author:
WATSON, Justice.
     GAUDIN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Oliver BRANNON.
    No. 66718.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Joe Lotwick, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph P. Brantley, IV, Baton Rouge, Richard V. Burnes of Gravel, Burnes & Robertson, Alexandria, for defendant-appellant.
   WATSON, Justice.

Defendant, Oliver Brannon, pled guilty to possession of marijuana with intent to distribute in violation of LSA-R.S. 40:967. He was sentenced to five years with the Department of Corrections and a fine of $15,000 and costs, or one year in parish prison. The only issue on appeal is whether the trial court erred in not granting defendant’s motion to suppress the marijuana. State v. Crosby, 338 So.2d 584 (La., 1976).

It was stipulated that approximately seventy pounds of marijuana were seized from a pickup truck parked in the yard of a residence at 2424 Pliney Street in Baton Rouge. The home and pickup truck are owned by Lenora R. Brannon, defendant’s mother. A warrant was secured to search the Brannon residence and pickup on the basis of the following affidavit:

“Dets. Greg Phares and Barry Bannister affiant(s) now appear(s) before the undersigned Judge authorized to issue warrants in criminal cases, and makes this affidavit under oath, in su-port (sic) of the issuance of a search warrant, to search the following described place: A residence, together with a garage apartment and all vehicles, located at 2424 Pliny Street, Baton Rouge, La. and to seize, secure, tabulate and make return thereof according to law the following property or things which have been used in the commission of, or which constitute evidence of, criminal conduct, to-wit: Controlled dangerous substances, to wit, marijuana, cocaine, and paraphenalia associated with said drugs.
“Affiant(s) say that he had probable cause to believe that the above-listed things to be seized are now concealed and located upon the above described premises based upon the following facts: On 12-4-78 at 9:30 A.M. a cooperating individual placed a telephone call to Casey Brannon at 387-1852. In the conversation, the cooperating individual (C.I.) spoke with Brannon about obtaining sixty (60) pounds of marijuana. Brannon told C.I. that he had sixty (60) pounds left and told C.I. to come look at the marijuana. “The call was placed from a police phone, taped, and witnessed by affiants. The tape was placed in evidence.
“Phone number 387-1852 was confirmed as that of Oliver P. (Casey) Brannon, 3434 Pliny Street, Baton Rouge.
“Affiants further state that they have had reliable information on and have been conducting narcotics investigation on Oliver P. (Casey) Brannon for a period of approximately two years.
“The C.I. is identified as David G. Brous-sard.”
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The affidavit was executed on December 4, 1978. At the hearing on the motion to suppress, Police Officer Greg Phares testified that he had arrested David G. Brous-sard the previous night with twenty-five to thirty pounds of marijuana. Broussard said the contraband had been obtained from one Casey Brannon residing at 2424 Pliney Street, Baton Rouge. Broussard had been “busted” before. The officers promised Broussard that if his cooperation “got more than we got off him,” he would “walk”. Broussard then placed a telephone call to a number which he identified as being that of Casey Brannon. The conversation between the two was recorded. Officer Phares listened to both sides of the conversation.

The transcript of the taped conversation is attached as an appendix to this opinion. The phone was answered by someone Broussard addressed as Daniel. Broussard advised Daniel that he wanted a “sack” for some boys in Lake Charles, would pay cash and would be over in a little bit to consummate the transaction. The transcript does not identify the person to whom Broussard talked as Casey Brannon. It does not mention sixty pounds of marijuana or any quantity of marijuana. The parties refer only to a sack. According to Officer Phares’ testimony, a sack signifies approximately sixty pounds of marijuana in a garbage bag. However, this explanation is not contained in the affidavit. The affidavit states that the phone number was confirmed as being that of Oliver P. (Casey) Brannon, but it developed at the hearing that the number is listed in the name of Mrs. Lenora Brannon.

It is significant that Officer Phares listened to both sides of the conversation. Thus, his representation in the affidavit of the substance of that conversation was his own and not that of informant Broussard. The statement that Broussard “spoke with Brannon about obtaining sixty pounds (60) of marijuana. Brannon told C.I. that he had sixty pounds (60) left and told C.I. to come look at the marijuana.” is false. That information is not contained in the. conversation between Brannon and Broussard, even granting that Brannon is in fact the Daniel with whom Broussard spoke on the telephone.

If the affiants had correctly stated that the parties discussed purchase of a sack and that the term sack is street parlance for sixty pounds or more of marijuana, there would have been no misrepresentation to the magistrate. These affiants synthesized their information and presented the magistrate a conclusion rather than the supporting facts. An affidavit must recite facts rather than conclusions. LSA-C.Cr.P. art. 162. The magistrate’s function was usurped; it is his job to weigh the facts and judge independently whether probable cause exists. State v. Morstein, 404 So.2d 916 (La., 1981).

An affidavit supporting a search warrant is presumed to be valid. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Defendant at the hearing had the burden of proving that the representations in the affidavit by the affi-ants were false. State v. Wollfarth, 376 So.2d 107 (La., 1979). When a defendant proves that an affidavit contains false statements, it should be determined whether the misrepresentations are intentional or unintentional. State v. Paster, 373 So.2d 170 (La., 1979). Here, however, the result is the same in either instance. Even granting that the distorted report of the telephone conversation was inadvertent and represented Officer Phares’ impression of its substance, the inaccuracies must be deleted. State v. Rey, 351 So.2d 489 (La., 1977); State v. Lamartiniere, 362 So.2d 526 (La., 1978). Leaving aside the false material in this affidavit, the remainder does not furnish probable cause for issuance of a warrant.

For the foregoing reasons, the motion to suppress is granted; defendant’s conviction and sentence are vacated; and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

LEMMON, J., dissents and will assign reasons.
H. CHARLES GAUDIN, J. ad hoc, dissents and assigns reasons.
PHILIP C. CIACCIO, J. ad hoc, I dissent.

APPENDIX

TAPED INTERVIEW WITH DAVID G. BROUSSARD AND CASEY BRANNON.

DATE: 12/4/78

OFFICERS: GREG PHARES AND BARRY BANNISTER

DIAL TONE

DIALING

PHONE RINGING

Broussard: That number is on Perkins Road? Did ya’ll get an address on it? Ain’t nobody answering.

PHONE SOUNDS

Broussard: This is Casey’s number. PHONE SOUNDS

Daniel: Hello.

Broussard: Daniel, what you doing?

Daniel: Not answering the fucking phone.

Broussard: You sleeping?

Daniel: Yea.

Broussard: Kind of early isn’t it?

Daniel: Yea.

Broussard: Hey.

Daniel: Did you just call and let it ring fifty times?

Broussard: Yes. Hey, uh, them boys from Lake Charles?

Daniel: Yep.

Broussard: They want a sack.

Daniel: I only got one. I went out there last night and just got what was left and that’s it too. So, you know, uh, if you want to come look at what I got, that’s cool.

Broussard: They want one and they will pay for it you know, the whole thing. I still owe you for the other one I got.

Daniel: Yea.

Broussard: I got part of it out and still got part of it. But these boys from Lake Charles want a whole thing you know. Cash on the barrel head.

Daniel: When do you want to look at it?

Broussard: Well, I can come over there and look at it anytime you want. You got it.

Daniel: Yea, it’s all ready, man. I just got it all put together about 1:00 last night. Your timing was perfect.

Broussard: You don’t want these guys to come over to your house?

Daniel: Un-uh.

Broussard: Do you want me to come over there and get it and bring it to them and bring your mon.

Daniel: Yea, that will be cool.

Broussard: I’ll come over in just a little bit then.

Daniel: Why don’t you wait about 30 or 45 minutes.

Broussard: Okay.

Daniel: Bye.

Broussard: Bye.

Officer: The preceeding (sic) conversation took place Monday, December 4, 1978, approximately 9:45 A.M. The location was the Baton Rouge City Police Detective Office, Chief John Landry’s office. The conversation initiate (sic) from 389-4868 to 387-1832. The number of a Casey Bran-non. The call was initiated by a cooperating individual, a David C. Broussard. Persons present in the room at the time of the conversation, Det. Greg Phares and Barry Bannister, Baton Rouge City Police Detective Office, Det. Greg Phares, Baton Rouge City Police Narcotics.

GAUDIN, Justice Pro Tern.,

dissenting.

I respectfully dissent.

In requesting the search warrant from Judge Douglas Gonzales, the two police officers submitted a supporting affidavit in which they stated:

(1) That they were actual witnesses to a planned drug transaction, having overheard a telephone conversation (which had been recorded) between a cooperating individual by the name of David Broussard and the person identified in the affidavit and search warrant as Oliver P. (Casey) Brannon;

(2) That the call was made to Brannon at his confirmed telephone number, which number fit a particular municipal address, 2424 Pliney Street in Baton Rouge;

(3) That police had been conducting a narcotics investigation of Brannon for approximately two years; and

(4) That in the telephone conversation, Brannon said that he had 60 pounds of marijuana to sell and that he (Brannon) told Broussard “.. . to come look at the marijuana.”

The affidavit clearly stated probable cause in accord with LSA-C.Cr.P. art. 162, and the magistrate issued the search warrant. Police then seized approximately 70 pounds of marijuana.

A motion to suppress was heard on June 8, 1979, during which the defense argued that the supporting affidavit contained false information.

