author: DIXON, Chief Justice. CALOGERO, J., LEMMON, Justice,

text:
    STATE of Louisiana v. Frank JARMAN.
    No. 82-KA-2194.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr„ Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Ralph Roy, Asst. Dist. Attys., for plaintiff-appellee.
    Bryan Bush, Bush & Marablella, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

Frank Jarman was charged by bill of information with attempted second degree murder. (R.S. 14:27 and 14:30.1). After a two day trial, a jury deliberated for some three and one-half hours and found him guilty as charged by a vote of eleven to one. The trial judge sentenced him to thirty years in prison. On appeal, Jarman assigns and argues seven errors in the proceedings below. None of them has merit. His conviction and sentence are affirmed.

The charges against Jarman arose out of an incident which occurred on the night of November 6, 1977, in Baton Rouge. In September, 1977 Jarman and Linda Smith separated after living together for several years. Smith moved with their two children (ages two years and seven months, respectively) from New Orleans to her parents’ home in Baton Rouge. The charged offense occurred when Jarman confronted Smith and the children as she was leaving a friend’s house a block away from her parents’ home.

According to the state’s witnesses, Jar-man had attempted by phone to effect a reconciliation with Smith. She refused. On November 5, Jarman showed up at Smith’s parents’ home, wanting to see the children. Smith allowed him to see the children on the porch, but she refused to let him take them across the street. Jar-man then became angry and threatened to “blow her up.” Jarman then left. Smith’s father reported the threat to the police when he learned of it later that evening.

On the next day, around noon, a neighbor spotted Jarman carrying what appeared to be a rifle or shotgun wrapped in a brown paper bag. Later that same evening, Smith and the children visited a friend’s house less than a block away from her parents’ house. Around 10:00 p.m. she phoned her father to say she was on her way home and that her friend, Sharon, would take her. Everyone was concerned at the time about Jarman’s threat.

Joseph Bell, Sharon’s cousin, carried one of the children to the car, and Smith carried the other. Jarman appeared from behind a parked car and said, “I’ve been waiting.” Jarman and Bell struggled, and Jarman drew a sawed-off single barreled shotgun. The child was knocked to the ground. Jar-man hit Smith with the butt of the shotgun and took off after Bell.

Jarman returned, however, almost immediately, now brandishing a pistol in addition to the shotgun. He then struggled with Smith, and the shotgun discharged. Smith was hit in the right elbow. Her children, according to Smith, were also wounded.

Smith broke free and ran down an alley where Jarman cornered her again. He then began to pistol whip her. She claimed the blows fractured her skull. At this point, Smith’s father came up. Jarman had the shotgun to her face and threatened to kill her. Jarman backed toward the street holding Smith at gunpoint. Mr. Smith then told Jarman that the children had been shot. Jarman cocked the pistol and pointed it at Mr. Smith. He then, however, shoved Linda toward her father, told her to see about the children, and ran off.

An arrest warrant for Jarman was issued on November 8. Jarman was not, however, arrested in Louisiana until some four years later. After the incident he went to California. His arrest there on unrelated charges revealed the outstanding Louisiana warrant and led to his extradition here.

Jarman testified on his own behalf. He told another version of the events. He said he went to Baton Rouge to see his children. The meeting with Linda was friendly, and she accepted some money he had brought for the children. She told him he would never see the children again. He denied making any threats. He also denied carrying a paper bag or shotgun at the time. (He was never asked, however, about the next day when the neighbor allegedly saw him).

Jarman also admitted being in the neighborhood on the evening of November 6. He claimed he wanted to talk with Smith privately, away from her parents. He admitted he carried a .357 magnum, but he said it was for protection from another fellow who lived in the area and who had shot Jarman’s brother in 1973. Jarman contended that Bell had the shotgun and that it discharged when the two were struggling. He admitted he struck Smith once in trying to get her off him while he was wrestling with Bell. He testified that Smith’s father had a gun, that several shots were fired, and that he threatened Linda only to keep her father at bay long enough to get to the street where he could get away. He also admitted firing shots at Bell before and after the incident in the alley.

Jarman testified that he did not leave for California until the end of the month. He said he did not know the police were looking for him, and he denied that he left the state to avoid arrest.

Assignment of Error No. 1

By this assignment, Jarman claims that the trial court failed to maintain proper sequestration of the witnesses. He contends that state witnesses were in the courtroom throughout the direct examination and half way through the cross-examination of Linda Smith, the state’s lead witness. He argues that this was a denial of due process in that it deprived him of an adequate defense and undermined his ability to confront and to cross-examine his accusers.

The record indicates that defense counsel, during his cross-examination of Smith, noticed persons in the courtroom whom he thought might be witnesses. He asked them to be removed if they were. The state claims that the witnesses simply walked in, were spotted, and were asked to leave.

The alleged witnesses were never identified. There was no showing that they were actually witnesses who eventually testified nor that any later testimony was influenced by the alleged violation of the sequestration order. Based on the showing made, this assignment is without merit. See State v. Armstead, 432 So.2d 837, 841 (La.1983). Moreover, defense counsel failed to make a contemporaneous objection. C.Cr.P. 841.

Assignment of Error No. 2

By this assignment, Jarman contends that the trial court erred when it denied his motion for a mistrial due to alleged prejudicial remarks by the prosecutor.

