author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Larry BOYER.
    No. 81-KA-0127.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., David Loeb, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert T. Garrity, Jr., of Indigent Defender Board, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Larry Boyer, was found guilty of second degree murder and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On this appeal, nine assignments of error were urged; however, two other assignments were made but were neither briefed nor argued and were, therefore, considered abandoned. There were no witnesses to the killing and the evidence against the defendant was entirely circumstantial. The following is a factual resume of the evidence bearing on the commission of the crime.

On September 13,1979 between dusk and 9:00 p. m., Mrs. Rena Sandoz was killed by a single gunshot wound to her head. Ballistic tests revealed that the fatal shot was fired from a .38 caliber Smith & Wesson revolver which belonged to the victim’s son, Harold Sandoz. The revolver was found underneath the victim’s body and no blood nor fingerprints, or even partial prints, were found thereon. Mrs. Sandoz’ brain was literally blown away and scattered across her bedroom walls and ceiling. Pieces of her skull were never recovered, and the pathologist was unable to reconstruct the wound. He noted that the bullet apparently entered her head from the right side in the rear of the temple and travelled in a more or less horizontal path across the brain. He also noted bruises and abrasions on her arms and chest consistent with the fall, or firm manipulation or handling of the victim.

Mrs. Rena Sandoz was an invalid and suffered severely from emphysema. She had recently been released from the hospital, was taking medication, and it was necessary for her to breathe at times with the aid of an oxygen generating machine in her bedroom.

Harold Sandoz, who had recently moved into his mother’s home with his wife, Donna, and baby, had arranged the defendant’s presence in his mother’s home.

The evidence concerning defendant’s presence in the Sandoz home at the time of the killing is found in the testimony of Harold Sandoz and the statements taken from the defendant. Harold Sandoz met the defendant in a junkyard shortly before the killing. His invitation to the victim’s home was evidently one of mutual convenience, as the defendant was without money and a place to stay, and was also drug oriented to the extent that the defendant was to obtain drugs for Harold Sandoz, who would put up the money. In fact, on the afternoon of the killing, according to defendant’s statement, he and Harold had each mainlined 5 preludin tablets. According to Sandoz, the defendant was also to replace a water pump in Sandoz’ car and by early evening of September 13, 1979, defendant had obtained a replacement for the water pump but had not installed it because he purportedly needed some socket wrenches and a jack which Harold did not have.

During Harold and Donna Sandoz’ absence to obtain the necessary tools for the defendant to install a water pump, the following evidentiary facts are pertinent. The defendant was told by Harold Sandoz to stay outside the house as his mother was afraid to stay in the house alone with the defendant. From outside the house, the defendant heard and answered two telephone calls, one from Harold Sandoz and another from a friend of Harold’s. The defendant, although allegedly present outside the house when Mrs. Sandoz was killed, did not hear a shot. It was estimated that the Sandoz’ were absent from the house for approximately PA hours and that Mrs. Rena Sandoz was alive when they left and dead upon their return. It was drizzling rain when the defendant met the Sandoz couple in the rear of the house.

In his statement, defendant claimed he only went inside twice to answer the telephone. He further claimed that he was on the rear porch and went inside the garage some 35 feet away from the house when it began to rain. He denied hearing a gunshot, although he admitted to hearing the telephone ringing from the garage.

The police recovered $154 in cash from the victim’s bed, which was found between the mattresses. A paper bag was placed around the hands of the corpse to enable subsequent neutron activation testing. The defendant submitted to a neutron activation test while in jail later that evening. The test will determine whether or not a person has fired a weapon. The expert witness, who conducted the test, stated that the samples taken from the hands of the defendant showed results consistent with a person who had recently fired a hand weapon. The expert further testified that all handguns do not discharge the elements tested, but the murder weapon in this case discharged such elements, namely, antimony and barium.

The police also conducted an audible test to determine whether a person in the garage at the victim’s house could hear a telephone ring and a gunshot inside the victim’s house. The results of these tests indicate that a gunshot could be distinctly heard, while the ring of a telephone is virtually inaudible.

Assignments of Error Numbers 2 and 3

The defendant contends that the court erred in accepting FBI Special Agent John Riley as an expert witness in the field of elemental analysis and in allowing him to testify beyond his expertise. Agent Riley conducted the neutron activation test and interpreted the results.

Agent Riley received a B.S. degree in Chemistry from Wisconsin University. He then obtained a M.S. in Forensic Science at George Washington University. He has attended several schools in neutron activation analysis and has had a year of extensive training in an elemental analysis unit of the FBI laboratory. He is a qualified examiner in an elemental analysis unit and has worked in the FBI’s unit for thirteen years. He has also been accepted as an expert in this field in forty-three state courts and federal court.

A trial judge is vested with wide discretion in determining the competence of an expert witness. State v. Drew, 360 So.2d 500 (La.1978); State v. Titus, 358 So.2d 912 (La.1977). It is apparent Agent Riley is well qualified by both education and experience as an expert on the neutron activation test and the trial judge did not err in accepting him as such.

Defense counsel also contends that the trial court allowed Agent Riley to testify in a field beyond his expertise. Riley testified concerning the effect washing his hands would have had on the antimony and barium deposits on Boyer’s hands. Mr. Riley’s expertise should not be so narrowly construed. His education and experience qualified him to testify concerning factors like this that he would have to consider to accurately conduct and interpret the neutron activation test.

Assignment of Error Number 1

The defendant contends the trial court erred in denying a motion to suppress the results of the neutron activation test asserting that he should have been given an opportunity for independent testing and that the results were inadmissible hearsay.

This is the first time this Court has considered the admissibility of a neutron activation test, the purpose of which is to determine whether or not a person has recently fired a hand weapon. It is conducted by running a Q-tip on the web between the thumb and first finger of the subject to be tested. The cotton swab on the Q-tip can then be tested to determine if any barium or antimony was present on the subject’s hands. These elements are discharged when a hand gun is fired and a neutron activation test performed on these swabs will detect both the presence and the amount of these two elements. Essentially, the test consists of placing the swab in the core of a nuclear reactor and bombarding it with neutrons. This causes the elements on the swab to become radioactive and to emit gamma rays, which are analyzed by the test.

Because the process causes the elements to become radioactive, Agent Riley testified that the Nuclear Regulatory Commission requires that the swabs be dissolved and disposed of in approved containers.

Although the defendant does not assert that the test is unreliable, we note that it is the subject of widespread acceptance. In 15 Am.Jur., Proof of Facts (1973 Supp., p. 22), 78 cases are listed in which the results of neutron activation analyses were admitted in evidence. The test was discussed by the Minnesota Supreme Court in State v. Spencer, 216 N.W.2d 131 (Minn.1974), where the Court stated, “We believe that neutron activation analysis is a useful law-enforcement technique and that the increasing use of technology in criminal investigation should not be inhibited but encouraged where consistent with the rights of the accused.” The Missouri Court of Appeal gave its view in State v. Johnson, 539 S.W.2d 493 (Mo.1976). The court there stated the following:

“The general rule is that results of scientific tests and expert opinions based thereon are admissible only if the scientific principle involved is generally considered reliable and accurate by the concerned scientific community. Gunshot residue testing by neutron activation analysis meets this requirement. Neutron activation analysis has proven to be a highly reliable technique for detecting gunshot residue and for determining whether a person has recently handled or discharged a firearm. Reliability of evidence obtained by this means was settled in Missouri in State v. Ross, 523 S.W.2d 841, 845[5] (Mo.App.1975) which held that ‘firearm residue testing by neutron activation analysis has crossed the line between the experimental and demonstrable stages and the evidential force of the principle must be recognized.’ ”

Cases from other jurisdictions are not binding on this Court; however, the excerpts above do indicate the general admissibility of this test in other states.

