author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Timothy George BALDWIN.
    No. 66033.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    J. Randolph Smith and Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-appellant.
   WATSON, Justice.

Timothy George Baldwin and Marilyn Lee Hampton were indicted by a grand jury for the first degree murder of Mary James Peters, in violation of LSA-R.S. 14:30. The trials were served and Baldwin was found guilty. After the sentencing portion of his trial, the jury unanimously recommended the death penalty. Two aggravating circumstances were found: that Baldwin was engaged in an armed robbery; and that the crime was committed in an especially heinous, atrocious and cruel manner. Defendant Baldwin has appealed, relying on forty assignments of error.

FACTS

Timothy Baldwin, his wife Rita, and their seven children were neighbors of Mary James Peters in West Monroe, Louisiana, from 1971 until 1977. She was godmother to their youngest son, Russell. During the latter part of their stay in West Monroe, William Odell Jones also resided with the Baldwins. The group went to Bossier City for six months and then moved to Ohio. The oldest daughter Michelle, remained in West Monroe with one brother. A second son entered the service. Marilyn Hampton and her three daughters stayed with the Baldwins in Ohio. Marilyn, Timothy Baldwin and her children then left, accompanied by Jones. Baldwin and Jones worked together in the business of installing aluminum siding. After the departure of her husband Rita Baldwin got in financial difficulties and was picked up on bad check charges. Her four younger children went to live with Michelle in West Monroe. Meanwhile, Timothy Baldwin, Jones, Marilyn Hampton and her three children led an itinerant existence. Their last means of transportation was a 1978 black Ford van, rented in Tampa, Florida. On April 4,1978, Marilyn Hampton and Timothy Baldwin drove the van to West Monroe. Jones and the children stayed at a cabin in Holmes State Park, near Jackson, Mississippi. Baldwin and Marilyn Hampton visited Michelle’s apartment in West Monroe but left there around 8:00 P.M. Shortly afterward, a van was seen parked in front of Mrs. Peters’ house. A man and woman were observed leaving the residence between 10:00 and 11:00 P.M. Shortly before their departure, passerbys saw and heard indications that someone in the Peters’ home was being beaten. Baldwin testified in his own behalf and admitted that he and Marilyn visited Mrs. Peters that evening, but denied the murder. Mrs. Peters, who was 85 years old, was beaten with various things, among them a skillet, a stool and a telephone. She remained on the kitchen floor overnight and was discovered the next morning shortly before noon by Elsie Mae Brice, an employee of the Ouachita Council Meals on Wheels, who was bringing her noon meal. Although helpless and incoherent, Mrs. Peters tried to defend herself against the police officers and the ambulance attendants who took her to the hospital. Dr. A. B. Gregory saw her in the emergency room around 12:30 P.M. on April 5, 1978, and found her semicomatose. Her left cheek bone and jaw bone were shattered; she had brain damage from multiple contusions and lacerations. According to Dr. Gregory, Mrs. Peters could not communicate rationally. She died the following day of the injuries. Dr. Frank Chin, who performed the autopsy, attributed her death to massive cerebral hemorrhage and swelling, secondary to external head injuries.

Timothy Baldwin and Marilyn Hampton were subsequently located in El Dorado, Arkansas. Timothy Baldwin signed consents for the search of their motel room and the van. Two blue bank bags, one empty and one containing savings bonds and certificates of deposit payable to Mary James were found in the van. Jones, to whom Marilyn Hampton and Timothy Baldwin had made inculpatory statements both before and after the crime, helped police officers locate a safe which had belonged to the victim in the LaFourche Canal in West Monroe. Baldwin’s finger and palm prints were found on various items in the Peters’ home: a cigarette lighter, a television set and a coffee cup.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in denying his motion for a change of venue. The evidence at the hearing on the motion was that the newspaper coverage was routine for a murder case. A television story quoted the police chief as saying the crime was “savage” (Tr. 277) and a reporter characterized it as a “brutal slaying” (Tr. 278). However, these descriptions are not exaggerated. The lay witnesses at the hearing were generally unfamiliar with the crime although some had a sketchy impression about it from the news media. The only one who testified that the public had a preformed opinion about defendant’s guilt was Ludvic Herlevic, who had known the victim all of his life and took her to church every Sunday. Defendant did not prove that there was such prejudice in the collective mind of the community that a fair trial was impossible. LSA-C.Cr.P. art. 622. There was no difficulty in securing an impartial jury. Although only three months elapsed between the murder and the trial, many of the prospective jurors were completely unaware of the crime. The severe offense apparently had little impact on the community. Only one challenge for cause was granted because the prospective juror had a preconceived idea about Baldwin’s guilt. There was no basis for a change of venue and the trial court correctly denied the motion. State v. Clark, 340 So.2d 208 (La.1976); State v. Smith, 340 So.2d 222 (La.1976).

This assignment lacks merit.

ASSIGNMENTS OP ERROR NUMBER TWO, THREE AND FOUR

Defendant contends that the trial court should have allowed him to enter a plea of not guilty by reason of insanity; should have appointed a sanity commission and should have provided him with an expert psychiatrist at State expense. LSA-C. Cr.P. art. 561 provides that a defendant may withdraw a plea of not guilty and enter the alternate pleas of not guilty and not guilty by reason of insanity within ten days after arraignment, but the court may thereafter allow such a change “for good cause”. The trial court found no cause for the change here. At the hearing on the motion for a change of plea, the only evidence of impaired mental capacity was testimony that Baldwin had been a heavy drinker. Compare State v. Taylor, 229 So.2d 95 (La.1970), where there was both lay and medical evidence of insanity. The trial court correctly concluded that there were no indicia of insanity, and no basis for the appointment of a psychiatrist or a sanity commission. LSA-C.Cr.P. art. 643; State v. Clark, 367 So.2d 311 (La.1979).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant objects to the trial court’s denial of his motion to suppress the evidence seized from the Arkansas motel and the Ford van. There is no question that Baldwin was legally arrested pursuant to a valid warrant. At the hearing on the motion to suppress, four Louisiana detectives testified that Baldwin’s written consents to the searches were given freely and voluntarily. Baldwin testified that he was not presented with a warrant for the searches. On cross-examination, he was asked to identify his signatures on the two documents giving permission for the searches and seizures. Counsel attempted to invoke Baldwin’s Fifth Amendment privilege against self-incrimination, but the trial court required him to respond. By taking the stand at the suppression hearing, Baldwin subjected himself to cross-examination on the issues relevant to that hearing. State v. Lukefahr, 363 So.2d 661 (La. 1978). Any consent to the searches was relevant to the question of whether the evidence should have been suppressed. The trial court did not err in requiring Baldwin to identify his signatures. The State carried its burden of proving that Baldwin’s consent to the searches was voluntary and uncoerced.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX, SEVEN, EIGHT AND TEN

The defense exhausted its peremptory challenges and complains of the trial court’s failure to excuse four prospective jurors for cause. The defense challenged all four peremptorily.

It is contended that Ernest Stan-sel should have been excused because of his personal friendship with Carlton Traweek, a police officer who testified for the prosecution, and because he had a fixed opinion about defendant’s guilt.

Although prospective juror Stansel had formed an opinion about defendant’s guilt or innocence, he testified that this would not affect his decision and that he could be fair as a juror. Stansel said that his personal friendship with Traweek would not make him believe Traweek’s testimony over that of any other witness and would not influence his verdict. Stansel testified that he could vote impartially after listening to the evidence.

It is also argued in brief that Stansel was a personal friend of investigator Charles Dortch, who assisted the prosecution, but Stansel’s testimony was that he knew Dortch only to the extent of knowing who he was.

The relationship between Stansel and Traweek was not within the purview of LSA-C.Cr.P. art. 797(3). State v. Watson, 301 So.2d 653 (La.1974). Stansel was competent to serve as a juror. LSA-C.Cr.P. art. 797(2). There was no abuse of discretion in denial of the challenge for cause.

Defendant contends that prospective juror George A. Wood should have been excused because he had served as assistant chief of police for the City of Monroe. Although Wood had served twenty-one years with the Monroe Police Department, he said that he would be fair to both sides in his deliberations. He had been retired for sixteen years at the time of trial. He testified that he would not believe a police officer merely because he was an officer and that he would find defendant not guilty if he had a reasonable doubt in the matter. Woods had no particular connections with this defendant which would have made him ineligible to serve as a juror. Compare State v. McIntyre, 365 So.2d 1348 (La.1978). The trial court correctly found that Woods’ testimony on voir dire showed that he would be a fair and impartial juror, despite his background in police work. See State v. Qualls, 353 So.2d 978 (La.1977).

