text:
    STATE of Louisiana v. Roland HARLEAUX, Jr.
    No. KA 84 0740.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Susan Ponder, Baton Rouge, for plaintiff-appellee.
    Bonnie F. Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issues raised in this appeal relate solely to defendant’s sentence. Defendant, Roland Harleaux, Jr., was charged by bill of information with one count of attempted second degree murder. He pled guilty and was sentenced to five years at hard labor, without benefit of probation, parole or suspension of sentence. In accordance with the provisions of R.S. 14:95.2, the court also imposed an additional sentence of two years in the parish prison, without benefit of probation, parole or suspension of sentence. Defendant has appealed, alleging three assignments of error with respect to his sentence.

In his first assignment of error, defendant argues the sentence imposed upon him is excessive. Initially, we note defendant’s sentence was the minimum the court could impose. Under Code of Crim.P. art. 893.1, the court was required to impose a sentence of at least five years, which could not be probated. An additional sentence of two years, which could not be probated, for the use of a firearm was also statutorily mandated under R.S. 14:95.2.'

Thus, the court did not have the discretion to impose a sentence less than seven years, although a much more stringent term of imprisonment could have been imposed. Defendant could have received a sentence of fifty years at hard labor. R.S. 14:27 and 14:30.1.

Even if the sentence imposed had not been statutorily mandated, the facts present are sufficient to support it. While in a state of intoxication, defendant shot at three people, one of whom was a state trooper. Two of the victims were hit and wounded, although not seriously. Considering the seriousness of defendant’s actions, the number of people endangered by him and the maximum possible sentence to which he was exposed, we do not find the sentence imposed excessive.

In his second assignment of error, defendant claims the court failed to adequately particularize the sentence to him as required by Code of Crim.P. art. 894.1. Code of Crim.P. 894.1 establishes guidelines for the court to consider before imposing sentence. Although the court need not articulate every aggravating and mitigating factor, the record must reflect adequate consideration of these guidelines. However, even when the court has not complied with Code of Crim.P. art. 894.1, it is not necessary to remand for resentenc-ing if the sentence imposed is not apparently severe in relation to the particular offender or the offense committed. State v. Davis, 448 So.2d 645 (La.1984).

Defendant’s sentence is not apparently severe in view of the facts surrounding this offense. The court noted these facts in imposing sentence. Further, although the factors which tend to mitigate the offense were not enumerated by the court, defense counsel set them forth very clearly, and the court specifically indicated it considered these factors in deciding not to impose a more severe sentence. Accordingly, this assignment of error is without merit.

In his last assignment of error, defendant contends the court’s utilization of both Code of Crim.P. art. 893.1 and R.S. 14:95.2 in imposing sentence violates constitutional prohibitions against double punishment for the same act. He argues the legislature intended to impose enhanced penalties under Code of Crim.P. art. 893.1 only for those offenses not already provided for under R.S. 14:95.2.

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the United States Supreme Court recently considered the scope of protection accorded with regard to cumulative sentences imposed in a single trial. The Court, noting it was the role of the legislature to proscribe the scope of punishments stated:

“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from proscribing greater punishment than the legislature intended.
“Where ... a legislature specifically authorized cumulative punishments under two statutes ... the trial court or jury may impose cumulative punishment under such statutes in a single trial.” 103 S.Ct. at 678-9.

The pertinent inquiry is therefore whether or not the legislature intended to allow the application of both Code of Crim.P. art. 893.1 and R.S. 14:95.2 in imposing sentence.

Whenever a firearm is used in the commission of a felony, Code of Crim.P. art. 893.1 requires the trial court to impose the maximum possible sentence if that sentence is less than five years and to impose a sentence of at least five years in all other cases. This provision does not increase the maximum sentence already provided for the commission of a particular offense, but merely establishes a mandatory minimum sentence. It also requires the sentence to be served without the benefit of parole, probation or suspension of sentence. R.S. 14:95.2 requires the imposition of a two year sentence, in addition to the penalty provided for the particular felony, if a firearm is used in certain enumerated felonies, including attempted second degree murder.

