author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Rickey LANDRY.
    No. 67011.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ross Brupbacher, Asst. Dist. Atty., for plaintiff-appellee.
    Clement Story, III, Lafayette, for defendant-appellant.

      . At the time the crime was committed, that statute 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 simply 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.”

   DIXON, Chief Justice.

The defendant was convicted of second degree murder in violation of R.S. 14:3o.!, and sentenced to serve life in prison without benefit of probation, parole or suspension of sentence for a period of forty years. On appeal, defendant urges eleven assignments of error.

Testimony adduced at trial indicates that the defendant, along with two other white men, Vincent Gautreaux and Tim Darby, were at Romero’s (or Rome’s) Amusement Center on the afternoon of March 2, 1978. Two black men, Charles Alfred and Randy Collins, attempted to enter the establishment but were confronted by the defendant, who told Collins that he could not bring the beer he was carrying into the building. A fight ensued between Collins and the defendant, which developed into a battle involving all five men. One of the white men brought out a knife, causing the black men to attempt to flee. Colins was not pursued, but Alfred was caught in the back yard of a nearby house by the defendant, who held him until the other two arrived. The three men then took turns stabbing Alfred with a knife, while the other two men held him. Alfred was able to escape for a brief moment, but was again caught and slashed in the face, either by the defendant or by Gautreaux. Alfred subsequently died of a knife wound to the heart.

Assignment of Error No. 1

At trial, Mark Glynn testified that he saw the defendant slash the victim in the face. On cross-examination, defense counsel sought to impeach that testimony by reference to a statement by the witness given to the police indicating that Vincent Gau-treaux, and not the defendant, had caused the wound on the victim’s face. The trial court initially refused to allow counsel to continue, because it felt he had failed to lay a proper foundation and because he did not have a copy of the complete statement. The court issued a subpoena for the statement, and the prosecutor offered to provide a complete copy. When trial resumed the next day, defense counsel confronted the witness with the existence of the statement contradicting his testimony at trial. The witness admitted making the statement to the police, and explained that he had been confused the day before in court, and that the wound on the victim’s face had been in fact inflicted by Gautreaux.

In this assignment of error the defendant argues that the witness’ statement was exculpatory evidence which was improperly withheld despite his pretrial request for all such material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Evidence that impeaches the testimony of a witness whose reliability may be determinative of guilt may fall within the Brady rule requiring the state to disclose material exculpatory evidence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Roussel, 381 So.2d 796 (La.1980); State v. Bailey, 367 So.2d 368 (La.1979). In the instant case, however, it is doubtful that the statement given by Glynn to the police had any exculpatory value prior to trial, since it was not until the witness had testified in a conflicting manner at trial that the value of the statement for impeachment came into existence. Even if, for purposes of argument, some exculpatory value be attributed to the evidence, it cannot be said to have been suppressed by the state, since it was made available to the defendant for use at trial. See State v. Reed, 378 So.2d 923 (La.1979). In addition, although this court has noted that the late disclosure, as well as the nondisclosure, of exculpatory evidence can so prejudice a defendant that he is deprived of his constitutional right to a fair trial (State v. Roussel, supra; State v. Manning, 380 So.2d 46 (La.1980)), there was no such deprivation in the instant case. The record indicates that the defendant had ample opportunity to use the prior statement for impeachment purposes, and in fact did so in a thorough manner. The impeaching material was effectively presented to a jury. The record does not reflect that the defendant was prejudiced by the fact that he had to delay impeachment from the end of one day to the beginning of the next.

In a similar vein, the defendant contends that the state also suppressed the fact that a state witness had been arrested in connection with the offense, a fact which the defendant argues would have been useful in impeachment of the witness. To show that the witness had been arrested the defendant relied on a document purporting to be a form listing and waiving the “Rights of an Arrestee or Suspect.” The document does not specify whether the witness was arrested or simply questioned as a suspect. And, as in the case of the statement given by Mark Glynn, the record indicates that the form was actually used at trial, and any exculpatory value it may have had was actually put before the jury. The record fails to show any prejudice whatsoever from the failure of the state to provide the defendant with the information involved. The defendant was therefore not deprived of his right to a fair trial.

In addition, the defendant’s contention that the state had several statements in its possession that might have been exculpatory, and that the defendant should have been given those statements, has no merit. The defendant has failed completely to show that any such statements existed, or that any such statements were material to the case and exculpatory. Brady v. Maryland, supra; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Assignments of Error Nos. 2 and 9

In these assignments the defendant cites numerous instances in which he claims the prosecutor made improper remarks.

Before the start of the defendant’s trial, when numbers were being called from the docket, one of the assistant district attorneys present inquired, in a low voice, “Is this the Receiving Stolen Goods?” The statement was made in the presence of the general venire that had been called for trial, but it is unclear if any of its members heard the remark. The defense moved to dismiss the entire venire, apparently on the grounds that the defendant had been prejudiced by the prosecutor’s remark. The defendant declined to question the prospective jurors to determine if they had in fact heard the remark, and also declined the court’s offer to instruct the venire to disregard the remark.

On the record before us it was not error for the trial court to deny the defendant’s motion to dismiss the entire venire. The trial court, in discussion out of the presence of the venire, indicated that it did not believe that any member of the venire had heard the remark, and that, if any member had heard the remark, it did not believe he would have connected the question to the defendant. The small likelihood of prejudice was recognized by the defendant when he declined the opportunity to prove any prejudice or to have the venire instructed. Therefore, the record does not reflect any prejudice to the defendant that would require the dismissal of the entire venire.

In another instance cited by the defendant, the following discussion took place after the defendant had presented his evidence:

“BY MR. STORY: Your Honor, at this time the defense will rest.
BY THE COURT: ANY REBUTTAL? (INAUDIBLE STATEMENT BY MR. BRUPBACHER)
BY MR. STORY: OBJECTION.
BY THE COURT: You need five minutes now?
BY MR. BRUPBACHER: No, sir. Well, that is a surprise, Judge.
BY THE COURT: ANY REBUTTAL?
BY MR. BRUPBACHER: No rebuttal by the State, Your Honor.”

The trial then proceeded in its normal course. The defendant claims that, where the transcript indicates an inaudible statement was made, the prosecutor in fact said, “Your Honor, we are surprised. I thought he had more evidence than this.” In brief to this court the state concedes that some such statement was made, but it was not in fact heard by the jury.

