author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Joyce M. WILLIAMS.
    No. 81-KA-0222.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mark H. Kaplinsky, Louise Korns, Asst. Dist. Attys., for plaintiff-appellant.
    Clay Calhoun, Jr., New Orleans, for defendant-appellee.
   BLANCHE, Justice.

Defendant Joyce M. Williams was charged by bill of information with unauthorized use of a revoked access card, in violation of La.R.S. 14:67.3. The defendant responded to the charge by filing a motion to quash the bill of information alleging that the statutory language defining the crime was flawed by an unconstitutional presumption. The trial judge agreed by granting the defendant’s motion and the state appealed. La.Const. Art. 5, § 5(D) • (1974).

In pertinent part, R.S. 14:67.3 defines unauthorized use of a credit card as follows:

“C. Whoever, directly or indirectly, by agent or otherwise, with intent to defraud, uses a revoked Access Card, thereby obtaining, whether contemporaneously or not, credit, money, goods, services or anything of value shall be guilty of theft and shall be subject to the penalties provided for the crime of theft in R.S. 14:67. For purposes of this Subsection, it shall be presumptive evidence that a person used a revoked Access Card with intent to defraud if the said person, directly or indirectly, by agent or otherwise, uses the said Access Card after actually receiving oral or written notice that the Access Card has been cancelled or terminated, or if said person, directly or indirectly, by agent or otherwise, uses the said Access Card at a time period more than five days after written notice of the termination or cancellation of said Access Card has been deposited by registered or certified mail in the United States mail system. Said notice shall be addressed to the person to whom such Access Card has been issued at the last known address for such person as shown on the records of the issuer.”

The term “access card” is defined in Paragraph (A)(1) of R.S. 14:67.3 as follows:

“A. (1) “Access Card” shall mean and include any card, plate, paper, book or any other device issued to a person which authorizes such person to obtain credit, money, goods, services or anything of value, whether contemporaneous or not, by use of any credit or deferred payment plan with issuer or by use of debiting or charging such person’s demand deposit or savings or time account with issuer or by debiting or charging any other funds such person has on deposit with issuer.”

A revoked access card is one that has been cancelled or terminated by the issuer.

The sole issue before the Court is whether the portion of the second sentence of Section C, authorizing a finding of fraudulent intent upon mere proof that the accused used an access card more than five days after written notice of said card’s cancellation had been sent by certified mail to the accused, infringes upon the accused’s constitutional rights to remain silent and to require the state to prove all elements of the offense necessary to establish his guilt beyond a reasonable doubt. La.Const. Art. 1, § 16 (1974); U.S.Const. Amend. 14; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Two of the most fundamental features of our criminal justice system are the presumption of innocence and the requirement that the state prove each element of a crime beyond a reasonable doubt. When it is sought to prove an element of the crime (the elemental fact) beyond a reasonable doubt with “evidentiary” or “basic” facts, the trier of fact is sometimes called upon to make an inferential leap from the fact or facts presented to it and the element of the crime that must be proven. Therefore, in order to facilitate this inferential leap (from the facts presented and the elements of the crime that must be proved), the legislature has, on occasion, enacted laws which provide that proof of an evidentiary fact can or must be construed as proof of an element of the crime. The effect of such legislation is the creation of a presumption that flows from proof of the established evidentiary fact. See County Court of Ulster County v. Allen, supra; State v. Taylor, 396 So.2d 1278 (La.1981).

When such a presumption is utilized so as to afford proof of an elemental fact, its constitutionality is dependent “on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently.” Ulster County, supra, 99 S.Ct. at 2224.

For purposes of due process analysis, such presumptions may be divided into two categories, permissive and mandatory. However, whatever the type of presumption involved, the ultimate test of validity remains constant:

“[T]he device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County, supra, 99 S.Ct. at 2224; see also In Re Winship, supra, 90 S.Ct. at 1072; Mullaney v. Wilbur, 421 U.S. 684, 702-703, n. 31, 95 S.Ct. 1881, 1891-92, n. 31, 44 L.Ed.2d 508 (1975).

A permissive presumption “allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and .. . places no burden of any kind on the defendant .... When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him.” Ulster County, supra, 99 S.Ct. at 2224. Because such permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of persuasion, it affects the reasonable doubt standard of proof only if, under the facts of the particular case, there is no rational way the trier could make the connection permitted by the inference. Id., at 2224. Thus, a permissive presumption need not meet the beyond a reasonable doubt standard because the prosecution may rely on all of the evidence presented to meet its burden of proving the issue of guilt. A reviewing court need only determine if there is a “rational connection” between the basic facts proved at trial and the ultimate fact presumed, and whether the latter is “more likely than not” to flow from the former. Ulster County, supra, at 2224, 2228; State v. Daranda, 388 So.2d 759, 761 (La.1980). Of course, if a permissive presumption is the only evidence introduced of an element of the offense or on some other issue where the prosecution must satisfy the beyond a reasonable doubt standard, the basic fact must prove the ultimate fact beyond a reasonable doubt.

On the other hand, where a statute requires that proof of an evidentiary fact necessarily constitutes proof of an element of a crime, the statute creates a mandatory presumption that proof of the former is proof of the latter. Such a presumption “may affect not only the strength of the ‘no reasonable doubt’ burden, but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Ulster County, supra, 99 S.Ct. at 2224-25.

A mandatory presumption violates due process “unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” Id., 99 S.Ct. at 2229. This standard is appropriate because the trier of fact must abide by the presumption and cannot make an independent evaluation of the evidence supporting the ultimate fact presumed; “the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases.” Id., 99 S.Ct. at 2226. Whether other evidence in the record supports the ultimate finding is irrelevant. The presumption is judged on its face.

Since the mode of judicial scrutiny depends largely upon the characterization of a statutory presumption as permissive or mandatory, the first step that must be taken in analyzing the instant presumption is the deduction of the degree of conclusiveness that a fact-finder must give to proof of the evidentiary facts of certified mailing, passage of 5 days, and use of an Access Card in relation to the elemental facts of use with intent to defraud.

The portion of the statute in question literally provides that “... it shall be presumptive evidence that a person used a revoked Access Card with intent to defraud ... if said person, directly or indirectly, by agent or otherwise, uses the said Access Card at a time period more than five days after written notice of the termination or cancellation of said Access Card has been deposited by registered or certified mail in the United States mail system.” The word “shall” is mandatory. R.S. 1:3. Thus, the statute commands the person(s) to whom it is addressed to consider proof of three evi-dentiary facts as presumptive evidence of use of an Access Card with intent to defraud. The term “presumptive evidence”, either alone or in context with other words, however, has not been expressly defined by the legislature.

In the past, this Court and two federal courts have had the opportunity to rule on the interpretation and validity of the following statutory language.

“The violation of a statute or ordinance shall be considered only as presumptive evidence of such [criminal] negligence.” R.S. 14:32, 39. (emphasis added)

This language was enacted to overrule a decision of this Court which had effectively held that the violation of a statute or ordinance was conclusive, irrebuttable proof of criminal negligence. State v. Nix, 211 La. 865, 31 So.2d 1 (1947), U.S. cert. den. 332 U.S. 791, 68 S.Ct. 100, 92 L.Ed. 373 (1947). Eventually, the intention of the legislature in passing the presumption was held to be the alerting of fact-finders that they could consider for themselves whether the evidence created an inference of criminal negligence. State v. Felix Hammontree, 363 So.2d 1364 (La.1978). See also State v. Lollar, 389 So.2d 1315 (Lemmon, J. concurring) (La.1980). Ultimately, the United States Court of Appeals, Fifth Circuit, considering Felix Hammontree’s subsequent federal habeas petition, concluded that the legislature’s choice of words supported the conclusion of this Court that the “presumption” created only a permissive inference, assuming the fact-finder was properly charged. Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979). The court stated, at 1379:

“In sum, Louisiana case law characterizing the term ‘presumptive evidence’ as an ‘inference’, and the legislature’s use of the word ‘only’ to qualify the term ‘presumptive evidence’, lead us to conclude that the Louisiana negligent homicide statute did not shift any constitutional burden from the prosecution to the defendant.”

