author:
DIXON, Chief Justice.
     WILLIAM J. BYRNES, III, Justice Ad Hoc, LEMMON, Justice,

text:
    STATE of Louisiana v. Lenon WILLIAMS.
    No. 82-KA-0248.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.
    Reasons concurring in Denial of Rehearing Feb. 9, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Joseph Lotwick, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Jeffrey Hollingsworth, Asst. Public Defender, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Lenon Williams was charged with second degree murder in violation of R.S. 14:3o.!, found guilty as charged and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals, contending the state in this circumstantial evidence case failed to exclude every reasonable hypothesis of innocence.

The nude body of Cheryle Gaines was found in Olympia Park in Baton Rouge on Easter Sunday, April 19, 1981, by a jogger at 7:50 a.m. Her car was found later in the day underneath the Nairn Street Overpass with the doors and trunk wide open. The overpass was 3.4 miles from Olympia Park and only a short distance from the homes of the victim and the defendant.

On the night of April 18, defendant Williams was with friends at a nightclub called “The Spot” across the river in West Baton Rouge Parish. The friends who had given him a ride decided to leave, but the defendant decided not to go with them, since he was not yet ready. There were other friends in the bar that he believed would give him a ride home. He later asked Che-ryle, whom he had known from school days and from working on her car at K-Mart, if she would give him a ride, and she agreed. He had been talking with her off and on in the bar and had bought her some drinks.

Joe Wright was also at “The Spot” that night. He had helped close up his father’s nightclub on the East Bank and had earlier arranged with Cheryle to meet her at “The Spot.” Wright’s car had run out of gas earlier in the evening so he, too, was at “The Spot” without a car and also asked Cheryle (whom he knew through the Army Reserve) for a ride after talking with her in the bar. Neither Wright nor the defendant knew the other or knew that Cheryle had agreed to give the other a ride home from the club.

The three prepared to leave the bar at approximately 5:00 a.m. Cheryle drove with Wright sitting in the front seat and the defendant in the back. They crossed the river and took an exit from the interstate near Wright’s house so that he could pick up a gas can. Cheryle got out of the car to open the trunk and asked: “This where you live at, Man? ... It’ll be hard for me to find this here again.” Wright replied: “It’s easy, right off Baton Rouge Avenue, Iberia Street.”

The three proceeded to an open gas station where Wright got out of the car, filled the can and placed it back into the trunk. Cheryle and the defendant remained in the car. By this time the sky had begun to lighten.

When they arrived at Wright’s car, he and Cheryle got out of the car; he getting a siphon hose from his car and she opening the trunk containing the gas can. Wright testified that she began to ask him about his wife since he had made her believe that he and his wife had broken up. The defendant moved from the back seat to the front, and the two drove off while Wright continued to fill his tank. By this time it was light enough that headlights were not needed.

On the way to Lenon’s house, the trunk came open as the car crossed some railroad tracks. Lenon got out of the car and closed the trunk at the next stoplight.

The defendant testified that Cheryle then dropped him off in front of his house and left. He went inside, getting his pillow and blanket, undressing, and going to sleep on the floor as he usually did. His parents stated that they awoke at 6:45 a.m. and saw him sleeping.

Joe Wright testified that after Cheryle left him at his car, he finished putting the gas in and then went to the home of Jean Sheppard, one of the girls he had gone to “The Spot” with earlier that night. She came out in her robe and talked with him for about half an hour, declining his invitation to come with him to his house. This was confirmed by Ms. Sheppard’s testimony. After leaving her house, Wright testified that he returned home and went to bed, not awakening until 3:30 that afternoon.

Authorities arriving at the scene where the body was found gathered the available physical evidence. Plaster casts were made of tire tracks in the area and items located near the body were picked up for analysis. These included a small piece of black carpet, a length of car stereo speaker wire, and a hair found on the victim’s chest. Experimental techniques for lifting fingerprints from the skin of the victim’s body were unsuccessful. As the identity of the body was unknown, a set of the victim’s fingerprints was taken to aid identification.

An autopsy of the body was performed indicating strangulation by hand, rather than with a ligature, such as a rope or wire, as the cause of death. Vaginal washings showed the presence of semen from a type A secreter, indicating recent sexual intercourse with a person with blood type A. Blood samples taken from the victim were determined to be type O. The time of death could not be determined any more accurately than that the death occurred within a period of six or eight hours before rigor mortis set in.

The victim’s car was found underneath the overpass by three children who brought certain items from the car to their father. He called the police, and when the officer arrived gave him the items and told him where the car was located. The officer went to the car, finding it with the doors, trunk and glove compartment wide open. The front of the car had been driven into a ditch. The ashtray had been broken and the front seat was. stained with blood. There was a black blouse on the ground outside the driver’s side door and a pair of shoes and a black wig on the floor of the car under the steering wheel, partially covering the victim’s Louisiana driver’s license. The contents of a purse (papers, photographs, make up, etc.) were strewn both inside and outside of the vehicle. A sample of mud from the underside of the car was taken for analysis. The car was then sealed and delivered to the state crime lab.

Joe Wright testified that he heard news reports on Monday and Tuesday that an unidentified victim had been found strangled in the park but did not learn until Tuesday afternoon that the victim was Che-ryle Gaines. Realizing that he had been with her the night she died and wanting to get himself cleared, Wright sought the advice of a lawyer at the urging of friends before talking to the police. The lawyer he spoke with Tuesday evening arranged a conference with the police for Wednesday. Wright selected the defendant from a photographic display and complied with police requests for saliva, hair and blood samples.

Lenon Williams went to the New Orleans lakefront Sunday afternoon, but otherwise remained in Baton Rouge and, according to his parents, acted normally. He testified that he learned of Cheryle’s death on Tuesday afternoon from a neighbor. He went inside the house and discussed the problem with his sister’s boyfriend, who was a reserve deputy for the East Baton Rouge Parish Sheriff’s Office. His advice was to not worry about it; that if they wanted to see him they would find him. When the police came to find him Wednesday evening, he had gone to visit with his brother. His mother had told him that the police had been there to get a picture of him, but that he was not a suspect. On his way home, he saw his father driving and heard him blowing his horn, so he stopped and talked with him. His father told him that the police were looking for him, so he went home where the police were waiting. Lenon testified that his mother was very upset, so he held her to console her before the police took him downtown. Saliva, blood and hair samples were also taken from Lenon who was later released on bond.

The results of the tests conducted on the physical evidence were introduced by the prosecution. The inside and outside of the car, as well as the contents of the car, were checked for fingerprints. Of the forty-three prints lifted, twenty-five were unidentifiable, that is, of too poor quality or too incomplete to make comparisons. Of the remaining eighteen, eight were identified. A palm print of the defendant was found on the right rear fender; a fingerprint of Joe Wright’s left ring finger was found on the outside of the passenger’s side door; a palm print also on the right rear fender was identified as being Mary Smith’s, one of the children who found the car; the remaining identified prints belonged to the victim. Ten prints of identifiable quality did not match anyone known to have had contact with the victim’s car. Some of the unidentified prints were found on the inside of the driver’s side window, on the inside rear view mirror, on the heater/air conditioner temperature selector and on the outside of the passenger’s side door. The testimony did not indicate whether or not the unidentified prints were similar to each other. There were no prints lifted from Olympia Park where the body was found.

Saliva tests run on the samples provided by the defendant and Joe Wright indicated that each was of blood type A and that each was a secreter. Microscopic analysis of the hair found on the victim’s chest was similar to the hair of the defendant. The blood found on the front seat of the car was also type A. Thus, none of the tests performed excluded the defendant from consideration, though each test, had the result been different, would have excluded him.

The casts of the tire tracks were also analyzed and compared to the tires of the victim’s car. One of the casts could not be used as it was an overlapping tread — two tires having rolled over the same area. From the remaining cast, it was determined that the cast was of similar measurement and tread design as the tires on the victim’s car. A positive identification could not be made due to the lack of any “accidental markings” or irregularities in the cast that could have shown that a particular tire made a particular track. While the test could have indicated that a certain tire did not make a certain track, in this case the victim’s car was not excluded.

Mud samples from the victim’s car and soil samples taken from the tire casts were also compared and found to be not similar. There was no testimony on the conclusiveness of this test, that is, whether the car that made the tracks could be free of traces of the soil.