Defendant contends that the trial court erred in failing to grant its challenge for cause of prospective juror Manning H. Kemp. Kemp’s brother-in-law is a Monroe police officer and he is personally acquainted with other law enforcement people. Kemp stated that the relationship would not influence him but admitted that he would favor the testimony of a police officer over that of the defendant because police officers are trained observers, and have nothing to gain by giving false testimony. When examined by the court, Kemp said that he would give believable testimony from a stranger, which he had no reason to doubt, equal weight with that of a police officer. He testified that he had no preconceived notions about the case and could be a fair and impartial juror, free of any prejudice. Like the prospective juror in State v. Governor, 331 So.2d 443 (La.1976), Kemp said he would consider the testimony as a whole. He agreed that policemen can make mistakes and said he would not exclude testimony contra to that of a policeman.

Kemp was not unqualified to serve as a juror merely because he regarded policemen as trained observers. This does not imply that he would therefore accept their testimony without question. There was no abuse of discretion in refusal of the challenge for cause. State v. Allen, 380 So.2d 28 (La.1980).

Both the State and the defense attempted to challenge prospective juror Vera Glass for cause: the State because of her views on capital punishment; and the defense because she thought an indictment was some indiction of guilt, tended to believe law enforcement officers over lay witnesses, and felt that defendant should testify in his own behalf. When the court instructed Ms. Glass that she could not consider the fact that defendant had been indicted as an indication of guilt, she answered that she would not. Ms. Glass’ son had been a deputy and she knew other law enforcement officers. She tended to believe police officers because of her son’s conscientious attitude about the law and admitted that past discussions with her son would probably affect her. Ms. Glass also admitted that the fact that she had an eighty-five year old mother might influence her and that she would always wonder why a defendant failed to testify. However, she responded to the court’s rehabilitating questions correctly and stated that she could base her decision solely on the evidence presented and the instructions given by the court. Ms. Glass indicated that she would accept what the court told her regarding the weight to be given to the testimony, the presumption of innocence, and the defendant’s constitutional right to refuse to testify. Her responses show no bias. Despite some confusion, she apparently understood the trial judge’s instructions. She was able to extract the gist of his explanation that an indictment cannot be regarded as evidence of guilt and restate it in her own words (Tr. 843-844). Her comprehension was sufficient to make her a competent juror. Compare State v. Nolan, 341 So.2d 885 (La.1977). There was no abuse of discretion in the refusal to allow the challenge for cause.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER NINE

Defendant contends that a mistrial should have been granted because one of the jurors, Judy Dell Puckett, perjured herself on voir dire. During the trial, it developed that Ms. Puckett knew District Attorney Parkerson and defendant contended that she had denied knowing anyone who worked in the district attorney’s office. Ms. Puckett had first been asked on voir dire if she knew anyone in law enforcement. She replied that she did not know anyone currently with the Sheriff’s Department. She was not asked if she knew anyone in the District Attorney’s office, but only what contact she had had with that office in connection with the theft of her car. She replied that Deputy Gene Hatten took care of the matter and she did not talk to anyone else at the District Attorney’s office on that occasion. No false statement was made by Judy Puckett. The trial court found no impediment to a fair trial and correctly denied the mistrial. State v. Forbes, 348 So.2d 983 (La.1977).

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER ELEVEN AND TWELVE

These assignments of error relate to allegedly prejudicial rulings relative to the examination of State witness Doris Ellen Baldwin. When the State tried to impeach Doris Baldwin’s testimony, the trial court ruled that the State had failed to show either surprise or hostility. LSA-R.S. 15:487, 488. The trial court did, however, allow her to answer a question which was ruled “leading” and a question on re-direct examination which exceeded the subject matter of cross-examination.

Doris Baldwin initially testified that she had talked with Bill Jones on Thursday, April 6, but did not remember whether she had talked to her father that day or not. The State attempted to impeach her on the basis of a prior inconsistent statement. The court made an in camera examination of the statement and found no real inconsistency, but ruled that the State could clarify “hazy areas” (Tr. 1279). Ms. Baldwin was then asked:

“Miss Baldwin isn’t it true that in fact you did receive a phone call from Bill and your father about 5:30 on the evening of Thursday . . . ”. (Tr. 1282)

The court ruled that the question was leading but not objectionable or prejudicial. Doris Baldwin was allowed to answer yes. When she was queried as to the content of the conversation, the trial court sustained an objection. The trial court did not abuse its discretion in allowing the first question. LSA-R.S. 15:277 prohibits leading questions to one’s own witness. Even if the question were leading in that it suggested the phone call had been received, allowing the witness to answer it did not prejudice defendant. State v. Quincy, 363 So.2d 647 (La.1978).

The State attempted to ask Ms. Baldwin whether she observed any injury to Barbara Hampton’s face on Wednesday, April 6, and the trial court maintained an objection on the ground that the subject was not covered on cross-examination. LSA-R.S. 15:281. Counsel for the State then stated that he would recall the witness and defendant consented to the question. By consenting to the questioning, defense counsel waived his objection.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THIRTEEN

Defendant contends that the trial court erred in allowing irrelevant testimony of William Odell Jones in regard to the relationship between Marilyn Hampton and defendant. It is contended that defendant was placed in a bad moral light as one who left his wife for another woman. There is no basis for the contention because both Rita and Timothy Baldwin also testified about the relationship, and Jones’ testimony did not add anything.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER FOURTEEN, FIFTEEN, SIXTEEN, SEVENTEEN AND EIGHTEEN

These assignments of error are directed to the testimony of William Odell Jones that Timothy Baldwin told him he would kill Ms. James [the name by which he knew Ms. Peters] if necessary to get her money. The hearsay testimony was allowed to show defendant’s specific intent to murder the victim. LSA-R.S. 15:446. The statements were unquestionably voluntary. Defendant received pre-trial notice that the statements would be used in evidence, and the statements were admissible to prove Baldwin’s motive and intention. State v. Weedon, 342 So.2d 642 (La.1977). They showed Baldwin’s state of mind immediately prior to the murder.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NUMBER NINETEEN, TWENTY, TWENTY-ONE, TWENTY-TWO, TWENTY-THREE, TWENTY-FOUR, TWENTY-FIVE, TWENTY-SEVEN, AND TWENTY-EIGHT

Defendant contends that testimony about his arrest in Arkansas and the searches should not have been allowed because there was no probable cause for his arrest, and the searches of the motel room and the van were illegal. Since the arrest was legal and he consented to the resulting searches and seizures, testimony about the circumstances was clearly admissible.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-SIX

Defendant complains that the trial court erred in denying a mistrial when the prosecuting attorney alluded to an appeal.

Defense counsel repeatedly objected to the testimony from the Arkansas deputies and others about the circumstances surrounding the arrest, searches and seizures. In response to one of these objections, the prosecution stated, “.. . counsel has reserved his rights for appeal, . .. ”. (Tr. 1432) It is contended that the remark was improper and prejudicial, indicating to the jury that defendant would be convicted and would then appeal. Further, it is argued that the jury would regard the appellate process as another type of trial rather than a review of the record and the remark might induce them to convict the defendant because there would be another trial of his guilt or innocence. LSA-C.Cr.P. art. 775 provides in pertinent part:

“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.”

The trial court in its per curiam noted that in its opinion the word appeal did not necessarily connote a guilty verdict in the minds of the jurors. The trial court stated at the time that he did not feel the remark prejudiced defendant, but offered to admonish the jury. Defense counsel declined the admonishment on the ground that it would merely draw attention to the word appeal.

Mere use of the word appeal does not have the prejudicial effect argued by defense counsel. The trial court stated in its per curiam that the jurors’ understanding of the judicial process was such that they would probably expect an appeal to result from a trial in all circumstances. The trial court did not feel the word necessarily connoted a conviction or guilty verdict. The remark is not within those enumerated in LSA-C.Cr.P. art. 770 as mandating a mistrial. It is only when the prejudice created by a remark prevents a fair trial and an admonition is insufficient that a mistrial should be ordered. LSA-C.Cr.P. art. 771. An admonition would have been sufficient here. Since defendant declined to request one, he cannot complain of any prejudice resulting from its omission. The drastic remedy of a mistrial was not warranted. State v. Heads, 370 So.2d 564 (La.1979); State v. Matthews, 354 So.2d 552 (La.1978). It is unlikely that the jury was aware that there is an appeal only from a conviction. No substantial prejudice was demonstrated.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-NINE

Defense counsel objects to the State being allowed to recall a witness to elicit testimony which exceeded the scope of cross-examination. LSA-R.S. 15:281 places the scope of redirect examination within the trial judge’s discretion, and LSA-C.Cr.P. art. 765(5) allows the trial court to permit additional evidence prior to argument.