This Court has previously determined these provisions are not in conflict and can both be applied in imposing sentence. State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir.1984), motion for delayed appeal denied, 450 So.2d 951 (La.1984). Each of these provisions advances a different legislative objective; one to set forth a minimum penalty when a firearm is used in the commission of any felony, and the other to impose a separate, additional penalty when a firearm is used in the commission of certain enumerated crimes. The legislature obviously regarded the felonies enumerated in R.S. 14:95.2 as offenses which present an increased danger to human life when committed with a firearm or explosive device. For this reason, it established an additional penalty, over and above the penalty already provided for the particular felony, when these offenses are committed in such a manner. Accordingly, since the objective and result achieved by each of these provisions is different, we find the legislature clearly intended to permit the application of both provisions in cases such as the present one.

Defendant contends a contrary intent is shown by the fact that R.S. 14:95.2 specifically prohibits suspension of sentence, because Code of Crim.P. art. 893.1 is applicable only when suspension of sentence is not otherwise prohibited. This contention lacks merit. The prohibition in R.S. 14:95.2 is applicable only to the additional two year sentence it mandates. Since R.S. 14:95.2 does not prohibit the suspension of the original felony sentence, it can be applied together with Code of Crim.P. art. 893.1 in imposing sentence.

For the above reasons, we affirm defendant’s sentence.

AFFIRMED.

      . In support of his argument that cumulative punishments are constitutionally prohibited, defendant relies upon Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) and Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). These cases do not support defendant’s position. In each of these cases, the court was concerned with whether or not a particular transaction constituted one or two separate offenses. The court refused to allow multiple punishment because of its conclusion that Congress did not intend to create two separate offenses in these particular cases. There is no conflict between these cases and our treatment of the present matter.


source: Caselaw Access Project

author: CRAIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Allen J. JOHNSON.
    No. 84 KA 0776.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Ossie Brown, Dist. Atty. by Susan Ponder, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Allen J. Johnson was indicted by a grand jury on March 9, 1983, charged with second degree murder of Rosemary Greeley, a violation of La.R.S. 14:30.1, and simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. Defendant pled not guilty and, after a jury trial, was found guilty as charged on each count. The trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction and, to five years at hard labor, the first year without benefit of parole, probation, or suspension of sentence on the conviction for simple burglary of an inhabited dwelling, the sentence to be served concurrently with the other sentence imposed.

Defendant brings this appeal urging three assignments of error:

1. The trial court committed error when it allowed introduction, over defense objection, of state exhibits 4 and 5.

2. The trial court committed error when it allowed introduction, over a timely defense objection, of state exhibit 6.

3. The verdict rendered is contrary to the law and/or the evidence.

Assignments of error numbers 1 and 2 were not briefed and are thereby considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

ASSIGNMENT OF ERROR NO. 3:

By means of this assignment, defendant contends that the jury erred by returning a verdict of guilty of second degree murder because the circumstantial evidence linking defendant to the instant crime did not exclude every reasonable hypothesis of innocence.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime and defendant’s identity as perpetrator of that crime beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). The statutory rule as to circumstantial evidence is that assuming every fact proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. However, where circumstantial evidence is used to convict, exclusion of every reasonable hypothesis of innocence is simply a component of the more comprehensive reasonable doubt standard, providing an evidentiary guideline for a jury, and facilitating an appellate court in determining whether a rational juror could have found guilt beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984).

Larry Richardson, common laiv spouse of Rosemary Greeley, testified at trial that he found his wife dead in a pool of blood in their kitchen when he returned home about 9:30 p.m. on the evening of February 9, 1983. The front door of his house on 40th Street was open. As Mr. Richardson walked through the living room to the kitchen, he noticed that the couch and stereo were pushed from the wall and that his television set was missing.

