author: NESTOR L. CURRAULT, Justice Pro Tern.

text:
    STATE of Louisiana v. Mid SIMMONS.
    No. 81-KA-2262.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
    Joe J. Tritico, Lake Charles, James K. Nichols, De Ridder, for defendant-appellant.
   NESTOR L. CURRAULT, Justice Pro Tern.

Defendant Mid Simmons was charged by Bill of Indictment with the second-degree murder of Parham Johnson. After trial by jury, the defendant was unanimously found guilty of manslaughter. On June 19, 1981, he was sentenced to six years imprisonment at hard labor. The defendant now appeals on the basis of eight assignments of error as grounds for reversal of his conviction and sentence.

Factual Synopsis

The defendant and the victim, Parham Johnson, had been friends for several years, frequently socializing together. After the death of his wife, the defendant and Mrs. Johnson established a closer relationship, culminating in an affair, and at one time Mrs. Johnson had left her husband and stayed with the defendant for approximately a week. Parham Johnson was aware of his wife’s relationship with the defendant, but both he and the defendant maintained their friendship.

On October 15, 1980, Parham Johnson and his wife had been fishing. When they returned home, they decided to invite the defendant over to eat fish. The defendant came to the Johnson home, ate with them, and after dinner, Mrs. Johnson went to bed. The defendant and Parham Johnson remained on the front porch talking and drinking.

At some point during the evening, Mid Simmons left the Johnson home. He later returned and an argument ensued between the defendant and Parham Johnson, during which the defendant threatened to kill the victim. Both Mr. and Mrs. Johnson asked the defendant to leave. Apparently drunk the defendant refused, saying “I go where I please, when I please, and leave at the same goddamn time.”

After being threatened, Parham Johnson went inside the house to get his gun. The defendant went to his car, removed his shotgun from the back seat, and placed it on the roof of his car. Upon returning to the front porch of the house, Parham Johnson fired one shot which skipped across the hood of the defendant’s vehicle and struck Mrs. Johnson’s car on the fender. The defendant fired almost simultaneously, striking Parham Johnson in the face, mortally wounding him.

Assignment of Error No. 1

Defendant contends that the trial court erred in failing to advise the jurors that they could take a recess during the course of their deliberations. Defense counsel concedes, in brief, that there is no statutory authority or Louisiana case precedent in support of his argument. Additionally the record reveals there was no contemporaneous objection lodged by the defense to the length of the deliberations.

The minutes reflect that the jury retired to deliberate at 4:20 p. m. on April 30,1981. At 5:00 p. m. and 10:30 p. m., additional instructions were requested. At 11:45 p. m. they returned with the guilty verdict. It is significant to note that although instructed that they could communicate with the trial court, the jury never requested a break from their deliberations.

The length of time of jury deliberation is a matter directed to the discretion of the trial judge and without more, it cannot constitute coercion. U. S. v. Caracci, 446 F.2d 173 (5th Cir. 1971) cert. den. 404 U.S. 881, 92 S.Ct. 202, 30 L.Ed.2d 162. In State v. Williams, 341 So.2d 370 (La.1976), this Court held that requiring deliberation without break during a normal lunch period, by itself, presented no indication that the jury’s verdict was improperly influenced. There is nothing in the record to indicate that the verdict was rendered as a result of any coercive influence of the court.

Assignment of error No. 1 is without merit.

Assignment of Error No. 2

In this assignment, the defendant contends that the trial court erred in instructing the jury that in order to reach a verdict, ten of the twelve must agree.

Although the defendant acknowledges that the trial court’s charge was derived from Louisiana Code of Criminal Procedure Article 782(A), he contends that said statute violates his rights to due process and equal protection as guaranteed by the Fifth and Fourteenth Amendments.

This Court, in State v. Jones, 381 So.2d 416 (La.1980), previously considered this argument. Noting decisions of the United States Supreme Court upholding the use of non-unanimous verdicts in cases involving twelve person juries this Court held:

Defendant’s contention that Burch implies that the verdict of a twelve person jury must also be unanimous is belied by the opinion itself, which specifically indicates that the unanimity required of a six person jury is a function of its reduced size.

Assignment of error No. 2 is without merit.

Assignment of Error No. 3

By this assignment, the defendant asserts the trial court erred in denying the defendant’s first motion for a new trial which alleged the jury’s verdict was “contrary to the law and the evidence” in that the undisputed physical evidence adduced at trial established that the defendant acted in self-defense.

The evidence adduced upon trial of the case established that the defendant left the Johnson home at some point during the evening. He later returned and threatened to kill Parham Johnson while arguing with the victim on the outside porch. Both Mr. and Mrs. Johnson told the defendant to leave the house and he refused saying “I go where I please, when I please and leave at the same goddamned time.”

After being threatened, Parham Johnson went inside his home to retrieve his gun. The defendant went to his car to secure his gun, thereafter placing it on the top of his car. The defendant asserts that the victim fired two shots, the first shot striking the bumper of a car, and only after the second shot was fired did he return fire striking the victim in the head. Other witnesses contradict this testimony, indicating two shots were fired almost simultaneously. After the incident the defendant remained on the scene and told several bystanders “I killed the no good son of a bitch.”

Although it is the burden of the State to prove beyond a reasonable doubt that a homicide was not committed in self-defense, State v. Collins, 306 So.2d 662 (La.1975); Louisiana Revised Statute 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

The testimony establishes: that (1) the defendant left and returned to the Johnson home to initiate an argument; that (2) during the argument he was asked to leave the house and refused to do so; that (3) he threatened the victim’s life; that (4) he armed himself in full view of the victim; and that (5) he did not at any time indicate a withdrawal from the conflict.

Even assuming that the victim fired first, applying the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), sufficient evidence was adduced at trial to establish the defendant as the aggressor in the dispute and thus preclude him from asserting a self-defense justification.

Assignment of error No. 3 is without merit.

Assignments of Error Nos. 4 and 5

By these assignments, the defendant contends that the trial court erred in denying defendant’s second motion for a new trial based on newly discovered evidence.

The newly discovered evidence on which the motion was based was an admission by Mrs. Johnson that she had committed perjury during the trial and an allegation that the assistant district attorney had threatened her prior to trial to prevent her from testifying freely.

At the hearing on the motion for a new trial, Mrs. Johnson repudiated portions of her trial testimony. She testified that the assistant district attorney, David Burton, had intimidated her into testifying that the defendant had left the Johnson household and returned and that she had asked the defendant to leave her house. She further testified that she attempted to tell Mr. Burton of her husband’s drinking habits and he refused to listen.

Mr. David Burton, the assistant district attorney, testified that he had met with Pauline Johnson once prior to trial during April of 1981, and once after her testimony had been elicited by the State but prior to being called as a defense witness. He denied any intimidation of Mrs. Johnson. His version of the interviews was substantiated by an investigator who was present during both sessions.

Pauline Johnson’s statement given to Beauregard Parish deputies on October 18, 1980, three days after the shooting, stated that the defendant left her home and later returned. Her testimony, at the trial of this case, was to the same effect. This testimony was corroborated by that of her daughter, Sandra Simmons, who testified she saw the defendant’s vehicle leaving the Johnson home, and that it was later when she heard the shots.

The October 18, 1980 statement likewise indicates that Mrs. Johnson asked the defendant to leave her home. Her testimony at trial was the same. Further, nearby neighbors, Derwood Causey and Rachel Meirs, testified they heard both Mr. and Mrs. Johnson requesting the defendant to leave their home.

Recantation of trial testimony should be looked upon with the utmost suspicion. State v. Spell, 399 So.2d 551 (La.1981); State v. McDonald, 387 So.2d 1116 (La.1980).

While an effort was made to support Mrs. Johnson’s recantation of her trial testimony by allegations of prosecutorial intimidation, the corroboration was also found incredible by the trial judge.

The statutory motion for a new trial, Louisiana Code of Criminal Procedure Article 851, provides in pertinent part:

The court, on motion of the defendant, shall grant a new trial whenever: .... (3) New and material evidence that notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during trial, is available, and if the evidence had been introduced at trial it would probably have changed.

The test to be applied in considering a motion for a new trial based upon newly discovered evidence is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial. The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980); State v. Tyler, 342 So.2d 574 (La.1977).

Pauline Johnson, from the beginning was a victim of divided loyalties. She had been intimate with the defendant and had once left her husband to stay with him. Her husband knew of the relationship with Mid Simmons and such was the source of the dispute between them on the night of the shooting. After her husband’s death she had also been seen in the company of the defendant.