There was no error in allowing the witness to be recalled and defense counsel waived his right to further examination of the witness by stating “that’s all we have” (Tr. 1482).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTY

It is contended that the trial court erred in allowing Detective Larry Norris to testify as an expert in fingerprint identification. Norris had been the fingerprint officer for the West Monroe police department for eighteen months and had worked in the development of latent fingerprints for six years. He had specialized in comparison of latent fingerprints for fourteen months prior to trial and had attended various special schools: the Law Enforcement Training Academy at LSU in Baton Rouge; the F.B.I. School at LSU; and the F.B.I. Academy in Quantico, Virginia. See State v. Lewis, 351 So.2d 1193 (La.1977); State v. Madison, 345 So.2d 485 (La.1977); and State v. Overton, 337 So.2d 1201 (La.1976). Norris’ testimony shows complete familiarity and knowledge of the subject of fingerprint identification. The trial court did not err in accepting him as an expert in the field of fingerprint identification.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-ONE

Defendant complains about the admission in evidence of Exhibit S-34, a photographic enlargement of a latent palm print found on a cigarette lighter at the scene of the crime and a photographic enlargement of defendant’s palm. The exhibit enlarged the photographs to enable the jury to make a visual comparison. A photograph which is otherwise admissible should not be excluded merely because presented in an enlarged form. It is only when the enlargement misrepresents the evidence that such a photograph should be excluded. It is contended that the enlarged prints are not the best evidence because of distortion, but the claim that the enlargements distort the evidence is not substantiated in any particular.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER THIRTY-TWO AND THIRTY-THREE

Defendant contends that he was prejudiced by the State’s failure to allow pretrial examination of photographs taken at the site where the safe was found in the LaFourche Canal. Counsel for defendant moved for a mistrial, and the motion was denied. The court allowed defense counsel to view the photographs during a trial recess. A motion was then made to exclude the pictures and all testimony concerning them because of the State’s failure to disclose them prior to trial. LSA-C.Cr.P. art. 729.5. The trial court ruled that there was no prejudice to the defense and allowed the evidence to be admitted.

The photographs were taken on the morning of the day they were introduced into evidence and could not have been made available prior to trial. The recess to enable defense counsel to examine the evidence cured any surprise and eliminated the necessity of the evidence being excluded. The photographs themselves were not inflammatory or prejudicial; they merely illustrated the scene where the safe was discovered. Allowing defense counsel to view the photographs prior to their introduction was sufficient to assure a fair trial. The trial court found no evidence of bad faith on the part of the State, and there was no abuse of discretion in allowing the photographs into evidence.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-FOUR

Defense counsel moved to exclude testimony by District Attorney Parkerson on the ground that he did not appear on the State’s original witness list, and the trial court denied the motion. This is assigned as error.

District Attorney Parkerson was called to rebut an inference of immunity to witness Jones. The State did not know his presence was necessary until the immunity issue was raised, and he was not sequestered. There was no abuse of discretion in allowing the witness to testify. LSA-C.Cr.P. art. 764; State v. Bell, 346 So.2d 1090 (La.1977). The contention that the testimony of a public figure creates an impression of guilt .is not justified here, where the only subject was immunity for Jones. Nothing in the testimony indicates a personal belief in defendant’s guilt or would create that impression in others.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-FIVE

Defendant objects to admission into evidence of various State exhibits.

A black and white photograph of the victim is allegedly more prejudicial than probative. The photograph (S-16G) shows the extent of the injuries, the identity of the victim and the probable cause of death. It is unpleasant but not gruesome. The probative value outweighs any prejudice. State v. Trass, 347 So.2d 1156 (La.1977).

Other objects were objected to on the ground of improper identification and an improper chain of custody. These contentions are unfounded.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-SIX

Defendant complains that the trial court erred in refusing to give requested special charge, number 3 as follows:

“The prosecution must prove beyond a reasonable doubt, not only that the offense was committed as alleged in the indictment, but that the defendant was the person who committed it. You must be satisfied beyond a reasonable doubt of the accuracy and correctness of the identification of the defendant before you may convict him.
“You are further instructed that it is not necessary for the defendant to prove that another person may have committed the crime; if the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the defendant not guilty.” (Tr. 148, 149)

The trial court concludes that the charge was covered by the general charges which stated in pertinent part:

“If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt and to return a verdict of acquittal.” (Tr. 152)
“[If] you find the evidence unsatisfactory upon any single point indispensably necessary to constitute the accused’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.” (Tr. 153)

The general charges made it clear to the jury that every element of the crime including the identity of the defendant had to be proven. State v. Stewart, 357 So.2d 1111 (La.1978).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-SEVEN

Defendant contends that the trial court should have given requested special charges relating to the plea of not guilty by reason of insanity. Since there was no plea of not guilty by reason of insanity, the charges were inappropriate and correctly denied. LSA-C.Cr.P. art. 803.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-EIGHT

Defendant contends that the trial court should have granted a motion for new trial on the ground that there was no evidence of specific intent at the time of the crime. It is contended that defendant may not have realized the consequences of his act because of his mental state or intoxicated condition. The evidence does not establish that defendant was too intoxicated to realize what he was doing at the time the crime was committed, and there is ample evidence of the requisite specific intent at the time the crime was committed.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER THIRTY-NINE AND FORTY

Defendant contends that the trial court should have granted his motion to arrest judgment and erred in overruling his objection to imposition of sentence.

The State rested its case at the sentencing hearing on the trial testimony. No additional evidence was presented to show the cruel nature of the offense. Consequently, it is contended that evidence of heinousness was introduced at the guilt portion of the trial in violation of State v. Payton, 361 So.2d 866 (La.1978).

Because of the particular nature of this crime, the evidence of the cause of death necessarily included some description of Ms. Peters’ physical condition. An inference would arise that the crime was a cruel one, but this is not because any effort was made by the State to stress this aspect of the matter. Evidence of the cause of death was admissible and in itself showed the crime to have caused great pain and suffering.

At sentencing, the jury found two aggravating circumstances. The jury was charged as to the statutory mitigating circumstances and there is no reason to believe that these were not properly considered since the verdict states that the recommendation was made “after consideration of the mitigating circumstances” (Tr. 162).

The evidence supports the jury’s conclusion that the crime was committed during an armed robbery and that the offense was committed in an especially cruel manner.

These assignments of error lack merit.

SENTENCE REVIEW

Art. 1, § 20 of the Louisiana Constitution of 1974 prohibits excessive punishment. LSA-C.Cr.P. art. 905.9 mandates that each death sentence be reviewed to determine if it is excessive under the circumstances. The criteria for review are:

“(a) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factors, and
“(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, considering both the crime and the defendant.”

A. PASSION, PREJUDICE OR OTHER ARBITRARY FACTORS

There is no evidence that Baldwin’s sentence was imposed because of passion, prejudice or other arbitrary factors.

B. AGGRAVATING CIRCUMSTANCES

(1) Armed Robbery

Timothy Baldwin admitted that he was carrying a knife when he went to Ms. Peters’ house the night of the murder. The knife did not show any evidence of blood, but the other items used to beat Ms. Peters were dangerous weapons in the manner used. State v. Bonier, 367 So.2d 824 (La. 1979); LSA-R.S. 14:2(3). The safe and its contents which were taken from the premises were in Ms. Peters’ immediate control, though not on her person. The fact that the safe was taken from the bedroom and Ms. Peters was beaten in the kitchen is immaterial. The property was in Ms. Peters’ home and under her control. State v. Verret, 174 La. 1059, 142 So. 688 (1932).

There is no doubt that Baldwin was engaged in an armed robbery when he killed Ms. Peters. The jury correctly found that statutory aggravating circumstance to be present. LSA-C.Cr.P. art. 905.4(a).

(2) Cruelty

An especially cruel murder is one that causes death in a particularly painful and inhuman manner. While this aggravating circumstance necessarily involved some degree of subjectivity, the facts reflect that Ms. Peters was severely beaten with various objects including a skillet, a stool and a telephone, and left to die a lingering death. There can be no question that a prolonged beating is an especially cruel way to commit murder. This is particularly true when the blows are inflicted upon an aged female, who is unable to effectively resist. Ms. Peters’ feeble effort to fight her rescuers shows that she was conscious on some level of the need to defend herself. Unable to summon help, she had remained in terror for approximately twelve hours before she was discovered. The record does not clearly show whether Baldwin was aware that he had left Ms. Peters to die a slow death. Undoubtedly he assumed she could not survive his merciless beating or he would not have left her with the possibility of later identifying him. However, he made no effort to end her miserable and suffering condition. His action was atrocious in that it violates the bounds of common decency. The jury correctly found that this murder was committed in an especially heinous, atrocious and cruel manner. LSA-C.Cr.P. art. 905.4(g).

The evidence supports both of the statutory aggravating circumstances found by the jury.

C.DISPROPORTIONATE SENTENCE

The sentence review memorandum on behalf of the State of Louisiana shows two other first degree murder convictions in Ouachita Parish between January 1, 1976, and September 5, 1978. One defendant, Charlie Lee Carter, was sentenced to life imprisonment and the other, Dalton Preje-an, was given the death penalty. Charlie Lee Carter was a twenty-six year old male, who murdered Alfred C. Carter with a pistol. There were no aggravating circumstances and the jury recommended the lesser penalty of life imprisonment. Dalton Prejean, aged seventeen, killed police officer Donald Cleveland with a revolver. The aggravating circumstance was that the victim was a peace officer engaged in his lawful duties. LSA-C.Cr.P. art. 905.4(b). Despite the mitigating circumstance of Pre-jean’s youth, he received the death penalty. LSA-C.Cr.P. art. 905.5(f).

