 380 So.2d 67 (La.1980).

Assignment of Error Number 5

Defendant finally contends that his conviction should be reversed because the district attorney expressed his personal beliefs and personal opinions in closing argument. Defendant attacks the following statements of the prosecutor in closing argument:

“I can’t believe Jamie Hicks when he says he pulled the gun out and fired in rapid succession.”
“I don’t believe that Jamie Hicks thought he was in imminent danger of losing his life from his own testimony or receiving bodily harm.”
“Now, I believe that Jamie Hicks may have lost his head. He may have been in heat of blood, but he wouldn't say it on the stand.”

Defendant did not object at trial to these statements of the prosecutor and he cannot argue their propriety for the first time on appeal. State v. Carthan, 377 So.2d 308 (La.1979); C.Cr.P. art. 841. The facts do not present a case where a prosecutor’s prejudicial comments in closing argument may be considered to violate federal due process even in the absence of a defense challenge or objection at trial. See State v. Hayes, 364 So.2d 923 (La.1978).

We believe that these statements would not constitute reversible error even should this argument have been properly before this Court. As this Court stated in State v. Procell, 365 So.2d 1484 (La.1978):

“Although it is generally considered erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor’s belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record.”

The prosecutor’s remarks do appear to be based upon evidence adduced at trial and there is no implication that they are based on his personal knowledge of facts outside of the record. Further, a verdict will not be overturned on the basis of improper argument unless the court is thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Crumholt, 357 So.2d 526 (La.1978). We do not find this to be the case here.

For the above reasons, we affirm the lower court ruling on defendant’s motion for a new trial, and affirm defendant’s conviction.

CALOGERO, J., dissents for reasons assigned by Dennis, J.

DENNIS, J., dissents with reasons.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Disclosure to the jury of the fact that a knife was found in the victim’s pocket would arguably have enhanced defendant’s credibility. Nevertheless, disclosure of that fact to the jury would not have served to justify defendant’s conduct, which the jury evidently found to be unreasonable under the circumstances.

As to defendant’s argument that the proper standard of materiality in the case of a specific request for relevant evidence is “whether the suppressed evidence might have affected the outcome of the trial”, the applicable standard depends on the totality of the facts and circumstances in each case. State v. Sylvester, 388 So.2d 1155 (La.1980). But even if the lower standard of materiality is applicable, the jury’s decision not to find defendant guilty of manslaughter on the basis of his conduct would not likely have been affected by disclosure of this particular fact.

I concur in the result.

DENNIS, Justice,

dissenting.

To the defendant’s question, “What, if any, dangerous weapon or instrument was found on the victim at the scene of the crime, during the commission of the alleged crime or during the investigation of the crime charged?” the State responded, “No dangerous weapon of any type was found upon the victim.” Just as in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendant in this case made a specific request for relevant evidence. The applicable standard for determining whether the defendant should be entitled to a new trial in this context is whether “the suppressed evidence might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976) [emphasis added]. The majority mistakenly applies the standard of materiality applicable in the context of a general request for exculpatory evidence or where no request by the defendant was made, that is, whether “the omitted evidence creates a reasonable doubt that did not otherwise exist.” United States v. Agurs, supra, at 112, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. Thus, the majority’s statement that “An admission by the state that a pocket knife had been recovered on the body of the victim, or the production of the knife itself would not, in our view, have created a reasonable doubt as to defendant’s guilt” does not accord the defendant the review to which he is entitled.

I dissent not only from the standard of materiality applied, but from the manner in which the majority proceeds to find that the defendant was not prejudiced by the State’s nondisclosure. The majority fails to appreciate sufficiently the impact the introduction of the knife might have had in increasing the credibility of both Hicks and Spencer. Although there were other eyewitnesses to all or part of the shooting incident, none were close enough to testify how and why the argument and shooting occurred. The verdict reached by eleven of the twelve jurors finding the defendant guilty of second degree murder must then in large part reflect their reluctance to give the testimony of the defendant and his girlfriend much weight. Thus, the defendant was prejudiced to the extent that the admission of the knife would have increased the credibility of Spencer and himself and inclined the jury more favorably toward him as to acquittal or a lesser verdict. Even if a self-defense claim is unsuccessful, an “imperfect” right of self-defense, if shown, may lead the jury to determine that manslaughter, not murder, carries the appropriate punishment. See, W. LaFave and A. Scott, Criminal Law 583-84 (1972). Brady is violated not only when the favorable evidence that was suppressed is material to the defendant’s guilt, but when the evidence is material to punishment and would tend to reduce the penalty imposed. Brady v. Maryland, supra, at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218-19. Even the prosecutor in his closing argument reminded the jury that it could consider manslaughter in all fairness. In Agurs, the United States Supreme Court opined that non-disclosure in response to a specific relevant request would seldom, if ever, be excusable. United States v. Agurs, supra, at 106, 96 S.Ct. at 2399, 49 L.Ed.2d at 351. I do not feel that the majority has shown that this is one of those few cases in which the non-disclosure should be excused, rather I agree with the defendant that the suppressed evidence might have affected the outcome of the trial.