Even if it is assumed that the contrary is true, the record before us does not present reversible error. The remark made by the prosecutor does not fall within the grounds for a mandatory mistrial under C.Cr.P. 770, nor did the statement amount to conduct making it “impossible for the defendant to obtain a fair trial” such as would be grounds for a mistrial under C.Cr.P. 775. In fact, the statement does not appear to have been an attempt by the prosecutor to comment on the defendant’s evidence (or the lack of it), but was rather made in a procedural context as an explanation of the prosecutor’s momentary indecision as to whether to put on any rebuttal evidence. In addition, even if the remark is construed as a comment on the defendant’s evidence, the defendant was not unduly prejudiced thereby. C.Cr.P. 774 provides that argument can be directed to the lack of evidence on any issue. This court has held that it is proper for a prosecutor to comment on the defendant’s failure to controvert or rebut the state’s case. State v. Sims, 346 So.2d 664 (La.1977); State v. Reed, 284 So.2d 574 (La.1973). It was not unduly prejudicial to the defendant that, as an incident to a procedural colloquy between the court and the prosecutor, the jury’s attention was attracted to a matter that could properly have been argued to it by the prosecutor.

Another claim made by the defendant involves the defense cross-examination of Randy Collins, who had been involved in the fight which ultimately resulted in the killing. The witness testified that the victim had struck one of the white men with a cane, but he could not be certain that it was the defendant who had been hit. Defense counsel nevertheless assumed, for purposes of further questioning, that the defendant had been struck. The prosecutor stated that he did not believe that the witness had so testified. Discussion between defense counsel and the prosecutor resulted in the prosecutor telling counsel not to trick the witness or put words in his mouth. A defense objection to the prosecutor’s statement was overruled.

There was no error in the trial court’s action, because the prosecutor’s remarks, while perhaps ill phrased, were not improper under the circumstances. The prosecution was attempting to put before the court its objection to the substance and form of the defendant’s questioning of the witness. C.Cr.P. 841 requires that an objecting party state the basis for his objection. In this effort the prosecutor was seeking to prevent defense counsel from assuming answers had been given that had not in fact been given, a practice prohibited by R.S. 15:278. Therefore, there was no error when the trial court overruled the defendant’s objection to the prosecutor’s remarks.

These assignments lack merit.

Assignment of Error No. 3

In this assignment the defendant contends that the trial court improperly admitted into evidence allegedly gruesome photographs of the deceased showing the wounds he sustained.

Before allegedly gruesome photographs may be admitted into evidence, their probative value should outweigh their prejudicial effect on the jury. A trial court’s ruling in this regard will only be disturbed if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Unger, 362 So.2d 1095 (La.1978); State v. Bryant, 351 So.2d 1188 (La.1977). 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).

In the instant case, two photographs were admitted, one depicting a gash on the victim’s face, and the other showing the location of wounds on the victim’s torso. The defendant argues that they were not relevant because he stipulated as to the identity of the victim, and the cause of his death, two facts which are often shown by the use of photographs. The existence of such a stipulation necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect; nevertheless, the decision remains one for the trial court. State v. Sterling, 377 So.2d 58 (La.1979).

The photographs of the victim clearly show the location and severity of the wounds he sustained. That evidence is relevant to show intent to kill or inflict great bodily harm. The photographs were thus relevant to an issue not stipulated to by the defendant, and had a probative value that overcame any possible prejudicial effect on the jury. The trial court did not err in admitting the photographs.

This assignment of error lacks merit.

Assignment of Error No. 4

By this assignment the defendant complains of the admission into evidence at trial of a pocket knife found on his person at the time of his arrest.

Before demonstrative evidence can be admitted into evidence it must be shown that, more probably than not, the evidence is connected to the case. That foundation can be laid by establishing a chain of custody of the evidence, or by visual identification. Once that foundation is established, the weight to be given the evidence is a question for the jury. State v. Drew, 360 So.2d 500 (La.1978).

In the present case it was error for the court to admit into evidence the defendant’s pocket knife. The state did not prove that, more probably than not, the knife was used in the killing. All of the witnesses who testified who described the knife indicated that the weapon used was a long, folding “buck” knife, estimated by one witness to be from eight to ten inches long. The parish coroner testified that the wound from which the victim died was inflicted by a blade at least five to six inches in length.

The danger in admitting evidence not shown to be connected to the case is that the jury will infer such a connection from a mere viewing of the evidence, although that connection is not proved. State v. Davis, 336 So.2d 805 (La.1976). In State v. Manieri, 378 So.2d 931 (La.1979), this court noted that the trial judge flirts with prejudicial error when he allows such evidence to be introduced. As in Manieri, however, reversible error did not occur under the facts of the instant case. The jury heard testimony that the killing was done with a large “buck” knife. There was no attempt made to connect the knife found on the defendant with the killing. No attempt was made to exploit the admission of the knife in argument by the prosecutor. Therefore, there was little possibility that the jurors formed an inference that the knife was associated with the victim’s death. In the absence of any such prejudice to the accused, the admission of the knife taken from the defendant at the time of his arrest was not reversible error. C.Cr.P. 921.

Assignments of Error Nos. 5 and 6

The defendant complains that in opening argument by the state, and by the trial court’s instruction to the jury, the jury was informed that second degree murder, the crime for which the defendant was convicted, encompassed the killing of a human being when the perpetrator has the specific intent to kill or inflict great bodily harm. He argues that the applicable law did not define such conduct as second degree murder. In a related argument he contends that the statute under which he had been charged had been declared unconstitutional, and that therefore his motion to quash should have been granted.

Both arguments are wholly without merit. At the time of the killing R.S. 14:30.1, relative to second degree murder, provided in part:

“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.”

That statute clearly includes a homicide when the offender has a specific intent to kill. See State v. Payton, 361 So.2d 866 (La.1978), where, in addition, this court rejected an attack on the constitutionality of R.S 14:30.1 as it existed in 1978. Therefore, there was no error in the trial court’s instruction to the jury or in its denial of the defendant’s motion to quash.

These assignments of error lack merit.

Assignments of Error Nos. 7 and 8

By these assignments the defendant urges error in the trial court’s refusal to admit evidence of allegedly exculpatory statements made by Vincent Gautreaux and Tim Darby. The evidence was objected to by the state on the ground that it was hearsay. One of the items of evidence involved was a copy of a transcript of an interview of a police officer who had overheard Gautreaux tell the defendant’s counsel that the defendant had nothing to do with the stabbing of the deceased. The defendant claims that the transcript was used in Gautreaux’ trial. The other item was a copy of a document filed by the state in the prosecution of Tim Darby, in which the state gave Darby notice of its intention to use an inculpatory statement he had made against him.