Upon consideration of the facts of this case, we cannot say the trial judge abused his discretion even if Pauline Johnson would testify in the manner indicated at the hearing on the motion for a new trial. It is the opinion of this Court that there is too much evidence contradicting her new version of the events of October 15, 1980, contained in the record for the verdict to be affected.

Assignments of error Nos. 4 and 5 are without merit.

Assignment of Error No. 6

By this assignment, the defendant contends the trial court abused its discretion in sentencing the defendant by failing to follow the sentencing guidelines as provided for in the Code of Criminal Procedure Article 894.1 or the recommendation of the victim’s wife that the defendant should not be confined. On June 19,1981, the defendant, while facing a possible maximum of twenty-one years, was sentenced by the trial judge to six years at hard labor.

A review of the record in this case reveals that the trial judge was extremely thorough in particularizing the sentence considering each and every aggravating and mitigating factor listed in Article 894.1 with respect to its application to the defendant.

The judge noted the defendant was seventy-one years of age, a lifelong resident of the parish, and a widower with one grown daughter. He further took cognizance of the fact that the defendant had a stable work record with no prior criminal history. Although medical problems were mentioned, the trial judge observed that most were the product of age and not illness.

Notwithstanding the defendant’s status as a first offender, the trial judge felt suspension of sentence was not warranted by the facts and circumstances of the case and the subsequent conduct of the defendant.

Reiterating the facts of the case, the court noted that the defendant expressed no remorse for the killing. Evidence was also presented that the defendant continued to drink and while intoxicated had threatened witnesses in the case and even family members. In this frame of mind, the trial judge concluded, the defendant would not respond favorably to probationary treatment and showed substantial likelihood to commit other offenses.

Further, the subsequent conduct of the defendant expressed an attitude of disrespect for the court and its power to regulate the conduct of society by the exercise of its penal authority.

A portion of the court’s comments are excerpted below:

Because of course age is no defense, it is no justification. It does not mean when you reach a certain age level that you can go out and commit with impunity certain offenses ... that because one is getting up in years and because one does have some health problems, it is not a bar to penal consequences if there are factors that dictate confinement ... and I have concluded, Mr. Simmons, that in this case a sentence of imprisonment at hard labor is not only appropriate but necessary. This is not a case for suspended sentence or probation. A lesser sentence not involving imprisonment at hard labor would in my judgment unduly depreciate or deprecate the seriousness of your crime. As I have already said several times, you took a human life when you didn’t have to.... Parham Johnson may not be helped and will not be helped by the action I take here today, but it will — what action I take, Mr. Simmons, while a difficult one for me, will in my best judgment uphold the law of the state of Louisiana and will, in effect, punish you, make you pay a price, for having taken Parham Johnson’s life. And it will let other people know in Beauregard Parish that there is a penalty of substance if a person commits that kind of act in this parish, even though he may be an elderly person, even though he may be a person who lived for many years as a good solid citizen.

As a general rule, a sentence. is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355, 359 (La.1980); State v. Gulden, 399 So.2d 194 (La.1981). Upon consideration of the trial judge’s articulation of reasons for sentencing and noting that the sentence imposed was well within the statutorily defined range, this Court cannot find the sentence grossly disproportionate to the severity of the offense or imposed merely for the purposeless infliction of pain and suffering.

Assignment of Error No. 7

By this assignment of error, the defendant asserts that the trial court abused its discretion in refusing to permit the defendant to remain on bail pending appeal.

Louisiana Code of Criminal Procedure Article 314 provides, in pertinent part:

Bail may be allowed after sentence and until final judgment if the sentence imposed exceeds imprisonment for five years except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person in the community.

In articulating the reasons for the sentence imposed, the trial judge made the following comments:

.. . That the character and attitude of the defendant indicate that he is unlikely to commit another crime. Well, this may be difficult to say. I would like to believe that that is altogether true, and yet I have difficulty with it, Mr. Simmons, frankly because of the seeming lack of concern, remorse, regret. At the trial you never indicated any kind of remorse, anything to indicate, even under the difficult circumstances that you said existed, that you were sorry you shot Parham Johnson.
... Also, there is evidence that you have continued to drink. I don’t know about in recent weeks or even in the last month or two, but there was evidence presented at the trial that the day you were arrested for murder of Parham Johnson that you were drinking and the District Attorney’s Investigator would not take a written statement from you but told you to go see your lawyer. Mr. Martin testified that you were drinking. This was a week give or take a day, after the shooting occurred. A few weeks after that shooting, you were stopped by a state trooper and law officers. They found you drinking in the car and driving.... James Simmons swore in the courtroom that you called and threatened him several times after the shooting and you told him, in effect, that if he didn’t watch his smart mouth that he would be the next one to leave there. Also your own daughter, Mr. Simmons, and her husband called the law in January 1981 and indicated some problems with you about your drinking and perhaps some statements you had made .... two officers got on this stand and swore that in January they were called out there because your daughter and her husband were concerned about what was going on at the time. I mention those things simply to indicate to you that I have, unfortunately, some reservations about whether or not you might likely commit some other criminal activity if you were put on probation. I suspect that, if you were not drinking, the chances of you doing anything precipitous involving harm to another person, someone who might have testified in this trial, someone else, would not be very strong. Drinking — I cannot say,I have confidence that you might not harm somebody. I hate to say that.

Based upon such evidence, this Court cannot say that the trial court abused its considerable discretion in refusing to grant bail to the defendant pending the outcome of this appeal.

Additionally, the issue of whether or not the trial court has improperly refused bail is neither properly nor timely raised on appeal. The correct procedure is to invoke the supervisory jurisdiction of this Court through Louisiana Code of Criminal Procedure Article 322.

Assignment of error No. 7 is without merit.

Assignment of Error No. 8

Defendant argues by this assignment that the trial court committed a breach of judicial decorum by engaging in abusive behavior directed toward counsel for the defendant, reflecting to the jury a predisposition against the defendant and thereby prejudicing the jury against the defendant.

A review of the transcript presented for appeal shows no evidence whatsoever which indicated the trial judge acted improperly, in any manner exhibited a personal bias against the defendant or expressed any opinion as to the guilt or innocence of the accused in the presence of the jury.

Assignment of error No. 8 is without merit.

DECREE

For the reasons assigned, the conviction and sentence of the defendant for the crime of manslaughter is affirmed.

       Judges Nestor L. Currault, Fred S. Bowes and Edward A. Dufresne, Jr. of the Court of Appeal, Fifth Circuit, participated in this decision as associate justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), ten jurors out of twelve; Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) nine jurors out of twelve.

      . Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).


source: Caselaw Access Project

author: FRED S. BOWES, Justice Pro Tern.

license: Public Domain

text:
    STATE of Louisiana v. William BARNES.
    No. 81-KA-2327.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Stephen Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Samuel S. Dalton, Jefferson, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, William Barnes, was convicted by a jury of first degree murder in violation of La.R.S. 14:30. He was sentenced to life imprisonment at hard labor, forty years of which were without the benefit of parole, probation or suspension of sentence. On appeal, defendant urges twelve assignments of error. Assignment of error number one was neither briefed nor argued, therefore it is considered abandoned.

On May 20,1979, at approximately 1:00 p. m., Emanuel Phillips, Jr. received a fatal gunshot wound to the chest while he sat in his parked car at the Villa D’ames Apartments in Jefferson Parish. The bullet entered the left side of the victim’s chest beneath the arm and passed through the lung into his heart. The window on the driver’s side of the victim’s car was shattered from the gunshot. Tommy Hollings-worth, a cab driver for Holly Cabs, had pulled into a driveway to the apartment complex when he heard a gunshot. Holl-ingsworth immediately looked up and saw the defendant thrust his hand inside the window on the driver’s side, while another man, subsequently identified as Junior Ba-zile, stood by the passenger door of the victim’s car. Hollingsworth then heard another gunshot. The victim exited the passenger side door and either grabbed Bazile or was grabbed by Bazile. Bazile jerked away and stated, “You done shot the son-of-a-bitch.” The defendant and Bazile then got into a Chrysler automobile and drove away, while Hollingsworth gave pursuit. Hollingsworth radioed for help on his dispatch radio as he followed the Chrysler, never losing sight of it.