At trial, Agent Riley gave a detailed explanation of the procedure he used in conducting the neutron activation test and the defendant then had the opportunity to challenge the accuracy and reliability of it during his cross-examination. The defense counsel questioned him extensively concerning the conditions under which the test was conducted and the safeguards taken to assure its validity. Also, though a test is no more reliable than the person who conducts it, it is apparent that Agent Riley was extremely competent in this area.

The defendant first argues that the test results should have been suppressed because the defense was not given an opportunity to examine the swabs and conduct independent testing. However, the applicable law is C.Cr.P. art.. 719, which states:

“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.” Added by Acts 1977, No. 515, § 1.

The prosecution provided defense counsel with a copy of the test results in compliance with C.Cr.P. art. 719 and this gave the defendant a chance to review the results and formulate any questions he had concerning them.

The defendant also argues that the test results were inadmissible hearsay. This argument is not persuasive. The test results do not assert anything by themselves. The results are meaningless without interpretation by an expert. It was Special Agent Riley who made the assertions based on his interpretation of the test results and he was available at trial to answer any questions defense counsel had regarding the validity of the test or its interpretation.

This assignment lacks merit.

Assignment of Error Number 4

The defendant argues that the trial court erred in failing to strike the testimony of Agent Riley because his opinion as to the likelihood that the defendant fired the weapon was not phrased as a “reasonable scientific certainty.” Agent Riley concluded that the amounts of antimony and barium found on the defendant’s right hand “are typical of the amounts of antimony and barium found in the hand of a person who has discharged a firearm or had his hand near a discharging firearm.”

R.S. 15:464 provides:

“On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

There is not any restriction in R.S. 15:464 limiting the opinions of experts to those that are of a “reasonable scientific certainty;” therefore, Agent Riley’s testimony was admissible. Further, Louisiana does not recognize a motion to strike testimony.

Assignment of Error Number 5

Defendant argues that he was misled when he was informed that the swabs had been consumed after testing as he later found that the stick portion had not been destroyed and one of the sticks still had “minuscule wisps” of cotton. He asserts that this constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and contends that he should have been granted a mistrial on the basis that the state deliberately withheld exculpatory evidence. However, we agree with the trial court’s finding that this was not an attempt to mislead on the part of the prosecution but, rather, Agent Riley meant there was not enough of the cotton left to test when he said the Q-tip had been consumed in testing. The stick itself would be of no value.

This assignment is without merit.

Assignment of Error Number 6

Counsel for the defense also argues that the trial court erred when it allowed photographs of the victim and the scene of the killing in evidence. The state introduced twenty-six 8" X 10" color photographs and the defense contends that they were not probative and were so gruesome that they inflamed the passions of the jury against Boyer.

The test for admissibility of allegedly gruesome photographs is whether their probative value outweighs any prejudicial effect. A trial court’s ruling in this regard will only be disturbed if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Landry, 388 So.2d 699 (La.1980); State v. Unger, 362 So.2d 1095 (La.1978); State v. Bryant, 351 So.2d 1188 (La.1977). Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Valentine, 364 So.2d 595 (La.1978).

Of the twenty-six photographs admitted, several seemed to have only a minimal probative value; however, these also appeared to have no prejudicial effect. Included in this category would be three pictures of the revolver taken at the scene. The revolver itself was admitted so these photos may have been cumulative, but they were not prejudicial. Also, there were several photographs showing the bedroom where the victim was found. These photos were not gruesome and could have been beneficial to the jury in aiding them to visualize the scene. There are only nine photographs of the victim herself taken from various angles in the room. While these pictures are the most gruesome, they are also the most probative. The defense contended at trial that Mrs. Sandoz might have committed suicide. These pictures showed the position of the victim after the shooting and the angle of the entry of the bullet. Both of these factors could help the jury determine whether or not they believed the victim had been murdered or had committed suicide. Many of the photographs were gruesome because Mrs. Sandoz was murdered in a violent and brutal manner. However, we cannot say the prejudicial effect clearly outweighed the probative value.

Assignment of Error Number 7

In this assignment of error, defendant argues that the trial court erred in allowing Chief Ranatza of the Harahan Police Department to give his opinion as to whether or not a bolt on an automobile had been removed and replaced. This question arose because there was a dispute about whether or not any repair work had been done to the car while Donna and Harold Sandoz were gone. It appears from the record that Chief Ranatza was merely explaining why it appeared to him that the engine had not been worked on.

Even if Chief Ranatza did give an opinion on redirect without being qualified as an expert, it was harmless error. On direct examination, the Chief testified without any objection that the car had not been worked on, and that the engine, including the water pump, had not been tampered with. It was only on the redirect that defense counsel objected to Chief Ranatza testifying as to whether or not he thought a nut had been loosened. The identical information given on redirect over the objection of the defense had already been given in the direct examination without any objection being raised.

This assignment is without merit.

Assignment of Error Number 9

The next argument of defendant is that the trial court erred in admitting a decibel recording test which indicated that a gunshot could have been heard in the garage while the ringing of a telephone could not. This was important since the defendant claimed that he heard the telephone ringing two separate times while he was outside, but did not hear a gunshot. The main objection is that in conducting the test, the police failed to simulate the sound of rain falling on the garage roof since there was testimony that it was raining or drizzling when Donna and Harold Sandoz returned home. However, it appears that the police officers conducting the test did attempt to reconstruct the conditions existing on the night of the incident in all other respects. The police discharged the weapon used in the killing into sandbags in the victim’s bedroom while the air conditioner, the dryer and the television were on.

The probative value of such an experiment or reconstructed evidence depends in large measure upon the extent to which the reconstructed scene was identical with or similar to that which existed at the time the incident happened. State v. Brumfield, 329 So.2d 181 (La.1976). Here, the only sound that was not included in the test was that of rain falling on the roof. The test would have more accurately recreated the situation existing on the night Mrs. Sandoz was killed if the sound of the rain had been present. However, in this case, the primary importance of the test was to show the relative loudness of the sound of a gunshot as compared to the sound of a. ringing telephone. This test was only introduced to show that if the telephone was audible outside, so was the gunshot. The gunshot had a reading of 96 decibels, while the sound of a telephone ringing did not register at all on the audible decibel reader when measured in the garage. Even if the sound of rain on the roof would have made the gunshot more difficult to hear, it would also have made the telephone more difficult to hear. Since defendant claimed he heard the telephone ringing on two separate occasions but never heard a gunshot, the results of the audible decibel test were only used to show that if he heard the phone, he also should have heard the gunshot. Since the test was used to compare the volume of two different sounds rather than to determine whether or not a sound could be heard, the fact that the sound of the rain was not simulated did not require the results of the test to be excluded.

