author: DIXON, Chief Justice . MARCUS, Justice BLANCHE, Justice BAGERT, Justice Ad Hoc,

text:
    STATE of Louisiana v. Eddye Sue W. GREY and Charles S. Grey.
    No. 81-KA-0821.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James David Caldwell, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Samuel Thomas, Tallulah, for defendant-appellant.
   DIXON, Chief Justice .

Charles S. Grey and his wife, Eddye Sue Grey were jointly charged with possession of marijuana with intent to distribute in violation of R.S. 40:967(A)(1). After a trial by jury, defendant Charles Grey was found guilty as charged. Eddye Sue Grey was found guilty of possession of marijuana. Following a sentencing hearing, Charles Grey was sentenced to eight years at hard labor and to pay a fine of $10,000, or, in default thereof, two additional years. Ed-dye Sue Grey received a sentence of six months in the parish jail, the maximum term allowed under R.S. 40:967(D)(1).

Defendants purchased a home in Lake Providence, Louisiana. Shortly thereafter, neighbors noticed an unusual number of people coming and going at all hours. The visitors were mostly young persons who would only stay a few minutes, then leave. Due to many complaints received from neighbors, the police drove by the house'on several occasions. A surveillance of the home was begun which culminated in the controlled purchase by a confidential informant of a bag of marijuana. A search warrant was obtained on June 3, 1980 and the residence searched. Defendants were arrested based upon the discovery of marijuana.

Assignments of Error Nos. 1, 2, 8

By these assignments defendants contest the trial court’s denial of defense counsel’s objection to the admissibility of evidence of prior marijuana distribution.

In his opening statement, the prosecutor indicated that defendants had sold marijuana in the past to a confidential informant. Investigator Charles Gilbert and Trooper Donald Givens testified that they arranged for a confidential informant to make a purchase from defendants after learning that the informant had bought marijuana from them about three weeks before the arrests. Defendants objected to this evidence on the ground that they had not been charged with distribution of marijuana and thus evidence of prior distribution was irrelevant and highly prejudicial. The court ruled that evidence of prior crimes was admissible under the standard of R.S. 15:446.

The admissibility of other acts of misconduct involves substantial risk of grave prejudice to an accused. State v. Prieur, 277 So.2d 126 (La.1973). Therefore, the probative value of unrelated offenses should be weighed in light of its possible prejudicial effect and its tendency to influence the trier of fact improperly. This court has recognized that evidence of other drug sales is of great probative value in establishing intent to distribute when it is an essential element of the crime charged. See State v. Medlock, 297 So.2d 190 (La.1974). Here the highly probative value of other crimes evidence outweighs the prejudicial effect to defendants. The crime charged in this case, possession of marijuana with intent to distribute, requires that the state prove intent on the part of the accused. Since intent is an essential element of the crime, evidence of prior offenses was properly admitted.

Defendants also argue that the state failed to give notice that it intended to introduce evidence of prior crimes. In State v. Prieur, supra, at 130, we established safeguards to be followed whenever the state offers evidence of other misconduct:

“The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. . . . ”

The state asserts that its answer to a defense motion for discovery meets the Prieur test. In that answer, the prosecutor stated:

“The state may offer evidence of the purchase of marijuana, made from defendants by a confidential informant, approximately 3 weeks before defendants were arrested, which purchase took place at defendants’ home in Lake Providence before the search warrant was issued. The state may also offer evidence that the same confidential informant purchased marijuana from the defendants, at their home in Lake Providence, on at least three other occasions during the three month period of March, April, and May of 1980. These acts would be introduced into evidence to show the required intent on the part of the defendants concerning the charge against them of possession with intent to distribute.”

We agree with the district court that the state’s response to the discovery motion fulfilled the Prieur requirement. It stated clearly that the state might offer evidence of other purchases from defendants preceding their arrests which would be introduced to show intent.

These assignments lack merit.

Assignment of Error No. 4

By this assignment defendants contend that the trial court erred in refusing to permit defense counsel to inquire into the character of the police informant. This assignment lacks merit. The informant told the police officers that he had bought marijuana from defendants at their house in the past. While under the officers’ surveillance, the informant entered defendants’ home. He was searched by the officers before he left their presence and found to possess only a small amount of cash. After returning from the residence, he had a plastic bag of marijuana on his person. Based on these facts, the police officers executed an affidavit upon which the search warrant was grounded. Thus, the search warrant was not dependent upon the informant’s credibility; the police officers’ personal observations supported the warrant. Moreover, an independent magistrate could determine that the informant was credible and his information reliable on the basis of the above events. See State v. Klar, 400 So.2d 610 (La.1981).

Assignment of Error No. 6

By this assignment defendants assert that the jury verdict is erroneous because there was insufficient evidence to convict defendants. To the contrary, the record contains substantial and convincing evidence that defendants are guilty of the crimes for which they were convicted.

This assignment lacks merit.

Assignment of Error No. 7

By this assignment defendants suggest that the trial court erred in not providing them with an opportunity to review the presentence investigation report so that they could rebut allegedly misleading information contained therein. Defendants did not request a copy of the report. In the absence of a timely request and a showing that false information was included in the report, there is no error in the court’s failure to give defendants a copy of the report. State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31. There has been no showing that the report contained false or misleading information in this case.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment defendants argue that the district court did not comply with the sentencing guidelines in C.Cr.P. 894.1 and that the sentences imposed are excessive. The trial judge need not articulate every aggravating and mitigating circumstance; however, the record must reflect that he adequately considered the guidelines enumerated in C.Cr.P. 894.1. State v. Franks, 373 So.2d 1307 (La.1979), cert. den. 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818. In imposing defendants’ sen-fences, the court mentioned some of the factors in C.Cr.P. 894.1 as justification for the sentences:

“(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.”

After a review of the presentence investigation report, the court concluded that defendants did not feel they had done anything wrong. This conclusion was based on the answer to a confusing question by the judge and a statement in the report on Charles Grey that he believed his offense was minor. Perhaps the trial judge could have been more explicit in her discussion of the sentencing guidelines; however, we find that the court sufficiently contemplated the factors set out in C.Cr.P. 894.1.

Our Constitution prohibits the imposition of excessive sentences. La. Const. Art. 1, § 20 (1974). Even though within statutory limits, a sentence may violate a defendant’s rights against excessive punishment under the particular circumstances of the case. State v. Sepulvado, 367 So.2d 762 (La.1979). Defendant Charles Grey is twenty-five years old. The presen-tence report discloses no prior criminal activity — not even an arrest — as a juvenile or adult. He has been employed consistently since he was sixteen years old. At the time of his arrest, he was working as a dirt scraper operator earning a wage of $5.35 an hour. Due to his steady employment record and the fact that Charles Grey is a first offender, we find no factual basis for the district court’s finding that he would be a poor probation risk and was likely to commit another crime. As in State v. Tilley, 400 So.2d 1363 (La.1981), this crime did not involve a large scale drug operation. From the facts in the record, it appears that defendant Charles Grey was a small-time distributor. He has a wife and three stepchildren (according to the presentence report) to support; the lengthy sentence and large fine imposed by the trial judge will work an undue hardship on defendant and his dependents.

Likewise, defendant Eddye Sue Grey is a first offender with no prior criminal history. She is twenty-seven years old and the mother of two children. She has been consistently employed since childhood, and graduated from Southern University with excellent grades; she has been teaching elementary school since 1978. Due to her arrest, she was forced to resign her teaching position. The jury found Eddye Grey guilty of simple possession, a lesser offense then possession with intent to distribute. Despite the numerous mitigating circumstances and the lack of any negative factors, the district court sentenced her to the maximum permissible sentence for the crime of possession. We hold that the trial court abused her discretion in sentencing defendant Eddye Sue Grey to six months in the parish jail.

In State v. Forshee, 395 So.2d 742 (La.1981), we vacated a sentence of three years at hard labor and a fine of $7500 for possession of preludin with intent to distribute. In that ease, we looked at the defendant’s past employment record, the fact that he had no prior convictions, and the testimony of witnesses describing the defendant as a law-abiding citizen, in determining that the sentence imposed was excessive. Similarly, we must decide that the sentences imposed in this case are overly harsh and are not individualized to fit the particular defendants and the offenses.