Each item of evidence contained a statement by one of the defendant’s accomplices which the defendant intended to use for its exculpatory value. The defendant was therefore attempting to introduce evidence of out-of-court statements to prove the truth of matters asserted in those statements. In each case the value of the evidence rested on the credibility of the out-of-court asserter (the defendant’s accomplices) for its value. The evidence therefore falls within the definition of hearsay used by this court. State v. Martin, 356 So.2d 1370 (La.1978).

In arguing that the evidence should have been admitted, the defendant relies on R.S. 15:459 and R.S. 13:3723. The former statute provides:

“Whenever, during the trial of any criminal case, either party may desire to offer in evidence any record, paper or document belonging to the files or records of the court in which the trial is proceeding, the presiding judge shall, at the request of such party, direct the clerk to produce such record, document or paper, in order that the same may be used in evidence; and it shall not be necessary for the clerk in any such case to make a copy of such record, document or paper.”

R.S. 13:3723 essentially repeats those provisions and extends them to apply to civil as well as criminal cases. As can be seen, the statutes simply provide a mechanism whereby a party seeking to make evidentia-ry use of a record, paper or document already in the court’s files or records can do so without the necessity of obtaining a copy of the paper, record or document to be introduced. The party need only, under the statutes, request that the court instruct the clerk to produce the original. The statutes are therefore designed for the convenience of the parties in the production of evidence, but make no mention of the admissibility of such evidence after it is produced by the clerk.

In determining whether a statute creates an exception to the rule that hearsay evidence must be excluded, this court has looked to see if the legislature has made such an exception in express terms. See, State v. Martin, supra. That inquiry is consistent with the legislature’s mandate that hearsay is inadmissible “except as otherwise provided in this Code,” R.S. 15:434, and with the requirement that an exception to the hearsay rule provide some circumstantial probability of trustworthiness to take the place, as far as possible, of cross-examination. State v. Martin, supra.

The statutes involved in the instant case certainly do not, by their express terms, provide for an exception to the hearsay rule. Nor do they give any guarantee that all evidence in the court’s files or records is trustworthy. In short, the statutes provide no indication that the legislature intended to create a broad exception to the hearsay rule by their enactment.

Since the evidence sought to be introduced was hearsay, and did not fall within any recognized exception to the rule that such evidence must be excluded, the trial court did not err in refusing to allow its admission.

These assignments of error lack merit.

Assignment of Error No. 10

By this assignment the defendant argues that the state failed to prove his guilt as a principal in the killing of Charles Alfred. That argument is based in turn on the defendant’s contention that although he may have been involved in a fist fight with the deceased, he had no knowing part in the use of a knife against the victim.

This argument is contrary to the evidence adduced at trial, which provided an ample basis for the jury to conclude that the defendant was guilty of the crime charged. Mark Glynn and Chad Romero both testified that they observed the defendant stab the victim with a knife at least once. The photographs of the wounds introduced by the state show clearly that each of the stab wounds received by the victim reflected an intent on the part of his attackers to inflict at least great bodily harm. The record also indicates that the victim was stabbed by each of his assailants in turn, while the other two prevented his escape. It matters not whether the defendant actually wielded the knife for the fatal blow, or whether he simply held the victim while his cohorts stabbed him. In either case, his actions would fall under the definition of principals, which provides that “[a]ll persons concerned in the commission of a crime, .. . whether they directly commit the act constituting the offense, [or] aid and abet in its commission ... are principals.” R.S. 14:24. Since the jury was presented with evidence that the defendant had himself stabbed the deceased with a knife, and held the victim while his accomplices also stabbed him, the state did not fail to present sufficient evidence to support the jury’s verdict of guilty.

This assignment of error lacks merit.

Assignment of Error No. 11

By this assignment the defendant claims that his sentence to life imprisonment without benefit of probation, suspension of sentence, or parole for a period of forty years is excessive under Article 1, § 20 of our state Constitution. His claim is without merit. The sentence meted out to the defendant was mandatory under the second degree murder statute under which he was convicted. Such a legislative determination of the appropriate punishment for the offense has not been shown to be excessive. This court has in the past rejected arguments that life imprisonment is an excessive penalty for the crime of second degree murder. State v. Brooks, 350 So.2d 1174 (La.1977).

This assignment of error lacks merit.

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

DENNIS, J., concurs disagreeing with treatment of arguments 1 and 3.

      . Only those remarks to which the defendant contemporaneously objected shall be considered, since only they can be availed of after verdict. C.Cr.P. 841.

      . The record does not support the defendant’s contention that his accomplices were unavailable to testify at his trial, a requisite for admission of hearsay statements as declarations against penal interest. State v. Gilmore, 332 So.2d 789 (La.1976).

      . The same result is obtained under either the standard of review set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) or under this court’s traditional “no evidence” standard. La.Const. 1974, art. 5, § 5(C).


source: Caselaw Access Project

author:
FEDOROFF, Justice Ad Hoc.
     DIXON, Chief Justice

license: Public Domain

text:
    Edward C. RAGAS v. ARGONAUT SOUTHWEST INSURANCE CO. et al.
    No. 67110.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    Andry & Andry, Edwin R. Fleischmann, Jr., Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for plaintiff-applicant.
    Lawrence J. Centola, Jr., McGlinchey, Stafford, & Mintz, Adams & Reese, Edward J. Rice, Jr., New Orleans, Oscar L. Schoen-felt, III, D. Michael Dendy, for defendants-respondents.
   FEDOROFF, Justice Ad Hoc.

Ragas’s suit for medical malpractice was dismissed at the close of all the evidence on defendants’ motions for directed verdict. On appeal, the Court of Appeal, Fourth Circuit (379 So.2d 822) affirmed the directed verdicts as to the anesthetist, the recovery room nurse, and the hospital. As to the operating surgeon, however, the Court found that the plaintiff’s claim should have gone to the jury, and reversed the directed verdict.

Following Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), the Court reviewed the record, decided that plaintiff had failed to prove his case, and dismissed his suit on the merits.

Certiorari was granted so that this court might reconsider the implications of its Gonzales decision in light of Judge Lem-mon’s concurring opinion (on the Court of Appeal) in this case.