A police detective had testified for the state about his unsuccessful efforts to locate and arrest Jarman after the incident. During cross-examination, Jarman maintained that he did not leave town until November 30, 1977. Before asking further questions about where he stayed before leaving for California, the prosecutor turned to a police detective and said, “Henry, listen. Have you got your pencil and pad because we are going to have some homework to do tonight?” Defense counsel moved for a mistrial which was denied. He did not ask for a cautionary instruction to the jury.

The remarks were gratuitous and improper. Nevertheless, mistrial is a drastic remedy. Unless mandated by C.Cr.P. 770, it is committed to the sound discretion of the trial judge and is warranted only if substantial prejudice results which would deprive a defendant of a fair trial. State v. Narcisse, 426 So.2d 118, 133 (La.1983). Defense counsel did not deem the prejudice sufficient to ask for a cautionary instruction at the time, and the trial judge obviously did not think one necessary, either. Defendant suffered no substantial prejudice by the remarks.

This assignment is without merit.

Assignment of Error No. 3

By this assignment, Jarman contends that n versible error occurred when the prosecutor exceeded the scope of permissible argument during rebuttal argument at the close of the trial. The remarks concerned the whereabouts of Joseph Bell, the man who had carried the son to the car on the night of the incident.

During closing argument, defense counsel repeatedly referred to Bell’s absence. He attempted to use Bell’s absence as a means of casting doubt on the state’s case. He tried to imply that the state knew where Bell was, or, at least, had the resources to find him if his testimony might have helped the prosecutor. Bell was not called as a witness, defense counsel implied, because his testimony would have supported Jarman’s story.

On rebuttal, the prosecutor stated that he did not think Bell’s testimony was crucial, given the other testimony. He indicated that Bell had given a statement which did not conflict with the state’s version. Moreover, the state's version had Bell running off when the incident began. He implied that defense counsel should have found Bell, if his testimony was so important. The prosecutor then began to tell how he had looked for Bell but could not find him. He thought he was in prison in Folsum, but detectives could not locate him. He then said he could probably get him to court if he had another day.

At this point, defense counsel objected, asked for an admonition, and moved for a mistrial. The jury was retired. Defense counsel objected to everything said which was not in the record. The trial judge questioned the contemporaneous nature of the objection. The prosecutor argued that his remarks were based on the record because defense counsel had dwelled on Bell’s absence during closing argument. The trial judge found the remarks to be proper rebuttal. He denied the motion for a mistrial, but he did instruct the jury to disregard the prosecutor’s remarks.

The argument of counsel is governed by C.Cr.P. 774. Comments made by a prosecutor which refer to matters allegedly within his personal knowledge but not in evidence are “particularly reprehensible.” State v. Prestridge, 399 So.2d 564, 579 (La.1981). Nevertheless, before allegedly prejudicial argument requires reversal, the court must be thoroughly convinced that the jury was influenced by the remarks and that such contributed to the verdict. State v. Sharp, 418 So.2d 1344, 1349 (La.1982).

The thrust of the prosecutor’s remarks was intended to downplay the importance of Bell’s testimony to counter defense counsel’s position that it was crucial. To do so was proper. In so doing, however, the prosecutor referred to an alleged statement by Bell after the incident which was not produced. He claimed that he knew that Bell did not know anything that the other witnesses had not told the jury.

The jury deliberated some three and one-half hours. After one hour, they asked for additional instructions. The verdict was eleven to one. The evidence was close in this case; nevertheless, the jury’s verdict is more than defensible on the basis of the evidence which it heard. The jury was admonished by the trial judge, and we are not thoroughly convinced that these remarks influenced the jury or that they contributed to the verdict. Credit should be accorded to the good sense and fairmindedness of jurors who have heard the evidence. See State v. Dupre, 408 So.2d 1229, 1234 (La.1982).

This assignment is without merit.

Assignments of Error Nos. 4 and 5

By these assignments, Jarman contends that the state somehow conspired to trick him into misidentifying a man in the courtroom as Joseph Bell.

During Jarman’s cross-examination, the prosecutor asked him if he knew where Bell was. Jarman replied that Bell was in the courtroom sitting in the audience. Surprised, the prosecutor asked Jarman to point him out, and the prosecutor asked for an instanter subpoena. It turned out that the person identified was Isiah Harris, then the fiancee of Linda Smith. Harris evidently did bear a resemblance to Joseph Bell. During the cross-examination, the prosecutor had Jarman repeat unequivocally before the jury that Harris was Bell.

Jarman argues that this constituted a comment on the credibility of the defendant while creating collateral issues which confused the jury. No doubt, this misidentifi-cation did Jarman little good in the eyes of the jury. The jury did, however, hear the testimony that the two resembled each other. It also knew that over five years had elapsed since the incident and that such a mistake was reasonable.

But more importantly, there is simply nothing which substantiates Jarman’s charge that he was the victim of some subterfuge by the state. The state did not know who Harris was, either. Once Jar-man identified him as Bell, the state had no choice but to put Harris on the stand so that his identity could be discovered. Defense counsel did not even cross-examine Harris to determine whether he was there at the request of the state or a prosecutor.

These assignments are without merit.

Assignment of Error No. 6

Isiah Harris testified that he was in jail at the time of the shooting. At Jarman’s motion for a new trial, defense counsel argued that this was false and that he was prejudiced by the jury not hearing the truth. He repeats this argument in this assignment of error.

