author: GUIDRY, Judge. KNOLL, Judge,

text:
    STATE of Louisiana v. Helen Faye Wilson Armstead KAHEY.
    No. Cr 84-60.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Walter C. Dumas, Baton Rouge, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

The défendant, Helen Faye Wilson Arm-stead Kahey, was indicted by the Sabine Parish grand jury for the second degree murder of Arthur Armstead Kahey, in violation of La.R.S. 14:30.1. Defendant filed a motion to quash the grand jury indictment urging that the selection procedure employed to empanel the grand jury was illegal. The trial court denied the motion to quash. Subsequently, the defendant pled guilty to the charge of manslaughter reserving her right to appeal the trial court’s denial of the motion to quash. The trial court sentenced the defendant to eight years at hard labor. Defendant appeals her conviction and sentence urging the following two assignments of error:

1. The trial court erred in denying her motion to quash the grand jury venire.
2. The trial court erred in imposing an excessive sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying her motion to quash the grand jury venire. Specifically, defendant argues that the list of prospective jurors used to empanel the grand jury that returned a true bill was not selected from a cross section of the general community of Sabine Parish.

At the hearing on the motion to quash, the following stipulation was made regarding the method of selecting the general venire in Sabine Parish:

“That approximately five hundred to two thousand names are selected from the voter registration rolls of Sabine Parish at random by lot. These are put on strips of paper and they are then drawn by jury commission. And these five hundred to two thousand voters are then mailed a questionnaire, which we would offer, and introduce into evidence as Joint — 1. These are then returned to the Clerk of Court, who then meets with the jury commission, who go through the questionnaires. And they then select those which are qualified to be on the grand jury, or the jury venire. Mr. Wright would also testify that the jury commission excuse any persons who meet the exemptions set forth on the questionnaire; those that they know are extremely ill and have become ill since the signing of the questionnaire; and those which the judge would ordinarily excuse that they have personal knowledge of. He would testify that there are five commissioners on the jury commission. There are no blacks on the jury commission. That the ratio of the general venire approximates the population of the parish insofar as the different racial balances and sexual balances. Once the general venire is selected, then slips of paper are made. And then they go about drawing the number of people who are called by the court for each venire, at random, by lot.
THE COURT: Is there anything you want to add?
MR. DUMAS: Yes, sir: Also, they use the voter registration rolls to get the names. And he stated that there are approximately thirteen thousand registered voters. That the primary source they use. He said it was about the only source they use. And he stated that if they would know of someone — MR. LAWSON: Who is not registered to vote, right.
MR. DUMAS: —who is not registered to vote, if one of the commissioners would know, they would send them a questionnaire, also. If they would have personal knowledge or feel that they would qualify. And if they would know of someone who is sick or ill, if they have personal knowledge of it, that they would excuse them.
I think that’s it, Judge.”

At the outset, we note that the exclusive use of voter registration rolls to select the general venire is permissible absent a showing of discrimination against a class of people. State v. Daigle, 344 So.2d 1380 (La.1977). The defendant, in this case, has failed to establish that the use of the voter registration rolls by the Sabine Parish jury commission results in discrimination against any class of people.

Regarding the use of the questionnaire by the jury commission, Louisiana Supreme Court Rule XXYI authorizes its use. Supreme Court Rule XXVI states in pertinent part:

“Section 2. Duties of the Jury Commission.
(a) The Jury Commission shall impartially select a general venire composed of all qualified persons, except:
(i) Those who are classified as excluded.
(ii) Those who are exempt and who, having been so advised, choose to claim the exemption.
(iii) Those who are timely excused by the court.
(b) Qualification, as well as those above stated exceptions in paragraph (a)(i), (ii), and (iii), may be ascertained by the jury commission on the basis of verified documented information available to it at the time of selection of the general venire.
(c) Unless such verified documented information is available to the jury commission at the time of impartially selecting, revising or supplementing a general venire, all persons randomly chosen shall, not to exceed the required number, be impartially selected as the general venire.
(d) Alternatively, the jury commission may determine qualification as well as the exceptions set forth in (a) above, on the basis of verified information obtained by means of an appropriate written questionnaire mailed to each person under consideration for impartial selection, revision or supplementation of a general venire. ” (Emphasis added.)

In State v. Reid, 340 So.2d 551 (La.1976), the court was called upon to decide whether the method of selecting the general ve-nire in Calcasieu Parish conformed with the law. The particular objection raised by the defendant in Reid concerned the parish’s circulation of a questionnaire to prospective jurors. The questionnaire was designed to aid the jury commission in determining the qualifications of persons to serve as jurors and whether or not, if called for jury duty, they would claim an exemption to which they may be entitled by virtue of age, occupation or previous jury service. In finding the system employed in Calcasieu Parish acceptable, the court stated:

“It is undisputed that the jury commission has the authority to exclude unqualified persons from the general venire. Inasmuch as physical infirmity is clearly a disqualification from jury service, we are of the opinion that the attempt to gather documented information by questionnaire concerning the medical condition of prospective jurors is a legitimate exercise of the authority vested in the jury commission.”

Additionally, the court noted:

“Since the list of exempt classes is exclusive and the right to claim an exemption absolute, it is clear that, whether performed by a judge or a jury commission, the act of excluding an exempt person from the general venire is a purely ministerial function. While the code of criminal procedure in enumerating the duties of the jury commission does not expressly authorize the performance of this function, neither does it by direction or implication prohibit it. This court has recognized in the passage of its new rule concerning the selection and constitution of a general venire that the jury commission is an appropriate body to exclude the names of those claiming lawful exemptions. Moreover, we have specifically authorized a questionnaire process for ascertaining qualifications and claimed exemptions. We are unable to hold, therefore, that the actions of the Calca-sieu Parish jury commission in excluding from the general venire persons claiming lawful' exemptions are illegal.” (Footnotes omitted.)

Recently, in the case of State v. Jacko, 444 So.2d 1185 (La.1984), the Louisiana Supreme Court scrutinized the method of selecting the general venire in Evangeline Parish and found it to be illegal. The court reasoned that the jury commission of Evangeline Parish could not simply take it upon themselves to exclude prospective jurors whom they knew had the right to claim an exemption; the individual must have taken affirmative action (e.g. the questionnaire) to indicate that they claimed an exemption.

Although the record in the present case does not include a copy of the questionnaire utilized by the Sabine Parish jury commission, the stipulation entered into by the State and the defense illustrates that the jury commission excludes those individuals who have claimed an exemption on the questionnaire or have disclosed that they suffer from a physical infirmity which would disqualify them from jury service. See La.C.Cr.P. Art. 401. According to Reid, the jury commission’s procedure accords with the law in this regard. However, the stipulation reveals that the commissioners also exclude those individuals that they know to be extremely ill and have become ill since the signing of the questionnaire as well as those persons who would ordinarily be excused by the judge. Under Jacko, this procedure is improper since the commissioners make these decisions based upon their own personal knowledge not on verified information as required by Supreme Court Rule XXYI. Although this latter procedure is improper, the record does not reflect that the exclusion of persons from jury service by the jury commissioners in Sabine Parish on personal knowledge occurred with any frequency such as was the case in Jacko where the system itself for selecting the general venire was such that an employee of the jury commission routinely avoided selecting for the general venire all individuals exempt under Supreme Court Rule XXV. Additionally, there is no showing that this practice was followed in the selection of the particular general venire in question or that the general venire so selected did not represent a true cross section of the general community of Sabine Parish. In the latter connection, to the contrary, the stipulation reflects that the ratio of the general venire approximates the population of the parish as to racial balance and sexual balance. Under these circumstances, although the improper practice above mentioned should be discontinued, we conclude that this single impropriety in the procedure followed for the selection of the general venire in Sabine Parish does not translate into an unconstitutionally composed general ve-nire.