More recently, this Court had the opportunity to pass judgment upon a similar statute which provided that proof that a person benefited from a device, attached to property over which the person had control and which prevented utility meters from accurately measuring utility services, “shall constitute prima facie evidence” of knowledge of the presence of the device and of specific intent to defraud the utility supplier, and shall bring such person “prima facie” within the scope of the statute. State v. McCoy, 395 So.2d 319 (La.1980). In McCoy, this Court felt that the authoritative manner in which the statute was worded and the generally accepted legal meaning of the term “prima facie evidence” made it obvious that the statute was designed to shift the burden of proof to the defendant once the state proved mere tampering with a utility meter which resulted in benefit to the person exercising dominion over the premises. Thus, the statute was held to create a mandatory presumption, one which was ultimately struck down for failure to meet the “beyond a reasonable doubt” standard.

In the instant case, unlike those interpreting the negligent homicide and negligent injuring statutes, there is no history of the intention of the legislature which indicates that the legislature did not expect this Court to interpret the statute literally. Thus, this Court is required to view the phrase “shall be presumptive evidence” in light of the fair import of the words, taken in their usual sense, in connection with the context of the statute. R.S. 14:3.

The term “presumptive evidence” is literally synonymous with the term “prima facie evidence”. Each is defined as evidence sufficient to establish a given fact and which, if not rebutted or contradicted, will remain sufficient. See State v. McCoy, supra, n.5; Black’s Law Dictionary (5th Ed. 1979). When the words “shall be” immediately precede each term, it becomes quite clear that proof of the facts which constitute the subjects of the verb must be construed as proof of the elemental facts constituting the objects, at least unless the defendant comes forward with evidence sufficient to create a reasonable doubt. This effect is the same where, as here, the term “shall be presumptive evidence” is used to equate certain evidentiary and elemental facts.

Viewed in this light, the presumption at issue here is mandatory. Thus, it can only stand if proof of the evidentiary facts of certified mailing of a cancellation notice, the passage of five days and the use of the revoked Access Card, would, on its face, constitute proof beyond a reasonable doubt of the elemental facts of use of an Access Card with the specific intention to defraud. We hold that it cannot.

Since unauthorized use of an Access Card is a specific intent crime, the mailing requirement and five-day waiting period indicate an apparent legislative attempt to impute knowledge of revocation to a cardholder so that a future use of the card can be construed as use with intent to defraud. Although mailing, the passage of five days and use of an Access Card would be relevant evidence to show that a person received notice of revocation but nevertheless used the card with the intent to defraud, this Court is not prepared to say that they are indicative of notice and fraudulent use beyond a reasonable doubt. There are simply too many other reasonable explanations, State v. McCoy, supra: the card issuee may no longer reside at the address to which the notice was sent; the issuee may not be present at the address when the notice arrives; the notice may have been lost, destroyed, delayed or misrouted either by the postal authorities or by some third person present at the address to which the notice was sent; and even the issuee may have actually received the notice but was unable to notify a third party authorized possessor of the Access Card.

For the above reasons, we find that the discussed presumption contained in the second sentence of R.S. 14:67.3(C) is unconstitutional. And since that portion is unconstitutional, the sentence following the presumption which refers to the method of mailing the notice must also fall, as it would have no meaning without reference to the presumption that flows from mailing.

The unconstitutionality of one portion of the statute, however, does not necessarily render the entire statute unenforceable. If the remaining portion of the statute is severable from the offending portion, this Court often strikes only the offending portion and leaves the remainder intact. State v. Taylor, supra; State v. McCoy, supra; State v. Brown, 389 So.2d 48 (La.1980). We find in the present case that the remainder of the statute can stand.

In the first place, the legislature provided a severability clause in the most recent enactment of the statute in question which provides that the invalidity of any portion of the act shall not affect the validity of the other portions. Acts 1979, No. 167 § 2. Additionally, it is clear that the legislative goal of punishing unauthorized credit card use can be effectuated even after deletion of any constitutionally deficient language. Accordingly, we declare unconstitutional the following portion of R.S. 14:67.3(C):

“For purposes of this Subsection, it shall be presumptive evidence that a person used a revoked Access Card with intent to defraud ... if said person, directly or indirectly, by agent or otherwise, uses the said Access Card at a time period more than five days after written notice of the termination or cancellation of said Access Card has been deposited by registered or certified mail in the United States mail system. Said notice shall be addressed to the person to whom such Access Card has been issued at the last known address for such person as shown on the records of the issuer.”

Since the remainder of the statute is valid and since defendant was charged with a crime punishable under a valid statute, the trial court’s ruling on the motion to quash must be reversed and the case remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

       Judges Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . The defendant also appears to assert in brief that the portion of Section C, which makes it presumptive evidence of use of a revoked Access Card with intent to defraud if the person uses the card after actually receiving oral or written notice of cancellation or termination of the card, is also unconstitutional. However, the transcript of the hearing on the motion to quash indicates that defense counsel informed the judge that he had no objection to that portion of the statute. Therefore, the judge did not address his ruling to that portion of the statute and it is not before this Court for review. See La.Const. Art. V, § 5(D).

      . State v. Lollar, 389 So.2d 1315 (La.1980); State v. Daranda, 388 So.2d 759 (La.1980); Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979); Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Nix, 211 La. 865, 31 So.2d 1 (1947), U. S. cert. den. 332 U.S. 791, 68 S.Ct. 100, 92 L.Ed. 373 (1947).


source: Caselaw Access Project

author:
CUTRER, Justice.
     WILLIAM V. REDMANN, Justice Pro Tern.,

license: Public Domain

text:
    STATE of Louisiana v. Ruth Lee MEREDITH.
    No. 67721.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
    Leo Boothe, Smith, Taliaferro, Seibert, Boothe & Purvis, Jonesville, for defendant-appellant.
   CUTRER, Justice.

Defendant, Ruth Lee Meredith, was charged by bill of indictment, on September 11,1979, with simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. Defendant was tried before a jury of twelve which found her guilty of attempted simple burglary of an inhabited dwelling, La.R.S. 14:27, 14:62.2, on December 8,1979. After a hearing, the defendant was sentenced on March 5, 1980, to three years at hard labor. She now appeals her conviction and sentence on the basis of eleven assignments of error.

By way of background, the evidence reflects the following:

Ms. Aliene Thompson testified that on October 1, 1978, she returned to her residence in Jonesville, Louisiana, to find that it had been broken into. Much of her property had been taken, including guns, crystal, money and silver, and the house appeared to have been ransacked. She immediately went to the home of the defendant, a neighbor, and informed her of the break-in. The two women and the defendant’s husband returned to the Thompson residence.

Ms. Thompson testified that initially she did not suspect the defendant, but she later recalled that the defendant appeared hesitant to become involved and at times acted as though she wanted to impede reporting the incident to the police and that she tampered with evidence.

Approximately nine months after the burglary, the estranged wife of the defendant’s son informed the police that she had helped move some of the property, later identified as that of the victim’s, from the defendant’s residence. She also delivered to the police a piece of crystal belonging to the victim that she said the defendant had given her. When the police executed a search warrant a month later, they could find none of the victim’s property in the defendant’s residence. The State, however, introduced testimony that the defendant had made an inculpatory statement to the Catahoula Parish Sheriff, admitting involvement in the burglary and knowledge of the whereabouts of the stolen goods.

The defendant took the stand on her own behalf and denied any knowledge of the burglary or the stolen property. The defendant also admitted that she was an alcoholic and that she was presently a resident in an alcohol abuse program. A previous witness, Dr. Joe Hayes, testified that the defendant was in fact an extreme alcoholic, subject to blackout periods.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment the defendant asserts that the trial court erred in denying her motion for a continuance.

