text:
    STATE of Louisiana v. Narry CHANEY.
    Nos. 83 KA 0621, 83 KA 0622.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty. by Premila Chumbley, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Vince Wilkins, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Narry Chaney, was charged with attempted second degree murder in violation of La.R.S. 14:27 and 30.1. After a trial by jury, he was found guilty of the responsive verdict of aggravated battery in violation of La.R.S. 14:34. La.C.Cr.P. art. 814(A)(4). Chaney was then charged as a habitual offender for a previous felony conviction of theft in violation of La.R.S. 14:67 for which he was sentenced to serve seven years at hard labor in the custody of the Louisiana Department of Corrections. La.R.S. 15:529.1(A)(1). Chaney was arraigned on the second felony offender bill of information and admitted the allegations contained therein. Chaney was sentenced to serve eighteen years at hard labor in the custody of the Louisiana Department of Corrections and to pay the costs of the prosecution. In default of payment of the costs of prosecution, Chaney was ordered to serve an additional year at hard labor. La.C.Cr.P. art. 884.

The only issue raised in this appeal is that the sentence imposed is excessive. A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979). The authorized sentence for a defendant convicted of aggravated battery as a second felony offense is to be fined not more than $5,000 or imprisoned with or without hard labor for not less than three and one-third years nor more than twenty years or both. La.R.S. 14:34; La.R.S. 15:529.1(A)(1).

The evidence adduced at the trial indicated that on August 23, 1982, the victim, Charles Hutchinson, confronted Chaney who was leaning over the open drawer of the cash register in Hutchinson’s place of business. Hutchinson asked Chaney what he was doing, and Chaney replied that he was doing nothing. Hutchinson attempted to call the police, and Chaney pulled a screwdriver and attacked him. Chaney first struck Hutchinson on the head and then stabbed him in the neck. The first blow dazed Hutchinson, and the second knocked him to the floor. Hutchinson went to a doctor who cleaned the wounds and gave him a tetanus shot. Hospitalization or stitches were not required, and the wounds apparently did not produce disability-

In his reasons for sentence, the trial judge outlined Chaney’s prior history of criminal activity as follows:

A review of your record indicates that as an adult you were first arrested for charges of auto-theft, theft, first degree murder, resisting an officer in 1974 — attempt murder, excuse me. There is no disposition shown on your arrest sheet as to those charges. November 7th, 1974, you were arrested for auto-theft, simple assault of a police officer, resisting an officer, fleeing to allude. You pled guilty to unauthorized use of a movable and interfering with an officer on the 3rd of March, 1975, as to that charge. On March 26th, 1975, you were charged with unauthorized use of a movable, negligent entering, theft, interfering with a police officer; convicted of two counts of unauthorized use of a movable and placed on probation; convicted of one count of negligent injury, given six months in jail; convicted of theft, given six months in jail; convicted of interfering with an officer, given six months in jail. Those charges apparently arose out of the original arrest in 1974. You subsequently were arrested March the 16th of 1975 for auto-theft, resisting an officer; arrested July the 2nd of 1975 for illegal carrying of a weapon, criminal mischief, auto-theft, felony theft. And the record shows that June 14th, 1976, that you entered pleas of guilty to all of the charges. Arrested on the 11th of April, 1976, on a charge of theft and convicted; and that is the charge which is the basis for this habitual offender petition. You were sentenced to serve seven years in the Department of Corrections. You were discharged from that sentence on August the 23rd of 1979. There was a detainer from the U.S. Marshal’s Office placed on you at that time. You were charged by the federal government July 2nd of 1976 with possession of a weapon made from a shotgun. And that apparently was the detainer which was placed on you. July 9th of 1976, you were charged with simple battery and aggravated battery. You were convicted of simple battery and sentenced to six months in the parish jail on February 24th, 1977. Subsequent to your release in 1979 on the state charge, you were convicted on the federal charge of possession of an unregistered firearm and were sentenced to serve two years confinement in the Federal Correctional Institute in El Reno, Oklahoma. You were released in 1981. You were arrested on July 16th of 1981, and charged with simple battery, simple criminal damage to property. Those cases, however, were subsequently dismissed. Arrested for aggravated battery, August 10th of 1981, dismissed for insufficient evidence by the state. Arrested for simple burglary, September 6th of 1981; again for simple robbery and simple burglary, February 18th of 1982; Misdemeanor theft by shoplifting; resisting an officer, July 1st of 1982; theft, simple assault, illegal carrying of a weapon, August 19th of 1982. Aggravated burglary, attempted first degree murder, criminal trespass in this particular case which resulted in this conviction. I think it’s obvious from that that you have quite a lengthy record as an adult.

The record in this case does not support the defendant’s claim of an excessive sentence. The defendant has been involved in criminal activity during all of his adult life. Considering the defendant’s extensive record of anti-social behavior, and in particular his previous offenses of crimes of violence against the person, we cannot say that the sentence imposed by the trial judge is an abuse of the much discretion that he has in imposing sentence. State v. Brown, 410 So.2d 1043 (La.1982). Accordingly, the sentence imposed by the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kathy DOMINO.
    No. 83 KA 0628.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Walton Barnes, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Kathy Domino (defendant) was charged by bill of information with manslaughter, in violation of La.R.S. 14:31. She pled not guilty, was tried by jury, and found guilty. The trial judge sentenced her to five years at hard labor and to pay the costs of court. The jail portion of the sentence was suspended; and defendant was placed on three years of supervised probation, with the provision that she serve one year in the East Baton Rouge Parish Prison or serve weekends totaling 360 days, or contribute 360 days of community service. Subsequently, the State filed a motion to vacate and recall sentence. Defendant was resentenced to two years imprisonment in the East Baton Rouge Parish Prison, receiving credit for time served. Defendant appeals her conviction and alleges three assignments of error.

Defendant was the girlfriend of the victim, Tyrone George. On the evening of June 14, 1981, George and defendant had an argument which began outside of the home of Glenda Franklin, defendant’s sister. Ms. Franklin tried to break up the fight by attempting to call the police and by threatening George with a gun. Finally, George drove away, and defendant returned to her home. Approximately thirty minutes later, George forced his way into defendant’s house and commenced beating her. When George stopped hitting defendant, he turned to walk outside to his ear, stating that he was not finished with her yet. Defendant testified that she thought he was going to get a gun. She got her own gun, went out to George’s truck, and shot him. She ran away, stopped at a neighbor’s home, and called the police. When the police arrived, defendant was still holding her gun. George’s body was found near defendant’s home.

Defendant says that the trial court erred in (1) denying her challenge for cause of a juror, (2) refusing to permit testimony as to specific acts of violence committed against defendant by George or as to the dangerous character of George, and (3) admitting into evidence a taped confession obtained from the defendant.

Both the Federal and State Constitutions provide that a defendant in a criminal prosecution has a right to a trial by an impartial jury. U.S. Const.Amend. 6; La. Const. Art. I, § 16. In State v. Lewis, 391 So.2d 1156, 1158 (La.1980), the Supreme Court stated that:

the defendant is denied due process of law where circumstances affecting the juror exist which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance nice, clear and true between the state and the accused.

The trial judge is vested with broad discretion in ruling on a challenge for cause, which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. However, service on a criminal jury by one associated with law enforcement duties must • be closely scrutinized and may justify a challenge for cause, although such association does not automatically disqualify a prospective jur- or. State v. Sylvester, 400 So.2d 640 (La.1981); Lewis, 391 So.2d at 1158. State v. McIntyre, 365 So.2d 1348 (La.1978).

In the instant case, the trial court denied defendant’s challenge for cause of juror number 141, Paula M. Welborn. She testified that her husband had been a Baton Rouge City Police detective for six years but was presently with the Alcohol Board. Her father-in-law is also a police officer. She admitted she was acquainted with Paul LeBlanc, detective corporal for the East Baton Rouge Sheriffs office and a primary prosecution witness. When asked, “Does the fact that you know Paul LeBlanc place you in such a position that you could not be fair and objective as a juror in this case,” she replied, “I would say yes.” Defense counsel at that point re-urged his challenge for cause. The attempt to rehabilitate the prospective juror by the State was equivocal. Finally, in response to a question propounded by the trial judge, Ms. Welborn indicated that her relationship with Le-Blanc would not place her in a position that she would automatically either believe or disbelieve what he said. The trial judge then denied the challenge for cause, and defendant used her last peremptory challenge on Ms. Welborn.