Considering this sentence in relation to the mitigating circumstances in LSA-C. Cr.P. art. 905.5, the Post Sentence Report shows that Baldwin has a prior history of criminal activity commencing at an early age.

There is no evidence that the crime was committed under the influence of mental or emotional disturbance. Dr. John N. Rit-chey and Dr. Merritt N. Dearman, a psychiatrist, concluded that Baldwin did not have any mental disorder which prevented him from understanding the proceedings against him and assisting counsel in his defense. Neither doctor found a psychiatric illness or any evidence to suggest a history of psychosis. Dr. Ritchey stated that Baldwin has a “Character Disorder” but no mental impairment. Dr. Dearman felt that Baldwin falls into the category of a “socio-pathic personality, anti-social type.”

There is no evidence that Baldwin was under the influence of another person when the crime was committed. On the contrary, he has a strong personality and was a leader rather than a follower, as in his relationship with Jones.

Baldwin did not claim any extenuation for his conduct. Although he denied the crime in interviews with the two physicians, he admitted that Ms. Peters endured “a very brutal death”.

There is evidence that Baldwin was drinking on the evening of the crime, but nothing to suggest that his intoxication was such that he was unaware of what he was doing. Far from exhibiting a mental defect, Baldwin is of above average intelligence and claimed an I.Q. of 147.

Dr. Dearman gave Baldwin’s date of birth as September 17, 1937, and the Post Sentence Report gives his date of birth as September 17,1942. Regardless of which is correct, he is a mature man with a large family and not a youthful offender.

There is no evidence that Baldwin’s participation in the crime was minor. Although the testimony of his wife and two of his children indicate that Baldwin was at one time a good husband and father this was not the case for a long time prior to the murder. He had left his wife and family, and was not supporting them. It is contended that his high I.Q. would enrich the prison community, but, in view of the doctors’ evaluation of his personality, it is doubtful that this would be the case.

The record does not establish that Baldwin’s death sentence is disproportionate when viewed in comparison with that meted out for similar crimes or that the sentence is excessive.

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

I remain of the belief that our scheme for review of the proportionality of the imposition of the death penalty is constitutionally flawed in not mandating statewide review of the sentences imposed in similar cases. See State v. Prejean, 379 So.2d 240, 249 (La.1980) (dissenting from denial of rehearing). However, the extraordinary deliberateness and brutality of this murder of an 84-year old woman for her valuables clearly justifies the death penalty without need of extensive comparison with other offenses.

       Honorable Richard H. Gauthier participated in this decision as Associate Justice Ad Hoc.

      . Mary James was the victim’s name prior to her last marriage.

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

      . LSA-C.Cr.P. art. 797(2) provides:
      “The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;”.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Timothy George BALDWIN.
    No. 66962.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Johnny Parkerson, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    J. Randolph Smith, Smith & Hingle, Monroe, for defendant-appellant.
   LEMMON, Justice.

Defendant was charged by bill of information with the crime of simple escape in violation of R.S. 14:110. After defendant’s -motion for a change of venue was heard and denied, defendant was tried and found guilty as charged by a unanimous jury verdict. The trial court sentenced defendant to five years (5) at hard labor, the sentence to run consecutively with any other sentence, as required by the statute. Defendant now appeals.

Facts:

In October, 1978 defendant was incarcerated in the Ouachita Parish jail, pending his appeal of a first degree murder conviction.

On March 4, 1979 an investigation, prompted by observation of a makeshift rope hanging out of a fourth floor window of the jailhouse, revealed that hacksaw blades had been used to saw one of the bars and that defendant and three other prisoners had escaped. Local police communicated news of the escape to authorities in Cleveland, Ohio, where defendant’s mother was residing. On March 7, 1979 an Ohio policeman, observing a vehicle which matched the description of the car the escapee was driving, stopped the car, radioed for verification, and asked defendant for identification, also asking if he was wanted. When defendant replied that he was wanted, he was arrested.

On March 9, 1979 defendant was transported back to Ouachita Parish, where on March 11, 1979 he waived his constitutional rights and made an inculpatory statement in connection with this offense.

Change of Venue

Defendant contends that the trial court erred in denying his motion for a change of venue. C.Cr.P. art. 622 provides:

“A change of venue shall be granted when the applicant proves that by reasons of prejudice existing in the public mind or because of undue influence, or that for any reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

In order for a defendant to be entitled to have his trial moved to another parish he must prove more than a mere knowledge by the public of facts surrounding the offense. Defendant’s burden of proof is to show the existence of such prejudice in the collective mind of the community that a fair trial is impossible. State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Matthews, 354 So.2d 552, (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). Whether the defendant has made the requisite showing is a question addressed to the trial court’s sound discretion, and that court’s decision will be disturbed on appeal only on an affirmative showing of abuse of discretion.

Considerations in determining whether to grant a request for a change of venue, as discussed in State v. Bell, 315 So.2d 307 (La.1975), include (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial,-(4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annot., 33 A.L.R.3d 17 (1970). See also State v. Felde, 382 So.2d 1384 (La.1980).

As to the nature of pretrial publicity and degree of circulation in the community, the story of the escape was aired on March 4 and 5 on three newscasts on KNOE television, and another about defendant’s reap-prehension and transfer back to Monroe was aired once. The news director of KNOE, which covers 30 parishes or counties in three states, testified that this is not an unusual amount of publicity for an offense of this type.

A story concerning defendant’s escape was broadcast three times on KNOE FM radio, which covers 19 parishes and has an audience of 375,400 people, and three more stories were broadcast after he was captured. The news director testified that there was nothing unusual about these broadcasts and that the station did not give any more publicity to this escape than to any other escape.

The Monroe News Star World, a newspaper whose morning edition had a circulation of 38,224 and whose evening edition had a circulation of 11,274 in April, 1979 in 16 parishes, carried several stories about defendant’s escape. The Monday, March 5, 1979 issue gave front page coverage to the escape, with pictures of the four escapees and another article on the escape appearing in Section B. These stories gave the details of the escape and the names of those involved. Another story appeared in Section B of the evening edition with a headline reading “Escapees Sought”. An article stating that the prisoners were still at large appeared in Section B of the March 6 morning and evening editions. On Thursday, March 8, 1979 the story of defendant’s capture in Ohio ran in Section B of the morning edition, and another article about the capture appeared in the March 9 edition. Defendant’s name was also mentioned in an article about one of the other escapees in the March 13 morning edition.

Thirteen people randomly selected from the community were called to testify at the hearing of the motion for a change of venue, and nine had read or heard about the escape. One person commented that she had heard of several escapes and that it was possible that she read about this one, while another stated she could not remember this, particular escape because there were so many escapes in the area. A third person remembered this escape because his wife had served on a jury case in March, but could not remember the names of the people involved or any other details. Three other persons had read about the escape and knew defendant was one of those involved. A seventh person heard about an escape, but did not know when it occurred or who was involved and had never heard of defendant. Another person’s mother had told her that defendant had escaped and been caught, while four others did not know anything about this escape.

Most of those questioned believed defendant could get a fair trial and that they could serve as impartial jurors. Only one person was convinced defendant could not get a fair trial in Ouachita Parish, while two others were unsure and two more were not asked.

As to the connection of government officials with the release of the publicity, the news director of KNOE television testified that the sheriff’s department notified him of defendant’s capture, but could only assume the information about the original escape was received from that department. The news director of KNOE FM and AM radio testified that when he received information that the escaped prisoners were back in custody, he called the police and confirmed the story, but he could not remember whether the information about the original escape came from the police department.

Thus, the nature and degree of pretrial publicity was not unusual, and the connection of government officials with the release of publicity was routine and minimal. The length of time between the dissemination of the publicity in early March, 1979 and the trial on October 22,1979 was about seven months. The jury was to be drawn from Ouachita Parish, whose major city is Monroe.

The offense was not so severe as to attract substantial notoriety, and while the murder trial received considerable attention, the escape did not achieve the same notoriety. Most of the persons called had knowledge of the murder of which defendant was convicted, but knew little about the escape. For example, one had heard about the victim’s death, but did not know about the trial or the fact that someone had received the death penalty for that crime. Another had heard about the murder on television, but knew nothing about the death sentence or the subsequent escape. A third person had forgotten about the murder until she received her subpoena to appear in this case, and upon inquiry about defendant remembered that an elderly lady had been killed with a skillet. Several others had read or heard about the murder, but most did not remember defendant’s involvement.