While a reading and careful consideration of the Broussard-Brannon recordation can lead to no conclusion but that an illegal drug transaction was contemplated, it is true that there are variations between the wording of the affidavit and the overhead conversation. For example, the substance in Brannon’s possession is referred to as “a sack” during the conversation and as 60 pounds of marijuana in the warrant.

Also, the telephone number was not listed as Brannon’s, but was listed in the name of his mother, Mrs. Lenora Brannon, who also resided at 2424 Pliney Street.

The only witness at the suppression hearing was Greg Phares, one of the police officers who had signed the supporting affidavit. He was called by the prosecution not to expand on or rehabilitate the affidavit but to show that there had been no intentional misrepresentations by the affiants to Judge Gonzales and that the information in the affidavit was factual.

Phares said, among other things, that “Daniel” was a nickname used by Brannon and that, in street language, 60 pounds of marijuana is a sack.

Phares said:

“Sack would signify approximately 60 or slightly more pounds of marijuana which is generally but not always contained in one of those black Hefty-type garbage bags. That’s how they often pack it.”

Neither the Supreme Court of the United States nor the Supreme Court of Louisiana has ever required a supporting affidavit to be 100 per cent accurate. It is necessary, however, that the affidavit contain reasonably trustworthy information sufficient to support the belief that evidence or contraband may be found at the site to be searched. The magistrate’s judgment must be based on a rational reading of the entire affidavit.

In State v. Nix, La., 327 So.2d 301; State v. Smith, La., 322 So.2d 197; State v. Huckaby, La., 368 So.2d 1059; State v. George, La., 273 So.2d 34; and in numerous other cases, this Court found probable cause even though the affidavits had discrepancies of various magnitude.

Affidavits in support of search warrants must be given commonsense and realistic interpretation by magistrates and the courts, and doubtful or marginal cases will be resolved in favor of upholding the validity of the warrant. State v. Babbitt, La., 363 So.2d 690; State v. Chaffin, La., 324 So.2d 369, certiorari denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832; and State v. Sierra, La., 338 So.2d 609.

From the Sierra opinion:

“Affidavits must be tested and interpreted ... in a commonsense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed.2d 684]... We have noted that magistrates are not to be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts and, although it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants...”

Considering (1) the clear indication that the affiants did not intentionally or otherwise mislead the magistrate, (2) the fact that the differences between the affidavit’s wording and the telephone recording were inconsequential and (3) the probable cause and reasonableness tests previously applied by this Court, the trial judge was correct when he denied the motion to suppress. Brannon’s plea of guilty and sentence should stand.

There is yet another consideration regarding the tape’s posture. The affidavit states: “The tape was placed in evidence.” Thus, it may be that the recordation was a part of and within the four corners of the affidavit, much like a magazine or movie film attached to an affidavit supporting an obscene materials search warrant, and could have been considered by Judge Gonzales when he made his probable cause finding.

The record does not indicate whether the tape was annexed to the affidavit, but this matter could be remanded to the trial judge for such a determination.

Finally, it should be noted that Brannon did not contend or argue that the warrant-less electronic surveillance — i.e., the recording of the telephone conversation — was an invasion of privacy and therefore unconstitutional, as urged in a similar matter now pending before the Supreme Court of Louisiana.

Regardless, it is ironic that the tape of the Broussard-Brannon conversation, something made and preserved by the police to further substantiate the case against Bran-non, was the tool used to successfully attack the supporting affidavit’s validity.

       Judges Israel M. Augustine, Jr., and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lemmon.

      . Marijuana is presently a Schedule I drug; its possession is a violation of LSA-R.S. 40:966.

      . Broussard was subsequently released.

      . State v. Reeves, Case No. 81-0909.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Alvin R. MOORE, Jr.
    No. 81-KA-1118.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
    J. Stacey Freeman and M. Randal Fish, Bossier City, for defendant-appellant.
   WATSON, Justice.

Defendant, Alvin R. Moore, Jr., was convicted of the first degree murder of Jo Ann Wilson in violation of LSA-R.S. 14:30. The jury unanimously decided that the death penalty should be imposed on the basis of three statutory aggravating circumstances:

“(a) The offender was engaged in the commission or attempted commission of aggravated rape, aggravated burglary and armed robbery;
“(b) The offender knowingly created a risk of death or great bodily harm to more than one person;
“(c) The offense was committed in an especially heinous, atrocious or cruel manner.” (Tr. 40)

Defendant has appealed his conviction and sentence assigning six errors by the trial court.

FACTS

Aaron Wilson, his wife Jo Ann-, and their four month old daughter Regina resided at 804 St. Charles Street in Bossier City, Louisiana. Jo Ann Wilson was a slender woman, who weighed between 95 and 100 pounds. Alvin Moore, Jr. was a former neighbor and co-worker with Aaron at the V.A. Hospital. On July 9, 1980, Alvin Moore, Jr. picked up two companions, Arthur Lee Stewart, Jr. and Dennis Sloan, in his light blue 1962 Chevrolet. Moore and Sloan were twenty years old and Stewart nineteen. The. three rode around Shreveport, visiting, laughing and talking. Moore then said he wanted to go to Bossier City to “check on his old house”. (Tr. 584) Moore had previously resided at 833 St. Charles Street.

Observing that Aaron Wilson’s automobile was not present, Moore went to the Wilsons’ house with the announced purpose of getting “some money”. (Tr. 631) According to Sloan, Moore knocked on the Wilson door, Jo Ann Wilson came to the door; she and Moore talked briefly and then entered the house together. Five minutes later, Sloan followed Moore to the door of the house. The door was cracked and Sloan saw Moore and Jo Ann Wilson “making sex” (Tr. 631) on the floor of the living room. Sloan returned to tell Stewart what was happening. Stewart and Sloan then entered the house. Moore and a crying Mrs. Wilson had gone into the bedroom where baby Regina was also crying. Moore was “going crazy”, ransacking the house. (Tr. 593) Jo Ann Wilson was described as “panicky” and “scared”. (Tr. 592) She appeared to be frightened of Moore. Jo Ann Wilson said: “take whatever you want, just get out of my house.” (Tr. 612) and “just don’t harm her or the child”. (Tr. 632) After being threatened, Mrs. Wilson had given a box containing Kennedy half dollars to Moore. Sloan took a white bucket with $18.80 in pennies, and Stewart took some stereo components. They left the house and heard Jo Ann Wilson screaming behind them.

Moore ran out about five minutes later carrying a knife in his hand. Stewart testified that this was the same knife that Moore had had on the back seat of his car as the group drove to St. Charles Street. Moore told Stewart and Sloan, “I’m fixing to trip you all out ... I stabbed that bitch nine times.” (Tr. 594-595) The three then proceeded to Church’s Fried Chicken and McDonald’s.

Jo Ann Wilson managed to call the police emergency number. The call was received by the Bossier City Police Department at 9:40 P.M. and a unit was dispatched. Patrolman Fields knocked on the door in approximately two minutes; Jo Ann Wilson said she was unable to open it. He kicked in the door. There was blood all over the living room and the victim was lying on the bed in the bedroom. Both rooms were disarranged. Jo Ann Wilson was nude from the waist down, bleeding from her vagina, her chest and both arms. She was having difficulty in breathing, and told Officer Fields she was dying. He asked who had stabbed her and she responded “Elvin”. When asked if she knew “Elvin”, she replied that he “was a black guy that used to live down the street”. (Tr. 355) It was obvious to Officer Fields that she was dying. She lived approximately ten minutes after her dying declaration. Moore was arrested at approximately 1:00 A.M. on July 10. In the trunk of his car were the Wil-sons’ stereo components, a quantity of pennies and a white plastic bucket.

Dr. George M. McCormick, II, coroner of Bossier Parish and a forensic pathologist, did the autopsy. Jo Ann Wilson had thirteen wounds which could be identified as stab wounds and three other minor wounds. She was wounded on her shoulders, arms, chest, back, and in the pelvic and abdominal areas. Seven of her stab wounds were potentially fatal. She died from loss of blood and shock. Her demise was described as follows:

“... the person starts to have a rapid heart rate, decreased blood pressure, possibly sweating and claminess, a sense of impending doom and gradually over a period of time loss of consciousness and finally death.” (Tr. 496)

Dr. McCormick found her dying declaration not inconsistent with the wounds she had received. Jo Ann Wilson had had recent vaginal and rectal intercourse, both with ejaculation, probably within six to eight hours of the autopsy. There was a scar from the Caesarean delivery of her daughter. Some foreign hair in the vagina was removed.

Blood flakes from Moore’s pants tested out as blood group O. Victim Wilson had blood group O. Sloan, Stewart, and Moore had blood group B. No blood was found on the clothing of either Stewart or Sloan. The foreign pubic hairs from Jo Ann Wilson did not match those of Sloan, Stewart or her husband, but exactly matched the pubic hair characteristics of Alvin Moore. One hair on the bed sheet matched all the characteristics of Alvin Moore’s pubic hair.

Moore took the stand in his defense. He claimed that his intercourse with Jo Ann Wilson was voluntary; and that he had had voluntary intercourse with her on two previous occasions in May and June. In May, she had also given him money. He stated that he did not take the Kennedy half dollars; she gave them to him. Moore denied any knowledge of the stabbing.