Having exhausted all of her peremptory challenges before completion of the panel, defendant is entitled to complain on appeal of the trial judge’s ruling which denied her challenge for cause of Ms. Wel-born. La.C.Cr.P. art. 800. Mere statements of jurors of their impartiality cannot be mechanically accepted when they are placed in juxtaposition to evidence of bias, interest or prejudice. Sylvester, 400 So.2d at 646. Ms. Welborn indicated at numerous points during her examination that she “probably” would not be able to be fair and impartial. She said that she could possibly be influenced by her conversations with her husband and that “my husband’s father is police officer and — uh—so I have been around it so much — uh—I don’t know if, you know, its subconscious.” She admitted that she “would be a little more candid about it” if she did not know anybody. Due to the totality of the circumstances and particularly to her husband’s and father-in-law’s law enforcement backgrounds, her acquaintance with Paul LeBlanc, and her equivocal responses during voir dire, we do not consider that it is reasonable to conclude that Ms. Welborn was capable of serving as an impartial juror despite any other manifestations to the contrary. Hence, we find that the trial judge abused his discretion in refusing to sustain defendant’s challenge for cause and that this erroneous ruling constitutes reversible error because it affected substantial rights of the accused. La.C.Cr.P. art. 921. Accordingly, we must reverse.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial.

REVERSED AND REMANDED.

      . Act No. 181 of the 1983 Regular Session amended La.C.Cr.P. art. 800. This amendment makes it unnecessary for the defendant to show that all of the peremptory challenges were exhausted before a complaint can be made regarding the trial judge's ruling on a challenge for cause. However, the amendment was not effective at the time of the trial and is not applicable in this case.

      . Discussion of defendant’s two remaining assignments of error are pretermitted. We note, however, that in her second assignment of error defendant contends that the trial judge erred in refusing to allow defense counsel to question witnesses about the dangerous character of the victim and specific acts of violence committed against defendant by the victim. The record reflects that defendant’s testimony established an overt act, and evidence of the victim’s bad character should be allowed.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Carter RUSSELL.
    No. 83 KA 0638.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie B. Brown, Dist. Atty. by Jeffrey Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen Richey, M. Michele Fournet, Asst. Public Defenders, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Carter Russell, was charged by bill of information with felony theft in excess of $500.00, a violation of La.R.S. 14:67. A jury convicted him as charged, and he was subsequently sentenced to serve five years at hard labor. He has appealed, alleging six assignments of error, only one of which we find it necessary to consider.

On May 5, 1982, defendant, accompanied by Janice Williams and Thomas Wheeler, went to the office of the McDaniel Management Company (McDaniel) in Baton Rouge, where Williams filled out an application for rental property. While the customers waited in the reception area, a glassed-in porch, Pat Cotteii, one of the resident managers of a complex managed by McDaniel, came in and placed the rent she had collected from the complex on the bookkeeper’s desk. The rent consisted of cash and checks rolled together and fastened with a rubber band. Within a few minutes defendant left the glass porch (from which the bookkeeper’s desk was visible) and went into the office to ask about some rental property. The bookkeeper pointed out the locations of some of the available properties on a map on the wall of her office. After refusing her offer to write down the street addresses of the apartments, defendant left McDaniel’s office along with Wheeler and Williams, who by that time had completed the application and left a $100 deposit. The bookkeeper immediately looked down at her desk and discovered the roll was missing.

After a thorough search of the office, the police were called. Defendant was arrested and charged with felony theft in the amount of $870.00.

La.R.S. 14:67 defines theft as follows: Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

While “anything of value” can be the subject of a theft, the Louisiana Supreme Court, in State v. Hudgins, 400 So.2d 889, 893 n. 3 (La.1981), has found proof of value to be an essential element of the charge of theft because the penalty provisions are dependent upon the amount taken. See Louisiana Judges’ Bench Book, Vol. II at 121, 222 (1980).

The only evidence in this case tending to prove the element of “value”, consists of the testimony of Carroll Hinton, an employee of McDaniel, and ledger sheets which she compiled in an attempt to establish the amount of money the missing roll contained. In defendant’s third assignment of error he objects to this evidence as inadmissible hearsay because it was established at trial that no one ever actually counted the money. The trial court permitted Carroll Hinton to testify as to the amount taken, and the ledger sheets were introduced at trial based on the “official business records” exception to the hearsay exclusionary rule. We do not find that exception applicable herein, and, accordingly, we find the admission of this evidence to be error on part of the trial court.

THE LEDGERS

The elements comprising the “business records” exception to the hearsay rule were set forth in State v. Monroe, 346 So.2d 1185, 1188 (La.1977) as follows:

Having no statutory formulation of the business records exception, this Court has in previous opinions quoted with approval the following statement of the common law “regular entries in the course of business” exception:
“A permanent record made in the ordinary course of business .. .■ is admissible as proof of the facts recorded....” (footnotes omitted)

There is no need to look at further elements of the business record exception because it is obvious that the ledgers fail to meet the first basic requirement of having been made in the ordinary course of business. The information contained on these ledgers, far from being acquired in the ordinary course of business, is actually an admitted reconstruction of information which was never recorded in the ordinary course of business. According to the testimony, business records of the rent paid ordinarily would have been made by Pat Cotten collecting the rent and bringing it to Carroll Hinton. The rents would be turned over to Joan Waddock whose main job was putting in the rents, registering the rents and making deposits up.

Carroll Hinton admitted in her testimony at trial that she herself had reconstructed the ledger sheets after the fact. She testified that it was Pat Cotten who had collected the rents and placed the bundle of cash and checks on the desk of the bookkeeper. The rents collected by Pat Cotten were never counted or registered. Carroll Hinton later gathered the information to reconstruct the records from Pat Cotten and residents of the rental units. Joan Wad-dock made the actual entries on the ledger. Neither Pat Cotten, Joan Waddock, nor any of the tenants were called to testify. Therefore, it is obvious that the ledger sheets were not made in the ordinary course of business and were improperly admitted under the business record exception to the hearsay rule. Binder, Hearsay Handbook, sec. 8.05 (2d Ed.1983); E. Cleary, McCormick’s Handbook of the Law of Evidence, sec. 308 (2d Ed.1972).

CARROLL HINTON’S TESTIMONY

The state argues that if this court should find the records inadmissible, any error resulting was harmless because the documents merely corroborated the oral testimony of Carroll Hinton. We do not find this argument persuasive. Carroll Hinton’s oral testimony was based entirely upon information she received from Pat Cotten and the tenants. Carroll Hinton had no independent knowledge of the information to which she testified. Clearly, her testimony as to the amount of money in the roll was hearsay testimony and totally inadmissible. State v. Juengain, 410 So.2d 1099 (La.1982).

We therefore conclude that the only evidence as to the amount of money taken is inadmissible. That evidence affected substantial rights of the defendant and was prejudicial in that it comprised the sole proof of an essential element of the crime-value. La.C.Cr.P. art. 921. Accordingly, we must reverse the conviction, but we order the matter remanded for a new trial consistent with the views herein expressed. Juengain, 410 So.2d at 1101.

REVERSED AND REMANDED.

      . They may possibly have been counted by Pat Cotten but she did not testify.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Melvin STERLING.
    No. 83 KA 0639.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty., Joseph N. Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Paula Cobb, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Melvin Sterling, was charged with armed robbery in violation of La.R.S. 14:64. Sterling filed a motion to suppress an inculpatory statement he gave to police officers alleging that the statement was the product of an illegal arrest. The trial judge denied this motion. Sterling pled not guilty and, after a trial by jury, was found guilty as charged. He was sentenced to be imprisoned at hard labor in the custody of the Louisiana Department of Corrections for a term of twenty-five years, without benefit of parole, probation or suspension of sentence, but with credit for time served. This appeal followed.

FACTS

On February 16,1982, Cindy Padgett and Patricia Canavan were robbed and murdered at the Supermat Washateria on 5537 Maplewood Drive, Baton Rouge, Louisiana. Patrick Doughty, a detective with the Baton Rouge City Police, and Eddie Stewart, an investigator for the East Baton Rouge Parish District Attorney’s Office, participated in the investigation of these crimes from the time of their discovery.

On August 16, 1982, Stewart received a telephone call from a confidential informant who advised that three persons were involved in the armed robbery and murders which occurred on February 16, 1982. The informant gave the name of one of the participants and the nicknames of the other two. The informant placed a second call to Stewart and advised that the names of the participants were Melvin Sterling, Darren Kent and Keith Paul Whittaker (also referred to in the record as Keffal and “Ke” Whittaker). The informant further advised that Sterling’s cousin and grandfather were aware of his involvement. After receiving these calls, Stewart conveyed this information to Doughty and Frank L. Pax-io, a detective with the Baton Rouge City Police. The officers then reviewed their files on the incident and attempted to find addresses for Sterling, Kent and Whittaker.

On August 17, 1982, the officers determined that Sterling was living at his grandfather’s house. Prior to noon on that date, Doughty went to the grandfather’s home to find Sterling. Apparently, Sterling was not there.

Between 3:00 and 4:00 p.m. on August 17, 1982, Doughty and Stewart again went to the grandfather’s home. Upon arriving, they encountered Deborah Sterling, Melvin Sterling’s cousin. The officers asked Deborah Sterling if she would go “downtown” to talk about the case. Deborah Sterling declined to do so but agreed to talk to the officers in their police car. Doughty told Deborah Sterling what an accessory was and what could happen to her if she was one. Deborah Sterling was advised of her rights, signed as an advice of rights form, and the police officers then took a tape recorded statement from her. Apparently in this statement, Deborah Sterling indicated that Melvin Sterling was “outside” while the offenses were being committed.