Assuming it is true that Harris was not in jail at the time, his testimony to that effect did not deprive Jarman of a fair trial.

This assignment is without merit.

Assignment of Error No. 7

By this assignment, Jarman contends that the trial court erred in denying his motion for a new trial based on his claim that the verdict was contrary to the law and evidence. Specifically, he argues that there was no evidence of specific intent to kill.

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. R.S. 14:27; 14:30.1; State v. Huizar, 414 So.2d 741, 746 (La.1982). Claims that the evidence adduced at trial was insufficient to convict a defendant of a given crime are reviewed under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court must consider the evidence in the light most favorable to the prosecution in order to determine if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.

Through the testimony of the victim, the state showed that Jarman threatened to “blow up” Smith one day before the incident. A neighbor saw Jarman in the area on the next day with what appeared to be a gun in a brown paper bag. Jarman himself testified that he had a .357 magnum with him that night. Smith and her father testified that he had a shotgun in addition to the pistol. The shotgun discharged, injuring Smith and her children. Jarman admitted he struck Smith with the butt of the shotgun. Smith testified that Jarman also struck her repeatedly with the butt of the pistol. Jarman pointed the pistol at Smith and her father and threatened both of them. Following the shooting, Jar-man went to California.

Based on this showing, any rational trier of fact could have concluded beyond a reasonable doubt that Jarman actively desired to kill when he struck Linda Smith in the head with the stock of the shotgun, when he fired the shotgun at close range, and when he repeatedly hit Smith in the forehead with the butt of the pistol.

This assignment is without merit.

Accordingly, Frank Jarman’s conviction and sentence are affirmed.

CALOGERO, J.,

concurs, not being in full agreement with the majority’s treatment of Assignment of Error No. 2.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

This was a credibility contest in which the jury weighed defendant’s version of the occurrence against the version related by Ms. Smith and her father. Bell was the only other witness to the incident, and the prosecutor’s gratuitous remark that Bell’s statement to the police (not in evidence) indicated that Bell knew nothing about the shooting could well have tipped the scale in this 11 to 1 verdict after three and one-half hours of deliberation.

I cannot say that the evidence was so overwhelming that this prosecutorial misconduct in arguing beyond the evidence did not influence the verdict. I would reverse and order a new trial.

      . Before the state called any rebuttal witnesses on the first day of the two day proceeding, the judge and the attorneys discussed whether to hold them over to the next morning. By this time Joseph Bell had become of importance in the case. See the discussion of Assignments of Error Nos. 4 and 5. The state wanted to get Bell there for the next morning, believing him to be in prison in Hammond. Defense counsel objected to the continuance, stating he had a trial the next day. Eventually, it was agreed that the state would call its rebuttal witnesses that evening and reserve its right to put Bell on the stand the next day. Closing arguments took place the next morning. Bell, evidently, could not be found. Presumably, the prosecutor was referring to these failed attempts to locate Bell after court had adjourned on the night before.

      . According to defendant’s version, Bell was the person with the shotgun, and Ms. Smith was injured by a shot from Bell's gun during defendant’s struggle with Bell.
      Under Ms. Smith’s version, Bell had left the scene before the shooting.

      . The pertinent portion of the prosecutor's rebuttal argument was:
      "... The second question, Joe Bell _ it wasn’t until yesterday at this defendant's testimony that he focuses on Joe Bell as being a critical witness — as being the person who is responsible for all of this.... Now, you know, if — if my client told me that months ago — I don’t know — when he hired [defense counsel], you know, I would have made an effort to find Mr. Joe Bell. I knew the officers talked to him. He gave them a statement. I knew that. I — I couldn’t find him. He’s not here in town anymore, but I also knew that he didn’t know anything about the shooting because he was off — he had run off, and I also knew that I had other witnesses who knew about the same thing he did and more. So I’m able to judge the situation, but I didn’t go all out to look for him until this came up yesterday. And I will tell [defense counsel] right now. He’s in Folsum, Louisiana, which is in — in—around Covington out there, and I tried to get him, but he’s obviously not here. I obviously wasn’t successful. But that’s where he is, and I just started looking for him yesterday. But if I had another day’s notice, I could bring him here. I’m pretty sure I could have gotten him up here_” (Emphasis supplied.)


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Zeno DAVENPORT.
    No. 82-KA-1996.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Richard Carney, Asst. Dist. Atty., for plaintiff-appellee.
    Donald R. Minor, Jeanette G. Garrett, Shreveport, Public Indigent Defender, for defendant-appellant.
   DENNIS, Justice.

Defendant, Zeno Davenport, was convicted by a jury of attempted simple burglary of an inhabited dwelling, La.R.S. 14:62.2 and La.R.S. 14:27, adjudged to be a second offender, and sentenced to seven years at hard labor, with one-half year to be served without benefit of parole, probation or suspension of sentence. Defendant appealed and argued twelve assignments of error in this court. We conclude that these assignments are without merit and affirm his conviction and sentence.

On July 23, 1980, Marvin Butler returned home and found all the lights on. He walked around the house and discovered a back window broken out and the lock on one of the back doors broken. Entering the house, he saw that “everything was ramshackled.” Mr. Butler testified that an eight track tape deck seemed to be the only item missing. Mr. Butler also said that defendant often came in the washeteria he managed, and, in fact, had been there the Saturday before and the Friday after the Wednesday burglary.