Assignment of Error Number 11

Defendant’s final assignment of error is that the trial court erred in failing to grant a new trial because the evidence was insufficient to support a guilty verdict. He alleges a lack of direct circumstantial evidence indicating a specific intent to murder Mrs. Sandoz. R.S. 14:10 defines specific intent as follows:

“(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”
However, specific intent is a state of mind, and need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Procell, 365 So.2d 484 (La.1978).

R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

In this case, the evidence excluded every reasonable hypothesis of innocence and was sufficient to find that Larry Boyer did kill Mrs. Sandoz. It can be inferred from the fact that the defendant shot Mrs. Sandoz in the head at close range that he actively desired her death to follow his act.

This assignment is without merit.

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

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Michael M. MYERS.
    No. 81-KA-0277.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
   PER CURIAM.

Affirmed.

CALOGERO and DENNIS, JJ., dissent.


author: WATSON, Justice.

text:
    STATE of Louisiana v. William BOSTICK.
    No. 81-KA-0400.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Walter L. Perkins, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Charles R. Blaylock, Monroe, for defendant-appellant.
   WATSON, Justice.

Defendant, William Bostick, contends that the trial court failed to comply with the mandatory sentencing guidelines of LSA-C.Cr.P. art. 894.1 and imposed an excessive sentence.

Bostick was charged with possession of methamphetamine with intent to distribute the substance. LSA-R.S. 40:967(A)(1). Bostick was also charged with possession of marijuana, second offense. LSA-R.S. 40:967(D)(2). Bostick pleaded guilty to first offense possession of marijuana, LSA-R.S. 40:967(D)(1), and to attempted possession of methamphetamine with intent to distribute. LSA-R.S. 14:27(D)(3). He was sentenced to six months in jail on the marijuana conviction and two years at hard labor on the methamphetamine conviction.

The six month sentence on the marijuana conviction is the maximum length of time for that offense. However, Bostick could have been sentenced to serve the six months at hard labor. The sentence on the methamphetamine charge is within the possible five year maximum for attempted possession with intent to distribute a Schedule II non-narcotic drug. LSA-R.S. 40:967(B)(2); LSA-R.S. 14:27(D)(3). The trial court did not impose the additional fines which are allowed by the respective statutes.

A sentence within statutory limits may violate a defendant’s constitutional right to be protected from excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). The sentences imposed here are not apparently excessive.

Bostick’s record shows two prior convictions of DWI; a charge of simple burglary, reduced to receiving stolen property, for which he was sentenced to two years in the Ouachita Parish Jail; perjury, for which he received six months in jail; possession of marijuana, for which he received fifteen days in jail; and some other minor charges. Bostick’s record indicated to the trial court “a complete indifference toward non-criminal behavior and lack of self control.” (Tr. 39) Bostick appeared disposed toward criminality. The judge expressed, in other words, the idea of an undue risk that Bostick would commit another crime and need of a custodial environment; thus, the trial court found the factors set forth in LSA-C.Cr.P. art. 894.1 A(l) and (2). The trial judge noted an indifferent attitude on Bostick’s part and believed that Bostick would continue to disobey the law. The court was also aware that the two charges had been reduced. Inferentially, the trial court found that a lesser sentence would deprecate the seriousness of the crimes, the third factor set forth in LSA-C. Cr.P. art. 894.1 A(3) to justify imprisonment. See State v. Russell, 397 So.2d 1319 (La.1981).

Many of the factors set forth in LSA-C. Cr.P. art. 894.1 B were not weighed by the trial court. However, some are not pertinent to these offenses. LSA-C.Cr.P. art. 894.1 B (l), (2), (6) and (6) concern crimes from the victim’s point of view. Possession of marijuana is a victimless crime. In “attempted” possession of methamphetamine with “intent to distribute", there is a potential threat to society at large but no specific victim. Yet, these crimes carry statutory penalties of imprisonment. Presumably, a victim is not a sine qua non for imprisonment of transgressors. No evidence was adduced to show provocation or excuse. LSA-C.Cr.P. art. 894. IB (3) and (4). The trial court did consider defendant’s history of prior criminal activity. LSA-C.Cr.P. art. 894.1 B(7). The trial court also expressed the idea that defendant’s criminal conduct was likely to recur and that he would probably commit further crimes. LSA-C.Cr.P. art. 894.1 B(8) and (9). The court stated that defendant’s status as a third offender made probation inappropriate. LSA-C.Cr.P. art. 894.1 B(10). The court did not mention whether imprisonment would entail excessive hardship to defendant or his dependents. LSA-C.Cr.P. ai$. 894.1 B(ll). The presentence report states that Bostick is divorced and his four year old son does not reside with him. Bostick’s mother is critically ill but it is uncertain whether he provides any help for her, morally or otherwise.

The trial court’s compliance with the requirements of LSA-C.Cr.P. art. 894.1 was adequate and the sentences are not excessive for this defendant. See State v. Davenport, 399 So.2d 201 (La.1981).

For the foregoing reasons, the sentences imposed by the trial court herein are affirmed.

AFFIRMED.

       Judge Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, and Judges Thomas J. Klie-bert and Robert J. Klees of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Justices Calogero, Dennis and Watson.

      .LSA-C.Cr.P. art. 894.1 A(l) provides:
      “There is an undue risk that during the period of a suspended sentence of probation the defendant will commit another crime;”.

      . LSA-C.Cr.P. art. 894.1 A(2) provides:
      “The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution;...”

      . LSA-C.Cr.P. art. 894.1 A(3) provides:

        “A lesser sentence will deprecate the seriousness of the defendant’s crime.”

      . LSA-C.Cr.P. art. 894.1 B(l) provides:
      “The defendant’s criminal conduct neither caused nor threatened serious harm;”.

      . LSA-C.Cr.P. art. 894.1 B(2) provides:
      “The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;”.

      . LSA-C.Cr.P. art. 894.1 B(5) provides:
      “The victim of the defendant’s criminal conduct induced or facilitated its commission;”.

      . LSA-C.Cr.P. art. 894.1 B(6) provides:
      “The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;”.

      . LSA-C.Cr.P. art. 894.1 B(3) provides:
      “The defendant acted under strong provocation;”.

      . LSA-C.Cr.P. art. 894.1 B(4) provides:
      “There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;”.

      . LSA-C.Cr.P. art. 894.1 B(7) provides:
      “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;”.

      . LSA-C.Cr.P. art. 894.1 B(8) provides:
      “The defendant’s criminal conduct was the result of circumstances unlikely to recur;”.

      . LSA-C.Cr.P. art. 894.1 B(9) provides:
      “The character and attitudes of the defendant indicate that he is unlikely to commit another crime;”.

      . LSA-C.Cr.P. art. 894.1 B(10) provides:
      “The defendant is particularly likely to respond affirmatively to probationary treatment; and”.

      . LSA-C.Cr.P. art. 894.1 B( 11) provides:
      “The imprisonment of the defendant would entail excessive hardship to himself or his dependents.”


author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. Eddie Lee JOHNSON.
    No. 81-KA-0470.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet and David R. Buckley, Asst. Public Defenders, for defendant-appellant.
   LEAR, Justice Ad Hoc.