When Officer Douglas Deauzat received a call over the police radio, relaying Hollings-worth’s dispatch, he subsequently spotted the two vehicles heading south on Estalote. The Chrysler being driven by the defendant was stopped approximately five minutes later. Deauzat never lost sight of the cab or the Chrysler. He instructed the two men to get out of the car, place their hands on the roof, and spread their legs. The defendant had a difficult time getting in this position and Deauzat noticed that the defendant’s left hand was bleeding. The defendant said that he thought he had been shot, but Deauzat believed that the injury looked more like a cut or a scrape. The murder weapon was never recovered and the witness, Hollingsworth, never actually saw the weapon itself.

Assignment of Error Numbers 2 and 3

By these assignments, defense counsel argues that the trial court erred in denying the defendant’s motion for a new trial based on insufficient evidence to sustain a conviction for first degree murder.

A convicted defendant’s attack on the sufficiency of the evidence is determined by whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Harveston, 389 So.2d 63 (La.1980).

The defendant was charged with first degree murder in violation of La.R.S. 14:30. Under this statute, as in effect at the time of the killing, the State was required to prove that the defendant had specific intent to kill or inflict great bodily harm when he killed the victim. When the evidence in this case is viewed in the light most favorable to the prosecution, it appears that the defendant fired one shot at the driver’s side of the victim’s car and then fired another shot from point-blank range at the victim. Hollingsworth’s identification of the defendant, instead of Bazile, as the man who reached through the window on the driver’s side, the coroner’s opinion that the fatal bullet entered through the left side of the victim’s chest, and the injury caused to the defendant’s hand, all tend to prove beyond a reasonable doubt that the defendant fired the fatal gunshot and, under the circumstances, that he specifically intended to kill the victim.

This assignment is without merit.

Assignments of Error Numbers 3 and 4

By these assignments, defendant contends that the trial court erred in denying his motion for a mistrial based on hearsay statements by a State witness which were not properly disclosed to defense counsel in discovery. Defendant submits that Holl-ingsworth’s testimony to the effect that he heard Bazile, immediately after the shooting, tell the defendant “You done shot the son-of-a-bitch” was an impermissible use of hearsay. He also alleges that the testimony-was in direct contradiction to the State’s answer to the Bill of Particulars.

Defense counsel objected to the testimony and, outside the presence of the jury, motioned for a mistrial, submitting that it was an impermissible use of hearsay and that the State failed to give proper notice that it intended to use the statement. The prosecutor argued that the statement constituted res gestae and that he had informed defense counsel of the existence of the statement. It was additionally argued by the State that the statement was admissible under the co-conspirator’s exception to the exclusion of hearsay.

Defense counsel then admitted that he was informed of the existence of the statement, but that a little girl—as opposed to Hollingsworth—was the person who heard Bazile say this.

The trial court denied the defendant’s motion, reasoning that any error caused by Hollingsworth’s spontaneous hearsay declaration would be harmless given the overwhelming evidence of the defendant’s guilt.

In our opinion, Bazile’s statement, immediately after the shooting, constituted res gestae as defined in La.R.S. 15:447 and 15:44s. The record indicates that Bazile’s statement was a spontaneous declaration made in conjunction with the killing. Therefore, the statement was admissible as part of the res gestae, even if testimony in court with regard to it was hearsay. State v. Kimble, 407 So.2d 693 (La.1981).

Additionally, there is no merit in the defendant’s contention that he was not given proper notice of the State’s intent to use the statement. Notice under La.C.Cr.P. Art. 768 is not required when the statement sought to be introduced forms a part of the res gestae. State v. Kimble, supra; State v. Lawson, 393 So.2d 1260 (La.1980); State v. Shelton, 377 So.2d 96 (La.1979). There was also no requirement that the State give notice under La.R.S. 15:455 and La.C.Cr.P. Art. 721 because the statements qualified for admission as res gestae under La.R.S. 15:447 and 15:448. Therefore, the State did not have to rely on the co-conspirator’s exception to the exclusion of hearsay. Since, in any event, defense counsel conceded that he was informed of the statement, the State did not err in failing to give formal notice of its intent to use the statement.

These assignments lack merit.

Assignments of Error Numbers 5 and 12

By these assignments, defense counsel argues that the trial court erred in denying defendant’s motion for a mistrial based on the withholding of exculpatory evidence from the defendant. Defense Counsel submits that the State’s failure to disclose the exculpatory results of a neutron activation test, which was conducted on the defendant’s hands, warranted a mistrial.

During pre-trial discovery, defense counsel requested the results of any tests or examinations which were conducted on the person or body of the defendant and whether any substance was obtained from such tests. In its answer, the State directed attention to its answer to another pre-trial discovery request which pertained to the autopsy performed on the victim. Defense counsel also made a general request for any exculpatory evidence.

During the course of trial, while Detective Steve Buras was under cross-examination, defense counsel became aware that certain tests might have been performed on the person of the defendant. Defense counsel moved for a mistrial and specifically complained of not being informed that the State conducted a neutron activation test on the defendant’s hands to detect the presence of gunpowder. He submitted that the test results were negative and therefore very exculpatory. The prosecutor admitted that there was an indication on his file that a neutron activation test was to be conducted, but he denied ever hearing of the results from these tests. He submitted that the ■results of the tests were unknown to him at the time he completed the answer to discovery and that he did not deliberately suppress exculpatory evidence. The trial court then deferred ruling on the defendant’s motion for a mistrial and defense counsel proceeded with the cross-examination of Detective Buras.

Defense counsel never questioned Buras as to the results of the test. On cross-examination, Detective Buras admitted that a neutron activation test was conducted on the defendant to detect the presence of antimony and barium, two gases emitted when a gun is discharged. However, he never testified as to what the actual results of the test were. At no time did defense counsel request a recess to discuss the test or the strategy of the case with the defendant, in light of this newly-discovered evidence. The trial court denied the defendant’s motion for a mistrial, citing State v. Pool, 361 So.2d 1202 (La.1978). The court found that the prosecutor inadvertently omitted references to the neutron activation test, that defense counsel was able to produce the results of the test to the jury during trial, and that the withholding of this evidence did only minimal damage in light of the other evidence against the defendant.

The Jefferson Parish Sheriff’s office received a written report from the F.B.I., dated June 14, 1979, wherein it was indicated that the results of the neutron activation test were either inconclusive or negative. The report also stated that the discharged firearm may not have deposited any gunshot residues on the hand or that these residues, if deposited on the hand, could have been removed by washing or wiping before the specimens were obtained.

In State v. Falkins, 356 So.2d 415 (La.1978), a case involving a request for specific exculpatory evidence, this court followed the United States Supreme Court test of whether the evidence created a reasonable doubt of guilt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. In light of the results of the neutron activation test in this case, it is unlikely that a reasonable doubt, which did not otherwise exist, would have been created in the minds of the jury. In fact, it is very doubtful that this evidence could be considered exculpatory, as defense counsel urges.

It is also important that defense counsel had ample opportunity to present this evidence to the jury. Instead, he chose not to question Detective Buras as to the test results during cross-examination. The defendant was also aware that such a test had been conducted on him, so it is questionable whether defense counsel was surprised at the existence of a neutron activation test. In light of these facts and the overwhelming evidence of guilt against the defendant, we feel the earlier disclosure of this evidence to the defendant would not, in any reasonable likelihood, have affected the judgment of the jury.

These assignments are without merit.

Assignments of Error Numbers 6, 7, 8, 9 and 10

By these assignments, defense counsel argues that the trial court erred in denying the defendant’s Motion For A New Trial, Amended Motion For A New Trial, Motion In Arrest Of Judgment, Motion To Produce Grand Jury Testimony and Written Statements Of State Witness, Tommy Holl-ingsworth, and failing to grant an eviden-tiary hearing on the defendant’s new trial motions. Defense counsel submits that he could have proved during an evidentiary hearing that Tommy Hollingsworth’s grand jury testimony contained no reference to the statement, “You done shot the son-of-a-bitch”, allegedly made by Bazile immediately after the shooting. He contends that the defendant was deprived of due process of law by the trial court’s refusal to allow him the opportunity to develop this critical impeaching evidence. Defense counsel further submits that the circumstances warranted an evidentiary hearing on the exculpatory value of the undisclosed neutron activation test.

As discussed in Assignment of Error Numbers 3 and 4, supra, we feel that Holl-ingsworth’s testimony, which credited Ba-zile with saying “You done shot the son-of-a-bitch” was neither an impermissible use of hearsay, nor introduced in violation of the notice requirements under La.C.Cr.P. Art. 768. Likewise, the propriety of conducting an evidentiary hearing to determine the exculpatory value of the neutron activation test was discussed in Assignment of Error Number 5. The only part of defendant’s argument which has not yet been addressed concerns his allegation that Holl-ingsworth did not testify at the grand jury hearing as to Bazile’s inculpatory statement directed toward the defendant, i.e., “You done shot the son-of-a-biteh.”