Various neighbors also testified as to Mr. Richardson’s discovery and aided in summoning firemen and police officers to the scene. Richard Sullivan, a Baton Rouge fireman, testified that he was dispatched to the scene about 8:55 p.m. The time of dispatch was also confirmed by the Baton Rouge city police.

Detective Lamar Thompson testified that when he arrived on the scene he noticed that the door was unlocked and that the eablevision wire was pulled outside of the house as if it had been jerked away. He also determined, based on floor markings, that the stove had been pushed away from its normal position.

Crime scene investigators were unable to locate a weapon at the scene. However, various items were collected including knobs from the stove found on the floor in the kitchen. The stove was dusted for fingerprints and aerial photographs were made.

Felix White, who lived two houses from the victim, testified that as he was walking home about 7:20 p.m. on the evening of February 9, 1983, he observed a pickup truck parked in front of the victim’s house. He saw two men seated in the truck and heard a third person yell for assistance from inside the house.

Donald Spain and Vince Lanus were arrested on February 11, 1983, charged with accessory after the fact to murder and burglary. Both received plea bargains in exchange for their testimony at trial. Spain testified at trial that defendant called him at his home about 6:00 p.m. on February 9, 1983, inquiring if he knew of anyone who wanted to buy a television set. Defendant had scratches on his face, a knife in his possession, and blood stains on his shirt sleeves when he arrived at Spain’s house about thirty minutes after his telephone call. Defendant offered the explanation that his appearance resulted from a recent fight with a fellow who had robbed him a few weeks earlier. After getting Lanus and his pickup truck, Spain, Lanus and defendant went to the victim’s house. The front door was unlocked and defendant went inside the house; Spain followed at defendant’s request to help in loading the television set. Spain also noted that defendant did not disconnect the eablevision wire until they were outside the house. The three men drove back to Spain’s house, some five blocks away. The television set was loaded into a van driven by Spain’s uncle and defendant was paid $50.00 for the set. Vince Lanus testified consistently with Spain as did Spain’s cousin, Kirk Ridgely, who was at Spain’s residence when defendant arrived.

Defendant was arrested on February 12, 1983. He and Spain were held in adjacent cells. During that time, a note was passed to Spain which provided:

Sleepy did you tell them that I had a knife Wensday[sic] because if you didn’t then don’t because that will make it easy on us all.

Spain, whose street name was “Sleepy”, testified that defendant later asked him if he had received the note and asked if he had told the police officers about defendant’s knife. As part of his efforts to cooperate with the police, Spain later gave the note to an officer.

Detective Heinrich who assisted in the arrest of defendant noted that defendant had scratches on his face when arrested on February 12, 1983. After having been advised of his rights, defendant told the arresting officers that he had been visiting his girlfriend, Rose Spurlock, several blocks from the victim’s house at about 7:30 p.m. on February 9, 1983. However, Rose Spurlock testified at trial that defendant left her house about 5:30 p.m. on February 9, 1983, and did not return until 9:00 p.m. She also noted the scratches on defendant’s face and testified that defendant gave her his knife to keep when he returned about 9:00 p.m. She testified that defendant had telephoned her at about 6:00 p.m. that evening and also told her that he had been in a fight with a fellow who had robbed him. A few days after the incident, Ms. Spurlock gave the knife to Deputy Dennis who had been trying to locate defendant on an unrelated matter. Deputy Dennis also saw defendant on Ms. Spur-lock’s porch when he passed by about 10:30 p.m. on February 9, 1983, but defendant fled out the back as he approached.

Defendant was also observed on the day of the incident by a former classmate, Leroy Williams, who testified that defendant telephoned someone from the laundromat at the corner of Gus Young and 40th Street at about 6:00 p.m. Defendant had scratches on his face and was overheard instructing the party he was talking with not to tell anyone where he was.

A serologist with the Louisiana State Police testified that type A blood was found on the knife defendant had given to Ms. Spurlock and that the victim had type A blood. A latent fingerprint expert with the Louisiana State Police verified that a palm print taken from the stove at the ' victim’s residence was defendant’s.