In State v. Woodruff, 281 So.2d 95 (La. 1973), this Court reversed the defendant’s conviction because of the trial court’s refusal to order the production of information regarding the presence of a dangerous weapon found on the victim’s body. Just as in the instant case, the defendant relied solely on his claim of self-defense. Several witnesses testified that they saw a gun on the floor near the victim’s body just after the shooting, but none saw a gun prior to or at the time of the shooting. Also similar to the facts in this case, there was some testimony that the victim reached into his pocket just prior to the shooting. Woodruff, supra, at 97. While the prosecution disclosed the existence of the gun at trial, this Court found that such disclosure did not “adequately compensate for the defense’s lack of opportunity to construct its defense of self-defense on the bases of those facts.” Id.

The State argues that the prosecutor did not know that a knife had been found on the victim when he answered the defendant’s request. Neither does the defendant allege any intentional suppression or misconduct on the prosecutor’s part. However, moral culpability of the prosecutor is not the focus of the inquiry to determine if a Brady violation has occurred: it is the character of the evidence, not the character of the prosecutor which is critical. United States v. Agurs, supra, 427 U.S. at 110, 96 S.Ct. at 2400-01, 49 L.Ed.2d at 353. At some point well before trial, the prosecutor knew or should have known that a knife was recovered from the victim’s body in the presence of a police officer and that his earlier response was incorrect. See Martinez v. Wainwright, 621 F.2d 184, 187 (5th Cir. 1980) (“That the prosecutor was personally unaware of the existence of the rap sheet does not excuse his misrepresentation to the trial court that a rap sheet was unavailable”); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964) (“And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure.”) There is a continuing statutory and constitutional duty to disclose exculpatory evidence particularly when specifically requested. La.C.Cr.P. art. 729.3; United States v. Agurs, supra, 427 U.S. at 117, 96 S.Ct. at 2404, 49 L.Ed.2d at 357 (Marshall, J., dissenting). Thus, it was incumbent on the prosecutor to supplement his earlier incorrect response.

The State also argues that the defendant knew of the existence of the knife at least after the preliminary hearing at which Ann Spencer testified that the victim had been armed earlier that evening. It follows then, according to the State, that the defendant had in his power the ability to cure any possible prejudice caused by the State’s nondisclosure. I do not find this to be the case.

Spencer’s testimony at the preliminary hearing did not reveal that a knife had been recovered from the victim’s body. The defendant had believed that the victim was armed since the night of the shooting. Spencer’s testimony only supported that belief. Nothing in the record indicates that the defendant was aware that a knife was recovered from the victim and was available for admission at trial before the hearing on the motion for a new trial. Indeed, in light of the State’s response, there was no reason for him to persist in further independent investigatory efforts.

A defendant cannot complain that he did not receive a fair trial because of the State’s nondisclosure if through diligence he could have cured any attendant prejudice. See State v. Roussel, 381 So.2d 796 (La. 1980). But in light of State’s response, the meager investigatory resources available to this indigent defendant, and his incarceration at the time, I believe his actions did not fall below this standard of diligence.

For the reasons outlined above, I respectfully dissent.


author: WATSON, Justice.

text:
    HAUSERMAN, INC. v. ROUSSEL-HART GENERAL CONTRACTORS, etc., et al.
    No. 80-C-1800.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.
    Frank P. Simoneaux, Claude F. Reynaud, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-applicant.
    George K. Anding, Jr., Watson, Blanche, Wilson & Posner, David S. Bell, Bell, Faller & West, John H. Fetzer, III, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

This is a suit by the plaintiff subcontractor, Hauserman, Inc., against a general contractor and its surety in connection with a public works contract. The question is whether the suit has prescribed because filed more than one year after acceptance of the job by the State of Louisiana.