Immediately before trial, Stewart and Sloan pled guilty to aggravated burglary. It was agreed that the State would recommend the maximum sentence of thirty years for each of them. Detective Glen Sproles, the chief investigating officer on the case, testified that he had discussed with defense counsel “during the pretrial” (Tr. 438) the fact that Dennis Sloan was going to plead guilty to aggravated burglary. Sloan’s attorney, Patrick Phillips, testified that he had constantly attempted to secure an acceptable plea bargain for his client. This bargain was reached on Friday but not accepted by Sloan until the following Monday, the day of trial.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that a continuance should have been granted when Stewart and Sloan pled guilty to aggravated burglary immediately prior to trial. Defendants were indicted on July 22, 1980, and arraigned on July 29. Trial was set for September 22, 1980. A motion for severance was denied on September 16, 1980. At that time, defense counsel also argued that he was entitled to a continuance. A discovery motion was answered on the same date. The answer to the motion included the forensic pathologist’s report, the statements of the two co-defendants, and the report of the crime laboratory. Because of defense counsel’s need to study these materials, a continuance was granted until October 27 when trial began. On October 27, defense counsel requested the additional continuance.

As a result of the co-defendants’ pleas, defense counsel received the trial severance which he had requested. According to Detective Sproles’ testimony, he was on notice that at least one of the co-defendants might plead guilty prior to trial. However, it is contended that their pleas changed the trial strategy and caused Moore to testify.

The question is whether denial of the continuance was prejudicial. Compare State v. Sims, 346 So.2d 664 (La., 1977).

In view of the dying declaration of Jo Ann Wilson and the physical evidence of Moore’s guilt, he would surely have been convicted regardless of whether or not his co-defendants were tried at the same time. Their evidence against him was merely cumulative. Moore’s were the pants with the victim’s blood on them. He was the one named in the dying declaration. It was his car which contained the stolen goods. It was his pubic hair that was found in the victim.

The statements of the co-defendants had informed defense counsel of the gist of their testimony. He had their criminal records. Stewart and Sloan were cross-examined about those records. Sloan admitted a 1979 conviction of aggravated battery, reduced from a charge of attempted murder. Sloan also admitted a 1979 arrest for attempted armed robbery. Stewart admitted to some juvenile trouble and a theft conviction.

It is argued that Moore’s testimony-was the only means of impeaching the testimony of the co-defendants. However, Moore did not seek to shift the blame for the killing to either Sloan or Stewart. They did not dispute his contention that the intercourse with Jo Ann Wilson was consensual. Moore’s testimony was not credible because of the physical evidence, not because it was contradicted by his co-defendants.

There is evidence that the co-defendants’ pleas were not completely unexpected. Compare State v. Parsley, 369 So.2d 1292 (La., 1979).

Under these circumstances, defendant has not established any prejudice in the trial court’s denial of a further continuance.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that a mistrial should have been granted when the district attorney’s opening statement indicated that the defendant should take the stand in his own defense. The district attorney stated:

“What is evidence comes from the witness stand and when I tell you something in this opening statement I want you to remember it, but I want you to remember whether or not I proved it with evidence from this stand, competent evidence from this witness stand. And if the defense decides to give an opening statement to say what they intend to prove you hold him to the same thing. You don’t let me talk without me proving what I say. The same goes for the defense counsel. Don’t let him talk unless he produces proof to support what he has to say.” (Tr. 322)

It is argued that the district attorney inferred there had to be evidence of innocence, and the only evidence which could be produced was defendant’s testimony. Thus, these prejudicial remarks, together with the prejudice caused by the last minute severance and the denial of motion for continuance, forced defendant to testify.

Direct or indirect reference by the prosecution to the accused’s failure to testify is a ground for mistrial. LSA-C.Cr.P. art. 770. In some instances, a reference to the State’s testimony as uncontroverted focuses attention on the defendant’s failure to testify. State v. Harvill, 403 So.2d 706 (La., 1981). However, this remark about the need for proof of facts alleged in an opening statement is not that type of reference. In Harvill, the comment was clearly prejudicial, because “only the defendant could recant the taped confession which formed the entirety of the prosecution’s case against him.” 403 So.2d 711. Here, in contrast to Harvill, any connection between the statement and the type of comment prohibited by Article 770 is very vague. Also, unlike Harvill, the physical evidence against Moore is overwhelming. Moore did take the stand and, with these facts, could not have relied on the presumption of innocence. There was no prejudice. The district attorney was merely cautioning the jury not to accept opening statements as evidence. He was not commenting on the defendant’s possible failure to testify.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

It is contended that certain photographs of the crime scene should not have been allowed in evidence because they inflamed the jury by emphasizing the violence of the crime and depicted a bloody shirt and a stereo speaker which were not introduced into evidence.

The photographs were material and admissible. Their prejudicial effect is outweighed by their probative value. State v. Boyer, 406 So.2d 143 (La., 1981); State v. Vernon, 385 So.2d 200 (La., 1980). The items in the photographs would have been admissible evidence. State v. Morris, 340 So.2d 195 (La., 1976); State v. Hawthorne, 345 So.2d 1170 (La., 1977). Their depiction was allowable.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defense counsel contended that he was entitled to a “rap sheet” on the victim in order to impeach her dying declaration. The State replied: “we have no criminal record on Jo Ann, we know nothing about her except for good things. I can’t — I can’t produce a criminal record because we have none on her.” (Tr. 433) The defense asked that the State have the police run a record check on Jo Ann Wilson. The State responded: “We have previously given to Mr. Freeman all the criminal record reports that we have on the parties involved in this particular matter. There were three such, what we call rap sheets, that were furnished to Mr. Freeman. Those are the only rap sheets that we have involved in this case.” (Tr. 436)

Detective Sproles, the investigating officer, was asked:

“Q. All right, sir, did you, as the investigating officer, do any investigation, and I mean as in any way, shape or form, in talking to neighbors, or in getting police records or anything about the background of the victim?
“A. We had search teams out there, I was not a part of one of the search teams. I did request through our records department for a check of anything on the three suspects we had or the victim.
“Q. All right, did anything come back?
“A. Not on the victim, no sir.
“Q. Did you run a — did you ask for a record of the victim?
“A. I asked for a records check from our record’s department, yes sir.
“Q. All right, do we have anything, are any of those so called rap sheets, I don’t know what else to call them, that’s the best I can do, do you have a rap sheet on Jo Ann Wilson?
“A. No, sir.
“Q. Did you request one?
“A. I didn’t particularly request a rap sheet, no sir.” (Tr. 446)

The above does not suggest that Jo Ann Wilson had a “rap sheet”. It appears probable that she did not.

The trial court refused to order the State to request a “rap sheet” on Jo Ann Wilson, but noted that the State was under a continuing order to produce any Brady information, which would include conviction records of the victim. See State v. Henderson, 362 So.2d 1358 (La., 1978); State v. Harvey, 358 So.2d 1224 (La., 1978). This is all that is required.

The State did not have a “rap sheet” on Jo Ann Wilson. The indication is that one did not exist. The trial court properly ruled that the State was not required to make a further search for a conviction record on Jo Ann Wilson. State v. Washington, 407 So.2d 1138 (La., 1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that the trial court erred in allowing certain hearsay evidence. LSA-R.S. 15:434.

Moore was quoted as saying he wanted to “check on his old house.” (Tr. 584) The statement was allowed in evidence for its non-assertive value. It proved that the words had been spoken, not that they were true. See State v. Hatcher, 372 So.2d 1024 at 1032 (La., 1979). Thus, the evidence was not hearsay. It was relevant to show that the words were spoken by Moore prior to the parties’ trip to Bossier City. There was no prejudice in allowing the statement into evidence because Moore admitted on the witness stand that he had gone with his companions to his old neighborhood on the day of the crime.

Defendant also contends that other statements made by Moore immediately before and after the crime should have been excluded as hearsay. These statements took place as immediate concomitants of Moore’s criminal act. His spontaneous words uttered close in time to the occurrence were properly admitted into evidence as res gestae. LSA-R.S. 15:447; 15:448.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that the prosecutor’s closing argument contained highly prejudicial comments which violated his constitutional rights to due process of law. The prosecutor stated:

“ . . . Today we’re here also to protect the innocence and the future victims of crime. Dennis Sloan is not an innocent person, neither is Arthur Stewart, Jr. and by no means is this defendant today, Alvin R. Moore, Jr. Let’s not forget who is the innocent party in this case. It’s Jo Ann Wilson, her child, Regina, her husband, Aaron, her mother and father and sister. They are the innocent victims of this tragic, and terrible crime. Let’s not forget about these people because that’s what justice is about, not to forget about them. (Tr. 731)
* * * * * *
“She’s the innocent victim of this crime. And justice requires that you vote guilty and you vote for life when you do. The life of every one of us to walk the streets free from this type of people. We’re voting for our lives, the lives of our families to be free from this type of activity. Thank you.” (Tr. 738)

There was no objection by defense counsel to these remarks. However, despite lack of objection, extremely inflammatory and prejudicial remarks require reversal. State v. Hayes, 364 So.2d 923 (La., 1978); State v. Lee, 346 So.2d 682 (La., 1977). It is not clear why defense counsel failed to object to the prosecutor’s argument. There was no motion for a mistrial at the conclusion of the closing statement. State v. Gaines, 354 So.2d 548 (La., 1978). Defense counsel indicated that he deliberately refrained from objection while listening to the prosecutor’s “plea for pity”. (Tr. 745)

A prosecutor should avoid remarks predicting societal costs and consequences of a not guilty verdict. State v. Barrow, 410 So.2d 1070 (La., 1982). However, “substantial evidence against defendant in the record prevents the errors in the prosecutor’s argument from becoming such violations of due process rights that would require a reversal in the absence of defense objections.” State v. Hayes, 364 So.2d 923 at 927 (La., 1978). In view of the overwhelming evidence of Moore’s guilt, it is unlikely that the prosecutor’s argument contributed to the verdict.