At approximately 5:45 p.m. on August' 17, 1982, Paxio and Hiller Moore, an investigator with the East Baton Rouge Parish District Attorney’s Office, went to Melvin Sterling’s grandfather’s home to talk to the grandfather and look for Sterling. Sterling arrived while the officers were talking to the grandfather. The officers advised Sterling of his Miranda rights and asked him if he would go “downtown” with them. Sterling agreed to go with the officers. Sterling was taken to Doughty’s office. Doughty, in the presence of Paxio and Stewart, advised Sterling that he was not under arrest, that the officers were investigating the armed robbery and two first degree murders and that the officers wanted to talk to Sterling if he were willing. At 6:07 p.m., Doughty commenced reading the Miranda rights to Sterling from a form. Sterling signed the form at 6:12 p.m. Sterling advised the officers that all he knew about the crimes was what he saw on television. The officers discontinued the interrogation and told Sterling that he was to remain in the detective office until the officers came back. Sterling remained in this office until a second statement was taken from him at approximately 1:50 a.m. on August 18, 1982.

Apparently between the times of Sterling’s first statement and second statement, the officers talked to Darren Kent (who was in jail). The record does not reflect what information, if any, Kent provided to the officers. Warrants for the arrest of Kent and Whittaker were secured. Kent was arrested in jail. Whittaker was arrested at his residence. No arrest warrant was secured for Sterling. Although the record reflects that Kent and Whittaker were arrested on the night of August 17-18, 1982, the evidence does not show what time these arrests were made.

On August 18, 1982, at approximately 1:50 a.m., Stewart and Randall Moran, an officer with the Baton Rouge City Police, commenced taking a second statement from Sterling. Stewart advised Sterling of his Miranda rights with the same form that had been earlier used by Doughty. Sterling voluntarily gave an inculpatory oral statement to the police officers which was tape recorded. Apparently after this statement, Sterling was formally arrested and booked.

EFFECT OF ILLEGAL ARREST ON SUBSEQUENT INCULPATORY STATEMENT

Sterling’s principal contention is that the police officers did not have probable cause to arrest him after he gave the first statement, that his second statement was a product of this unlawful arrest and that the trial judge’s ruling which allowed the second statement to be introduced into evidence and presented to the jury was prejudicial error. A confession, obtained through custodial interrogation after an illegal arrest must be excluded from evidence unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Burton, 416 So.2d 73 (La.1982). The state has the burden of showing either that probable cause existed to arrest the defendant or, if the arrest was unlawful, showing that the causal connection between it and the subsequently obtained in-culpatory statement was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. State v. Jackson, 424 So.2d 997 (La.1982).

FACT OF ARREST

Because Sterling contends that his inculpatory second statement was the product of an illegal arrest, we must first determine whether or not he was under arrest at the time the statement was given. The evidence reflects that Sterling voluntarily accompanied Detective Paxio and Officer Moore from his grandfather’s house to the police station. Detective Doughty specifically advised Sterling that he was not under arrest prior to taking the first statement. At this point in time, there was no arrest. State v. Thibodeaux, 414 So.2d 366 (La.1982); State v. Copeland, 419 So.2d 899 (La.1982).

At the motion to suppress, Doughty testified that after Sterling gave the first statement he was not allowed to go home but was “asked” to stay at the office. Paxio’s testimony at the trial confirmed this. Doughty then testified that Sterling “was told after his statement to remain there until we came back.” Doughty gave the following reasons for holding Sterling after the first statement:

Q Do you — -just one moment. So you kept Mr. Sterling at the police station after the first statement with no grounds for holding him?
A No, ma’am, we kept him for two reasons in my mind. One, the individuals that he had given this information on we wanted to locate them and verify and keep him off the street so they couldn’t get to him before we could get to them. Because one of the reasons is you don’t want to lose your witness in a case of that importance. And, two, when we contacted them and if we could get a statement from them to verify if what he was telling us was actually the truth ...

In State v. Ruffin, 434 So.2d 1246, 1248 (La.App. 1st Cir.1983), appears the following:

An arrest is defined in La.C.Cr.P. art. 201 as follows:
Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.
An arrest occurs when circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Commodore, 418 So.2d 1330 (La.1982); State v. Wickers, 392 So.2d 419 (La.1980).

The trial judge ruled as a fact that “the detainment of the accused herein did constitute an arrest.” This ruling is correct. Cf. State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Morvant, 384 So.2d 765 (La.1980).

PROBABLE CAUSE TO ARREST

Sterling was arrested without a warrant. In Ruffin, 434 So.2d at 1249 appears the following:

A peace officer may lawfully arrest a person without a warrant when he has reasonable (probable) cause to believe that the person to be arrested has committed an offense. La.C.Cr.P. art. 213. Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict. State v. Bell, 395 So.2d 805 (La.1981). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act....
Probable cause can be based on knowledge supplied to an officer by another person, even if the identity of the informant ¡s’ kept confidential. Morvant, 384 So.2d at 768. The test used to ascertain the credibility of a confidential informant who provides facts to support probable cause to make a warrantless arrest is the same as that used to determine the credibility of information derived from a confidential informant which is contained in a search- warrant. State v. Edwards, 406 So.2d 1331 (La.1981). (Footnote omitted).

One of the most important factors in determining if probable cause existed is satisfied when police officers know that a crime has actually been committed. In such a case, the police officers need only demonstrate probable cause to identify the person who committed the crime. State v. Crain, 409 So.2d 603 (La.1982); State v. Webb, 432 So.2d 362 (La.App. 1st Cir.1983). Both Doughty and Stewart helped investigate this matter from its beginning. They knew that Cindy Padgett and Patricia Ca-navan had been shot, killed and robbed on February 16, 1982, in Baton Rouge, Louisiana.

Stewart received a tip from a confidential informant that Sterling, Kent and Whittaker were involved in the crimes and that Sterling’s cousin and grandfather were aware of his involvement. In Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court adopted a “totality of the circumstances” test for evaluating the information provided by confidential informants to determine if probable cause exists. This analysis requires a balanced assessment of the relative weights of all of the various indicia of reliability (and unreliability) attendant to an informant’s tip. Important factors in evaluating the information supplied by the informant are his “veracity” and his “basis of knowledge.” The “veracity” of the informant may be established by the accuracy of his prior reports and by the corroboration of his present report. The informant’s “basis of knowledge” can be established either by his direct personal observation or, if the information came indirectly to the informant, the reasons in sufficient factual detail to evaluate the reliability of the indirect source and/or of the indirectly-obtained information. State v. Buckley, 426 So.2d 103 (La.1983); State v. Elliot, 407 So.2d 659 (La.1981); State v. Paciera, 290 So.2d 681 (La.1974).

The evidence of record does not show the informant’s “basis of knowledge.” All that was told to Stewart was that Sterling, Kent and Whittaker were involved and that Sterling’s cousin and grandfather knew of his involvement. There is no evidence of record to show the accuracy of any prior reports by the informant to support his “veracity.” Prior to the time that Sterling was arrested after he made his first statement, the only efforts made by the police officers to corroborate the information given by the informant was to speak with Sterling’s grandfather and his cousin, Deborah Sterling. Both Doughty and Stewart testified that they did not seek a warrant for Sterling’s arrest after receiving the informant’s tip because they wanted to corroborate the information that he had furnished. The record does not reflect the grandfather’s name or what information, if any, he provided. Thus, it is critical to the state’s case that the statement given by Deborah Sterling corroborates the information furnished by the informant. However, at the motion to suppress, the state did not cross-examine Deborah Sterling nor did it introduce her tape recorded statement into evidence.

There were three persons present when Deborah Sterling’s statement was taken: Doughty, Stewart and Deborah Sterling. At the motion to suppress, Doughty was not questioned by either side concerning the contents of the statement. Stewart gave the following pertinent testimony:

Q Going back to the taping of Deborah Sterling’s testimony, do you remember Deborah Sterling being told that— asked if she believed if she shot those two girls and she said, “No, I don’t believe it.” Do you remember being asked that?
A If Deborah Sterling shot the two girls?
Q No, I’m sorry. If she believed that Melvin Sterling shot those two girls and she said, “No, I don’t believe it.” Do you remember that?
A It was something to that effect. I don’t know if that was, you know, the actual question.
Q All right. And do you remember saying, uh, the detective saying, “Yes, it happened that way. And Eddie was there and we saw them.” “It happened, and Eddie was there and we saw him.”
A I don’t remember that.
Q You don’t remember that?
A No.
Q But you do remember being there for the taping of that statement from Deborah Sterling?
A Right.
Q And you do realize that I’ve been given the tape from that?
A Right.
Q Are you denying that that was asked or ...
A I’m not denying it. You asked me and I don’t remember. You asked me if I recalled and I told you no.
Q All right.
Q So, Mr. Stewart, where we were we were talking about the statement given you and Detective Doughty by Deborah Sterling.
A Right.
Q In Deborah Sterling’s statement to the police did she in fact say that Melvin Sterling committed the offenses that was charged?
A I don’t recall. I think she did. I don’t, you know, I don’t know if she stated what charge but I’m pretty sure she did.