On May 9, 1975, Roussel-Hart General Contractors and the State of Louisiana, through the Louisiana Health and Human Resources Administration, contracted for $2,871,000 in additions and renovations to the Earl K. Long Memorial Hospital in Baton Rouge. Roussel-Hart’s surety on its performance bond was Fidelity & Deposit Company of Maryland. Subsequently, on May 12, 1975, Roussel-Hart entered into a $103,852 written subcontract with Hauser-man for the casework (cabinet work) portion of the contract. Hauserman in turn subcontracted the installation of the casework to L. J. Voohries & Associates.

The State of Louisiana accepted the hospital job on May 17, 1977, and the acceptance was recorded on May 27. A portion of the casework was uncompleted because Vo-ohries had defaulted. Ray Baggs, an installation superintendent for Hauserman, testified that he contacted Roussel-Hart on November 16,1977, about what was needed to complete Hauserman’s obligation. Mr. Roussel then met Baggs in the lobby of the hospital and showed him what was required. Hauserman installed what was missing and repaired everything on the State’s punch list. The work was completed on April 4, 1978. According to George W. Roussel, managing partner of Roussel-Hart, he was broke by that time and unable to pay Hauserman.

On November 29, 1978, Hauserman filed this suit against Roussel-Hart and its surety for the $17,181.30 balance due on its subcontract. The surety’s exception of prescription was maintained by the trial court on the basis of LSA-R.S. 38:2247. The Court of Appeal affirmed. Hauserman, Inc. v. Roussel-Hart Gen. Con., 385 So.2d 455 (La. App. 1 Cir. 1980). At the behest of Hauserman, Inc., a writ was granted to review the judgment. 393 So.2d 735 (La., 1980).

The trial and appellate courts erred in applying the one year prescriptive period of LSA-R.S. 38:2247 to Hauserman’s claim. The statute is contained in Part III of the chapter on public contracts, which concerns “Claims of Materialmen and Laborers on Public Works”. A mere supplier of material, such as cement, comes within the purview of LSA-R.S. 38:2247. Marquette Cement Manufacturing Co. v. Normand, 249 La. 1027, 192 So.2d 552 (1966). However, a subcontractor is not a materialman. Jesse F. Heard & Sons v. Southwest Steel Products, 124 So.2d 211 (La.App. 2 Cir. 1960) writ denied; noted at 21 La.L. Rev. 846. “[T]he test should be whether or not the person furnishing the material thereafter performed any labor in attaching to or incorporating the materials into the building or improvements... . ” Jesse F. Heard & Sons, supra, 124 So.2d 220. Hauserman is neither a materialman nor a laborer but a subcontractor which performed a unitary portion of the primary contract. Gifford Hill & Company v. Harper, 262 So.2d 842 (La.App. 2 Cir. 1972). A general contractor and his surety’s liability to a subcontractor on a public works contract is governed by the general prescriptive period in Part I of the chapter on public works. LSA-R.S. 38:2189. At the time of this contract, that period was three years. State Ex Rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La., 1976). Hauserman’s claim is subject to the three year prescriptive period of LSA-R.S. 38:2189.

For the foregoing reasons, the judgment maintaining the exception of prescription on the part of Fidelity & Deposit Company of Maryland is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . “The Subcontractor shall furnish all labor, material, equipment and services, and perform and complete all CASEWORK — SECTION 33 required for the construction of additions and renovations to EARL K. LONG MEMORIAL HOSPITAL....”

      . LSA-R.S. 38:2247 provides:
      “Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond which shall accrue at any time after maturity of his claim, which said action mus.t be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any person having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall record his claim as provided in R.S. 38:2242 or give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner of the work or notice by the owner of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.”

      . LSA-R.S. 38:2189 provided:
      “Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor unless otherwise limited in this said chapter.”
      [This provision applies to all contracts entered into before September 12, 1975, the effective date of Act 250 of 1975. This contract date was May 12, 1975.]


author:
ELLIS, Justice ad hoc.
     DIXON, Chief Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Northell THOMAS, Jr.
    No. 67642.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Terry Lindsey, Asst. Dist. Atty., for plaintiff-appellee.
    Stephen A. Glassell, Whitmeyer & Glas-sell, Shreveport, for defendant-appellant.
   ELLIS, Justice ad hoc.