This assignment lacks merit.

DEATH SENTENCE REVIEW

Every sentence of death must be reviewed to determine if it is excessive. LSA-C.Cr.P. art. 905.9. The factors in that determination are set out in Supreme Court Rule 28. This court must determine: (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors; (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and (c) whether the sentence is disproportionate to the penalty imposed in similar cases.

A. PASSION, PREJUDICE, AND OTHER ARBITRARY FACTORS:

At the sentencing hearing, the prosecutor advised the jury that “From the next point forward it goes to the court system to be thoroughly reviewed and checked through every court in this land.” (Tr. 776) The prosecutor’s reference to appellate review was, of course, inaccurate and misleading. “Any prosecutor who refers to appellate review of the death sentence treads dangerously in the area of reversible error.” State v. Mattheson, 407 So.2d 1150 at 1165 (La., 1981).

In State v. Willie, 410 So.2d 1019 (La., 1982), a more prejudicial argument resulted in the sentence being vacated. The prosecution here did not give the impression that the jury was making only a tentative determination. On the contrary, the difficulty of the jury’s decision was emphasized. The remarks here are not so prejudicial that the sentence must be vacated. As in State v. Mattheson, 407 So.2d 1150 (La., 1981), the references, although close to reversible error, did not induce the jury to believe that its responsibility was lessened by appellate review. The most objectionable phrase, “through every court in the land”, is more in the nature of hyperbole than anything else. The remark did not deprive defendant of a fair trial in the sentencing phase.

In considering whether the verdict was influenced by prejudice, it is significant that the three co-defendants were black and the victim was white, as were all of the jurors. However, there is no reference at any point in the record to color, or appeal to racial prejudice. The crime was both violent and senseless; there is no indication that the verdict was influenced by prejudice.

B. AGGRAVATING CIRCUMSTANCES:

The jury found three aggravating circumstances:

“(1) The offender was engaged in the commission or attempted commission of aggravated rape, aggravated burglary and armed robbery;
“(2) The offender knowingly created a risk of death or great bodily harm to more than one person;
“(3) The offense was committed in an especially heinous, atrocious or cruel manner.” (Tr. 40)

(1) Since Jo Ann Wilson was observed having sex on her living room floor; the intercourse was both vaginal and anal; she afterward appeared frightened of Moore; and she was subsequently stabbed by Moore, the jury could have reasonably inferred that the sexual encounter between the two was not voluntary and that Jo Ann Wilson consented to it only because Moore had the knife with which she was subsequently killed. Thus, the jury could have found that Moore was engaged in the commission of aggravated rape. While there is some evidence that Moore’s entry into the house was not forcible, Jo Ann Wilson was robbed and Moore was obviously armed. The jury could also have reasonably concluded that Moore committed an armed robbery.

(2) In finding that Moore created a risk of death or great bodily harm to more than one person, the jurors were apparently thinking of baby Regina. Although the murder of her mother certainly placed the child in an unprotected situation, she was not harmed or threatened. The evidence does not support this aggravating circumstance.

(3) Because of the number of wounds inflicted and the fact that Jo Ann Wilson died slowly with awareness of her impending death, the jury could reasonably have found that the offense was committed in an especially heinous, atrocious and cruel manner.

It is unnecessary for all three aggravating factors to be present. State v. Monroe, 397 So.2d 1258 (La., 1981). Two of the statutory aggravating circumstances found by the jury are present.

C. PROPORTIONALITY:

The only comparable crime is that reported in State v. Gaskin, 412 So.2d 1007 (La., 1982). Three white males picked up a young black girl in their car. They made her perform oral sex upon them, robbed her, and then stabbed her. Although two of them, Gaskin and Thomley, were found guilty of first degree murder, the jury recommended life imprisonment.

There are some distinguishing features in the two murders. The crime here took place in Jo Ann Wilson’s home, which has traditionally been considered a place of security and sanctuary. In the Gaskin crime, the guilt was shared by two men because Thomley cut the victim’s throat and Gaskin then stabbed her. Apparently, Gaskin and Thomley did not take the stand to impugn the character of their victim as did Moore. Moore’s testimony on the stand was incredible and the jury undoubtedly felt more strongly about the offense because he slandered his victim and showed no remorse. It is impossible to compare the sex crimes in the two cases. The oral sex demanded from Gaskin and Thomley’s victim was repugnant as was Jo Ann Wilson’s anal and vaginal rape. However, Virginia Smith, the victim of Gaskin and Thomley, did not suffer the bodily invasion inflicted on Jo Ann Wilson. The jury may also have been influenced by the fact that Jo Ann Wilson was a young mother whose four month old baby not only witnessed her death, but was left motherless as a result. The child, as well as the mother, was a victim.

Gaskin was seventeen years of age at the time of his crime and Thomley a year older; Moore was twenty. A jury could understandably be more reluctant to impose a death sentence on a seventeen year old. Also, Gaskin is a person with mental, educational and emotional limitations. Moore, on the other hand, graduated in the middle of his high school class. He did not have a disadvantaged childhood, but has had a propensity for violence since his high school years.

Considering all the circumstances, the sentence of death imposed on Moore is not disproportionate to the sentence of life imprisonment imposed on Gaskin and Thom-ley.

For the foregoing reasons, the conviction and sentence of defendant, Alvin R. Moore, Jr., are affirmed.

AFFIRMED.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . The writer dissented from this feature of the Willie decision.


text:
    STATE of Louisiana v. Danny DAY.
    No. 81-KA-2413.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don C. Burns, Dist. Atty., Russell Woodard, Asst. Dist. Atty., for plaintiff-appellee.
    Paul Henry Kidd, Monroe, Ann Woolhan-dler, and Michael G. Collins, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Danny Day, was convicted of simple robbery and sentenced to four years at hard labor. LSA-R.S. 14:65. On appeal, defendant assigns two errors by the trial court.

FACTS

On August 4, 1980, Danny Day, was in a light green Monte Carlo automobile with Roey Donald and the owner, Marvin Johnson. Before picking up defendant Day, Donald and Johnson had robbed Louis’ Wine Cellar in Monroe. The three were going to Houston. Enroute, they spontaneously decided to rob Braddock’s Liquor Store near Columbia, Louisiana. Day covered his face with a purple shirt and went in the store with Donald’s sawed-off, automatic, 12 gauge shotgun. James Clayton Parker, the owner-operator, and two customers were in the store. Day pointed the sawed-off shotgun at Parker’s face, shoved a black bag across the counter and demanded cash. Parker stuffed the bag with money and Day joined the other two in the car. All three young men were intoxicated, and the vehicle hit a bridge railing about fourteen miles north of Pollock.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that a mistrial should have been declared because of misconduct by a juror, George W. Mcllwain, who talked to one of the State’s prospective witnesses. LSA-C.Cr.P. art. 775.

Mcllwain went to the third floor of the courthouse to look at some new jail facilities and encountered a potential witness, Chief Deputy Dale Powell. Powell gave Mcllwain a cup of coffee and they chatted for a few minutes. Although defendant’s case was not discussed, the conversation violated the court’s orders to the jurors.

At the hearing on the motion for mistrial, Mcllwain stated: “... I made a mistake, I realized it when I seen him, but I did not go up there to see Deputy Powell.” The trial court determined that there was no prejudice because the encounter did not affect Mcllwain’s ability to impartially evaluate the evidence. The court readmonished the jury not to mingle with any of the witnesses. Chief Deputy Powell did not testify at the trial.

A juror’s misconduct is not a ground for automatic mistrial. Prejudice must also be established. State v. Ireland, 377 So.2d 299 (La.1979); State v. Daniel, 378 So.2d 1361 (La.1979). Defendant failed to show prejudice but argues that it should be presumed. Even granting this argument, any presumption of prejudice was rebutted.

Alternatively, defendant contends that the motion for mistrial should have been granted because Mr. Mcllwain’s. close ties to the sheriff’s office rendered him incapable of being impartial. Mcllwain is a friend of Lance Arthurs, an employee of the former sheriff, who had run unsuccessfully against Hoot Reitzell for sheriff, and also a friend of Reitzell. These facts were volunteered at the hearing on the motion for mistrial.

Mcllwain was accepted as a juror by defendant after extensive questioning. The questioning did not cover the subject of his friends in the sheriff’s office. However, there is no indication that these friendships would prevent him from being an impartial juror. LSA-C.Cr.P. art. 797.