Defendant’s mother testified on behalf of her son and said that he had been living with an uncle in Houston at the time of the crime on July 23, 1980. She stated that he left Shreveport in late May or early June of 1980 and returned on December 7, 1981. During defendant’s apparent absence, a warrant was issued for his arrest in connection with the burglary. Not long after the time his mother said he returned, he was arrested.

Assignments of Error Numbers One, Three, Four and Five

Following an extensive voir dire examination of prospective jurors, Moore, Mille, Bradshaw and Grubb, defense counsel challenged each for cause. Upon the court’s refusal to excuse Moore and Mille for cause, defense counsel challenged them peremptorily. After exhausting his peremptory challenges, defense counsel sought unsuccessfully to challenge Bradshaw and Grubb for cause and they were permitted to serve on the jury. We find that the trial court did not commit reversible error in failing to sustain the challenges for cause.

The prospective juror, Moore, vacillated in his responses. On the presumption of innocence, the following exchanges took place between the juror, counsel, and the court:

Mr. Minor: You would not want to have any question in your (sic) if the person was innocent before you found him not guilty? You would want to be certain of that?
Mr. Moore: Right.
Mr. Minor: You understand the law does not require that?
Mr. Moore: (Shakes head up and down.)
Mr. Minor: Understanding the law does not require that, would you still require the evidence to convince you of his innocence before you would vote? Mr. Moore: Right.
* * * * * *
The Court: Court’s going to have to talk to Mr. Moore again. You didn’t raise your hand while ago when I was talking to you. Let me first ask you if you would follow the law given to you by the Court at the close of the case, whatever the judge tells you is the law at the close of the case, would you follow those instructions?
Mr. Moore: Yes, sir.
The Court: If the judge instructed you that the test is to decide whether the State has proven beyond a reasonable doubt that the defendant is guilty and that there is no requirement for proof of innocence before you can vote not guilty, would you follow those instructions?
Mr. Moore: Yes, sir.
The Court: You appear to be giving two different answers, one to me and one to Mr. Minor, and I can’t tell if you’re confused as to the question.
Mr. Moore: I expect him to prove the man innocent to me.
The Court: That’s what we’re trying to tell you, sir, that the law does not require that to be done. The law says the entire burden is upon the State to prove guilt and places no burden on defendant to prove innocence. And that is the law as given to you.
Mr. Moore: Yes, sir.
The Court: Do you want to ask any more questions, Mr. Minor.
Mr. Minor: No, your Honor.

At this point, defense counsel challenged Mr. Moore for cause, and the trial judge disallowed the challenge.

A juror who is incapable of recognizing the defendant’s presumption of innocence or who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve. State v. Nolan, 341 So.2d 885 (La.1977); State v. Thompson, 331 So.2d 848 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975); State v. Jones, 282 So.2d 422 (La.1973).

However, we cannot say that the trial judge erred in concluding that the oscillation between different views in Mr. Moore’s testimony failed to demonstrate an inability or refusal to recognize the defendant’s presumption of innocence. Although the juror wavered, the fluctuations in his testimony were not so repeated or pronounced as to make the court’s acceptance of his final indication that he would follow the law unreasonable. Accordingly, we find this case distinguishable from State v. Nolan, supra, in which the juror’s retractions, occasionally following considerable coaching by the court and the district attorney, were unreliable. The juror in Nolan did not appear to be steadfast in any of her opinions. On the contrary, this case is more analogous to those in which a juror has voiced an opinion seemingly prejudicial to the defense but subsequently, upon further inquiry or instruction by the court, has demonstrated willingness and ability to decide the case impartially, according to the law and evidence. See State v. Governor, 331 So.2d 443, (La.1976); State v. Johnson, supra. Admittedly, the rehabilitation of the prospective juror was not as full or firm as that which we would hope to find in the record, but the trial judge evidently decided that the juror, by his final answer, indicated a sufficient willingness to follow the law and accord the defendant the presumption of innocence, and we cannot say that he was clearly wrong in this judgment.

Prospective juror Mille was challenged for cause by the defense counsel because he stated that he would accept the opinion of an expert witness in the field of fingerprint evidence if the expert could prove the fingerprint taken off an object matched the defendant’s print. He was not asked, however, whether he would continue to accept such an opinion in the face of contrary expert testimony or a demonstration that the opinion was based upon error or uncertain facts. Moreover, he later along with the other jurors being questioned, indicated that he understood and accepted the law that an expert’s testimony is to be considered just as any other witness’s testimony. Under these circumstances, we conclude that the trial judge did not err in refusing the challenge for cause.

Prospective juror Bradshaw initially expressed doubt about whether he would be influenced by the defendant’s failure to testify but ultimately stated that he would follow the law as given to him by the trial judge and would not hold it against the defendant. There was no reversible error in the trial judge’s refusal to challenge this juror.

Juror Grubb was challenged for cause on the basis of her prior employment as a secretary to one of the judges for the First Judicial District Court. Mrs. Grubb, who was employed as a housewife at the time of these proceedings, testified that she had no particular knowledge of the case and would not be influenced by her prior employment. On the basis of her testimony and the inherently nonpartisan nature of judicial secretarial employment, the trial judge denied the challenge for cause. The ruling was correct.