In what way did she say that...

A I don’t recall, I would have to listen to the statement. But I think it was toward the end of the statement that she did in fact imply.

MS. COBB: Your Honor, I ask the Court’s permission to play that tape to refresh Mr. Stewart’s memory on the questions he asked Deborah Sterling.
MR. LOTWICK: Judge, I don’t think that particular question or any of the contents of the statement that Ms. Sterling may or may not have made is material here.
THE COURT: All right, I’m going to sustain the objection.
MS. COBB: Your Honor, that statement of Deborah Sterling, according to Mr. Stewart’s own testimony, was as far as I can see the basis for the holding of Mr. Sterling at the police station.
THE COURT: I’ll sustain the objection at this time. You can go ahead and assign error to the Court’s ruling.
MS. COBB: All right. So I would like for the record to...
THE COURT: All right, note the assignment...
MS. COBB: ... assign error.
THE COURT: ... of error and objection to the Court’s ruling.
MS. COBB: All right.
Q Do you remember, Mr. Stewart, Deborah saying in that statement, “The only thing I know is that Melvin was with these two guys and he said he didn’t do it and he was just with...” Do you remember her saying that?
A I think so, um-hum.
Q And do you remember that she said, uh, the detective asking, “Do you know if it was one person or two people shot?” Or, “You heard about it on the news after it happened because you told me earlier that you didn’t believe it at first?” And Deborah said, “No, I don’t believe it.” He said, “You don’t believe that Melvin shot any of those two girls?” And Deborah said, “I don’t even believe it happened.” Do you remember that?
A I think so, I believe she did, something to that effect, yes.
Q And do you remember in fact that Deborah Sterling was told that Melvin Sterling was involved because Detective Doughty and you were there and you saw them?
A Saw them commit the offense?
Q Um-hum.
A No.
Q You don’t remember saying, uh, you don’t remember the detective saying that?
A No, I don’t, nothing like that, no.
Q “Büt it happened, Eddie was there, I was there, we saw them. Melvin obviously knows it happened because...” And then said, “Well, Melvin is always telling tall tales.” You don’t remember that conversation on the tape?
A Not in that form.
Q Well, Mr. Stewart, this is a direct transcript from that tape that was played. Are you sure you don’t remember that?
A Not, you know, not the way you’re stating it, no.

The pertinent portions of the testimony of Deborah Sterling are as follows:

Q Did you think that — did you refuse to tell them anything?
A At first I said I wasn’t going to say anything. I asked them did I have to say anything and they said, “You don’t have to but you will be helping Melvin if you did ‘cause you can prove that he was on the outside.”
Q And did they say anything about arresting you or anything?
A Yes, they said if they had, you know, find out that I was lying that I could be held with withholding evidence. And then I started crying ‘cause I was scared, you know, maybe they could do that.
Q Did you know anything about, to your own knowledge, about the robbery or the...
A No, not anything.
Q I only said what I talked that little bit ‘cause they told me that I was helping Melvin, that’s the only reason. I didn’t know anything.
Q Well, when they said — why did you tell them that Melvin was on the outside if you didn’t know?
A Because I was scared and I thought I was helping him.

In its present posture, this case is similar to State v. Scott, 355 So.2d 231 (La.1977). We are unable to conclude from the record before us that the state carried its burden of establishing the admissibility of Sterling’s inculpatory second statement by either showing that probable cause existed to arrest him or, if the arrest was unlawful, if the causal connection between it and the inculpatory second statement had been broken. We reach this conclusion because, as indicated hereinafter, the best evidence of the information provided by Deborah Sterling is her taped statement which was not introduced into evidence, and the record contains no evidence of what information, if any, was provided by Melvin Sterling’s grandfather. The evidence does not indicate the presence of any significant intervening circumstances between Sterling’s arrest and his inculpatory second statement. However, we are unable from the record before us to determine whether “official misconduct” occurred, or, if it occurred, the “purpose and flagrancy” of the misconduct. Scott, 355 So.2d at 235-236. Cf. State v. Arceneaux, 425 So.2d 740, 743-744 (La.1983); Jackson, 424 So.2d at 1000. Because of the ambivalent quality of the evidence, we find it preferable to allow the trial court to reconsider the issues under the guidelines expressed herein. Scott, 355 So.2d at 237. Cf. State v. Kennedy, 438 So.2d 210 (La.1983); State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Hills, 354 So.2d 186 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976).

CROSS-EXAMINATION OF STEWART

Sterling assigns as error the ruling of the trial court which precluded him from playing the Deborah Sterling tape for the witness Stewart during cross-examination to refresh his memory. As indicated from the excerpt of the transcript quoted above, Stewart apparently was unable to remember parts of Deborah Sterling’s statement and was unclear in his recollection of other parts. Sterling’s counsel attempted to refresh his recollection from the actual tape to assist in her cross-examination. The state objected on the ground that the taped statement was not material. The trial court sustained the objection.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Tonubbee, 420 So.2d 126 (La.1982); State v. Martin, 356 So.2d 1370 (La.1978). Hearsay evidence is inadmissible except as provided by law. La.R.S. 15:434. A witness can testify only as to facts within his knowledge and may not recite facts heard by. him except as provided by law. La.R.S. 15:463. An exception to these rules is that hearsay testimony is admissible at a motion to suppress to show the information which provided a police officer probable cause to make an arrest. State v. Brown, 352 So.2d 690, 694 n. 2 (La.1977); State v. Devenow, 253 La. 796, 220 So.2d 78 (1969). Whether the officer was reasonable in acting on the information is tested by other factors. State v. Smith, 392 So.2d 454, 458 n. 6 (La.1980). The best evidence of a tape recorded statement is the unaltered tape. The accurate transcription of the tape is better evidence than oral testimony based on the recollection of a witness to the statement. La.R.S. 15:436; La.R.S. 15:437; State v. Bonanno, 373 So.2d 1284 (La.1979); State v. Auzenne, 305 So.2d 507 (La.1974).

The right to cross-examine a witness is protected by the Sixth Amendment of the United States Constitution and by La. Const. of 1974, art I, § 16. State v. Vaughn, 431 So.2d 358, 370 n. 4 (La.1983) (on rehearing). As indicated above, the statement given by Deborah Sterling to the police officers is critical on the issue of probable cause to arrest. Since the state elected to meet its burden of proof by presenting the testimony of Stewart rather than using the tape recorded statement, counsel for Sterling had a right to cross-examine him about the statement. Under these circumstances, it was error for the trial court to deny the defense request to refresh the memory of Stewart with the tape recorded statement. However, when an error has occurred in an evidentiary ruling during a hearing on a motion to suppress a confession, the recent practice of the Louisiana Supreme Court has been to remand the motion for a reopened hearing to correct the error. Jackson, 424 So.2d at 1000; State v. Edwards, 375 So.2d 1365 (La.1979).

CONCLUSION

Because of the ambivalent nature of the state’s evidence on the issue of probable cause to arrest and the erroneous eviden-tiary ruling of the trial judge, we believe that the interest of justice requires that this cause be remanded for a reopened hearing on the motion to suppress. Because we have not completed our review of other substantive contentions raised by this appeal, we will retain jurisdiction of this appeal with the following directions: if the trial court finds that the confession and evidence should have been suppressed, it is directed to grant the defendant a new trial (La.C.Cr.P. art. 851[2]); the state may seek a supervisory writ to this court for our review of such adverse rulings and, in the absence of such, this appeal will be mooted; however, if the trial court reinstates its denial of the motion to suppress, it is ordered to transmit to this court its ruling and the record of the reopened hearing on the motion to suppress, so this court may complete its review of the issue under the assignments of error previously made and any further ones made as a result of the ruling at the reopened hearing — as well as for us to complete our review of the remaining assignments of error raised by this appeal. Jackson, 424 So.2d at 1001. The motion to suppress the confession is remanded to the trial court for further proceedings in accordance with the views and directions expressed by this opinion. On the remand, the state has the burden to proceed, the tape recorded statement of Deborah Sterling is admissible in evidence, Doughty and Stewart may be further questioned about Deborah Sterling’s statement, evidence may be received about what information, if any, was provided by the grandfather, evidence may be received about what information, if any, was given by the defendant in his first interview and evidence may be received on the “totality of the circumstances” of the informant’s tip. In accordance with and subject to the directions expressed by this opinion, this court otherwise retains jurisdiction of this appeal.

REMANDED.

      . In determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion but may also consider pertinent evidence given at the trial. State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Beals, 410 So.2d 745 (La.1982); State v. Chopin, 372 So.2d 1222 (La.1979).

      . Sterling does not contend that improper Miranda warnings were given or that the statements were involuntary.