The defendant, Eddie Lee Johnson, was charged by way of bill of information with the offense of armed robbery in violation of La.R.S. 14:64. He pled not guilty and was tried before a twelve person jury beginning on June 9, 1980. On June 10, 1980, eleven of the twelve jurors found the defendant guilty of simple robbery. On November 24, 1980, the defendant was sentenced to a period of seven years at hard labor. The defendant appeals, making two arguments on four of his five assignments of error.

The facts show that on November 22, 1979, Patrick Liang was working as a clerk at the front desk of the Shalamar Motel on Airline Highway in Baton Rouge. At approximately 8:30 p. m., while Mr. Liang was on the telephone with his wife, a black man with black frame glasses approached him at the front desk. The man had a white face towel tied around his hand in the shape of a gun. Mr. Liang asked if he could help him and the man replied “money” then took his left hand and hung up the telephone. Liang said, “It’s no good man” because there was not that much money in the cash register. The man replied, “I know, money.” Liang then handed him the $64.00 in the cash register and the robber then asked if there were any checks. Liang said there were no checks. The robber then noticed Liang’s wristwatch and said, “the watch.” Liang then gave him his Jupiter wristwatch. The robber then wanted Liang to lie on the floor, but Liang refused because he did not want to get his clothes dirty. Instead, Liang remained standing while the robber left on foot. Liang then called the police. The robber was with Liang for a period of five to ten minutes and Liang stated that he had a good view of him.

On December 5, 1979, Due Zen Lee, the owner of another motel in Baton Rouge, sent a carpetlayer’s helper to the Shalamar Motel to lay some leftover carpeting. This carpetlayer’s helper was Eddie Lee Johnson, the defendant herein. When the defendant arrived at the Shalamar Motel, Mr. Liang immediately recognized him as his assailant. When he looked at him, the defendant allegedly turned away. Liang then called Lee’s Motel. Liang informed Lee’s wife that the man they sent over was the man who robbed him. At that time, Liang learned that the defendant had borrowed $15.00 from Lee, leaving a Jupiter wristwatch as collateral. Lee then brought the wristwatch to Liang who identified it as his own. Thereupon, they notified the police, who immediately apprehended the defendant.

ARGUMENT NO. I

In Assignments of Error Nos. 2 and 3, the defense argues that the trial court erred in failing to either admonish the jury or grant a mistrial because of the state’s use of allegedly unconstitutional presumptions in closing argument. Defendant contends that the state’s use of the La.R.S. 15:432 presumptions, that the person in the unexplained possession of property recently stolen is the thief, and that evidence under the control of a party and not produced by him was not produced because it would not have aided him, violate defendant’s rights to due process, when applied to the facts of this case. Defendant maintains that the court’s holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) invalidates such use of presumptions in criminal law because they could unconstitutionally shift the burden of persuasion.

During closing argument, Assistant District Attorney Ralph Roy made the following comment on the defendant’s possession of the Jupiter watch stolen from Patrick Liang during the robbery:

“Now the law says something about this. The law says that an inference that a person who in an unexplained possession of property recently stolen, that you may infer that he’s the thief and that’s good common sense.” (Emphasis added.)

Defense counsel thereupon objected, the jury was removed, and the parties argued the propriety of Mr. Roy’s use of this La. R.S. 15:432 presumption. The trial court refused to grant a mistrial or admonish the jury. The trial court also therein allowed defense counsel to note her continuing objection to a further La.R.S. 15:432 presumption which she anticipated that Mr. Roy would mention. The jury was returned and Mr. Roy made the following comment:

“.. . [a]nd if it be said, as it will be, that this defendant could have found this watch walking out on the street or could have unbelievably purchased this stolen item innocently from somebody else, then I say this, that the law says that evidence which is under the control of a party, the parties in this case being this defendant and the State of Louisiana, cannot [and not] produce[d] by that person, the infer ence is that the evidence was not produced by that party because it would not have aided or it would not have helped that party. And I will take it on a sale situation that it is not uncommon to know the name of the person from whom you buy the property. So, if this defendant bought his watch from some third party, it would not be uncommon to expect that he would know from whom he bougth [bought] it. He may have conceivably bought it in the presence of several other people whose names he wouldn’t know and the law would require in such situations that this would be evidence under his control. I have no way of knowing whether he bought that watch or if there were witnesses present, or, if he bought it, who he bought if from or where he bought it. I have no way of knowing that. But, if such did exist, then that knowledge would be within his control and the law says if he has that kind of evidence under his control he didn’t offer this evidence, the inference is it was not offered because it wouldn’t have helped him. So, clearly, this record is indicative of the case of robbery and that this defendant is the robber.” (Emphasis added.)

Although the trial court did not admonish the jury as to this comment or the previous one, it did not use either of these presumptions in its final charge to the jury.

La.R.S. 15:432 provides:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject matter once established, continues, but not that it pre-ex-isted; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property. recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth. (Emphasis added.)

This court had questioned the continuing validity of the first underscored presumption in view of the United States Supreme Court’s recent emphasis that due process requires proof beyond a reasonable doubt of every essential element necessary to constitute the crime with which a defendant is charged. State v. Searle, 339 So.2d 1194 (La.1976); See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). However, this court has upheld the constitutionality of this presumption when the effect of the presumption is shown only to create an inference that the person in possession of recently misappropriated property was the misappropriator; and so long as the jury is adequately informed that the defendant need not testify to the circumstance of his possession of the misappropriated article any more than he need explain away any other circumstantial evidence pointing towards guilt. State v. Coleman, 358 So.2d 289 (La.1978); State v. Womack, 283 So.2d 708 (La.1973). However, this court has continually reiterated that this statutory presumption needs legislative clarification and trial courts who give instruction on it and prosecutors who argue it must exercise extreme care because they are treading on constitutionally thin ice. State v. Coleman, supra, State v. Searle, supra. In State v. Searle, supra, this court overruled the judicial extension of this statutory presumption, that the person in the unexplained possession of goods recently obtained from a burglary is presumed to be the burglar. This judicial extension of the presumption was invalidated because the presumed fact (the person is a burglar) does not beyond a reasonable doubt necessarily flow from the proven fact (he was in possession of goods recently stolen in a burglary).

The constitutionality of such presumptions has been more recently dealt with in Sandstrom v. Montana, supra. The court in Sandstrom noted that a given presumption would be unconstitutional if a reasonable jury could have interpreted it in either of the two following impermissible ways. If the presumption could be reasonably interpreted as an irrebuttable direction by the court, in other words, a conclusive presumption, then it would be unconstitutional., Alternatively, if a given presumption could be reasonably interpreted as shifting the burden of persuasion to the defendant then that also would be an unconstitutional denial of due process because it would relieve the state of the burden of proving each element of the crime beyond a reasonable doubt. However, it appears that presumptions that are clearly permissive, in the sense that they only allow the jury to infer that an element of the crime has been established upon proof of certain facts, can be constitutionally valid. Sandstrom was recognized by this court in State v. Heads, 385 So.2d 230 (La.1980).