Assignment of Error Number Six

Defendant by this assignment complains of the trial judge’s failure to grant a continuance. Defendant’s alibi was that he was visiting relatives in Texas at the time of the offense. A continuance was granted the defendant in March, due to his assertion that his relatives would be available in May to testify. However, on May 10, the defendant informed tne court that he was unable to announce that he was ready for trial because the two alibi witnesses had failed to come from Texas.

A motion for a continuance based upon the absence of a witness must state:
1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
2) Pacts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; ... La.C.Cr.P. art. 709(1), (2).

Davenport was unable to show that his relatives would ever be available to testify if a continuance were granted. The trial date had been continued from March 15 to May 10 specifically to allow the witnesses to appear. Defense counsel did not say at trial why the witnesses had not appeared, and did not show that they would appear if the trial were continued again. Under these circumstances, it was not error for the trial court to refuse to grant a continuance.

Assignments of Error Numbers Seven and Ten

In these assignments, defendant complains of the trial court’s refusal to declare a mistrial after two allegedly prejudicial statements made during the testimony of state witnesses.

The victim, Marvin Butler, was asked how long he had known the defendant. His reply was: “He used to go down to my brother-in law’s, lived down on Claiborne Street, and give him a lot of the trouble.” The second allegedly prejudicial statement was made by Lt. Wood, a fingerprint expert. Lt. Wood testified that he “was asked to check known prints against la-tents obtained at the scene.” Defendant argued that this statement led the jury to believe that since the police department had known prints of Mr. Davenport, that he had previously been arrested for another crime.

The trial judge did not err in denying the request for a mistrial. Lt. Woods’ remark did not expressly or necessarily by implication refer to known fingerprints obtained in connection with other crimes. As to the first allegedly prejudicial statement, the witness’s reference to the trouble given his brother-in-law by the defendant did not necessarily refer to criminal activity. Moreover, the judge admonished the jury against considering Mr. But-445 So.2d — 27 ler’s remark as evidence of defendant’s guilt in the present case. Furthermore, the record does not reflect that the defendant was prejudiced in his defense by these remarks.

' Assignment of Error Number Eleven

By this assignment, defendant argues that the trial court erred in allowing the state to elicit testimony concerning the circumstance surrounding the defendant’s arrest. One of the state’s witnesses, Detective Smith, testified over defense objection that when he and another officer arrived at the home of the defendant’s mother, they announced that they had a warrant for defendant’s arrest, and then went inside and found him hiding in a closet. The defendant argues that the evidence was irrelevant because the arrest occurred over a year after the offense and that there was no evidence to show any connection between the offense and his knowledge that he was being sought for the offense.

The defendant’s argument is without reversible merit. Relevant evidence is evidence tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441; State v. Ludwig, 423 So.2d 1073 (La.1982). The standard of relevancy adopted by our statutory evidence rules is based on logic and experience as opposed to a theory of a legal minimum of probative value adopted by some courts and championed by Wig-more. So long as the proffered evidence has a tendency to make a consequential fact more or less probable, the “logical” relevancy test is satisfied. ' Id. Consequently, relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id. Evidence of the defendant’s concealment and attempt to avoid apprehension was relevant, because it tended to indicate a consciousness of guilt and, therefore, one of the circumstances from which the jury could infer guilt.

However, the trial judge should exclude circumstantial evidence, even though logically relevant, if its probative value is outweighed by the risk that its admission will consume too much time, unnecessarily confuse the jury concerning the issues to be determined, tend to excite emotions of the jury to the undue prejudice of the opponent, or unfairly surprise the opponent. State v. Ludwig, supra. Nevertheless, we cannot say that the trial judge erred or abused his discretion in refusing to exclude the evidence of the defendant’s concealment and attempt to avoid apprehension. Although the incident had little probative value as evidence of guilt of the crime charged, its prejudicial effect was also slight, and we are not prepared to say that the trial court unreasonably determined that it was outweighed by the probative force of the evidence.

Defendant’s argument based upon State v. Lee, 381 So.2d 792 (La.1980) is inappo-site. In Lee, we rejected as too broadly formulated the prior statements by this court and other authorities which indicated that evidence of flight is always admissible regardless of the circumstances. Instead, we held that when evidence of flight constitutes evidence of escape, and therefore evidence of another criminal act, the prosecution may not introduce such evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. In the present case, the evidence of concealment did not constitute evidence of another crime and it was introduced for some other purpose than to show criminal character, viz., consciousness of guilt of the charged offense.

Assignments of Error Numbers Thirteen and Fourteen

In these assignments of error, the defendant contends that the trial court committed reversible error in failing to give two instructions requested by defense counsel. The first instruction was: “Fingerprint evidence alone is insufficient to establish guilt beyond a reasonable doubt.”

La.C.Cr.P. art. 807 provides:

A requested special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Defendant’s requested jury charge did not meet the requirements of La.C.Cr.P. art. 807 in that it required explanation and qualification. In his brief to this court, the defendant claims that this charge was relevant because fingerprint evidence alone is not proof of guilt unless circumstances show that the fingerprint was impressed there at the time of the offense. However, that necessary qualification and explanation was not included within the requested jury charge.

The second requested jury charge was: “Fingerprint evidence is circumstantial evidence, not direct evidence.” The judge gave this jury the instruction in his general charge:

Evidence is either direct or circumstantial. Direct evidence is evidence which, if believed, proves a fact. Circumstantial or indirect evidence is evidence which, if believed, proves a fact and from that fact you may logically and reasonably conclude that another fact exists. You cannot find a defendant guilty solely on circumstantial evidence unless the facts proved by the evidence exclude every reasonable hypothesis of innocence.