The trial record does not reveal any factors likely to affect the candor and veracity of the prospective jurors on voir dire. Only one witness had any difficulty with candor at the hearing, probably because she had been told of the murder by the woman who discovered the victim’s body. However, at defense counsel’s request defendant was excused from the courtroom during her testimony (defendant also stating that he wished to be excused), and this factor should not have affected the witness’ candor or veracity. In fact, she emphatically stated her belief that defendant could not receive a fair trial on the escape issue in Ouachita Parish.

In summary there was not an unusual amount of publicity for this crime. Moreover, although nine of the 13 persons had heard about the escape, many did not know the details or that defendant was involved, and most either felt that they could be impartial jurors or that the defendant could get a fair trial in Ouachita Parish. On the basis of the evidence presented the trial court did not abuse its discretion in denying the motion for a change of venue.

Nevertheless, this conclusion does not completely dispose of the issue, since defendant also contended that he was prejudiced by the trial court’s refusal of his offer of evidence of publicity disseminated prior to the murder trial.

The trial court had previously denied a motion for a change of venue prior to the murder trial, after an extensive hearing, and that denial was affirmed by this court on appeal. At the hearing on the present motion for change of venue the trial judge, noting that only three of the 25 to 30 persons called to testify at the hearing of the prior motion (in the murder case) believed the pretrial publicity about the murder would affect their decision in that case, ruled that evidence of pretrial publicity in connection with the murder trial (as opposed to evidence of publicity concerning the trial itself) was not relevant to the hearing on the motion for a change of venue in connection with the escape trial.

This court cannot agree that publicity surrounding the original offense for which a defendant was arrested is not relevant to a motion for a change of venue if the defendant is later charged with escaping from custody. Nevertheless, the record establishes that this defendant was afforded ample opportunity to offer evidence of events tending to create a cumulative effect in causing prejudice in the public mind. See State v. Felde, above at 1388.

In reviewing defendant’s evidence offered in support of his motion for change of venue in the murder trial, this court stated that “the evidence at the hearing on the motion was that the newspaper coverage was routine for a murder case” and that “the lay witnesses at the hearing were generally unfamiliar with the crime although some had a sketchy impression about it from the news media.” Under these circumstances detailed evidence of the pre-murder trial publicity at this hearing, although relevant, would only have been repetitive and would have served no useful purpose. The extent of pretrial publicity on the simple escape charge was, of course, another matter and was thoroughly considered. Moreover, while the trial judge refused to review the newspaper articles and other documentary evidence connected with publicity prior to the murder trial, he allowed the witnesses at the hearing on the motion to testify in regard to their knowledge of the murder, as well as to their knowledge of the murder trial itself.

We conclude that the trial court’s ruling on the introduction of evidence of publicity disseminated prior to the murder trial did not deprive defendant of an adequate opportunity to show that he could not obtain an impartial jury or a fair trial in Ouachita Parish in the escape trial.

Motion to Recuse

Defendant contends that- the trial court erred in denying his motion to recuse the trial judge and in refusing to submit the motion to another judge for hearing. Defendant argues that the trial judge’s bias, prejudice and hostility denied him a fair trial.

The principal defense at trial was justification, and counsel tried to' establish that conditions in the Ouachita Parish jail led to defendant’s escape. In support of his motion to recuse, defendant argues that the trial judge evidenced a strong disdain for this evidence and showed his hostility by arguing with counsel and by assisting the state in supplying objections to defendant’s questions, even objecting himself to some questions.

The lead witness in counsel’s attempt to lay the foundation for the defense of justification was Isaac Smith, defendant’s cellmate at the time of the escape. When counsel questioned Smith about threats against defendant’s safety, the state objected, and the court sustained the objection. Counsel then asked Smith about any acts of physical or mental abuse directed toward defendant. The state objected again, and the court removed the jury. After some discussion defense counsel stated that he would proceed with this line of testimony outside the presence of the jury.

Defense counsel then asked the last question again, and the court said, “you may object to these questions one by one”, whereupon counsel objected to the court’s remark. The prosecutor remarked that he was going to object anyway, since Smith had been removed from the Ouachita Parish jail five months before the escape and any threats during Smith’s presence were too remote to be of value in proving justification. The judge, nevertheless, allowed defense counsel to continue. Smith then testified that defendant, a white man, had been put into an all-black cell so that other prisoners could beat him up. The court’s observation that counsel could not introduce this type of testimony without laying a foundation led to an argument over the interpretation of State v. Boleyn, 328 So.2d 95 (La.1976) and State v. Jacobs, 371 So.2d 801 (La.1979). However, when counsel pointed out that this testimony would establish a history of futile complaints by the defendant, the court allowed him to continue.

Smith then testified that the jailer disliked defendant because of his wife, and the state objected. The judge remarked “it’s calling for the opinion of the witness not for any facts”. Defense counsel replied, “Is that the state’s objection”, to which the judge said, “that’s the court’s objection.” Then defense counsel objected to the court’s objecting for the state.

Smith also testified that they had asked the staff to move defendant because several inmates did not like him, that the staff would not let defendant receive items brought by his daughter, that the only way defendant received a radio was by having his daughter send it in Smith’s name, that the staff switched letters defendant had written to his wife and to his girlfriend, and that defendant was afraid. The state objected to this testimony, but the trial court allowed defense counsel to continue, remarking: “I think we were somewhere out in left field but go ahead.” Counsel and the court then engaged in the following exchange out of the presence of the jury, before counsel asked the judge to recuse himself:

“The Court: Do you know something. I’m going to require you, before we stay out in left field where I just now said we were, to establish some more direct evidence of a necessity for escape otherwise we’re going to stay with somebody like this six months old. I’ve read the law to you and you’re not following the law.
“Mr. Smith: Your Honor, I also have the law in front of me and it’s our position we are-
“The Court: -And I happen to be the Judge and I happen to have the final say and I’m telling you that you’re not following the law.
“Mr. Smith: Your Honor, we’re going to object to the Court’s interpretation of State v. Boleyn. I cannot find anything in State v. Boleyn which says that the criteria has to be proved in perfect order so we would object to the Court’s ruling and ask that the objection be noted.
“The Court: Let the objection be noted, and you are correct, Mr. Smith. I don’t know why I’m arguing with you except I’m trying to save time. There’s got to be some immediacy. You can’t stay six months away from the escape.
“Mr. Smith: Your Honor, all I can do is object. We feel like we don’t have to prove the immediacy before any particular—
“The Court: -Well, why don’t you prove-what I’m suggesting you do is prove the immediacy first.
“Mr. Smith: Your Honor, we would object but we will comply at this time-
“The Court: -There’s one thing I would like for you to prove and one thing I want to consider in this and that is what he did after he did escape from jail.
“Mr. Smith: Your Honor, we will prove that. We just haven’t reached that point in this case yet.
“The Court: Well, why don’t you do it first.
“Mr. Smith: Because we have a certain preparation of order of defense.
“The Court: We’re going to be here for three days if we’re-
“Mr. Smith: -If it please the Court, we’ve already been here for three days but that’s the state’s fault, not mine.
“The Court: No. We haven’t been here three days.
“Mr. Smith: Your Honor, at this time I’m going to make a formal motion. I believe this Court is evidencing animosity toward this defendant and this defense counsel in this case. I do not have a formal motion to recuse judge prepared but I will orally-will orally so move and ask for leave to prepare a written motion . ... ”

After counsel presented his formal motion, the court called a recess and ultimately denied the motion, without referring it to another judge, on the ground that no valid ground for recusation was set forth in the motion.

C.Cr.P. art. 671 provides the grounds for recusation of a judge as follows:

“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
“(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial
* # Hfi * * *
“(6) Would be unable for any other reason, to conduct a fair and impartial trial.”

C.Cr.P. art. 674 also provides:

“A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recu-sation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”

In State v. Gordy, 380 So.2d 1347 (La. 1980) this court stated:

“The provision that a judge may be recused because of bias or prejudice was introduced in the Code of Criminal Procedure in order to further the policy that courts should avoid even the appearance of partiality. See the Official Revision Comment for C.Cr.P. 671. The bias or prejudice must be of a substantial nature, however. State v. Qualls, 377 So.2d 293 (La.1979); State v. Maduell, 326 So.2d 820 (La.1976); Official Revision Comment for C.Cr.P. 671. In State v. Lukefahr, 363 So.2d 661, 663 (La.1978), we stated:
‘A motion to recuse a trial judge must be based on more than mere general conclusory allegations. State v. Bell, 346 So.2d 1090 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); State v. Collins, 288 So.2d 602 (La.1974). If the motion, on its face, does not show grounds to recuse even if the allegations are proved, the trial judge may overrule the motion without referring it to another judge. La.C.Cr.P. art. 674; State v. Bell and State v. Collins, cited above.’ ”

In the present case defendant made specific factual allegations to support his conclusion that the trial judge should be re-cused. The handwritten motion asserted that (1) the trial judge was unduly argumentative, (2) the judge commented on the evidence outside the presence of the jury, (3) the judge restricted counsel’s presentation of his case by requiring him to lay a foundation for the defense of justification, (4) the judge did not rule on objections, motions, and arguments in an unbiased manner and supplied objections for the prosecution, and (5) the judge made comments which suggested to the prosecution objections which could be made.