■ Dr. Landry, who performed an autopsy on the victim, on February 10, 1983, testified that the victim had a large gaping laceration of the neck, several smaller lacerations, and a stab wound to the left upper chest which severed her left lung and caught her diaphragm. The major cause of death was determined to be loss of blood from the great vessels and the wound itself, with shock following the hemorrhaging. Time of death was listed at 7:00 p.m. on the autopsy report, however, Dr. Landry testified that it could easily have been an hour earlier.

Having all this information before it, the jury concluded that every reasonable hypothesis of innocence (that someone other than defendant killed Rosemary Greeley prior to removal of the television set by defendant, Spain, and Lanus) was excluded. Evaluation of the totality of evidence presented convinces us that the jury could have excluded every reasonable hypothesis except murder by defendant. Consequently, viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded beyond a reasonable doubt that defendant was guilty of the crime charged. Nealy, 450 So.2d 636, 637.

For the foregoing reasons this assignment of error is without merit.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Although not raised by defendant, we note that the indictment, charging defendant with second degree murder and simple burglary of an inhabited dwelling, is defective because the statute cited therein for count II (LSA-R.S. 14:62) is incorrect. La.C.Cr.P. art. 464 requires the inclusion in an indictment of the official citation of the statute a defendant is alleged to have violated. However, the article further provides that "(e)rror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” Defendant made no showing of having been mislead to his prejudice. State v. Tasker, 448 So.2d 1311 (La.App. 1st Cir.) writ denied, 450 So.2d 644 (La.1984).

      . Larry Richardson testified that to his knowledge defendant had never been in their kitchen prior to Rosemary Greeley’s murder.


author: WATKINS, Judge.

text:
    Patricia Day MILLER v. The UPJOHN COMPANY, et al.
    No. 84 CM 1140.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      C. John Caskey, Baton Rouge, Joseph H. Simpson, Amite, for plaintiff-appellee.
    Donna G. Klein, New Orleans, for defendants-appellants.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This matter concerns a motion filed by the plaintiff-appellee Patricia Day Miller, seeking dismissal of this unlodged appeal taken by The Upjohn Company and J. Killi-an Williams on the ground that all the rulings appealed are non-appealable interlocutory orders.

The suit was one for damages from the use of the drug PANALBA, manufactured by defendant Upjohn. A jury trial resulted in a mistrial when the jurors could not agree on a verdict.

After the mistrial, appellants appealed the following rulings of the trial court:

1)pre-trial denial of a prescription exception;

2) denial of a motion for directed verdict during the mistrial;

3) various evidentiary rulings made during the trial; and

4) jury instructions.

Ms. Miller has now filed this motion to dismiss.

The overruling of an exception of prescription is an interlocutory judgment and hence not appealable. Edwards v. Lousteau Auto Sales, Inc., 424 So.2d 460 at 462 (La.App. 5th Cir.1982).

The denial of a directed verdict is not appealable. Adams v. Pourciau, 417 So.2d 860 (La.App. 4th Cir.1982), writ denied, 422 So.2d 157 (La.1982).

Evidentiary rulings and jury instructions are clearly interlocutory under LSA-C.C.P. 1841. In de la Vergne v. de la Vergne, 361 So.2d 1236 at 1237 (La.App. 1st Cir.1978), the court stated:

A judgment which does not determine or dispose of any issue constituting a part of the merits of the case is not a final judgment. If such a judgment cannot cause a party to suffer irreparable injury, it is not appealable. LSA-C.C.P. art. 2083; Succession of Fontenot, 340 So.2d 707 (La.App. 3rd Cir.1976), and the cases therein cited.