The requested jury charge does not meet the test of La.C.Cr.P. art. 807 because it was included in the general charge. The jurors should logically have been able to deduce that fingerprint evidence is circumstantial evidence from the definition of circumstantial evidence given in the jury charge. Therefore, the trial judge’s refusal to give this jury charge was not reversible error.

Assignment of Error Number Nineteen

By this assignment, defendant argues that a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt upon the evidence presented. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the standard for review of a convicted defendant’s attack on the sufficiency of the evidence to prove his guilt is judged by determining whether “after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

At Davenport’s trial on the burglary charge, essentially three pieces of evidence were presented to convict him: (1) A partial palm print, identified as belonging to the defendant, was found on the screen removed from the window through which the burglar gained access at the rear of the premises; (2) when the police came to arrest the defendant, he concealed himself in a closet in an apparent attempt to avoid arrest; (3) Mr. Butler, the owner of the premises, testified that he had seen the defendant prior to and after the burglary. His testimony conflicted with that of the defendant’s mother who said the defendant had been in Houston for a month prior to the burglary.

As we stated in State v. Pryor, 306 So.2d 675, 677 (La.1975), the thrust of fingerprint cases from other jurisdictions is that a fingerprint of the accused found at the scene of an unauthorized entry or upon some object connected with the crime is, by itself, not evidence that the accused committed the offense if the evidence permits a reasonable inference that the fingerprint may have been placed there at a time other than the time of the offense.

We have concluded that, under the circumstances of this case, the palm print found on the screen taken from the rear window through which the burglar gained entry constitutes evidence from which a jury might draw a reasonable inference that the defendant had beyond a reasonable doubt committed the unauthorized entry at the time of the burglary. The evidence presented by the state reasonably excludes, if accepted by the jury, the hypothesis that the print was impressed at a time other than that of the crime. There is no evidence or indication in the record that the defendant was ever on the premises involved at a time other than that of the charged offense, and it appears that the chances are remote that he had at some other time innocently handled the rear window screen which the burglar removed to gain entry. Furthermore, we cannot say that, under the present record, it was impermissible for the jury to infer that the latent palm print found on the window screen had been made recently. See State v. Pryor, supra.

Supplemental Assignment Number One

This assignment of error relates to the length of defendant’s sentence. Defendant was sentenced to serve seven years at hard labor with one-half year being without benefit of parole, probation or suspension of sentence. This is slightly more than half the statutory maximum for attempted simple burglary of an inhabited dwelling by a multiple offender.

A trial judge is vested with broad discretion in imposing sentence as this Court will not substitute its judgment for that of the trial court unless the sentence imposed is grossly out of proportion to the offense. State v. Roussel, 424 So.2d 226 (La.1982); State v. Lewis, 414 So.2d 703 (La.1982). The court cited as reasons for the sentence imposed that the defendant was a second felony offender, that he had pled guilty to at least one other misdemeanor charge, that defendant had skipped town when he found out about the warrant for which he was being tried; and that defendant caused difficulty for the authorities in bringing defendant to trial. We find that the judge did not abuse his discretion in sentencing this defendant to seven years.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs, not entirely agreeing with the majority’s treatment of Assignments of Error 1, 3, 4, 5.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Donald Wayne WRIGHT.
    No. 82-KA-2012.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Peb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Michelle Jackson, Asst. Dist. Atty., for plaintiff-appellee.
    Hank Seldon Hannah, Hannah, Cook & Kaufman, Lafayette, for defendant-appellant.
   BLANCHE, Justice.

Defendant was arrested and indicted for the murder of his wife in a Lafayette motel room on December 6, 1981. After a jury trial, defendant was found guilty of second degree murder and sentenced to life imprisonment. From that conviction, defendant has appealed, alleging eight assignments of error.

FACTS

The events leading to the death of defendant’s wife began on December 3, when Donald Wright arrived in Lafayette from his home in Center, Texas to attend a two-day drilling school sponsored by his employer. At the time of his arrival, he was accompanied by a female companion, one Trina Honnicut. Defendant apparently slept with Ms. Honnicut in his motel room on the first night; however, on the following evening, he was joined in Lafayette by his wife, Virginia Lee Wright. The purpose of this visit is somewhat unclear. According to defendant, he and his wife enjoyed a great deal of extramarital sexual freedom, and Mrs. Wright was coming to Lafayette to “go out and be picked up by another man.” Tr. Vol. 3, R., p. 421. The Wrights went out on the evening of December 5 in separate cars. At some later stage of the evening, defendant returned to the motel and began arguing with his wife.

At approximately 5:30 a.m. on December 6, 1981, defendant called the front desk of the motel and requested an ambulance. Police arrived twenty minutes later and found Mrs. Wright lying on one of the beds, bleeding profusely from the mouth and ear. Defendant told police at the time that he and his wife had been arguing, and that in attempting to rise from the bed, Mrs. Wright fell and struck her head on the floor. Mrs. Wright was taken to a nearby hospital where she was examined by Dr. Thomas Bertuccini, a neurosurgeon. Dr. Bertuccini performed emergency surgery to relieve the victim’s internal hemorrhaging, and found two fractures of the victim’s skull — one at the base of the skull, and another of the temporal bone behind the right ear. Despite the efforts of the surgeons, Mrs. Wright died of cardiac arrest within three hours of arrival.