In the present case the prosecutor used the words “inference” and “may infer” instead of “presumption” or “must presume.” In reference to the first La.R.S. 15:432 presumption used here it appears that this change of terminology could have avoided the possible unconstitutional interpretations of “presumptions” proscribed by the court in Sandstrom. The jury was merely informed that they may infer that the defendant was the thief from the fact of his being in possession of the recently stolen watch. The prosecutor was thereby arguing this presumption as a permissive inference, which allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one. This inference places no burden of any kind on the defendant. The validity of such a permissive inference will be upheld if there is a rational connection between the basic facts that the prosecution proved and the ultimate fact presumed and the latter is more likely than not to flow from the former. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 2228, 60 L.Ed.2d 777 (1979); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). As the Supreme Court pointed out in County Court of Ulster County v. Allen, supra, in using a permissive inference, or one “. . . on which the prosecution is entitled to rely as one not-necessarily-sufficient part of its proof ... ”, the state “. . . may rely on all of the evidence in the record to meet the reasonable doubt standard.” In this case, of course, the prosecution had the eyewitness identification of defendant by the victim, a sufficient basis to meet the reasonable doubt standard.

The prosecutor’s subsequent use of another La.R.S. 15:432 presumption is the basis of a constitutional challenge. In referring to defendant’s failure to introduce evidence concerning the name of any person from whom defendant may have purchased the stolen watch, or the witnesses thereto, the prosecutor asserted that such evidence would be within the exclusive control of the defendant and the “inference is it was not offered because it wouldn’t have helped him.” (Emphasis added.)

The prosecutor prefaced his argument on this presumption with “and if it be said”, indicating that he was anticipating defense counsel’s argument rather than defendant’s testimony or lack thereof.

Against this backdrop it could be argued that any constitutional error was harmless beyond a reasonable doubt given the overwhelming evidence of guilt against the accused. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Unlike Sandstrom v. Montana, supra, this constitutional error did not occur during the trial court’s final charge to the jury. See Brotherhood of Carpenters v. United States, 330 U.S. 395 at 405-409, 67 S.Ct. 775 at 782, 91 L.Ed. 973; Bollenbach v. United States, 326 U.S. 607 at 614, 66 S.Ct. 402 at 405-406, 90 L.Ed. 350. Therefore, the harmless beyond a reasonable doubt standard may still be utilized to discount any error that may have occurred.

Inasmuch as the prosecutor was referring to an anticipated closing argument by defense counsel rather than the fact that defendant failed to testify and the further fact that the trial judge did not include either presumption in his charge to the jury, we find no merit in this assignment of error.

In reference to Assignments of Error Nos. 4 and 5, defense counsel argues that the trial court erred in failing to either grant a mistrial or admonish the jury as to the prosecutor’s arguing extraneous facts to the jury during closing argument. Defendant specifically complains of the prosecutor’s reference to a newspaper article wherein one armed robbery victim was murdered with what he erroneously thought was a toy pistol wielded by an assailant, and his reference to alleged criminal cases wherein this court upheld the convictions. One involved an aggravated assault conviction where the defendant supposedly established that he emptied the cartridges from the revolver before wielding it, and another involved an armed robbery of a store where the defendant never removed his hand from his pocket. Defendant contends that the prosecutor was thereby playing on the fears and emotions of the jurors by trying to place the defendant in the same category with other more notorious armed robbers. Defendant maintains that the prosecutor was introducing extraneous evidence during argument and that these references were irrelevant, immaterial and highly prejudicial.

The prosecutor made references to other completely unrelated crimes that were recently reported in the newspapers as well as his interpretation of what this court has deemed sufficient to support an armed robbery conviction. These references do seem irrelevant, if not immaterial and some may be deemed prejudicial insofar as the jury may have been thereby misled as to the proof required to support an armed robbery conviction.

La.C.Cr.P. art. 774 provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

The prosecutor’s argument does seem to exceed its proper scope in that it was not confined to the evidence admitted at trial and could have arguably appealed to the prejudice of the jury. See State v. Scott, 400 So.2d 627 (La.1981). However, these references during closing argument do not appear so prejudicial as to warrant reversal. Cf., State v. McClinton, 399 So.2d 178 (La.1981), (improper for prosecutor to invite jurors to think of themselves as victim, but not so prejudicial as to warrant mistrial); State v. Heads, 370 So.2d 564 (La.1979) (prosecutor’s comparing defendant’s character with that of “Son of Sam” could be improper because outside the scope of La.C.Cr.P. art. 774 but does not warrant mistrial).

The portions of the prosecutor’s argument that exceed the scope of the evidence relate to the issue of armed versus simple robbery. The jury returned a verdict of guilty only as to simple robbery. Defendant has failed to establish how these arguably improper remarks influenced the jury or contributed to its verdict. It is well established that this court will not overturn a conviction on grounds of improper argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. Hicks, 395 So.2d 790 (La.1981).

This argument lacks merit.

AFFIRMED.

LEMMON, J., concurs.

      Judges Chiasson, Edwards and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, Justices Marcus, Blanche and Lemmon.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Joseph WOODS.
    No. 81-KA-0528.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, John H. Craft, Richard Pitre, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    David F. Craig, Jr., and Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This appeal by defendant encompasses two separate convictions, one of possession of a firearm by a convicted felon and the second of possession of a controlled dangerous substance. The only assignment of error relates to the trial court’s denial of the motion to suppress the weapon and the drugs.

Two police officers received information in the early evening from a reliable confidential informer that defendant, known to the informer as “Joe Pecker” and to the officers as Joseph Woods, was in the process of walking to the 1200 block of South White Street to deliver preludin. The informant warned officers that defendant was armed with a gun. The informer had previously given reliable information that led to other narcotics arrests and convictions. Acting in reliance on the information, the officers drove their unmarked car in the direction of the described location and saw defendant walking toward the location. After observing defendant appear to look around and act suspicious, the officers drove on. Assuming a vantage point in the 1200 block of South White Street, the officers observed defendant and two other persons meet on the street and either exchange handshakes or transfer some item by hand.

After observing that contact, the two officers drove to the point where the three people were standing and announced, “Police officers, freeze”. Defendant remained motionless, but the other two persons ran into the house on South White Street, and one of the officers chased them.

Remembering that the informer warned that defendant was armed, the officer who remained on the street patted defendant down for weapons and obtained a gun from defendant’s left rear pocket. The officer immediately informed defendant he was under arrest and ordered him to lie on the ground. The officer then performed a full search of defendant’s person, which yielded 23 preludin tablets.

Defendant was charged with possession of a firearm by a felon and possession of controlled dangerous substances. After a motion to suppress the seized evidence was denied, defendant was convicted on both charges. Hence, this appeal.

Defendant contends that the evidence should have been suppressed because the confidential informer’s information was not shown to be accurate, in that the state did not prove circumstances or sufficient details to provide a factual basis for assessing the reliability of the information.

Although the informer’s information arguably did not establish a basis for a full custody arrest, the tip clearly carried sufficient “indicia of reliability” to support a forcible stop, particularly since the officers immediately corroborated the information by surveillance. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Bible, 389 So.2d 42 (La.1980). The officers were dealing with a person of previously proven credibility. See State v. Paciera, 290 So.2d 681 (La.1974). His veracity had been well established by prior accurate reports. See State v. Jeffcoat, 403 So.2d 1227 (La.1981). Further, the officers confirmed that the named perpetrator, known personally to them, and his destination had been accurately described. When the officers observed defendant acting suspiciously and then performing a motion which could have been interpreted as an exchange of drugs, the circumstances provided the officers with reasonable grounds at least to stop the defendant and to question him as to his activities. C.Cr.P. Art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, above.