All of the rulings at issue are clearly interlocutory. Appellants contend that the rulings at issue should be considered as appealable interlocutory rulings under LSA-C.C.P. 2083 because they cause irreparable injury. In Updegraff v. Parish of St. Bernard, 433 So.2d 863 at 865 (La.App. 4th Cir.1983), the court set forth the test for determining whether or not an interlocutory judgment will cause irreparable injury:

The test for determining whether an interlocutory judgment may cause irreparable injury is whether the procedural error will have such an effect on the merits of the case, that the appellate court cannot correct an erroneous decision on the merits. Bernard v. Allstate Ins. Co., 396 So.2d 548 (La.App. 3d Cir.1981).

It appears that each of the alleged errors at issue could be cured on appeal if found to be error. Furthermore it does not appear that appellants have suffered irreparable injury. In any event, since a final judgment has not been rendered, appellants may apply for writs.

The motion to dismiss the appeal is granted, at appellants’ costs.

APPEAL DISMISSED.


author: JOHN S. COVINGTON, Judge Pro Tem:

text:
    Betty W. EDWARDS v. DEPARTMENT OF CORRECTIONS, L.C.I.W.
    No. 83 CA 1175.
    Louisiana Court of Appeal, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writs Denied Feb. 15, 1985.
    Albert F. Richard, Plaquemine, for plaintiff-appellant.
    Betty Jean G. Ray, Dept, of Justice, Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for Herbert Sumrall, Director.

      Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem:

Plaintiff, Betty W. Edwards, appeals the decision of the Louisiana Civil Service Commission (hereinafter referred to as the Commission), upholding her termination from employment at the Louisiana Correctional Institute for Women (hereinafter referred to as LCIW).

On August 8, 1981, plaintiff was employed at LCIW as a Correctional Security Officer II with permanent status working as a Front Gate Control Guard. Just prior to the end of plaintiffs work shift, she was informed that Lieutenant Azalee Eubanks, her shift supervisor, had ordered that plaintiff remain on duty to work overtime. This information was relayed to plaintiff by Dorm Control Officer Mary Jane Corbin. Based upon past experiences, plaintiff asked whether such request was a joke. She was told it was not. When relieved from duty at the end of her shift, plaintiff left LCIW’s enclosed area but remained outside the front gate for a period of time before going home. As a result of this incident, it was recommended that plaintiff be suspended for five days. However, on August 16, 1981, before the suspension became executory, plaintiff was allegedly found to be asleep while on duty. By letter dated September 1, 1981, plaintiff was advised that she was being terminated on September 8,1981, for failing to work overtime on August 8, 1981 and sleeping while on duty on August 16, 1981.

Timely notice of appeal was filed with the Commission, wherein appellant complained of her termination and denied the charges.

On November 8, 1982, a referee appointed by the Commission heard evidence and based thereon, concluded that legal cause existed for plaintiffs termination. Such cause was found to be: (1) the August 8, 1981 incident in which plaintiff failed to remain after her shift to work overtime, and (2) plaintiffs inattentiveness to her duties on August 16, 1981. Thereafter, plaintiff filed an application with the Commission for review of the Referee’s decision. Review having been denied, plaintiff filed a timely appeal to this Court.

Plaintiff asserts the Commission erred in concluding that: (1) plaintiff violated a direct verbal order to remain for overtime duty, and (2) plaintiff was asleep or so inattentive on duty as to warrant her termination.

Article X, Section 8(A) of the Louisiana Constitution of 1974 provides that no person who has gained permanent status in the classified State Civil Service shall be subject to disciplinary action except for legal cause expressed in writing. Legal cause exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relationship to the efficient and orderly operation of the public service in which the employee is engaged. In re Appeal of Kennedy, 442 So.2d 566 (La.App. 1st Cir.1983); In re Appeal of Brisset, 436 So.2d 654 (La.App. 1st Cir.), writ denied, 441 So.2d 749 (La.1983); Dent v. Department of Corrections, Louisiana Correctional Institute for Women, 413 So.2d 920 (La.App. 1st Cir.1982). Moreover, the burden of proving that the action taken against the disciplined employee was proper and warranted rests upon the appointing authority. Kennedy, supra. To determine whether legal cause existed, a review of the Commission’s findings of fact (via its alter ego, the Referee), with respect thereto is appropriate. These findings are entitled to great weight and will not be disturbed on appeal absent a showing of manifest error. Brisset, supra; Williams v. Department of Public Safety, Office of State Police, 415 So.2d 543 (La.App. 1st Cir.1982).