The state’s case is thus based on the physical evidence which did not exclude the defendant: he was the last one with the necessary physical characteristics seen alive with the victim (according to his own testimony and the testimony of another witness with the same characteristics); it was possible for him to have committed the crime since he could not confirm the time of his arrival at his home; and that the victim’s car was abandoned two tenths of a mile from his house. Thus the state’s case is built solely on circumstantial evidence.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that the Fourteenth Amendment’s due process guarantee required that a state criminal conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Reasonable doubt may be overcome by circumstantial evidence, thus fulfilling the requirements of due process. However, federal due process standards do not require that circumstantial evidence exclude every hypothesis other than guilt. Jackson v. Virginia, supra; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

Circumstantial evidence in Louisiana criminal convictions is held to a higher standard. 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.”

The Louisiana legislature has, through this statute, provided greater protection against erroneous convictions based on circumstantial evidence than is provided by the Fourteenth Amendment. There is a possibility that the quality of evidence supporting a conviction would satisfy Jackson v. Virginia, supra, but would not satisfy the requirement of R.S. 15:438.

In this case there is no direct evidence of any element of the crime charged, other than the fact that the crime was committed. We therefore need not consider whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the necessary elements of the crime beyond a reasonable doubt. Rather, the circumstantial evidence must be analyzed to determine whether it excludes every reasonable hypothesis of innocence.

The defendant testified that Cheryle dropped him off at his home and then left. There is no evidence that makes this hypothesis of innocence unreasonable; there was no evidence placing the defendant with the victim after that time nor was there any evidence suggesting that the defendant was the only one who could have committed the crime. The evidence that the defendant possessed the necessary physical characteristics does not make unreasonable the hypothesis that someone else with the same characteristics committed the crime, in the absence of evidence that the pool of people with such characteristics is small. In fact, the physical evidence does not exclude Joe Wright, also with the victim on the night she was murdered. In addition, the unidentified fingerprints in the car suggest that some unknown person might have been in contact with the car; the failure of the soil from the park where the body was found to match the soil under the victim’s car suggests that a second car might have been used to transport the body to the park.

The state, therefore, has failed to prove beyond a reasonable doubt that the defendant committed this crime; the circumstantial evidence relied upon by the state does not exclude every reasonable hypothesis of innocence.

Where there is insufficient evidence of the crime charged, the double jeopardy clause of the Fifth Amendment precludes a second trial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Hoffer, 420 So.2d 1090 (La.1982). A judgment discharging the defendant is therefore required.

For the reasons assigned, the defendant’s conviction and sentence are reversed, and the defendant is ordered discharged.

WILLIAMS, J., and BYRNES, J. Ad Hoc, dissent.

WILLIAM J. BYRNES, III, Justice Ad Hoc,

dissenting and assigning reasons:

I must respectfully dissent. The majority feels that because the lab tests performed on the physical evidence do not positively identify the defendant, other reasonable hypothesis of innocence are not ruled out. This is a factual conclusion with which I cannot agree. The fact that the victim was last seen with the defendant and that her car was found less than one block from the defendant’s home, combined with the fact that the lab tests failed to exclude the defendant from the class of possible suspects could, in my opinion, lead a rational trier of fact to the conclusion that every reasonable hypothesis of innocence was excluded. I would affirm the conviction.

LEMMON, Justice,

Concurring in Denial of Rehearing.

In my opinion the federal due process standard announced in Jackson v. Virginia is the applicable standard in reviewing the sufficiency of evidence. La.R.S. 15:438 is primarily a standard by which juries are instructed, while the Jackson standard is more properly the ultimate standard of appellate review, applicable in all cases, including circumstantial evidence cases.

Nevertheless, under either standard, the majority reached the correct result.

       Judges Charles R. Ward, William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . R.S. 14:30.1 provides:
      “Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . Many of the witnesses testifying to the events of April 18 and 19 estimated the times when events occurred and the length of time that the events took, such as driving from one place to another. Many estimates were reconstructed later based on the lightness of the sky and weather bureau information that sunrise on April 19, 1981 occurred at 5:33 a.m. Accurate times were known by the jogger who carried a watch and by the defendant’s parents who receive a wake-up call every Sunday morning at 6:45 a.m. from defendant’s grandmother preparing to leave work.

      . A secreter is a person whose blood type can be determined from other body fluids such as saliva and semen. Expert testimony indicated that approximately 80% of the population are secreters. There was no testimony on the percentages of the population with the various blood types.

      . There was no direct testimony offered to establish the time the muscles of the body became rigid. Hiller Moore, who arrived at the scene at about 8:30 a.m., testified that when he took a set of the victim’s fingerprints, approximately two to three hours after he began his ■investigation, rigor mortis had not yet set in, though the fingers had begun to curl and stiffen.

      . The police officers testifying as to the chain of custody of the car emphatically stated that the area where the car was found was sealed off from the moment the officers arrived on the scene, and that no one touched or was even allowed near the car.

      . The testimony did not indicate whether the hair on the victim’s chest was compared to the sample provided by Joe Wright. There was also no testimony concerning the percentage of the population that would have hair of similar characteristics nor any evidence indicating that the hair was tested against hair of the victim herself.

      .“Circumstantial evidence in this respect [overcoming reasonable doubt] is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in both instances, a jury is asked to weigh the changes that the evidence correctly points to weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 136, 99 L.Ed. 150 (1954).

      . The Jackson standard, as opposed to the standard set forth in La.R.S. 15:438, was relied upon by the Legislature in adopting La.C.Cr.P. Art. 821 (as enacted by Acts 1982, No. 144), which sets forth the standard for appellate (or trial) courts in receiving evidence for the purpose of a motion for a postverdict judgment of acquittal.


source: Caselaw Access Project

author: CALOGERO, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Clyde ROBINSON.
    No. 82-KA-0320.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., for plaintiff-appellee.
    Charles R. Brackin, Voelker, Ragland, Brackin & Crigler, Paul K. Kidd, Lake Providence, for defendant-appellant.
   CALOGERO, Justice.

Clyde Robinson appeals his conviction of negligent homicide (La.R.S. 14:32) and his sentence to five years at hard labor. He was charged by an East Carroll Parish grand jury indictment filed March 28,1979. After the jury selection was completed, the defendant elected to be tried by the judge alone who found him guilty as charged on August 5, 1981. He was sentenced to “five years without suspension or parole at hard labor.” Robinson urges eighteen assignments of error in support of this appeal.

We find merit only in assignment of error number 13 which complains that the sentence to five years at hard labor “without suspension or parole” was illegal. None of the remaining assignments of error present reversible error. Robinson’s conviction is affirmed; his sentence insofar as it is “without suspension or parole” is illegal. The case will therefore be remanded to the trial court for resentencing according to law.

In this opinion we will treat, in addition to assignment of error number 13, assignments of error numbers 2, 6, 8, 9, 10,11,12, 14 and 18; the latter are without merit. None of the remaining assignments of error (assignments of error numbers 1, 3, 4, 5, 7, 15, 16 and 17) present reversible error, nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an unpublished appendix which will comprise part of the record in this case.

The negligent homicide charge arose from the following facts. In the early morning hours of May 19, 1978, Robinson, a fifty-six-year-old black police juror for East Carroll Parish, went to the trailer of one Eartha Jean Lee, a young black woman with whom he had formed an eighteen month liason. He entered the unoccupied trailer and waited for Ms. Lee. Escorted by Ronnie Jones, Ms. Lee returned. When Robinson suddenly opened the door to the trailer, Jones excused himself and Ms. Lee entered the trailer. As the departing Jones turned the corner (approximately one block from the trailer), he heard the woman cry out, “Oh, Clyde!” followed by the sound of a shot. Ms. Lee was wounded by a bullet discharged from a .38 caliber pistol apparently brought into the trailer by Robinson. Robinson thereupon called the victim’s mother and told her that Eartha Jean had been wounded in a struggle over a gun. After Eartha Lee’s mother and sister arrived at the trailer, Robinson reiterated that he had not intended to kill her. When the police arrived, Clyde Robinson told a different story, narrating that the shot had been fired from outside the trailer while he and Ms. Lee were inside. Later that same morning, Robinson informed the sheriff that his original statement had been false; the evidence at trial does not indicate what if anything Robinson then further related concerning what had in truth occurred. The defendant made no further statement and did not testify at trial.

At trial the victim’s mother testified as to defendant’s statements concerning the struggle. Eartha’s sister declared that Robinson had made statements that the shooting had been accidental. Expert witnesses indicated that it would have been virtually impossible for the victim to have been holding the gun when it fired. Ronnie Jones in his transcribed testimony from the preliminary hearing, stated that he had heard Eartha Lee cry out before the shot. A medical doctor’s testimony supported that sequence of events; because of the heart wound inflicted by the bullet, she could not thereafter have cried out, according to the doctor. The sheriff testified that Robinson had admitted that his first statement accusing a third person outside the trailer had not been true.