In Gonzales, the Court of Appeal had found a jury charge substantially deficient and had remanded the case for a new trial. This court, having granted certiorari, remanded the case to the Court of Appeal with instructions to consider the trial record and enter judgment on the merits. The majority reasoned that since the record was complete, and because the Louisiana constitution vests fact-finding jurisdiction in our appellate courts, judicial economy was best served by a prompt decision on the record, rather than a remand with its attendant delay.

The concurrence in the case at hand notes an apparent inconsistency between the limitations imposed by the manifest error rule on appellate review of trial-found facts, and the Gonzales procedure that requires an original finding of facts by an appellate court.

The manifest error rule is the standard by which the fact-finding function of the trial court is measured. It assumes legal issues were correctly decided. Gonzales treats a separate problem: What should be done with a complete record on appeal when some legal error deprives the judgment of the presumption of factual correctness it would otherwise possess?

As noted in 41 Tul.L.Rev. 922, review of facts has been part of our appeals process since 1816, when the continental practice was adopted in Abat v. Doliolle, 4 Mart (O.S.) 316. Since 1879, it has been authorized by every Louisiana constitution.

As observed in Gonzales:

. . appellate courts render judgments on the merits when the trial court has made a consequential but erroneous ruling on the exclusion or admission of evidence. Builliard v. New Orleans Terminal Co., 185 La. 924, 171 So. 78 (1936); Baker v. D. H. Holmes Co., Ltd., 285 So.2d 282 (La.App. 4th Cir. 1973); Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966), writ denied, 249 La. 713, 190 So.2d 233. Likewise, when an appellate court has all the facts before it, a trial judge’s erroneous instruction to the jury does not warrant a remand. Dixon v. Copeland, 289 So.2d 261 (La.App. 1st Cir. 1973); Clay-Dutton, Inc. v. Plantation Nursing Home, 239 So.2d 442 (La.App. 4th Cir. 1970); Barreca v. United States Fire Insurance Co., 182 So.2d 138 (La.App. 4th Cir. 1966); Duet v. Montagnet, 160 So.2d 561 (La.App. 4th Cir. 1964).

The practice has served to minimize the harm of trial court error by allowing appellate correction without the delay, effort and expense inherent in remand. It is a constitutionally authorized and statutorily required expedient..

Not until Herbert v. Travelers Indemnity Co., 193 So.2d 330 (La.App. 4th Cir. 1966); and Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969) has an appellate court in modern times remanded a case for retrial because of legal errors where the record was otherwise complete. As noted in Gonzales, both of these cases have been criticized. See 41 Tul.L.Rev. 922 and 30 La.L. Rev. 301.

Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.

This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a firsthand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.

Implicit in the Court of Appeal’s affirmation of the directed verdicts in favor of the anesthetist, the recovery room nurse and the hospital was its conclusion that plaintiff’s claim against them would also have been dismissed on the merits. We have therefore reviewed this ruling, as well as the dismissal of plaintiff’s claim against the surgeon on the merits, in order to determine whether the record is such that the Court of Appeal could fairly discern the preponderance of the evidence without viewing the witnesses and whether the resolution of the case was correct. The record is clear that the plaintiff has failed to prove liability against any of the defendants.

For these reasons, the judgment of the Court of Appeal is

AFFIRMED.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Plaintiff has been denied his right to trial by jury.

       The Honorable Gerald P. Fedoroff participated in this decision as an Associate Justice Ad Hoc in place of Associate Justice Harry T. Lemmon, who was recused.

      . The present Louisiana Constitution of 1974 provides that the jurisdiction of the supreme court in civil cases extends to both law and facts. Art. 5, Sec. 5. As to courts of appeal, the constitution provides: “Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.” Art. 5, Sec. 10.
      These constitutional provisions are implemented by the Louisiana Code of Civil Procedure, Art. 2164: “The appellate court shall render any judgment which is just, legal and proper upon the record on appeal.”


author: CALOGERO, Justice.

text:
    Hugh M. CARLETON v. DIVISION OF ADMINISTRATION, Louisiana Civil Service Commission, and Department of Civil Service, State of Louisiana.
    No. 67117.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    Marian Mayer Burkett, amicus curiae for La. Civil Service League.
    R. Gray Sexton, Baton Rouge, for La. Dept, of Civil Service, defendant-applicant.
    William R. Carruth, Jr., Baton Rouge, for plaintiff-respondent.
   CALOGERO, Justice.

The Department of Civil Service of Louisiana complains of a decision of the First Circuit Court of Appeal which reversed an order of the State Civil Service Commission. Carleton v. Division of Administration, 380 So.2d 628 (La.App. 1st Cir.1979).

The matter involves a salary dispute between plaintiff, an employee of the Division of Administration, and the Division of Administration on the one hand, and the Department of Civil Service, and Civil Service Commission on the other. The broader issue concerns plaintiff’s employment status in point of time, i. e., when did plaintiff become a classified employee of the Division of Administration.

On May 9, 1977, plaintiff Hugh Carleton was employed by the Division of Administration as Director of State Purchasing at an initial salary of $2,500.00 per month. Apparently on the strength of In re Division of Administration, 343 So. 2d 277 (La. App. 1st Cir.1977), writs denied at 345 So.2d 504 (La.1977), Carleton entered the Division of Administration as an unclassified employee rather than as a classified employee; that is, he did not qualify by Civil Service competitive examination and was not paid in accordance with Civil Service guidelines.

Later in Smith v. Division of Administration, 362 So.2d 1101 (La.1978) we held that all employee positions in the Division of Administration (with the exception of the Commissioner of Administration and two assistants) are classified.

The focus of our opinion in Smith, supra, was upon whether the Division of Administration was part of the “office of the Governor” under Article 10, Section 2 of the Louisiana Constitution and thus not subject to Civil Service Commission Rules on employee hiring and salary guidelines. We entered judgment in Smith “declaring employees of the Division of Administration (with the exception of its appointed head, and those occupying the unclassified positions permitted by Civil Service Law) classified employees of the State of Louisiana under Article 10, Section 2(A) of the Louisiana Constitution of 1974.” The context meaning of that language was that all “positions” in the Division of Administration (with the afore-mentioned exceptions) are classified and employees filling those positions must qualify by Civil Service competitive examination and are subject to all other Civil Service Commission regulations, including those relating to pay.

After Smith, id., the Department of Civil Service established a pay range for Director of State Purchasing of $1,666.00 to $2,462.00 per month and required a competitive examination which Carleton passed. He was then notified that his new salary as determined by the Department of Civil Service would be $1,780.00 per month effective March 15, 1979, the second step of the pay range and a reduction in pay of approximately $800.00 per month from his former salary and $700.00 per month less than the top of the pay-range.