The trial court did not err in denying the motion for mistrial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant maintains there are three grounds for setting aside his sentence:

A.The trial court did not adequately consider the criteria in LSA-C.Cr.P. art. 894.1. Implicit in this argument is an attack on the excessiveness of the sentence. At the sentencing hearing the court stated:

“[Ajnytime any type of robbery is committed this presents a real danger to human life to the victims as well as the perpetrator. I note, for the record, that you were charged with the crime of armed robbery, but that the jury found you guilty of simple robbery. The maximum sentence for simple robbery is seven years. I have not given the maximum sentence because of you not having any prior record of felonies or misdemeanors and because of your youth. However, I feel that a lesser sentence would tend to deprecate the seriousness of the crime. And I feel that because of the seriousness of the crime, you are in need of a correctional environment. . . . ” (Tr. 293-294)

These reasons are sufficient unless they are without objective basis in the record.

The maximum sentence for simple robbery is seven years at hard labor. LSA-R.S. 14:65. A four year sentence with the possibility of parole is a relatively lenient sentence. Considering the danger created by defendant to the three people in the store, a four year period of incarceration is not disproportionate to the crime; the sentence is not excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Bonanno, 384 So.2d 355 (La.1980); State v. Franks, 391 So.2d 1133 (La.1980).

B. Defendant contends that the court incorrectly imposed sentence as if defendant were convicted of armed robbery instead of simple robbery.

A sentence must be individualized and this entails consideration of the underlying circumstances of the crime. LSA-C. Cr.P. art. 875(A)(1); LSA-C.Cr.P. art. 894.-1(A)(3); State v. Sepulvado, 367 So.2d 762 (La.1979).

The jury could have convicted the defendant of armed robbery. There was uncontradicted evidence that defendant robbed the store with a dangerous weapon. Counsel successfully urged the jury not to subject defendant to the harsh penalty range of armed robbery. There was extensive argument about the relatively lenient sentences received by Donald and Johnson. The court could not ignore the underlying circumstances of the crime and still individualize the sentence. State v. Sepulvado, supra.

C. Defendant contends that he was denied equal protection because his co-defendants, each far more reprehensible than he, were punished less or only slightly more than he was.

Individualizing a sentence can not be done without independently considering the merits of each case. State v. Rogers, 405 So.2d 829 (La.1981); State v. Sepulvado, supra. Disparities are inherent in a system where punishment is tailored to fit the defendant and the crime. The Equal Protection Clause only dictates that all defendants be afforded the same sentencing considerations and does not compel any particular result. Results are measured only against the requirement that sentences not be excessive. State v. Rogers, supra. One factor in determining whether a particular sentence is excessive is the sentences given to other defendants in similar circumstances. State v. Sims, 410 So.2d 1082 (La.1982). This is only one factor; under all of the relevant criteria, defendant’s sentence is not excessive.

This assignment lacks merit.

DECREE

For the foregoing reasons, the conviction and sentence of defendant, Danny Day, are affirmed.

AFFIRMED.

       Judges Israel M. Augustine, Jr., and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-C.Cr.P. art. 775 provides:
      “A mistrial may be ordered, and in a jury case the jury dismissed, when:
      “(1) The defendant consents thereto;
      “(2) The jury is unable to agree upon a verdict;
      “(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
      “(4) The court finds that the defendant does not have the mental capacity to proceed;
      “(5) It is physically impossible to proceed with the trial in conformity with law; or
      “(6) False statements of a juror on voir dire prevent a fair trial.
      “Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
      “A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

      . “1. Do not mingle with or talk to the lawyers, the witnesses, the parties, or any other person who might be connected with or interested in this case, except for casual greetings. They have to follow these same instructions and you will understand it when they do.” (Tr. 10)

      . Marvin Johnson was convicted of simple robbery in connection with the Monroe robbery. He pled guilty to simple robbery of Braddock’s. He received concurrent sentences of five years at hard labor.
      Roey Donald received a sentence of five years at the “P-Farm” for his involvement in the robbery of Louis’ Wine Cellar. He was sentenced to four years at the “P-Farm” for his participation in the Braddock’s robbery. Sentences were to be served concurrently. “P-Farm” time is not served at hard labor.
      Johnson and Donald were emotionally and/or mentally ill to some extent. Both have been in mental institutions; both have attempted suicide. Donald is an alcoholic. Donald and Johnson are approximately five years younger than defendant Day, who was 25 at the time of sentencing.


text:
    Charles H. JOHNSON, et al v. The BOARD OF ELEMENTARY AND SECONDARY EDUCATION and the State of Louisiana, Through the Attorney General.
    No. 82-CA-0912.
    Supreme Court of Louisiana.
    May 17, 1982.

      Charles S. McCowan, Jr. and Pamela C. Walker, of Sanders, Downing, Kean & Caz-edessus, Baton Rouge, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., A. Edward Hardin, John D. Koch, Baton Rouge, for defendant-appellant.
   WATSON, Justice.

The issue is whether Act 236 of 1980, which created the Louisiana Teaching and Professional Practices Commission, under the supervision of the Board of Elementary and Secondary Education (B.E.S.E.), is constitutional.

Plaintiffs, the Louisiana Association of Educators and five individual educators, brought suit asking that Act 236 of 1980 be declared unconstitutional. An exception of no right of action, alleging plaintiffs’ lack of standing, was overruled by the trial court. The trial court concluded that Section 1340(A) of the Act is invalid insofar as it authorizes the state board, upon recommendation of the commission, to revoke the certificate of a tenured teacher for any reason other than obtaining the certificate through fraud or misrepresentation. The trial court stated that the power to revoke a teaching certificate is tantamount to the right of discharge. Thus, this section contravenes the teacher tenure laws, declared unaffected by the Act in Section 5, and also LSA-Const.1974 Art. 8, § 3(A), which specifies that the B.E.S.E. Board has no control over removal of a school board’s employees. The court found that a code of ethics, binding on educators, is also contrary to Article 8, § 3(A) of the Louisiana Constitution and § 5 of the Act, because it infringes upon the exclusive right of those appointing teachers to remove and discipline them. A code of ethics serving only as a guide was approved. The commission’s powers to investigate grievances pertaining to educators, conduct hearings, furnish findings of fact and make recommendations, upon request, to local boards concerning educator’s contracts, remedial programs, and revocation of certificates were upheld. A direct appeal was made to this court. LSA-Const.1974, Art. 5, § 5(D)(1). At the request of the B.E.S.E. Board, an expedited hearing date was fixed. Louisiana Supreme Court Rule VI, Section 4.

Defendants contend that there is no justiciable controversy because plaintiffs are seeking to protect themselves against the hypothetical possibility of actions against them. LSA-C.C.P. art. 1872 provides:

“A person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

Clearly, plaintiffs are interested persons whose status as educators is affected by the Act. The judgment sought affects the legal relations between the parties, and the state board and its adjudication serves a useful purpose. The plaintiffs’ future conduct will be governed by the Act. Compare Swift v. State, 342 So.2d 191 (La., 1977). Plaintiffs and their association had standing to bring an action for declaratory judgment to contest the constitutionality of a statute which threatens their status as educators and their economic welfare. See LSA-R.S. 17:413, 414. Louisiana Independent Auto Dealers Ass’n v. State, 295 So.2d 796 (La., 1974).

Act 236 of 1980 provides in Section 1340(A) that any educator may have his certificate revoked or suspended by the state board for: obtaining it by fraud or misrepresentation; incompetence; dishonesty, willful neglect of duty; or immorality. The Act also provides in Section 1338(1) that the commission shall have authority to establish a code of ethics which shall represent minimum standards, and “those who practice as educators shall be obligated to abide by said code.”

Article 8 of the Louisiana Constitution of 1974 states in Section 3(A) that the State Board of Elementary and Secondary Education (B.E.S.E.) “shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees.” Teachers are employees of the local school boards. LSA-R.S. 17:441(1).

Act 236 provides in Section 5 that it shall not affect nor repeal the Louisiana teacher tenure statutes: LSA-R.S. 17:441-445; 17:461^164; 17:531-535; 17:45; 17:231; 17:471; 17:540-544. The Act declares that: “it is not the intent of the legislature to, in any manner, affect the teacher tenure Laws in Title 17.” If any provision is irreconcilable, the tenure laws prevail.

A certificate issued by the state board is indispensable to the status of teacher. LSA-R.S. 17:441(1). Prior to the passage of Act 236 of 1980, a tenured teacher could have his or her certificate revoked only if it was obtained through fraud. Under the tenure laws, a permanent teacher may be removed from office only after written charges are made on certain specified grounds and a hearing is conducted by the school board of the parish or city. It is conceded that the state board may still revoke a certificate obtained by fraud or misrepresentation. Fraud or misrepresentation relate back to the original certification and not to conduct as a teacher-employee. It is the latter which is protected by the teacher tenure laws and is under the exclusive control of the local school boards. Decertification of an employed teacher on other grounds effectively discharges that teacher in violation of LSA-Const.Art. 8, § 3(A). Therefore, Section 1340(A) of the Act is unconstitutional insofar as it authorizes the state board, upon recommendation of the commission, to revoke or suspend the certificate of a tenured teacher-employee for any reason other than obtaining the certificate through fraud or- misrepresentation. A teacher who is not employed by a local school board and is not protected by the tenure laws would, of course, be subject to decertification by the B.E.S.E. Board.