Although specific, defendant’s complaints relate more to the manner in which the trial judge conducted the proceedings than to evidence of bias or prejudice by the trial judge. These are the type of contentions which could have been properly raised by a motion for a mistrial or preserved for assignment of error by contemporaneous objection. See C.Cr.P. arts. 775 and 841. However, defendant would now have us rule that the trial court should have halted the proceedings and referred to another judge the complaints which in effect were objections to the manner in which the trial was being conducted.

Such a ruling would impose an undue burden on trial courts and would allow a defense counsel to derail the orderly course of a trial and have a second trial judge rule on the merits of his objections. In cases involving complaints about a trial judge’s manner of conducting proceedings, this court can adequately protect a defendant’s right to a fair and impartial trial by reviewing the record on appeal to determine whether the trial court became unduly argumentative, or improperly commented on the evidence, or improperly restricted counsel’s prosecution of his case, or failed to rule properly and fairly on objections, or in effect assumed the role of prosecutor (by suggesting prosecution objections). These complaints do not require proof or consideration of matters not in the record, and this court is in a position to determine the merits of the trial-related complaints.

Here, there may have been some less than cordial exchanges between the trial court and defense counsel, but the record as a whole does not support defendant’s contentions. While trial courts have a duty to remain impartial and neutral, judges are not merely umpires or moderators. They also have a duty to apply the law and assist in the search for truth. See Knapp v. Kinsey, 232 F.2d 458 (6th Cir. 1956); United States v. Marzano, 149 F.2d 923 (2nd Cir. 1945). As Judge Hand said in United States v. Marzano, above at 925:

“A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he can not discharge by remaining inert.”

The record does not establish that the trial judge was prejudiced or that the defendant was denied a fair trial. Thus, there was no error in the denial of the motion to recuse, which we have treated as a motion for mistrial, or in the court’s failure to submit the motion to another judge for hearing.

Defense of Justification or Necessity

Contending that his escape was justified, defendant argues that the trial court erred in refusing to allow him to question witnesses as to conditions in the Ouachita Parish jail prior to his escape. Defendant further contends that the guidelines established in Louisiana for the defense of justification are unduly restrictive and infringe upon his constitutional rights.

Presentation of the defense of justification began with the testimony of Isaac Smith. Midway into his testimony the trial court dismissed the jury and conducted a hearing on the question of whether the counsel could press forward with the defense of justification. Evidence adduced at that hearing revealed various complaints by defendant concerning the conditions under which he was incarcerated.

Isaac Smith, defendant’s cellmate from October, 1977 to November, 1978, testified, in addition to the testimony previously discussed, that the jailer would not give defendant medicine for his rash or his nerves, that he heard two jailers threaten defendant, and that defendant said he was trying to get moved to Angola or to another cell so that he would be safe.

Rodney Eaker, who had been incarcerated in Ouachita Parish jail since March 30, 1978, was in defendant’s cellblock prior to the escape. Eaker corroborated Smith’s testimony in many respects, asserting it was “common knowledge” in the jail that the jailers disliked defendant and that defendant had told him about threats on his life. Although Eaker never knew defendant to complain about this abuse to any official higher than a jailer, he stated that the only way a prisoner could get help was to call out in a voice loud enough for the jailers to hear them over the intercom. Eaker also testified that defendant had a severe rash, swollen gums, bleeding ears and severe headaches, and that when defendant would ask for help, some jailers would laugh and do nothing, while other jailers would seek aid for him.

Marlin Mikesell, who lived in defendant’s cellblock from January, 1979 to March 4, 1979, stated that other inmates threatened defendant because of disputes with him and that defendant said the police had also threatened him. Mikesell also stated that the jailers would not help defendant when he asked for medicine or to see a doctor.

The assistant director of the North Louisiana Legal Assistance Corporation, who had filed on suit on behalf of the Ouachita Parish jail prisoners in federal court and had visited the jail numerous times in connection with that litigation, was also called to testify, but most of the questions directed to him were objected to and excluded on the basis of vagueness or irrelevance to the defense of necessity.

This court has recognized the special defense of medical necessity in escape cases. See State v. Jacobs, above. However, even if defendant proved he was denied medical attention while in the Ouachi-ta Parish jail, he did not establish the other conditions for application of the defense, as set forth in the Jacobs case.

There was no evidence to show that defendant informed the prison officials in writing of his physical condition, that his physical condition was serious, that he did not have time to resort to the courts, that he sought medical treatment after his escape or that he thereafter surrendered himself to the authorities.

This court has also recognized the defense of justification for an escape when an inmate is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future. See State v. Boleyn, above.

In the present case, however, the time of the alleged threats against defendant was never stated. Although there was some evidence to support the fact that he had complained without result to the authorities, defendant did not resort to the courts. Moreover, while defendant did not hurt anyone in the escape, on the other hand he did not report to the proper authorities when he attained a position of safety. See United States v. Bailey, 394 U.S. 444, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

These rigid limitations on the defense of justification have been imposed by the court in order to ensure that the prison administration and the courts remain the normal channel for a meritorious complaint. State v. Jacobs, above. These requirements protect against assertions by those prisoners who would endanger prison life and public safety by escaping and then fabricate charges of inhuman treatment or neglect as an afterthought to their flight from justice. The offer of proof in this case was simply insufficient to establish the defense of necessity or justification, and the trial judge was correct in excluding this evidence.

DECREE

For the foregoing reasons the conviction and sentence are affirmed.

      . That conviction has now been affirmed by this Court. State v. Baldwin, 388 So.2d 664 (1980).

      . This sort of “try me” voir dire has been found useful in other cases. See State v. Bell, above.

      . For the same reasons the trial court properly denied defendant’s requested special instructions on the defense of necessity. Furthermore, the requested instructions were not “wholly correct and pertinent”, C.Cr.P. art. 807, and they did require “qualification, limitation, [and] explanation”, C.Cr.P. art. 807.

      . The court has considered defendant’s other assignments of error and for the reasons stated in the attached unpublished appendix has found them to be without merit.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Paul HARTMAN.
    No. 66785.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, James D. Maxwell, Asst. Dist. Attys., for plaintiff-appellee.
    Indigent Defender Program, Jack Quarles, Jr., George P. Vedros, Gretna, for defendant-appellant.
   DIXON, Chief Justice.

Paul Hartman was charged with the crime of first degree murder, R.S. 14:30, convicted as charged, and sentenced to life imprisonment. Defendant appeals his conviction and sentence, relying on fourteen assignments of error, five of which he has neither argued nor briefed. Finding no reversible error in defendant’s assignments of error, we affirm his conviction and sentence.

On December 4, 1978 the defendant stopped at the Tiki Lounge in Jefferson Parish to talk to his ex-girlfriend, Linda Creppel. When he entered the lounge, he saw Ms. Creppel dancing with Johnny Schwartz. The defendant, angered by his observation, started an argument with Ms. Creppel and Schwartz. After hostile words were exchanged, the defendant went to get his knife from his truck and returned to the bar. The argument continued and an altercation ensued between the defendant and Schwartz. During the struggle, the defendant fatally stabbed Schwartz.

Assignment of Error No. 2

In this assignment the defendant urges as error the challenge for cause granted by the trial court against a juror voicing an inability to impose the death penalty.

C.Cr.P. 798(2) provides:

“It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt;

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that a sentence of death cannot be carried out if the jury that recommended it was chosen by excluding veniremen for cause simply because they voiced general objection to the death penalty or expressed conscientious or religious scruples against its infliction. The defendant asserts that the exclusion of prospective juror Vivian Brown was contrary to the standard of Witherspoon and C.Cr.P. 798(2).

In response to an inquiry by the prosecuting attorney as to whether she had scruples against capital punishment to the point where she would under no circumstances be able to impose that penalty even if it were justified by the facts, Ms. Brown said, “No, I couldn’t, I couldn’t. I couldn’t vote that.” When Ms. Brown was further questioned by the judge as to whether she could not under any circumstances find a death penalty for anyone, she answered that she could not.

The record clearly indicates that Ms. Brown was properly excused for cause. Ms. Brown did more than voice a general objection or conscientious or religious scruples against the death penalty. She was properly excused under C.Cr.P. 798(2) and Wither-spoon.

Moreover, it should be noted that the jury did not recommend and the trial court did not impose the death penalty. The defendant does not have a valid complaint of a Witherspoon violation. State v. George, 371 So.2d 762 (La.1979); State v. Drew, 360 So.2d 500 (La.1978).

This assignment is without merit.

Assignment of Error No. 4.