ASSIGNMENTS OF ERROR NOS. 2 AND 6 DENIAL OF MOTIONS TO QUASH THE INDICTMENT

By this assignment Robinson contends that the trial court erred in denying his motion to quash the grand jury indictment for negligent homicide. Essentially defendant attacks the grand jury’s impanelling on March 28, 1979 and its proceedings thereafter; he also claims that his not being advised of his Miranda rights on the day he testified the second time before the grand jury is a ground to quash the indictment.

As earlier related in this opinion defendant had originally been indicted for first degree murder. While this earlier case was pending, Judge Cliff Adams voluntarily re-cused himself on November 22, 1978. On motion of defendant, that first degree murder indictment was later quashed. Basically there were no criminal charges pending against Robinson by the beginning of 1979. The misdemeanor charges of negligent injury and false imprisonment were dismissed on March 28, 1979.

The same judge, Cliff Adams, who had earlier recused himself from Robinson’s first degree murder case, ordered the grand jury which had been impanelled on February 5, 1979, into session on March 28, 1979, and he presided over the subsequent grand jury proceedings out of which arose the negligent homicide indictment.

Judge Adams had indeed been recused from the first degree murder case on November 22,1978. However, the first degree murder indictment which was the basis of the proceeding from which he was recused had been quashed on December 5, 1978. The new grand jury was then impanelled on February 5, 1979. It was this grand jury which is the subject of defendant’s allegations. Judge Adams ordered that the grand jury meet on March 28, 1979.

The trial court in denying defendant’s motion ruled that because the first charges against Robinson were dismissed, there was no relevant recusal outstanding on February 5, 1979 when the new grand jury was impanelled. Not having again been recused from any relevant case pending at the time, he had the power to order the grand jury into session. The Court also found that the order had been administrative only and not directed at defendant.

Defendant has not asserted a proper ground for quashing the indictment under La.C.Cr.P. arts. 532 or 533.

As to Judge Adams’ prior recusal and its effect upon his ordering the grand jury into session and his conducting the grand jury proceedings thereafter, we note that a recu-sal is limited to a “case.” La.C.Cr.P. art. 671(5). The Official Revision Comment in discussing the fifth ground of La.C.Cr.P. art. 671 notes that the word “case” is limited to the particular criminal prosecution at bar. The effect of granting the motion to quash the earlier first degree murder charge was to end that case.

Since the indictment for first degree murder had been quashed and the ruling was not stayed, the case from which Judge Adams had recused himself had ended. There was no provision of law which barred Judge Adams from ordering the grand jury back into session.

Robinson also contends that the grand jury indictment should have been quashed because he was not advised of his Miranda rights prior to testifying before the grand jury on March 28, 1979. Robinson admits that he was so advised when he first went before the same grand jury on February 6, 1979. However he was not so advised on March 28th.

The District Attorney testified that he “believed strongly” that he advised Robinson of his Miranda rights before he testified on March 28th. However, he could not produce a signed waiver form for that day, which was normally used on such occasions. The jury foreman could not remember if Robinson was read his rights on March 28th, but said he saw no reason why he should have been since Robinson had been so advised before his first appearance before the grand jury.

Apparently Robinson was not advised of his rights prior to his March 28th testimony before the grand jury.

Arguably the Miranda warnings given Robinson prior to his testifying before the grand jury on February 6, 1979, would obviate any problems in connection with his not having been so warned about six weeks thereafter when he appeared before the Grand Jury on March 28, 1979.

We really need not however, rely on this cleansing of the potential error in his not having been advised on March 28, 1979. Even assuming the defendant was improperly not given Miranda warnings on March 28th, the indictment is not subject to being quashed for that reason. La.C.Cr.P. art. 442 states that “no indictment shall be quashed or conviction reversed on the ground that the indictment was based in whole or in part on illegal evidence ...”

This same La.C.Cr.P. art. 442 proscription against quashing an indictment for the reason that it was based in whole or in part on illegal evidence also dictates our finding nonmeritorious defendant’s contention in assignment of error number 6 that the indictment should be quashed because it was predicated on the “perjured testimony of Ronnie Jones.” These assignments are without merit.

Defense assignments of error numbers 2 and 6 therefore lack merit.

ASSIGNMENT OF ERROR NO. 8 INTRODUCTION OF PRELIMINARY HEARING TESTIMONY

By this assignment, defendant contends that the trial court erred in permitting the state to introduce the transcribed testimony of Ronnie Jones, an absent witness who had testified at an earlier preliminary hearing. At the preliminary hearing conducted on the prior indictment for first degree murder, Jones testified that he had escorted Eartha Lee home from the bar the night she died. Upon seeing Robinson, Jones left. Rounding the corner on his way home, he heard Lee explain “Oh, Clyde!” followed by a shot.

Apparently Jones had on a different occasion recited a different sequence of events — the shot, followed by “Oh, Clyde!” The defense contends that Jones made contradictory statements on several matters after his preliminary examination testimony. The particulars as regards the ostensible contradictory statements do not appear in the evidentiary transcript. Ronnie Jones would likely have been more effectively impeached at trial than he had been at the preliminary hearing.

When testimony taken at a prior hearing or proceeding is to be used at trial, there must be an examination into whether there has been a violation of the defendant’s constitutional rights, particularly the right to confrontation under the Sixth Amendment of the United States Constitution and art. I, § 16 of the Louisiana Constitution. State v. Sylvester, 343 So.2d 1020 (La.1977). This Court, in State v. Hills, 379 So.2d 740 at 743-44 (La.1980), in discussing the admission of such testimony, stated:

It is well settled that, before testimony given at a prior hearing may be introduced in evidence at a subsequent trial, without offending the confrontation and cross-examination clauses of the federal and state constitutions, certain conditions must be met: (1) defendant must have been represented by counsel at the earlier hearing; (2) the witness testified under oath; (3) the witness was cross-examined or else there was a valid waiver of the right to cross-examination; (4) at the time of the trial, the witness (whether out of state or not) is unavailable or unable to testify; and (5) the state has made a good faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate. State v. West, 363 So.2d 513 (La.1978); State v. Kaufman, 304 So.2d 300 (La.1974), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976). (emphasis provided)

The first three conditions are easily met. We focus our inquiry on the fourth and fifth. We ultimately find that these conditions were satisfied in the instant case.

La.C.Cr.P. art. 295 states that the transcript of testimony by a witness who testified at the preliminary hearing is admissible “in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.” Defendant contends that the trial on the charge of negligent homicide was not a subsequent proceeding “in the ease,” as relates to the preliminary hearing on the original indictment of first degree murder, later quashed, and that he was denied his right to cross-examine Jones with a focus on the elements of negligent homicide. However, both charges arose from the same nexus of facts; the charge of negligent homicide was related to the same facts surrounding the first degree murder charge. The facts were identical; the presence of the witness Jones and what he saw and heard were relevant, though not crucial, to both charges. Defense counsel had ample opportunity to cross-examine the witness at the preliminary examination.

Although the requirement of identity of issues between the former proceeding and the trial on the merits may be required, State v. Augustine, 252 La. 983, 215 So.3d 634 (1968), this Court has interpreted that identity pursuant to sections of McCormick and Wharton to mean only a “substantial” identity of issues. State v. Sylvester, supra.

However, to use the transcript under La.C.Cr.P. art. 295, the court must find that “the witness is dead, too ill to testify, absent from the state, or cannot be found, and that absence of the witness was not procured by the party offering the testimony.” Therefore, genuine unavailability rather than simple absence from the state is the jurisprudential requirement to obviate constitutional confrontation problems. The United States Supreme Court in Ohio v. Roberts, 448 U.S. 56 at 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 at 613 (1980), stated:

The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purpose of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. [719] at 724-725, 88 S.Ct. 1318 at [1321-1322], 20 L.Ed.2d 255 (emphasis added). Accord, Mancusi v. Stubbs, [408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293], supra; California v. Green, 399 U.S. [149], at 161-162, 165, 167, n. 16, 90 S.Ct. 1930, [1936-1937, 1939], 26 L.Ed.2d 489; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

This Court in State v. Sam, 283 So.2d 81 (La.1973), utilizing the opinion of Barber v. Page, supra, applied the principles enunciated by the United States Supreme Court to a Louisiana prosecution. We stated that there must be a showing of a good faith effort to secure the witness’ presence before the testimony at a prior proceeding may be used at trial.