For these reasons, defendants’ convictions are affirmed. The sentences imposed are vacated and the case is remanded to the trial court for resentencing consistent with the views expressed herein.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

BAGERT, Justice Ad Hoc, dissents and assigns reasons.

MARCUS, Justice

(concurring).

I concur in the affirmance of the convictions and agree that perhaps the sentences may be excessive under the circumstances. Accordingly, I respectfully concur.

BLANCHE, Justice

(dissenting).

I respectfully dissent. Although defendant Charles Grey was found guilty of possession with intent to distribute, the evidence indicates that the defendants were heavily engaged in the business of distribution of marijuana, and principally to teenagers. Evidence of activity at defendants’ residence and the items seized are persuasive evidence of this fact. The seriousness of this type of criminal activity merits serious punishment and, for that reason, I do not consider either of the sentences excessive.

BAGERT, Justice Ad Hoc,

dissenting.

Defendants, husband and wife, were jointly charged with knowingly and intentionally possessing marijuana with the intent to distribute, in violation of La.R.S. 40:967(A)(1). After trial by jury, Charles S. Grey was found guilty as charged. Eddye Sue Grey was found guilty of possession of a controlled dangerous substance. Charles S. Grey was sentenced to serve eight years at hard labor and to pay a fine of $10,-000.00, two years at hard labor in default of payment of the fine. Mrs. Grey was sentenced to serve six months in the parish jail. FACTS:

The defendants purchased a house in Lake Providence, Louisiana. Shortly after-wards, neighbors began to notice unusual activity at the house. Testimony was later received to the effect that persons would arrive at the house at all hours of the day or night, stay a few minutes, and then depart. Police instituted a surveillance of the residence and collected data which they thought tended to confirm their suspicions. An arrangement was entered into with a confidential informant, which resulted in the informant purchasing a bag of marijuana from the occupants of the residence. After this, a warrant for the search of the house was executed. The subsequent search resulted in the seizure of several bags of marijuana.

ASSIGNMENTS 1, 2, & 3.

By these assignments, defendants contend that the trial court erred in admitting evidence of another crime, distribution of marijuana. The jurisprudence recognizes that admission of evidence as to other crimes can be quite prejudicial to the defense. Therefore, unless some compelling justification exists for the admission of such evidence, and unless proper notice is provided to the defendant, the evidence is inad-missable. State v. Prieur, 277 So.2d 126 (La.1973).

It is the State’s contention that adequate notice was provided defendants by the search warrant and by the answers to discovery and that the evidence was highly relevant to prove the essential element of intent. We agree, and find that the court committed no error in admitting the evidence. However, if evidence of other crimes is admitted, the court must give certain instructions to the jury:

Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment, or one responsive thereto. State v. Prieur, supra, at 128.

An inspection of the charge of the court reveals no such instruction. It is the opinion of this Court that in the context of this case the omission of these instructions was seriously prejudicial to the defendants. This error was significant enough to merit reversal.

ASSIGNMENT OF ERROR 5.

By the fifth assignment, the defendants contend that the trial court erred in failing to comply with La.C.Cr.P. Article 894.1 in the imposition of sentence and erred further in imposing an excessive sentence. Although defendants did not object to the excessiveness of the sentence at the time of sentencing, this Court is free to consider this assignment as no contemporaneous objection is necessary for such a claim. State v. Gist, 369 So.2d 1339, (La.1979). Furthermore, under the authority of State v. Sepulvado, 367 So.2d 762, (La.1979), this Court may review — and reverse — sentences on the grounds of excessiveness, even though the sentence may be within statutory limits. A sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonnano, 384 So.2d 355, 357, (La.1980).

Article 894.1 provides certain criteria which may justify a sentence of imprisonment. The criteria used by Judge Ragland in deciding to impose prison sentences were:

(1) That probation or suspension of sentence involved an undue risk that the defendants might commit another offense during the probation.
(2) That the defendants were in need of correctional treatment that could be most effectively provided by commitment to an institution.
(3) That a lesser sentence would deprecate the seriousness of the crime involved.

In the sentencing hearing, the trial court attempted to set forth its reasons for these findings. The court stated that there was an undue risk that the defendants would commit another crime. The only apparent reason for this determination is the court’s question to the defendants, inquiring if they felt they had done anything wrong. As the defendants asserted they were innocent, they naturally answered that they did not feel they had done anything wrong. The court obviously believed that this meant the defendants thought it was not a serious crime to distribute marijuana. That does not appear to be the belief of the defendants.

The trial court gave no reasons for concluding that the defendants were in need of correctional treatment or a custodial environment. The only rationale given for the determination that a lesser sentence would deprecate the seriousness of the crime was a vague statement that the distribution of marijuana had a “bad influence on any community.”

The court then considered certain mitigating circumstances, listed in La.C.Cr.P., Art. 894.1(B), which must be accorded weight in the determination of suspension of sentence. The court found that the defendants did not contemplate that their criminal conduct would cause or threaten serious harm and that they had no prior history of criminal activity. Other factors listed in the article but not found to be in the favor of the defendants were:

(1) That the defendants’ criminal conduct caused or threatened serious harm;
(2) That the defendants did not act under strong provocation;
(3) That no substantial ground existed which tended to excuse the conduct of defendants;
(4) That the defendant has not led a law abiding life;
(5) That the criminal consequences were the result of circumstances likely to recur;
(6) That the characters of the defendants indicated that they are likely to commit another crime;
(7) That the defendants are not likely to respond to probationary treatment;
(8) That imprisonment would not entail an excessive hardship on the defendants or dependents.

Inspection of the record reveals no way in which the conduct of the defendants caused or threatened serious harm. Prior to the circumstances., that led to their arrest, the defendants had not been involved in any criminal activity. The trial court gave no reasons for concluding that the circumstances that led to the criminal conduct are likely to recur. Judge Ragland concluded that probationary treatment would be ineffective; however, no reason was given for this conclusion other than the opinion of the court that the defendants were likely to commit other crimes while on probation. As noted previously, no stated factual basis for this conclusion appears in the record. And contrary to the court’s conclusion on the last mitigating circumstance, imprisonment of the defendants would work severe hardship on the defendants’ two children who resided with them.

The trial court is to be congratulated on its detailed attempt to comply with the provisions of Article 894.1. However, it is also obvious to this Court that the sentence actually imposed on both defendants is grossly out of proportion to the crime and its circumstances. It makes no measurable contribution to acceptable goals of punishment, and, hence, is nothing more than purposeless and needless imposition of pain and suffering; thusly it would constitute excessive punishment. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Furthermore, this court has strictly scrutinized lengthy prison terms for first offenders involved in the possession of drugs. State v. Tilly, 400 So.2d 1363 (La.1981).

One purpose of sentencing is rehabilitation. There is no indication in the present case that the defendant would not profit by a suspended sentence or probation. Both defendants were steadily employed prior to their arrests. Eddye Sue Grey, despite personal adversity, graduated from Southern University with high grades and was a first grade teacher in Lake Providence before her arrest. Charles Grey was steadily employed as a heavy machine operator prior to his arrest.

During the course of the sentencing hearing, Judge Ragland referred to State v. Segers, 355 So.2d 238 (La.1978), another case she had decided. Specifically, she remarked that the sentence given Mr. Grey was “. . . a lesser sentence than I gave Mr. Segers.” However, inspection of the specifics of the case reveals that the sentence given to Segers was not much more severe than that given Mr. Grey. Segers was sentenced to eight years at hard labor and assessed a $15,000.00 fine. Therefore, the only difference was the amount of the fine —$5,000.00. However, the Segers case involved the importation of three thousand pounds of marijuana, flown into Louisiana in the defendant’s private airplane. When this Court reviewed the case, it held that the sentence was not excessive in view of the large amount of marijuana involved. The amount of the drug involved in the instant case is infinitesimally smaller. The disparity between the two cases is great.