The defendant has made no showing that the irregularities complained of resulted in the systematic exclusion of certain classes of people nor has she demonstrated wherein she has suffered any injury from the composition of the general venire. See State v. Reid, supra. We find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, defendant contends that the sentence imposed by the trial court is excessive. La. Const. Art. I, § 20 prohibits the imposition by law of excessive punishment. A sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeful and needless imposition of pain and suffering. State v. Goode, 380 So.2d 1361 (La.1980). The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive absent a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982). However, it is also clear that a sentence that is well within the statutory maximum may be excessive under certain circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979).

In the instant case, the defendant entered a plea bargain whereby she pled guilty to manslaughter with the agreement that the sentence imposed would not exceed ten years at hard labor. While it is not controlling, the plea bargain is a factor to consider in determining whether the sentence imposed in accordance therewith is excessive. State v. Smack, 425 So.2d 737 (La.1983). The maximum sentence for manslaughter is twenty-one years at hard labor. The defendant received a sentence of eight years at hard labor. Thus, the sentence received was within the maximum set by law and complied with the plea bargain as well.

The facts surrounding this case were set forth as follows in the plea colloquy:

“THE COURT: Mr. Lawson, would you state the factual basis for this case?
MR. LAWSON: Yes, sir. On or about the date set forth in the bill of indictment, the minor child of the defendant, Arthur Armstead, died at the home of Sherral Kahey and Vivian Kahey and where the defendant was also living. The child died as a result of the combined debilitating effects of numerous beatings and whippings and the denial of food and water. Mrs. Wilson testified in the previous trial, and testified as to her part in that, wherein she did admit that she did, on occasion, whip the child and on occasion acted under orders from Vivian Ka-hey in denying the child food and water, and also assisted in tying the child up. As a result of all of these things, the child died.
Q. All right. Ma’am, is all of that substantially true and correct?
A. Yes, sir.”

At the sentencing hearing, the trial judge considered the factors set forth in Article 894.1 of the Code of Criminal Procedure. Although the trial judge found that the defendant had not engaged in any criminal activity before the commission of this crime, he felt that the defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the defendant’s crime.

Clearly, the penalty imposed in this case is not so disproportionate to the crime committed as to shock our sense of justice. We cannot say that the trial judge abused his discretion in sentencing the defendant to eight years at hard labor.

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

AFFIRMED.

. DOMENGEAUX, J., concurs in the result.

KNOLL, J., concurs and assigns written reasons.

KNOLL, Judge,

concurring.

I concur that the Sabine Parish grand jury represented a cross section of the parish population, and that the defendant showed neither the systematic exclusion of any class of persons nor that she suffered from the composition of the general venire.

I disagree, however, with the majority’s treatment of defendant’s complaint that her sentence is excessive. Defendant understood as part of her plea bargain agreement that her sentence would not exceed ten years. We should not entertain a complaint of excessiveness when the sentence falls within less than the maximum limitation bargained for and agreed upon. State v. Moss and Goodman, 438 So.2d 1283 (La.App. 3rd Cir.1983), writ denied, 443 So.2d 588.

      . Under Supreme Court Rule XXV, the following groups are exempt from jury service:
      “(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
      (b)Members in active service in the Armed Forces of the United States and members of
      the National Guard of this State while on active service;
      (c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
      (d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
      (e) All persons over seventy years of age.”


source: Caselaw Access Project

author: KNOLL, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Berthman Joseph SOLOMON, Defendant-Appellant.
    No. CR84-83.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Paul J. deMahy, St. Martinville, for defendant-appellant.
    J. Phil Haney, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Berthman Joseph Solomon, was indicted for attempted second-degree murder in violation of LSA-R.S. 14:27 and 14:30.1, and was tried by a twelve-member jury. The jury returned a verdict of attempted manslaughter, a violation of LSA-R.S. 14:27 and 14:31. The sentencing court imposed a sentence of ten years at hard labor. Defendant asserts one assignment of error, complaining that his sentence is excessive. We affirm.

Article I § 20 of the Louisiana Constitution prohibits the imposition by law of excessive punishment. For a sentence to be excessive, the penalty must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). The sentencing court is given wide discretion in the imposition of sentences within statutory limits, and the sentence should not be set aside as excessive in the absence of a manifest abuse of the sentencing court’s discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Bonanno, supra.

The maximum sentence for attempted manslaughter is imprisonment at hard labor for IOV2 years. LSA-R.S. 14:27 and 14:31. Solomon’s sentence of ten years falls within the statutory limits. However, it is judicially recognized that a sentence, although within the statutory limit, may violate defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial court’s reasons for imposition of sentence are an important aid when we review a sentence for excessiveness. State v. Bourgeois, 406 So.2d 550 (La.1981).

The record presented for review consists of the sentencing hearing. The sentencing court articulated a thorough factual foundation and a well reasoned determination for the imposition of sentence, quoted herein:

“Let the record reflect that the Defendant, Bertman [sic] Solomon, is present in Court with his attorney, Mr. Paul deMahy, for the purpose of being sentenced as a result of a conviction of attempted manslaughter by a jury on May 12, 1983.
Let the record further reflect that so far the Court knows the Defendant’s age is thirty-six years, and the Court has no knowledge of any prior conviction.
The law requires that I give my reasons why I am sentencing you, Mr. Solomon; and, of course, I will do so.
The law states that, generally speaking, I should sentence you to a sentence of imprisonment whenever you have been convicted of a felony or a misdemean- or, if there is an undue risk that during a period of a suspended sentence or of probation, you would commit another crime; or if I feel that there is need of correctional treatment or a custodial environment. In your case, that can be provided most effectively by your commitment to an institution. And I feel that a lesser sentence will deprecate the seriousness of your crime.
The facts, as I recall the facts from the trial over which I presided and which I recall clearly, are that the young man, the victim of this crime, was a very small, very slight young man, who, in my opinion, did not present any kind of a threat or any danger whatsoever to you during this proceeding.
My recollection is that he never at any time resisted or made any threatening gestures toward you in any way.
My recollection is that upon receiving instructions from you to leave this home, he had planned to do so; but that he was delayed in leaving the home because his friend, who he lived in the home with for some three or four months, asked him to wait a little while — that he was going to talk to you and to his mother, and to see if arrangements couldn’t be made for him to stay in the home..
This is the background for the matter which came up.
My recollection of the trial appears that when you proceeded into the room where this young man — this victim of the crime — was located, you being a larger and an older and apparently a stronger man than the victim of the crime, that you were proceeding either with your knife or the other people knew that you intended to use your knife. And, in my recollection, one of the witnesses yelled at you, ‘Don’t use your knife. ’
Nevertheless, despite this, my recollection of the evidence is that you did advance upon this young man, you did have your knife in your hand, and you struck at him savagely twice. You stuck the knife in his abdomen, and made an effort with an upward motion, apparently to reach his heart or lungs, or vital organs located in the chest. The evidence also discloses that you attempted to stab him directly over the heart in the chest, but that you were unsuccessful in the attempt to stab him, because the knife hit a rib and was stopped by the fact that there was a rib there.
The evidence further discloses that this young man was rushed to the hospital in Lafayette, and that for a period of two or three days the police were misled, and there was an attempt to cover up this crime — that the police were told or advised at first that you were playing and he accidentally got cut, and it didn’t amount to much. Later they were advised — the District Attorney was advised — by the boy’s mother that he was in intensive care in a Lafayette hospital.
The Court is shocked by this crime— shocked by the fact that a person such as you feels that he can take the law in his own hands and advance upon someone like this and inflict or attempt to inflict great bodily harm on him. The law does not allow anybody to take the law in his own hands. The law requires, if he is illegally in your home, that you call the police or you take legal action to get him out of your home. The law does not allow you or permit you to use a knife.
H¡ * * * * *
But, nevertheless, as stated, the Court is shocked by this crime. The Court feels that any lesser sentence than I’m going to give you would be — would deprecate greatly the seriousness of your crime. The Court feels that you need custodial environment — that anybody who has the mentality to advance upon a young, slender, innocuous man, who you apparently could have slapped or struck with your open fist (and he would have run, I’m sure; you being considerably larger, older and stronger, in the opinion of the Court, than he was) — at the most that’s all you should ever have done — you legally could do that.
But, nevertheless, the Court is going to sentence you to a sentence of imprisonment.
Alright. It is the sentence of this Court that, under Title H, Section 27, and Title 1⅛, Section 31 (the first being on attempt, and the second-cited statute being on manslaughter), of the Louisiana Revised Statutes, that Berthman Solomon be and he is hereby sentenced to serve ten (10) years at hard labor. For the carrying out of that sentence, you are hereby committed to the Department of Corrections of the State of Louisiana. ” (Emphasis added.)