In State v. Prestridge, 399 So.2d 564 (La.1981), this Court restated the rule concerning secrecy of grand jury testimony, as follows:

“This court has consistently held that a defendant is not entitled to production of a transcript of the secret grand jury proceedings against him. LSA-C.Cr.P. Art. 434; State v. Sheppard, [350 So.2d 615 (La.1977)] supra, State v. Williams, 310 So.2d 528 (La.1975). The transcript of grand jury proceedings may not be used at trial even in the conduct of cross-examination. The purpose of this rule is not to protect a defendant or witness at a subsequent trial, but to encourage the free disclosure of information about crime.”

This Court has suggested that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) may require the disclosure of grand jury testimony favorable to the defendant and material to guilt or punishment. State v. Ford, 375 So.2d 641 (La.1979). In this case, however, we do not feel that the trial court erred in refusing to order the State to produce transcripts from the grand jury proceedings. The motion to produce the testimony was filed after trial and is, therefore, governed by the “reasonable doubt of guilt that did not otherwise exist” standard in United States v. Agurs, supra. The silence of Hollingsworth in front of the grand jury, with regard to the res gestae statement of Bazile, may have had some impeachment value for the defense. However, in light of the independent medical evidence and Hollingsworth’s eye-witness testimony that the defendant thrust his hand into the car just prior to the second shot, we feel the omitted evidence did not create a reasonable doubt that did not otherwise exist. United States v. Agurs, supra; State v. Falkins, supra.

The trial court was also not required to conduct an evidentiary hearing on whether Hollingsworth previously credited Bazile with the res gestae statements. In reaching its conclusion, the trial court could have reasoned that even if defense counsel could have established what it alleged in these post-trial motions, a new trial still would not be warranted.

Accordingly, these assignments are without merit.

Assignment of Error Number 11

By this assignment, defendant contends that the trial court erred in appointing defense counsel as defendant’s attorney because counsel had previously represented both defendant and his co-defendant. Defense counsel submits that since he had interviewed the co-defendant, Junior Bazile, and had advised Bazile not to testify under any circumstances, there was an inherent conflict of interest which deprived the defendant of effective assistance of counsel.

At no time before the defendant’s trial or after his conviction did defense counsel argue that there was a definite conflict of interest which warranted his withdrawing from representing both defendants. A review of the record indicates that he appeared to be willing to represent either client but wished to preserve some ground to appeal a ruling. A defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance to show ineffective assistance of counsel. State v. Franklin, 400 So.2d 616 (La.1981). Such a demonstration would be more properly made in a habeas corpus proceeding. In any event, the present record does not appear to present such a conflict of interest.

This assignment is without merit.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

DENNIS, J., concurs but would remand for a Brady-Agurs hearing.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Court of Appeal, Fifth Circuit and Walter I. Lanier, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . La.R.S. 15:447 provides:
      Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.
      La.R.S. 15:448 provides:
      To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

      . La.C.Cr.P. Art. 768 provides:
      If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

      .La.R.S. 15:455 provides:
      Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.
      La.C.Cr.P. Art. 721 provides:
      Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the state’s intent to use hearsay statements of coconspirators pursuant to R.S. 15:455.


author:
CALOGERO, Justice
     DENNIS, Justice,

text:
    STATE of Louisiana v. Terry HAYES.
    No. 81-KA-2466.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Ralph Roy, Asst. Dist. Attys., for plaintiff-appellee.
    Jeff Hollingsworth, John P. Calmes, Jr., Baton Rouge, for defendant-appellant.
   CALOGERO, Justice

In this appeal from his convictions on two counts of armed robbery, defendant contends that the trial judge erred in riot declaring a mistrial “based upon the systematic exclusion of blacks on the jury by the Assistant District Attorney’s use of his peremptory challenges,” and in denying his request for a repolling of the jury as to the verdict on Count III when it returned to the courtroom after further deliberations.

The East Baton Rouge Parish District Attorney’s Office filed a three count bill of information, charging defendant Terry Hayes, and one Harry Patterson, with three counts of armed robbery in violation of La.R.S. 14:64. The victims listed in the respective counts were Tony Oyefule, Da-ryle Oliver and Kelvin Simon. Following trial the jury acquitted defendant on Count I and convicted defendant by votes of eleven to one on each of the remaining counts. The judge imposed a sentence of twenty-five years at hard labor without benefit of probation, parole or suspension of sentence for each conviction with the sentences to be served concurrently. On appeal defendant argues seven assignments of error. Finding none meritorious, we affirm defendant’s convictions and sentences.

The armed robberies for which defendant was convicted occurred around midnight on January 6,1981, at a 7-11 convenience store located on Plank Road and a short time later at a National Food Store on Airline Highway. The victims of the robberies related the following.

Kevin Simon was working at the 7-11 store when Patterson and the defendant Hayes entered just before midnight on January 6, 1981. While defendant remained near the door of the store, apparently serving as a lookout, Patterson approached the cash register where Simon, the clerk, was standing. Pointing a cocked gun at Simon, Patterson demanded money. Simon began putting the money from the cash register into a paper bag. Patterson walked around the cash register and asked Simon what was in the drawers below the register. Simon responded that the drawers contained only papers. Patterson then asked whether Simon had any money and Simon parted with his billfold. Patterson handed the billfold back to Simon and instructed him to remove the money which Simon did. Simon gave the ten dollar bill from the billfold to Patterson. Defendant Hayes left his post at the door and came to the cash register. Hayes reached into the register and took out a two-dollar bill kept as “bait” money. Hayes told Patterson that it was time to leave. As the two walked toward the door, Hayes picked up Simon’s jacket, inspected it and threw it down. Before leaving the store, Hayes took some gloves and some sunglasses. After the two left, Simon reported the robbery to the police. A short time later, Simon identified the two who had been apprehended by the police.

Daryle Oliver testified that he was working the cash register at the National Food Store at 5940 Airline Highway in the early morning hours of January 7, 1981, when Hayes and Patterson entered the store. The two first went to the office. Finding the office vacant, Hayes and Patterson got in the check-out line. Hayes asked Oliver for a bottle of vodka. When Oliver went to the office to get the vodka, Patterson walked with him and stuck a gun in his side. Patterson warned Oliver to be quiet and told him to open the safe. According to Oliver, Patterson was “hollering for the hundreds and the fifties.” Oliver told Patterson that there were none. Patterson took the money that was in the safe and placed it in a bag he picked up from the office floor. Again telling Oliver to be quiet, Patterson stuck the gun in Oliver’s side and walked him out of the store. As Patterson and Oliver were leaving the store, Hayes joined them. The three walked only a short distance when Hayes said to Patterson, “Why don’t you let him go now? ” Patterson agreed. Free, Oliver returned to the store and called the police. The police quickly apprehended Patterson and Hayes and took them to the store where Oliver identified them as the men who had robbed him.

ASSIGNMENT OF ERROR NO. 1

As earlier noted defendant’s first assignment of error concerns the trial judge’s denial of a motion for a mistrial in which defendant alleged that there was a “systematic exclusion of blacks on the jury by the Assistant District Attorney’s use of his peremptory challenges.”

After the jury was seated and before opening argument defense counsel moved for a mistrial, noting that eleven members of the jury were white. One member of the panel and the alternate juror were black. Counsel informed the judge that the state had exercised fourteen of its peremptory challenges against blacks. The prosecutor responded that he had accepted four blacks, but the defense had excused three of them. In the view of the prosecutor, the fact that only one black was seated on the panel was because of the defense use of three of its peremptory challenges.