Plaintiff, aggrieved by this salary reduction, simultaneously pursued relief before the Civil Service Commission and the district court. The district court sustained an exception of lack of jurisdiction filed by the Department of Civil Service and dismissed Carleton’s suit. On the heels of the district court’s action the Civil Service Commission took up his appeal. Plaintiff presented two contentions to the Civil Service Commission as to why his salary had been improperly set. His first contention was that the Civil Service Director erred in setting his salary under Civil Service Rule 6.28 which relates to “Pay Upon Change from Unclassified Service to Classified Service.” Plaintiff contended that the Director of the Department of Civil Service should have applied Civil Service Rule 6.12(d) which relates to “When a Pay Plan is Established or a Range is Changed.” His second contention was that, notwithstanding which Rule applied, the Director of the Department of Civil Service acted arbitrarily in setting the range for State Purchasing Director and placing plaintiff on the second step of that range. The Civil Service Commission summarily dismissed his appeal on the grounds that the Director of the Department of Civil Service acted in accordance with the administrative authority granted him under Rule 6.28 in setting the pay range for plaintiff’s position and in placing him on the second pay-step for that position. Thus in effect they presupposed the propriety of the Director’s established pay range for the State Purchasing Director and his placing plaintiff on the second step of that range, and did not consider the merits of plaintiff’s second contention.

From this summary dismissal Carleton appealed. The Court of Appeal reversed the ruling of the Civil Service Commission with respect to the summary dismissal of his suit. They held that plaintiff had stated a cause of action in alleging that his salary had been cut through the application of the wrong Civil Service Rule. The Court of Appeal further held that under Smith Carleton was a classified employee from the time that he was first hired in May, 1977, and that after our decision in Smith his pay should have been determined under Civil Service Rule 6.12(d) (“When a Pay Plan is Established or a Range is Changed”) at $2,462.00 per month, the maximum allowable for the position of Director of State Purchasing. The section of Civil Service Rule 6.12 relied upon by the Court of Appeal provides that when a pay range is established or changed, the rate of pay of an employee being paid in excess of the maximum prescribed shall be reduced to the maximum pay for that range.

Defendants contend that Rule 6.12(d) is not applicable in this instance, that the Civil Service Commission correctly applied Rule 6.28 and that the opinion of the Court of Appeal, insofar as it held plaintiff a classified employee from the time of hiring entitled him to all Civil Service protections from that date, is inconsistent with our decision in Smith.

We agree that Rule 6.28 appears more nearly analogous to the situation we confront here than Rule 6.12(d). Rule 6.12(d) is designed to deal with the rare cases (most notably at the incipience or institution of civil service) where an employee is receiving pay in excess of the maximum prescribed for his class just prior to establishment of the pay plan or change in the range. Rule 6.28 regulates the setting of an employee’s salary when the position the employee occupies is changed from unclassified to classified status. Although Carleton was not changed from an unclassified position as is contemplated in the literal language of Rule 6.28, but rather from a classified position which because of peculiar reasons he occupied without having qualified in the normal manner, Carleton’s job qualifications and salary were originally determined in the same manner as those of unclassified employees and Carleton never qualified for the classified service until later when he passed the competitive examination.

Granting plaintiff the maximum salary allowed for the State Purchasing Agent position by applying Civil Service Rule 6.12(d) would encourage the appointment of persons to “unclassified” positions in violation of Civil Service rules at a salary in excess of the maximum allowed by the Civil Service Commission. An employee so appointed would receive the best of both worlds because once the Civil Service Commission ruled that the position was classified the employee upon qualifying would immediately be frozen in at the maximum salary allowed for that pay range without regard to his qualifications, and his classified status would place him beyond the reach of a successor appointing authority. An employee so appointed without Civil Service qualifications could receive on the job training at public expense that would give him an unfair advantage over other applicants when the position was later declared classified. Our decision in Smith did not create a special class of employees composed of those who were appointed to unclassified positions in contravention of the Civil Service System Rules. Our bottom line in Smith was simply that employees’ positions in the Division of Administration are classified and subject to Civil Service Commission jurisdiction just as are positions in other state departments.

For these reasons we conclude that the Court of Appeal erred in holding that pursuant to Civil Service Rule 6.12(d) plaintiffs salary should automatically be fixed at the maximum allowable pay for State Purchasing Director.

However, the record before us is not sufficiently complete to allow us to rule on the merits of plaintiff’s alternative contention that the Department of Civil Service abused its discretion and violated Civil Service Commission rules and regulations in arbitrarily setting the pay range for Director of State Purchasing and in setting plaintiff’s pay at $1,780.00 per month, the second step in the pay range.

When plaintiff complained to the Civil Service Commission and prepared to present evidence to them to support this contention the Civil Service Commission granted the Department of Civil Service’s motion for a summary dismissal and thereby prevented plaintiff from presenting that part of his case. The Court of Appeal then reversed, favorably to defendant, concluding that he was entitled to a higher salary, the maximum in the pay range. The Court of Appeal found no reason to consider plaintiff’s alternative argument that the whole pay range was out of kilter, nor if so, what the proper range should have been and what plaintiff’s proper pay-step should be. Now that we reverse the Court of Appeal and determine that plaintiff’s position, salary, and status are subject to Civil Service Regulation and find that Rule 6.28 is applicable, it becomes necessary that there be addressed this matter of the alleged unreasonable pay range and plaintiff’s appropriate salary. The place to have this done is the Civil Service Commission which has yet to address the issue. Furthermore, both parties requested that in the event we reverse the Court of Appeal we remand the case to the Civil Service Commission for a hearing on these issues. Accordingly, we will remand the case to the Civil Service Commission for a full hearing on these remaining issues.

Decree

For the foregoing reasons the ruling of the Court of Appeal setting plaintiff’s salary at $2,462.00 per month is reversed and set aside and the case is remanded to the Civil Service Commission for a hearing on plaintiff’s contention that the Department of Civil Service erred in setting the pay range for State Purchasing Director and in placing plaintiff on the second pay step for that position.

REVERSED AND REMANDED.