The officers effected a forcible stop when the defendant complied with their order to “freeze”. See State v. Saia, 302 So.2d 869 (La.1974). However, this forcible stop was justified under the circumstances as outlined above. The officer who was left alone with defendant and who had been advised by the apparently reliable report that defendant was armed, was therefore justified in conducting a self-protective search for a weapon. Adams v. Williams, above; State v. Jernigan, above. When the officer discovered the pistol, he had probable cause to arrest defendant for illegally carrying a concealed weapon. See R.S. 14:95. The ensuing search incident to the lawful full custody arrest produced the illegal drugs. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Accordingly, we conclude that the discovery and seizure of the gun was the product of a lawful “frisk” for weapons and that the seizure of the illegal drugs was the product of a search incident to a lawful arrest. The motion to suppress was properly denied.

The conviction and sentence are affirmed.

DIXON, C. J., concurs.

       Judges Wallace A. Edwards, Remy Chiasson and Elmo E. Lear of the First Circuit Court of Appeal participated in this decision as Associate Justices ad hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Although the two convictions were obtained in separate trials, this court on defendant’s motion considered the two convictions under a single docket number, because the only assignment of error concerned the denial of the motion to suppress both crucial items of evidence.

      . In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) the Court held that a tip from an informant could possess sufficient “indicia of reliability” to justify a forcible stop. See State v. Wilson, 366 So.2d 1328 (La.1978); State v. Jernigan, 377 So.2d 1222 (La.1979); State v. Bolden, 380 So.2d 40 (La.1980). Although the tip did not explicitly purport to represent the observation of an eyewitness, it was sufficiently current and detailed to indicate that it was more than a “casual rumor circulating in the underworld”. See Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Wilson, above. As this court held in State v.j Jernigan, above, even tips which are deficient under the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and State v. Paciera, 290 So.2d 681 (La.1974) may justify an investigatory stop if the tip carries sufficient “indicia of reliability, such as specificity of the information corroborated by independent police work”. 377 So.2d at 1222.

      .The fact that the other two suspects immediately fled the scene upon the announcement of the arrival of policemen added further “indicia of reliability” to the information provided by the confidential informer. See State v. Abadie, 390 So.2d 517 (La.1980). Whether the facts justified the seizure of those individuals is, of course, irrelevant to our disposition of this case.


author: CHIASSON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Stanley E. McKINNEY.
    No. 81-KA-0839.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Arther J. Lentini, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Martha E. Sassone, Gretna, Robert T. Garrity, Jr., New Orleans, and Joseph L. Montgomery of Indigent Defender Board, Metairie, for defendant-appellant.
   CHIASSON, Justice Ad Hoc.

On February 3, 1979, an armed robbery was committed against John Belloni, an employee of Warehouse Records and Tapes. At approximately 10:00 p. m., two men came into the store to make change. They left, then returned two or three minutes later to get more change. Once again, they departed, then returned for the third time and this time pulled a gun on Belloni, took all of the money out of the cash register, and left the store.

On March 7, 1979, Detective Stanley E. Ferguson conducted a photographic lineup with Belloni. The detective testified that he took the photographs to Warehouse Records and Tapes, placed them down on top of the counter, instructed Belloni to take his time and observe the pictures, and asked him if he recognized any of the photographs. The victim immediately, without hesitation, identified the accused as the person who robbed him on February 3, 1979.

After the preliminary hearing on May 7, 1979, the state filed a bill of information on May 21, 1979, charging the accused with armed robbery, a violation of La.R.S. 14:64. The defendant pleaded not guilty. On August 31, 1979, the victim picked the accused out of a physical lineup. Accused’s counsel was not present. Defense counsel filed a Motion to Suppress, urging the trial court to suppress the in-court identification to be made by the victim, arguing, in effect, that it would be tainted by the victim’s identification of defendant at the uncounseled physical lineup. Also defense counsel argued that the state was not entitled to an opportunity to show that any in-court identification would have an independent source. In other words, the victim’s eyewitness identification at the scene of the crime and his identification of the accused in a photographic lineup should also be suppressed.

The trial court agreed that the defendant was denied due process by not having his defense counsel present at the lineup. Any evidence regarding the physical lineup was excluded. However, the trial judge held that his suppression of the physical lineup did not mandate the suppression of the in-court identification. He believed the victim could make an in-court identification based on his independent knowledge of what happened to him on the date the crime occurred. Defense counsel applied for Writs of Certiorari, Prohibition and Mandamus to this Court, appealing that part of the ruling which allowed the victim to make an in-eourt identification. The writs were denied on grounds that an adequate remedy by review would be available in the event of conviction. Thereafter, the defendant withdrew his former plea of not guilty and, after the trial court’s extensive “boykinization,” pleaded guilty to a reduced charge of attempted armed robbery as the result of a plea bargain.

On appeal, defendant contends that his right to appeal was preserved by his unsuccessful writ application and by this Court’s referral therein to the availability of post-conviction remedies. He also contends the trial court erred in denying his Motion to Suppress.

The general rule is that a guilty plea waives all nonjurisdictional defects in the proceedings prior to the plea and precludes review thereof either by appeal or by post-conviction remedy. State v. Torres, 281 So.2d 451 (La.1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972).

An exception to the rule is that a defendant, by virtue of a reservation for appellate review of specified pre-plea errors, may condition his guilty plea and thus be allowed appellate review. State v. Aguillard, 357 So.2d 535 (La.1978); State v. Crosby, 338 So.2d 584 (La.1976), rehearing denied October 15, 1976; State v. Williams, 340 So.2d 1382 (La.1976), rehearing denied January 21, 1977.

In the case before us, the defendant and his attorney not only made no specific reservation for appellate review of the pre-plea ruling, but instead, made an affirmative, voluntary, intelligent, knowing and informed waiver of such right.

A waiver of a constitutional right (such as the right to appellate review) must be clear, Bonner v. B—W Utilities, Inc., 452 F.Supp. 1295 (D.C.La.1978); intelligent, Art. 1, Section 19 of the 1974 Louisiana Constitution; voluntary, State v. Williams, 353 So.2d 1299 (La.1977), certiorari denied, 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed.2d 1138 (1977); knowing and informed and by an accused who understands the consequences of his act, State v. Muller, 351 So.2d 143 (La.1977), appeal after remand, 365 So.2d 464 (La.1978).