By this assignment the defendant contends that the trial court erred in ruling that defense counsel was not allowed to question witnesses on issues crucial to establishing the defendant’s state of mind at the time of the offense. During the trial the defense counsel attempted to question two witnesses concerning the reputation of the Tiki Lounge. The court sustained the state’s objection on the grounds that the questions asked by the defense counsel were irrelevant. It is the defendant’s contention that the stabbing was done in self-defense and his fear of the victim would be established in part by showing the reputation of the bar where the altercation occurred.

This court has recognized that, under certain circumstances, a defendant may introduce evidence which would show a reasonable apprehension of danger in order to justify his conduct. State v. Gomez, 365 So.2d 1313 (La.1979). However, such evidence generally involves the victim’s reputation as to his dangerous character and not the reputation of the place where the crime occurred. See R.S. 15:482.

R.S. 15:441 defines relevant evidence as: “Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

In the present case the defendant was not attempting to show the victim’s reputation. Furthermore, the reputation of the Tiki Lounge had no bearing on the defendant’s claim of self-defense. The evidence sought to be introduced was not relevant to the defendant’s state of mind. Hence, the trial judge properly sustained the state’s objections to the testimony concerning the reputation of the lounge.

There is no merit to this assignment.

Assignment of Error No. 8

The defense urges prejudicial error in the trial court’s decision to admit six allegedly gruesome photographs into evidence. The photographs of the victim show the seven wounds, which had been partially sutured after the stabbing. The defendant argues that the photographs did not have any relevancy and merely prejudiced the jury.

The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs their potential prejudicial effect on the jury. State v. Vernon, 385 So.2d 200 (La.1980); State v. Unger, 362 So.2d 1095 (La.1980). Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing, or place depicted. State v. Valentine, 364 So.2d 595 (La.1978).

The photographs at issue here show the location, number and severity of the wounds the victim sustained. The evidence is relevant to rebut the defendant’s contention that he acted in self-defense. State v. Myles, 389 So.2d 12 (La.1979); State v. Williams, 343 So.2d 1026 (La.1977).

We conclude that the probative value was not outweighed by the potential prejudicial effect the photographs had on the jury. Therefore, the trial court did not err in admitting the photographs.

This assignment of error lacks merit.

Assignment of Error No. 9

The defendant argues that the trial court erred in allowing the state to elicit testimony from a witness concerning the violent nature of the defendant.

R.S. 15:481 provides that:

“The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.”

At trial there was no evidence presented by the defendant to show his good character. During cross-examination of Ms. Creppel, defendant’s ex-girlfriend, the prosecutor inquired whether the cause of their break up was due to the defendant’s temper. Ms. Creppel replied: “He wasn’t violent. He wasn’t that violent. He slapped me when I deserved it sometimes. He took it out on the furniture most of the time when he got upset.”

The defense attorney’s objection was overruled by the trial court. Under R.S. 15:481 the question was improper since the defendant had not placed his character at issue by offering evidence of good character. However, the answer given by Ms. Creppel indicated that the defendant was not “that violent.” Although the question should not have been permitted, the import of the testimony did not prejudice the defendant.

This assignment has no merit.

Assignment of Error No. 11

In this assignment the defendant contends that the trial court erred in ruling that the state would be allowed to impeach the defendant by using a 1960 conviction if he chose to testify at trial. Because of this ruling the defendant claims that he did not testify.

R.S. 15:495 provides:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

The defendant contends that because the conviction was almost twenty years old, the conviction was stale and its prejudicial effect outweighed its probative value. Louisiana jurisprudence has not limited impeachment testimony to recent crimes, nor to crimes indicative of the credibility of the testifying defendant. State v. Prather, 290 So.2d 840 (La.1974); State v. Rossi, 273 So.2d 265 (La.1973). Therefore, the ruling of the trial court was not erroneous.

There is no merit to this assignment.

Assignment of Error No. 12

By this assignment the defendant contends that it was error for the trial court to deny the defendant an opportunity to elicit testimony as to the nature of threats which were made against him by the victim. More specifically the defendant argues that the trial court erred in not allowing the witnesses to repeat the threatening words used by the victim.' The trial court sustained the state’s objections on the basis of hearsay.

The defendant submits that such testimony should have been allowed into evidence as res gestae under R.S. 15:447, which provides:

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

This court has held that testimony concerning threats made against the defendant by the victim is not admissible under the theory of res gestae unless there is compliance with R.S. 15:482. State v. Walker, 296 So.2d 310 (La.1974). R.S. 15:482 provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

An overt act in this context means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. State v. Ford, 368 So.2d 1074 (La. 1979); State v. James, 339 So.2d 741 (La. 1976).

Defendant’s own description of the fatal encounter, given to police shortly after the killing, was introduced by both the state and the defense, and was in substantial agreement with other'testimony. Defendant entered the lounge to talk to Linda Creppel, saw her dancing with the victim, and voiced his disapproval. These as well as the bartender, the manager of the lounge, and the mother of Linda, discussed the situation. The victim asked the defendant if he wanted to die and threatened him with physical violence. Defendant, impressed with the victim’s size, and apparently by the fact that the other occupants of the bar were not sympathetic to his cause, cooled down and left the bar, going to his truck parked outside. There he obtained a knife and put it in his jacket pocket (“I felt safer having it with me.”). The knife was a hunting knife, six or seven inches long. Defendant reentered the bar and told Linda she had made her choice. (Here, some testimony had defendant refer to the victim as a “son of a bitch.”) The victim then attacked defendant, pushing him against a wall telephone and grappling him to the floor. Defendant claimed that he was able to get the knife from his pocket after being hit several times and “blindly started sticking it at him.” Of the seven wounds suffered by the victim, the fatal one was a stab wound near the center line of his chest.

On direct examination the witness Carol Trotter testified that the victim told defendant: “Look, I could hurt you bad.” This assignment is based on rulings made during the cross-examination of Trotter. The trial judge instructed the witness not to relate what the victim had said during the altercation.

The issue was never clearly drawn at the trial. Defendant never informed the court that he sought to elicit testimony that the victim was the aggressor, and that, when attacked, defendant was justified in believing deadly force was necessary in'order to repel the attack. The trial judge seemed to rule only that the witness could not relate the exact words, a ruling in which defense counsel acquiesced. When the witness was asked if she heard a threat, she seemed not to understand what a “threat” was. The cross-examination finally concluded with a vague affirmative answer by the witness that the victim threatened the defendant “in what he could do physically, or strongly.”

Defendant here was not deprived of relevant and helpful testimony by an erroneous ruling of the trial judge. On direct examination the witness quoted the words of the victim. On cross-examination she was confused, but affirmed that the victim threatened the defendant.

The assignment is without merit.

Assignment of Error No. IS

In this assignment the defendant urges that there was a total lack of evidence to support his conviction of first degree murder in that the state failed to prove specific intent to kill or to inflict great bodily harm, and that the killing was not perpetrated in self-defense. The defendant contends that the trial court erred in denying his motion for a new trial.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court rejected and overruled the previous “no evidence” criterion for federal habeas review of state convictions and held that federal due process protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. The court set forth the following test:

“. . . the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . ” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

Here there was sufficient proof that the killing was committed with the specific intent to inflict great bodily harm and was not a justifiable homicide committed in self-defense. After an argument with the victim, who had been dancing with defendant’s former girlfriend, defendant left the bar, armed himself with a hunting knife, and returned to continue the argument. In his conversation with Linda, defendant referred to the victim as a “son of a bitch.” The victim then pushed defendant against a wall telephone and grappled him to the floor.

According to the testimony of the pathologist, four of the wounds (including the fatal one) were in the chest; all of these were less than an inch deep. One wound was in the abdomen, near the appendix. The victim’s face was slashed from his mouth to his ear. The seventh wound was a slash which severed the left biceps muscle. A reasonable juror would be justified in believing, beyond a reasonable doubt, that defendant intended to inflict great bodily harm on the victim.

The evidence is also sufficient for the jury to have concluded beyond a reasonable doubt that defendant used unreasonable and unnecessarily deadly force against the victim. R.S. 14:20(1). The record goes no further than the evidence here recounted, except for a disparity in the size of the men, to indicate that the defendant was in great danger of severe injury before he resorted to the knife in his pocket.

This assignment has no merit.

Assignment of Error No. 14

By this assignment the defendant urges that the trial court committed error in instructing the jury as to the definition of first degree murder. He also contends that the sentence of life imprisonment is excessive.

The trial court instructed the jury that first degree murder was “the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm.” The defendant contends that the jury should have been instructed that an aggravating circumstance must have been present in order to find the defendant guilty of first degree murder.

For a time prior to the commission of this offense, the definition of first degree murder was expanded by the provisions of the second degree murder statute which by implication redefined first degree murder as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance. See State v. Payton, 361 So.2d 866 (La.1978). At that time the statutory scheme made the presence of at least one aggravating circumstance an essential element of first degree murder. After Pay-ton was decided, however, the legislature again amended R.S. 14:30.1. Acts 1978, No. 796 § 1. Thereafter unaggravated specific intent killings were removed from the scope of the second degree murder statute and were recast within the definition of first degree murder. State v. Perkins, 375 So.2d 1179 (La.1979).