Defendant argues that he has no prior criminal record and that this crime is not a particularly serious violation of the statute, therefore, his near maximum sentence is excessive. We disagree. Defendant savagely stabbed a defenseless victim twice in the chest area which caused him to suffer grave injuries. We do not find the sentence so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice; nor do we find that the sentencing court abused its wide discretion in the imposition of sentence.

We conclude, therefore, that defendant’s sentence of ten years at hard labor is not excessive. This assignment of error is without merit.

DECREE

For the foregoing reasons, the sentence of the defendant, Berthman Joseph Solomon, is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns written reasons.

DOMENGEAUX, Judge,

concurring.

I concur in this affirmation, but see my previous expressions in connection generally with the subject of review of sentences for excessiveness. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983); State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983); and State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir.1984).


text:
    STATE of Louisiana In the Interest of David Shun JOHNSON.
    No. CR84-128.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      David Kimball, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Ronald Rossito, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

This appeal concerns a juvenile proceeding wherein the defendant, David Shun Johnson, was adjudicated a delinquent for committing aggravated rape, a violation of LSA-R.S. 14:42(4), and simple kidnapping, a violation of LSA-R.S. 14:45. The juvenile court sentenced defendant to serve five years for the simple kidnapping conviction, and seven years and three months for the aggravated rape conviction. After the court considered the defendant’s evaluation and testing by the Juvenile Reception and Diagnostic Center, defendant was committed to the custody of the Louisiana Department of Corrections for an indefinite period of time, but not to exceed his twenty-first birthday.

Defendant relies upon the following six assignments of error for a reversal of his conviction and sentence, contending the trial court erred:

1. In allowing a police officer to testify to hearsay statements made by the victim concerning the identity of the alleged perpetrator;
2. In allowing a police officer to testify to hearsay statements of the victim concerning the details of the alleged rape without requiring the State to lay a proper foundation showing these statements came within the first report of the rape exception to the hearsay rule;
3. In denying the defendant’s motion for acquittal at the close of the State’s case;
4. In finding the defendant guilty of the crimes charged when there was insufficient evidence to support a guilty verdict, and in completely discrediting the testimony of a defense witness based solely on the fact that the witness had prior criminal convictions.
5. In imposing an unconstitutionally excessive sentence in violation of LSA-Const. Art. 1, § 20.
6. In denying the defendant’s motion for suspension of sentence' pending appeal.

We affirm, finding the assignments of error are without merit.

FACTS

On April 26, 1983, defendant, who was thirteen years of age, forcibly took a nine year old girl from the parking lot of a neighborhood grocery store, between approximately 7:00 p.m. and 8:00 p.m. Both the victim and defendant resided in the same block where the grocery store was located. A fourth grade student witnessed defendant drag the victim into his home — a green house located across the street from the grocery store. After defendant and the victim were inside the home, he forcibly removed her clothing and forced her to have vaginal sexual intercourse with him. After the act, he threatened to kill the victim if she did not come back the next day; then he released her. She ran to her parents’ home across the street and informed her family that she had been raped. She was crying and very upset. She stated that it was her brother’s friend who raped her, and pointed to defendant’s house. She was taken to the emergency room at Memorial Hospital while her brother called the Lake Charles City Police who met her and her father at the hospital.

Because the emergency room at Memorial Hospital was in use she was taken to St. Patrick’s Hospital where Dr. Howard Montgomery Rigg, III found bruises and spermatozoa in her vagina. The officers obtained the victim’s clothing at the hospital.

The officers initially questioned defendant at his home on the evening of April 26, 1983, wherein he denied having any sexual activity with the victim. Defendant’s father consented to a search of the residence, resulting in the seizure of several articles, to include a towel. Defendant’s parents then drove him to the police station for further investigation. The Southwest Louisiana Criminalistic Laboratory Report showed seminal acid phosphatase in the crotch areas of the victim’s jeans and panties, as well as on the towel seized from defendant’s bedroom.

Defendant’s mother and a friend served as alibi witnesses testifying that he was home on the evening in question watching television, except for a brief period when he went to the store for snacks.

ASSIGNMENTS OF ERROR ONE AND TWO

Since defendant failed to brief these assignments of error, they are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

ASSIGNMENTS OF ERROR THREE AND FOUR

Defendant contends that there was insufficient evidence to support a guilty verdict, therefore, the trial court erred in denying his motion for acquittal. He further contends that the trial court erred by discrediting the testimony of a defense witness based solely on the fact that the witness had a record of multiple convictions.

The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Chism, 436 So.2d 464 (La.1983); State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). A juvenile is entitled to the protection of the due process clauses of the Fourteenth Amendment to the United States Constitution, and to all the attendant safeguards guaranteed to anyone accused of a crime. In Re Gualt, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981). Therefore the burden of proving the charges against a juvenile and the standard of review of the sufficiency of the evidence is no less than against an adult. Franklin, supra; In Interest of Day, 378 So.2d 511 (La.App. 4th Cir.1979).

Defendant argues that the State’s case rested solely upon the testimony of the alleged victim, and that her testimony alone is insufficient to carry the burden of proving guilt beyond a reasonable doubt. We disagree. The victim testified that she knew defendant from school and sometimes saw him on a daily basis. She positively and unequivocally identified the defendant as the perpetrator on numerous occasions during the trial. Immediately after the rape occurred, she ran home and informed her family that defendant raped her in his home. The record shows that her testimony is candid and sincere.

Identification by a single witness may support a conviction despite considerable alibi testimony. In Interest of Cushenberry, 378 So.2d 492 (La.App. 4th Cir.1979). In addition to the victim’s testimony, the State presented corroborating testimony of an eye witness (a fourth grade student) to the simple kidnapping. Although the student was not able to identify defendant in court, he was certain that the victim was dragged by a man into the green house across the street from the grocery store and that defendant lived in the green house.