In State v. Brown, 371 So.2d 751, 753 (La.1979), this Court set forth the pertinent law when a defendant alleges racially discriminatory use of peremptory challenges by the state:

The majority of this Court has held that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is a systematic exclusion over a period of time; we impose upon the defendant the burden of establishing a prima facie showing of such exclusion. Once a defendant has done so, the state bears the burden of showing that there was no discrimination. State v. Bias, 354 So.2d 1330 (La.1978). In Bias, the Court noted its adherence to the test announced in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 959 (1965) in determining whether there was a systematic exclusion. In Swain, the United States Supreme Court held that a showing by the defense that peremptory challenges were used to exclude members of a minority in a particular case is not sufficient to establish a violation of the Fourteenth Amendment’s Equal Protection Clause. However, where defendant can show a systematic exclusion of the minority by the state over a period of time through its use of peremptory challenges a constitutional question is presented. Swain implies that defendant must demonstrate that the prosecutor continually and consciously uses peremptory challenges to exclude blacks because of their race, requiring that the record show “with [some] acceptable degree of clarity ... when, how often, and under what circumstances the prosecutor alone has been responsible for striking [the minority].” 380 U.S. at 224, 85 S.Ct. at 838. (emphasis in the original)

In the case under review, defendant presented no evidence of “systematic exclusion over a period of time.” The prosecutor in this case was Ralph Roy. Perhaps defendant thought that the fact that this Court has twice reversed convictions obtained by this particular prosecutor because those defendants proved he had excluded blacks from the juries in those cases and proved that he had systematically done so in the past was sufficient to establish a pattern of systematic exclusion for this prosecution. State v. Washington, 375 So.2d 1162 (La.1979); State v. Brown, supra. The trial in this case was held two years after this Court decided Washington and Brown. Defendant did not refer to those cases in argument in support of his motion. More significantly, defendant introduced no evidence to show that the prosecutor has continued a pattern of systematic exclusion of blacks from trial juries after having had convictions reversed on this ground.

The record in this case does not reflect the race of the prospective jurors. Nonetheless the state does not dispute, at oral argument or in brief, defendant’s contention that the prosecutor exercised fourteen of his eighteen peremptory challenges against blacks. Additionally, we note that defendant concedes that counsel for the co-defendant Patterson excused one prospective black juror who had been accepted by the prosecutor (the juror had worked for three years in the office of the District Attorney). Two other prospective black jurors accepted by the state were excused by counsel for defendant Hayes (the husband of one of them was employed by Louisiana Training Institute, a correctional institution, and the other was a self-employed businessman). Accepting that the prosecutor exercised fourteen of eighteen peremptory challenges against black prospective jurors and that he desisted from peremptorily challenging four blacks (and one black alternate), only one of whom (plus the black alternate) survived defense challenges, there is no prima facie showing that the prosecutor’s peremptory challenges of blacks were racially motivated, much less that he has done so consistently and systematically following trials in Washington and Brown. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant’s second assignment of error asserts that the trial judge erred when he allowed Kevin Simon to compare the serial number of a two-dollar bill with the number written on a slip of paper kept in the cash register at the 7-11 store.

Simon testified that a two-dollar bill was kept in the cash register as “bait” money and that Hayes took this bill during the robbery. When apprehended by the police, Hayes had a two-dollar bill in his possession. The prosecutor attempted to establish that the bill in Hayes’ possession was the one taken during the robbery. Simon said that a piece of paper with the serial number of the bill was taped to the bottom of the cash register drawer and that he had signed the paper the night of the robbery. When the prosecutor asked Simon to compare the number written on the paper with the serial number of the two-dollar bill taken from Hayes, defense counsel objected that the number on the paper was hearsay. Despite the fact that Simon admitted that he had not written the number on the paper and did not state that he compared the numbers before signing his name on the paper, the trial judge overruled the objection.

Hearsay is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Martin, 356 So.2d 1370 (La.1978). Hearsay may also be written evidence. State v. Farrar, 374 So.2d 1204 (La.1979). The witness’ testimony regarding the serial number appearing on the paper and the number’s purported correlation with the number on the stolen two-dollar bill was probably hearsay. However it is virtually certain that the substantial rights of the accused were not adversely affected (see La.C.Cr.P. art. 921) in light of the evidence of defendant’s guilt the state otherwise presented. The victim, Simon, positively identified defendant as one of the men who robbed him. Furthermore, when apprehended by the police, Hayes had in his possession sunglasses and gloves of the type which had been stolen from the 7-11 store.

This assignment of error is without merit.'

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant’s third and fourth assignments of error were reserved when the trial judge denied his motions for mistrial following references by policemen to another armed robbery.

Officer Dedon of the Baton Rouge Police testified that he “was standing by with Detective Brogan while he was questioning the clerk and, at this time the headquarters gave out — actually the fourth armed robbery and, ...” A short time later, Officer Kistler related that his investigation involving Patterson and Hayes took him to “a 7-11 on Maplewood ... and a 7-11 at the 5100 block of Plank Road, a National Food Store on ...” Following each of the above quoted testimony, defendant objected and moved for a mistrial, contending that the witnesses had made impermissible references to another crime.

La.C.Cr.P. art. 770 mandates a mistrial, upon motion of a defendant, “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: ... another crime committed or alleged to have been committed by the defendant as to . which evidence is not admissible.” (emphasis supplied)

In a recent case, this Court restated its position that a policeman is not a “court official” and therefore even if the policeman makes a reference to another crime, mistrial under La.C.Cr.P. art. 770 is not required. State v. Carter, 412 So.2d 540 (La.1982). Instead, the proper remedy would be upon request of defendant an admonition to the jury to disregard the remark. La.C.Cr.P. art. 771. In the instant case, defendant did not request an admonition for the first remark and refused the trial judge’s offer of an admonition for the second comment.

Furthermore, to trigger the need for an admonition the remark must refer to a crime alleged to have been committed by the defendant. Neither of the challenged comments is an unambiguous reference to crimes alleged to have been so committed. For these reasons, the trial judge did not err when he denied defendant’s motions for mistrial.

These assignments of error have no merit.

ASSIGNMENT OF ERROR NO. 5

By his fifth assignment of error defendant alleges that the trial judge erred in not repolling the jury as to Count III after the jury returned from further deliberations on Count II.

When the jury returned to the courtroom following deliberation, the foreman gave the verdict sheet to the clerk who announced that the verdicts were not guilty on Count I, guilty on Count II and guilty on Count III. Defendant requested that the judge poll the jury. Both a written and an oral poll showed the following: a unanimous not guilty vote for Count I, nine votes guilty and three not guilty for Count II and an eleven to one guilty vote for Count III. When the polling on Count II was being conducted, the foreman commented “Someone’s changed their mind.” When the polling was completed, the judge announced that the poll confirmed a not guilty verdict on Count I and a guilty verdict on Count III. The judge stated that the jury had not reached a verdict as to Count II and asked whether the jury wished to deliberate further on this count. The foreman responded in the affirmative and the jury retired. The jury returned to the courtroom and announced a finding of guilty on Count II. Defendant requested repolling of the jury as to Count II. The poll confirmed a guilty verdict by vote of eleven to one. Defendant then requested that the jury be repolled as to Count III and the trial judge denied the request, saying that the jury had already been polled as to that count.

La.C.Cr.P. art. 812 imposes upon the judge a duty to have the clerk “poll the jury if requested by the state or defendant.” The article continues in pertinent part:

If, upon polling all of the jurors, the number of jurors required by law to find a verdict answer “yes,” the court shall order the clerk to record the verdict and the jury shall be discharged. If, upon polling all of the jurors, the number required to find a verdict do not answer “Yes,” the jury may be remanded for further deliberation, or the court may declare a mistrial in accordance with Article 775.

The trial judge, upon defendant’s request, had followed the procedure directed by article 812, and polled the jury as to Count III (it confirmed a sufficient vote for conviction) before the jury returned for further deliberation as to Count II.

As to Count II, with a vote of nine guilty and three not guilty, the jury had not reached a verdict (notwithstanding that they had earlier announced that they had) and the trial judge had the authority to retire the jury for further deliberations. After the jury returned to the courtroom following these deliberations, the trial judge correctly ordered the jury polled as to Count II because no verdict had yet been reached as to that count.

Defendant’s argument essentially is that once the jury admitted to some confusion in the vote on Count II, there was a possibility that upon further deliberation (with the confusion on Count II resolved by an eleven to one guilty vote) there might have been a further resolution that the vote on Count III was nine to three or something less than the minimum ten to two required for conviction. La.C.Cr.P. art. 782. It was for this reason that he wanted a second polling on Count III.

A repolling of the jury as to Count III would surely not have been out of order. On the other hand, it was not required. The trial judge could well have concluded that at that point there was no more confusion. The foreman of the jury seemed particularly alert. During the initial polling on Count II he quickly interjected that someone had changed a vote and suggested further deliberations. When he returned to the courtroom announcing that the confusion on Count II had been resolved, without volunteering anything further as to Count III, it was apparent that there was no intention on the part of the jury to change the verdict on Count III, concerning which an earlier polling had confirmed an eleven to one conviction.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant’s sixth assignment of error is that the state did not prove venue beyond a reasonable doubt.