On December 3, 1979, when the defendant’s case was called for trial on a motion to suppress, the defense counsel moved for a continuance. In his written motion, the defense counsel urged that a continuance be granted because the defendant was mentally and physically incapacitated, confined to a hospital and that trial would seriously impair her treatment and threaten her health. The court held a hearing on the motion. The hearing began with the testimony of the defendant’s family physician, Dr. W. C. Coney, who stated that he had not seen the defendant for two months but that she had had on-going emotional problems and difficulty in dealing with stress. The witness also stated that he believed that the source of her trouble was related to alcohol abuse. A social case worker, David Cartwright, testified that the defendant was involved in a six week voluntary alcoholic treatment program. This witness stated that if the defendant was required to be in court, it would interrupt her treatment.

Dr. Joe Hayes, an expert in psychiatry who had interviewed the defendant the day before, testified that in his opinion the defendant had no significant psychiatric illness other than that which was alcohol related. He testified, however, that if the defendant was required to be in court, her treatment would be interrupted and she would be provided with an opportunity to possibly return to alcohol. The witness was unable to say whether trial as scheduled would seriously endanger her health but felt that she might be somewhat better prepared for trial in six months or a year. Yet, Dr. Hayes stated that the defendant did understand the proceedings presently against her, knew her rights and could assist counsel in her defense. The trial judge then denied the motion for a continuance but noted that he would carefully monitor the effects of trial on the defendant by preventing prolonged examination of her, providing frequent recesses and by allowing her continual supervision to aid in keeping her away from alcohol. The defendant assigns this ruling as error.

The granting or refusal of a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear abuse of discretion.

In the case of State v. Karno, 342 So.2d 219, 221 (La.1977), this court observed as follows:

“Article 712 of the Louisiana Code of Criminal Procedure provides that f a] motion for continuance, if timely filed, may be granted, in the discretion of the trial court, in any case if there is good ground therefor.’ (emphasis added) This Court has consistently recognized that the granting or refusing of a motion for continuance rests in the sound discretion of the trial judge and that his ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Sosa, 328 So.2d 889 (La.1976); State v. Carruth, 311 So.2d 866 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Williams, 262 La. 317, 263 So.2d 306 (1972). Furthermore, this Court has recognized that whether or not the trial court has exercised its discretion unreasonably depends primarily on the facts and circumstances of the particular case. State v. Winston, 327 So.2d 380 (La.1976). These general principles apply with equal force when the grounds on which the continuance is sought is the physical condition of the accused. See State v. Brown, 322 So.2d 211 (La.1976); State v. Navarre, 289 So.2d 101 (La.1974); State v. Roberts, 278 So.2d 56 (La.1973); State v. Forsyth, 229 La. 690, 86 So.2d 536 (1956).
“Other jurisdictions also recognize that the trial court has broad discretion in passing upon motions for continuance based on the physical condition of the accused, both in determining whether the defendant is in fact suffering from ill health or disability and in weighing the possible adverse consequences of his being brought to trial. See e. g. Bernstein v. Travia, 495 F.2d 1180 (2d Cir. 1974); United States v. Doran, 328 F.Supp. 1261 (S.D.N.Y.1971); Adams v. State, 47 Ala. App. 506, 257 So.2d 366 (1971), cert. denied 288 Ala. 731, 257 So.2d 368 (1972); People v. Martinez, 264 Cal.App.2d 906, 70 Cal.Rptr. 918 (1968); Compton v. State, 500 S.W.2d 131 (Tex.Cr.App.1973).
However, it is well established that if an accused is in fact suffering from a physical condition such that standing trial would seriously endanger his health, or if his illness or disability substantially impairs effective participation in his defense, he is entitled to a continuance. See e. g. United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); United States v. Doran, supra; Eastland v. State, 223 Miss. 195, 78 So.2d 127 (1955).”

The principles, to be applied in deciding a motion for a continuance, based upon a defendant’s physical condition, were also set out in Karno

In the instant case, though it was established that the defendant was an alcoholic and had been admitted into a substance abuse treatment program, the trial judge clearly indicated that measures would be taken to safeguard her health at trial and to watch her closely for the possibility of a worsening in her condition. Additionally, there was no conclusive testimony that the accused would, in fact, be better able to stand trial at a later date. Further, there was positive testimony that she could effectively exercise her constitutional rights and assist counsel. Accordingly, the trial judge’s ruling, denying the motion for a continuance, was not an abuse of discretion.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment the defendant urges that the trial court erred in denying her motion to suppress the confession made to Sheriff Jackson while she was mentally incapacitated.

Defendant filed a motion to suppress for use as evidence an inculpatory statement allegedly made by her to Catahoula Parish Sheriff Thomas Jackson. A hearing was held on defendant’s motion of December 4, 1979. At the hearing Sheriff Jackson testified that on September 16,1979, at approximately 7:30 P.M., the defendant called his residence in Sicily Island. Defendant lived in Jonesville. Without being questioned by the sheriff, defendant told him that she was sorry that her relatives were voting against him in his bid for re-election. She told the sheriff that her family was wrong, that the trouble was her fault as she ‘did it.’ She stated that she realized he was only doing his job. The sheriff stated that defendant also told him that she was worried about the victim suing her for the value of the items that were not returned.

Sheriff Jackson stated that the defendant had been previously arrested, advised of her rights and released on bail prior to this call. He testified that he told the defendant that her attorney had advised her to remain silent. She insisted, however, in talking to him. The sheriff said that no promises or enticements had been made to the defendant. He stated that the defendant was crying and sounded upset but he could not tell that she was intoxicated.

The State then called Catahoula Parish Sheriff’s Officer, Paul Blunschi, who testified that when he arrested the defendant on July 23, 1979, he advised her of her Miranda rights. Also called was Officer Kirby King who stated that he had booked the defendant and, when doing so, had again advised her of her constitutional rights.

The defendant called psychiatrist, Dr. Joe Hayes, who repeated his earlier testimony given on the motion for a continuance that the defendant was an alcoholic and also that if she had started drinking before the telephone call, she would likely have lost control.

The next witness for the defendant was her husband who stated that he recalled that she was intoxicated when the call was made. The trial court then denied the motion to suppress, finding that, even if the defendant was intoxicated, the intoxication was not so severe as to prevent the statement from being voluntary. The defendant now assigns this ruling as error. Defendant contends that the confession was not free and voluntary due to her intoxicated condition at the time the confession was made.

Before a confession can be introduced into evidence, the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451.

Where a free and voluntary nature of a confession is challenged on the ground that defendant was mentally incompetent due to intoxication at the time of the confession, such confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render her unconscious of the consequences of what she is saying. Whether intoxication exists and is of a degree sufficient to vitiate the volun-tariness of the confession are questions of fact and a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence. State v. Rankin, 357 So.2d 803 (La.1978).

In the instant case, the record reveals that the defendant was at home, on bail, when she telephoned Sheriff Jackson and made the statement. According to Sheriff Jackson’s uncontradieted testimony, he did not question her and she freely volunteered her statements. He told defendant that she should talk to her attorney and not to him. She insisted, however, on talking to the sheriff. From this evidence it is reasonable to conclude that the statement was not the product of a custodial interrogation but was spontaneous and unsolicited. Although Dr. Hayes testified that he believed the defendant was an alcoholic and her husband testified that she was drinking before the call, the trial judge’s decision, after listening to the witnesses and evaluating their credibility, that, if intoxication existed, such was insufficient to vitiate the voluntary nature of the statement, is supported by the evidence. This conclusion is supported by the fact that defendant personally placed the long distance call from her home to the home of Sheriff Jackson and was coherent in her conversation. Also, the credibility of the defendant’s husband, the only witness to testify in regard to her intoxication, was called into question when he stated that no one was with the defendant when she placed the call. This assertion directly contradicted the earlier testimony of Sheriff Jackson who said he heard the defendant repeatedly speaking to another person when she called him.