The Commission adopted the following findings and conclusions made by the Referee:

“(1) On August 8, 1981, appellant was working the Front Gate Control on the 11:00 p.m. to 7:00 a.m. shift.

“(2) At approximately 6:55 a.m., Lieutenant Azalee Eubanks, Shift Supervisor, instructed Mary Jane Corbin, Dorm Control Officer, to inform appellant that she would have to remain on duty for overtime work. Ms. Corbin called appellant to notify her.

“(3) Because of past experiences, appellant asked. Ms. Corbin if she was joking. Ms. Corbin replied that she was not joking and that Lieutenant Eubanks had ordered the overtime duty.

“(4) Sergeant Geraldine Bobo relieved appellant at 7:00 a.m. Appellant left the institution, through the front gate, a few minutes thereafter.

“(5) On August 15, 1981, appellant was working in Gemini II dorm as Control Officer on the 11:00 p.m. to 7:00 a.m. shift. Officer Marie Hutchinson was working with appellant as Roving Security Guard.

“(6) At approximately 3:30 a.m., Lieutenant Dorothy Bateman and Officer Hutchinson entered Gemini II, crossed the recreation area and observed appellant sitting inside the Control Booth with her head leaning forward.

“(7) Officer Hutchinson left the area because she did not wish to become involved. Lieutenant Bateman brought Officer Hutchinson back to the Control Booth, where appellant was still seated with her head forward.

“(8) Lieutenant Bateman then tapped on the glass of the Control Booth. Appellant raised her head and looked at Lieutenant. Bateman who gestured for appellant to open the Control Booth door. Appellant opened the door.”

We find no error on the part of the Commission with respect to these findings of fact. However, based upon the following logic, we conclude these facts fail to establish a “legal cause” for disciplinary action.

Plaintiff first asserts that the Commission erred in affirming the Referee’s decision that she had violated a direct verbal order to remain for overtime duty. Disciplinary Rule 7 of the Louisiana Department of Corrections states that “direct written or verbal orders must be obeyed cooperatively and promptly. In connection therewith, employees may be required on occasion to work overtime and such requests cannot be refused.” In essence, the issue presented to this Court is whether plaintiff received a direct verbal order. However, any such discussion thereof is pretermitted by our finding that the Commission failed to establish that plaintiffs actions impaired the efficiency of the public service and bore a real and substantial relation to the efficient and orderly operation of that service.

The record is devoid of any testimony or evidence that another employee was called in to substitute for plaintiffs failure to work overtime. Further, there is no evidence in the record to suggest that because of plaintiffs actions, that a security or safety situation arose or was likely to arise. While plaintiff’s conduct is not to be condoned and would under appropriate circumstances constitute legal cause for termination, the appointing authority has failed to show that such conduct (i.e., failing to work overtime) impaired the efficiency of the public service. Accordingly, such incident is not “legal cause” for plaintiff's termination.

Plaintiff secondly asserts that the Commission erred in accepting the Referee’s determination that her inattentiveness was cause for termination. In Dent, supra, this Court found that plaintiff’s conduct (i.e., seated on a stool with her head on her arms and eyes closed) to be sufficient evidence that plaintiff was asleep on duty. In dicta, the court found such action, even if plaintiff was not asleep, to constitute inattentiveness to her employment such that it would constitute legal cause for termination.