I therefore concur in part and respectfully dissent in part.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit and Bernard J. Bagert, Sr. of the Orleans Parish Criminal District Court, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Blanche.

      .Four officers executed the warrant. A partial lid of marijuana was taken from Charles Grey’s back pocket. No marijuana was discovered on Eddye Grey’s person. The return on the search warrant lists these items that were seized:
      “1. One brown box containing two (2) Marijuana cigarettes (Sherman).
      2. One set of weight scales and case.
      3. One cloth hand bag containing six (6) brown envelopes of Marijuana.
      4. One paper bag containing Marijuana.
      5. One plastic baggie containing Marijuana.
      6. Three plastic baggies containing Marijuana.
      7. One brown box containing aluminum foil containing hashish.
      8. One brown bag containing Marijuana and stems.
      9. One shopping bag containing Marijuana.
      10. One plastic baggie containing Marijuana.
      11. One green plastic baggie containing Marijuana.
      12. One plastic baggie containing Marijuana.
      13. Two brown vials each containing suspected cocaine.
      14. One Folgers coffee can containing seven (7) Amphetamine capsules and suspected Marijuana seeds.
      15. One brown wooden box containing Marijuana, one white bottle containing fifteen (15) preludin dose units and one tylenol bottle containing two (2) white amphetamine dose units.
      16. One glass jar containing Marijuana.
      17. One shot gun S.N. P294624 (Stock and barrell (sic) cut off).
      18. Three pistols SN numbers V068452, 418670 and Q117562.

      . R.S. 15:446 states:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend fo establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

      . Defendants did not raise this objection at the time of sentencing. However, no formal objection at the time of sentencing is necessary to preserve the right of review on this ground. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).


source: Caselaw Access Project

author: BAGERT, Justice Ad Hoc . CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Mary HEARD.
    No. 81-KA-0896.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet and Bonnie P. Jackson, Asst. Public Defenders, Georgia Wile-man, for defendant-appellant.
   BAGERT, Justice Ad Hoc .

Mary Heard was charged by bill of information with the June 21, 1979, armed robbery of Gail Benton, a teller at the Baton Rouge Bank. Originally charged with Mary Heard were Robert Brown, who was found guilty as charged at a separate trial, and Jeffrey Hamilton, who was allowed to plead guilty to a charge of accessory after the fact. A jury found the defendant guilty of attempted armed robbery, and she was sentenced to serve five years at hard labor without benefit of parole, probation, or suspension of sentence. On appeal she urges two assignments of error for the reversal of her conviction and sentence.

The theory of the state’s case was that the defendant, Robert Brown, and Jeffrey Hamilton had planned to rob the bank. Mary Heard allegedly scouted the bank beforehand and then waited at the wheel of the getaway car while Robert Brown and Jeffery Hamilton entered to confront the teller. The defense claimed that Mary Heard was an unwitting participant who knew only that the two men were entering to transact sohie business.

ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial court erred in denying a challenge for cause as to prospective juror, Ms. Sheridan. The defense used all its peremptory challenges, and is therefore entitled to complain of any alleged error. State v. Sylvester, 400 So.2d 640 (La.1981); State v. Qualls, 353 So.2d 978 (La.1977); La.C.Cr.P. art. 800.

Article 797(2) of the Code of Criminal Procedure provides that either party may challenge for cause a prospective juror who cannot be impartial. The judge conducted the initial voir dire questioning in this cáse. While addressing Mrs. Sheridan, the following exchange transpired:

Judge: ... do you have any relatives or close friends who are engaged in law enforcement, police, sheriff’s office, FBI agents, anything like that?
* * * * * *
Sheridan: I have a son who is a sheriff’s deputy.
Judge: You feel ’there’s anything there that would make you more prone to believe a policeman?
Sheridan: It might.
Judge: Might. You don’t know anything about this case, do you — at the moment, I mean?
Sheridan: No sir.
Judge: Mrs. (sic) Sheridan is not a witness in this case, is he. Deputy Sheridan, he’s no witness in this case. Do you honestly feel that perhaps because you have a son that is a deputy you might credit the policeman or peace officer’s testimony more?
Sheridan: Well, it shouldn’t.
Judge: Pardon me?
Sheridan: It shouldn’t, you know.
Judge: I realize you understand that you don’t do that. You’ve got a grown son and I’m sure you judge and weigh his credibility on some of the things he told you as he grew up, is that true?
Sheridan: Right.
Judge: You would pray that you did it objectively in whatever punishment you meted out. So, here we re trying an allegation of armed robbery. Simply because you have a son that is a deputy, I’m just wondering if you couldn’t be fair and impartial if you were convinced whichever way — would you vote your conscience?
Sheridan: Yes sir.

(Tr. at 26-27.) This questioning provided the impetus for defense counsel to ask further questions of Mrs. Sheridan. In response to his inquiries, Mrs. Sheridan noted that while references to police officers might bring her son to mind, she had no question but that she could be impartial. A defense challenge for cause was therefore denied.

It is well settled that relationship to a law enforcement officer is not of itself grounds for a challenge for cause. State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Qualls, supra. The question involved in this ease is whether.Mrs. Sheridan could assess the credibility of each witness independent of his occupation. The trial judge is afforded great discretion in making this decision, and his decision will not be overturned absent an abuse of that discretion. A challenge for cause is often unwarranted where a prospective juror at first expresses an opinion prejudicial to the defendant, but upon further inquiry demonstrates the ability and willingness to decide the case impartially by listening to the evidence and following the trial court’s instructions. State v. Bates, 397 So.2d 1331 (La.1981); cf. State v. Claiborne, 397 So.2d 486 (La.1981).

This case therefore presents an issue no different from that in Qualls, supra, and Sonnier, supra. In Qualls this Court approved of the denial of a challenge for cause when a prospective juror acknowledged that her husband was a policeman, but when informed of the law convinced the judge that she could believe testimony contradictory to that of the police. In Sonnier we found no error in denying a cause challenge to a prospective juror whose brother was the sheriff for the neighboring parish.

Mrs. Sheridan appears to have answered the questions posed to her as honestly as possible. When informed that the measure of credibility was not the uniform the witness wore, she drew on her own experience and convinced the trial court that she could serve as an impartial juror. There was thus no abuse of discretion in denying the challenge for cause.

ASSIGNMENT OF ERROR NO. 4

The defendant also assigns as error the introduction into evidence of a prior inconsistent statement after the witness admitted having made the statement.

After his own conviction, but prior to his sentencing, Robert Brown wrote a letter to the district attorney. He stated, “I want to help myself if I can and it’s not too late”, lamenting his own conviction and speaking of Mary Heard’s upcoming trial:

But what of Mary Heard/Hamilton? (insanity) My, my, my, is she really going to pull it off? Mystified. I am. Why. Because on June 21, 1979 a travels check was cashed by Mary a few minutes before the Robbery accured. No doubt this open a question, was Mary a “master mind” with this crime? She knew the crime was going to accur. Before it happened and after; Also it was her car, and she drove it: and told Jeffery to go inside! Now. She’s insane, or is she playing another game?

Probably in reliance on this letter, the district attorney called Robert Brown as his witness. Once on the stand, however, Brown denied that the defendant had ever known of the crime. Brown claimed that he and Jeffrey Hamilton had planned and executed the robbery, telling defendant only to stay in the car and to keep the motor running. The prosecutor showed Brown the letter quoted above, and Brown admitted writing it. He denied its truth, however, claiming that his trial testimony was the truth. The prosecutor pled surprise, and was allowed to impeach. Without objection, he read the quoted portion of the letter, asking the witness if those were his words. Once again, Brown admitted writting the letter. The prosecutor moved to introduce the letter, and defense counsel objected on the grounds that the letter “does not serve as impeachment of the witness. It muddies the water somewhat.” The objection was overruled.

On appeal, the defendant argues two distinct grounds for the objection: (1) that the proper predicate for the use of a prior inconsistent statement was not laid; and (2) that the prior inconsistent statement cannot be admitted into evidence once the witness has admitted making it.