The evidence fully supports the trial court’s conclusion that defendant’s intoxication, if it did exist, was not of such a degree as to negate defendant’s comprehension and consciousness of the consequences of what she was saying.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 11

By this assignment the defendant contends that the trial court erred in imposing an excessive sentence. Defendant was sentenced on March 5, 1980, to three years at hard labor; a maximum of six years and a minimum of six months was possible for a violation of La.R.S. 14:62.2 and 14:27.

Defendant asserts that her allegedly excessive sentence is a violation of La. Const. Art. I § 20 which prohibits the imposition of excessive punishment. This court has held that imposition of a sentence, although within statutory limits, may in fact violate a defendant’s constitutional rights against excessive punishment, which rights are enforceable by this court on appellate review. State v. Spencer, 374 So.2d 1195 (La.1979). However, the trial judge has wide discretion in the imposition of sentences, given compliance with La.C.Cr.P. art. 894.1, and sentences imposed will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Molinario, 383 So.2d 345 (La.1980); State v. Spencer, supra; State v. Gist, 369 So.2d 1339 (La.1979).

The trial judge’s reasons for imposing sentence, as required by La.C.Cr.P. art. 894.1, are an essential aid to this court when reviewing a sentence for excessiveness and abuse of discretion. State v. Spencer, supra. Article 894.1 sets forth three factors which justify a sentence of incarceration and eleven factors which, although not excusing the defendant’s conduct, tend to lessen his culpability. The trial judge is required to state for the record both the considerations he had taken into account and the factual basis for the imposition of sentence.

In the instant case, after the trial judge pronounced sentence, he proceeded to state the factual basis for his decision and indicated how he had taken the sentencing guidelines of art. 894.1 into consideration. In a very thorough manner, the trial judge considered both the aggravating factors (finding the defendant in need of a custodial environment due to her problem with alcohol and a less sentence would deprecate the seriousness of the offense) and each of the mitigating factors. At almost each mitigating factor, the trial judge explained the factual considerations he had taken into account and whether the factors were applicable before imposing sentence. The trial judge gave special attention to the facts that the defendant was fifty years of age, an admitted alcoholic and had no previous record. The trial judge, in reply to defense counsel’s suggestion that the sentence was excessive, stated that the crime, involving the violation of a private home, was very serious and involved important problems of respect for public order and the rights of others. After reviewing the trial judge’s reasons for imposing sentence contained in the record, we are unable to say the sentence is excessive. Clearly, the trial judge did not abuse his discretion.

This assignment of error is without merit.

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

AFFIRMED.

WILLIAM V. REDMANN, J. Pro Tern., dissents with reasons.

WILLIAM V. REDMANN, Justice Pro Tern.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of the Louisiana Supreme Court as constituted by La.Const. Art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

       Judges Cecil C. Cutrer, Court, of Appeal, Third Circuit; William V. Redmann and Thomas J. Kliebert, Court of Appeal, Third Circuit; participated in this decision as Associate Justices Ad Hoc; joined by Associate Justices Pascal F. Calogero, Jr.; James L. Dennis; Fred A. Blanche, Jr. and Harry T. Lemmon.

      . Assignment of error Number 7 was not briefed or argued by the defendant; thus, it is considered abandoned on appeal. State v. Kenner, 384 So.2d 413 (La.1980).
      Assignments of error Numbers 3, 4, 5, 6, 8, 9 and 10 present no reversible error, nor do they involve legal issues not governed by clearly applicable legal principles. Their disposition is noted in an appendix attached to this opinion, which remains a part of the record of this case, but will not be published with this opinion.

      . These principles (with citations deleted for brevity) are as follows:
      “(1) Medical Reports and Judgments — The threshold questions are whether the accused is indeed suffering from the disability complained of and whether there is a high risk that forcing the defendant to stand trial would seriously endanger his health and/or prevent him from effectively participating in his defense. Where possible and deemed necessary, appointment of independent medical experts is suggested;
      “(2) Evidence of Defendant’s Activities During the Period of Illness — This factor involves consideration of the accused’s lifestyle and activities during the period in question.... Appropriate weight might be given to personal observations by the trial judge and to the extent of the defendant’s participation in earlier pre-trial motions, hearings, etc.
      “(3) Possible Availability of Measures to Minimize the Risk to Defendant’s Health in Subjecting Him to Trial — A continuance may not be required when certain steps can be taken to effectively protect the accused during the course of the trial, including shortening the trial day, providing for recesses as necessary, and making available emergency medical aid.... The defendant, of course, has a corresponding responsibility to guard his own health during this period.... In weighing the possibility of minimizing medical risk, the courts should take into account the length of time the trial is expected to last.... A caveat is noted, however, in that the ability to minimize the risks involved does not per se indicate that the motion for a continuance should be denied....
      “(4) Whether the Accused Will Be Better Abie to Stand Trial at a Later Date — Postponement of trial is often the appropriate, obvious and fair decision for both the defendant and the public when the disability is temporary and/or curable. In cases where the accused’s condition is deteriorating, however, a determination that the accused is presently unable to stand trial may amount to a decision that he may never be tried. While this should never be a decisive factor, see Eastland v. State, supra, the degree of ‘acceptable’ risk may vary depending upon whether the request for the continuance is merely for delay to allow for improving health or for an indefinite continuance based on the existence of a condition likely to become progressively worse....
      “(5) The Degree of Injury to the Public Interest Deemed to Result from Delay or Total Preclusion of a Trial — It is an undeniable fact that some criminal cases are more ‘important’ in relative terms than others and, therefore, some weighing of this variable may be appropriate. It should never, however, be determinative in and of itself and should be considered with caution....
      “(6) The Effect of Defendant’s Physical Condition on the Exercise of His Constitutional Rights — The trial court should carefully consider whether the accused’s present physical condition is such that it may substantially impair his constitutional right to effective assistance of counsel, ...; his right to be present in the courtroom at every stage of his trial, ...; and his right to confront witnesses and testify on his own behalf, .... If the defendant voluntarily has informed the court he will not testify during the trial, the court should take this into consideration also....
      “(7) The Presumption of Innocence — Article 1, section 16 of the Louisiana Constitution of 1974 provides that ‘[ejvery person charged with a crime is presumed innocent until proven guilty...’ Courts must be particularly mindful of this fundamental right when weighing the risk to defendant’s health or life in bringing his case to trial.”


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Reginald SMITH.
    No. 67764.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., Robert B. Evans, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Gretna, Philip Johnson, Me-tairie, of Indigent Defender Program, for defendant-appellant.
   DIXON, Chief Justice.

Reginald Smith was convicted of first degree murder, R.S. 14:30, and sentenced to death in conformity with C.Cr.P. 905 et seq. The jury based its recommendation of the death penalty upon its finding that the defendant had knowingly created a risk of death or great bodily harm to more than one person. C.Cr.P. 905.4(d). In this appeal defendant challenges both his conviction and sentence. We affirm the conviction, but remand the matter to the trial court for the development of additional facts relative to the appropriate penalty.

This murder occurred at approximately 1:45 a. m. on September 11, 1978. The victim, Conrad Saluto, and three companions had driven into the crowded parking lot of the Courtyard Lounge in Marrero. The lounge was located near Barataría Boulevard on the service road which runs parallel to the West Bank Expressway. According to the testimony adduced at trial, one of the victim’s companions was parking his car in the parkihg lot, and the victim and his two other friends were standing near a parked car at the corner of the parking lot. As they were talking, they heard what sounded like gunshots coming from the service road area. They immediately began running away from the direction in which the shots were fired. The victim was shot once in the back, and died en route to the hospital. None of the victim’s friends saw the assailant.