The state in the instant case did make attempts to secure the witness’ presence at trial. There were four attempts by the sheriff’s office to serve Jones with a subpoena at his grandmother’s house. Inquiries were made concerning his whereabouts. An investigator with the Louisiana Attorney General’s office located Jones in California living with his sister. The investigator called and spoke to the witness’ mother, who informed him that Jones was leaving that same day to work in Alaska; the name and location of the firm were not known to her. The investigator explained the situation, offered to arrange for a flight back to Louisiana for the trial, and left a message for Ronnie Jones to call. Jones did not return the call. When a second call was made to the same number, the recipient disclaimed any knowledge of Jones. The prosecution concluded that this amounted to deception; no cooperation was forthcoming. Two sheriff’s deputies and the state investigator testified that the absence of the witness was not procured by the state. (This is one of the prerequisites stated in La.C.Cr.P. art. 295.)

At trial the prosecutor testified that the state had not utilized the procedures under La.C.Cr.P. arts. 741-745 for obtaining witnesses from outside the state since he thought it would be a useless exercise after the state investigator’s first call to the mother and the deception involved in the second call. He thus felt that the address in California discovered by the investigator was apparently no longer the witness’ location. The circumstances of this case were unusual — Jones had been arrested for the crime initially, and had later been held as a material witness for the grand jury. The prosecutor thus felt that the deception implicit in the second telephone conversation showed that Jones would not cooperate. In his opinion Jones intended to run and perhaps with good reason. The prosecutor testified that any further attempts to locate the absent witness would have been useless. In the prosecutor’s opinion Jones had made himself unavailable.

Although the United States Supreme Court mandates a diligent, good faith effort by the state, “[t]he law does not require the doing of a futile act.” Ohio v. Roberts, supra, at 74, 100 S.Ct. at 2543, 65 L.Ed.2d at 613. The lengths to which the state must go to try to produce a witness is a question of reasonableness. California v. Green, 399 U.S. 149 at 189-190 S.Ct. 1930, 1951-1952, 26 L.Ed.2d 489 at 514, n. 22 (1970) (Harlan’s concurring opinion, citing Barger v. Page, supra).

Unlike the perfunctory attempts that were held not to constitute good faith efforts by this Court in State v. Jones, 325 So.2d 235 (La.1975) and State v. Sam, supra, the trial judge, in determining to admit the testimony, correctly found on the part of the state in this case a good faith attempt. We are unable to conclude under these unusual circumstances that the trial judge erred in her ruling in this regard.

We find this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 9, 10 AND 18 DENIAL OF MOTIONS FOR ACQUITTAL, DIRECTED VERDICT AND NEW TRIAL

By these assignments defendant contends that it was error for the trial court to deny his motions for acquittal, directed verdict, and new trial based on the grounds that the evidence was insufficient to sustain the conviction of negligent homicide. La.R.S. 14:32 at the time of the charged crime stated:

Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.

To prove criminal negligence the state must show that the defendant conducted himself with “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

Defendant contends that no evidence of negligent homicide was presented since nothing constituting gross negligence was shown by the state. Citing the pertinent cases, he states that if no evidence of the crime charged is found, this Court must enter a judgment of acquittal; he further declares that if the evidence fails to prove an essential element of the crime, the double jeopardy clause of the Fifth Amendment bars a second trial and therefore defendant must be discharged.

The evidence presented by the state, and upon which the trial judge relied in finding defendant guilty of negligent homicide, was the following:

The 56-year-old male defendant and much younger female victim were paramours; the victim was not home at her trailer residence at 2:00 a.m. since she had been out drinking; the defendant had gone to the victim’s trailer in the early morning hours carrying a loaded pistol; the victim returned to the trailer with a young male escort; the defendant, inside the victim’s darkened trailer, opened the trailer door; the young male escort departed; the victim entered the trailer; moments later the victim was heard to exclaim “Oh, Clyde!” followed by the sound of a shot; an expert testified that the bullet was discharged within eighteen to thirty-six inches of defendant’s chest and that the victim could not have held the gun and pulled the trigger; a pathologist stated that the victim was shot through the heart at a downward angle; defendant himself had called the victim’s mother and told her that Eartha had been shot during a tussle over a gun. When police arrived Robinson lied and later signed a fictionalized statement implicating a third person. Not until hours later, after another man had been arrested, did Robinson admit that the original statement was not correct.

Concerning sufficiency of evidence and circumstantial evidence, this Court just recently in State v. Graham, 422 So.2d 123 (La.1982) had this to say:

The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.

The trial judge found defendant guilty of negligent homicide upon the evidence presented by the state. She concluded that the evidence was sufficient under the foregoing standards to support a conviction for negligent homicide.

The state excluded every reasonable hypothesis of innocence. While there was no direct proof of murder or manslaughter (or precisely what took place in the trailer), there was, by the defendant’s own incriminating admission to the victim’s mother, the occurrence of at least an accidental shooting during a tussle over a gun. The least culpable state of affairs, and the one charged in the indictment and accepted by the trial judge as having been proven beyond a reasonable doubt, was the perpetration of negligent homicide since Mr. Robinson’s actions that night at the very least constituted criminal negligence. Since the shot came moments after the victim’s entry into the trailer, it is almost impossible to disassociate the shooting from the defendant’s grossly negligent entering of the victim’s trailer with a loaded pistol under heated emotional circumstance in the early hours of the morning.

We find that the trial judge did not err in finding sufficient evidence to convict of negligent homicide. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime of negligent homicide beyond a reasonable doubt.

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 11 ERROR IN THE PRESENTENCE HEARING

By this assignment Robinson contends that the trial court erred in the conducting of the presentence hearing. Defendant requested a presentence hearing on August 5, 1981; the hearing was actually held November 13,1981. Defense counsel contends that Robinson had not been noticed until that very day and that counsel had not been afforded the opportunity to view the pre-sentence investigation report until he had walked into the courthouse. However, counsel had brought along with him a written motion for a continuance claiming that the report contained false, prejudicial information which counsel was not prepared that day to rebut.

Robinson had known from the judge’s previous statements that the report had arrived at the time that the judge set the date for the hearing. The judge denied the motion stating that defense counsel had chosen not to come to examine it in order to prepare for the hearing. The jurisprudential cautions relating to presentence reports were heeded by the judge in this case: defendant had access to the report on which the sentence would be based; a hearing was held in which defendant was given an opportunity to deny or explain adverse information which was false or misleading even by means of calling rebuttal witnesses. See State v. Phillips, 391 So.2d 1155 (La.1980); State v. Richardson, 377 So.2d 1029 (La.1979); State v. Bosworth, 360 So.2d 173 (La.1978).

The granting or denying of a motion for a continuance is discretionary. La.C.Cr.P. art. 712. The denial of a continuance on grounds of counsel’s lack of preparedness does not warrant reversal unless specific prejudice resulting from the denial can be demonstrated. State v. Haarala, 398 So.2d 1093 (La.1981). Defendant has failed to demonstrate specific prejudice resulting from the denial; the trial court did not abuse its discretion. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 12 ERROR IN NOT FOLLOWING SENTENCING GUIDELINES

By this assignment defendant contends that the trial court erred in not following the sentencing guidelines of La.C. Cr.P. art. 894.1. The trial court must, of course, follow the procedures set out in La.C.Cr.P. art. 894.1. That statute requires that the trial court state for the record the factors considered along with the factual bases supporting those considerations in the judge’s decision to impose the particular sentence upon the individual. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Touchet, 372 So.2d 1184 (La.1979). Under the article the sentence must be individualized; the sentence must be adapted to the offender as well as the offense using specific factual determinations. State v. Jackson, 360 So.2d 842 (La.1978).