      . Sterling also contends that the evidence adduced at the trial is insufficient to show that he had the intent required to commit an armed robbery and that the sentence imposed is excessive.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Tracy KENT.
    No. 83 KA 0648.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Peter J. Garcia, Kevin McNary, Coving-ton, for appellee.
    Oliver F. Johnson, Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Tracy Kent, was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. He pled not guilty, was tried by a twelve person jury and found guilty as charged. The trial court sentenced him to be confined with the Department of Corrections at hard labor for fifteen years without benefit of probation, parole or suspension of sentence.

On December 1, 1980, the Delchamps Food Store in Mandeville was robbed at gunpoint by two black men. They approached the assistant manager and ordered him to open the safe. Several days later, through a photographic lineup, the assistant manager was able to identify defendant as well as another man who was involved in the robbery.

In his sole assignment of error, defendant requested that we review the record for errors patent on its face. We have thoroughly reviewed the record and find none.

As we have noted in State v. Griffin, 442 So.2d 698, (La.App. 1st Cir.1983), the Louisiana Supreme Court, in State v. Raymo, 419 So.2d 858 (La.1982), indicated that although the assignments of error do not so dictate, all transcripts of evidence in criminal proceedings must be reviewed on the appellate level to determine whether or not there exists sufficient evidence to support a conviction. We have thoroughly reviewed the transcript of the trial and find that sufficient evidence was introduced at trial to establish all elements of the offense and to justify the return by the jury of a verdict of guilty as charged.

The conviction and sentence are affirmed.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Donnie Ray JOHNSON v. Rhonda Allen JOHNSON. Rhonda Allen JOHNSON v. Donnie Ray JOHNSON.
    Nos. 83 CA 0661, 83 CA 0662.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Richard A. Schwartz, Amite, for Donnie Ray Johnson.
    Jonathan R. Schmidt, Hammond, for Rhonda Allen Johnson.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a custody case wherein the mother-appellant contends the trial judge was clearly erroneous in his interpretation of the facts upon which he based his award of physical custody to the father and additionally that the trial judge was in error in awarding the father physical custody for a period of one week prior to the commencement of the school year and extending to one week after the ending of the school year.

The two children involved are both boys —Scott, age 14 and Clint, age 9. The trial judge found both parents to be good parents capable of caring for their children. At the time of trial the children were living in the family home with each parent having physical custody for alternating one week periods at the family home pursuant to a pendente lite custody order. Except for the initial trauma of the parents’ separation, both youngsters were doing fine in school. The trial judge questioned the older boy as to his preference of which parent he wished to live with and Scott said his father because of the activities they could engage in. Clint wanted to be with his older brother. The appellant admitted the father was a good parent, however she did complain about the condition of the family home after the father’s one week visit with the boys. By remaining with the father in the family home, both youngsters would continue in familiar surroundings.

Trial judges are granted a great amount of discretion in custody matters and their decisions should not be disturbed unless it is clear and evident that they have abused that discretion by not considering the best interests of the child or children involved.

We have studied the record and the trial judge’s reasons very closely, and must conclude that his decision is correct. We believe he has complied with the spirit of La.Civ.Code art. 146. The trial court decision provides for the continuing stability of these two youngsters by awarding joint custody to the parents with physical custody in the father during the school year and visitation by the mother-appellant every other weekend. Additionally, the parents will alternate holidays, and the mother will have physical custody during the summer months. For the above reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana v. Alex WARNER, Jr.
    No. 83 KA 0668.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., Ralph Roy, and Louis Daniel, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Alex Warner, Jr. (defendant) was charged by bill of information with a violation of La.R.S. 40:967(C), for possession of Phenmetrazine (also known as Preludin), classified as a controlled dangerous substance in Schedule II C-3. He pled not guilty, waived trial by jury, and was tried along with three other defendants by the judge alone. He was found guilty and sentenced to three years imprisonment at hard labor, with credit for time served as a result of his arrest on this charge only. Defendant now appeals his conviction. He has briefed and argued one assignment of error.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant alleges that the trial court erred when it denied his motion for a directed verdict of acquittal.

FACTS

On November 24, 1980, pursuant to a search warrant, Stanley Bihm, a detective with the Baton Rouge Police Department, along with approximately eight other policemen, went to a residence owned by Wilbert Shephard located at 1642 North 23rd Street in Baton Rouge. Bihm and several other officers entered the house. Some went through the front door, some went through the back door, and others remained outside. Approximately thirteen people were found in the residence, four of whom were arrested and charged with possession of Phenmetrazine, including defendant. Bihm saw defendant as he went from the front room through the kitchen and into the middle bedroom. Bihm testified that defendant, when first seen by him, was leaning through a window which led to another bedroom with his hand outstretched over the window. When the officers broke through the rear door, defendant turned, ran past Bihm and passed within a few inches from him. At that time Bihm saw defendant shove something which he had been holding in his hands under some clothes on a nearby shelf. Bihm immediately retrieved the object defendant had shoved under the clothes and found a package containing ten syringes and a spoon. He placed defendant under arrest, handcuffed him, and then went to the window through which defendant had been leaning. He searched the area between the window and a bed which was on the other side of the wall and found a bottle containing seventeen Preludin tablets wrapped in foil. Other officers found quantities of Preludin in various other parts of the house, and the arrest of the other defendants came as a result of the discovery of this evidence.

All of the contraband was secured and then tested by Jerry Harrison of the Louisiana State Police Crime Laboratory, who was qualified as an expert in analyzing substances for suspected narcotics. He testified that some of the contraband seized subject to the search contained Phenmetrazine. Specifically, his examination of the exhibit which contained a spoon and ten syringes revealed traces of Phen-metrazine on two syringes and the spoon. His examination of the pink tablets recovered from under the bed near the window revealed that they were Phenmetrazine.

At the close of the State’s case, the defendant’s motion for a directed verdict of acquittal was denied. Defendant took the stand in his own defense. On direct examination in response to his attorney’s question, “State 2, have you ever seen those,” he said, “I had them in my possession.” On cross-examination, defendant admitted he had the syringes in his possession; that he had them in his hands at the time; and that he had them for the purpose of using drugs. However, he maintained that he had no drugs in his possession when arrested.

When a defendant’s motion for directed verdict of acquittal is overruled at the close of the state’s case on review the appellate court may consider, in determining whether there is evidence of guilt, not only evidence before the court at the time of the motion, but the entire admissible evidence contained in the record of the trial. State v. Hicks, 376 So.2d 118 (La. 1979); State v. Smith, 332 So.2d 773 (La. 1976). The denial of a motion for a directed verdict of acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Hargrave, 411 So.2d 1058 (La.1982).

The applicable standard of review is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proved beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Our review of this entire record reveals that defendant admitted possession of the syringes which were used by him for the purpose of taking drugs, two of which contained traces of Phenmetrazine according to the examination made at the State Police Crime Lab. The assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      .In the trial court defendant urged five assignments of error. However, his appeal does not address assignments 1, 2, 3 and 5. Accordingly, they are considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal, State of Louisiana; State v. Trevathan, 432 So.2d 355 (La. App. 1st Cir.1983), writ denied (La.1983).

      . The window at one time looked out on a porch which had been enclosed and made into a bedroom.

      . Defendant’s attorney was referring to State exhibit 2, the syringes and spoon.


text:
    STATE of Louisiana v. Tyrone HEARD.
    No. 83 KA 0676.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie B. Brown, Dist. Atty. by Donald R. Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fornet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Tyrone Heard, was charged by bill of information with one count of simple burglary, a violation of La.R.S. 14:62. Defendant pled guilty and was subsequently sentenced to serve ten years at hard labor. He appeals, alleging the sentence imposed is excessive.

Defendant was arrested and booked with the crime of aggravated burglary on December 31, 1981. On January 19, 1982, defendant was again arrested for simple burglary of an inhabited dwelling. On February 12, 1982, a bill of information was filed charging the defendant with simple burglary based on the December 31, 1981, arrest.

The matter came to trial on January 25, 1983. Pursuant to a plea bargain with the state, defendant pled guilty. As a result of the plea, the state dismissed the charge of burglary of an inhabited dwelling and the court ruled no probable cause for a pending armed' robbery charge. After a pre-sen-tence investigation, the trial judge sentenced the defendant to serve 10 years at hard labor.

In his only assignment of error, the defendant contends the sentence imposed was excessive under the La. Const, of 1974, art. 1, sec. 20, which provides that no law shall subject a person to “cruel, excessive, or unusual punishment.” Defendant argues that imposition of the maximum sentence was clearly excessive. Actually, defendant did not receive the maximum sentence for a violation of La.R.S. 14:62 which would have been a sentence of 12 years at hard labor and a $2000.00 fine.

The trial court has wide discretion in the imposition of sentence. State v. Fleming, 428 So.2d 947 (La.App. 1st Cir. 1983), writ denied, 434 So.2d 410 (La.1983). The trial judge cited defendant’s extensive criminal history over the past decade, including two previous felony convictions, as reason for imposition of the 10 year sentence. The trial judge stated that he felt that a lesser sentence would deprecate the seriousness of defendant’s repetitive criminal conduct. Given those reasons, we find no abuse of the trial court’s discretion and accordingly affirm the sentence.