There was one eyewitness to the shooting. Mark Alley, who was driving on the West Bank Expressway, was stopping for a red light at Barataría when he heard a gunshot. He looked toward the source of the sound and saw a man with a gun standing in the service road facing the lounge parking lot. A second man was running toward Barataría on the service road. The man with the gun fired two additional shots in the direction of the parking lot, and the man running stopped and looked back toward the parking lot. The pair began running down Barataría across the West Bank Expressway directly in front of Alley’s truck. At first Alley followed the pair to a food store parking lot. He abandoned his pursuit when he saw a sheriff’s unit, which he followed to the hospital.

Later, in a pretrial photographic line-up Alley identified the man with the gun as Reginald Smith, and the man running as Liston Armand.

The district attorney tried to obtain indictments against both Smith and Armand. While Smith was indicted, the grand jury returned a “no true bill” against Armand.

Argument No. 1

(Assignments of Error Nos. 8, 9 and 10)

The only witness called by the defense was Doyle Mark, who had known both the defendant and Armand for several years. Mark attempted to relate a conversation he had had with Armand on the day of the murder. The state objected to the testimony as hearsay. Defense counsel argued that, because Armand confessed to Mark that he was the assailant, the statement was admissible as a declaration against penal interest. The trial judge ruled that the hearsay testimony was not admissible because Armand was available to testify.

Defendant assigns reversible error to the trial judge’s ruling. He contends that the testimony should have been admitted as a declaration against penal interest, and further that the exclusion of Armand’s confession denied defendant of his constitutional right to a fair trial. Neither of these contentions has merit.

Declaration Against Penal Interest

Although hearsay is generally inadmissible, R.S. 15:434, one of the exceptions to this rule is the declaration against penal interest. Fed.R.Evid. 804(b)(3); C. McCormick, Evidence § 278 (2d ed. 1972); 5 J. Wigmore, Evidence § 1476 (Chadbourn rev. 1974). The exception was recognized by this court in State v. Gilmore, 332 So.2d 789 (La.1976). In that case, the defendant sought to exculpate himself by proving that a man named Sparks had admitted committing the crime for which defendant had been charged. Sparks had been killed shortly after making the confession and before defendant’s trial. This court held that, because of the declarant’s unavailability, and because there existed corroborating evidence of the statement’s trustworthiness, the statement was admissible as a declaration against penal interest.

In State v. Hudson, 361 So.2d 858 (La.1978), this court again dealt with a hearsay statement by an “unavailable” witness. The defendant in that case sought to prove that his wife had confessed to the crime for which he was charged. He claimed that she was unavailable because he did not know her whereabouts and had not seen her for seven months. However, the record contained no evidence that the defendant had been diligent in his efforts to locate his wife. He had not enlisted the aid of law enforcement officials, and he introduced no evidence of any attempt to locate her. This court held that defendant had not discharged his burden of showing that the declarant was unavailable. See Pugh and McClelland, Work of the Louisiana Appellate Courts for the 1978-1979 Term—Evidence, 40 La.L.Rev. 779, 807 (1980).

In the instant case, defense counsel did not contend that Armand was unavailable as a witness, nor could he have made such a showing. Armand had been subpoenaed by both the state and the defense. At the time defense counsel sought to introduce this declaration against penal interest, Armand was sitting in the parish jail located across the street from the courthouse. For whatever reason, defense counsel chose not to call Armand as a witness, even though he was available. Because of Armand’s availability, the trial judge properly excluded the proferred hearsay testimony.

Due Process Claim

Defendant further asserts that the trial judge’s ruling deprived him of his constitutional right to a fair trial. Reliance is placed upon Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). In that case the United States Supreme Court held that the defendant’s constitutional right to a fair trial on the sentencing phase had been abridged by the exclusion of an accomplice’s confession. However, the holding in Green was necessitated by the “unique circumstances” of that case. Green and an accomplice had raped the victim after abducting her. The victim was murdered, and both Green and his accomplice were convicted of her murder. There was no direct evidence indicating which of the two men had murdered the victim; however, the accomplice had told a close friend that he killed the victim by himself after sending Green out on an errand. This testimony was used at the accomplice’s trial to impose the death penalty. At Green’s trial, however, the testimony was excluded as inadmissible hearsay. The state argued to the jury at Green’s sentencing hearing that, in the absence of evidence showing which of the two men had killed the victim, the jurors could assume that both men had participated in the murder.

The court emphasized that the same evidence excluded at Green’s sentencing trial had formed the basis for the imposition of the death penalty at the accomplice’s trial. For this reason, the court found that Green’s constitutional right to a fair trial had been abridged. Such unique circumstances do not exist in the present case. Therefore, Green v. Georgia, supra, is not applicable.

These assignments of error lack merit.

Argument No. 2

(Supplemental Assignment of Error)

Defendant contends he was denied equal protection because no transfer hearing was held in juvenile court prior to the district court’s assumption of jurisdiction over this case. Defendant, who was sixteen years old at the time of the offense, was charged with and convicted of a capital offense. The Louisiana Constitution exempts from juvenile procedures those persons fifteen years of age or older who are charged with capital offenses. La.Const. art. V, § 19. Therefore, no transfer proceeding is necessary; jurisdiction is in the district court. The equal protection argument advanced by defendant was previously rejected by this court on stronger facts. State v. Sheppard, 371 So.2d 1135 (La.1979).

This assignment lacks merit.

Assignments of Error Neither Briefed Nor Argued

In Assignment of Error No. 1 defendant contests the denial of his motion to suppress Alley’s in-court identification of the defendant. The motion contended that the in-court identification was tainted by a pretrial photographic line-up which was unduly suggestive. Additionally, defendant alleged that the witness was shown a photograph of the defendant prior to the pretrial photographic line-up. Neither of these allegations was substantiated by evidence adduced at the hearing on the motion to suppress. Therefore, the trial judge properly denied the motion. This assignment lacks merit.

Assignments Nos. 2 and 3 complain of the trial judge’s refusal to sustain defense challenges for cause. Because defendant did not exhaust his preemptory challenges, he cannot complain of the trial judge’s ruling. C.Cr.P. 800. These assignments lack merit.

Assignment No. 4 concerns a hypothetical question posed to an expert witness in serology. The witness had examined the victim’s shirt and found the blood stains on it to be the same blood type as a sample taken from the victim’s body. The shirt also contained a hole which had never been positively identified as a bullet hole. The prosecutor was allowed to ask the serology expert whether, assuming the hole to be a bullet hole, it would be consistent to find blood surrounding it. This question, while ostensibly assuming the hole to be a bullet hole, in fact was designed to allow the witness to speculate whether the hole was a bullet hole. The question should not have been allowed, since this expert was not qualified in ballistics. Nonetheless, no harm could possibly have occurred. Regardless of whether the victim’s shirt contained a bullet hole, it was positively proved at trial that the victim’s body contained a bullet hole. This assignment lacks merit.

By Assignment No. 5 the defendant contends that the trial judge admitted hearsay testimony when he allowed an officer to testify that he was advised of the shooting incident. The testimony was not hearsay, because it was not offered to prove the truth of matter asserted. Rather, the statement was non-hearsay because it was offered to explain why, having received this information, the officer began an investigation. State v. Turner, 392 So.2d 436 (La.1980); State v. Bazile, 386 So.2d 349 (La.1980). This assignment lacks merit.

In Assignment No. 6 the defendant contests the admissibility of an envelope containing a bullet allegedly taken from the victim’s body. Defendant contends that, since one of the officers expressed doubt about the authenticity of a signature on the chain of custody, the bullet should not have been admitted. The law does not require that evidence as to custody eliminate all possibility that the evidence has been altered. Rather, the evidence is admissible if the custodial evidence establishes that it is probable that the object is the one connected with the case. State v. Mims, 330 So.2d 905 (La.1976). This assignment lacks merit.