A review of the record indicates that the trial court adequately complied with the sentencing guidelines of La.C.Cr.P. art 894.1. Providing a factual basis for her sentencing considerations, the trial judge systematically reviewed every aggravating and mitigating circumstance set forth in the sentencing guidelines. The court found that the defendant had abused his considerable position and reputation in the community, that he had “shown a disregard of law and ethics” most clearly demonstrated by “being dishonest enough to let another man take the wrap (sic) for the crime,” that he had killed the victim due to jealousy which might well reoccur in the future. At the same time the court acknowledged that the defendant had held many prominent positions and he had been well respected in the community; the court noted his excellent references. In the court’s view, however, those considerations did not outweigh the fact that “[h]e killed Eartha Lee, and then he tried to throw the blame on an innocent man.” Finding that the defendant’s imprisonment would not be an excessive hardship to the family, the court stated that a lesser sentence would deprecate the seriousness of the crime. The record reflects that the trial court adequately considered the guidelines in particularizing the sentence to the defendant; the judge’s determinations and considerations appear in the record. This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 13 AND 14 ILLEGAL AND EXCESSIVE SENTENCE

By these assignments defendant contends that the trial court erred in sentencing him to an illegal and excessive sentence of five years “without suspension or parole at hard labor.” Five years at hard labor is the maximum statutorily allowed penalty for the crime of negligent homicide; under La. R.S. 14:32 there is no provision for sentencing without benefit of probation, parole or suspension of sentence.

Pertinent to a discussion of permissible sentence, however, is La.C.Cr.P. art. 893.1, enacted in 1981 and effective as of September 11, 1981, a date which followed the commission of this crime on May 19, 1978. La.C.Cr.P. art. 893.1 provides:

When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

Thus there are two provisions in article 893.1 which, if applicable to the 1979 conviction, would have bearing upon the sentence for a conviction of negligent homicide. If a firearm were used in the commission of the felony (negligent homicide) and when suspension of sentence is not otherwise prohibited, the court is mandated to impose a sentence which is not less than five years. The second pertinent provision is that imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

The trial judge took into account the legislative policy evidenced by La.C.Cr.P. art. 893.1 in sentencing in this instance. In imposing the maximum sentence of five years, which independently of article 893.1 was within her discretion, the trial judge alluded to the legislative policy enacted after the commission of this crime. That consideration on her part was not legally inappropriate; that consideration and many others were pertinent in the exercise of her sentencing discretion. Furthermore, the transcript does not indicate that she imposed the five year sentence because she felt that she was compelled to do so by article 893.1.

The trial judge exercised her broad discretion in sentencing the defendant to the maximum under the statute. Imposition of the maximum sentence was not grossly out of proportion to the seriousness of this crime. State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). The mitigating factors of the defendant’s age and his general community reputation as a law-abiding and hard working citizen do not reflect an abuse of discretion by the trial court in sentencing when weighed against the other circumstances of the case revealed in the presen-tence investigation. She decreed the statutory maximum. We conclude that she did not abuse her sentencing discretion; the sentence was not so disproportionate to the crime committed as to shock the Court’s sense of justice. State v. Bonanno, 384 So.2d 355, 358 (La.1980). Assignment of error number 14, therefore, lacks merit.

There is an aspect of this sentence, however, which is illegal. The trial judge was not at liberty to impose a sentence in excess of that provided in La.R.S. 14:32 notwithstanding that following the commission of this crime, the legislature in article 893.1 provided pertinently to such crimes (committed after its enactment) that the sentence not be suspended and the defendant not be eligible for probation or parole. The trial judge was not at liberty to impose such a sentence in this case simply because of the expression by the legislature after the commission of this crime.

Retrospective application of the “enhanced sentence” is prohibited by the Louisiana and United States Constitutional provisions prohibiting ex post facto laws. U.S. Const. Art. 1, § 9, La. Const, art. 1, § 23. The prohibition extends to the enforcement of any enactment which changes the punishment to inflict greater penalty than that authorized for the crime at the time of. its commission. Thus, legislation which passed after the crime could not be applied to persons convicted of the offenses that were committed prior to the enactment. State v. Curtis, 363 So.2d 1375, (La.1978); State v. Bullock, 263 La. 946, 269 So.2d 824 (1972). See also Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); In Re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890); State ex rel. Woodward v. Board of Parole, 155 La. 699, 99 So. 534 (1924). Accordingly, the sentence is illegal insofar as it is “without suspension or parole at hard labor.” See State v. Wilson, 362 So.2d 536 (La.1978); State v. Lindsey, 351 So.2d 1178 (La.1977).

The case will therefore be remanded to the trial court for resentencing.

Decree

For the foregoing reasons defendant Robinson’s conviction is affirmed. The sentence imposed is vacated and the case is remanded to the trial court for resentencing in accordance with law.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

DENNIS, J., concurs in part and dissents in part and assigns reasons.

DENNIS, Justice,

concurring in part and dissenting in part.

I concur in the remand of this case for resentencing. However, I dissent from the majority’s treatment of the use of the preliminary examination transcript at trial and from the approval of the trial judge’s reasons for imposing the substantial penalty upon the defendant.

There are few subjects, perhaps, upon which the United States Supreme Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Despite the literal language of the Sixth Amendment, however, the court’s cases have recognized the necessity for a limited exception to the confrontation requirement for the prior testimony of a witness who is unavailable at the defendant’s trial. In keeping with the importance of this provision in our constitutional scheme, however, the high court has imposed a heavy burden on the prosecution either to secure the presence of a witness or to demonstrate the impossibility of that endeavor. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the high court held that the absence of a witness from the jurisdiction does not excuse the state’s failure to attempt to compel the witness’ attendance at trial. In such circumstances, the government must show that it has engaged in a diligent effort to locate and procure the witness’ return. “In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Id., 390 U.S. at 724-725, 88 S.Ct. at 1322.

In this present case, I am simply unable to conclude that the prosecution met its burden of establishing Ronnie Jones’ unavailability. From all that appears in the record — and there has been no suggestion that the record is incomplete in this respect — the prosecution’s total effort to secure Ronnie’s attendance at respondent’s trial consisted of having a subpoena issued, but never served upon him, going to the witness’ grandmother’s house to look for him, and making a local phone call and two interstate calls to locate him. At least six weeks before the trial began, the prosecution was aware that Ronnie had moved away or had left the state; yet during that entire interval it made no contact with him. It is difficult to believe that the state would have been so derelict in attempting to secure the witness’ presence at trial had it not had his favorable preliminary hearing testimony upon which to rely in the event of his “unavailability”. The perfunctory steps which the state took in this case can hardly qualify as a “good faith effort”. In point of fact, it was almost no effort at all.

The prosecution has attempted to justify its failure to use the procedures under Louisiana Code of Criminal Procedure articles 741-745 for obtaining witnesses from outside the state on the grounds that its efforts would have proven unsuccessful. Surely the prosecution’s mere speculation about the difficulty of locating Ronnie or the chances of a successful subpoena in another state cannot relieve it of the obligation to make a good faith attempt. Although the rigor of their undertaking might serve to palliate a failure to prevail, it cannot justify a failure even to try. Just as Barber cautioned that “ ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff,’ ” 390 U.S. at 724, 88 S.Ct. at 1322, so too, the possibility of a defeat is not the equivalent of persuing all obvious leads and returning empty-handed. The duty of “good faith effort” would be meaningless indeed “if that effort were required only in circumstances where success was guaranteed,” Ohio v. Roberts, 448 U.S. 56, 80, 100 S.Ct. 2531, 2546, 65 L.Ed.2d 597 (Brennan, J., dissenting).

In addition, the trial judge refused to impose less than a maximum sentence because she thought defendant had wrongfully implicated the missing witness and might be involved in a similar crime in the future. However, the defendant, almost immediately, cleared all other persons by admitting that his initial version involving a third party was incorrect. Contrary to the trial judge’s reasoning, the facts do not suggest a likelihood of similar transgressions by the defendant in the future. The victim’s death in this case arose out of her extramarital relationship with the defendant. Insofar as the record discloses, the defendant, before this liason and its tragic end, had been an upright, law-abiding citizen and family man. Although it may never be possible for him to recover his former stature in the community, it is reasonable to presume that the defendant still possesses some of the qualities of self-discipline and industry which enabled him to become a prominent farmer and elected public official. In the absence of any specific contrary indication in the record, it is not reasonable to assume that the defendant, who is now 60 years old, will be likely to repeat the mistakes which brought forth these proceedings.

Accordingly, I respectfully concur in part and dissent in part.

      . Clyde Robinson was originally indicted by the Grand Jury of the Sixth Judicial District in East Carroll Parish on June 2, 1978 for the first degree murder of Eartha Jean Lee. On December 5, 1978, Judge Alwine Ragland quashed the indictment. Robinson was re-indicted on February 6, 1979, by the grand jury for negligent injury, false imprisonment, and criminal mischief. On March 28, 1979, the misdemeanor charges of negligent injury and false imprisonment were set aside. Robinson was indicted for the third time by the grand jury, for negligent homicide.

      . La.C.Cr.P. art. 435 states in pertinent part:
      The grand jury shall meet as directed by the court, or may meet at the direction of nine of its members, at any time and place within the parish.