It is axiomatic that each party may impeach both the testimony and credibility of every witness called on behalf of the other side. La.R.S. 15:493. This same statute sets forth the foundation required for the use of a prior inconsistent statement:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

This Court has often applied the requirement for a proper foundation quite strictly. See, e.g., State v. Lafleur, 398 So.2d 1074 (La.1981); State v. Gatlin, 396 So.2d 1294 (La.1981). The rationale for such a strict foundation is to obviate surprise, to let the witness either deny or explain the inconsistency. The witness can do neither unless he is told exactly which statement he is dealing with.

In the case at bar, the record shows that from the very first Robert Brown understood the prosecutor was talking about the letter from which we have quoted. Both counsel established that the letter was written to an assistant district attorney, and Brown himself hinted that the letter was written about the time of sentencing. We therefore find no reversible error in the prosecutor’s failure to set the foundation in a precise manner.

However, the defendant argues further that the trial judge erred in allowing the prosecutor to introduce Brown’s letter into evidence. While overruling defense counsel’s objection, the trial court cautioned the jury that the letter was impeachment evidence, and was to be considered not as evidence of the defendant’s guilt, but only in assessing Robert Brown’s credibility. This instruction was perfectly correct, but in large measure explains why the letter should not have been allowed into evidence. In State v. Mosely, 360 So.2d 844 (La.1979), at the defendant’s trial for simple burglary a witness testified that he had spent most of the evening with the defendant, and that they had never walked towards the burglarized building. On cross-examination, the prosecutor had the witness distinctly admit that he had told police on an earlier occasion that the defendant and he had strolled towards the burglarized building. After the witness identified his previous written statement, the state was allowed, over objection to read it into the record. This Court found the maneuver “highly prejudicial” and reversed:

Proof that the prior inconsistent statement was made can be used for impeachment purposes only, not to show the truth of its contents. If a witness distinctly admits having made a prior inconsistent statement, his credibility has been effectively impeached. At this point, the permitted reason for the use of the prior inconsistent statement (impeachment) has been accomplished. Thereafter, proof that the statement was made would not be for impeachment purposes, but rather to show the truth of its contents, which is not permissible. Accordingly, if a witness distinctly admits having made a pri- or inconsistent statement, evidence that the statement was made is inadmissible.

360 So.2d at 846. Accord, State v. Molinario, 383 So.2d 345 (La.1980).

Though a prior inconsistent statement may be incorrectly admitted into evidence, the error is not necessarily reversible. This Court has recognized the value of a prior inconsistent statement, and for that reason had not precluded its use on cross-examination when the witness admitted on direct examination that he had made an “entirely different” statement prior to trial. In State v. Redwine, 337 So.2d 1041 (La.1976), the witness at trial completely exculpated the defendant; in his direct testimony he admitted having made an “entirely different” statement to the police, and defense counsel then sought to bar cross-examination as to the nature or extent of that contradiction. This Court held that the trial judge had acted properly in allowing the prosecutor to exploit blow by blow the many inconsistencies. Cf. State v. Gomez, 365 So.2d 1313, 1316 (La.1978); State v. Prestridge, 399 So.2d 564, 574-75 (La.1981).

The prosecutor in this case thoroughly exploited the value of the prior inconsistent statement by reading it without objection from the defense. The defense objected only when the prosecutor sought to have the letter admitted into evidence. At that time the judge instructed the jury on the limited value of impeachment evidence. That instruction was repeated in the judge’s jury charge at the conclusion' of the trial; in closing argument the state also noted, when referring to Brown’s letter, the limited value of impeachment evidence.

While Brown’s testimony may have been important to the defense, the state had not relied upon him alone. Jeffrey Hamilton testified that the trio had planned to rob the bank together, and that Robert Brown had asked the defendant to “case” the bank first. According to Hamilton, when defendant reported that the bank was “okay”, Brown asked her to back the car into a parking space and to keep the motor running. After the robbery, defendant drove them to Hamilton’s grandmother’s house, where the three split the money.

In view of the strong evidence presented by the state and the fact that the damage was done to the defendant’s case before defense counsel voiced an objection, we are of the opinion that the improper admission of the letter did not contribute in any significant way to the defendant’s conviction. No reversible error was committed.

Finding no reversible error in either of the two assignments briefed, the defendant’s sentence and conviction are hereby affirmed.

CALOGERO, Justice,

dissenting.

I disagree with the majority’s finding nonmeritorious defendant’s assignment of error number 4. In State v. Mosley, 360 So.2d 844 (La.1978), this Court reversed that defendant’s conviction under circumstances similar to those in the instant case. In Mosley, the witness admitted having made an earlier statement contradictory to his trial testimony and the prosecutor began to read the statement aloud. Defense counsel objected to the reading of the statement and his objection was overruled. This Court reversed, saying:

Proof that the prior inconsistent statement was made can be used for impeachment purposes only, not to show the truth of its content. If a witness distinctly admits having made a prior inconsistent statement, his credibility has been effectively impeached. At this point, the permitted reason for the use of the prior inconsistent statement (impeachment) has been accomplished. Thereafter, proof that the statement was made would not be for impeachment purposes, but rather to show the truth of its content, which is not permissible. Accordingly, if a witness distinctly admits having made a pri- or inconsistent statement, evidence that the statement was made is inadmissible. 360 So.2d at 846.

In the instant case the prosecutor not only read portions of the letter to the jury; he also introduced the entire letter into evidence. This was a serious infraction of a substantial right of the accused and can hardly be termed nonprejudicial. This is particularly so in light of the fact that defendant’s complicity in the crime was seriously contested. Defendant asserted that she had no knowledge an armed robbery would occur and drove the car away from the bank without knowing that her companions had committed the robbery. When Brown testified that defendant had nothing to do with the robbery, the state was, at most, entitled to attack his credibility by having him admit as he did that he had given a prior contradictory statement. Improperly having before the jury the substance of that statement in which Brown said that the robbery scheme originated with defendant, by a reading of the letter and then by its introduction into evidence surely had a seriously prejudicial effect. The trial judge’s instructions regarding the limited use of the letter for impeachment purposes only were insufficient to cure the prejudice which resulted from the erroneous admission of the letter.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal and Judge Bernard J. Bagert, Sr. of the Criminal District Court for the Parish of Orleans participated in this decision as Associate Justices Ad Hoc, joined in by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and Fred A. Blanche.

      . In assessing the importance of the error, it should be noted that the state at no time urged the jury to use the letter as substantive evidence. In brief, the defendant correctly notes that the letter informed the jury that the defendant at one time had entered a plea of “not guilty by reason of insanity.” While it is improper to inform the jury of such a plea when it is withdrawn by the time of trial, a finding of prejudice would require assuming that jurors were under a mistaken impression that such a plea in fact admits factual guilt but denies the presence of mens rea. Under Louisiana law, the proper plea is a joint one of “not guilty and not guilty by reason of insanity”, in which neither factual guilt nor the existence of mens rea is admitted. In any event, the jury was informed of the prior insanity plea when the prosecutor read the letter, and no objection was lodged at that time. The prosecutor never urged the jury to draw inferences from the insanity plea.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Terry TOLEDANO.
    No. 81-KA-1182.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    See also La., 396 So.2d 1242.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard J. Petre, Jr., John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was indicted for first degree murder of Moses Green. Trial began September 17, 1979, and ended with a jury verdict of manslaughter. A sentence of twenty-one years at hard labor was imposed. This court originally affirmed defendant’s conviction and sentence. State v. Toledano, 391 So.2d 817 (La.1980). On rehearing the case was remanded to the district court. 391 So.2d 819 (La.1980).