A defense witness, Ellis Thomas, testified that he was with defendant during the time that the alleged rape occurred. Thomas is a friend of defendant and has a criminal record which reflects thirteen convictions, including public bribery. The trial judge, in his well reasoned and considered opinion, stated:

“... The Court, of course, has heard all of the testimony in this case, and I’m quite impressed by the young girl’s testimony. I believe her story, that she was raped, and I know that she identified David Johnson in this particular instance. She also testified that she was taken to the green house across from Smitty’s Grocery Store. There’s no testimony to refute that the house of David is green. Also, there was no testimony to refute the young man’s testimony that David took the little girl to the green house across from Smitty’s. The young man could not identify the particular person sitting here. However, I’m sure that he could not have made up the story about the boy taking the girl into the green house. Taking the other testimony that the Court has heard, I have to state that most of it was purely circumstantial evidence. However, the evidence which was presented by the father of the child, together with the brothers, was all around the time of the occurrence. Some of it was certainly hearsay, however, the Court accepted it because it was around the gestae of the occurrence of this event. I do not believe that the young girl at that particular point, in her condition, and that quick, could have fabricated the story that she told them. Their story was certainly corroborated by each other. I have to, of course, consider all of the other testimony, and I considered the testimony of Mr. and Mrs. Trahan. Mrs. Trahan testified that she was home that afternoon with David Shun Johnson from the time he came home. In response to the question by David’s attorney as to when they ate supper, it was not until after they came back from the jail. David testified that he ate before the program that he was watching came on. He also testified that he went across the street during the program. It seems to me that everyone knew the exact time of this particular program on this particular evening. I heard the testimony of Mr. Ellis Thomas, and the Court, of course, considered that testimony. However, the Court, after considering his previous convictions and the types of convictions, the Court did not place much value on his testimony whatsoever. If there were a doubt in my mind at this particular time, the Court would have no hesitation but to find David not guilty, but I feel that this case has been proven....”

It is well settled that when there is conflicting testimony as to a factual matter, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. The trial judge’s factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Cobbs, 350 So.2d 168 (La.1977). We do not find that the trial judge abused his discretion in determining the credibility of the witnesses.

We have carefully reviewed the record and after viewing the evidence in the light most favorable to the prosecution, we find the trial court could have found the essential elements of the crime beyond a reasonable doubt. Therefore, the record supports the trial court’s verdicts of guilty on both counts.

These assignments of error are without merit.

ASSIGNMENT OF ERROR FIVE

By this assignment, defendant contends that the trial court erred in imposing an unconstitutionally excessive sentence. Article 1, § 20 of the Louisiana Constitution prohibits the imposition by law of excessive punishment. For a sentence to be excessive, the penalty must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980).

LSA-C.J.P. Art. 86 provides general guidelines for disposition in juvenile cases and states in pertinent part:

“A. The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal. ’■’

The sentencing court is given wide discretion in the imposition of sentences within statutory limits, and the sentence should not be set aside as excessive in the absence of a manifest abuse of the sentencing court’s discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Bonanno, supra.

In the instant case, defendant was found guilty of two violent offenses. A clinical psychologist and a psychiatrist recommended the maximum sentence. The trial court, after a careful study of defendant’s history, found defendant in need of rehabilitation and a proper person for commitment to the Department of Corrections. He sentenced defendant to serve an indefinite period of time, but not to exceed defendant’s twenty-first birthday. This is a total of seven years and three months. If defendant had been 22 months older, he would have received the mandatory sentence of life imprisonment at hard labor. We find no abuse of the sentencing court’s wide discretion in imposition of the sentence, nor do we find defendant’s sentence so disproportionate to the crime committed as to shock our sense of justice.

This assignment of error is without merit.

ASSIGNMENT OF ERROR SIX

Defendant contends that the trial court erred in denying his motion for suspension of sentence pending appeal. LSA-C.J.P. Art. 103, provides:

“The effect of a judgment of disposition shall not be suspended by an appeal unless the trial court or court of appeals directs otherwise. ”

Therefore, a suspension of sentence is entirely a discretionary matter.

Defendant argues that since he has stayed out of trouble since the offenses occurred and timely appeared in court at all stages of the proceedings, he was entitled to have his sentence suspended pending appeal. He does not claim the sentencing court abused its wide discretion nor does the record support such a claim. His good behavior after he committed the offenses until his convictions is not convincing evidence of continual good behavior pending appeal. In light of the serious and violent offenses committed by defendant, we find no abuse of the sentencing court’s discretion.

We further find this assignment of error is moot.

DECREE

For the foregoing reasons, the convictions and sentences of the juvenile defendant, David Shun Johnson, an adjudicated delinquent, are affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns written reasons.

DOMENGEAUX, Judge,

concurring.

I concur simply to again state my disagreement with the jurisprudence of this State as set out by the Louisiana Supreme Court on the question of appellate review of sentences for excessiveness and the adoption of the Jackson v. Virginia rule. On the former, see my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983); State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983); and State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir.1984). Concerning standard of review, see my concurring opinions in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983); State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983); and State v. Bryan, 454 So.2d 1297 (La.App. 3rd Cir.1984).


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Willie Mae SCOTT.
    No. CR84-129.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    J. Wade Smith, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Terry Manuel, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

This appeal arises out of the defendant, Willie Mae Scott’s, December 8, 1983, guilty pleas to 12 charges of issuing worthless checks in violation of La.R.S. 14:71.

Previously, on January 27, 1983, the defendant had pleaded guilty to five counts of issuing worthless checks. She was sentenced, which sentence was conditionally suspended, and she was placed on supervised probation for eighteen months. Restitution on all five of her worthless checks was a special condition of the probation.

On February 1, 1983, five days after Ms. Scott’s January 27, 1983 convictions, she was back in court to be arraigned on seven more counts of issuing worthless checks. At this arraignment proceeding the Judge advised the defendant of her right to a jury trial on the two counts involving worthless checks for an amount in excess of $100.00. The defendant pleaded not guilty to the seven charges.

One week later, on February 8, 1983, the defendant was arraigned and pleaded not guilty to a single count of issuing a worthless check.

On April 5, 1983, Ms. Scott was charged with yet three more violations of La.R.S. 14:71. The defendant pleaded not guilty to these three charges.

By December 8, 1983, when finally brought to trial, Ms. Scott had been previously arraigned and had pleaded not guilty to 22 counts of issuing worthless checks, involving close to $1,400.00.

On the trial date, December 8, 1983, Ms. Scott appeared before the court for proceedings in two separate matters. First, the court was to conduct a proceeding to determine whether to revoke the probation issued for Scott’s previous convictions. Second, the court was to hold a trial on the 22 charges of issuing worthless checks.

The district judge revoked the defendant’s probation stemming from the January 27, 1983 convictions for issuing worthless checks. He reasoned that the defendant had violated the condition of her probation by failing to make restitution on the five worthless checks she had been convicted of issuing. The district judge ordered the defendant to serve the 18 month sentence originally imposed for those convictions.

The district judge then turned to the trial of the pending 22 counts of issuing worthless checks. The State dismissed 10 of the 22 counts against the defendant and she pleaded guilty to the remaining 12 charges.

There is nothing in the record to show that at the time the district judge accepted the defendant’s guilty pleas that she had been advised of or had waived her right to a trial by jury.

The district judge sentenced the defendant to serve two years on each of the first two counts, those sentences to run consecutively, and two years each on the remaining 10 counts to run concurrently with the first two counts. The total sentence imposed was 5 and xk years.

The defendant specifies two assignments of error in this case:

(1) The trial court erred by imposing an excessive sentence against the defendant in violation of Article 1, Section 20, of the 1974 Louisiana Constitution.

(2) The trial court erred in its failure to advise the defendant of her right to a trial by jury prior to accepting her pleas of guilty.

Inasmuch as we will dispose of this case in connection with assignment of error No. 2, we need not consider the merits of assignment of error No. 1.