Northell Thomas, Jr., was charged by bill of information with two counts of simple robbery: first, that on June 12, 1979, he robbed Mrs. Geneva H. Phillips and second, that on March 8, 1979, he robbed Mrs. Beverly J. Reagan. Thomas waived trial by jury, and was tried by the judge alone. He was found guilty on both counts, and sentenced to serve seven years at hard labor on the first and six years at hard labor on the second count, to run consecutively. He has appealed both his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Prior to the trial, the defendant filed a motion to suppress the line-up identification of the defendant. In brief he alleges that the evidence at the hearing on the motion shows that the manner in which the line-up was conducted rendered his identification impermissively suggestive, which tainted the identification of defendant at the trial. Defendant does not point out any particular in which the manner in which the line-up was conducted was improper. We have carefully reviewed the record, and find no impropriety in the conduct of the line-up. The assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, and 4

Defendant filed a pre-trial motion to quash and a motion to sever the charges against him, which were denied. Before the trial began, he moved for a severance of the two counts, and the motion was denied. After the presentation of the evidence on count no. one, defendant moved once again for a severance, and the motion was denied.

Article 495.1 of the Code of Criminal Procedure reads as follows:

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

In State v. Washington, 386 So.2d 1368 (La. 1980) this court found that, in amending Article 495.1 to read as above, the legislature intended to adopt the federal rule on severance, one more flexible than that which formerly pertained in Louisiana. After reviewing the federal jurisprudence, it was announced that, among the criteria for judging when prejudice might arise from joinder, were those expressed in State v. Carter, 352 So.2d 607 (La. 1977), but that the amendment to Article 495.1 permitted more flexibility in fashioning relief therefrom. We further noted:

“Thus, where the parties and the judge through an orderly presentation of the evidence and careful and precise instructions, limit the possible prejudice brought about by joinder, severance may not be mandatory.”

In this case, we need not consider if the Carter criteria for severance have been present. The evidence of the two crimes charged herein was simple and distinct, and, since the case was tried before a judge alone, there was no danger that the evidence in the two crimes was cumulated to the prejudice of the defendant. We therefore find no error in the rulings of the trial judge denying severance of the charges against defendant.

ASSIGNMENT OF ERROR NO. 5

After the State had presented its evidence on count no. one, defendant moved to be permitted to present his defense to that count before the State presented its evidence on count no. two. The motion was denied. Article 765 of the Code of Criminal Procedure prescribes the order of trial. We find no authority for varying the prescribed order, and defendant has cited none to us. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 7

Defendant was sentenced to serve seven years at hard labor on count no. one and six years at hard labor on count no. two, with the sentences to run consecutively. Simple robbery is punishable by imprisonment with or without hard labor for not more than seven years. Defendant alleges that the sentence is excessive under Article 1, Section 20 of the Constitution of 1974, citing State v. Sepulvado, 367 So.2d 762 (La. 1979). It is argued that defendant was 20 years old when the offenses were committed, and had no prior felony convictions, and that the imposition of the maximum sentence in one case, and six years in the other, to run consecutively, was excessive.

The trial judge articulated his reasons for the sentence imposed, as required by Article 894.1 of the Code of Criminal Procedure. He said:

“The offenses in this case are extremely serious. You apparently contemplated some harm to the victims, in fact, frankly committed some harm to the victims. Particularly in the first case.
“Any lesser sentence than incarceration would deprecate the seriousness of the offense. I see no provation or excuse except that you wanted the money.
“Neither offense was induced by the victim. Because of the nature of the offense and the way it was committed, I think it’s likely to reoccur.
“I’m aware of the fact that since the date of your arrest, you’ve been out on bond for a long period of time and have not committed any other offense. I’ve considered all that.
* * * * * *
“I note you had a previous traffic offense, and — careless and reckless driving, no drivers license—
* * * * * *
“You were fined $341.00 and alternatively a jail term — I can’t read it, and 75 days in jail, which was suspended.
“And you also got a suspended sentence for trespassing in the past.
“I understand you’re not married and your last job was about three weeks previous to your arrest. Do you have anything else that you wish me to consider in mitigation.”