In oral argument, counsel for the B.E. S.E. board argues that the B.E.S.E. board itself employs teachers who serve as instructors in the vocational-technical schools of the state. The tenure laws affecting these employees are in LSA-R.S. 17:540-544. LSA-R.S. 17:542 provides that those who have permanent status “shall not be removed” except as provided therein. In view of the saving clause in Section 5 of Act 236, which lists LSA-R.S. 17:540-544, these employees of the B.E.S.E. board cannot be otherwise discharged. The specific tenure provisions of LSA-R.S. 17:540-544 prevail over any contrary provisions in Act 236. Section 5, Act 236 of 1980. Indirect removal of these teachers, as through decer-tification, would be a violation of the tenure statutes protecting them.

The commission is authorized by Section 1338 of the Act to establish a code of ethics for educators, which shall represent minimum accepted standards. “[Tjhose who practice as educators shall be obligated to abide by said code.” The adoption of such a code of ethics is permissible. Any violation would constitute only the basis for a recommendation by the commission and the state board. A teacher’s certificate can not be suspended or revoked by the state board on the basis of a violation of the code of ethics. Appropriate action must be taken by the local employing school board. To the extent that the code of ethics and the other provisions of the statute limit the commission and the state board to the power of recommendation, Act 236 of 1980 is constitutional.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . Charles H. Johnson, elementary school principal, Ouachita Parish; Rosia G. Metoyer, librarian, Rapides Parish; Richard E. Vail, teacher, Calcasieu Parish; Jude W. Theriot, assistant principal, Calcasieu Parish; and Jerry Bou-dreaux, principal, East Baton Rouge Parish.

      . Section 1340(A) of Act 236 provides:
      “Any educator may have his or her certificate or endorsement, or both, or license, or permit revoked or suspended by the state board for the following reasons:
      “(1) Obtaining or attempting to obtain a certificate by fraudulent means or through misrepresentations of material facts.
      “(2) Incompetency.
      “(3) Dishonesty.
      “(4) Willful neglect of duty.
      “(5) Immorality in the course of activities as a school employee, or affecting a student in the parish of his employment;”.

      . Section 5 of Act 236 provides:
      “All laws or parts of laws in conflict herewith are hereby repealed; however, this Act shall neither affect nor repeal the provisions of R.S. 17:441 through R.S. 17:445, R.S. 17:461 through R.S. 17:464, R.S. 17:531 through R.S. 17:535, R.S. 17:45, R.S. 17:231, R.S. 17:471, and R.S. 17:540 through R.S. 17:544, the Louisiana teacher tenure statutes. It is hereby declared that it is not the intent of the legislature to, in any manner, affect the teacher tenure laws in Title 17 by the enactment of this Act. If any provision of this Act is irreconcilable with any provision of said tenure laws the provisions of said tenure laws shall prevail over the provisions of this Act.”

      .LSA-Const.1974 Art. 8, § 3(A) provides:
      “The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by- this constitution or by law, but shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees.”


author: LEMMON, Justice. DENNIS, Justice,

text:
    A. D. FREEMAN v. John T. COOPER.
    No. 81-C-0169.
    Supreme Court of Louisiana.
    May 17, 1982.

      John T. Cooper, of Cooper & Hingle, New Orleans, for plaintiff-applicant.
    Charlotte A. Hayes, and A. D. Freeman, of Satterlee, Mestayer & Freeman, New Orleans, for defendant-respondent.
   LEMMON, Justice.

In this litigation between two attorneys, plaintiff seeks recovery of damages resulting from allegedly defamatory statements made in a brief filed by defendant in earlier domestic proceedings. After a trial on the merits, the trial court awarded plaintiff damages in the amount of $1,500. The court of appeal affirmed, holding that the statements were defamatory and rejecting the defenses of truth and of qualified privilege. The court noted that the latter defense was not available, because the statements lacked probable cause and were made in a malicious manner, since they were unrelated to any legal point at issue. La.App., 390 So.2d 1355. We granted defendant’s application for certiorari. La., 397 So.2d 802.

I.

In the earlier domestic litigation, plaintiff was the attorney for the defendant’s wife, and defendant represented himself. Defendant began that litigation by filing suit for separation, in which he alleged fault on the part of his wife. Ancillary to that proceeding, the trial court ordered defendant to pay alimony pendente lite and child support to his wife and awarded defendant weekend visitation privileges with his son.

During the course of this litigation, the wife, without advising defendant, moved to Illinois with her son. When she later filed a motion for an increase in alimony penden-te lite and child support, defendant countered with a motion for a decrease in alimony and child support and additionally sought to adjust the visitation rights previously granted by the court. After a hearing on the motions, the trial court denied the wife’s demand for an increase in alimony, but awarded defendant visitation rights for a period of eight weeks during the summer.

In about April, 1978, defendant obtained the dismissal of his separation suit and then discontinued regular alimony and child support payments, on the basis that the support order fell with the dismissal of the suit. One week before defendant’s son was to return to Louisiana for summer visitation, the wife’s attorney (who is the plaintiff in this defamation case) filed a motion requiring defendant to show cause why the unpaid alimony and child support should not be made executory and defendant held in contempt. In connection with the motion, the wife’s counsel obtained an ex parte order postponing the child’s visit until defendant reinstated alimony and support payments or until the rule was tried. The motion alleged that the wife, without the child support and alimony withheld by defendant, was in necessitous circumstances and lacked the funds to buy the child clothes necessary for the eight-week trip and had no automobile or money even to transport the child to the airport.

Defendant moved the court to vacate the order and to reinstate visitation privileges (which relief the court eventually granted). In the course of the trial of that motion and the motion to make arrearages executory, defendant filed a memorandum, in which he made the following statements, which are the basis of this defamation action:

“Apparently Mr. Freeman and Mrs. Cooper feel that they are above and beyond the law and even after having been slapped down by the Trial Court, the Court of Appeal and the Supreme Court surreptitiously slipped before your Honor a Rule Nisi for contempt, etc. knowing that your Honor had only recently been sworn in and could not know any of the background in regard to this matter. Apparently from my discussion with your Honor at an earlier date, Mr. Freeman did not bother to advise you of the true status of this matter in fear that your Honor would tell him that even though he may not l>elieve in the Judicial system of our State, that your Honor does and refuse to sign the order. It is respectfully submitted that the behavior of Mr. Freeman is contemptuous to the dignity of this Honorable Court.
“It is further respectfully submitted, that even in the rule filed by Freeman, he again lied to the court in regard to the visitation privileges for in his Rule Nisi, he stated that Ann Trenchard Cooper could not even transport Mr. Cooper’s son to the airport serving the Charleston, Illinois area when same is only, by actual measurement, 5.7 miles from the doorstep of the house in which she is living in open and notorious adultery. Further, in the deposition given by Mrs. Cooper under oath, she admitted that she had the use of the Lincoln Continental automobile owned by her co-respondent in adultery . . . . ”
% X. If * * jfc
“In respect to the attempt of Freeman and Mrs. Cooper to now attempt to breathe life into a case which has been held to be dismissed by the Supreme Court, it is respectfully submitted that all interlocutory decrees fall when the cause of action is dismissed. It is respectfully submitted that no part of the ease could survive in the face of the final dismissal of same by the Supreme Court of the State of Louisiana. To assert any different theory reminds counsel of the old addage [sic] about “just being a little bit pregnant”.
“Counsel has not been able to find any case in Louisiana in regard to this matter and submits that the reason therefor is that it is such “hornbook” law that no one has heretofore asserted that theory. Of course, Freeman and Mrs. Cooper being outside of the law do not concern themselves about that.”
* * * * *
“In stating the above, there is not denial of any rights of Mrs. Cooper or of the minor John T. Cooper, III. Mrs. Cooper has a right to file her own lawsuit for alimony pendente lite and child support or, to file a rule for alimony pendente lite and child support in the case which is active and in which Mrs. Cooper is being sued for open and notorious adultery, that case bearing Docket No. 209-883 of this Honorable Court. Apparently Freeman and Mrs. Cooper have some fetish about hanging on to a dead lawsuit rather than go forward on their own and exercise whatever rights they have under the law. It is respectfully submitted that that is what they should have done in the first place rather than surreptitiously attempt to take advantage of your Honor’s recent ascension to the bench.”

Plaintiff then instituted the present defamation action, asserting that the emphasized language is defamatory and “im-pugnas) and malign(s) (his) personal honesty and disreputes his professional reputation.”

II.

A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community. Restatement (Second) of Torts § 559 (1977). Defamatory communications violate one’s right to a good reputation and give rise to a cause of action to recover damages because of the violation.

The disparaging remarks in this case were prejudicial to plaintiff’s reputation in his profession. Defendant accused plaintiff of lying to the court when he filed a motion on behalf of defendant’s wife in the domestic litigation. If this were the only statement at issue, we would be inclined to view the statement as a perhaps overly strong denial of the information furnished plaintiff by his client. However, defendant went further and in two places in the brief accused plaintiff and his client together of acting “above and beyond the law” and of being “outside of the law”, thus clearly importing that plaintiff and his client acted in concert to place allegations before the court which were known to be untrue.

Defendant also accused plaintiff of surreptitious action intended to take advantage of a recently inducted judge. An accusation that an attorney does something clandestinely so as to take advantage of a judge’s inexperience or his unfamiliarity with the case reflects on the attorney’s professional reputation.