The trial judge had denied defense counsel’s trial motion for production of the “rap sheet” of Reginald Yarls, a juvenile who was the state’s key witness. Other witnesses had connected Yarls with the pistol used in the killing of Green. Defendant and Yarls were initially charged with first degree murder, but Yarls subsequently pleaded guilty to manslaughter and agreed to be a witness for the state. Yarls testified he met defendant on the street, and they smoked some “weed.” They went to Green’s apartment after Toledano indicated Green was a homosexual who paid for sexual favors. Two shots were heard by Yarls after he went into the bathroom at Green’s apartment. He returned to the living room where he found Green lying dead on the sofa and Toledano with a gun in his hand. This court decided on rehearing that the trial judge had incorrectly denied the motion to produce without first examining the record’s content in order to determine whether the “. . . witness’ juvenile adjudication has such discrediting value that there is reasonable likelihood that it would have affected the verdict ...” State v. Toledano, supra, at 820. This court ordered the Clerk of the Orleans Parish Juvenile Court to deliver documents regarding Yarls in a sealed envelope to the Criminal District Court for the trial judge’s in-camera inspection. State v. Toledano, 396 So.2d 1242 (La.1981). A special hearing was held April 7, 1981, and the trial judge concluded Tole-dano’s conviction for manslaughter should stand.

The lower court’s reasons for judgment state:

“This Court in keeping with the criteria ennunciated (sic) in the Supreme Court’s opinion of December 15, 1980, reviewed the juvenile records of the State’s chief witness, Reginald Yawls, (sic) and determined that nothing contained in the witness’s (sic) record was of such discrediting value as to have affected the verdict in the case against Terry Toledano.”

Defendant contends the trial court did not adequately follow this court’s guidelines because the key phrase, “a reasonable likelihood,” State v. Toledano, supra, at 820, was omitted from its consideration. This argument is without merit. The ruling of the trial judge was made in open court on April 7. He filed a written judgment, in almost the same words used in court, a week later. Defendant’s counsel was present in court, objected to the ruling, but expressed no objection and made no argument about the application of an improper standard, a matter which might have been corrected had the judge been alerted.

Two standards of materiality that give rise to the prosecutor’s duty to disclose exculpatory material to the defense were delineated in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). This court discussed Agurs in State v. Sylvester, 388 So.2d 1155 (La.1980), and concluded the applicable standard of materiality depends on all of the facts and circumstances in each ease. State v. Sylvester, supra, at 1159. The prosecutor must volunteer exculpatory evidence to the defense when there is no specific request whenever the omission would create a reasonable doubt that did not otherwise exist. United States v. Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2399, 49 L.Ed.2d at 351. When there is a specific request the prosecutor has a duty to disclose exculpatory material, or submit the problem to the trial judge, when “... a substantial basis for claiming materiality exists ...” United States v. Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2399, 49 L.Ed.2d at 351. Defendant correctly points out the lower standard of materiality is applicable to his case. However, we conclude the trial judge properly ruled that Toledano’s conviction for manslaughter should stand.

The jury knew Yarls had pleaded guilty to manslaughter in exchange for his testimony against Toledano. The jury was aware Yarls smoked marijuana and had gone to Green’s apartment to receive money for sexual favors. Yarls testified he had a probation officer. The reasons for Yarls’ probation would not have caused much more damage to his credibility. Yarls’ testimony was corroborated by Daniel Davis. The defendant had told Davis about having killed someone. In view of all of the facts and circumstances of this case, nothing contained in Yarls’ record (a September, 1978 plea of guilty to simple robbery, for which he was given a suspended sentence and probation) is of such discrediting value that there is a reasonable likelihood it would have affected the verdict.

For these reasons, the judgment of the trial court is affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Although I agree with the disposition of the present case, I hasten to point out that:

there is a significant practical difference between the pre-trial decision of the prosecutor and the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.

United States v. Agurs, 421 U.S. 97 at 108, 96 S.Ct. 2392 at 2399, 49 L.Ed.2d 342 at 352 (1976).

      . A hearing was set by the trial court for February 13, 1981. The state provided defense counsel with a copy of Yarls’ “rap sheet” that did not include dispositions of numerous juvenile arrests. The trial court continued the hearing until defendant could obtain a certified copy of Yarls’ record. Defendant filed a writ of subpoena duces tecum to have the documents brought to the hearing. The Clerk of Court for Orleans Juvenile Court refused to deliver the juvenile adjudication record of Reginald Yarls pursuant to Juvenile Court Judge Joan Armstrong’s instructions. Defendant objected to this refusal and filed writs with this court. An order was issued, and the Clerk of the Juvenile Court was directed to deliver Yarls’ documents in a sealed envelope to the Criminal District Court for in-camera inspection.


author: MARCUS, Justice.

text:
    STATE of Louisiana, v. Steven DEWEY.
    No. 81-KA-1325.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John Sinquefield, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Myron A. Walker, Jr., of Seale, Smith & Phelps, Baton Rouge, for defendant-appellant.
   MARCUS, Justice.

Steven Dewey was charged in the same information with two counts of armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve nine years at hard labor without benefit of parole, probation or suspension of sentence on each count. The court expressly directed that the sentences be served concurrently with each other as well as with his sentence on a federal conviction for another armed robbery. On appeal, defendant relies on nine assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash grounded on a claim that he was denied his right to a speedy trial as guaranteed by the federal and state constitutions.

On December 7, 1978, defendant confessed to four armed robberies, two of which occurred in Baton Rouge (subjects of the instant prosecution), one in Lafayette (subject of his federal conviction), and one in Alexandria. The confessions were made in the presence of two FBI agents who had arrested defendant on the same day (December 7, 1978) in connection with the Lafayette robbery. On December 27, 1978, the Baton Rouge City Police procured a warrant for defendant’s arrest in connection with the instant prosecution for the armed robberies in Baton Rouge. At this time, defendant was being held in the Cal-casieu Parish jail located in Lake Charles. On January 25, 1979, defendant pled guilty in federal court to the armed robbery in Lafayette. He was sentenced on February 23, 1979, and removed to federal custody. He was transferred to several federal institutions before reaching his final destination at Englewood, Colorado, in August 1979.

On November 28, 1979, defendant received a certified copy of a detainer letter notifying federal authorities of the Louisiana warrant concerning the instant charges. On February 12, 1980, defendant wrote a letter demanding a speedy trial to the officer whose name appeared on the detainer letter. Another letter requesting a speedy trial was sent to the attorney general of this state on March 19,1980. On July 16,1980, defendant was placed in state custody and transferred to the East Baton Rouge Parish prison. Three weeks later, defendant wrote a letter to a federal district judge complaining that he was being held without having been arrested or charged. He was formally arrested on August 4,1980, and charged by bill of information on August 20, 1980. Trial was set for September 23,1980, but, on defendant’s motion, the case was continued and reassigned for trial on November 11, 1980. On the state’s motion, over defendant’s objection, the case was again continued and reassigned for trial on December 8, 1980, at which time trial commenced. Trial was completed on December 9, 1980.

The right to a speedy trial is guaranteed by the sixth amendment to the federal constitution and by article one, section sixteen of our state constitution. The right attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Perkins, 374 So.2d 1234 (La.1979). Four factors must be considered in determining whether a defendant has been deprived of his right to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The initial inquiry is into the length of delay; if the delay is presumptively prejudicial, there will be an inquiry into the other factors. The length of delay that will provoke such an inquiry is dependent upon the peculiar circumstances of the case.

In the instant ease, defendant was placed in state custody on July 16, 1980, formally arrested on August 4, 1980, and charged by bill of information on August 20, 1980. Prior to this time, he had been arrested and incarcerated only in connection with federal charges lodged against him. Arguably, the earliest date at which defendant’s right to a speedy trial attached was July 16,1980, when he was transferred from federal custody to the East Baton Rouge Parish prison. The length of delay between actual restraint and trial — five months — was not extraordinary especially considering defendant requested a continuance that resulted in a delay of one and a half months. Even assuming that defendant became an accused earlier than July 16, 1980, the length of delay was two years at most.

Closely related to the length of delay is the reason for the delay. Here, defendant was arrested by federal authorities and detained in Lake Charles until February 1979. At that time, defendant was transferred to various facilities around the country until August 1979 when he was permanently incarcerated in Colorado. Defendant was notified that the state desired to prosecute him for the instant charges within three months after his arrival in Colorado. Eight months after receiving this notice, defendant was transferred to the East Baton Rouge Parish prison. Once in custody of the state, he was formally arrested and charged. A trial date was fixed within two months of his arrival in this state. At defendant’s request, however, trial was continued for another month and a half. Over defendant’s objection, trial was continued for another month. Much of the delay can be attributed to defendant’s incarceration at various federal facilities outside of Louisiana. Moreover, there has been no showing that the state was in bad faith in delaying defendant’s prosecution. Under the circumstances, the reasons for the delay are justifiable.