The defendant argues that because she faced a possible sentence in excess of six months she was entitled to a jury trial. She asserts that she was not apprised of her right to a jury trial, therefore her guilty plea was not a valid waiver of that right.

The twelve counts of issuing worthless checks which Ms. Scott pleaded guilty to involve checks written for amounts of less than $100.00, therefore each of the separate counts against Ms. Scott constituted a misdemeanor as per La.R.S. 14:71 E.

However, in consideration of the defendant’s prior convictions for issuing worthless checks, the district judge applied the penalty enhancement provision contained in La.R.S. 14:71 E (see footnote 2) and sentenced Ms. Scott to a two year sentence on each of the twelve counts.

The State argues that because the defendant was charged with several misdemeanors, she was not entitled to a jury trial.

The defendant contends that the possible application of the penalty enhancement provision created the potential of a sentence in excess of six months and therefore she was entitled to a trial by jury.

We find that the defendant’s assignment of error has merit, not, however, because the penalty enhancement provision contained in La.R.S. 14:71 E created the possibility of a sentence in excess of six months.

We find that the district court was in error for failing to apprise defendant of her right to a trial by jury in light of the provisions of La.R.S. 14:71 F.

The district judge apparently by inadver-tancy overlooked La.R.S. 14:71 F which provides:

“F. When the offender has issued more than one worthless check within a 180 day period, the aggregate of the amount of all worthless checks issued during that 180 day period shall determine the grade of the offense.” (Emphasis added).

Our interpretation of the above quoted provision is that the legislature’s use of the word “shall” requires that the State aggregate the check amounts when an offender issues more than one worthless check in a 180 day period. The grade of the offense is to be determined by the aggregate amount of the worthless checks issued within that period.

Prior to a 1980 amendment to La.R.S. 14:71, the provision which required the aggregation of the amount of two or more worthless checks read as follows:

“When the offender has issued two or more worthless checks, the aggregate amount of the worthless checks shall determine the grade of the offense.”

In State v. Baker, 359 So.2d 110 (La.1978), the Louisiana Supreme Court held the pre-1980 aggregation provision of the statute unconstitutional because of vagueness. The High Court determined that the provision as it was then written created uncertainty and arbitrariness in the prosecution of these cases. The court was of the opinion that there should be a time period within which the crimes must have been committed to be available for aggregation.

Pursuant to that decision, the Legislature amended the aggregation provision to include a 180 day time frame for totalling the amount of worthless checks. We conclude that the Legislature acted in an attempt to create certain and nonarbitrary prosecution of the habitual issuer of worthless checks. The Legislature’s action also evinces their intent to make the aggregation provision mandatory in cases where a defendant has been charged with issuing two or more worthless checks in a 180 day period.

Of the twelve charges pending against Ms. Scott at the time she entered a guilty plea on December 8, 1983, the first nine counts occurred within a 180 day period and totalled $560.80. The final three counts occurred within a separate 180 day period and totalled $84.96.

La.R.S. 14:71 F requires that the aggregate amount of the first nine and final three worthless checks issued in the separate 180 day periods determines the grades of the offenses Ms. Scott is charged with.

The crime of issuing worthless checks, La.R.S. 14:71, is divided into three grades. The most serious grade requires that an offender “shall be imprisoned, with or without hard labor, for not more than 10 years, or may be fined not more than $3,000.00, or both,” when the amount of the check or checks is $500.00 or more. La.R.S. 14:71 C.

The amount of Ms. Scott’s nine worthless checks issued between October 23, 1982, and December 28, 1982, was in excess of $500.00. Therefore, had the trial court applied La.R.S. 14:71 F to this case the defendant would have faced a possible ten year prison sentence.

When the total potential punishment exceeds six months imprisonment an accused is entitled to a trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and State v. Williams, 404 So.2d 954 (La.1981).

Before a trial court can accept a guilty plea from a defendant who is entitled to a jury trial, the district court judge must determine, among other things, that the defendant has intelligently and voluntarily waived the right to a jury trial, and a waiver of this right cannot be presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Applying La.R.S. 14:71 F to the instant case leads us to the conclusion that Ms. Scott was entitled to a jury trial.

The record reveals that the district judge accepted the defendant’s plea of guilty without informing her of her right to a jury trial.

Reversible error results when the record does not disclose that the defendant voluntarily and understanding^ entered his pleas of guilty. Boykin v. Alabama, supra.

We hold that the trial court’s failure to apprise the defendant of her right to a jury trial in connection with the prosecution of the nine counts of worthless checks issued between October 23,1982, and December 28, 1982, results in reversible error. We therefore remand those nine charges to the trial court for a new trial.

The final three charges of issuing worthless checks arise from checks written between June 2, 1983, and June 29, 1983. The aggregate amount of those three checks was $84.96. La.R.S. 14:71 E provides in part that: “When the amount of the worthless check or checks is less than $100.00, the offender shall be imprisoned for not more than 6 months, or may be fined not more than $500.00, or both.”

As the aggregate of these three checks does not create the possibility of a sentence in excess of 6 months the defendant was not entitled to a trial by jury. The record reveals that the district judge did properly inform the defendant that she was entitled to a trial on these charges.

We therefore hold that inasmuch as the defendant was informed of her rights to a trial on the final three charges her plea of guilty to those charges was validly procured and will stand. However, we reverse the sentence on those three counts and remand them to the district court for aggregation and sentencing in compliance with La.R.S. 14:71 F.

Our decision does not affect the district judge’s ruling in the revocation of probation proceedings.

For the above and foregoing reasons, the conviction and sentence on the first nine counts of issuing worthless checks is reversed, and a new trial is ordered. The sentence on the final three counts is reversed and resentencing is ordered. Accordingly, we remand this case to the district court for further proceedings consistent with the views expressed herein.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . The two counts involving worthless checks in an amount exceeding |100.00 were subsequently dropped.

      . “E. When the amount of the check or checks is less than one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of issuing worthless checks two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or be fined not more than one thousand dollars, or both.”


author: CULPEPPER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Johnny Ray PRICE, Defendant-Appellant.
    No. CR84-153.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Claude Sledge, Asst. Dist. Atty., Many, for plaintiff-appellee.
    Before FORET and CUTRER, JJ., and CULPEPPER, J. pro tem.
   CULPEPPER, Judge.

Defendant, Johnny Ray Price, pleaded guilty to one count of simple burglary and one count of aggravated battery. These matters were consolidated at trial and on appeal, and a separate opinion will be rendered this date in State v. Price, 461 So.2d 562 (La.App. 3d Cir.1984), the matter dealing with the simple burglary. This appeal, No. CR84-153, arises from the charge of aggravated battery.

In accordance with a plea agreement, the State agreed to drop other charges of theft and burglary, and also agreed not to bill the defendant as a habitual offender. The defendant was sentenced to a term of eight years at hard labor on the charge of aggravated battery, and nine years at hard labor on the charge of simple burglary. The sentences were ordered to be served consecutively. Defendant appeals, complaining that the sentences are excessive and that the trial judge did not comply with the sentencing requirements of LSA-C.Cr.P. 894.1. We affirm.

The transcript of sentencing in these matters reveals that the trial judge not only properly considered the factors set out in Article 894.1, but he articulated each one. The court noted in particular that the defendant was a prior felony offender and was ineligible for probation. In any event, the defendant had previously been afforded probation which he did not complete successfully. The court also noted defendant’s freedom from emotional or health problems, his poor employment and school record, his extensive prior criminal history, and his lack of any dependents who would suffer hardship from his confinement. Our review of the sentencing hearing reveals that the trial court more than adequately complied with the requirements of Article 894.1, and gave proper consideration to the factors to be considered under that article.