      . The first round of this battle between the Division of Administration, the Department of Civil Service, and the Civil Service Commission ended when we denied writs in In re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977), writs den. 345 So.2d 504 (La.1977). The Court of Appeal in that case held that the Division of Administration was part of the “office of the Governor” under the Louisiana Constitution and therefore its employees were unclassified employees not subject to Civil Service Commission Regulations. This Court denied writs but as we later stated in the second case involving this matter, Smith v. Division of Administration, 362 So.2d 1101 (La.1978), citing Day v. Campbell Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105 (La.1971), such denial did not constitute an adjudication in this Court on the merits of the legal issue. See also, Barham, “The Importance of Writ Denial, 21 Loy.L.Rev. 835 (1975).

      . Civil Service Rule 6.28 provides:
      “Pay Upon Change from Unclassified Service to Classified Service.
      When the status of an employee, while he occupies the same position, is changed from the unclassified to the classified State service, the Director, upon request of the appropriate appointing authority, may fix his rate of pay at such step or intermediate step in the range for his class of position for which he would have attained eligibility under the provisions of Rule 6.15 had his status been classified during his unclassified service; provided:

        1. The nature and quality of such service is recognized as qualifying under the examination specifications prescribed for the class of position; and
      2. The Director may not fix the employee’s rate of pay at a figure in excess of that he was receiving at the time of his change of status, unless his rate of pay while serving with unclassified status did not equal or exceed the minimum rate of the range for his class of position.”

      .Civil Service Rule 6.12 provides in pertinent part;
      “When a Pay Plan is Established or a Range is Changed:

      (d) The rate of pay of an employee who is being paid in excess of the maximum prescribed for his class shall be reduced to such maximum.”

      .Rule 6.28 authorizes the Director of the Department of Civil Service to give credit to a newly classified employee for previous similar service outside the classified system at a pay step commensurate with his similar service. The Department of Civil Service chose to give plaintiff credit for similar service by placing him on the second step of the pay range for the Director of State Purchasing.


text:
    STATE of Louisiana v. Terry BAYLIS.
    No. 65327.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., H. Russell Davis, Asst. Dist. Atty., for plaintiff-appellee.
    Emmons, Reeves & Henry, Joseph A. Reeves, Jr., Jonesboro, for defendant-appellant.
   DIXON, Chief Justice.

The defendant was convicted of second degree murder (R.S. 14:30.1) and sentenced to serve life in prison without benefit of parole, probation or suspension of sentence for a period of forty years.

In this appeal the defendant submits for our consideration twenty-nine assignments of error, grouped into eight arguments.

The evidence at trial indicates that the defendant and his estranged wife Lydia paid a visit to an attorney in Arcadia, Louisiana on May 20, 1978 to discuss the terms of their separation. The couple then went to Shreveport to try to dispose of their mobile home. After leaving Shreveport they drove to a secluded spot near Ring-gold, Louisiana where they apparently had sexual intercourse. Before leaving the area, however, the couple began to argue, resulting in defendant pulling out a pistol, striking his wife, and then shooting her severa! times. Her body was discovered some three weeks later, and the defendant was arrested along with his father, who was implicated as an accessory for having helped the defendant dispose of the victims’s car.

Assignments of Error Nos. 2, 15, 16, 18-22, 24-26

By these assignments the defendant challenges the admission of statements he made to law enforcement officials, and the admission of evidence allegedly obtained as a result of those statements.

The day after defendant and his father were arrested, they were visited in their cell by Arvis Whitman, who asked for permission to search their house for the gun. As the sheriff left, defendant said, “Sheriff, I need to talk to you in private.” The sheriff agreed, and took the defendant into his private office, where the defendant made an oral statement. Later that same day the defendent made another statement to the sheriff’s deputies and an assistant district attorney. The second statement was recorded.

Prior to trial, the defendant filed a motion to suppress both statements, which was denied. At trial only the first, unrecorded, statement was admitted. The defendant now contends that that statement was invalidly obtained because certain statements made by the sheriff on the subject of the defendant’s father amounted to psychological coercion, and because the sheriff misled him into believing any statement he made would not be used against him.

We find the defendant’s first contention to be without merit.

In State v. Weinberg, 364 So.2d 964 (La. 1978), this court held that certain statements made by a defendant in an effort to protect his father from disturbance in the course of a search of his house were admissible. In that case the defendant, on learning that a search was about to occur, offered to show the officer where certain contraband was located if the officers promised not to arrest or upset his father, who was suffering from a heart condition. In ruling that statements made after the police made such a promise were admissible, the court noted that the mere fact that a statement is motivated by a desire to protect a loved one does not render the statement inadmissible. We held that since the proposal for consideration of the defendant’s father originated with the defendant, and was not suggested by the police to induce cooperation the statements were not coerced so as to render them inadmissible.

In the instant case the defendant testified that the sheriff told him, before he made the statement, that he ought to “get (his) dad off the hook,” and continued to exhort him to do so until he confessed. The sheriff, on the other hand, stated that the defendant had initiated the discussion of the elder Baylis, and that he had simply agreed with the defendant when he stated that he had gotten his father into trouble. The sheriff did not recall telling the defendant that he ought to get his father “off the hook.” Therefore, the testimony of the defendant and of the sheriff was essentially in conflict as to whether the sheriff used the defendant’s father’s incarceration in an effort to get a confession, or whether the defendant simply decided to make a confession out of concern for his father.

It is true that when it seeks to introduce a confession, the state must prove beyond a reasonable doubt that it was made freely and voluntarily, and must show affirmatively that it was not made under the influence of fear, duress, intimidation, menaces, inducements or promises. State v. Morvant, 384 So.2d 765 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980); R.S. 15:451; C.Cr.P. 703(C). Nevertheless, conclusions of a trial court as to credibility of witnesses and the weight of testimony relating to voluntariness should not be overturned on appeal unless they are not supported by the evidence. State v. Morvant, supra; State v. Jackson, supra; State v. Gaines, 354 So.2d 548 (La.1978). The record in the instant case contains ample testimony by the sheriff supporting the trial court’s conclusion that the statement was made freely and voluntarily, and that the defendant’s will was not overborne by police tactics designed to prey on the defendant’s concern for his father.

Nor is there merit in the defendant’s contention that he was misled into believing that anything he said would not be used against him. The basis of that contention is that, prior to taking the statement, the sheriff told the defendant that the statement was not being recorded, and that the room was not bugged. The defendant was unable to say, however, that he was under the impression that only recorded statements could be used. The sheriff testified that before the statement was made, he informed the defendant of his Miranda rights, including his right to remain silent, and that he had warned the defendant that anything he said could be used against him. Since the record reveals that the defendant was fully informed that his statements could be used against him, and does not reveal any action by the sheriff from which the defendant could have reasonably made a contrary inference, there is no merit in the contention that the defendant was misled into believing his statement would not be used.