All trials shall take place in the parish where the offense has been committed unless venue is changed. La.Const.Art. I, § 16; La.C.Cr.P. art. 611. The state has the burden of proving proper venue beyond a reasonable doubt on the trial of the offense. La.C.Cr.P. art. 615.

Defendant correctly notes that the state did not ask the victims or other witnesses whether the offenses occurred in East Baton Rouge Parish. However, this does not necessarily mean that the state did not prove that the offenses occurred in that parish, for venue could have been shown in another manner.

When we review evidence in a criminal trial to determine whether the state proved its case beyond a reasonable doubt, we do so using the guidelines established by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That case instructs us to consider the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. Applying this standard to the allegation that the state did not prove venue, we must examine the evidence to determine whether a rational trier of fact could reasonably have concluded, beyond a reasonable doubt, that the crimes charged occurred in East Baton Rouge Parish.

Defendant argues that Airline Highway on which the National Food Store is located and Plank Road on which the 7-11 is located run beyond the limits of East Baton Rouge Parish and it is as likely that these stores are located outside that parish as they are within the parish. The state witnesses testified regarding the addresses of the stores robbed and placed these stores in their respective locations by references to nearby businesses and streets in the vicinity of the stores. Jurors must be residents of the parish in which they serve and must have lived in that parish for at least one year immediately preceding jury service. La.C.Cr.P. art. 401. Therefore, jurors are acquainted with the parish and will recognize the location of various businesses and streets. Defendants were apprehended by the Baton Rouge Police only a short distance from the stores where the robberies occurred. With this evidence before them, the jurors could reasonably have concluded, beyond a reasonable doubt, that the robberies took place in East Baton Rouge Parish.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant’s final assignment of error is that there was insufficient evidence to convict him of the robbery of Daryle Oliver at the National Food Store.

Again, the proper of standard of review is that of Jackson v. Virginia, outlined above. Concerning defendant’s complicity in the robbery at the National Food Store, the evidence shows that defendant and Patterson entered the store together and together stood in the check-out line, and that defendant requested the vodka which prompted the trip to the store office. Indeed, it was Patterson who followed the victim to the office and placed the gun at his side. However, as Patterson and the victim left the office and began walking outside the store, defendant joined them and walked with them. Further evidence of Hayes involvement is the fact that Hayes told Patterson it was time to let the victim go and Patterson complied. This evidence is sufficient to support the jury finding that defendant was guilty of armed robbery, at least as a principal, beyond a reasonable doubt.

There is no merit to defendant’s contention that there is insufficient evidence to sustain the guilty verdict on Count II, the robbery at the National Food Store.

Decree

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Because the record in this case does not reflect the race of the prospective jurors which were challenged peremptorily by the state, it is impossible to determine whether the challenges were exercised in an unconstitutional manner so as to “discriminate against a person because of race.” See Article 1, § 3 of the 1974 Louisiana Constitution.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr., and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson and Harry T. Lemmon.

      . The jury found Patterson guilty on all counts.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Stanley C. BRADLEY.
    No. 81-KA-2476.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Dale Cox, Robert W. Gillespie, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Howard M. Fish, & Jeanette Garrett, Shreveport, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Stanley C. Bradley was charged by bill of information with negligent homicide, in violation of R.S. 14:32. He pleaded guilty to the offense as charged and was sentenced to five years imprisonment, the maximum term allowed under the statute. Defendant now appeals his sentence alleging that it is excessive.

On December 25, 1980 defendant and the victim, Lendora Collins, were arguing at the victim’s residence when the victim was killed by a bullet that was discharged from defendant’s gun. Defendant fled the scene following the shooting, but subsequently turned himself in at the detective station and gave an oral statement. Defendant stated that he went to the residence— where he also resided — and removed the .22 caliber pistol from his pocket and placed it at the head of the bed. During the argument the victim grabbed the gun and, as defendant attempted to wrestle the gun away from her, it accidentally discharged. The victim was fatally wounded by a bullet that struck her in the mid-torso area. Defendant stated that he loved the victim and did not mean to kill her.

Also present at the residence at the time of the shooting were the victim’s two nieces, ages three and four, for whom she was babysitting. The four year old was interviewed; she stated that she saw defendant pull the gun from his pocket and heard the argument and the shot, but she did not see the actual shooting.

Defendant was arrested and charged with second degree murder. However, before presentment to the grand jury, the state permitted defendant to plead guilty to the lesser charge of negligent homicide.

Defendant contends that the trial judge, in pronouncing sentence, failed to comply with the sentencing guidelines set forth in C.Cr.P. 894.1. The basis of defendant’s contention is that the trial judge erroneously placed too much emphasis upon defendant’s prior theft conviction because the facts surrounding the offense were misunderstood by the trial judge.

The trial judge’s reasons for imposing sentence are an important aid to this court when called upon to review a sentence complained of as excessive. State v. Jones, 398 So.2d 1049 (La.1981); State v. Forshee, 395 So.2d 742 (La.1981). The trial judge is given great discretion in the imposition of sentences within statutory limits, and the sentence should not be set aside in the absence of abuse of his discretion. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979). Further, there is no requirement that the trial judge articulate every aggravating and mitigating circumstance under C.Cr.P. 894.1 if he adequately considers the guidelines in particularizing sentence to the defendant. State v. Jones, supra.

In the instant case, the trial judge noted that defendant had a record which included two prior possessions of marijuana. While the trial judge did not consider these offenses to be of a serious nature, he was of the opinion that the two separate charges tended to indicate defendant’s disregard for the law. More serious, the trial judge noted, was an earlier charge of armed robbery to which defendant entered a plea of guilty, to theft, and served ninety days in jail as a result. Finally, the trial judge observed that defendant was charged with second degree murder with respect to the instant offense, although he was permitted to plead guilty to the lesser offense of negligent homicide before the matter was presented to the Caddo Parish Grand Jury.

A review of the trial judge’s oral reasons for imposing sentence in this case reveals that he sufficiently complied with the guidelines set forth in C.Cr.P. 894.1. In light of defendant’s prior criminal conduct and the serious nature of the present offense, the trial judge did not abuse his great discretion in imposing the maximum sentence for the offense charged.

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

       Judges Israel M. Augustine and Philip C. Ciac-cio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated jn-this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author: BLANCHE, Justice

text:
    STATE of Louisiana v. Bessie L. BROWN.
    No. 81-KA-2496.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, III, Dist. Atty., Edward E. Roberts, Jr., Donald Johnson, Asst. Dist. Attys., for plaintiff-appellee.
    Eugene P. Cicardo, of Law Offices of Eugene P. Cicardo, James S. Gravel, of Gravel, Schley & Van Dyke, Alexandria, for defendant-appellant.
   BLANCHE, Justice

Defendant was indicted by a grand jury in Rapides Parish for the offense of manslaughter. At arraignment, she entered a plea of not guilty and not guilty by reason of insanity. A sanity hearing was conducted and the trial court determined defendant had the mental capacity to proceed to trial. After a bench trial, defendant was found guilty as charged and sentenced to six years at hard labor. She appeals this conviction based on eleven assignments of error; however, assignments of error numbers 8, 4, 5, 6, 7, 9 and 10 were neither briefed nor argued and are, therefore, deemed abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

Assignment of Error Number 1

In this assignment defense counsel contends the trial court erred in denying his motion for a continuance in order to assemble a new petit jury venire. This motion was made when defense counsel learned from the clerk that the seal on the petit jury venire box was broken.

The provision governing safekeeping of the venire list is C.Cr.P. art. 416, which provides in pertinent part as follows:

The commission shall place the slips bearing the names of the petit jury ve-nire for each week in a separate envelope. It shall seal each envelope and write thereon the words “Petit Jury Venire No. 1,” “Petit Jury Venire No. 2,” and “Petit Jury Venire No. 3.” Each envelope shall be placed in a box labeled “Petit Jury Box.”

This provision does not require that the petit jury venire box itself be locked or sealed in any manner. There was testimony indicating the box was customarily sealed; however, the parish jury commission officer stated that the box had been in the possession of one of the judge’s new employees who apparently did not know it was usually sealed upon return to the clerk’s office. The fact the seal on the box was broken did not necessitate a continuance to assemble a new petit jury venire unless there was an indication that the envelopes themselves had been tampered with.