Assignment No. 7 concerns the trial judge’s ruling that photographs of the scene of the murder taken two weeks before trial were not admissible because they did not accurately depict the scene as it existed at the time of the killing. Inasmuch as new construction had occurred in the area since the time of the murder, the trial judge properly sustained the state’s objection to the admissibility of the photographs. This assignment lacks merit.

By Assignment No. 11 the defendant contends that the prosecutor in closing argument made a statement of fact not in evidence. The record reveals that the fact was in evidence, and therefore the objection was properly overruled. This assignment lacks merit.

Assignment of Error No. 12 concerns the denial of defendant’s motion for new trial. In that motion defendant asserted that the verdict was contrary to the law and evidence particularly since there were no witnesses who actually saw the defendant shoot the victim. The trial judge properly denied defendant’s motion. The circumstantial evidence adduced against defendant, especially the testimony of Alley, was sufficient to exclude every reasonable hypothesis of innocence. R.S. 15:438. This assignment lacks merit.

Because none of the assignments of error has merit, the conviction is affirmed.

Sentence Review

The legislature has directed this court to “review every sentence of death to determine if it is excessive,” and to “establish such procedures as are necessary to satisfy constitutional criteria for review.” C.Cr.P. 905.9. In response to this legislative mandate, Supreme Court Rule 28 was promulgated.

Section 1 of that rule identifies the three components of this court’s excessiveness review. Before this court will affirm a sentence of death, three determinations must be made: (1) that the sentence was not “imposed under the influence of passion, prejudice, or any other arbitrary factor;” (2) that “the evidence supports the jury’s finding of a statutory aggravating circumstance;” and (3) that the sentence is proportionate “to the penalty imposed in similar cases, considering both the crime and the defendant.” Section 5 states: “The court may remand the matter for the development of facts relating to whether the sentence is excessive.”

Scrupulous appellate review is constitutionally required in death cases. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97 (1979). To discharge that responsibility, this court does not confine itself to the evidence adduced at trial. Rather, the additional information furnished pursuant to Rule 28 is considered. Before this court will affirm the imposition of the death penalty, all the information before us must be convincing that death would not be an excessive punishment.

In recommending death, the jury found one “aggravating circumstance.” The jury found that the state had proved beyond a reasonable doubt that the defendant knowingly created a risk of death or great bodily harm to more than one person. C.Cr.P. 905.4(d). The jury apparently was convinced beyond a reasonable doubt that, when the defendant fired the shots, he knew that the victim and at least one other person were in danger of great bodily harm.

The trial evidence supports such a conclusion. The victim’s companion testified that, at the time defendant began firing, the victim and two of his friends were standing close together near a parked car in the lounge parking lot. There is nothing in the trial transcript which indicates that the victim had either left the group of boys or provoked the defendant in any way. The trial transcript supports a finding that the defendant randomly shot at a group of boys whom he had never before seen.

Contained in the information furnished us is a report of a sentence investigation conducted by the Department of Corrections pursuant to a request therefor by the trial judge. That investigation report includes synopses of interviews conducted by a probation and parole agent. There are discrepancies in the facts revealed by these statements and the facts as they emerge from the trial transcript. None of those interviewed for the sentence investigation report (whose statements are described hereafter) was called as a witness at trial.

The discrepancies concern two issues of fact: (1) whether the' victim left the group of boys prior to the murder; and (2) whether any verbal encounters occurred between the victim and his companions and the defendant and his companion, Armand.

According to the sentence investigation report, Officer John Fortunato was one of the officers who arrived at the scene shortly after the murder had occurred. He was apparently informed that the victim and his companions had exchanged words with the two male Negro youths standing in the service road. According to Fortunato’s statement in the sentence investigation report, he was told that, when the victim got out of his companion’s vehicle, he began walking toward the service road in the direction of the Negro youths. It was at this time that one of the Negro youths began firing in the victim’s direction.

Lindsey Grabert, another of the victim’s friends present when the murder occurred, was interviewed by the probation and pa-' role officer. The report states that Grabert had made a statement to the police shortly after the murder to the effect that the victim was seen walking toward the two Negro youths standing in the service road. When interviewed by the probation and parole agent, Grabert denied having made this statement.

The probation and parole agent also interviewed the defendant. Although Smith denied having committed the murder, he stated that one of the white' youths had thrown a beer bottle at him and Armand, and had then left their vehicle armed with a jack handle. According to defendant’s companion Armand, none of the white youths threw anything or was armed, but one of them did curse at the defendant and Armand.

As mentioned earlier, none of these persons interviewed by the probation and parole agent was called as a witness at trial. Nonetheless, when their statements are viewed in a light most favorable to the defendant, their stories disclose a possibility that, when the defendant fired the shots, he intended to shoot only the victim, and that the victim might have been far enough away from his companions that they were not in any real danger of bodily harm.

To resolve the apparent discrepancy, one possible course for this court is to vacate the sentence and remand for resentencing. This option, while a possibility, is premature at this time, because the statements contained in the sentence investigation report are unsworn accounts given to a probation and parole agent. This court is not presently in a position to declare that these individuals should have been called as witnesses. Yet, a remand for a new sentencing hearing is unnecessary unless such a determination is made. Implementing this alternative at the present time would amount to second-guessing trial counsel, when we are not presently in a position to determine whether failure to call these individuals as witnesses was error or the result of trial strategy and professional judgment.

Therefore, Section 5 of Rule 28 should be invoked, and the case remanded to the trial judge for the development of additional facts. The trial judge who heard the case is in the best position to evaluate the sworn testimony of those individuals whose statements appear to cast doubt on the version of facts presented at trial. Should he determine that their testimony creates reasonable doubt regarding the existence of the aggravating circumstances relevant to this case, then a new sentencing hearing should be held. Should he determine that the accounts in the sentence investigation report are lacking credibility or are otherwise without merit, then this court will be in a position to concur in the jury’s finding of the aggravating circumstance.

The procedure adopted today is analogous to a hearing conducted pursuant to a defendant’s motion for a new trial on the basis of newly discovered evidence. In that situation, the trial judge determines the credibility of the witnesses called on the defendant’s behalf. Of course, in the instant situation, no motions have been filed on the defendant’s behalf, and this court has decided on its own to remand for the determination of additional facts. This procedure is necessitated by the unique severity of the penalty involved in this case and by the fact that the jury’s determination to impose death is based upon a single aggravating circumstance.

For the reasons assigned, the cause is remanded to the trial judge for a hearing and determination consistent with the views expressed herein. If the additional testimony is found to cast doubt on the existence of the aggravating circumstances of this homicide, a new sentencing hearing should be granted by the trial judge; if his finding is adverse to the defendant, the right of defendant to appeal that finding is reserved to him.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I concur in the court’s decree only because the court does not affirm the death penalty and because the court has not completed its excessiveness review but has left that determination for another day. See Rule 28, § 1, Supreme Court Rules.

Although the majority finds that the record evidence supports the finding of an aggravating circumstance, I have serious reservations whether a reasonable trier of fact could have found it proven beyond a reasonable doubt that the offender knowingly created a risk of death or great bodily harm to more than one person. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The record does not demonstrate with certainty that Smith randomly shot into a group of people, exposing several to risks of death or great bodily harm. The witnesses who testified to the relative locations of the people present during the shooting referred to chalk marks on a blackboard sketch of the murder scene. The chalk board drawing was not preserved for our review. Without it the crucial testimony regarding the proximity of other persons to the victim, the line of evaluation of fire is meaningless. We cannot properly perform our constitutional duty of capital sentence review in the absence of a complete record of all of the material evidence presented to the sentencing jury. See Rule 28, § 2, Supreme Court Rules; La.C.Cr.P. art. 845.

Nevertheless, on remand the trial judge is not limited to considering whether reasonable doubt regarding the existence of the aggravating circumstance exists. Though section 5 of Supreme Court Rule 28 gives this court the power to remand for the development of facts relating to whether the sentence is excessive, the trial court is empowered to order a new trial if error occurred during the sentencing hearing that necessitates the granting of a new trial. La.C.Cr.P. art. 905.1(B).