R.S. 14:30 has since been amended to include specified aggravating circumstances in the definition of first degree murder. Acts 1979, No. 74 § 1. The defendant suggests that the 1979 enactment indicates that the legislature intended the first degree murder statute to include the presence of an aggravating circumstance at the time the defendant committed the killing with which he is charged.

On December 4, 1978, when the instant offense occurred, first degree murder did not require the presence of an aggravating circumstance. The trial court’s instructions were proper.

The defendant also contends that the sentence of life imprisonment without benefit of parole, probation, or suspension of sentence is excessive under Article 1, § 20 of the 1974 Louisiana Constitution. In determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the United States Supreme Court has adopted the standard that a sentence is excessive when it is grossly out of proportion to the severity of the crime. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This standard has also been adopted by this court in addressing a defendant’s claim of excessive punishment. State v. Goode, 380 So.2d 1361 (La.1980).

Under this standard we conclude that the sentence of life imprisonment is not grossly out of proportion to the crime of murder.

There is no merit to this assignment. For the reasons assigned, the defendant’s conviction and sentence are affirmed.

BLANCHE, J., concurs.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., concurs disagreeing with treatment of assignment No. 4.

MARCUS, Justice

(concurring).

Whether applying the traditional “no evidence” standard of review or the Jackson standard, there is sufficient evidence to support the conviction.

I respectfully concur.

      . R.S. 14:30.1 provided:
      “Second degree murder is:
      A. The killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill; or
      B. The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure.


author: DIXON, Chief Justice. LEMMON, Justice, MARCUS, Justice

text:
    Donald DEVILLE v. Mr. and Mrs. Lloyd LaGRANGE.
    No. 66997.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    Walter J. Landry, Poteet & Landry, Lafayette, for defendant-applicant.
    Jerry J. Falgoust, Dubuisson, Brinkhaus, Dubuisson & Falgoust, Opelousas, for plaintiffs-respondents.
   DIXON, Chief Justice.

This case involves an impassioned contest over the custody of a child whose mother, never married, died in an automobile accident when the little boy was two years old. The trial court determined that Donald Ray Deville, who had instituted these proceedings by applying for a writ of habeas corpus, was the natural father of the child, as he alleged, but that he was unfit to care for his son and had forfeited his parental right to custody. It therefore awarded custody to the child’s maternal grandparents, Mr. and Mrs. Lloyd LaGrange, who had retained the boy in their household after their daughter’s death. The Court of Appeal (379 So.2d 37) affirmed the determination of paternity but reversed on the issue of custody, awarding custody to the father. We granted writs to review those rulings.

Despite the conflicts and ambiguities which riddled the evidence presented on the issue of paternity, there was nevertheless a reasonable factual basis for the finding that Deville was the child’s father, upon the trial judge’s reasonable evaluation of credibility. The reviewing court was therefore correct in leaving this finding undisturbed. Aleman v. Lionel F. Favret Co., 349 So.2d 262 (La.1977). We concur in the conclusion that Deville is the father of the child.

The only real question presented for review by the trial court’s resolution of the paternity issue was whether it was error to deny the LaGranges’ motion for a new trial because no blood test was performed on a young man whose testimony indicated that he might have been the child’s father. The results of blood tests performed on other individuals in September, 1977 had already been introduced and almost all of the other evidence was in, in these proceedings which had stretched on for almost two years, when this young man appeared as a witness for the LaGranges and raised the possibility of his paternity. Very soon after this testimony, Deville moved that this witness be ordered to submit to a blood test, and that order was signed on May 31, 1978. The minute entries show that service of the order was never accomplished and that on June 19, 1978 the record was left open so that counsel might decide whether to stipulate to the results of the test or to take additional evidence. On July 14, 1978 the judge formulated written reasons for judgment which took note of the omission of this particular blood test but which nevertheless found that evidence of Deville’s paternity preponderated.

The LaGranges now argue that the case should be remanded for a new trial on the paternity question, to include the results of the blood test, because R.S. 9:396 imposes upon the judge a duty to order blood tests where paternity is an issue. But that statute provides that the judge shall order the tests “upon motion of any party to the action made at a time so as not to delay the proceedings unduly,” and here the motion was made almost two years after the parties first appeared in court and only weeks before the case was finally submitted for judgment. Even at that late juncture the court did exercise its discretion to order the test, but notice of the order was never served. The young man whose blood test results are lacking was a witness for the LaGranges, so that they should have been aware, early on, of his identity and the gist of his future testimony. If they felt that the results of this test were vital to their proof that someone other than Deville was the father of the child, it was incumbent upon them, early in the proceedings, to file a motion for an order compelling the test. Instead, they took no action at any time to assure that any blood tests would be performed. They cannot now complain that the evidence on which the judge based the paternity determination may have been incomplete.

The Court of Appeal was also correct in finding that the LaGranges had failed to carry the very heavy burden of proof which is required before a parent will be deprived of the custody of his child. In Wood v. Beard, 290 So.2d 675, 676-677 (La. 1974), we enunciated as a rule of law the principle that “the parent has the paramount right to the custody of the child, and may be deprived of that custody only when there are compelling reasons.” We also indicated what forms these compelling reasons may take: proof that the parent has forfeited his or her right to parenthood, that he or she is unfit, or that he or she is unable to provide a home for the child. See also Comment, Louisiana Child Custody Disputes between Parents and Non-Parents, 25 Loyola L.Rev. 71 (1979). There is no reason to restrict the applicability of these principles to parent-child relationships which the law defines as legitimate. No one would argue that the weight of a mother’s right to the custody of her child should be reduced simply because she is not married to the child’s father and has not performed a formal act of legitimation. There may be a misguided tendency to view the situation in a different light when the parent whose right is at stake is the father, but this is so only because of a failure to distinguish between the right which flows from the fact of parenthood, whether that parenthood is legitimate or not, and the possibility of a subsequent forfeiture of parenthood through abandonment or neglect, which may be greater when the relationship between the child’s father and its mother, or between the father and the child, has not been formalized. Parenthood itself confers a right to custody, but that right of parenthood may be forfeited by conduct which denies or rejects one’s child.

The trial court correctly noted the paramount nature of the father’s right to custody and the strong showing which a non-parent must make in order to overcome the right, but it then proceeded to “balance the reasons for giving custody to plaintiff against those for not giving him custody.” By so doing, it lost sight of the great weight to which the parental right to custody is entitled. The court eventually found that Deville was not entitled to custody because of neglect, abandonment and mental unfitness, but these conclusions were based on a voluminous amount of largely conflicting evidence which at most showed that Deville lacked a single-minded, permanent commitment to the child’s mother, and that he permitted the child to receive most of its support from both sets of grandparents and state welfare services. While Deville certainly could have exhibited more concern and responsibility for his son while the child’s mother was alive, his conduct did not constitute forfeiture or unfitness, as these terms have been construed by our jurisprudence. The Court of Appeal was therefore correct in reversing this portion of the judgment and awarding the father custody of his child.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

DENNIS, J., dissents with reasons.

LEMMON and MARCUS, JJ., dissent and assign reasons.

LEMMON, Justice,

dissenting.

The natural father who has not made the effort to either legitimate or acknowledge his natural child should not be entitled to a “paramount right to custody”.

R.S. 9:404 terminates all parental rights when the mother voluntarily surrenders an illegitimate child who has never been formally acknowledged or legitimated by the natural father. By analogy the court-fashioned “paramount right” should be withheld from the natural father who had it entirely within his power to secure for himself the advantage he now wants to claim.

MARCUS, Justice

(dissenting).

While concurring in the conclusion that Deville is the father of the child, I consider that the court of appeal erred in reversing the trial judge’s finding that Deville was not entitled to custody because of his neglect, abandonment and mental unfitness. Accordingly, I respectfully dissent.

      . Defendants have directed our attention to Acts 1979, No. 536, § 1, which amended C.C. 256 to provide that if the child’s natural father has not acknowledged the child before the death of the mother, the court shall give first consideration in appointing a tutor to the mother’s parents or siblings, only secondarily considering appointment of the father. The amended statute may not be applied retroactively, since it is not merely procedural or remedial in nature.

      . In Wood v. Beard, 290 So.2d 675 (La. 1974), this court held that a mother was not unfit to have custody of her child merely because she had been convicted of an assault. In State ex rel. Mouton v. Williams, 222 La. 457, 62 So.2d 641 (1952), we remanded for further evidence ■on the issue of a mother’s fitness, after it was shown that she suffered from episodes of manic-depressive psychosis which could recur. Forfeiture was found in State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958), where parents permitted their daughter to be cared for by the child’s aunt and uncle for nine years, and in State ex rel. Deason v. McWilliams, 227 La. 957, 81 So.2d 8 (1955), in which parents attempted to conceal the birth of their child and surrendered the child to a couple located by an attorney.