author: GUIDRY, Judge. DOMENGEAUX, C.J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Willie HOWARD, Defendant-Appellant.
    No. CR83-255.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Thomas K. Brocato, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Edwin Ware, Dist. Atty., and Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Defendant, Willie Howard, was charged by grand jury indictment with the offense of second degree murder of Isaac Kenebrew, a violation of LSA-R.S. 14:30.1. The defendant was tried twice. The first jury trial ended in a mistrial because the jury was unable to reach a verdict. The second trial resulted in a finding of guilty of the lesser offense of manslaughter, a violation of LSA-R.S. 14:31, by a ten to two vote. The defendant was sentenced on January 20, 1983, to ten years at hard labor. Defendant appeals his conviction making five assignments of error. Assignments of error numbered 2, 3 and 5 have not been briefed nor argued and are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

FACTS

In the afternoon and early evening of February 5, 1982, the defendant, Willie Howard, was present at the residence of the victim, Isaac Kenebrew. There were others present, including Isaac Kenebrew, Robert Anthony and the victim’s “common-law wife”, Brenda. There was a considerable amount of drinking going on and at one point the victim forcibly ejected Willie Howard from the Kenebrew home. Immediately thereafter two shots were fired, and Mr. Kenebrew fell to the floor. There were no signs that Mr. Kenebrew, who was extremely inebriated, had been shot and, at his request, Robert Anthony carried him to bed. A few hours later, he was found dead. The police were called to investigate the fact that there was a shooting at the residence, but they could find no obvious bullet holes in the victim. The body was taken to Shreveport for an autopsy, on February 8, 1982. Thereafter, the coroner informed the Alexandria City Police that Isaac Kenebrew had in fact died of a bullet wound.

An investigation was begun in the homicide. Witnesses were questioned and Willie Howard was determined to be the primary suspect. On February 9, 1982, at 12:32 p.m., the defendant appeared at the Alexandria police station and contacted a Lt. Ritchie in the detective division because he understood the police had been looking for him. Lt. Ritchie informed Howard that they were not looking for him, that they knew where he was and that they had merely been questioning people in his neighborhood concerning him. The defendant then advised the officer that he wanted to talk. Lt. Ritchie responded that since the defendant was a suspect, he must advise him of his Miranda rights. After he was advised of his rights, the defendant stated that he didn’t want to say anything without his attorney present. Lt. Ritchie responded that he could not talk to the defendant unless he waived his right to an attorney. The defendant then inquired whether he was under arrest. When Lt. Ritchie responded “No,” and informed Mr. Howard that he could leave, the defendant left the station.

Within a couple of hours, Lt. Ritchie and Officer Kitchens went to the defendant’s residence, his mother’s home, to search for a pistol. The defendant, his mother and a Mr. Cotton were present. While Lt. Rit-chie was explaining to Mr. Howard’s mother that they wished to search for a pistol, the defendant blurted out that he had already informed the officers that he had thrown the pistol away on Saturday morning. His mother refused to allow the officers to search the house and they immediately left.

An arrest warrant was obtained and the defendant was arrested at his home at 4:12 p.m. on February 10, 1982. He was brought to the police station at 4:24 p.m. and read his rights. At 4:30 p.m. after signing an express waiver of rights, the defendant responded to questioning and gave an inculpatory statement.

The defendant’s remaining assignments of error are as follows: (1) the trial judge erred in denying defendant’s motion to suppress and in allowing the inculpatory statement to be introduced into evidence at his trial; and, (2) the jury erred in convicting the defendant where the prosecution failed to prove every element of the crime beyond a reasonable doubt.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant claims that the trial court erred in denying defendant’s motion to suppress the inculpatory statement, and in allowing said statement to be introduced into evidence at his trial. He contends that under all circumstances, he was not afforded his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution, and Article 1, Section 13 of the Louisiana Constitution of 1974, nor was his right to remain silent and his right to counsel honored as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 13 of the Louisiana Constitution of 1974.

We first note that defendant’s contention that his Sixth and Fourteenth Amendments’ right to counsel was violated has no merit. That right prohibits law enforcement officers from “deliberately eliciting” incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. In this case there was no formal charge or indictment and the Sixth and Fourteenth Amendments’ right to counsel had not accrued. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). See also Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

We now turn to the question of whether the use of Howard’s confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny.