The trial judge carefully inspected the sealed envelope containing the venire list and found it to be in good order and noted that the seal had not been disturbed in any way. Further, the deputy clerk of court who certified the envelope and signed it across the seal identified her signature and stated that it had not been tampered with.

C.Cr.P. art. 419 is also applicable and provides the following:

A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.

The jurisprudence allocates to the defendant the burden of establishing fraud or that some irreparable injury was caused by the selection process. State v. Liner, 397 So.2d 506 (La.1981); State v. Sheppard, 350 So.2d 615 (La.1977).

There is no indication that fraud was involved and the only injury alleged is that the broken seal influenced defendant’s selection of a bench trial instead of a jury trial because of concern that the contents of the box had been tampered with. However, this choice was made after the trial court determined that the integrity of the envelope containing the venire list had not been disturbed; therefore, this argument is not persuasive.

This assignment of error is without merit.

Assignment of Error Number 2

By this assignment defendant alleges the trial court erred in denying her motion for a continuance in order to reconstitute the venire list.

Defendant alleges it was detrimental to the defense when ten male proposed jurors were released by the court without explanation because it resulted in an imbalance of the ratio of men to women in the proposed jurors. To support this contention, it is argued that a number of men, but very few women, hold jobs which carry automatic exemptions; therefore, the release of an additional ten men deprived defendant of the chance to be tried by her peers.

The court is authorized to excuse a person from jury service either prior to or after his selection for the general venire, jury pool or jury wheel if such service would result in undue hardship or extreme inconvenience. The court may take this action on its own initiative or on the recommendation of an official or employee designated by the court. See C.Cr.P. art. 783(B). We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Sheppard, supra. The trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Edwards, supra; State v. Sheppard, supra. The defendant makes no allegation of fraud or collusion nor does the record give any indication of such; therefore, the court’s action in releasing the proposed jurors will not be disturbed.

This assignment of error is without merit.

Assignments of Error Numbers 8 and 11

By these assignments the defendant contends the state’s evidence was insufficient to establish that the killing was not committed in self defense. A defendant in a homicide prosecution who asserts that he acted in self defense does not have the burden of proof on that issue because the state bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Collins, 306 So.2d 662 (La.1975).

R.S. 14:20 reads in pertinent part as follows:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger...

The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moody, 393 So.2d 1212 (La.1981).

On December 24, 1979 at approximately 3:05 p. m., the Alexandria Police Department received a phone call from the defendant, who informed the police that she had just shot her husband. When the police arrived at their house, they found the defendant in the living room and the body of John Smith on the kitchen floor. She was arrested and taken to the police station. She gave a recorded statement at 4:35 p. m., giving the following account of the events which led to the shooting:

The defendant stated she got off work at the Pitt Grill at 7:00 a. m. and proceeded home after making a quick stop to pick up a six-pack of beer. Later in the morning, she and the victim went out to do some shopping and drinking. After several drinks at a local bar, the victim accused the defendant of sleeping with other men; however, he did not pursue the issue and they left without incident. When they arrived at their house, he allegedly accused her again of sleeping with other men and she stated that he got excited and grabbed her, whereupon she said, “You’re not going to hit me no more”, and picked up a gun from the table, shooting him four times. When specifically asked if the victim was coming toward her or sitting at the table at the time she shot him, she answered that he was sitting down and started to get up.

At trial, the defendant gave an identical account of the events leading up to the shooting; however, her depiction of the actual shooting varied in two important respects. At trial, she alleged for the first time that, prior to the shooting, the victim hit her in the stomach, which caused her to fall down and he then kicked her. She also contended that her original statement that the victim was seated at the time she shot him was in error and claimed that he was not sitting down when she fired the gun.

The defendant presented evidence to establish that the victim had beaten her in the past and also offered the testimony of Dr. Daniel Lanowski, a clinical psychologist. He stated that he believed the defendant acted in self defense; however, he said that his opinion was based in part upon the assumption that the victim did hit and kick the defendant prior to the shooting. He stated, “The probability would be less, I think, that she was acting in self defense if she had not been assaulted [that day]. I think that’s obvious.” He later added that the alleged attack immediately prior to the shooting was a big factor in his determination and, absent that factor, he would have to reconsider his opinion. In discussing the discrepancies between the two accounts of the shooting, he stated at one point, “I think we have the same dilemma, which one to believe.” The trial court may have accepted defendant’s original account of the event, which did not include any indication that the victim hit or kicked her.

The state also offered evidence to corroborate defendant’s initial statement that the victim was seated at the time she shot him. The pathologist who examined the victim testified that it was his opinion, based on the entry angle of the bullets, that the person who fired the weapon was standing above the victim. Other evidence introduced by the state indicates there was a door behind the defendant from which she could have exited the house. Even assuming the trial court did feel she reasonably believed she was in imminent danger, he may have concluded the defendant could have escaped the danger by fleeing the house rather than killing the victim. Although there is not an unqualified duty to retreat the possibility of escape is a recognized factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger. State v. Collins, supra; State v. Bailey, 261 La. 831, 261 So.2d 583 (1972); Reporter’s Comment, Subdivision (1) to R.S. 14:20. The trial court evidently accepted the state’s evidence, and this evidence would support the inference that (1) the defendant could not reasonably have believed she was in danger of losing her life or receiving great bodily harm; or (2) she could have saved herself from the danger without resorting to deadly force.

After reviewing the evidence in accordance with the standard set forth by the United States Supreme Court in Jackson v. Virginia, supra, and adopted by this Court, we find that the state did meet its burden of proof. Based upon the evidence presented at trial, a rational trier of fact could have found, beyond a reasonable doubt, that the state proved the homicide was not committed in self defense.

Accordingly, we affirm.

AFFIRMED.

       Judges Philip C. Ciaccio and Israel M. Augustine of the Fourth Circuit Court of Appeal and Judge H. Charles Gaudin of the Fifth Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . The defendant and the victim were not married; however, they were living together at the time of the shooting.


author:
FRED S. BOWES, Justice Pro Tem.
     WALTER I. LANIER, Jr., Justice Pro Tern,

text:
    STATE of Louisiana v. Everett SCHAEFFER.
    No. 81-KA-2535.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Michael McDonald, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert L. Kleinpeter, of Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tem.

The defendant, Everett Schaeffer, pleaded guilty to possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A), while reserving the right to appeal the denial of his motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve two years at hard labor and to pay a fine of $15,000. Subsequently, the two-year sentence was suspended. On appeal, defendant urges two assignments of error.

Assignment of Error No. 1

By this assignment, defendant contends that the trial court erred in denying his motion to suppress the evidence. The defendant argues that the affidavit supporting the search warrant was inadequate to establish probable cause.

The following information was contained in the affidavit for the search warrant: On April 22,1980, the affiant, Lt. M. C. Fourrier, of the Baton Rouge Police Department, was contacted by Officer Steve Raacke of the Hammond Police Department. Officer Raacke informed Lt. Fourrier that he had, on that day, arrested Everett Schaeffer and Felicia Grissom for possession of cocaine and hashish on their persons. Also discovered on Schaeffer was a key to room number 171 of the Ramada Inn in Baton Rouge, Louisiana. Lt. Fourrier further asserted that Ms. Grissom informed him over the telephone that there were additional quantities of the above substances still secreted in Room 171 of the Ramada Inn, and that the room was still under the control of both herself and Schaeffer.

The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) laid down the following two-prong test to be used when hearsay information is used to establish probable cause: 1) The magistrate must be informed of some of the underlying circumstances upon which the informant’s conclusions were based; and 2) the magistrate must be informed of some of the underlying circumstances from which the affiant concluded that the informant was credible or his information was reliable.

Defendant argues that Ms. Gris-som’s information failed the Aguilar test. However, this Court has held that when an informant’s statement fails to meet the “two-pronged test” in Aguilar, the affidavit may nevertheless be sufficient if there is enough information in the application to permit “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Tate, 407 So.2d 1133 (1981). Affidavits must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Mena, 399 So.2d 149 (La.1981).

The issue in this case is whether or not the information contained in the affidavit, coupled with the informant’s statement, was sufficient for the police to reasonably conclude that there were illegal drugs contained in the defendant’s motel room. Ms. Grissom admitted that there were additional quantities of cocaine and hashish in the Ramada Inn motel room. This was corroborated by the fact that the defendant had, on his person, a key to Room 171 of the Ramada Inn in Baton Rouge. Lt. Fourrier’s affidavit informed the court that the room was still under the control of Grissom and the defendant. The affidavit also stated that the defendant and Ms. Grissom had been arrested for possession of cocaine and hashish and that Grissom was admitting to having left more of the drugs in their room. Clearly, there was enough information in the affidavit for the issuing judge to conclude that a crime was probably being committed. Therefore, we are satisfied that the affidavit taken as a whole contained sufficient facts for the magistrate to reasonably determine that probable cause existed for issuance of the search warrant in this case.