AFFIRMED.


text:
    STATE of Louisiana v. John SHIELDS.
    No. 83 KA 0677.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied March 9, 1984.

      Ossie Brown, Dist. Atty. by Glen R. Petersen, Joseph N. Lotwick, Asst. Dist. At-tys., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, John W. Shields, was charged with attempted second degree murder in violation of La.R.S. 14:27 and 30.1. Shields pled not guilty and not guilty by reason of insanity. After a trial by jury, he was found guilty as charged. Shields was sentenced to serve thirty-five years at hard labor in the custody of the Louisiana Department of Corrections.

FACTS

The victim in this case testified that on December 10, 1980, between 3:00 and 4:00 p.m., she was walking home on a residential street in East Baton Rouge Parish. The defendant, later identified as John W. Shields, drove up to her in a distinctively marked van and asked her to go riding with him. The victim had not previously known Shields. The victim accepted the ride and asked Shields to take her to a friend’s house. Shields agreed but said that he wanted to go to the home of one of his friends to pay for some quaaludes he had purchased. Someone was at the home of Shields’ friend, and he did not want to go in. Shields drove to a cul-de-sac dead end in a subdivision in the area and parked to await the visitor’s departure. Shields and the victim talked while waiting. Suddenly Shields pulled the victim into the rear of the van and tied her hands behind her back with a rope. He then tore off her blouse and bra and pulled down her jeans and panties. He inserted his finger into her vagina. During this time, the victim was kicking and yelling. Shields opened the door of the van and kicked the victim out. He then carried her to a nearby wooded area. He put her down and started dragging her by her hair. After they reached a small ditch, Shields wrapped the rope around the victim’s neck and pulled on it until she lost consciousness. Shields thought she was dead and kicked her in the face several times with the heel of his boot. He then left. When the victim regained consciousness, she struggled free of the ropes and went to a nearby home for help. The victim was hospitalized for several days. She had a fractured cheekbone, cuts above her eye and on her lip, several teeth knocked loose and swollen eyes.

On December 21, 1980, Richard Crochet, a crime laboratory photographer who helped in the investigation of this incident, spotted a van that fit the description given by the victim. He called for assistance, and the van was stopped. The person driving the van, John W. Shields, fitted the description of the attacker given by the victim. Shields was then arrested.

Shields was interrogated by Detective Sergeant Daniel McAllister of the East Baton Rouge Sheriffs Office and Officer Royce Thompson of the Baton Rouge City Police. After being advised of his Miranda rights, Shields gave a voluntary statement. He said he met the victim at a McDonald’s and offered her a ride home. She agreed to sell him some THC (tetrahy-drocannabinol — the active ingredient in marijuana) for $270. The victim left and returned with a sample. He gave her the money, and she left to get the drugs but did not return. He went looking for her and found her. They drove to the dead end street to wait for the drugs to arrive. The drugs never came. Shields became enraged and attacked the victim. From this point on, the oral confession of Shields was similar to the testimony of the victim.

DENIAL OP CONTINUANCE

Shields contends that his counsel was unable to adequately prepare his defense of not guilty by reason of insanity because the trial court refused to grant his motion for a continuance.

This case developed chronologically as follows:

December 10, 1980 — The offense was committed;
December 21, 1980 — Shields was arrested;
January 1981 (specific date unknown)— Shields attempted suicide by hanging in jail;
January 28, 1981 — Court-appointed counsel for Shields filed motions for preliminary examination and bail reduction;
February 23, 1981 — Counsel for Shields filed motion for discovery;
February 25, 1981 — Sanity Commission appointed;
February 26, 1981 — Shields committed to the Feliciana Forensic Facility in Jackson, Louisiana;
October 13, 1981 — Bill of information for attempted second degree murder filed;
October 14, 1981 — Second Sanity Commission appointed;
October 16, 1981 — Shields ruled incapable of assisting counsel and ordered transferred back to the Feliciana Forensic Facility for treatment;
June 11, 1982 — Third Sanity Commission appointed;
August 16, 1982 — Sanity hearing held and Shields was determined able to assist in his defense. Shields was arraigned and pled not guilty;
August 31, 1982 — Shields notified that his trial would be January 3, 1983;
October 26, 1982 — Preliminary examination and bail reduction hearing were held. Trial court determined there was probable cause to hold Shields and refused to reduce the bail;
January 3, 1983 — Trial passed to January 4, 1983;
January 4, 1983 — Shields filed a motion for a continuance alleging that he wanted to change his plea to not guilty and not guilty by insanity and needed additional time to get additional psychiatric examinations to establish the defense of insanity. The trial court reassigned the trial to January 6, 1983. Shields was examined for the first time by Dr. Marc Zimmerman, a clinical psychologist;
January 6, 1983 — Trial court denied motion for continuance. Shields changed his plea to not guilty and not guilty by reason of insanity. The trial was held on January 6 and 7, 1983. Dr. Marc Zimmerman testified as a defense witness and was of the opinion that Shields was unable to distinguish right from wrong at the time of the commission of the offense.
La.C.Cr.P. art. 707 provides as follows: A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
(Emphasis added).
La.C.Cr.P. art. 712 provides as follows: A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

(Emphasis added).

The jurisprudence interpreting Articles 707 and 712 holds that the granting or refusal of a motion for continuance rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear abuse of discretion. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. Convictions will not be reversed absent a showing of specific prejudice caused by the denial of a continuance. State v. Gaskin, 412 So.2d 1007 (La.1982).

The history of this case demonstrates that the possibility of an insanity defense was obvious from the beginning. In August of 1982, the defendant was advised that his trial would be in January of 1983. This is more than adequate notice that the defendant should be prepared to assert his defenses and participate in a trial. State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Champion, 412 So.2d 1048 (La.1982); State v. Willie, 410 So.2d 1019 (La.1982); State v. Barrios, 425 So.2d 980 (La.App. 5th Cir.1983).

Shields contends that the 1978 diagnosis of the mental hospital in Jackson, Louisiana, that he had an explosive personality disorder was not discovered until Dr. Zimmerman started a research into his history in January of 1983. He further contends that he did not have enough time before trial to locate the psychiatrist who rendered that diagnosis. Shields was committed to the Forensic Facility from February 26, 1981, to August 16, 1982. During this time, he was represented by counsel, and his records were available. The 1978 diagnosis of explosive personality disorder was presented to the jury through the testimony of Dr. Zimmerman. Shields did not submit a motion for a new trial alleging newly discovered evidence bearing on his insanity defense. It was within the defendant’s capability to develop evidence on the insanity defense (if such existed) well in advance of the trial date. Considering all of the facts and circumstances of this case, we cannot say that the trial judge abused his discretion. See, for example, State v. Dupre, 408 So.2d 1229 (La.1982).

This assignment of error is without merit.

INSANITY DEFENSE

Shields contends that the evidence is insufficient to justify a rejection of his insanity defense and permit a finding of guilty.

The law applicable to the insanity defense is set forth in State v. Noble, 425 So.2d 734, 737 (La.1983) as follows:

A legal presumption exists that the defendant is sane and responsible for his actions. La.R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La.Code Crim.P. art. 652. If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. La.R.S. 14:14.

The test to be followed when reviewing the sufficiency of the evidence on the defense of insanity is set forth in State v. Price, 403 So.2d 660, 662 (La.1981) as follows:

In reviewing such claims of insufficiency of evidence in regard to a defense of insanity, this court has applied the test established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in accord with the rule announced in Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). See State v. Liner, 397 So.2d 506 (La.1981); State v. Hathorn, 395 So.2d 783 (La. 1981); State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981). Under the Jackson standard, the test is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the crime was proved beyond a reasonable doubt. When this standard is applied to the review of evidence adduced in support of the defense of insanity, which is the defendant’s burden to prove, the question becomes whether any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could find, beyond a reasonable doubt, that the defendant failed to present a preponderance of proof in support of the defense. That is, a defendant might fail to adduce any proof in support of the defense, or the prosecution might effectively rebut any evidence presented.

This test has been codified with the adoption of La.C.Cr.P. art. 821 by Act 144 of 1982. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

Shields presented the testimony of Dr. Zimmerman, Mrs. Betty Kalmbach (his mother) and himself on the insanity defense. Dr. Zimmerman is a Ph.D. in psychology specializing in personality disorders. He is licensed in Louisiana and Texas and is board certified. Dr. Zimmerman is not a physician or a psychiatrist. Dr. Zimmerman saw Shields for the first (and apparently only) time on January 4, 1983. He examined reports on Shields dating back to his commitment to Jackson in 1978. In 1978, Shields was diagnosed by a psychiatrist at Jackson as having an “explosive personality disorder”. Dr. Zimmerman indicated that this mental defect is now known as an “intermittent explosive disorder”. With such a defect, a person cannot control his behavior at certain times. During an episode of an “intermittent explosive disorder”, a person cannot reason and thus cannot distinguish between right and wrong. Dr. Zimmerman was of the opinion that at the time of the offense Shields felt he was being “ripped off” by the victim, had an intermittent explosive disorder, lost total control of his conduct and could not tell right from wrong.