Defendant’s principal contention is that the facts of this case establish a violation of the “new rule” enunciated in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1980). In Edwards, the defendant had been arrested on criminal charges and was subjected to custodial interrogation until he asked for an attorney. Questioning then ceased and the defendant was taken to jail and locked up. The next day, two detective colleagues of the officers who had interrogated the defendant the previous night, came to the jail and asked to see the defendant. The defendant told the guard that he didn’t want to talk to anyone. The guard responded that he had to talk to the detectives. The defendant met with the detectives who stated that they wanted to talk to him and informed him of his Miranda rights. After listening to a portion of a taped statement of an alleged accomplice, the defendant implicated himself in the crime. The U.S. Supreme Court stated its holding as follows:

“... we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.8 We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Emphasis added and footnotes omitted)

The facts which distinguish this case from Edwards are that although Howard had been advised that he was a suspect and informed of his Miranda rights, when he initially requested the presence of counsel, he was not in custody and not interrogated. Rather, he had voluntarily appeared at the police station and upon his refusal to speak to the officers without the presence of counsel was allowed to leave. He was not taken into police custody until 28 hours later at which time he was first subjected to custodial interrogation after having been read his rights.

The defendant contends that this distinction does not make the rule of Edwards inapplicable. He argues that although he was not in custody, he was the focus of the investigation at the time that he invoked his right to counsel and therefore no interrogation of the accused should have taken place unless he himself initiated it.

A resolution of this issue requires an examination of the rationale behind the Edwards’ rule. After announcing that “it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel”, the court, in Edwards, further explained as follows:

“... The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S., at 298, n. 2, 100 S.Ct., at 1688, n. 2.9 ”

In Rhode Island v. Innis, supra, the court elucidated as follows on the policies underlying Miranda:

The concern of the Court in Miranda was that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination. Id. [384 U.S.] at 457-458, 86 S.Ct., at 1619.”

In this case, the February 9th conversation was not custodial interrogation and therefore the February 10th interrogation was not further interrogation or reinterro-gation. Unlike Edwards, who was incarcerated and had his movements, associations and communications controlled by police officials, Howard was free to go as he pleased for a period of 28 hours between the invocation of his right to counsel and the initial custodial interrogation. Edwards decided after arrest not to talk to the officers. He had no chance between his arrest and subsequent statements to contact or talk to an attorney. Although he twice expressed his reluctance, the police persisted until he implicated himself. Cf. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

In Oregon v. Bradshaw, — U.S. -, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Supreme Court explained the reason behind the Edwards rule as follows:

“... This was in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was ...”

We think that the prophylactic per se rule of Edwards was designed to protect an accused in custody from persistent badgering. That is, a valid waiver of his right to counsel cannot be established where an accused in custody is persistently reinterrogated until he impliedly or expressly waives his rights. We therefore conclude that here, where the first and only interrogation was on February 10th, the validity of the waiver of counsel is not controlled by the per se rule of Edwards. Edwards v. Arizona, supra, N. 10.

Since there was no violation of the Edwards rule in this case, the next inquiry is “whether a valid waiver of the right to counsel and the right to silence has occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances”. Edwards v. Arizona, supra. See also Wyrick v. Fields, — U.S. -, 103 S.Ct. 394, 74 L.Ed. 214 (1982) (per curiam). This determination depends “upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused”. North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). See also Oregon v. Bradshaw, supra. The trial court made this inquiry and concluded there was a valid waiver relying on express written and oral statements of waiver by the defendant.

“An express written or oral statement of waiver of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.

North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, at 1757, 60 L.Ed.2d 286.

Willie Howard has a ninth grade education. On February 10, 1982, at 4:24 p.m., after indicating that he understood his rights, Howard signed a printed waiver of rights form which was read to him by Officer Kitchens. The form recites that he read a statement of his rights which he understood, that he was willing to make a statement and answer questions, that he did not at that time want a lawyer present, that no promises or threats had been made to him and that no pressure or coercion had been used against him. After signing a form indicating that he did not wish to call anyone, he made an oral statement to Officer Kitchens and Lt. Ritchie at 4:30 p.m. The statement which was recorded begins with an acknowledgement by defendant whereby he again indicated that he had been advised of his rights, and that his signature appeared on the waiver of rights form in order to waive those rights and give the statement.

Lt. Ritchie and Officer Kitchens both testified that the defendant had been in custody for less than 20 minutes. He did not appear to be under the influence of drugs or alcohol and seemed alert. He was made comfortable and not denied anything at any time. No threats, promises or inducements to talk were made to him and the defendant indicated that he understood his rights. This testimony is unrebutted.

There is no evidence in the record of any circumstances which would indicate that the express waiver was not knowing and intelligent. We therefore conclude that the trial judge properly found that the prosecution had sustained its burden of showing that the waiver was knowing and intelligent. There is no merit to this assignment of error. The trial judge correctly refused to suppress defendant’s inculpa-tory statement.

ASSIGNMENT OF ERROR NO. 2

In this alleged error, defendant contends that the State’s evidence was insufficient to sustain the conviction of the defendant on a responsive verdict of manslaughter to the charged crime of second degree murder. Specifically, defendant argues that the State failed to rule out accident, negligence or self-defense in its evidence.

“The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The State therefore bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense; State v. Brown, 414 So.2d 726 (La.1982); and that the defendant had specific intent to kill or do great bodily harm. State v. Huizar, 414 So.2d 741 (La.1982).