Finally, defendant’s suggestion that plaintiff does not believe in the judicial system may not, standing alone, be defamatory, but such a suggestion about a lawyer, made in context with direct accusations of lying to the court and acting outside the law, can hardly be regarded otherwise.

As to the defense of truth, defendant did not show that plaintiff knowingly lied, that plaintiff considered himself above the law or acted outside the law, or that plaintiff acted surreptitiously in obtaining the ex parte order. Plaintiff accepted the apparently credible statements of his client and asserted the statements as factual allegations in the motion. Further, the motion was filed with the clerk of court and was not acted upon by the judge until three days later, which is hardly suggestive of surreptitious action on plaintiff’s part. Plaintiff also testified that the judge called him before signing the order postponing visitation until the contempt rule was heard. While one might question the legal validity of withholding visitation privileges in order to compel reinstatement of needed alimony and child support, there was nothing clandestine in plaintiff’s actions.

The defense of qualified privilege presents a more difficult problem. In other jurisdictions, a defamatory statement by an attorney in a judicial proceeding is absolutely privileged, if the statement has some relation to the proceeding. Restatement, above, § 586; 50 Am.Jur.2d Libel and Slander § 231 (1970). In Louisiana, however, the privilege is a qualified one, and in order for the privilege to apply, the statement must be material and must be made with probable cause and without malice. Waldo v. Morrison, 220 La. 1006, 58 So.2d 210 (La.1952), 32 A.L.R.2d (1953).

One purpose of the privilege extended to attorneys for statements made in judicial proceedings is to discourage actions against persons who are merely performing their duties. Attorneys must be free to represent their clients without constant fear of actions based on statement made in the zealous prosecution or defense of an action. Nevertheless, the privilege granted to an attorney is not a license to impugn the professional integrity of opposing counsel or the reputation of a litigant or witness. The courts of Louisiana have chosen to limit the privilege, observing:

“The learned counsel for appellee invoked the doctrine prevailing in England and in the jurisdiction of some of the courts of this country that every allegation that is pertinent to an issue presented for decision in a judicial proceeding is protected by an absolute privilege, and that such an allegation cannot be a cause of action for libel or slander even though it was a false and injurious accusation, and even though the party making it knew it was false, or had not just or probable cause to believe it to be true. It is sufficient to say that that doctrine has no place in the system of law prevailing in Louisiana. See Lescale v. Schwartz, 116 La. 293 [40 So. 708], reviewing and reconciling the jurisprudence on the subject. No one has a right to deem appropriate or pertinent to an issue presented for decision in a judicial proceeding a libelous allegation that he knows is false or that he has not just or probable cause to believe is true.” Sabine Tram Co. v. Jurgens, et al. [143 La. 1092], 79 So. [872] at 872, 873 (La.1918). (Emphasis supplied.)

Questions as to the privilege usually arise in the context of allegations contained in pleadings. An attorney must be free to allege facts constituting unacceptable behavior if there is any reasonable basis for such an allegation and if the behavior is relevant to the proceeding. However, an attorney in Louisiana cannot make disparaging statements, either in pleadings, briefs or argument, if the defamatory statements are not pertinent to the case or are made maliciously or without reasonable basis.

Here, the assertion of lying was in response to some portion of the allegations in a rule filed by plaintiff which defendant perhaps reasonably believed to be false. However, defendant’s assertions of plaintiff’s surreptitious actions and plaintiff’s perception of being above the law, while describing defendant’s characterization of plaintiff’s behavior which occurred in the course of the proceedings, really had nothing to do with the merits of any issue in the litigation. Moreover, defendant had no probable cause to believe that his statements about plaintiff’s surreptitious actions or his considering himself to be above the law were true. Probable cause does not exist when defamatory statements could not constitute a defense, if true. Grant v. Haynes, 105 La. 304, 29 So. 708 (La.1901).

It was totally unnecessary for defendant to make these disparaging remarks about opposing counsel in support of his arguments (in the sense that it is frequently necessary in domestic litigation, for example, for an attorney to make disparaging allegations about the adverse party in order to state a cause of action). Here, the two snide remarks about plaintiff’s being above the law added absolutely nothing to defendant’s argument on the merits of the ease.

We conclude that the qualified privilege accorded to an attorney in judicial proceedings is not applicable to the statements by defendant attorney in this case.

The judgment of the lower courts are affirmed.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth are restricted by the First Amendment to compensation for actual injury. Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). This may include personal humiliation and mental anguish, but such awards must be based on competent evidence. Id.

From my review of the record I find that the only evidence presented by the plaintiff that he was harmed by the allegedly defamatory remarks was his own testimony that when he went to the Jefferson Parish Clerk of Court office “they would laugh and joke . . . and say to me, “what is Cooper doing to you today, this time?’ ” In my view this is not sufficient evidence that the plaintiff was actually harmed. Furthermore, there is no evidence that the court workers’ remarks were necessarily related to the defendant’s statements.

      . The record established that plaintiff’s client did furnish him with the information asserted in the motion. Since no reason has been shown or suggested for plaintiff to disbelieve his client, then there was no justification to directly accuse plaintiff of lying, even if defendant reasonably believed the information furnished plaintiff by the wife was untrue.

      . The principal allegation was that the wife and child were in necessitous circumstances. The lack of funds to buy clothes or to pay taxi fare was not the significant allegation, although that allegation tied in with the visitation at issue.


author:
SAVOIE, Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. William TUCKSON.
    No. 81-KA-1563.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick Leitz and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., New Orleans, and Joseph L. Montgomery, Metairie, Indigent Defender Board, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

Defendant, William Tuckson, was charged, by a Jefferson Parish Grand Jury indictment with the crime of first degree murder, a violation of La.R.S. 14:30. On December 8-9, 1980, he was tried before a twelve person jury which found him guilty as charged. Thereafter, the sentencing hearing commenced and the jury recommended life imprisonment without benefit of parole, probation or suspension of sentence. Defendant now appeals on the basis of two assignments of error, although not in the record, argued in the brief.

In the early morning hours of July 13, 1980, defendant broke into a truck parked about two blocks from the apartment of his girl friend’s mother. He popped a small side window with a screw driver to unlock the door.

Defendant reached under the seat of the truck and found a pistol but did not check whether it was loaded or not. Defendant stole a ring, an eight track tape and a C.B. radio which he loosened with pliers. While still in the truck, he heard someone holler. Defendant jumped from the truck as James Johnson entered the truck. He ran around the front of the truck to scare Johnson. He saw Johnson leaning over as if reaching under the seat at which time defendant fired into the front driver’s window of the truck. After shooting the gun, defendant picked up the goods which he had removed from the truck and ran to his girl friend’s mother’s apartment. Once there, he undressed and fell asleep on the couch.

After an on-scene investigation, the police learned that William Tuckson had been seen running from the area shortly after the gun shot was heard. The police were led to the girl friend’s mother’s apartment where they knocked on the door with a normal rap. They were freely admitted to the apartment where they found defendant sleeping on the couch. He was advised that he was under investigation for the murder of Johnson and orally recited his rights. After defendant was handcuffed, he was taken to police headquarters, where he signed a waiver of rights form, declined the presence of a lawyer, and gave a taped inculpatory statement.

After defendant was removed from the apartment, the police obtained permission from the lessee, Gwendolyn Walker, to search. They retrieved the .38 caliber pistol, the screw driver, the pliers, and a man’s ring. Defendant’s clothing, which he put on to go to the police station, was later obtained as evidence.

ASSIGNMENT OF ERROR NO. 1

Trial court erred in denying defendant’s motion to suppress evidence.

Defendant objects to the trial court’s denial of defendant’s motion to suppress the evidence gathered from his girl friend’s mother’s apartment when he was arrested on July 13, 1980. According to Officer Patrick J. Rooney’s testimony at the motion to suppress, he and several other officers went to Gwendolyn Walker’s apartment looking for defendant. Their investigation had revealed that defendant was seen fleeing the area shortly after the shot was heard and that he was currently staying with his girl friend’s mother, Ms. Walker. The police knocked on the apartment door and were allowed to enter. They found Tuckson asleep on the sofa and did an immediate search of the area around the sofa where they found beige slacks and a screw driver. After the defendant was handcuffed and removed from the apartment, the police obtained a consent to search the apartment from Ms. Walker. Pursuant to this search, the .38 caliber pistol and a pliers were found under the coffee table. Ms. Walker’s testimony that the police entered the apartment with guns drawn conflicts with Officer Rooney’s testimony, that the police had not drawn their guns on entering.

If Ms. Walker’s testimony is considered more credible than Officer Rooney’s testimony regarding the drawn guns, the scene in the apartment was threatening to her, perhaps affecting the voluntariness of the consent search. Nevertheless, this Court restated in State v. Robinson, 386 So.2d 1374 (La.1980) that whether a consent to search was voluntary is a question of fact to be determined by an analysis of all the circumstances of each case. State v. Wilson, 363 So.2d 445 (La.1978). Because consent is a question of fact involving the credibility of the witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. State v. Dunbar, 356 So.2d 956 (La.1978), Robinson, supra at 1376.