In the matter sub judice, the evidence adduced and Commission’s conclusions therefrom fail to establish that plaintiff was asleep. However, the Commission citing Dent, supra, did find that such conduct was inattentiveness and legal cause for dismissal. We find that while inattentiveness may well be “legal cause” for termination, thus compromising the integrity of institutional security, in this instance, the appointing authority has failed to carry its burden of proof. Plaintiff testified that at the time in question she was working a crossword puzzle. Officer Hutchinson testified that plaintiffs head was bent over looking at the cross-word puzzle book with a pencil in her hand. Plaintiff’s testimony, corroborated by Officer Hutchinson, clearly proves that permission was given the officers to read and/or work crossword puzzles, or even crochet, while employed at their assigned duties of Front Gate Control Guard. This testimony was uncontradicted by LCIW. Moreover, the record reflects that no security or safety incidents arose out of plaintiff’s alleged inattentiveness. LCIW cannot permit its employees to read and/or engage in other activities while on duty and then seek to terminate their employment for taking advantage of such permission. The appointing authority has failed to prove that plaintiff’s actions in working the crossword puzzle impaired the efficiency of the public service. Accordingly, we find that the Commission erred in concluding that plaintiff’s actions were “legal cause” for termination.

For the above and foregoing reasons, judgment of the Louisiana Service Commission is hereby reversed and appellant is ordered reinstated together with all accrued emoluments of her former position. Appellee is to pay costs in the amount of $50.00.

REVERSED AND RENDERED.

      . The Referee found the testimony presented inconclusive to establish that plaintiff was asleep while on duty.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Rickey ELLOIE.
    No. KA 2131.
    Louisiana Court of Appeal, Fourth Circuit.
    Dec. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    George A. Blair, III, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   SCHOTT, Judge.

Defendant was convicted of armed robbery in violation of LSA-R.S. 14:64 and sentenced to ten years at hard labor.

At about 4 A.M. on July 11, 1984 Della Garrison and her son, Michael Easterling, were in Garrison’s car waiting for a red light to change when a man with a gun and a woman approached them. He ordered Garrison to open the car door, and they got into the back seat behind Garrison and Easterling. After making Garrison drive them around for a while they ordered her to stop, took Easterling’s watch and wallet, put Garrison and Easterling out of the car, and stole it. Easterling called the police.

At about 1 A.M. on the following morning police officers spotted and stopped Garrison’s stolen car. It was occupied by defendant and one Davetta Odom with two juveniles. On August 8 Garrison and East-erling picked photographs of defendant and Odom from photographic lineups presented by the police.

We have reviewed the record for errors patent and find none.

Before addressing defendant’s specific assignments we note from our review of the record that the evidence, viewed in the light most favorable to the prosecution, is sufficient for a rational trier of fact to have found defendant guilty beyond a reasonable doubt of each and every element of armed robbery. Garrison and Easterling both identified defendant as the man who robbed them with Odom. While Odom and defendant both denied he was involved, and friends of defendant offered alibi testimony, the jury rejected this testimony. The record provides no basis for this court to disturb this conclusion.

Assignment of Error 1

By this assignment defendant claims the trial court erroneously sustained a challenge for cause by the state. On the prosecutor’s question to the juror he stated that he would not vote to convict even if the proof were beyond a reasonable doubt. Defendant contends that questioning by his attorney rehabilitated the juror, but the record shows otherwise. On questioning by defense counsel the juror repeated that he could not convict “just by proving him beyond a reasonable doubt.” The sustaining of this challenge for cause was clearly warranted. C.Cr.P. Art. 797(4). This assignment is meritless.

Assignment of Error 2

When Easterling was on the witness stand the prosecutor asked him, “And what was going on in your mind while this [his being threatened by defendant with the gun while being relieved of his watch and wallet] was going on?” Defense counsel’s objection to the question was overruled, the question was rephrased as to “How did you feel while the robbery was going on” and Easterling replied, “Seared.” By this assignment defendant contends his objection was erroneously overruled and the state was wrongfully permitted to present East-erling’s state of mind to the jury which was an “impression or opinion” in violation of R.S. 15:463. Easterling was not giving an impression or opinion when he said he was scared. He was stating a fact as authorized by R.S. 15:463. This assignment is mer-itless.