      . La.C.Cr.P. art. 532 states:
      A motion to quash may be based on one or more of the following grounds: ■
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
      La.C.Cr.P. art. 533 states:
      A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:
      (1) The manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.
      (2) An individual grand juror was not qualified under Article 401.
      (3) A person, other than a grand juror, was present while the grand jurors were deliberating or voting, or an unauthorized person was present when the grand jury was examining a witness.
      (4) Less than nine grand jurors were present when the indictment was found.
      (5) The indictment was not indorsed “a true bill,” or the endorsement was not signed by the foreman of the grand jury.

      . La.C.Cr.P. art. 671(5) states:
      In a criminal case a judge of any court, trial or appellate, shall be recused when he:
      * its * * * *
      (5) Has performed a judicial act in the case in another court ....

      . It is, of course, true that defendant’s testimony before the grand jury cannot be used at his subsequent trial even for impeachment on cross examination except in a prosecution for perjury. See State v. Sheppard, 350 So.2d 615 (La.1977); State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Ivy, 307 So.2d 587 (La.1975).

      . McCormick, Law of Evidence § 257 (1972).

      . Ill Wharton, Criminal Evidence § 650 (1973).

      . The particular circumstances of each case must be considered. In State v. Jones, 261 La. 422, 259 So.2d 899 (1972), although subpoenas were not issued for the witnesses until the day before the trial, the belated and limited search was held to be reasonably diligent since the two witnesses were Norwegian seamen whose ship was not in port. See also State v. Green, 296 So.2d 290 (La.1974).

      . Circumstances involving the brandishing, “playing with” or seizing of a loaded gun are often the bases for negligent homicide convictions. See, e.g., the actual circumstances of State v. Herrod, 412 So.2d 564 (La.1982) and State v. Bradley, 414 So.2d 724 (La.1982), in which insufficiency of the evidence was not an issue. In State v. Brown, 339 So.2d 6, 7 (La.1976), this Court found that the test for criminal negligence was met in part by “defendant’s rash, wanton and reckless brandishing of the loaded pistol.... ”

      . The trial judge reasoned:
      The maximum sentence can be imprisonment at hard labor up to five years. The legislature of 1981 felt like there had been too many gun killings. And they set up a policy for this state that where the maximum sentence is five years or less, it is mandated for all crimes after the effective date of the act, that the maximum sentence be imposed. The court is aware of the fact that this crime was committed before the effective date of the act. But this is a policy of the legislature. And the court feels like it is not a bad policy for the court to follow. There have been too many gun crimes in this parish and through out the country. But especially in this area. And the court believes that it isnot (sic) a bad thing to impose the five years without suspension or parole at hard labor with the Department of Corrections.
      sf« * * ‡ *
      Let it be noted that the court is well aware of the fact that that law is not binding on this court. That is the policy setforth (sic) by the legislature.


author: CALOGERO, Justice.

text:
    L. Russell KEENE, II v. Warren S. WILLIAMS, et al.
    No. 82-C-1353.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      A.J. Gray, III, Camp, Carmouche, Palmer, Barsh & Huhter, Lake Charles, Mack E. Barham, Charles F. Thensted, Barham & Churchill, New Orleans, Oliver P. Stockwell, William B. Monk, Stockwell, Sievert, Viccel-lio, Clements & Hsaddock, Lake Charles, Greve Stafford, Jr., Stafford, Stewart & Potter, Alexandria, for applicant.
    Lemuel E. Hawsey, III, Anderson, Anderson, Steffes, Hawsey, Patrick & Stakelum, Baton Rouge, William Ledbetter, Bossier City, for respondents.
   CALOGERO, Justice.

In this litigation, plaintiff L. Russell Keene, in both the district court and the Court of Appeal, has secured a judgment rescinding the 1976 sale of an apartment complex by First Federal Savings & Loan Association of Alexandria (First Federal) to Bayou Partnership, and a judgment ordering First Federal to sell Keene the same property. Plaintiff’s lawsuit, filed six weeks after the First Federal sale to Bayou Partnership on June 21, 1976, was for specific performance of a contract by which First Federal had granted Keene a right of first refusal concerning the sale of the apartment complex.

The Bayou Wood Villa Apartments were built in Maplewood, Louisiana by Wilbert R. Wilder and Joseph H. Schaeffer. The construction of the apartment complex was financed by a loan from First Federal. When the apartments were completed in the latter part of 1974, the borrowers defaulted on the loan. In March of 1975, the borrowers executed an assignment of the rents and revenues in favor of First Federal. The project was then placed under the supervision of Henry C. Voorhies, a vice-president of First Federal.

Shortly thereafter, Keene, knowing of the financial difficulties associated with the project, contacted First Federal regarding the possibility of purchasing the apartment complex. Negotiations thereafter took place, wherein First Federal and Keene were trying to accomplish a sale of the property from Wilder and Schaeffer to Keene, with Keene assuming the First Federal loan, although perhaps, with loan terms for Keene more favorable than had existed for Wilder and Schaeffer.

On November 4, 1975, when it appeared at best questionable as to whether the sale was going to be accomplished, First Federal and Keene executed an agreement entitled “OPTION.” It was a two page contract consisting primarily of an agreement concerning Keene’s purchasing the complex under specified terms in the event the sale from Wilder and Schaeffer to Keene could be accomplished before December 30, 1975 and without the necessity of a foreclosure by First Federal. The contract also contained a paragraph dealing with the contingency that the sale before December 30, 1975 were not to take place and that First Federal were to foreclose. That paragraph provided:

If First Federal forecloses on the Bayou Wood Villa project. Mr. Keene will have the right of first refusal on purchasing and financing the project with First Federal.

When it became apparent that a conventional sale from Wilder and Schaeffer to Keene could not be accomplished before December 30, 1975 (mainly because of title problems resulting from Wilder’s and Schaeffer’s association with a partnership and Schaeffer’s bankruptcy petition), First Federal proceeded with the foreclosure. By this means, First Federal acquired the property on January 7, 1976. On January 20, 1976, Keene attached the property’s legal description to his November 4, 1975 contract with First Federal, and recorded the instrument in the conveyance records of Calcasieu Parish. On this same day, Voo-rhies wrote a letter to Keene, notifying him that First Federal would be soliciting offers for the complex and inviting Keene to submit a bid. Keene chose not to submit a bid, apparently believing that it might be more advantageous to allow First Federal to find another purchaser, and offer, and thereupon to consider exercising his right of first refusal.

Voorhies again wrote to Keene on February 13, 1976, soliciting an offer on the complex and advising him that “We are very willing to honor the terms of our confidential agreement with you, signed and dated November 4,1975.” In effect, First Federal was offering to sell Keene the property under the same terms earlier conditionally agreed upon.

In early April advertisements were run in several newspapers soliciting sealed bids on the Bayou Wood Villa Apartments. The bids were to be submitted by May 10, 1976. All bids received in response to this solicitation were rejected. However, because First Federal was anxious to sell the property, Voorhies contacted one of the bidders, J. Robert Adams, in an attempt to negotiate an acceptable sale of the property. Voo-rhies was eventually successful and there was signed, on June 4, 1976, an agreement for the sale of the property between First Federal and J. Robert Adams, acting on behalf of Bayou Partnership. The parties acknowledged in this agreement that the sale was subject to Keene’s right of first refusal.

On Monday, June 7, 1976, Voorhies arranged to have lunch with Keene in Lake Charles, Louisiana, where he personally delivered a letter notifying Keene of First Federal’s agreement with Bayou Partnership. A copy of that purchase agreement was attached. The letter, recognizing Keene’s right of first refusal, offered to sell this property to Keene for the identical price, terms, and conditions contained in the attached agreement. The letter further provided that Keene “must deliver the deposit in certified funds, along with an identical agreement executed by [him] ... [to] the office of our attorney, Paul E. Palmer ... no later than 5:00 p.m. on June 14, 1976.” After reading the letter, Keene asked Voorhies about the $3,000.00 he had earlier deposited with First Federal pursuant to the November 4, 1975 agreement. Voorhies then added a hand written postscript to the letter which provided:

If Russell Keene does not purchase the project, his $3,000 deposit will be returned. If he purchases the project according to the stated terms and conditions, the $3,000 will apply to the purchase price.

This postscript was initialled by both men.