Mrs. Betty Kalmbach, the defendant’s mother, testified that when he was eleven years old he was involved in an accident with an automobile while riding his minibike. Shields was knocked unconscious and was in a coma for ten days. Thereafter, he was in a wheelchair for almost a year. Mrs. Kalmbach said Shields had never been the same mentally since that accident. Mrs. Kalmbach testified that Shields was abused by his alcoholic stepfather and had destructive explosive episodes. Mrs. Kalmbach further testified that Shields was at her home after 5:00 p.m. on December 10, 1980, when she returned from work (the offense occurred between 3:00 and 4:00 p.m. on December 10, 1980). Shields was calm and acted alright. Shields helped his mother take some Christmas decorations out of a closet, and they set up the Christmas tree together. She could not tell if he was on drugs at that time.

Shields testified that he did not remember the incident, did not remember trying to hang himself in the jail and took drugs with his ex-girlfriend on occasion.

The state presented the testimony of Dr. Landry and Officers McAllister and Thompson to rebut the defense of insanity. Dr. Landry testified that he was a physician and had been the coroner of East Baton Rouge Parish for the past eleven years. In the course of his duties, he examines between ten and twenty mental patients per day. Dr. Landry first saw Shields on December 30, 1980, at the request of his mother. Shields was aware of the charges against him but denied them. Dr. Landry was then of the opinion that Shields was probably in drug withdrawal but was not in acute distress. Shields did not have any mental or physical problems then which would require his removal from jail for treatment.

Dr. Landry next saw Shields on February 25, 1981. Dr. Landry was given a history (apparently from third persons) that approximately one month earlier Shields attempted to commit suicide by hanging in jail. When Shields was cut down, he had no vital signs (no blood pressure or breathing). Shields had been in the hospital since that incident and was released on the date of this examination to return to jail. Shields came to Landry's office in a wheelchair. He was poorly oriented, depressed and confused. Shields lost 25 pounds in the hospital, was weak and unable to walk. Shields was also suffering from bowel and bladder incompetence. Dr. Landry was of the opinion that Shields probably suffered some degree of brain impairment as a result of the suicide attempt and should be conveyed to an appropriate facility for therapy. Shields was admitted to the Feliciana Forensic Facility on February 26, 1981.

Dr. Landry next saw Shields on October 14, 1981. Shields had been released from the Forensic Facility on October 13, 1981. His condition was markedly improved, both physically and mentally. He could walk slowly and had bowel and bladder control. He had gained 35 pounds and was oriented as to time, place and current events. Shields denied knowledge of the charges and did not remember the hanging. Dr. Landry was then of the opinion that Shields would not be able to assist in his defense for several months.

Dr. Landry last saw Shields on July 30, 1982. Dr. Landry had learned that Shields had been struck by a car when he was an eleven year old, had trauma and had been in a coma. Dr. Landry gave the following testimony about that examination:

Today he is even more improved; being oriented to time and place and current events. He relates that he was in East Louisiana State Hospital in 1978 due to drug abuse. He used heroin for four years, and he was abusing drugs at the time of the alleged offense. He is able to give an account of his life but he denies knowledge of the alleged offense and states that he doesn’t remember the hanging attempt. It was my opinion at that time that he understands the nature of the charges against him. He is able to assist counsel in his offense, and my impression was that he was probably sane at the time of the alleged offense except for whatever influence the drugs may have had upon him, which is pretty par for the course if you’re under the influence.

Dr. Landry gave the following testimony relative to intermittent explosive disorder:

Q. Are you familiar with the intermittent explosive disorder?
A. Yes, Ma'am.
Q. Can you tell me some of the symptoms of it — some of the characteristics of it rather?
A. I don’t know that it’s necessary for me to comment on something that I’m not — that I don’t think he’s got. I don’t know why you’re asking me to comment on an intermittent explosive disorder. I mean I don’t feel— I’m not — haven’t seen anybody with it. I think it’s a far, unusual thing that you see, and I don’t think it has any relevance to this case. I didn’t diagnose that in — him as having that at all.
Q. Are you aware that when he was in Jackson in 1978 he was diagnosed as having an explosive disorder?
A. No, Ma’am, I’m not.

Detective McAllister and Officer Royce Thompson testified they interrogated Shields after his arrest on December 21, 1980. Shields did not appear psychotic, delusional or insane, answered questions well and in detail, and had a good memory of the incident.

Also pertinent to the defense of -insanity is the testimony of the victim. She indicated that Shields appeared normal, did not appear on drugs, did not take drugs in her presence and had no problem talking or driving the van.

The verdict indicates that the jury accepted the state’s evidence on the issue of insanity and rejected that of the defendant. Viewing the evidence in the light most favorable to the prosecution shows beyond a reasonable doubt that Shields did not have the mental defect of intermittent explosive disorder, that he was sane and able to distinguish right from wrong at the time of the commission of the crime, and that he failed to prove by a preponderance of the evidence the affirmative defense of insanity. The evidence of record that he was a drug abuser and may have been in a drug-intoxicated condition is not pertinent to the insanity issue. State v. Brown, 421 So.2d 854 (La.1982); State v. Rives, 407 So.2d 1195 (La.1981).

This assignment of error is without merit.

EXCESSIVE SENTENCE

Shields contends that his sentence to serve thirty-five years at hard labor is excessive.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979). The authorized sentence for a defendant convicted of attempted second degree murder is imprisonment at hard labor for not more than fifty years. La.R.S. 14:27(D)(1); La. R.S. 14:30.1; State v. Cavazos, 422 So.2d 417 (La.1982).

The trial judge gave the following reasons for imposition of the sentence:

In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the court cites that confinement is appropriate because there is an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime and the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution, and the court cites that the subject has been arrested nine times as an adult since 1974 including the present offense. These arrests have resulted in two convictions for the charge of possession of marijuana for which he was sentenced to pay fines and two convictions for the charge of misdemeanor theft for which he was sentenced to pay fines and in one incident was placed on one year’s supervised probation. The court will note that the subject’s probation was terminated unsatisfactorily in that case. Also the defendant himself admits that since the age of eleven he has used quaaludes, preludin, blues and clears, speed, black mollies, heroin, acid and cocaine and further that he was addicted to the use of controlled dangerous substances. The subject has admitted to having prior drug dependency and was referred to the Baton Rouge Mental Health Center for followup treatment after his release. Unfortunately the defendant did not follow up on the recommended treatment and chose instead to continue the use of drugs extensively. A lesser sentence would certainly deprecate the seriousness of the defendant’s crime, and the court cites that this offense involved the defendant attacking his victim by choking her until she was unconscious. Then believing that she had been — that she had died, kicked the defendant in the face; the court also noting that the defendant sexually molested the victim in this particular case.

Because of the heartless manner in which the offense was committed, the defendant’s extensive record of unrepented drug abuse and the defendant’s prior record of criminal activity, we cannot say that the sentence imposed by the trial judge is an abuse of discretion. See, for example, State v. Straughter, 406 So.2d 221 (La. 1981).

This assignment of error is without merit.

CONCLUSION

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

AFFIRMED.


text:
    STATE of Louisiana v. Clarence BARBER.
    No. 83 KA 0686.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty., Richard Chaf-fin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnny E. Wellons, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Clarence Barber (defendant) was charged by bill of information with possession of Pentazocine (Talwin), a controlled dangerous substance, in violation of La.R.S. 40:967. After pleading not guilty, defendant waived jury trial and was tried by a judge alone. The court found defendant guilty as charged and sentenced defendant to imprisonment at hard labor for three and one-half years with credit for time served. Defendant now appeals this conviction and sentence, alleging and briefing six assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred in assuming that the letters “C W” were the initials of the lab technician who tested the alleged controlled dangerous substance.

2. The trial court erred in denying the defense objection to the “preliminaries” that occurred prior to defendant’s arrest for possession of a controlled dangerous substance.

3. The trial court erred in failing to require the State to prove beyond a reasonable doubt that defendant had the controlled dangerous substance in his possession.

4. The trial court erred in allowing the State to introduce the pills containing the controlled dangerous substance as the arresting officers failed to give defendant his Miranda rights, including the right to remain silent and that anything he said would be used against him at trial for possession of a controlled dangerous substance.

5. The defense attorney was incompetent.

6. Defendant received an excessive sentence.

FACTS

Defendant was arrested for felony theft of a lady’s purse. When the arresting officers conducted a “pat down” of defendant’s person, some of the stolen money, two pills, one blue and one peach, were found. The pills were sent to the Louisiana State Police Crime Lab for chemical analysis. The peach pill contained Pentazocine, a controlled dangerous substance listed in La. R.S. 40:964, Schedule II D (2).