Subsequent to Mrs. Wright’s death, an autopsy was conducted and the cause of death determined to be hemorrhaging as a result of the basilar skull fracture. In addition, the coroner found a number of bruises on the victim’s legs and right breast. In response to police questioning, the coroner expressed the view that the victim’s injury was inconsistent with a fall from a bed. Thereafter, defendant was placed under arrest for the murder of Mrs. Wright.

After being taken into custody, defendant made a taped statement to police in which he described returning to the motel to find his wife in bed with another man. A violent argument then began between defendant and his wife during which the defendant admitted slapping her. However, defendant maintained that during this episode his wife accidentally slipped and fell from the bed injuring her head.

At trial on the merits, the prosecution introduced no eyewitnesses, but relied on the testimony of several expert witnesses. Both the operating surgeon and the coroner testified that it was highly improbable that an injury as severe as Mrs. Wright’s could have been incurred by a fall from a 20" high bed. On cross-examination, however, both physicians admitted that such an injury was within the realm of possibility from the fall in question. The defense offered three expert witnesses, qualified in neurosurgery and neuropathology. The first witness had treated Mrs. Wright for a previous skull fracture in 1973 and indicated that Mrs. Wright may have had a pre-existing weakness in the skull as well as a continuing difficulty in balancing herself. The other two witnesses testified that the earlier injury could have contributed to the fatal fracture and that it was a reasonable hypothesis that a fall from 20" onto the motel room floor had caused the skull fracture.

Defendant also took the stand in his own behalf, and testified to facts slightly different from those given in his previous statements. At trial, defendant explained the promiscuous nature of his marriage, and stated that he and his wife had planned for her to meet another man in Lafayette. The argument with his wife ensued, he claimed, when he found his wife performing oral sex on the man — a practice the Wrights had apparently agreed to reserve for one another. Defendant once more admitted to slapping his wife and shaking her; however, his testimony as to the fall was essentially the same. Defendant claimed his wife tried to stand on the bed and lost her balance, falling backwards onto the floor.

After hearing this testimony, the jury was retired at 11:00 p.m. on the second day of trial. At 3:00 a.m., the jury returned with a verdict of guilty of second degree murder.

Assignment of Error Nos. 1 and 2

By these assignments, defendant complains of conduct by the trial judge which defendant contends constitutes improper comment on the evidence. The conduct in question occurred while the defendant was testifying on direct examination. According to defendant, the trial judge abruptly left the bench, without ordering a formal recess or offering any explanation to the jury. Defendant maintains that the unexplained behavior, coming as it did at a crucial point in defendant’s testimony, amounted to non-verbal comment on the credibility of defendant’s testimony. On the other hand, the state contends that the trial judge made no comment remark, or other inference which indicated in any way her disbelief of defendant’s testimony. The record itself shows that after the defendant had finished describing the condition of his wife on the floor of their motel room, the court stated:

“Excuse me. I hate to interrupt. We’re going to take a short recess. The court will be in short recess.”

We find that this assignment lacks merit. At the conclusion of the recess, defendant moved for a mistrial. In denying the motion, the trial judge explained that the recess was provoked by her concern that the defendant was about to lose control emotionally on the stand, as he described his attempts to assist his dying wife. While an outburst of this nature may or may not have been imminent, we consider such action within the trial judge’s discretion if the judge reasonably believed it was necessary in order to maintain the composure of a witness so as to preserve order in the courtroom.

Defendant correctly points out that improper comment on the evidence may constitute reversible error. State v. Lonigan, 263 La. 926, 269 So.2d 816 (1972), State v. Green, 231 La. 1058, 93 So.2d 657 (La.1957). Clearly, in some instances, nonverbal conduct could constitute comment on the evidence. Furthermore, a trial judge, while possessing much discretion to regulate the time and number of recesses, should expressly refrain from interrupting the crucial testimony of a witness where a recess is not requested by a party and is not demanded by an emergency.

We do not consider that the recess called by the trial judge in this ease constituted an impermissible comment on the evidence. Defendant has simply not made a sufficient showing of prejudice created in the minds of the jury so as to constitute abuse of the trial court’s discretion.

This assignment of error lacks merit.

Assignments of Error Nos. 3, 4 and 5

In assignments three and four, defendant maintains that the specific intent element of second degree murder was not proven by the state, and that no reasonable trier of fact could have concluded from the evidence presented that defendant was guilty beyond a reasonable doubt of second degree murder. Because these two assignments are inextricably bound up with the issue of sufficiency of the evidence, we will discuss them together with assignment of error number five: whether, viewing the circumstantial evidence of the case in the light most favorable to the prosecution, every reasonable hypothesis of innocence was excluded.

The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Where circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 mandates that: “Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

This Court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, 436 So.2d 464 (La.1983). La.R.S. 15:438 “may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.”

Having set forth the test, we now examine the evidence to determine whether the hypothesis of an accidental fall was in fact reasonable. The state offered two medical witnesses to demonstrate the unlikelihood that the victim’s injuries were caused by an accidental fall. The first witness, the operating surgeon, testified that the skull fracture suffered by Mrs. Wright was one most often seen in traumas arising out of automobile accidents. When asked whether a basilar skull fracture could have occurred from a fall off of a bed onto a carpeted surface, the doctor stated:

“I cannot exclude it as a possibility. But having had experience with rather massive head injury in the past and knowing the circumstances under which they happened, I think it would be very ■ unlikely that this would have occurred from a fall off a bed, particularly if there were a fall onto a carpeted area.” Tr. p. 165.