The majority has determined that this court may, under section 5 of Rule 28, remand for a proceeding in the nature of a hearing on a motion for a new trial. Since the procedure is the same as for trial insofar as applicable, La.C.Cr.P. art. 905.2, the defendant should be permitted to join in the proceeding and the trial judge should order a new sentencing hearing if any of the grounds for a new trial exist. La.C.Cr.P. art. 851.

In addition to the grounds suggested by the majority opinion, I believe that the trial judge should grant a new trial on the death penalty if he is of the opinion that the ends of justice would be served by granting a new sentencing hearing. See La.C.Cr.P. art. 851(5). The record in this case raises several grave questions as to whether the defendant received a fair penalty hearing. For example, the record reflects serious cause to doubt whether defendant received the competent assistance of an attorney acting as a conscientious advocate for his life. State v. Myles, 389 So.2d 12, 30 (La.1980).

In my opinion, the defendant did not receive the effective assistance of counsel to which he was entitled under the constitution. After the jury returned a guilty verdict in the guilt portion of the trial, the trial judge briefly explained to the jury the scope of the sentencing hearing. The prosecuting attorney then delivered a brief statement telling the jury that it would rely entirely on its case presented at the guilt phase of the trial and would introduce no other evidence. The defense attorney then addressed the jury with the following statement:

“With reference to aggravating circumstances, the Court will also instruct you as to mitigating circumstances. Part of the mitigating circumstances, aS' the Court will instruct you, is the age of the defendant, his prior criminal record, the absence of a prior criminal record. Those are some of the mitigating circumstances that you must consider.
“By looking at the defendant, he is a person of youth, not a hardened criminal of older age. The State has not introduced any evidence of any prior record of the defendant and also in this hearing, the defense can call a witness to testify about the defendant as far as your considering the mitigating circumstances and since the State has rested on prior evidence submitted, I’d like to call Mr. Alvin Smith to the stand.”

This was the only statement that defense counsel made to the jury during the sentencing phase of the trial. He made no closing argument whatsoever.

Smith’s father was the only witness called during the sentencing hearing. He testified that he knew of no prior convictions of his son, that his son was sixteen years old at the time of the crime, and that his son regularly attended church on Sundays.

It is difficult to imagine circumstances under which a defense attorney may render effective assistance in a death penalty proceeding by waiving closing argument. When he rests his client’s case with little or no evidence, moreover, it is imperative that defense counsel advocate his client’s cause in closing argument. State v. Myles, supra. He should argue that the aggravating circumstance relied on by the state has not been proven beyond a reasonable doubt whenever there is a genuine question of the state’s proof as in the present case. He should ask the jury to spare defendant’s life, and urge the jurors to be mindful of their awesome responsibility. He should not mechanically submit the defendant’s fate to the decision-making process with no attempt to influence it. State v. Myles, supra.

I respectfully concur.

      . “Section 1. Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
      (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.
      Section 2. Transcript, Record. Whenever the death penalty is imposed a verbatim transcript of the sentencing hearing, along with the record required on appeal, if any, shall be transmitted to the court within the time and in the form, insofar as applicable, for transmitting the record for appeal.
      Section 3. Uniform Capital Sentence Report; Sentence Investigation Report.
      (a) Whenever the death penalty is imposed, the trial judge shall expeditiously complete and file in the record a Uniform Capital Sentence Report (see Appendix ‘B’). The trial court may call upon the district attorney, defense counsel and the department of probation and parole of the Department of Corrections to provide any information needed to complete the report.
      (b) The trial judge shall cause a sentence investigation to be conducted and the report to be attached to the uniform capital sentence report. The investigation shall inquire into the defendant’s prior delinquent and criminal activity, family situation and background, education, economic and employment status, and any other relevant matters concerning the defendant. This report shall be sealed, except as provided below.
      (c) Defense counsel and the district attorney shall be furnished a copy of the completed Capital Sentence Report and of the sentence investigation report, and shall be afforded seven days to file a written opposition to their factual contents. If the opposition shows sufficient grounds, the court shall conduct a contradictory hearing to resolve any substantial factual issues raised by the reports. In all cases, the opposition, if any, shall be attached to the reports.
      (d)The preparation and lodging of the record for appeal shall not be delayed pending completion of the Uniform Capital Sentence Report. Section 4. Sentence Review Memoranda; Form; Time for Filing.
      (a) In addition to the briefs required on the appeal of the guilt-determination trial, the district attorney and the defendant shall file sentence review memoranda addressed to the propriety of the sentence. The form shall conform, insofar as applicable, to that required for briefs.
      (b) The district attorney shall file the memorandum on behalf of the state within the time provided for the defendant to file his brief on the appeal. The memorandum shall include: i. a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence actually imposed and a synopsis of the facts in the record concerning the crime and the defendant.
      ii. a synopsis of the facts in the record concerning the crime and the defendant in the instant case.
      iii. any other matter relating to the guidelines in Section 1.
      (c) Defense counsel shall file a memorandum on behalf of the defendant within the time for the state to file its brief on the appeal. The memorandum shall address itself to the state’s memorandum and any other matter relative to the guidelines in Section 1.
      Section 5. Remand for Expansion of the Record. The court may remand the matter for the development of facts relating to whether the sentence is excessive.” Supreme Court Rule 28.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ivan MOLINARIO.
    No. 80-KA-2467.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Lance Af-rick, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Ivan L. Molinario was convicted after trial by jury of simple burglary of a pharmacy in violation of La. R.S. 14:62.1 and was sentenced as a fourth offender to life imprisonment at hard labor. On appeal to this court, we affirmed his conviction but set aside his sentence as an habitual offender on the ground that a prior federal conviction was improperly used to enhance his punishment and remanded the case for a new sentencing hearing. We also set aside the trial judge’s denial of defendant’s motion for a new trial based on newly-discovered evidence and remanded the case for an evidentiary hearing on this motion, reserving to defendant the right to appeal from an adverse ruling. State v. Molinario, 383 So.2d 345 (La.1980). After a hearing on the motion for a new trial, the trial judge denied the motion and sentenced defendant to serve nine years at hard labor without benefit of parole, probation or suspension of sentence with credit given for time spent in actual custody prior to the imposition of sentence. Defendant appeals from the denial of his motion for a new trial and from the new sentence imposed on remand. He asserts five assignments of error for our consideration.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 4

Defendant contends the trial judge erred in denying his motion for a new trial based on the testimony of Lawana Sawyer, a key witness for the state at his trial (Assignment of Error No. 1) and that of several other witnesses who did not testify at his trial (Assignment of Error No. 4). He argues that this evidence was not discovered until after trial despite due diligence on his part and, if the evidence had been introduced at the trial, it would most probably have changed the verdict. Defendant also contends the trial judge erred in failing to let Ms. Sawyer explain her answer to a question asked by the court (Assignment of Error No. 2).

On February 15, 1977, the Montelepre Hospital in New Orleans was burglarized and numerous pharmaceutical drugs were stolen. Investigating officers found an address book near the scene of the illegal entry which eventually led them to the home of defendant and his girlfriend, La-wana Sawyer. On March 15, 1977, defendant was arrested on the burglary charge and he and Ms. Sawyer were also arrested on charges of possession of drugs. Jarold Mueller was arrested as a codefendant in the commission of the burglary.

At defendant’s trial, Lawana Sawyer testified that on February 15, 1977, defendant and Jarold Mueller came to the house of Rachael Nile, Mueller’s girlfriend, with two pillowcases of drugs which defendant claimed were taken from Montelepre Hospital pharmacy. The drugs were divided up among defendant, Mueller, Ms. Sawyer and Rachael Nile. She further testified that defendant noticed that his address book was missing after he got to Rachael Nile’s house.