We are also of the opinion that the trial court did not abuse its broad sentencing discretion in imposing a total term of 17 years at hard labor. All factors articulated by the trial judge indicate that a substantial sentence was appropriate for this defendant. We note that the charges to which defendant pleaded guilty exposed him to a total sentence of 22 years, and the sentence imposed was somewhat less than that.

For the above reasons, the sentence of the defendant in this matter is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Johnny Ray PRICE, Defendant-Appellant.
    No. CR84-154.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Before FORET and CUTRER, JJ., and CULPEPPER, J. pro tern.
   CULPEPPER, Judge.

For the reasons set out in State v. Price, 461 So.2d 561 (La.App. 3d Cir.1984), the sentence of the defendant in this matter is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Ralph D. CAPPS.
    No. CR84-179.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Paul J. DeMahy, St. Martinville, for defendant-appellant.
    J. Phil Haney, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

The defendant, Ralph D. Capps, was indicted and charged with aggravated rape, a violation of La.R.S. 14:42. After a trial on October 25, 1983, the twelve person jury returned a conviction for the lesser included offense of attempted forcible rape, a violation of La.R.S. 14:27 , and La.R.S. 14:42.1. On November 23, 1983, the trial judge sentenced the defendant to serve 20 years at hard labor, with at least one year being without the benefit of probation, parole, or suspension of sentence.

On February 1, 1983, the victim, then a ten year old girl, was going door-to-door selling spices to raise money to purchase new science books for her school. The defendant, who was standing outside, indicated to the girl that his wife was in the house and would probably like to buy some spices. As the victim reached the door of the defendant’s home, he grabbed her, pulling her inside the house and into the bedroom. Once inside, the defendant sat the young girl on his lap and removed her jacket. The child tried to get away from the defendant, but was prevented. The defendant then hit the girl about the face and choked her. He removed her jeans and panties and laid her on the floor. The defendant then laid on top of the ten year old, while continuing to strike and choke her. The victim’s recollection from that point on is hazy, as she appears to have had some sort of blackout. However, it appears she remembers some form of the defendant’s disrobing, either pulling down his pants or unzipping them prior to lying on top of her. After the following acts were committed, the victim put her clothes back on and begged the defendant to let her go. The defendant threatened the little girl not to tell anybody and gave her $5.00 to keep quiet. The girl, immediately upon leaving the defendant’s house, ran to a friend’s grandparent’s house, where she related the traumatic occurrences. Witnesses testified that the girl’s clothing were in disarray, her hair was messed up, and she was crying. There were also visible signs that the girl had been physically abused. The neighbor, at whose house the victim sought shelter, testified that the girl told her the same story she related at trial. Other corroborating evidence was the expert testimony. A criminalistics expert testified that substances observed on the panties of the little girl were male sperm. A medical doctor testified that his physical examination of the girl’s vaginal area revealed abrasions on the left vulva wall. This was consistent with some penetration, even though not total. In the doctor’s opinion the penetration was the result of a forceful attempt to insert the male organ.

The defendant was subsequently arrested, tried and convicted of attempted forcible rape. It is from this conviction and sentence that the defendant has, upon this appeal, perfected four assignments of error.

By his first assignment of error defendant complains that the trial court erred in denying his challenge for cause of juror Elizabeth Miller. By his second assignment of error defendant claims his motion for a new trial should have been granted for the same reasons. We shall therefore discuss these two assignments of error simultaneously.

During the voir dire examination of potential jurors, defense counsel challenged for cause a juror named Elizabeth Miller on the grounds of her being an employee of the Henderson Police Department. The trial judge denied defendant’s challenge. At the conclusion of the trial, the defendant brought a motion for a new trial based on various allegations, of which only one was argued before this Court. This was with respect to the seating of Elizabeth Miller.

Under the previous statutory mandate of the Louisiana Code of Criminal Procedure Article 800, a defendant was required to exhaust all of his peremptory challenges in order to challenge on appeal an improper denial of a challenge for cause. State v. Smith, 430 So.2d 31 (La.1983). However, in 1983 Article 800 was amended by the Legislature so as to eliminate the requirement that peremptory challenges be exhausted in order to test a denial on appeal. This amendment became effective August 30, 1983, thus making it applicable to this trial, which occurred on October 25, 1983.

Another pertinent statute which has been amended is Louisiana Code of Criminal Procedure Article 799. Prior to August 30, 1983, this statute provided for either twelve or six peremptory challenges depending upon the punishment provided for the offense charged. Act 495 of 1983 amended this Article to reduce the amount of peremptory challenges for an offense punishable by death or necessarily by imprisonment at hard labor, from twelve down to eight.

In the instant case the defendant exercised all of his eight peremptory challenges. However, as earlier pointed out, the defendant need not exercise all of his peremptory challenges in order to contest, on appeal, a trial court’s denial of a challenge ,for cause. The only requirement is that the defendant contemporaneously object, stating the grounds for his objection. La.C.Cr.P. Art. 800, as amended. The defendant stated the grounds for Elizabeth Miller’s challenge for cause as being her employment by the Henderson Police Department. He also objected to the trial court’s ruling denying his challenge. Having met the necessary procedural requirements, the issue of whether or not the denial was correct is properly reviewable by this Court.

The defendant relies heavily on State v. Simmons, 390 So.2d 1317 (La.1980). In that case the Louisiana Supreme Court stated:

“An actively employed criminal deputy sheriff is not a competent criminal juror.” Simmons, at 1318.

The defendant correctly points out that service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause. State v. Winn, 412 So.2d 1337 (La.1982).

However, as argued by the State, the instant situation is factually distinguishable from Simmons, supra. In Simmons, the particular facts involved a Caddo Parish deputy sheriff who was actively involved in law enforcement making arrests, and acting as a State’s witness on numerous occasions. The deputy was well acquainted with a majority of the employees at the District Attorney’s Office. Also, in Simmons, the juror complained of knew of the State’s witnesses who were to testify at the trial.

The facts of the instant case show that the potential juror, Elizabeth Miller, was employed by the Henderson Police Department as a dispatcher. The Judge pointed out that this was a considerable distance from the scene of the crime and that she had no connection with the crime or the members of the prosecution. Being employed in a village Police Department does not involve the same contacts as do the duties of a parish deputy sheriff. Elizabeth Miller stated that her basic duties included monitoring the radio, answering the phone, and dispatching police officers when necessary. She also indicated that she was responsible for the jail if anybody was in there. When questioned as to any bias or prejudice, Elizabeth Miller stated her position would not affect her decision in the case. After extensive questioning by the defense counsel she consistently demonstrated her ability to render a fair and impartial verdict based on the evidence. It is apparent that a dispatcher for a municipal police department is not in the same category as a criminal deputy sheriff when determining whether they are qualified to serve as a juror on a criminal trial. In fact the duties of a dispatcher are administratively oriented and cannot be considered as “actively” involved in law enforcement.

A trial judge is vested with great discretion in ruling on a challenge for cause. His ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Lewis, 391 So.2d 1156 (La.1980); State v. Winn, supra. The testimony of Elizabeth Miller clearly shows that her deliberation would not be biased because of her position. In light of this testimony and the obvious distinctions between Simmons, it cannot be said that the trial judge abused his discretion in denying the defendant’s challenge for cause, or in denying the subsequent motion for a new trial based on the same grounds. These assignments of error are without merit.

By his third assignment of error defendant claims that the trial judge was in error when he stated in the sentencing phase of the trial, that he was of the opinion that the evidence supported a conviction of the far more serious crime of aggravated rape.