Another factor to be considered is whether defendant asserted his constitutional right to a speedy trial. In the instant case, although defendant wrote several letters to various public officials, he never filed a motion in court asserting his right to a speedy trial. The first letter asserting his right was written thirteen months after the state warrant for his arrest was issued and three months after the detainer letter was sent. By that time, a major portion of the delay had occurred.

Finally, we must consider whether defendant has been prejudiced by the delay. Of course, defendant was prejudiced to some extent by living under a cloud of suspicion and anxiety. However, the prejudice involved was minimal. Defendant was not subjected to oppressive pre-trial incarceration. With the exception of the last five months, defendant was being held by the federal authorities in connection with his federal conviction. Most importantly, defendant’s ability to adequately prepare his defense was not impaired. There is no claim that any of defendant’s witnesses died or otherwise became unavailable due to the delay. Accordingly, defendant has not shown the presence of any prejudice.

In sum, we do not consider that defendant was deprived of his constitutional right to a speedy trial. Hence, the trial judge did not err in denying defendant’s motion to quash.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in denying his motion to suppress all confessions and/or inculpatory statements made by him to law enforcement officers and in admitting them in evidence. He argues that they were not freely and voluntarily made after having been advised of his Miranda rights.

At the suppression hearing, William C. Asbury and B. R. Pack, special agents with the FBI, testified that on the morning of December 7, 1978, they met in Lake Charles. They had in their possession a bank surveillance photograph taken during a robbery which occurred at a bank in Lafayette. The photograph depicted an individual who appeared to be Steven Dewey. They proceeded to Dewey’s father’s place of employment and showed him the bank photograph. He agreed to accompany the agents to his residence where they found defendant asleep. He was awakened, allowed to dress, and taken to the living room where he was read his Miranda rights. Defendant stated that he understood his rights and orally waived them but refused to sign the waiver portion of the printed form. Defendant’s father encouraged him to talk to the agents which he did and confessed to the four robberies: the Lafayette robbery, the two Baton Rouge robberies, and a robbery in Alexandria. Defendant was arrested and taken to the FBI office where he signed copies of his confessions. Defendant and his father testified that defendant asked for an attorney at the beginning of the questioning but was ignored. They also stated that defendant was never advised of his rights. Defendant admitted that his father urged him to cooperate with the agents and that he was not mistreated in any way. At the conclusion of the hearing, the trial judge ruled that defendant’s statements were voluntarily made after having been advised of his Miranda rights.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused but may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Castillo, 389 So.2d 1307 (La.1980) cert. denied - U.S. -, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981); State v. Williams, 386 So.2d 1342 (La.1980).

After a review of the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confessions were freely and voluntarily made after defendant had been advised of his Miranda rights. Defendant’s contentions that he requested an attorney and was not advised of his rights were in direct conflict with the testimony of agents Asbury and Pack. Accordingly, we are unable to say that the trial judge erred in denying defendant’s motion to suppress and admitting the statements in evidence.

Assignments of Error Nos. 2 and 3 are without merit.

DECREE

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

       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 Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Assignments of Error Nos. 4 through 9 were neither briefed nor argued; therefore, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author:
MARVIN, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Keith C. AMEDEE.
    No. 81-KA-1357.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon Cannizzaro, Kendall Green, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARVIN, Justice Ad Hoc.

The legal issue in this appeal of a 2d degree murder conviction is whether the State’s evidence of the results of a drug scan made on the victim was admissible to rebut defendant’s testimony that the killing accidentally occurred when he struggled with the homicide victim who was acting like he was “on something” (drugs or whatever) and threatened defendant with a gun. CCrP Art. 719. We affirm. State v. Pool, 361 So.2d 1202 (La.1978).

Defendant testified that the victim, whom he had known for about eight years, was acting like he was “on something” [such as drugs], and earlier on the fatal evening had robbed defendant at gunpoint of $10 and a gold chain on the street in the neighborhood where both lived. Defendant sought the assistance of the victim’s brother and they unsuccessfully sought to recover the chain and money from victim at victim’s apartment. The victim denied taking anything frpm defendant.

Defendant explained at the trial that the last time he returned to the victim’s apartment, the victim again accosted him with a gun. Defendant said that he struggled to take the gun from the victim, that the gun accidentally went off several times and apparently wounded the victim, and that defendant then ran home. Defendant was quickly apprehended by police who heard the gunshots and saw defendant’s flight from the scene. Defendant testified that he told the police, when arrested, that he “ain’t had nothing to do with it.”

The victim’s girlfriend testified that her lengthy telephone conversation with the victim was thrice interrupted by the victim’s responding to a knock on his door and his then conversing with another person. The first conversations that she overheard she described as “calm” and that the other person was asking about a “chain”. The second conversation, about 10 minutes later, mentioned a chain and “$10”. The victim’s girlfriend said that in the first two conversations she did not overhear any arguing or shouting. In the third conversation, about 10 minutes after the second, the victim’s girlfriend overheard the knock on the door, the gunshots, and then the victim say, “Brother, why are you going to kill me over some [thing] like this.” She said she did not hear any other voice in this third interruption but that she did hear, after the victim’s question, a sound “like somebody falling”.

The victim was shot four times in the abdomen and once in the left arm. All of the wounds showed powder burns but there were no powder burns on the victim’s hands. The wounds were not instantly fatal and the victim made dying declarations naming defendant as the person who shot him to a policeman and then to his brother before the victim was removed to a hospital where he was pronounced dead from the gunshot wounds.

Defendant’s version of the fatal incident — that he struggled with the victim when the victim, “on something”, put a gun in defendant’s face — is quoted in footnote one. On rebuttal of defendant’s assertion that the victim was “on something”, the State offered the testimony of a toxicologist who made a drug scan or analysis of residual extractions from the contents of the victim’s bowels approximately 48 hours after the killing. The toxicologist testified that this drug scan did not reveal the presence of “barbituates, T’s and blues, codeine, cocaine, possible p.c.p., morphine and any of the morphine derivatives.” The toxicologist explained that “marijuana is not one of the drugs that show up in [the] particular analysis [that she conducted].”

CCrP 719 mandates that upon motion by the defendant, the court shall order the district attorney to authorize the defendant to inspect and copy any results or reports of scientific tests material to the case that are in the control or knowledge of the district attorney and that are intended for use at trial. As in Pool, supra, the rebuttal testimony here was not intended for use at trial within the contemplation of the statute. No mention was made of the drug scan in the State’s opening statement and the testimony about the drug scan was used as rebuttal evidence and then only to weigh against defendant’s testimony that the victim was “on something”. The drug scan testimony did not wholly contradict defendant’s version that the victim was “on something” because the toxicologist testified that the drug scan tested for specific drugs and, impliedly, not for. some others, and expressly not marijuana..

The circumstances under which the toxicological test was admitted are more analogous to Pool, supra, than to State v. Boothe, 310 So.2d 826 (La.1975), and other cases cited by defendant. Defendant admitted having the handgun in his hand when the fatal shots were fired but denied having the specific intent to kill or to cause great bodily harm. La. Cr.C. Art. 30.1. His intent could have been inferred by the jury from the circumstances, including defendant’s admissions, his contrary story to the police, the number of wounds, and the testimony of the victim’s girlfriend about what she overheard on the telephone. Intent is inferred from circumstances of the crime. LRS 15:445. State v. O’Blanc, 346 So.2d 686 (La.1977).

The State’s answers to defendant’s discovery implied, but did not affirmatively state, that no toxicological examinations of the victim’s body were made. Under these particular circumstances, reversal is not warranted even should we agree with defendant’s contention that testimony relating to the drug scan test should not have been admitted under CCrP 719. Pool, supra.