At the hearing on the motion for a new trial, Ms. Sawyer was questioned by defense counsel as to the circumstances surrounding her and defendant’s arrest on March 15, 1977:

Q All right. Did you tell the police anything about the drugs in the house at that time?
A Well, I told them the ones they found were mine.
Q All right. Did you tell them where you had obtained these drugs?
A Not that I know of. I might have.
I’m not sure. It’s been quite a while. Q Do you recall telling the police at that time that you had bought these drugs from a friend of yours, a friend named Tommy?
A When I got to the police station, that’s what I told them, yes.
Q And, you had said that — which drugs did you claim in the house, all the drugs or just the Demerol?
A The Demerol and the coke.

At the hearing, the trial judge also referred to a letter that Ms. Sawyer wrote to the court after defendant’s trial in which she alleged that defendant had no previous knowledge of the drugs seized by the police officers from the residence where she and defendant lived. Upon further questioning by the court in connection with the statement made in the letter, her original trial testimony, and her testimony at the new trial hearing, the following colloquy occurred:

BY THE COURT:
Now, you gave testimony during the trial of the defendant and you also have given an inconsistent statement in the form of a letter. I want to know at this time with regard to the testimony you gave during trial, do you stand by that testimony, or do you recant and refute it?
BY THE WITNESS:
I think I’ll have to explain that.
BY THE COURT:
Was the testimony that you gave during the trial of the defendant, Ivan Molinario, true or false?
BY THE WITNESS:
It’s true.[]

The other witnesses called by defendant at the new trial hearing generally testified to the effect that Lawana Sawyer and Ja-rold Mueller were attempting to “frame” defendant with the burglary offense. Sherwood Millet, a convicted felon and former cell mate of defendant, testified that Ms. Sawyer asked him to spread the word that defendant had burglarized Montelepre Hospital and that she had planted defendant’s address book at the scene of the burglary. Tebbe Arbo, also a convicted felon and a friend of defendant, testified that Ms. Sawyer told her that she had information which would clear defendant when he went to trial. Ellis Guillot, a convicted felon and former cell mate of both defendant and Jarold Mueller, testified that Mueller told him that he (Mueller) and a guy named Snake Rabanack burglarized the pharmacy and that Lawana Sawyer gave them defendant’s address book to leave at the scene of the crime. He further testified that Mueller and Ms. Sawyer were attempting to “trump up” defendant because they were jealous of his relationship with Rachael Nile. Vickie Molinario, defendant’s daughter, testified that she was present on the night that her father and Ms. Sawyer were arrested and she heard Ms. Sawyer tell the arresting officers that the drugs they seized came from a burglary committed by “Tommy, Jarold, and some Snake.”

Jarold Mueller was called as a witness on behalf of the state. He had entered a guilty plea to the burglary of the Monte-lepre Hospital pharmacy and had testified at defendant’s trial. He stated that he .met Ellis Guillot at prison at which time he told him that defendant was his partner in the burglary at the Montelepre Hospital pharmacy. He specifically denied that he told him that he had committed the burglary with Snake Rabanack. He further denied that any bargain had been made in connection with his sentence for testifying at defendant’s trial.

La. Code Crim. P. art. 851(3) provides that the court, on motion of defendant, shall grant a new trial whenever:

New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; ....

Alleged newly-discovered evidence must be such that it would probably have changed the verdict of guilty. The test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result from the verdict reached. Additionally, it is well settled that the decision on a motion for a new trial rests within the sound discretion of the trial judge who is accorded considerable latitude in evaluating the reliability of evidence and its potential impact on the verdict. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Reed, 378 So.2d 923 (La.1980).

In the instant case, despite Ms. Sawyer’s testimony at the new trial hearing that she told the arresting officers that the drugs seized were not defendant’s but rather belonged to her and that she had purchased them from a friend named Tommy, she refused to recant her trial testimony to the effect that defendant and Mueller had burglarized the pharmacy and that the drugs in their possession on the night they were arrested had been taken during the burglary. The testimony of the remaining witnesses to the effect that defendant was “framed” is inconsistent and confusing. Each witness gave a different version as to who actually participated in the burglary. Moreover, the testimony of Jarold Mueller contradicted the testimony of the other witnesses and reaffirmed his trial testimony that defendant was his partner in the burglary of the Montelepre Hospital pharmacy. Under the circumstances, we are unable to say that the new evidence is so material that it would produce a different result from the verdict reached. Clearly, the trial judge did not abuse his discretion in denying defendant’s motion for a new trial.

Assignments of Error Nos. 1, 2 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a new trial on the ground that the state failed to furnish him a requested inculpatory statement made by Jarold Mueller, an accomplice to the burglary-

The record reveals that defendant was informed in the state’s answer to his motion for particulars, as well as at the preliminary examination, that defendant was identified by Jarold Mueller as his partner in the commission of the burglary. Defendant had made no showing that he requested a copy of this statement or that it was in fact withheld from him. Hence, there is no substance to his contention. The trial judge properly denied his motion for a new trial on this ground.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in imposing consecutive rather than concurrent sentences for convictions arising out of a single course of criminal conduct. He argues that the imposition of consecutive sentences under these circumstances constitutes excessive punishment in violation of La.Const. art. 1, § 20 (1974).

Defendant was originally sentenced to life imprisonment as a fourth offender on the simple burglary of a pharmacy conviction but the sentence was set aside because a prior felony conviction was improperly used to enhance his punishment. Defendant was also convicted in a separate proceeding of possession of a controlled dangerous substance (Demerol) in violation of La. R.S. 40:967 and was sentenced to life imprisonment as an habitual offender on that conviction. Subsequent to the hearing on the motion for a new trial, the trial judge held a sentencing hearing and resen-tenced defendant on both convictions. Defendant was sentenced to serve nine years at hard labor without benefit of parole, probation or suspension of sentence on the burglary conviction and five years at hard labor on the possession of Demerol conviction. The trial judge expressly directed that the sentences be served consecutively. Both sentences of imprisonment were the maximum provided under the statutes for those convictions.

La. Code Crim. P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all shall be served consecutively.

This court has recognized concurrent rather than consecutive sentences as the general rule for convictions arising out of a single course of criminal conduct at least for a defendant without a previous criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Ortego, 382 So.2d 921 (La.1980); State v. Underwood, 353 So.2d 1013 (La.1977). However, we have never held that, if convictions arise out of a single course of conduct, consecutive sentences will necessarily be found to be excessive. Other factors must be considered. State v. Ortego, supra. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

In sentencing defendant to consecutive sentences, the trial judge noted for the record:

Defendant has previously been convicted at least four times on four different occasions for crimes. Furthermore, after conviction in this case, Defendant committed another crime while in Parish Prison, indicating in my opinion the propensity to violence.
I feel the Defendant is in need of incarceration for correctional treatment if at all possible. I feel that the seriousness of the crime, considering the Defendant’s prior record, mandates the maximum sentence in both cases, and furthermore, I deviate from my usual procedure of sentencing a person to concurrent time because of Defendant’s prior record, and also because during the time of incarceration, the Defendant committed another crime of violence on a Deputy Criminal Sheriff.

In light of defendant’s prior record and his propensity for violence, we conclude that the trial judge did not abuse his discretion in imposing consecutive rather than concurrent sentences in the instant case.

Assignment of Error No. 5 is without merit.

DECREE

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

       Judges Morris A. Lottinger, Jr., Wallace A. Edwards, and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . In Assignment' of Error No. 2, defendant contends the trial judge erred in not allowing the witness to further explain her answer to the court’s question. Our review of the record reveals no attempt on behalf of the court or of the state to prevent Ms. Sawyer from further explaining her answer. In any event, since defendant failed to object to the alleged irregularity or error at the time of the occurrence, it cannot be availed of after verdict. La. Code Crim. P. art. 841. Hence, nothing is presented for our review.