On cross examination, the doctor admitted again that a fall could have caused the injury, although he considered the probability remote.

The second witness offered by the state, the coroner who performed the autopsy on Mrs. Wright, corroborated the testimony of the surgeon. The coroner stated that the impact force from a fall of 20" would be very mild and was not a likely explanation of the victim’s injuries.

By contrast, the defense maintained that the theory of an accidental fall was equally reasonable. To support this hypothesis of innocence, the defense called two neurologists, both of whom were board certified in neuropathology and had performed innumerable autopsies. The first expert witness, Dr. Kenneth Earle, testified that he not only considered the explanation offered by defendant as a possible explanation, but considered it a reasonable hypothesis to explain the victim’s injuries. When asked how likely an injury of the sort incurred by the victim would be, given the distance and the surface of impact, the doctor responded:

You can’t mathematically say, but I can say that in my experience it is not at all uncommon for someone falling a distance of no more than a few feet, impacting on a fairly solid object such as a concrete floor or even a carpeted floor— and this lady was over five (5) feet tall ... If she was in an almost vertical position, and was almost two (2') feet off the ground, this is a considerable distance for a hundred and ten (110) pound weight to impact on the pavement. And it is my impression that this is what occurred and that the basilar fractures were complicated even more by the fact that this lady had previous fractures of the basilar skull in 1973.

Transcript, pp. 372-3. The second witness for the defense, testified to virtually the same things and confirmed Dr. Earle’s statement that an accidental fall from the bed could have fractured Mrs. Wright’s skull.

In addition to medical testimony, evidence was adduced of a violent quarrel between the defendant and the victim. The examining coroner stated that the body of the victim contained fresh bruises on the leg and breast. The most revealing testimony came from the defendant himself. The defendant related that he and his wife had agreed that she would go out in Lafa-' yette and pick up another man. He testified that his wife did in fact return to the motel room with a man and proceeded to have sex with him. Defendant returned to the room to find his wife performing oral sex on the man, a practice which defendant and his wife had apparently agreed to reserve to themselves. Defendant testified to his anger at seeing this, and admitted hitting his wife on the leg, and slapping her. Shortly afterward, as defendant was preparing to leave, the argument resumed, leading to the victim’s injury.

Having all this information before it, the jury concluded that every reasonable hypothesis of innocence (accidental injury) was excluded. Evaluation of the totality of the evidence presented convinces us that the jury could have excluded every reasonable hypothesis except murder beyond a reasonable doubt. The nature and severity of the victim’s skull fracture (as explained by the coroner and surgeon), the bruises on her body, the fact that defendant and the victim were alone in the room, and defendant’s own admission of his outrage at his wife’s behavior and of an argument and a beating, when considered as a whole, convinces us that the jury may properly have excluded an accidental fall from a 20" high bed as a reasonable hypothesis.

Likewise, we hold that the jury could have concluded beyond a reasonable doubt that defendant possessed the specific intent to kill his wife. To prove that defendant specifically intended to commit the crime, the State was required to show that defendant actively desired the consequences to follow from his act. La.R.S. 14:10. Clearly, proof of intent must be inferential in this case, since no one was present in the room besides the defendant and the victim. Nevertheless, the jury was presented with a great deal of circumstantial evidence from which intent might be inferred. Specifically, defendants testimony as to his anger and displeasure with his wife (assuming the truth of her conduct and breach of their agreement) and to the fact that he beat her, coupled with the severity of the skull fracture and the improbability of it being caused by a fall onto a carpeted floor, was clearly sufficient, when viewed in the light most favorable to the prosecution, to have convinced the jury beyond a reasonable doubt that defendant possessed the requisite intent to kill or inflict great bodily harm on his wife.

These assignments of error are without merit.

Assignments of Error Nos. 6 and 7

Defendant did not brief either of these assignments. Under Louisiana jurisprudence, assignments of error not argued or briefed are deemed abandoned. State v. Lindsey, 404 So.2d 466 (La.1981); State v. Sonnier, 379 So.2d 1336 (La.1979), State v. Wientjes, 341 So.2d 390 (La.1976).

These assignments of error therefore lack merit.

Assignment of Error No. 8

Defendant’s final assignment of error urges that, because of the long hours of testimony during the two-day trial and the retirement of the jury at 11:00 p.m. until their verdict was returned at 3:00 a.m., he was deprived of his right to a fair trial. In support of this contention, defendant cites U.S. v. Diharce, 526 F.2d 637 (C.A. 5th Cir.1976). In that case, the trial judge ordered trial to begin at 7:30 p.m., when the jury selection had concluded, and concluded the evidentiary portion of the trial by 10:25 p.m. that evening. The 5th Circuit found that in this case, the judge’s decision to begin the trial so late in the day was error.

Although we agree with the result reached in Diharce, we do not find that case applicable to the instant facts. The jury in this case was forced to sit through two long days of testimony. However, we find nothing unusual in retiring the jury late in the evening, rather than waiting until the following day. The four hours spent in deliberation reassure us that the jury’s verdict was not unduly hurried.

This assignment of error lacks merit.

DECREE

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

AFFIRMED.