The defendant had nothing to say in mitigation of his sentence other than to question the actions of the police and the ability and integrity of his attorney. None of the grounds which, under Article 894.1 B, should be accorded weight by the sentencing judge in determining the propriety of suspension of sentence or probation appear to be present in this case. The trial judge is given wide discretion in the imposition of sentence, and his determination will not be disturbed in the absence of manifest abuse of that discretion. State v. Sepulvado, supra; State v. Spencer, 374 So.2d 1195 (La. 1979). Under the circumstances of this case, we find no abuse of that discretion.

The conviction and sentence are therefore affirmed.

DIXON, C. J., concurs with reasons.

LEMMON, J., concurs and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur, believing the denial of the severance to be harmless because of strong evidence in each robbery in this trial before a judge alone.

LEMMON, Justice,

concurring.

This was a bench trial. Therefore, the inquiry of whether evidence of the two crimes would have been respectively admissible in separate trials is not as critical as in a jury trial, where severance would have meant evidence of each crime would have been heard by separate juries. Here, the trial judge could have granted the severance, heard the evidence of the first crime, pronounced judgment, and then proceeded immediately to hear the evidence of the second crime. Under that permissible procedure, in which the trial judge (in the trial of the first offense) would have been aware of the charge and of some of the evidence (revealed at pretrial hearings before the judge) pertaining to the second offense, the prejudicial effect would not have been appreciably less than it was in the procedure employed.

I therefore conclude that denial of the severance did not present an abuse of discretion.

As to the sentence, the Legislature (shortly after the two offenses in this case) classified purse snatching as a separate and more serious crime. See R.S. 14:65.1. While defendant could not have been charged with purse snatching, the trial judge could properly have considered the subsequent legislative determination as to the seriousness of the offense.

       Judges Ellis, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.


author: CHIASSON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Donald Ray BELL.
    No. 80-K-2151.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      Alton T. Moran, Public Defender, M. Michele Fournet, Asst. Public Defender, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   CHIASSON, Justice Ad Hoc.

On application of defendant, Donald Ray Bell, we granted a writ of certiorari to review the decision of the trial court overruling his motions to suppress the physical evidence and the confession obtained from him. Finding no merit in his contentions, we affirm the judgment of the trial court.

In the early morning hours of Tuesday, November 13, 1979, Ted Belton left his home in East Baton Rouge Parish for his job in Morgan City. He returned from Morgan City on the following Saturday, the 17th of November. Upon arriving home, he noticed that the back door to his home had been broken open; two watches and a large amount of change were missing. He called the police and reported the incident. Officer James E. Moore of the East Baton Rouge Parish Sheriff’s Office was dispatched to the scene to investigate. Upon arrival, Moore spoke to Belton and Belton’s neighbor. While so engaged, defendant Donald Ray Bell and another youth walked by. Belton’s neighbor stated that Bell had been sitting on Belton’s step while he was gone. In addition, she pointed out the wrist watch that Bell was wearing, stating that he never wore a watch before.

Upon hearing this information, Officer Moore instructed fellow officer Richard Farrell to locate and return the pair to the scene. Farrell found the pair at Mae’s Cafe, a local establishment. Although not formally placing them under arrest, Farrell noticed a watch on Bell’s arm and transported the two back to Belton’s residence.

Belton identified the watch on Bell’s arm as being his own. He recognized the make (Timex), the band, and the rattle it made when it was shaken. At this point, Officer Moore placed the defendant under formal arrest. The wrist watch was taken from the defendant as evidence. The pair was transported to the sheriff’s substation where Bell made a statement confessing to the break-in and theft.

The defendant was subsequently charged, presumably with simple burglary and theft, violations of La.R.S. 14:62 and 14:67. Defendant filed and argued motions to suppress the watch and the statement but both motions were denied by the trial court. The matter is now before this Court on a writ taken by defendant seeking review of these rulings.

Bell complains in two assignments that the trial court erred in denying the motions to suppress the evidence and the confession. Defendant argues that the watch was seized incident to an arrest for which there was no probable cause and that the confession was obtained by exploitation of that initial illegality.

“Arrest” is defined by La.C.Cr.P. art. 201 as follows:

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

Furthermore, “(i)t is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made.” State v. Tomasetti, 381 So.2d 420, pg. 423 (La.1980).

A warrantless arrest must be based on probable cause. State v. Thomas, 349 So.2d 270 (La.1977).