Assignments of Error 4 and 5

By these assignments defendant contends that his counsel’s cross examination of Easterling was erroneously curtailed by the trial judge. He cites two instances of these alleged errors. In the first instance although an objection by the state to a question by defense counsel was sustained, counsel immediately repeated the question in slightly different form and got an answer. In the second instance defense counsel’s question was already answered when the objection was made. Thus, if the rulings were erroneous defendant was not prejudiced. In any event, the trial court has great discretion in controlling the scope of cross examination. State v. Wright, 447 So.2d 614 (La.App. 4th Cir.1984). The rulings complained of here were not abusive of such discretion. These assignments have no merit.

Assignment of Error 12

By this assignment defendant contends that the denial of his motion for new trial was erroneous. We need not address this assignment since it was not argued in brief. However, in our discussion of the sufficiency of the evidence we have, in effect, held that this assignment has no merit.

Assignments of Error 6, 7, and 11

By these assignments defendant contends that his motion to suppress identification was erroneously denied and his photo was improperly and erroneously displayed to the jury. He argues that Garrison and Easterling never got a good look at defendant while he robbed them because of his position behind them in the car and the poor lighting which prevailed. He makes much of several minor discrepancies in the descriptions of defendant by the victims. He attacks the identification of the victims as faulty because they said their original selection of defendant’s photo was “tentative” and the photos of defendant and Odom were so different from the others that they were “suggestive” to the victims. He finally attacks the identification because it took place so long—twenty-eight days—after the crime and neither victim knew defendant before the crime.

Much of this involves the fact finding province of the judge at the suppression hearing and the jury at trial. Both victims said they got a look at the defendant during the time he was with them and were able to identify him. The lapse of twenty-eight days does not in itself taint the identification. In State v. Prudholm, 446 So.2d 729 (La.1984), the court found that a three and one-half month interval between a rape and the identification of the perpetrator did not automatically cause the identification to be unreliable. Once again, according to the testimony of the victims in this case they clearly remembered defendant and Odom as the robbers despite the twenty-eight day lapse of time.

As to defendant’s contention that the photos of himself and Odom were suggestive to the victims, the questions are whether the procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that defendant was denied due process and whether the identification procedure displayed the defendant so that the witness’s attention was focused on him. State v. Neslo, 433 So.2d 73 (La.1983).

Defendant contends that by the photographs of defendant and Odom being slightly smaller than the others and having a green background unlike the others their photographs were suggestive. This argument lacks merit. Each victim apart from the other was given six photographs of women, including Odom, and six of men, including defendant, and they each identified the robbers separately from each set of six. While the photographs of defendant and Odom were both slightly smaller than the others in their respective sets, all of the photographs were of slightly different sizes. It is not conceivable that this could lead to misidentification especially considering that the identifications of the two robbers were not made together but separately. The same applies to the fact that the backgrounds in the robbers’ pictures were green while the others were different: All of the backgrounds- were different in color. There is no reason to believe that the victims were somehow drawn to the two photographs (selected independently from separate sets) with the green backgrounds as opposed to two others with the same backgrounds. In other words since all the photographs have dissimilar sizes and colors of backgrounds they do not suggest that defendant and Odom are the robbers.

Since defendant did not prove that the identification was suggestive and that there was a likelihood of misidentification as a result of the identification procedure, the trial court properly denied defendant’s motion to suppress and properly allowed the photographic lineups to go to the jury. These assignments have no merit.

Assignment of Error 13

By this assignment defendant contends his ten year sentence was excessive for a first offender. The maximum sentence that could have been imposed was ninety-nine years without benefit of parole, probation or suspension of sentence. In State v. Williams, 420 So.2d 1116 (La.1982) the court concluded that a twelve year sentence for a first offender who robs his victim at gun point is not excessive or apparently severe. Therefore, a remand for resentencing with an articulation of all the elements of C.Cr.P. Art. 894.1 is not warranted. This assignment is meritless.

Accordingly the conviction and sentence are affirmed.

AFFIRMED.