The defendant’s second statement, which was recorded, was made to various police officers and an assistant district attorney later that same day. The assistant district attorney was summoned at the defendant’s request to explain the law relating to first and second degree murder and manslaughter. When he arrived, the defendant offered to make a statement if the state would agree not to prosecute his father or a third person whose identity was not disclosed, and to charge the defendant with a lesser offense than first degree murder.

As noted above, this recorded statement was not introduced into evidence at trial, so the defendant was not prejudiced by the trial court denial of the motion to suppress it. The defendant argues, however, that evidence seized as a result of his statements (in particular the murder weapon) should have been suppressed. The murder weapon was in fact introduced at trial, after the court denied a motion to suppress.

As noted in the discussion above, the defendant’s first statement made to the sheriff was not improperly obtained. Nor did the defendant prove that the statement he made later in the day was such that it tainted the subsequent discovery by the state of the murder weapon. The evidence at the motion indicates that the proposal that the defendant make a statement in return for a promise that the defendant’s father not be prosecuted was advanced by the defendant and was not suggested by the police or the prosecutor. There is no evidence that the state’s representatives sought to use the elder Baylis’ predicament as leverage in obtaining a statement. The defendant was not coerced so as to render the statement inadmissible. State v. Weinberg, supra. In addition, the record does not support the defendant’s claim that the statement was induced by a promise that he would be charged with manslaughter. Although the defendant and the assistant district attorney discussed the possibility and the prosecutor may have told the defendant that he would discuss the matter with his superior, the defendant himself admitted that before the statement was made he was told specifically by the assistant district attorney that the charge would be second degree murder. Therefore, although the defendant might have hoped that the charge would be manslaughter, that hope was not shown to have been inspired by any promise from the assistant district attorney. The record does not support the contention that the statements defendant made to the police were improperly obtained, and the trial court did not err in denying his motion to suppress the murder weapon.

These assignments of error lack merit.

Assignment of Error No. 27

By this assignment the defendant complains of the trial court’s refusal to give certain special charges to the jury. C.Cr.P. 807 provides:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.
It need not be given if it is included in the general charge or in another special charge to be given.”

Requested special jury charge # 7 contained the definition and penalty for manslaughter as defined by R.S. 14:31. Since the record shows that the trial court included the definition of that crime in its general charge to the jury, there was no error in his refusal to give this special charge. The requested special charge # 4 would have instructed the jury to “completely disregard” any physical evidence and any testimony relating thereto if it found that the physical evidence was obtained by information given to the state in a statement by the defendant that was inadmissible because of promises or inducements. In State v. Anderson, 229 So.2d 329, 339 (La.1969), this court stated:

“A determination of the admissibility of a confession lies within the exclusive province of the trial judge. Once the trial judge rules the confession admissible, the jury has no authority to reject it as incompetent. .
It is true the jury must determine the weight to be accorded a confession. . . ”

Therefore, the trial court did not err in refusing to instruct the jury that it should make an independent determination of the defendant’s statements, or in refusing to instruct the jury as to the weight to be given physical evidence introduced at trial.

The refusal of the trial court to give requested special instruction # 6 presents a more serious question. In that requested instruction the defendant sought to have the court inform the jury that a verdict of guilty to a charge of second degree murder carried a mandatory penalty of life imprisonment. That refusal is contrary to State v. Prater, 337 So.2d 1107 (La.1976); see State v. Monroe, 364 So.2d 570 (La.1978) and State v. Milby, 345 So.2d 18 (La.1977). The record only discloses that the defendant merely objected to the court’s refusal to give this and other requested instructions, and did not, as required by C.Cr.P. 841, state the grounds for his objection. The defendant is required to state the basis of his objection to the trial court so that the trial court will have an opportunity to rule on the objection and to avoid or cure any error. State v. Lewis, 353 So.2d 703 (La. 1977).

We will not reverse on the record before us.

Assignments of Error Nos. 1, 3 and 28

By these assignments the. defendant contends that he was prejudiced by the state’s failure to specify under which section of R.S. 14:3o.!, relative to second degree murder, it was proceeding.

Our Constitution provides that an accused shall be informed of the nature and cause of the accusation against him. Art. 1, § 13. That requirement is implemented by C.Cr.P. 464 which provides:

“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.”

C.Cr.P. 465, however, authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. When those forms are used it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a bill of particulars. State v. Johnson, 365 So.2d 1267 (La.1978).

In the instant case the defendant requested a bill of particulars simultaneously with his motion to quash the indictment on the grounds of the state’s failure to specify the section of the statute under which it was proceeding. Neither the motion to quash nor the motion for a bill of particulars asked the state to designate the section of R.S. 14:30.1 under which defendant was charged.

In the answer to the motion for a bill of particulars, the defendant was informed by the state that defendant was accused of shooting his wife several times with a handgun. The defendant was also provided with a transcript of his recorded confession, which set out the facts under which the state was proceeding. In addition, prior to the start of trial the prosecutor told the defendant’s counsel in open court that the state was proceeding under § B of R.S. 14:30.1. Defendant was fully informed of the nature and cause of the accusation against him.

These assignments lack merit.

Assignment of Error No. 5

By this assignment the defendant complains of the trial court’s denial of his challenge for cause of juror Rayford G. Loflin. On voir dire examination that juror stated that he was familiar with the defendant and his father, and also with the victim and her father. He had worked with the victim’s father for some fourteen years, and lived two or three miles from the defendant’s father. His wife had cared for the child of the defendant and victim on one occasion, but that was the extent of his social relationship with the participants of the case. Mr. Loflin stated that although he would be uncomfortable on a jury in a case in which he was acquainted with the persons involved, he thought that he could be a fair juror, and require the state to prove beyond a reasonable doubt that the defendant was guilty. The tenor of his responses to questions on voir dire was that although he would prefer not to be on the jury, he felt that if he was chosen he could be fair and impartial, and that he could follow the court’s instructions. Since the defendant did not show either that the jur- or would not be impartial, or that his relationship with the persons involved would influence him in arriving at a verdict, the trial court did not err in denying the challenge for cause. C.Cr.P. 797.

This assignment of error lacks merit.