The November 4, 1975 contract between First Federal and Keene, which did not blossom into a sale, had provided that First Federal’s mortgage loan to Keene would be in rem only. The First Federal — Bayou Partnership agreement did not so provide. Keene therefore contacted Voorhies on June 9, 1976 to inquire whether the mortgage securing the loan would be in rem. Voorhies initially responded that it would. But after discussing the matter with First Federal’s President, and upon realizing that the agreement with Bayou Partnership was not limited to in rem financing, Voorhies telephoned Keene later that same day and told him the financing would not be in rem, either with Bayou, or with him, should he exercise his right of first refusal.

On June 14, 1976, Keene met with Palmer. He inquired about the reference in the June 7th letter to a deposit of certified funds. After being unable to contact either Voorhies or Evans, First Federal’s president, Palmer informed Keene in writing that the reference to a deposit was in error since there was no requirement of a deposit in the agreement between First Federal and Bayou Partnership, (the agreement which had been attached to the June 7th letter). Thereupon, Keene requested an extension. Palmer extended the deadline for acceptance from June 14, 1976 to 5:00 p.m. on June 15, 1976.

On June 15, 1976, a letter was presented to Palmer, written by Thomas M. Bergstedt as Keene’s “attorney-in-fact,” and informing First Federal that Keene would respond to the June 7,1976 offer before 5:00 p.m. on June 23, 1976. Therein, Bergstedt noted that no time limit was set on Keene’s exercise of his right of first refusal granted in the November 4, 1975 contract. He discussed the problems Keene had had in comprehending the terms of the June 7, 1976 offer and the importance of “making a business decision for a substantial amount of monetary committment.” He concluded that it was reasonable for Keene to be allowed more time to consider the offer. First Federal did not immediately respond to this letter. But on June 21,1976, counsel for First Federal submitted a letter to Bergstedt stating that First Federal did not accept Keene’s unilateral extension and that steps were being taken to convey the property that very day. The property was in fact sold to Bayou Partnership that day, June 21, 1976.

On June 22, 1976, Bergstedt wrote Palmer advising him that as Keene’s “attorney-in-fact” he was accepting the offer to purchase the property on Keene’s behalf. Keene did not, however, execute a similar agreement to the Bayou agreement as was required by the June 7th offer, nor did he unequivocally agree to purchase the property on the same terms and conditions specified in the Bayou agreement. To the contrary, the concluding paragraph of that letter provided:

In accepting this tender, Mr. Keene does not waive any rights he may have to seek enforcement of prior agreements with First Federal savings & Loan Association of Alexandria.

The instant suit was filed by Keene six weeks later, on August 5, 1976. The trial court ruled that Keene was not afforded sufficient time to exercise his right of first refusal, that is, to accept First Federal’s offer of sale of the property. He found, therefore, that the sale to Bayou Partnership should be rescinded and that Keene was entitled to specific performance of the contract, i.e. to have the property conveyed to him. The Court of Appeal affirmed that ruling upon finding that the right of first refusal was valid, that specific performance was a permissible remedy for breach of the right of first refusal, and that Bayou Partnership’s argument that it had relied on the public records had no merit.

Petitioners, First Federal and Bayou Partnership, argue to this court that the Court of Appeal neglected to discuss the decisive issue in the case, that is, whether Keene timely exercised his right of first refusal by unconditionally agreeing to purchase the property for the same price and under the same terms and conditions as provided in the contract to sell between First Federal and Bayou Partnership.

Petitioners’ main contention here is that the trial court erred in finding that Keene timely exercised his right of first refusal, or for that matter, that he exercised it at all. It is argued that no acceptance has ever been made of the offer to purchase the complex. The attorney, Bergstedt, who asserted that he was accepting the offer on behalf of Keene, never produced any written authorization evidencing his right to do so. Furthermore, they argue that there was never an unconditional acceptance or exercise of the right of first refusal because Keene reserved his right to seek enforcement of the November 4, 1975 contract terms which were more favorable, and he did not execute an agreement identical to the Bayou Partnership agreement as was required. In the event that this Court finds that there was an acceptance, they contend that the acceptance was untimely, coming as it did after the 5:00 p.m., June 15th deadline and one day after the sale of the property to Bayou Partnership. In the lower courts it was argued that the right of first refusal granted in the November 4, 1975 agreement was invalid because it did not provide a specified time within which it had to be exercised.

Keene, on the other hand argues that the right of first refusal was valid, and that he was not given a reasonable amount of time to exercise it. He contends that the terms of the June 7th offer were unclear, and not clarified until June 14, 1976. First Federal gave him only 24 hours in which to exercise his right after clarification of the “ambiguous” June 7th offer. Thus he contends that the limit First Federal placed on the exercise of his right of first refusal was invalid and that he should have had a reasonable amount of time after the clarifications to make his decision. He argues that his promise to inform First Federal by June 23, 1976 was reasonable and that First Federal violated his right of first refusal by selling the property on June 21, 1976.

There are several legal issues involved in this case, any one of which might, favorably to relators, be dispositive. Pretermitting consideration of the other issues, we find most compelling petitioners’ argument that Keene did not timely accept the offer.

The initial agreement between Keene and First Federal, dated November 4, 1975, granted Keene a right of first refusal. A right of first refusal, also referred to in the Civil Law as a pacte de preference (right of pre-emption) is the option and preferred right to buy property at the price offered by a third party in the event the owner desires to sell it. S. Litvinoff, Obligations §§ 104 & 108 in 7 Louisiana Civil Law Treatise 187,198 (1975).

The November 4th agreement did not specify a time within which the right had to be exercised were Keene to be presented a copy of a bona fide agreement along with First Federal’s offer to sell to him the property on those same terms and conditions. For purposes of this discussion, we will assume that the absence of such a specified time does not invalidate the underlying obligation (under La.C.C. Art. 2462) and that there was in the agreement an implied condition that Keene would be given a reasonable amount of time under the circumstances to either accept or reject the offer.

Thus, the question presented for our determination is, considering all of the circumstances, what was a reasonable amount of time for Keene to decide whether to accept the offer, and/or, was the time afforded him here reasonable.

It seems that at the outset, there was some disagreement or perhaps misunderstanding, about exactly what rights Keene had been afforded under the November 4, 1975 agreement. First Federal may initially have been under the impression that they were simply compelled to offer the property to Keene after their acquisition by foreclosure for the same price and under the same terms and conditions set out in the November 4th agreement. Keene, on the other hand, was acutely aware that the right of first refusal would afford him more than simply the right, or opportunity, to negotiate a purchase of the property under the price and terms contemplated in the November 4th agreement. He explained:

I had a right of first refusal. Why should I negotiate with First Federal? I let them do all the negotiating. All I had to do was either decide or reject .. whatever figure they negotiated with someone else ....

Presumably Keene took this position based on the belief that by being patient he might be able to get the property at a better price or under better terms and conditions. He knew that First Federal was anxious to sell the property and resume the role of a mortgage creditor with a loan not in default.

However, when First Federal did finally negotiate a deal with Bayou Partnership it was not, as Keene had expected, on terms less favorable for First Federal than those in the November 4th agreement. Just the contrary, it was at a higher price and without in rem financing. It was at this point that Keene apparently took a different view of First Federal’s obligation under the November 4th agreement. By his actions, conversations and correspondence with First Federal, it seems that Keene was, at this point, of the view that he ought to be able to purchase the property according to the terms set out in the November 4th agreement. Rather than simply deciding whether he wanted to accept or reject the offer according to the terms set out in the agreement between First Federal and Bayou Partnership, Keene began negotiating with First Federal for the preferable November 4th terms.

Keene’s vacillation — taking the position that he had a right of first refusal when that position seemed more advantageous, and then dickering for the November 4th contract terms when that became more favorable — is apparently what contributed to his not exercising his right of first refusal within the 8 days afforded him by First Federal.

Irrespective of how the parties may have chosen to interpret the agreement of November 4th, once First Federal had to foreclose, that agreement did nothing more than grant Keene a right of first refusal, that is, the right to purchase the property at the price and terms offered by a third party in the event First Federal chose to sell it. At the time First Federal made the offer to Keene, to sell Keene the property in accordance with the agreement First Federal had with Bayou Partnership, Keene did not then have the right to begin negotiating with First Federal for a better price or different terms. He was only entitled to decide either to accept or reject the offer as presented. We need simply determine whether Keene was given a reasonable opportunity to make that decision.