The issue of the trial court’s speculation as to the true guilt of a defendant for a more serious crime than the crime of which he was convicted has been addressed by the Louisiana Supreme Court. More particularly, our Supreme Court in State v. Day, 414 So.2d 349 (La.1980), addressed the same issue as the defendant has raised in this specification error. In the Day case the court discussed the fact that the defendant therein could have been found guilty of a more serious crime and in connection therewith stated that:

“A sentence must be individualized and this entails consideration of the underlying circumstances of the crime. La.C. Cr.P. Art. 875(A)(1); La.C.Cr.P. Art. 894.-1(A)(3); State v. Sepulvado, 367 So.2d 762 (La.1979).
The court could not ignore the underlying circumstances of the crime and still individualize the sentence. State v. Sepulvado, supra.

The trial court listened to the evidence throughout the course of the trial and was convinced that the underlying circumstances of the crime were such that the defendant could have been convicted of the more serious crime of aggravated rape. As pointed out in State v. Day, supra, the court cannot ignore the underlying circumstances of the crime and»still individualize the sentence as required under Louisiana law. The defendant argues that the trial court committed error by individualizing the sentence to the circumstances of the crime. Actually, the trial judge did what the law and jurisprudence allows him to do. See State v. Day, supra. Thus, as to this specification of error the trial court was totally within its discretion to look at the underlying circumstances of the crime in sentencing the defendant.

By his last assignment of error the defendant claims the sentence imposed was excessive and as such constituted the imposition of cruel and unusual punishment.

As to determining what is excessive punishment under the United States Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado, and Goodman, supra; State v. Forshee, 395 So.2d 742 (La.1981).

During the sentencing phase of the trial, the district judge, as aforementioned, expressed his opinion that the evidence supported a conviction of the far more serious crime of aggravated rape. The record lends credence to that conclusion. Additionally, the trial judge made the following statements:

“The court has considered the guidelines laid down by our Supreme Court, which admonished the court that the court should impose a sentence of imprisonment if: (1) there is an undue risk that during a period of a suspended sentence of probation, the defendant would commit another crime. The court believes and feels that there is an undue risk in this case. The court cannot understand the crime. A person the age of you, or middle age — 45, 50 years old — in that range — committing this crime upon this little 10 year old girl. And the court feels that if you were allowed to go free, that there is an extreme danger that something like this might occur again.
Nothing in the sentencing hearing has convinced the court otherwise.
The second criteria is that you’re in need of correctional treatment, or a custodial environment that can be provided most effectively by your commitment to an institution. The court feels that there is a dire need that you can be committed to a custodial environment so that whatever treatment you do need, it can be provided for you — that you would not receive this treatment outside of such an institution. The evidence shows that you never have.
The third one is that ... the third criteria is a lesser sentence would deprecate the seriousness of the defendant’s crime. This is an extremely serious crime. We do not know what permanent effect this crime is going to have on this little 10 year old girl. We do know that it’s had a horrible effect upon her and her parents up to this date. Whether or not she will have mental and emotional problems for the rest of her life, we have no way of knowing.
So as a deterrent effect, and in addition to other reasons for my judgment, there needs to be established a deterrent effect from committing crimes such as this, which may jeopardize or ruin the lives of other people for the balance of their natural lives.
Those are the reasons why I am sentencing you as I am, Mr. Capps.”

We are unable to find any manifest error. The trial judge followed the sentencing guidelines and gave extensive reasons for the sentence imposed. Further, the sentence is within statutory limits and follows the defendants’ conviction of a most serious crime. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons defendant’s conviction and sentence for the crime of attempted forcible rape are affirmed.

AFFIRMED.

      . La.R.S. 14:27 provides:
      "A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
      D. Whoever attempts to commit any crime shall be punished as follows:
      (1)If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
      (2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”

      . La.R.S. 14:42.1 provides:
      “Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”

      . Defendant assigned as error five (5) formal assignments, but assignment number one (1) was neither briefed nor argued and is thus considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Crawford, 441 So.2d 813 (La.App. 3rd Cir.1983).

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 533; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169; see also State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir.1984), concurring opinion at 1282.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Betty SONNIER a/k/a Betty Girard, Defendant-Appellant.
    No. CR84-196.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Patrick L. Durusau, Jena, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Betty Sonnier aka Betty Girard, appeals her conviction for driving while intoxicated (third offense), a violation of LSA-R.S. 14:98(D). Defendant was tried by judge alone, and was found guilty as charged. The trial court sentenced defendant to serve four and one-half years at hard labor.

Defendant perfected two assignments of error urging insufficiency of the evidence to support her conviction. However, we find an error patent on the face of the record and pretermit discussion of defendant’s assignments of error. LSA-C.Cr.P. Art. 920(2).

In criminal cases, the defendant is given a constitutional right to have trial by jury if the punishment may be confinement at hard labor or confinement without hard labor for more than six months. LSA-Const. Art. 1, § 17. The penalty for a third conviction of operating a vehicle while intoxicated is imprisonment with or without hard labor for not less than one year nor more than five years, and a possible fine of not more than one thousand dollars. R.S. 14:98(D). Consequently, the defendant in the instant case had a constitutional right to a jury trial.

The constitutional right to a jury trial may be knowingly and intelligently waived in a noncapital case. LSA-Const. Art. 1, § 17; LSA-C.Cr.P. Art. 782. Every reasonable presumption must be indulged against waiver of this fundamental right. State v. Gardner, 458 So.2d 1016 (La.App. 3rd Cir.1984); State v. Laurendine, 439 So.2d 398 (La.1983); State v. Williams, 404 So.2d 954 (La.1981); State v. McCarroll, 337 So.2d 475 (La.1976).

The record is void of any showing that defendant waived her right to a jury trial. The failure of the record to establish that defendant knowingly and intelligently waived her constitutional right to a jury trial constitutes an error patent on its face.

DECREE

For the foregoing reasons, defendant’s conviction is reversed and the sentence is vacated. This case is remanded for a new trial in accordance with law and consistent with the views expressed in this opinion.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jeffrey Ray DOWDEN, Defendant-Appellant.
    No. CR84-240
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Joseph R. Kutch, Leesville, for defendant-appellant.
    William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

The defendant, Jeffrey Ray Dowden, was charged by bill of information with forcible rape and attempted forcible rape in violation of LSA-R.S. 14:42.1 and 14:27. Initially, defendant pleaded not guilty but, after a plea bargain was reached with the State, he entered a guilty plea to the charge of forcible rape. The attempted forcible rape charge was dismissed. Defendant was sentenced to serve twelve years at hard labor, with four years to be without benefit of parole; probation or suspension of sentence. Following appropriate objection, defendant perfected this appeal.

The events on or about April 21, 1983, were related by the court during the sentencing proceeding. On that night, the defendant was walking in an area near Hawthorne in Vernon Parish, when he observed some lights burning in a trailer. He noticed that no vehicle was present at the mobile home. At the time, the defendant was apparently intoxicated, having consumed a considerable amount of beer and having used some drugs. He knocked on the door and his knock was answered by a rather scantily clad woman who would not allow him to enter. He then ran his hand through the screen and opened the door. When the victim screamed, he clamped his hand over her mouth and threatened to kill her. Thereafter, he engaged in an act of sexual intercourse with her.

The defendant appeals his sentence alleging:

(1) The trial court erred by considering in his sentence a crime charged to the defendant (attempted forcible rape) but to which the defendant had not plead and had not been found guilty; and
(2) The trial court erred in sentencing the defendant to twelve years at hard labor inasmuch as this sentence was excessive.