The trial judge chose to believe the police officer’s testimony that he did not have his gun drawn and that he did obtain permission to search the apartment without threats or coercion. A review of the record does not show that Ms. Walker was intimidated or threatened in any way, only a conflict over whether guns were drawn or not. There is no showing that the trial judge abused his discretion in concluding that the consent to search was freely and voluntarily given. Thus, he did not err in overruling defendant’s motion to suppress the evidence. State v. Robinson, 386 So.2d 1374 (La.1980).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Trial court erred in denying defendant’s motion for a new trial as verdict contrary to law and evidence.

First degree murder is a murder committed during the perpetration of certain stipulated felonies, one of which is aggravated burglary. In order to show that Tuckson killed Johnson during the perpetration of an aggravated burglary, it was necessary for the State to prove, among other things, the “unauthorized entering of a ... movable (the van) where a person is present ...” (L.S.A.-R.S. 14:60) It is undisputed that at the time Tuckson broke into the van, there was no one else inside it. Indeed, it appears relatively certain that there was never a time when Tuckson and Johnson were together inside the van. Tuckson testified, as follows, in that regard:

“Well, when I was in the truck, and he hollered, and I hopped out.”
Q. You were already outside the truck when he got in the truck?
A. Yes, sir.

Clearly, in order for there to have been an aggravated burglary of this van, and thus, a first degree murcler of Mr. Johnson, it must be shown that the jury could rationally find from the evidence that (beyond a reasonable doubt), Tuckson made an unauthorized entry of the van, corresponding in time to the “presence” of the victim or some other person. The statutory language is clear and unambiguous and does not admit of the interpretation that an aggravated burglary of a vehicle is committed when an unoccupied vehicle is entered by the criminal at one moment and the owner or someone else comes along later.

State v. Goods, 403 So.2d 1205, 1209 (La.1981):

“. . . L.S.A.-R.S. 14:60 . . . requires that the State prove, beyond a reasonable doubt, that a person was present within the burglarized structure, watercraft, or movable as one of the essential elements of aggravated burglary.”

In this case, the defendant was surprised during the commission of a felony, but it was simple burglary, not one of the felonies listed in the first degree murder statute.

Since he did not commit a homicide “when ... engaged in the perpetration of .. . aggravated burglary”, Tuckson’s conviction of first degree murder must be set aside.

The elements of first degree murder which must be found by the jury to have been proven beyond a reasonable doubt are: 1) the commission of a homicide, 2) by the defendant, 3) who had a specific intent to kill or inflict great harm, 4) in the course of commission of an aggravated burglary. Our review, negating the jury finding on element 4) reveals no reason to question the findings on the first three elements. As to each of these elements, there is sufficient evidence upon which the jury could reasonably have found guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Harveston, 389 So.2d 63 (La.1980).

The commission of a homicide where there is a specific intent to kill or inflict great bodily harm constitutes the crime of second degree murder, and second degree murder is a responsive verdict to an indictment of first degree murder. That being the case, it is unnecessary to remand this case for a new trial.

State v. Byrd, 385 So.2d 248 & 251 (La.1980).

“Since all the elements of the lesser and included offense .. . have been proved beyond a reasonable doubt, this court should not strike down all of those adequately supported findings merely because the evidence did not reasonably support the conclusion that an additional element also existed.”

Nor will it be necessary to re-sentence in this case, since the mandatory sentence for second degree murder is the same as the sentence that has already been entered.

The conviction of first degree murder is set aside. This matter is remanded for entry of a judgment of guilty of second degree murder.

CONVICTION OP FIRST DEGREE MURDER SET ASIDE, REMANDED'FOR ENTRY OF GUILTY OF SECOND DEGREE MURDER.

THE SENTENCE IS AFFIRMED.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

In previous cases where the majority has found no evidence of an essential element of the crime for which defendant was charged and convicted, I have dissented from the order remanding the case for entry of a judgment of guilty to a responsive verdict. Rather, I considered that defendant should have been discharged. However, in view of the majority’s adherence to this view, I feel constrained to concur in the result.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Ca-logero, Marcus and Dennis.

      . See State v. Goode, 403 So.2d 1205, 1209 (La.1981) where we said “. . . there is no doubt that no one was present in the movable at the time defendant burglarized it. Thus, lacking this essential element, the State could not prove the defendant was guilty of aggravated burglary.”

      . The relevant portion of the first degree murder statute, La.R.S. 14:30, reads:
      “First degree murder is the killing of a human being:
      (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;”

      . The relevant portion of La.R.S. 14:30.1: “Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm;”

      .Article 814 of the Code of Criminal Procedure provides, among other things:
      The only responsive verdicts which may be rendered where the indictment charges the following offenses are:
      1. First Degree Murder
      2. Guilty
      3. Guilty of second degree murder
      4. Guilty of manslaughter
      5. Not guilty"


author: PHILIP C. CIACCIO, Justice Pro Tern.

text:
    STATE of Louisiana v. Lee BRADY.
    No. 81-KA-2715.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Brett Gray-son, Asst. Dist. Attys., for plaintiff-appel-lee.
    Jim Hrdlicka and David Randall Buckley, Baton Rouge, for defendant-appellant.
   PHILIP C. CIACCIO, Justice Pro Tern.

The defendant, Lee Brady, was charged with the crimes of second degree battery and simple robbery. R.S. 14:34.1 and R.S. 14:35. He was found guilty, after trial by jury, of both charges and sentenced to five years at hard labor on each count, to run concurrently.

On August 27, 1980, at approximately 11:00 p. m., Edward Stevenson, the victim, was inside a bar, known as “The Disco Place.” The bar is located at 101 Riverside in Baton Rouge, Louisiana. At the time, Stevenson boasted to a few patrons that he had just been released from jail on bond. He spoke of how much money it took to obtain his release. As the victim was leaving the bar, a group of individuals grabbed him and began beating him outside the bar. The group proceeded to remove the victim’s clothes and rifle his pockets. Stevenson was severely teaten about the face and upper torso. The incident was witnessed by Lonnell Brister. He had stopped, in his automobile, for a red light, in the vicinity of the incident. He observed the defendant, Lee Brady, hitting and kicking Stevenson on the ground. He also noted that the victim’s pockets had been turned inside out. Lonnell Brister notified the police and returned to the scene where he positively identified the defendant as the individual who had assaulted Edward Stevenson.

On appeal, the defendant relies on five assignments of error. He only argues and briefs assignments of error numbers 4 and 5. The remaining assignments are considered abandoned. State v. Gardette, 352 So.2d 212 (La.1977).

In assignment of error numbers 4 and 5, the defendant contends that the trial court erred in denying a motion for a new trial as the verdict was contrary to the law and the evidence. More particularly, the defendant argues that the state failed to prove beyond a reasonable doubt that Lee Brady was the perpetrator of the crimes charged.

In any criminal prosecution, the state must sustain the heavy burden of proving every element of the crime charged beyond a reasonable doubt. R.S. 15:439, State v. Hollingsworth, 337 So.2d 461 (La.1976).

In reviewing the denial of a new trial based upon insufficiency of the evidence, the Supreme Court must determine whether, after reviewing the evidence in a light which is most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Stewart, 400 So.2d 633 (La.1981). Under this rationale, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Long, 408 So.2d 1221 (La.1982).

On appeal, the defendant attacks the testimony of three state witnesses: Lonnell Brister, Larry Ricks and Police Officer, William Rose. In discussing the testimony of the several witnesses, the defendant concludes that the evidence presented by the state merely shows that Lee Brady was in the area where the crime was committed at the time of the crimes’ commission and that he was wearing clothing similar to several other people who were also present.

The defendant points to the fact that on cross examination, the state’s eye witness, Lonnell Brister, admitted that there were other people in the group dressed like the defendant and he was not certain whether those individuals had the same physique as the defendant. It is noteworthy, however, that this witness positively identified the defendant as Stevenson’s assailant, both at the scene of the incident and in court. The identification was based not only on the defendant s attire, but also upon his physical appearance. This witness testified that the defendant was distinctive in that he was short and muscular, while the rest of the group were taller and lankier.

Although Lonnell Brister did not see Lee Brady take anything from the victim’s person, he did observe that there were two people standing near the victim at the time and that one was the defendant. He also saw the victim’s pockets turned inside out.

The defendant stresses the fact that state witness, Larry Ricks, did not see the defendant beat the victim nor did he see the plaintiff’s wallet. The purpose of Ricks’ testimony was not to identify the defendant as the actual assailant, but was simply to corroborate that testimony which placed the defendant at the scene of the crime. This witness’ testimony placed the defendant in the group of people outside the bar during the altercation, and he made an in-court identification of the defendant. It is worthy of note that although this witness testified that there were several individuals present who were wearing jerseys and caps similar to the defendant’s, he admitted upon re-direct examination that the defendant was the only one present wearing a red jersey.

The defendant argues that Officer Rose testified that when he asked the victim the name of his assailant, he responded that it was Larry Young. The record reveals that this encounter took place while the victim was in a semi-conscious state in the hospital and that when asked the name of his assailant, the victim replied that Larry Young was a “possible” assailant.

Our review of the record, convinces us that the state negated any possibility of misidentification of this defendant as a perpetrator of the crime. The evidence viewed in a light which is most favorable to the prosecution would prove beyond a reasonable doubt that Lee Brady was indeed the perpetrator of the offenses for which he was convicted.

For the reasons assigned the conviction and sentence of the defendant are affirmed.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. & Philip C. Ciaccio of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices pro tempore joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.