On June 4, 1976, First Federal entered into an “Agreement to Purchase and Sell” with Bayou Partnership. That agreement provided that Bayou Partnership would purchase the property for $780,000.00, $624,000.00 of which was to be financed with First Federal “at 8%% amortized at thirty (30) years and payable in fifteen (15) years with the final payment to be a balloon payment.” It further provided that the act of sale was to be passed on or before June 30, 1976, or within 26 days. The agreement was expressly made subject to Keene’s right of first refusal.

On Monday, June 7, 1976, Voorhies personally handed Keene a letter offering to sell the property “for the identical price terms and conditions contained in the attached agreement.” The agreement between first Federal and Bayou Partnership was attached to the offer. The offer further provided that if Keene chose to accept the offer he was to execute and deliver an identical agreement to purchase to First Federal’s attorney before 5:00 p.m. on June 14, 1976. Keene, not objecting to the fact that he was being given only seven days to accept the offer, had Voorhies add the postscript to the effect that Keene’s $3,000.00 deposit incident to the November 4th agreement would be returned to him should he “not purchase the project,” or alternatively “appl[ied] to the purchase price.”

Keene now argues that seven days was not a reasonable period of time for him to decide whether he would be able, and should choose, to purchase a $780,000.00 complex. He complains that it took him all seven of those days to clarify the terms of the offer. Once the terms were clarified he was only given 24 hours to accept or reject the offer.

The “clarifications” involved two matters. The first was whether the financing would be in rem. This question was prompted chiefly by the fact that the previous agreement Keene had with First Federal made provision for in rem financing.

Keene argues that the agreement was unclear on whether the financing was to be in rem or not because Bayou Partnership was described as being a partnership in commendam. He reasoned that since some of the partners in an in commendam partnership have only limited liability, then perhaps the financing was as a practical matter in rem. This argument is not persuasive.

Keene was either to accept or reject the offer in accordance with the identical terms of the agreement between First Federal and Bayou Partnership. That agreement did not provide for in rem financing. The limited liability of some partners in a partnership in commendam is irrelevant to the partnership’s financing arrangement with First Federal. The agreement did not provide for in rem financing and Keene was offered only the same terms as those in the agreement. Furthermore, even assuming that there was some confusion over this point, Keene contacted Voorhies about it on June 9, 1976 and, although originally told by Voorhies that it would be in rem, he was informed later that same day that the financing would not be in rem,,

The other clarification tliat Keene felt was essential to his decision concerned the fact that the June 7,1976 letter made reference to a deposit of certified funds. However, the agreement between First Federal and Bayou Partnership made no reference to a deposit of certified funds and Keene had only to execute an agreement identical to the Bayou agreement in order to accept the offer.

Therefore, although the letter reference to certified funds was a mistake, a review of the attached First Federal — Bayou agreement made that evident. Furthermore the error was clarified and resolved in Keene’s favor when he contacted First Federal about it on June 14, 1976, the last day he had within which to accept the offer. At that time he was informed of the obvious, that the reference to a deposit of certified funds was a mistake, as no such deposit was involved in the Bayou agreement, the terms of which were being offered Keene. At this time Keene made a request for an extension to further consider the offer in light of the “clarifications.” Keene was given an additional 24 hours, or until June 15, 1976 at 5:00 p.m.

Neither of these alleged necessary “clarifications” were of such a nature as to have seriously impaired Keene’s opportunity to decide whether to accept or reject the offer as presented. Under Keene’s right of first refusal, he had only to accept the same terms as were in the attached Bayou agreement. He could not be required to accept more onerous terms, but neither was he entitled to more favorable ones. That he chose to use -his decisional time frame for securing “clarifications” or negotiating more favorable terms was of his own making. We find that the seven days and 24 hour extension was not unreasonably short.

Keene lived near the property in question and was very familiar with it. He had examined the property sufficiently just six months earlier when he had determined that he was interested in buying the property. In fact, he had entered into an agreement concerning its purchase on November 4, 1975. Keene knew from the outset that First Federal was not interested in owning the property and was trying to avoid that eventuality. Once First Federal did acquire the ownership of the property, Keene was well aware of the fact that they needed to sell it as soon as possible and that they would be negotiating an acceptable sale forthwith. Keene himself was contacted in January and asked to make an offer. Again, in February, First Federal offered to sell Keene the property under the same terms that had been agreed upon in the November 4th agreement. Keene refused both these requests, believing that he could obtain a better price by waiting and forcing First Federal to find another buyer and then exercising his right of first refusal. Nevertheless, he was fully aware of First Federal’s interest in selling the property as soon as possible and that he would more than likely be presented with an offer under his right of first refusal within a short time.

When First Federal did finally receive an acceptable offer for the property on June 4, 1976, that offer was conditioned on the sale’s being closed within 26 days,.by June 30, 1976. Confronted with the need and desire to sell the property within 26 days, whether to Bayou Partnership or Keene, First Federal gave Keene a full eight days in which to accept or reject, a decision which would thereupon set in motion a short 18 day period for the title examination and preparation for the act of sale.

Finally, when First Federal did make the offer to Keene, giving him seven days (and later an eighth day) to accept it, Keene did not protest. In fact, it can plausibly be urged that Keene agreed to that time limit when he got Voorhies to add the postscript that Keene would be returned his $3,000.00 deposit if he did not choose to purchase the property. However, even discounting the possibility that Keene agreed to the seven day option period in return for the prospect of recovering his $3,000.00 deposit, the time afforded him was reasonable considering all the circumstances.

It is also relevant that Keene never did unconditionally accept the offer. The letter by Keene’s attorney on June 22, 1976, stating that Keene intended to accept the offer was not accompanied by an executed agreement identical to the Bayou agreement, as was required. To the contrary, it is obvious from that letter, that still, at that late date, Keene was attempting to procure the more beneficial terms of the November 4, 1975 agreement rather than accepting First Federal’s offer to sell him the property for the price and terms set forth in the Bayou— First Federal agreement.

We find that the eight days afforded Keene by First Federal to consider the offer to purchase the property according to the terms of the Bayou agreement was a reasonable amount of time under the circumstances. Keene did not timely accept that offer and, thus, no agreement to buy and sell took place. Accordingly, the lower courts erred in holding that the sale to Bayou Partnership must be rescinded and the property transferred to Keene.

Decree

For the foregoing reasons, the judgments of the lower courts holding that the sale to Bayou Partnership must be rescinded and the property transferred to Keene are reversed, and judgment is rendered in favor of Bayou Partnership and First Federal Savings & Loan Association of Alexandria dismissing plaintiff’s lawsuit with prejudice.

REVERSED AND RENDERED.

      . The terms of the agreement provided, among other things, that Keene would assume the loan in rem with a reduction in the interest rate to 7 and V2 percent for 30 years. (The Wilder and Schaeffer 30 year loan was at 8 and 'h percent.) Keene was to bring the principal and interest payments current through November 1975, and he was to give First Federal a demand note for $78,143.04, payable when Keene was presented with title insurance guaranteeing title to the property. The agreement also referred to a $3,000.00 “good faith deposit” which Keene had already paid, the deposit to be applied to the amount required to bring the loan current.

      . The Court of Appeal held that Keene had acquired a valid right of first refusal under the November 4, 1975 contract, relying on Crawford v. Deshotels, 359 So.2d 118 (La.1978). In Crawford we were confronted with the question of whether a right of first refusal was valid under La.C.C. Art. 2462 which requires that an option have a stipulated time within which it must be accepted or rejected. Therein we held that it was valid because the stipulated time was that point in time when the owner should choose to sell after receipt of a bona fide offer. In Crawford, however, the agreement further provided that after the owner decides to sell and receives a bona fide offer, and offers the property to the optionee, the optionee was to have thirty days to decide whether to accept or reject the offer. The instant case is distinguishable from Crawford because' there was no stipulated time in the November 4, 1975 contract within which Keene had to act on the offer should one be made to him. Therefore, resolution of this issue is not necessarily controlled by Crawford.

      The Court of Appeal did not address petitioners’ other contention that Keene has never unconditionally accepted the offer at all. And there was also the matter of “agent in fact” Bergstedt’s not having written authority to commit Keene to the purchase of real property.

      . Obviously, depending on the circumstances of the offer, what would be considered a reasonable amount of time could vary. For instance, if the offer were made after ten years one would assume that more time would be needed to consider the offer than if it were to be made closer in time to the original negotiations.

      . The reference to the deposit of certified funds was placed in a proposed letter to Keene at an earlier time when First Federal had thought it had secured a different buyer. When that deal fell through and First Federal closed the deal instead with Bayou Partnership, the earlier letter was amended and the reference to a deposit of certified funds was inadvertently left in the letter.