The conviction is AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

This is a discovery issue. At the time of the request for discovery the District Attorney did not intend to use the test results at trial. Not until the defendant testified that the victim acted as if he were “on something” did the test results become relevant, thereby justifying the District Attorney’s use of this evidence on rebuttal.

Under these circumstances the non-exculpatory test results constituted unanticipated rebuttal evidence, and the trial judge exercised appropriate discretion in refusing to exclude this evidence. C.Cr.P. Art. 729.5.

       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 Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . The gun, described simply as a handgun, was not found. Defendant said:
      “I was thinking ... ‘he must be on something, I know he don’t know what he doing’ so I started to go back by [the brother] Henry’s house and tell him what Juan did. I turned off and I went back by [the victim] Juan’s house and I knocked on the door and he come back to the door and he said, ‘What you want.’ He said, T am on the phone, I don’t want to hear all of that.’ So 1 just said, ‘Why don’t you just give me my chain back and we can forget about it.’ He say, T ain’t giving you nothing back.’ He said, ‘Hold on, I will give it back to you.’ He went in the house and came back out with a gun. He put it in my face and I grabbed it and it went off, seemed like nobody was hit and then it went off a couple more times. Then he fell down and I ran. I ran to my house. I was scared and I stayed inside and the police came and got me. I told them 1 ain’t had nothing to do with it.
      “[I had no] ... intentions of killing Juan White.
      “[I did not] ... own a gun .. .
      “[1 did not] ... take a gun over there to kill him . ..”

      . In Pool, the State introduced rebuttal testimony that defendant’s fingerprint was found in the stolen car even though the State, in responding to defendant’s discovery, failed to state that fingerprint comparisons had been made. The court said:
      “While it is likely that [this] . . . was error, under the particular circumstances . .. reversal is not warranted. La.Cr.C.P. Art. 921.” 361 So.2d at p. 1204
      There the defendant was arrested in the stolen car.

      . The State answered defendant’s inquiry about scientific tests as follows:
      “Clothing seized was allegedly submitted ... for tests; however, it is unknown at this time whether any tests have been performed.
      “If tests are actually done, results will be made known to defendant.”

      . C.Cr.P. Art. 719:
      “Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial. (Emphasis supplied.)


text:
    STATE of Louisiana v. Larry DONAHUE.
    No. 81-KA-1358.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Madeleine Slaughter, John Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Michael S. Gallagher, John M. Stan-dridge, John P. Nelson, Supervising Attys., New Orleans, Dennis Krystek, Gary W. Bizal, Student Practitioners, Loyola Law School Clinic, for defendant-appellant.
   JASPER E. JONES, Associate Justice Ad Hoc.

On May 15, 1980, Larry Donahue was convicted by a jury of armed robbery in violation of LSA-R.S. 14.-64. The State then filed a bill of information charging that Donahue had a prior felony conviction for simple robbery in violation of LSA-R.S. 14:65, and that he should be sentenced under the Habitual Offender Law, R.S. 15:529.1. On June 20,1980, after a sentencing hearing where the defendant admitted his prior conviction of simple robbery, the district judge imposed a sentence of 198 years, the maximum állowable in this case under LSA-R.S. 15:529.1(A)(1). On appeal Donahue relies upon ten assignments of error for reversal of his conviction and sentence.

FACTS

On July 28,1979, a group of University of Mississippi students came to New Orleans for a fraternity rush party. After arriving in the city the group went to a hotel and then to the French Quarter for the evening’s festivities. Throughout the course of the night and into the early morning hours of the next day, July 29, the group visited various French Quarter nightspots. In the early morning hours of July 29 the students met the appellant.

Appellant told the students that he knew a place where they could meet some girls. Two of the students, David Eagleson, Jr. and Stephen Turner, went with Donahue to meet the girls. On the way the trio stopped in another bar where Donahue bought the two students beers and used the telephone. They then continued on their trip to meet the girls with Donahue leading them into the Iberville Housing Projects.

After they reached the projects, Donahue left the two young men on the steps of one building while he went into another. When Donahue emerged he and the students continued down the street. As the three walked along Donahue suddenly grabbed Turner and held a knife to his throat while another man jumped from some nearby bushes and held a pistol on Eagleson.

The robbers then moved Eagleson and Turner into a corner and forced them to the ground. The robbers took the students’ wallets and Donahue became upset when he discovered that Eagleson’s wallet contained no money. The victims’ shoes were then removed and when no money was found secreted there Donahue instructed his pistol wielding colleague to shoot the victims. Fortunately, Donahue’s accomplice did not comply with his instructions. The robbers then fled and the victims went to the police.

In the afternoon of the day of the early morning robbery Donahue tried to purchase a gold chain with Eagleson’s mother’s Visa Card which had been taken in the robbery.

The merchant noticed that the card was in a woman’s name and that the address and signature Donahue had given did not match the address and signature of the owner of the card. The merchant concluded that the card was not Donahue’s and refused to give him the merchandise or to return the card.

Donahue left the store and the merchant summoned a nearby policeman and pointed out Donahue to him. The officer then went after Donahue who was apprehended a few blocks from the store and charged with forgery.

Later the police connected the credit card Donahue had tried to use with the hold up of Eagleson and Turner. After Eagleson picked Donahue in a photographic line-up and identified him as one of the robbers, the police arrested appellant and charged him with armed robbery.

ASSIGNMENT NO. 1

In this assignment of error appellant contends that it was error to allow the state to use evidence of his apprehension through the discovery of his attempt to use the stolen credit card at his trial for armed robbery. Appellant argues that this was an impermissible use of other crimes evidence.

This contention is without merit. Evidence of the use of a stolen credit card is independently admissible to prove that the user of the card was a principal in the robbery in which the credit card was taken. State v. Scott, 320 So.2d 538 (La.1975).

ASSIGNMENT NO. 2

Appellant argues that the trial court erred in permitting the use of hearsay testimony. The testimony complained of was Eagleson’s testimony that he had heard a conversation between his friend Turner and Donahue about going to meet some girls.

Hearsay is testimony as to an out of court statement offered to show the truth of the matter asserted. McCormick, Evidence, 2d Ed., 584. The testimony objected to was not offered to prove the truth of the matter asserted. It was offered to show why Ea-gleson and Turner went off with Donahue. Therefore, the evidence was not hearsay and was properly admitted.

ASSIGNMENT NO. 3

Appellant assigns as error the failure of the trial judge to instruct the jury on the limited purposes for which other crimes evidence may be used as required by State v. Prieur, 277 So.2d 126 (La.1973).

The requirements of Prieur apply when other crimes evidence is admitted under the exceptions outlined in LSA-R.S. 15:445 and 15:446. Prieur, supra. The other crimes evidence in this case which related to appellant’s attempted use of the stolen credit card does not depend on those exceptions for its admissibility. It is independently admissible, Scott, supra, and, therefore, the instructions required by Pri-eur were not required to be given in this case.

ASSIGNMENT NO. 4

Appellant contends that the trial judge erred in failing to give a requested jury instruction to the effect that a reasonable doubt could be based on the lack of evidence, and by giving a confusing instruction.

The substance of the requested charge was included in the general charge given by the trial judge, therefore, it was proper for the trial judge to refuse to give the requested charge. LSA-C.Cr.P. art. 807. Examination of the charge given reveals that while it is not as clear as it might have been, it was not so confusing that the jury would not understand it. The jury was specifically informed that doubts could be based on the evidence . and/or the lack of evidence that you heard on the trial of this case.”

The instruction which this court held to have been erroneous in the case of State v. Gibbs, 355 So.2d 1299 (La.1978), because it did not advise the jury that it was entitled to acquit “because it was not convinced beyond a reasonable doubt because of lack of evidence as to an essential element of the crime” did not contain the reference to lack of evidence contained in the charge here given. For this reason the Gibbs case relied upon by appellant is inapplicable and this assignment of error is without merit.

ASSIGNMENT NO. 6

Appellant argues that it was error for the trial judge to use an unconstitutionally obtained prior conviction to enhance his sentence. This argument is based on appellant’s contention that his prior conviction for simple robbery is unconstitutional because he was not informed of his right to counsel on appeal before he entered his guilty plea. Appellant relies on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) for the proposition that a defendant must be informed of his right to counsel on appeal before he can enter a valid guilty plea.