Assignment of Error No. 6

The defendant was originally charged by grand jury indictment with first degree murder. The charge was amended by the district attorney to second degree murder. At the beginning of the trial when the clerk read the indictment to the jury, he correctly read the front of the document which indicated that the charge was second degree murder. In reaching the back of the indictment, however, he stated that the defendant was charged with first degree murder. In so doing the clerk apparently erroneously read the first charge, which had been lined through, instead of the later charge which had been typed in the space above the original charge. The defendant moved for a mistrial, arguing that the defendant was prejudiced because the jury had been informed that the defendant had originally been charged with first degree murder. Alternatively, he requested that the jury be told that the clerk had erroneously read the charge. The court denied the motion for a mistrial, but admonished the jury as requested. The defendant now reiterates his contention that he was prejudiced because the jury was informed that he was originally charged with first degree murder.

That argument is without merit. The jury was not in fact informed that the defendant had been originally charged with the more serious offense. Instead the jury was told by the trial court that the clerk had erroneously read the charge. There was nothing in the record to suggest to the jury that such had not been the case, or that the members of the jury did not believe what the court told them. The court’s admonition negated any inference that the jury might have drawn from the erroneous reading, and thus dispelled any prejudice that such an inference might have created in the mind of the jury.

This assignment of error lacks merit.

Assignments of Error Nos. 7, 8, 9 and 10

By these assignments the defendant complains of the admission of statements he made on the ground that the state failed to provide notice of its intent to use the statements as required by C.Cr.P. 768. That article provides:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

The basis of defendant’s objection to the statements at trial was that none of the various statements he had made were admissible, because prior notice had not been given. The state took the position that notice had been given'in its answers to the defendant’s discovery motion. Defense counsel took the position that some sort of special pleading was required, and that the state was required to inform the defense of the nature of the statements. In brief to this court the defendant appears to concede that that position is unfounded, but contends that a written statement was introduced at trial, without any notice whatsoever. Whatever merit the defendant’s argument may theoretically have, however, careful review of the record indicates that no such written statement was ever introduced.

These assignments of error lack merit.

Assignment of Error No. 11

In questioning Deputy Sheriff Kennedy as to a statement made by the defendant, the prosecuting attorney, after hearing the substance of the statement, stated: “Well, this statement is inconsistent with the first statement he gave, is that correct?” Defense counsel made an objection to the question, on the ground that it called for a conclusion on the part of the witness. The objection was sustained. Questioning proceeded without further action on the part of the defense counsel, such as a request for a mistrial or an admonition from the court. On appeal the defendant argues for the first time that the prosecution attorney’s remark amounted to “prosecutorial overreaching,” and that his conviction should therefore be reversed.

The question, although arguably improper in form and content, did not fall within the specific grounds for a mistrial under C.Cr.P. 770. Nor did the question amount to prejudicial conduct that would make it impossible for the defendant to obtain a fair trial, which would be grounds for a mistrial under C.Cr.P. 775. The defendant may have been entitled to an admonition from the trial court, under C.Cr.P. 771, which provides for an admonition when an irrelevant or immaterial remark of such a nature that it might create prejudice against the defendant, is made by the district attorney within the hearing of the jury. The defendant did not request such an admonition, however. Although this court has held that where a defendant objects to improper remarks and the objection is overruled, the defendant is not required to make a useless motion for an admonition or a mistrial to preserve his rights on appeal, State v. Hamilton, 356 So.2d 1360 (La. 1978), in cases where the defendant’s objection is sustained, and the court is presumably willing to give him whatever relief to which he is entitled, there is no reason the defendant should not be required to request an admonition, if he wants one. Since the court acted properly in sustaining the defendant’s objection, and the defendant thereafter failed to request an admonition or mistrial, the defendant cannot now claim that the remark was prejudicial.

This assignment of error lacks merit. Assignment of Error No. 13

At trial evidence was elicited from Dona-van Wiggins as to an encounter between him and the defendant in which the defendant offered to “get rid of” someone for Wiggins if Wiggins would “get rid of” Lydia Baylis. The defendant objected to that testimony on the ground that the state had not given notice as required by C.Cr.P. 768 for the introduction of inculpatory statements. On appeal the defendant reurges that objection, and, in addition, argues that the testimony amounted to evidence of crimes other than the one for which the defendant was being prosecuted, and, therefore, under R.S. 15:445-6. and State v. Prieur, 277 So.2d 126 (La.1973), the state was required to furnish in writing to the defendant a statement of the acts or offenses it intended to offer, specifying the exception to the general rule excluding such other crimes evidence under which it intended to offer the evidence.

The provisions of C.Cr.P. 768 apply when the state seeks to introduce a confession or inculpatory statement. In State v. Brent, 347 So.2d 1112, 1117 (La. 1977), this court stated:

“. . . For purposes of this article, the term ‘inculpatory statement’ refers to defendant’s out-of-state admission made after a crime has taken place which implicates defendant in its commission. State v. Brumfield, 329 So.2d 181 (La.1976); State v. Wells, 306 So.2d 695 (La.1975).

See also, State v. Berain, 360 So.2d 822 (La.1978). In this case the statement in question, made before the killing, was not a confession or inculpatory statement within that definition. Therefore, no notice was required under C.Cr.P. 768. In addition, the record indicates that the defendant was in fact informed of the state’s intent to introduce the statement by its response to the defendant’s discovery motion. There is no merit to the defendant’s argument that notice was required under C.Cr.P. 768 and not properly given.

The defendant’s alternative argument, that the testimony was .evidence of other crimes, is predicated on a contention that his conduct in approaching Wiggins is proscribed by R.S. 14:28, relative to inciting to commit a felony. Even if that contention is accepted, the defendant is not entitled to relief under this assignment of error. It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence, and the party objecting made known to the court the action which he desired the court to take, or his objection to the action of the court, and the grounds therefor. C.Cr.P. 841. A new basis for an objection may not be raised for the first time on appeal. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Quincy, 363 So.2d 647 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977). Therefore, this contention must be deemed to have been waived by the defendant’s failure to object to the absence of Prieur notice.

This assignment of error lacks merit.

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

LEMMON, J., concurs.

DENNIS, J., dissents with reasons. [The dissenting opinion will be separately published.]

      . At the time of the offense that statute 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.
      Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation, or suspension of sentence for a period of forty years.”
      The statute was construed so as to be constitutional in State v. Payton, 361 So.2d 866 (La. 1978).

      . This is an apparent reference to the transcript of the defendant’s oral recorded statement.