This assignment is without merit.

Assignment of Error Number 2

By this assignment, defendant contends that the trial court erred in failing to impose sentence in accordance with the provisions of La.C.Cr.P. Arts. 893 and 894.1, in considering incorrect information, and in imposing the maximum fine.

The defendant first argues that the trial judge did not comply with Art. 894.1 in sentencing him. In State v. Jackson, 360 So.2d 842 (La.1978), we held that a trial judge is required to state for the record both the considerations he has taken into account and the factual basis for the imposition of sentence. La.C.Cr.P. Art. 894.1. Although he referred to the presen-tence investigation report, the judge in this case made no mention of any aggravating or mitigating circumstances, except for a reference to a prior conviction on the part of the defendant in March of 1977 for a felony drug charge. In City of Baton Rouge v. Bourgeois, 380 So.2d 63 (La.1980), we held that the trial judge did not comply with Art. 894.1 by merely noting that he had considered the information provided in the presentence investigation report.

Defendant’s second contention is that the trial judge improperly concluded that he was unable to put the defendant on probation due to his prior conviction. The defendant’s probation for his prior conviction was terminated and a judgment of acquittal was entered in his favor on December 1, 1978. The trial judge believed that he was unable to give the defendant probation because La.C.Cr.P. Art. 893 prohibited him from doing so. Art. 893 was amended by Acts, 1980, No. 311 to prohibit suspension of sentence and probation for a multiple offender convicted of possession of a controlled dangerous substance with intent to distribute. This amendment was effective on September 11, 1980, four months after the date of the offense in question, which was allegedly committed on May 14, 1980. Suspension of sentence and probation was not prohibited by the old Art. 893, which was in effect at the time the offense was committed.

In sentencing the defendant, the trial court incorrectly concluded that the defendant was arrested for the instant offense during the course of his probation for his earlier conviction. The judge indicated that he would be inclined to place the defendant on probation for the instant offense, but that he was prevented from doing so by the amended version of Art. 893. Because the amendment to Art. 893 went into effect prior to the defendant’s guilty plea, the trial judge erroneously believed that the amended version of the article should govern.

It is clear that the trial judge did not comply with the sentencing guidelines of Art. 894.1. Additionally, the trial court relied on erroneous conclusions of law and fact in sentencing the defendant to two years plus a $15,000 fine. The defendant was not on probation when he was arrested. Since the amendment to Art. 893, prohibiting suspension of sentence, did not go into effect until four months after the offense was committed, the trial judge was not prohibited from giving the defendant a suspended sentence. The trial court, therefore, based its sentence on an erroneous factual conclusion, and on an erroneous view of its sentencing alternatives in this case. These considerations require the vacating of the defendant’s sentence and a remand for resentencing. State v. Foret and McWhorter, 380 So.2d 62 (La.1980); State v. Hopkins, 367 So.2d 346 (La.1979).

DECREE

For the above reasons, we affirm the defendant’s conviction, but set aside the sentence and remand his case for resentenc-ing in accordance with the views expressed herein, and in conformity with La.C.Cr.P. Arts. 893 and 894.1.

DENNIS, J., concurs with reasons.

LANIER, J. Pro Tern., concurs with reasons.

LEMMON, J., concurs for the reasons assigned by LANIER, J. Pro Tern.

WALTER I. LANIER, Jr., Justice Pro Tern,

(concurring).

I concur in the result reached in this case, but would treat Assignment of Error Number 2 differently.

On April 22, 1980, pursuant to a search warrant, police officers searched Room 171 of the Ramada Inn in Baton Rouge, Louisiana, occupied by the defendant, Everett Schaeffer, and seized approximately one-half pound of suspected cocaine. The defendant was subsequently charged with possession of cocaine (as defined in Schedule II (A)(4) of La.R.S. 40:964) with intent to distribute in violation of La.R.S. 40:967(A)(1) and. punishable by La.R.S. 40:967(B)(2). The defendant pled guilty as charged and reserved his right to appeal the denial of his motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976).

At the sentencing hearing, it was determined that the defendant previously pled guilty to possession of Lysergic Acid Diethylamide (LSD) and possession of Methamphetamine and had been placed on probation. The trial judge then ruled that Act 311 of 1980 amending Article 893(B) of the Code of Criminal Procedure, effective September 11, 1980, was not an ex post facto law, was retroactive and prohibited the suspension of execution of sentence or probation in the instant case because the defendant was a second offense felon convicted of possession with intent to distribute a Controlled Dangerous Substance. The trial judge then sentenced the defendant to serve two (2) years at hard labor in the custody of the Louisiana Department of Corrections, and to pay a fine of $15,000 and all costs of the proceedings. The trial judge indicated, however, as he was imposing sentence that he “would be inclined, even though you have a previous felony conviction, in light of the other circumstances of the pre-sentence investigation, the court would be inclined to place you on probation with appropriate conditions, one of which would be that you would have to serve a specified amount of time.” Apparently, the trial judge ordered that execution of sentence be suspended, pending an appeal in this case.

Prior to the amendment of Article 893 by Act 311 of 1980, trial judges were prohibited from imposing suspended sentences for second felony offenders except in cases in which the defendant was committed to a drug rehabilitation program. State v. Beatty, 391 So.2d 828 (La.1980); State v. Hopkins, 367 So.2d 346 (La.1979); State v. Jones, 327 So.2d 417 (La.1976). The determination of whether or not to place a defendant in a drug rehabilitation program was in the sound discretion of the trial judge. State v. Cain, 382 So.2d 936 (La.1980).

The defendant alleges that the trial court committed error in ruling that Act 311 of 1980 amending Article 893(B) was retroactive instead of applying Article 893(B) as it existed on the date of the offense. The State does not contest this claim but urges that the sentence imposed is lawful, not excessive within the discretion of the trial judge, and that no useful purpose would be served by a remand because the defendant is not a drug user and a drug rehabilitation program would do him no good. The State further urges that even if the trial judge used the wrong reasons for sentence, that nevertheless the sentence is correct.

This appears to be a case of first impression on the issue of whether or not a law which diminishes or repeals the eligibility of a defendant for probationary treatment and suspension of sentence is ex post facto and thus prospective in application only. This court has previously held that laws which diminish a person’s eligibility for good time and laws diminishing a person’s eligibility for parole are ex post facto and cannot be applied retroactively. State v. Siegel, 376 So.2d 492 (La.1979); State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978); State v. Curtis, 363 So.2d 1375 (La.1978). By analogy it would appear that the principles espoused in those cases are equally applicable to the instant case and that the trial judge was in error. Act 311 of 1980 is not retroactive in application and the provisions of Article 893(B) as they existed on April 22, 1980, are applicable to this case.

For these reasons, a remand for re-sentencing is justified.

On the remand the trial judge may properly consider Act 311 of 1980, La.R.S. 40:982 (Second and Subsequent Offenses under the Controlled Dangerous Substance Law) and La.R.S. 15:529.1 (Habitual Offender Law) insofar as they represent legislative determinations relative to the “seriousness of the crime.” State v. Wright, 384 So.2d 399 (La.1980). The trial judge may also consider the fact that the defendant was previously on probation, even though it terminated prior to the instant offense, and any other aggravating and mitigating factors in the record and pre-sentence investigation in determining whether or not the defendant is a proper person for probationary treatment in a drug rehabilitation unit.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Court of Appeal, Fifth Circuit and Walter 1. Lanier, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . The affidavit supporting the arrest warrant stated that the room was rented to Schaeffer. The registration receipt was also in Schaeffer’s name.

      . Act 311 of 1980 amended Paragraph B of Article 893 to provide as follows:
      “B. The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender who has been convicted, in the instant offense, of a violation of the Controlled Dangerous Substances Law of Louisiana, other than the production, manufacture, distribution, or dispensing, or possession with intent to produce, manufacture, distribute or dispense, or the attempt to produce, manufacture, distribute or dispense, or the attempt to possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance, and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs; however, if for any reason the defendant is rejected by said program, he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence executed.”

      . When an appeal is taken, execution of sentence is automatically suspended pursuant to the provisions of Article 913(B) of the Code of Criminal Procedure.