ASSIGNMENT OF ERROR NO. 1

Defendant alleges error by the trial court because the judge assumed that the initials “C W” were the initials of the technician who prepared the lab report on the two pills which had been found in defendant’s pocket. At trial, Michael Kosiba, the forensic chemist employed by the Louisiana State Police Crime Lab testified that the initials “M K” at the bottom of the report were his but that he did not know what the initials “C W” stood for. At that point, the trial judge commented that the initials were probably those of the crime lab technician, saying, “I’m just guessing, of course.” The defense attorney made no objection at that time to the judge’s comment.

La.C.Cr.P. art. 841 provides in pertinent part:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.

When defendant failed to raise an objection to the trial judge’s remark at trial, he waived argument on appeal.

Later in the trial Candace Hodges, one of the arresting officers who was present when the pills were discovered on defendant’s person, testified that she watched her partner, Charles Weldon, remove the pills from defendant’s pocket, package them for submission to the State crime lab for testing, and initial the order accompanying the pills. She stated that she recognized her partner’s initials and handwriting on the analysis request form. Thus, the State satisfactorily met the burden of proof as to whose initials were on the analysis request form.

As defendant raised no objection to the comment when it was made at trial, there is nothing for this court to review. In any event, we find no prejudice because the remark was harmless, and it was a bench trial.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant complains that the trial court erred by allowing testimony that related to events prior to his arrest for possession of a controlled dangerous substance. Those events consisted of defendant’s arrest for the theft of a woman’s purse and the “pat down” subsequent to that arrest which produced the pentazocine.

The State in brief contends that these were the events and circumstances that led to defendant's arrest on the drug charge and therefore were necessary incidents to the criminal act with which defendant was charged and fall within the scope of La. R.S. 15:447 as part of the res gestae. We agree.

La.R.S. 15:447 defines res gestae and 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 action.

The general rule against introduction of evidence of other crimes does not prohibit the state from introducing into evidence criminal acts which are part of res gestae, which are always admissible. State v. Brown, 428 So.2d 438 (La.1983).

The record revealed that defendant’s arrest for felony theft and his “pat down” which produced the controlled dangerous substance were necessary incidents to the criminal act with which he was charged and formed one continuous series of events. The trial judge properly admitted into evidence the testimony of these events as part of the res gestae of the instant crime.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Defendant complains that the State failed to prove beyond a reasonable doubt that defendant had the controlled dangerous substance in his possession.

On examining the record we see that Officer Hodges testified that she was present at the “pat down” and actually saw Officer Weldon remove a blue pill and a peach pill from defendant’s pocket. Her partner was not available to testify at trial; however, both defense counsel and State’s counsel stipulated that:

“Officer Weldon would testify as this officer has testified that they were together, that they investigated a theft, that theft led to an arrest, that upon the pat-down that he recovered the evidence as this officer testified and that he tagged the evidence and submitted it.”

We find the State has borne the burden of proving beyond a reasonable doubt that defendant had a controlled dangerous substance in his possession at the time of his arrest. The applicable standard of review is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proved beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Kor-man, 489 So.2d 1099 (La.App. 1st Cir.1983).

This assignment of error has no merit. ASSIGNMENT OP ERROR NO. 4

Defendant contends that he was denied constitutional due process when the controlled dangerous substance was introduced at trial as evidence against him because he had not been given his Miranda rights to remain silent and that anything he said would be used against him at any proceedings based on the charge of possession of the controlled dangerous substance. However, the record reveals that defense counsel did not object when the pill containing the controlled dangerous substance was allowed into evidence.

Officer Hodges testified that defendant was given his rights when he was arrested for felony theft. The validity of defendant’s arrest for felony theft is not questioned. When the officers conducted a “pat down” of defendant’s person incident to that arrest, the pills discovered in defendant’s pocket at that time were lawfully seized and admissible. Almost immediately he was arrested for the instant drug charge. Further, defendant did not attempt prior to trial to suppress the introduction of the pills nor has he alleged that he had no prior opportunity to do so; therefore, defendant has waived his right to object to the introduction of such evidence at trial. La.C.Cr.P. art. 703(F); Cf. State v. Franklin, 263 La. 344, 268 So.2d 249 (La.1972).

As defendant raised no objection at the time, the pill containing the controlled dangerous substance was introduced into evidence at trial, there is nothing for this court to review. La.C.Cr.P. art. 841.

This assignment of error has no merit. ASSIGNMENT OF ERROR NO. 5

Defendant contends that his trial counsel was incompetent because he permitted certain evidence to be introduced by the State without identification and stipulated to certain facts without requiring the officer to present his evidence in person.

The record contains no evidence that the issue of incompetence or ineffectiveness of defense counsel has ever been before the trial court. This issue is more properly reviewable by post-conviction relief writ of review where a full evidentiary hearing may be conducted. La.C.Cr.P. art. 924; State v. Rogers, 428 So.2d 932 (La. App. 1st Cir.1983).

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 6

Defendant complains that he received an excessive sentence.

Defendant was found guilty of possession of pentazocine in violation of La.R.S. 40:967. The possible penalty for such violation is imprisonment with or without hard labor for not less than two years and for not more than five years, and, in addition, defendant could be sentenced to pay a fine of not more than $5,000.00. Defendant received the sentence of three and one-half years imprisonment at hard labor and no monetary fine. The trial judge noticed, among other things, that defendant had several prior felony convictions; that defendant’s probation had been terminated unsatisfactorily twice; and that defendant had previously committed at least one violent crime, although the crime here is nonviolent. We find no abuse of the discretion afforded the trial judge, who gave a medium-range sentence after consideration of all the circumstances.

This assignment of error is without merit.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The peach pill, when tested at the crime lab, was found to contain Pentazocine (Talwin). Used with the blue pill (Pyrobenzanine), a street drug known as "T's and Blues" is produced.


text:
    STATE of Louisiana v. Terrance NICHOLAS.
    No. 83 KA 0694.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., by Kay Bates, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal of a jury verdict finding defendant guilty of aggravated rape and aggravated burglary.

Defendant, Terrance Nicholas, was charged by grand jury indictment with having committed, the following offenses: count I, aggravated rape in violation of La.R.S. 14:42; count II, armed robbery in violation of La.R.S. 14:64; and count III, aggravated burglary in violation of La.R.S. 14:60.- After pleading not guilty to all three counts, defendant was tried by a twelve-person jury and found guilty as charged on count I, not guilty on count II, and guilty as charged on count III. Defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence on count I and ten years at hard labor without benefit of probation, parole or suspension of sentence on count III, the sentences to run concurrently. Defendant now appeals his conviction, alleging three assignments of error. We affirm.

At about 4:40 a.m. on October 19, 1982, the victim was asleep in the bedroom of her home. She was awakened by a male dressed only in undershorts holding a knife to her throat. Her two children were asleep in their bedroom, and her husband was at work offshore. The assailant held a knife to the victim’s throat and raped her. Afterwards he opened the victim’s purse and took out $2.00. He then raped her again. He raped her a third time after threatening to kill one of her children if she did not comply. He then led her to an empty bedroom, sat down on the bed and gave the knife to her saying he was sorry for what he had done and she could cut him. She refused and placed the knife under a pillow and asked him certain questions that would enable her to identify him. The assailant told her his name was Terrance and that he had a tattoo of the name “Terry” on his chest. He left the house through an unlocked open window. The victim notified the police who subsequently arrested the defendant at a pink house across the street from the victim’s.

ASSIGNMENT OF ERROR NUMBER ONE:

Assignment of error number one was not briefed on appeal and is therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied (La.1983). ASSIGNMENT OF ERROR NUMBER TWO:

In the second assignment of error, defendant contends that the trial court erred in lifting the rule of sequestration to allow the victim to hear the closing arguments after defense counsel requested that the victim and other witnesses remain sequestered. Defendant argues the jury could be prejudiced by seeing the victim and that the victim’s presence during closing arguments could color her testimony in a subsequent re-trial.

Defendant does not specify how he suffered any actual prejudice by the victim’s presence during closing argument. Nor does defendant allege any grounds for retrial other than the presence of the victim in the courtroom during closing argument.

La.C.Cr.P. art. 764 provides as follows:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The purpose of sequestration is to assure that a witness will testify as to his own knowledge of the events, to prevent the testimony of one witness from influencing testimony of another, and to strengthen the role of cross-examination in developing facts. State v. Márchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

The issue here was considered in State v. Sonnier, 402 So.2d 650 (La.1981), wherein defendant alleged error in the trial court allowing witnesses to listen to the closing arguments. The court found no error in the trial judge allowing witnesses to remain in the courtroom during closing arguments absent a showing of actual prejudice, or extraordinary circumstances from which the court could infer that prejudice had occurred. The court further found that where witnesses had completed their testimony the purpose of sequestration of witnesses was fulfilled.

The defendant here has not shown that he suffered any actual prejudice, nor has he alleged any extraordinary circumstances from which we may infer that prejudice occurred. Therefore, the mere presence of the victim during closing argument does not constitute error.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant assigns as error the denial by the trial court of defendant’s motion for new trial based on the victim being allowed to remain in the courtroom while counsel gave closing arguments. This contention is disposed of in our ruling on defendant’s second assignment of error.

We affirm defendant’s conviction.

AFFIRMED.