From the transcript of the proceedings of June 11, 1980, we quote only a part of the Court’s extensive “boykinization” :

******
“BY THE COURT:
******
“Q. * * * You understand that if I accept your plea you can no longer assert any allegations of defects, such as you cannot claim that you were illegally arrested, that there was an illegal search and seizure, an illegal confession or an illegal lineup, you can no longer challenge any alleged defects in these proceedings, do you understand that?
“A. Yes sir.
“Q. You understand that Mr. Dalton on your behalf has filed in this Court certain motions to exclude from the trial the identification of you stemming from a physical lineup and also the in Court identification of you, that those motions have been filed on your behalf, but now that you’re entering this plea of guilty you’re giving up any rights to challenge any defects as I said, You cannot come back later and say there was something wrong with the way the lineup was conducted. There was something wrong with the way the photographs were shown to the victim and these are defects in the proceeding. This will completely end all your rights to challenge these defects, do you understand that?
“A. Yes sir. I do.
******
“THE COURT: Mr. Dalton, are you satisfied that he understands all of his rights and he enters this plea voluntarily this morning?
“MR. DALTON: Yes, sir. I am. * * *”

In addition to the Court’s colloquy, Mr. McKinney and his attorney signed a written Acknowledgment of Rights form which states in part that:

******
“6. If you plead guilty, and this court accepts your plea, you do not have the right to assert any allegations of defects, such as: • ■ - (d) an illegal line-up, ... Do you understand that by pleading guilty you are waiving or giving up these rights?”
******
“BY DEFENDANT’S ATTORNEY:
******
“I, also, have informed the defendant . . . that his ... only appeal is for review of jurisdictional defects .. . . ”

The defendant’s guilty plea to the reduced charge of attempted armed robbery was the result of a plea bargain. In accordance with the Uniform Rules of Criminal Procedure, National Conference of Commissioners on Uniform State Laws (1974), a prosecutor may require the waiver of appellate review of nonjurisdictional pre-plea rulings. State v. Crosby, 338 So.2d 584, 591 (La.1976) and Rule 443(a)(4) cited in footnote 3 on page 589.

A ruling on a motion to suppress an illegal lineup is a nonjurisdictional pre-plea ruling and appellate review thereof can be waived.

The overwhelming evidence indicates that, by and with the advice and consent of counsel, Mr. McKinney clearly, intelligently, voluntarily, knowingly, informedly, and understanding the consequences of his act, effectively waived his constitutional rights of appellate review of the pre-plea ruling. Therefore, we are limited in our review to only jurisdictional defects made prior to Mr. McKinney’s guilty plea. State v. Foster, supra; State v. Torres, supra. We find no jurisdictional error prior to the guilty plea in this case.

The Motion to Suppress the in-court identification of the defendant by the victim is a nonjurisdictional defect waived by the guilty plea under the holdings of the cases heretofore cited.

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

DIXON, C. J., concurs.

       Judges Chiasson, Edwards and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, Justices Marcus, Blanche and Lemmon.

      . At the time of the lineup, attorney John Rau was representing the defendant. He testified at the Motion to Suppress Hearing that he had not been notified of the lineup. Detective John J. Davis stated that he called Rau’s office to advise him, but didn’t recall whether or not he spoke to Rau, his secretary, or his answering service.

      . He was made aware of the nature and extent of the constitutional rights'which he is deemed to have waived by pleading guilty. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    STATE of Louisiana v. James Eldon BOATRIGHT.
    No. 81-KA-0920.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., New Orleans, and Joseph L. Montgomery of Indigent Defender Bd., Metairie, Ulysses D. Smith, for defendant-appellant.
   LEMMON, Justice.

This is an out of time appeal from a conviction of manslaughter, based on a guilty plea, and a sentence of 15 years imprisonment. On appeal defendant questions the trial court’s denial of his motion to withdraw the guilty plea and the trial court’s compliance with the sentencing guidelines of C.Cr.P. Art. 894.1.

Facts

The fatal shooting underlying the conviction occurred at 2:00 a. m. in the manager’s office of a motel where defendant was living. The facts leading up to the shooting are by no means clearly established.

Several weeks before the incident the victim and a woman named Doris Blackwell separated after having lived together for several years. Doris Blackwell and her daughter apparently began residing at the motel, and defendant began seeing Doris Blackwell on a regular basis. According to defendant’s version of the facts, the victim on several occasions threatened to kill defendant, Doris Blackwell and Doris’ daughter. Defendant also claimed that the victim had beaten Doris on previous occasions and had once shot at her and her daughter.

At about 3:00 on the afternoon of the incident defendant and the victim were drinking in the bar of the motel. After an argument concerning defendant’s relationship with Doris Blackwell, the victim threatened to kill defendant, and defendant left the bar. However, defendant thereafter returned, and the two men continued drinking in the bar throughout the evening despite several other confrontations. Around 8:00 p. m. defendant went to his room to obtain a pistol after the victim threatened him with a knife. When defendant returned to the bar, the victim again had his knife and again made threatening statements. The two nevertheless remained in the bar until about 2:00 a. m., when defendant went to the motel manager’s office. The shooting ensued soon thereafter.

Defendant was indicted for first degree murder, and counsel was appointed to represent him. After discussions with the state an agreement was reached whereby defendant was permitted to enter a guilty plea to manslaughter.

At the guilty plea the trial judge thoroughly discussed with defendant on the record the elements of the offense and the rights being relinquished by the plea. The judge also cautioned defendant regarding the maximum penalty and made it very clear that there was no prior agreement regarding the sentence to be imposed. Thus, the record clearly establishes that defendant entered his plea fully aware that the trial court could impose the full range of sentences provided by law. See R.S. 14:31. After the plea the court ordered a presentence investigation and afforded defendant a full opportunity to submit favorable information.

When defense counsel discovered just before sentencing that the trial court intended to impose a 15-year sentence, he orally moved that defendant be permitted to withdraw his guilty plea. The trial court denied the motion and imposed a sentence of 15 years imprisonment at hard labor.

Motion to Withdraw Guilty Plea

Counsel for defendant, an attorney with 15 years of experience, advised defendant to plead guilty to manslaughter based on his assessment of the strength of the state’s case. His competency has not been challenged, and there has been no showing that his representation fell below the range of competency demanded of attorneys in criminal cases. See State v. Beatty, 391 So.2d 828 (La.1980); State v. Myles, 389 So.2d 12 (La.1980); United States v. Moore, 432 F.2d 730 (3rd Cir. 1970). Counsel undoubtedly decided, after assessing the evidence, that the circumstances did not warrant going to trial on the first degree murder indictment, thereby risking exposure to a mandatory life sentence. In choosing between the two unpleasant options (going to trial on the first degree murder indictment or pleading guilty to manslaughter), defendant acknowledged his criminal responsibility for unjustifiably taking the life of a fellow human being. Rather than requiring the state to prove that the killing was not committed in self defense, defendant chose to minimize his penalty exposure by entering a guilty plea. The evidence which defendant would have presented in support of his plea of self defense then became proof merely of extenuating circumstances properly urged in mitigation of penalty.

Since there was no specific agreement as to the length of the sentence with either the trial judge or the district attorney who negotiated the plea, and since the trial judge at the time of the guilty plea notified defendant of the possible range of sentences and stated very clearly that he was not promising any particular sentence, defendant was fully aware that the sentence would depend upon the trial judge’s assessment of the defendant’s character and the nature of the offense, and that such assessment would be based primarily upon the presentence investigation report. Upon learning on the morning of sentencing of the penalty the trial judge intended to impose, defense counsel orally moved to withdraw the guilty plea, stating that he was “completely set aback” by the severity of the penalty and “this is why I am making this oral motion”.

Dissatisfaction with the sentence is not a basis for withdrawal of a guilty plea. State v. Robinson, 311 So.2d 893 (La.1975). If defendant’s complaint is that his trial counsel did not give him competent advice, then defendant may file an application for post-conviction relief. See C.Cr.P. Art. 924 et seq. However, there is no basis in this record on direct appeal to conclude that the trial judge abused his discretion in refusing to allow the guilty plea to be withdrawn. See C.Cr.P. Art. 559.