In State v. Collins, 378 So.2d 928, pg. 930 (La.1979), this Court sets out the applicable standard for testing probable cause to arrest as follows:

“Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the officer does not need sufficient proof to convict. State v. Randolph, 337 So.2d 498 (La.1976).
“One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. In many cases the police do not know that a crime has been committed. When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed. State v. Johnson, supra.(See also State v. Mosley, 390 So.2d 1302 (La.1980), No. 67,562).

In the present case, the state and defendant disagree about the timing of the instant arrest. The state claims that the defendant was arrested after Belton recognized the watch on defendant’s wrist as his own. Certainly an arrest at that point was supported by probable cause; defendant was observed wearing a watch identified by the victim as stolen in a recent burglary. Were the watch seized pursuant to that arrest, it would clearly be admissible at trial.

Defendant contends, on the other hand, that he was placed under arrest by Officer Farrell at Mae’s Cafe. It is fairly clear that Farrell did not have probable cause to arrest the defendant at that time. He knew only that Officer Moore was investigating a burglary and theft and that he wanted to talk with these two fellows. It must be determined whether Officer Farrell’s action at the cafe amounted to an arrest.

Officer Farrell testified that he found the defendant and his companion sitting at a table in Mae’s Cafe. He approached them and requested that they return with him to the scene of the offense. The pair were uncooperative and did not want to go. Farrell explained that all that he wanted to do was to bring them back to the scene to talk with Officer Moore and the complainant. The two then changed their minds and agreed to go along.

Defendant’s testimony reveals a different version. Bell testified that as he and his friend sat in Mae’s, a uniformed officer entered and stated that he wanted the two to come outside. He contends the officer ordered them up against the wall and examined the watch on Bell’s wrist. He ordered them into the car. Bell indicates that he did not feel free to leave the officer’s company.

The trial court must have concluded that there was not an arrest at this point and that the two companions voluntarily went with the officer. The trial court’s conclusion is not unsupported by the record and we therefore affirm his determination that there was no arrest at the cafe.

It was not until the victim, Mr. Belton, identified the watch on Bell’s wrist at his house that the two, including the defendant, were placed under arrest. The officer took the watch as evidence following the arrest. We find that the seizure of this watch was pursuant to a lawful arrest and therefore is admissible as evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

After the arrest, the defendant was taken to the sheriff’s substation where Officers Moore, Doty and Johnson were involved in or witnessed the interview whereby the defendant confessed to the offense. All three officers testified that the defendant was advised of his rights and that he was not coerced into making the statement.

Bell contends that he was beaten and thrown against a wall and ordered to tell the officers what he did. He further claims that due to his illiteracy, he was unable to read the statement which bears his signature. He also claims that he had requested a lawyer at the substation, but one was not provided nor did the officers halt their interrogation.

Before what purports to be a confession can be introduced in evidence, it must be shown that it was free and voluntary, and not made under the influence of fear, duress, or intimidation. La.R.S. 15:451. In accordance with Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), a confession obtained as a direct result of an arrest without probable cause should be suppressed. State v. Edwards, 375 So.2d 1365 (La.1979); State v. Giovanni, 375 So.2d 1360 (La.1979); State v. Scott, 355 So.2d 231 (La.1977).

The trial court obviously disbelieved the version presented by the defendant and found credible the testimony of Officers Farrell, Moore, Doty and Johnson. When there is conflicting testimony as to a factual matter such as this, the question of credibility of the witnesses is within the sound discretion of the trier of facts. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Hudson, 361 So.2d 858 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977). Here the trial court found the testimony of the police officers credible on both issues; the defendant willingly accompanied Officer Farrell to the scene of the offense where he was arrested only after the victim identified his watch on the defendant’s wrist, and only then was the watch seized; the defendant voluntarily confessed after an intelligent waiver of his rights.

As the trial court’s findings are not clearly unsupported by the evidence, we affirm its holdings.

The assignments are without merit.

AFFIRMED.

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


author: PER CURIAM.

text:
    STATE of Louisiana v. Eddie Lee MAGEE.
    No. 80-KA-2168.
    Supreme Court of Louisiana.
    March 11, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, James S. Farmer, William J. Knight, Herbert R. Alexander, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Lewis V. Murray, III, Bogalusa, for defendant-appellant.
   PER CURIAM.

Affirmed.

DENNIS, J., concurs.


text:
    FIRST MUNICIPAL LEASING CORPORATION v. STATE of Louisiana.
    No. 67125.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 394 So.2d 282.

Denied.

WATSON, J., would grant the writ.