Boykin requires that guilty pleas be intelligently and understandingly made to be valid. In order to effectuate that end Boykin requires that a defendant be informed of three rights he is waiving by pleading guilty before he can enter a valid guilty plea. The right to counsel on appeal is not among those rights. It is not necessary to inform a defendant to his right to counsel on appeal in order for him to intelligently and understandingly enter a guilty plea.

This assignment of error is without merit. ASSIGNMENT NO. 7

In this assignment appellant attacks his sentence as invalid by reason of its being imposed without compliance with LSA-C. Cr.P.art. 894.1.

Examination of the record of the sentencing hearing shows that the trial judge considered appellant’s record and his instructions to his accomplice to shoot the victims, and found an extreme danger that appellant would commit another crime, probably murder, if he had the opportunity. The trial judge felt extended imprisonment was required to deny appellant an opportunity to engage in criminal conduct.

Though the trial judge did pot enumerate each factor under Art. 894.1 in the sentencing hearing, he did explain his reasons for imposing the sentence. He stated: “for the record the considerations taken into account and the factual basis therefor in imposing sentence.” That is sufficient to comply with Art. 894.1. State v. Douglas, 389 So.2d 1263 (La.1980).

This assignment of error is without merit. ASSIGNMENT NO. 8

Appellant assigns as error the trial court’s imposition of an excessive sentence. In his brief appellant also characterized the sentence as cruel and unusual.

A sentence is excessive and violates La.Const.Art. 1, § 20 if it is grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Gulden, 399 So.2d 194 (La.1981). Cruel and unusual punishments are those that are barbarous, extraordinary or grossly disproportionate'to the offense but imprisonment for long periods of time is not necessarily cruel and unusual punishment. State v. Dillard, 320 So.2d 116 (La.1975).

The 198 year sentence imposed in this case is severe. However, there is no doubt that the crime Donahue committed called for severe punishment. Donahue and an accomplice committed armed robbery of two people and when the robbery did not prove to be as fruitful as Donahue had hoped, he instructed his associate to shoot the victims. The trial judge felt that if appellant returned to the street he would commit even more serious crimes in the future.

In the case of State v. Jolla, 337 So.2d 197 (La.1976), this court rejected the contention that a possible maximum sentence of 198 years was cruel and excessive punishment under the 1974 constitution.

In the case of State v. Curtis, 363 So.2d 1375 (La.1978), this court rejected the contention of a second offender convicted of armed robbery that his sentence of 198 years was cruel, unusual and excessive under Art. 1, § 20 of the Louisiana Constitution of 1974.

The sentence in this case is commensurate with rather than grossly out of proportion to the severity of Donahue’s offense. The extended imprisonment is not needless and purposeless, but done to negate the appellant’s opportunity to commit such crimes in the future. The sentence is not barbarous and as is shown by Curtis not extraordinary. This sentence is not cruel, excessive or unusual. Curtis; State v. Lee, 364 So.2d 1024 (La.1978); State v. Williams, 326 So.2d 815 (La.1976).

This assignment of error is without merit.

ASSIGNMENTS NO. 5 and 9

Assignment five assigns as error the trial judge’s failure to grant appellant’s motion for new trial based on five grounds. Assignment nine assigns as error the trial court’s failure to grant a new trial on grounds that the verdict is contrary to law and evidence which is the first ground asserted in the overruled motion that is the subject of assignment five.

The fifth ground asserted in the overruled motion that is the subject of assignment five is that “[T]he ends of justice would be best served if a new trial was granted.” Id. R. 62. Appellant does not address this ground in his brief, and we will not consider it here.

The second, third and fourth grounds argued in the overruled motion formed the basis for assignments six, one and two respectively, and do not justify a new trial for the reasons set forth in our discussion of each of those assignments of error.

We now turn to the claim asserted in both assignments five and nine, that the verdict was contrary to law and evidence. Appellant has not attempted to show us how the verdict was contrary to law or evidence in his brief. We assume that these complaints are directed to the sufficiency of the evidence.

A claim of insufficient evidence is judged by whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Moody, 393 So.2d 1212 (La.1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(2) The court’s denial of defendant’s pretrial motion in limine, which would have allowed the defendant to test the constitutionality of his previous plea of guilt and thus prohibit the State from impeaching his credibility with a defective conviction showed prejudicial error.

The only serious issue in this case was the identity of Donahue as one of the robbers. To prove that it was Donahue who committed the crime the state presented evidence of Eagleson’s identification of Donahue in the photographic lineup, an in court identification by Eagleson of Donahue as one of the robbers, and evidence that only a few hours after the crime Donahue was in possession of and using a credit card taken in the robbery. Appellant attempted to rebut that evidence with alibi testimony that he had been playing cards at the time of the robbery.

It is apparent that the jury, as it was entitled to do, did not believe the alibi witnesses and instead believed the prosecution witnesses who provided ample evidence for a reasonable trier of fact to find each element of the crime, and that Donahue was one of the perpetrators beyond a reasonable doubt.

These assignments of error are without merit.

ASSIGNMENT NO. 10

This assignment assigns as error all errors patent on the face of the record. There being none, this assignment is without merit.

DECREE

The conviction and sentence appealed from are AFFIRMED.

       The Honorables Pike Hall, Jr., Charles A. Marvin, Jr. and Jasper E. Jones, Judges of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices John A. Dixon, Jr., C.J., Walter F. Marcus, Jr., Fred A. Blanche, Jr. and Harry T. Lemmon.

      . R.S. 14:64 — A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and not for more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

      . R.S. 15:529.1(A)(1) — A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction;

      . C.Cr.P.art. 807—-The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
      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.

      . “You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the accused, but must confine yourself strictly to a dispassionate consideration of the testimony given upon the trial. You must not resort to extraneous facts and circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts or circumstances creating doubts, but must restrict yourselves to the evidence, and/or the lack of evidence that you heard on the trial of this case. You are the exclusive judges of the facts.” (R., Tr., p. 127.)

      . Boykin requires that a defendant be advised that by pleading guilty he waives: (1) the privilege against self-incrimination; (2) the right to trial by jury; (3) the right to confront his accusers.

      . C.Cr.P.art. 894.1 — A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1)The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . “. .It wasn’t this defendant’s fault that nobody got hurt. As you’ll recall the testimony in this case was that he urged the other perpetrator to shoot one of those victims. And, the other perpetrator didn’t want to shoot him, so he didn’t shoot him. If it would’ve been up to this man, there’d been a murder case. It’s a typical criminal path that this man has followed. He starts off by getting into small skirmishes. He graduates to simple robbery. From there, he graduates to armed robbery, and he would’ve graduated to murder if it had been left up to him.
      This Court believes that this defendant would kill because of his conduct in this case. This Court knows that he would kill, and that’s the next step, if he ever gets out.
      The Court feels that if he ever gets out, he will commit another crime, and it will be murder.
      It’s my job, as a judge to see to it that he doesn’t come out until he’s completely rehabilitated until he’s too old to pick up a gun and hold it in his hand again.”

      . “MOTION FOR NEW TRIAL — Pursuant to Art. 851, C.Cr.P., Larry Donahue, defendant herein, through undersigned counsel, moves this court to grant him a new trial, and alleges the following grounds:
      (1) The verdict was contrary to the law and evidence.
      (3) The court’s denial of defendant’s pretrial oral motion to prohibit the State from introducing evidence of other crimes which did not show system, intent, knowledge, or identity and which were not part of the res gestae of the crimes charged.
      (4) That the trial court’s overruling defense objection to the hearsay testimony of the complaining witness, David Eagleson, on the grounds that it was admissible because it was uttered in the presence of the defendant shows prejudicial error and constituted an improper comment upon the evidence, for the defendant’s presence at the point Mr. Eagleson was testifying to was the sole issue- of the trial.
      (5) The ends of justice would be best served if a new trial was granted.
      WHEREFORE, defendant prays that the Motion for a New Trial be granted.”