ASSIGNMENT OF ERROR NUMBER 1

The defendant counsel contends that the trial judge committed error in sentencing by considering that defendant had been charged with attempted forcible rape for which he was not convicted.

The Louisiana Supreme Court considered this issue in State v. Washington, 414 So.2d 313 (La.1982), and in State v. Williams, 412 So.2d 1327 (La.1982). The Washington panel stated:

“The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982).”

Particularly of interest is a footnote in State v. Williams, supra, in which the Supreme Court stated:

“Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation.”

In this case defendant was apprised of this information at the sentencing and he failed to respond.

ASSIGNMENT OF ERROR NUMBER 2

The defendant was sentenced to a term of imprisonment of twelve years at hard labor. The maximum sentence for the commission of this crime is forty years at hard labor. The defendant alleges that, considering his age, prior record, and lack of serious or permanent harm to the victim, that the sentence is excessive.

There are several factors which are useful in determining whether the sentence by its excessive severity or length is greatly disproportionate to the underlying offense. Some of these factors are the nature of the offense and the offender (i.e., the harm caused or threatened to the victim as well as the culpability and character of the offender) and the sentences imposed for the commission of the same crime in other jurisdictions. State v. Telsee, 425 So.2d 1251 (La.1983). In Telsee, the Supreme Court, in reviewing the sentences imposed in forcible rape cases, made the following observations:

“Generally, a survey of sentences for forcible rape which have been reviewed or noted by this court reflect a range of sentence from ten years at hard labor to twenty-five years at hard labor, with parole excluded for periods of two to eight years.”

Considering the above factors we find that, in this case, a twelve year sentence at hard labor was not an abuse of the trial court’s discretion under the instant facts. His reasons are as follows:

“Very well. It’s obvious, of course, that the defendant’s conduct in this ease caused serious harm and threatened even more serious harm. The defendant certainly knew his actions were wrong and likely contemplated harm in his conduct. Unless his drunken and drugged condition was such as to prevent him considering the harm. Provocation is not a factor in an offense of this sort, but, if so, nothing has come to my attention which would indicate that there was provocation involved in this matter. Although, his drunken and drugged condition must be considered, it is not felt that such neither excuses nor justifies the defendant’s conduct in this particular case. Nor, can it be said that the victim in this • matter induced or facilitated the commission of the crime. It’s true the victim may have been scantily clad when she answered the door. It’s likewise disclosed in the defendant’s own statements as related to her that her husband was working and was expected to return home at any moment and that she really anticipated that this was her husband at the door. It’s true that the victim submitted to the defendant, but, she did so only after her life had already been threatened. Compensation is not a factor in a case of this sort. I will observe that it is in the defendant’s favor that he had no prior criminal record of any moment. His only arrests had been for relatively minor traffic offenses up until the time this particular offense occurred. It cannot be said that there was anything unique, unusual or unlikely to recur in the circumstances which gave rise to this particular offense. Especially is this true when one considers his admission that he had previously considered rape without having acted. And, the additional fact that four months after the offense with which we are here concerned today, he attempted to rape a different victim. The character and attitudes of this defendant shed little light upon the probability of his committing such an offense again. He appears to have been furnished all necessities while growing up and to have received considerable religious training. His parents indicate he gave little trouble until late adolescence. Nevertheless; he became seriously involved with alcohol and drugs, illegal controlled dangerous substances of various kinds and ultimately with these sex oriented offenses. It is felt that he requires some treatment or he would likely revert to the same practices. He was, I will note, however, considered to be a good and reliable worker prior to these offenses. It’s also of some moment that he has been cooperative with the authorities in disclosing his source or sources of various drugs. However, considering the seriousness of the offense in this particular case, the necessity for some correctional treatment for this defendant, and, the mandatory imprisonment provision of the statute, this defendant is simply, not a candidate for probationary treatment.”

We find no factors which would support the imposition of a lesser sentence. We hold that the sentence is not excessive under these circumstances.

For these reasons,' the sentence is affirmed.

AFFIRMED.

      . LSA-R.S. 14:42.1 provides:
      "Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

      . The penal clause of LSA-R.S. 14:42.1 provides:
      “Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole or suspension of sentence."


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Horace STEVENS, Defendant-Appellant.
    No. CR84-241.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Joseph R. Kutch, Leesville, for defendant-appellant.
    William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

The defendant, Horace Stevens, appeals from a sentence of ten years at hard labor.

On June 6, 1983, the defendant, a sixteen-year old juvenile, and Otto Nelson, age 26, robbed Joe and Helen Scroggins of Leesville, Vernon Parish, Louisiana, while armed with a pistol. The two masked defendants forced their way into the Scrog-gins' home and stole money and a television set while holding the Scroggins at gun point.

Otto Nelson was arrested in Vernon Parish on June 17, 1983. On October 11, 1983 he pled guilty to armed robbery. Nelson was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence.

Horace Stevens was arrested on June 16, 1983. On August 18, 1983, the Court conducted a juvenile transfer hearing. The defendant was transferred from juvenile to adult jurisdiction pursuant to the provisions of La.R.S. 13:1571.1 et seq.

The defendant was arraigned on October 17, 1983 and pled guilty to armed robbery on December 15, 1983. After a pre-sen-tence investigation, the defendant was sentenced to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appeals on the basis that the sentence is unconstitutionally excessive.

The crime of armed robbery is punishable by imprisonment at hard labor for not less than five years and for not more than ninety-nine years without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64. Therefore the sentence of ten years at hard labor imposed by the trial court is well within the statutory limits. However, even a sentence which falls within the statutory limits may violate a defendant’s right against excessive punishment. La. Const, art. 1 § 20; State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Brown, 412 So.2d 998 (La.1982).

A sentence may be vacated as unconstitutionally excessive, and the case remanded for resentencing “when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. Otherwise, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits.” State v. Jones, 381 So.2d 416 (La.1980). (citations omitted) The sentence imposed on Mr. Stevens is not “apparently severe in relation to the offense committed and the particular offender.” The factual basis for the sentence and factors considered in imposing sentence was fully revealed by the trial judge at sentencing. The trial judge reviewed the facts of the case. He stated that the defendant and Otto Nelson invaded the Scroggins’ home, held a gun on them, threatened them, and placed Mrs. Scroggins in fear of being sexually abused. The trial judge explained that he was taking into account the fact that the defendant was only 16 years old at the time of the offense and younger than his accomplice. However, he stated that it appeared that the defendant was the moving force behind the robbery. The defendant knew the victims and where they lived. It was the defendant who wielded the gun and made threats while his accomplice stood by. The judge stated that had the defendant been a passive partner in the crime he would have considered the minimum sentence. However, the judge explained that he would have imposed a harsher sentence had defendant not been a juvenile and a first felony offender.

The extensive reasons given by the trial judge at sentencing show that he fully considered all the facts and circumstances in reaching a sentencing decision. Therefore, we will review whether the court’s large discretion has been abused. State v. Cox, 369 So.2d 118 (La.1979); State v. Jones, supra.

The trial judge is in a unique position to view the facts and circumstances of the case, which cannot be duplicated on appeal. As a result he is afforded wide discretion in imposing sentences within the statutory limits. A sentence imposed by the trial judge should not be vacated in the absence of a clear abuse of that discretion. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Jones, supra.

The standard for determining whether a trial judge has abused his discretion is whether the sentence imposed is grossly disproportionate to the severity of the crime. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). “To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Bonanno, supra; State v. Beavers, 382 So.2d 943 (La.1980).

After a careful consideration of the facts of this case we cannot find that the trial judge abused his discretion by sentencing the defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence. Therefore the conviction and sentence are affirmed.

AFFIRMED.