Compliance with Sentencing Guidelines

Defendant’s primary complaint is that the trial judge imposed an apparently severe sentence without stating for the record the factual basis for the considerations taken into account in sentencing, as required by C.Cr.P. Art. 894.1C.

In imposing sentence, the trial judge considered, but rejected, defendant’s contention that he should not be punished severely because there were substantial grounds to believe that his actions were provoked and induced by the victim’s misconduct. The trial judge referred primarily to defendant’s refusal to avail himself of several opportunities to avoid the killing. The record fully supports this very important consideration. Although there had been prior threats by the victim and a previous brandishing of the knife, at the time of the shooting the knife was in the victim’s pocket, and there is no indication (except for defendant’s statement to the probation officer) that the victim was in the process of attacking defendant immediately prior to the shooting. Furthermore, despite numerous opportunities to avoid confrontation by staying away from the barroom, defendant continued to return and to argue with the victim. When asked by the probation officer why he did not simply leave the bar and stay away, he stated that Doris Blackwell did not want to leave and also admitted that he was not the type of person to back down or avoid a confrontation.

Defendant’s prior record, although not referred to by the trial judge, also supports the sentence imposed. Defendant was previously convicted in Georgia in 1978 of involuntary manslaughter resulting from an automobile accident involving two deaths. He was placed on 12 months probation, which was subsequently revoked. He was also convicted in 1974 of first degree forgery in Georgia and sentenced to serve five years. Although he was paroled after 20 months, the parole was later revoked because of defendant’s driving while intoxicated. Defendant’s history of prior criminal activity, as well as his record of probation and parole violations, clearly reflect an unwillingness to observe the reasonable rules of a civilized society.

Accordingly, while the trial judge did not completely comply with C.Cr.P. Art. 894.1, the record fully supports the sentence that was imposed, and remand for compliance is unnecessary. State v. Day, 391 So.2d 1147 (La.1980). Furthermore, since the presentence investigation report and the statements submitted by defense counsel contained entirely favorable information (except for some admissions by defendant and his criminal record), defendant cannot complain that the trial judge considered inappropriate factors or failed to allow the defense to submit favorable evidence during the sentencing procedure.

The conviction and sentence are affirmed.

CHAISSON, J. ad hoc, concurs in result.

       Judges Wallace A. Edwards, Remy Chiasson and Elmo E. Lear of the First Circuit Court of Appeal participated in this decision as Associate Justices ad hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . The facts related in this opinion were obtained primarily from the presentence investigation report and consist in large measure of defendant’s own version of the occurrence. '

      . There were no aggravating circumstances present in this case. C.Cr.P. Art. 905.4.

      . See State v. Patterson, 295 So.2d 792 (1974), which requires the state to bear the burden of proving that a homicide was not committed in self defense, if the defense has been raised.

      .C.Cr.P. Art. 894.1B(3), (4) and (5), require the trial court to consider in determining sentence whether defendant “acted under strong provocation”, whether there were “substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense”, and whether the victim “induced” defendant to commit the offense.

      . In Louisiana, there is no “retreat” rule as such. However, defendant’s reasonable perception of the killing as the only reasonable means of extricating himself from the danger is critical. R.S. 14:20. Nevertheless, by his plea of guilty defendant in effect admitted that the killing was not justified.

      . The trial court had available the transcript of the preliminary examination, in addition to the presentence report and the information submitted by defense counsel.

      .According to the investigating officer’s testimony at the preliminary examination, there were four persons in the office at the time of the shooting. Doris Blackwell did not see the actual shooting, although she heard the shot. Sheila Blackwell, however, did see the shooting, and she told the investigating officer that defendant and the victim were talking, when defendant picked up a gun from the desk and shot the victim in the neck. Neither Doris nor Sheila mentioned to the investigating officer “any act of violence or any act of aggression on the part of the victim” in the motel manager’s office prior to the shooting.

      . Defense counsel submitted statements by at least three persons attesting to defendant’s good character and the victim’s reputation as an alcoholic and as a violent and dangerous person. The trial judge referred to the statements during sentencing.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Deborah E. ZITO.
    No. 81-KA-1055.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Asst. Dist. Attys., for plaintiff-appellee.
    Wayne Douglas Mancuso, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant pleaded guilty to possession of quaaludes following the denial of her motion to suppress. She was given a one year suspended sentence and fined $500 plus costs. The issue presented is whether the evidence was illegally seized.

At approximately 2:00 a. m. on August 3, 1980 nineteen year old Deborah Zito was in a car talking with David Gast, her boyfriend, and David Verret, who was standing outside the car. The car was parked on the street in front of Verret’s driveway. Police officers had an arrest for Deborah and her boyfriend on an aggravated battery charge. The officers had been watching the neighborhood, and drove up alongside Deborah’s car. They asked her name, removed her and Gast from the car, handcuffed them and placed them in separate police cars. Deborah asked Verret to move her car into his driveway, but a police officer refused to give him the keys. There is no indication in the record as to how he got the keys.

Verret was talking to the officer who had the keys and observed another officer search the car for about five minutes. He testified the officer took Deborah’s purse from the car and brought it to the headlights to examine the contents. Verret went into the house to call Gast’s father. The officer with Deborah’s keys followed and gave him the keys once the search was completed.

Lieutenant Langford, the state’s only witness, gave inconsistent testimony. He was handed the purse, but he could not remember who had given it to him. At the station he observed an inventory search of the purse which produced marijuana and quaaludes, but he could not name the officer who made the inventory. The marijuana is not at issue in this case.

The trial court incorrectly denied defendant’s motion to suppress the physical evidence. The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution of 1974 prohibit unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Lain, 347 So.2d 167 (La.1977). The state bears the burden of proving that one of these exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Adams, 355 So.2d 917 (La.1978).

The state argued the search was incident to a lawful arrest. This court has noted that a search incident to a lawful arrest is authorized for the purpose of protecting the arresting officer and is limited to a search of the person of the defendant and the area within his immediate control. State v. Blanchard, 374 So.2d 1248, 1250 (La.1979).

The search of defendant’s car and purse was not justified by this exception. Deborah and her boyfriend were handcuffed and in separate police cars at the time of the search. They did not pose any threat to the officers at that time, and the searched area was not within their immediate control.

The state did not argue the application of any other exception to the warrant requirement. Lieutenant Langford testified that the evidence was produced from an inventory search of the purse at the station. However, the purse was first searched at the scene of the arrest. The officers apparently searched the purse and car at the scene to see if there was a reason to retain them. The officer gave Deborah’s keys to David Verret once a search of the car produced no evidence. The car was not impounded. The purse was retained since contraband was found in it. The police may not illegally discover evidence and subsequently justify it as a result of an inventory search.

For these reasons the defendant’s conviction is reversed and sentence is set aside. The motion to suppress is granted, and the case is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.

KLIEBERT; J., ad hoc, concurs.

       Judges Ned E. Doucet, Jr. of the Third Circuit and Thomas J. Kliebert and Robert J. Klees of the Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.