The relevant inquiry on review of the sufficiency of the evidence to support a criminal conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also, State v. Mathews, 375 So.2d 1165 (La.1979) and State v. Brown, supra.

With regard to the issue of self defense, defendant contends that the State failed to rebut by competent evidence his statement that he fired the gun over the victim’s head in order to scare him back because he was afraid that the victim would do defendant harm.

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

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

We are here concerned with whether the defendant could have reasonably believed he was in danger of losing his life and whether he could have saved himself from danger without resorting to deadly force.

The defendant’s statement that he shot at defendant because he was afraid that the victim would do him harm and the corroborated fact that the victim had physically ejected the defendant from his residence is the only evidence in the record which would support a finding of self defense. The other evidence tends to negate such a finding. The remainder of defendant’s statement recites the following facts: that for no reason apparent to the defendant, Kenebrew struck him with his fist; that defendant continued walking toward the sidewalk; that when he turned and saw Kenebrew walking toward him, he pulled his pistol and shot twice over his head. The defendant further stated that Kene-brew had not threatened him nor had he seen a weapon in the possession of the victim and that since he was already outside he could have kept on walking but didn’t because he just wasn’t thinking.

Although there is no unqualified duty to retreat, the possibility of escape is a recognized factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger. State v. Collins, 306 So.2d 662 (La.1975).

Without considering the remainder of the State’s evidence which only supports the necessary inferences to negate a finding of justifiable homicide, but considering alone the defendant’s statement in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that the homicide was not justifiable, i.e., either that (1) the defendant could not reasonably have believed he was in danger of losing his life or receiving great bodily harm; or (2) he could have saved himself from the danger without resorting to deadly force.

With regard to the issue of specific intent the defendant contends that although the court concluded that the victim’s death was the result of the shots fired by the defendant, the State nevertheless failed to prove beyond a reasonable doubt that the defendant had the requisite intent.

“Although intent is a question of fact, it need not be proven as a fact, instead, it may be inferred from circumstances or transactions.

LSA-R.S. 15:445; State v. Fuller, 414 So.2d 306 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981); In Interest of Franklin, 399 So.2d 671 (La.App.1981).

The defendant claims that he fired the shots over the victim’s head, and explains the shooting as a result of a ricochet and thus accident or negligent and unintentional.

The State presented evidence through the testimony of Dr. George McCormick, the coroner, and Officer Ray Delcomyn, the crime scene investigator in this case, that the aim of the defendant was in line with the victim. Dr. McCormick opined that the bullet found in the victim had not ricocheted off of anything before entering the victim’s body. Officer Delcomyn established that the other bullet fired from the defendant’s weapon struck a wall in the victim’s residence at a height of four to four and one-half feet from the floor.

The jury apparently chose not to believe defendant’s testimony that he fired over the head of the victim, relying instead on competent conflicting evidence introduced by the State. This evidence, viewed in the light most favorable to the prosecution, was clearly sufficient to convince a reasonable juror beyond a reasonable doubt that defendant specifically intended to kill or inflict great bodily harm.

We therefore conclude that the prosecution has sustained the burden of proving beyond a reasonable doubt the facts necessary to convict the defendant of manslaughter. There is no merit to the second assignment of error.

Accordingly, we affirm the sentence and conviction of defendant, Willie Howard.

AFFIRMED.

DOMENGEAUX, C.J.,

concurs. See my concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App.1983).


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Roscoe Randolph JONES, Defendant-Appellant.
    No. K83-274.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Mark A. Delphin, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, LaBORDE and KNOLL, JJ.
   DOUCET, Judge.

Defendant, Roscoe Randolph Jones, was charged by bill of information on January 10, 1979, with simple burglary, a violation of LSA-R.S. 14:62. On November 19,1982, he filed a motion to quash the bill of information. The motion was heard and denied by the trial judge. From that ruling, the defendant sought a writ of certiorari which was granted and made peremptory so as to afford the State adequate opportunity to respond. No response was received. We now grant the Motion to Quash.

The issues presented are:
(1) Whether the trial judge erred in finding that defendant failed to prove that he had made a valid plea bargain with Assistant District Attorney Evelyn Oubre.
(2) Whether the trial judge erred by finding that the state w;as excused from bringing the defendant to trial within the time period mandated by LSA-C. Cr.P. art. 578.

The following facts were largely adduced from defendant’s testimony at the hearing on the motion to quash: On December 23, 1978, defendant was arrested for burglarizing a Lake Charles residence. He was formally charged by bill of information on January 10, 1979, with one count of simple burglary. Defendant testified that on May 2, 1979, he was summoned from his home to the office of then Assistant District Attorney Evelyn Oubre, to discuss a plea bargain. He stated that Ms. Oubre offered to dismiss the burglary charge if he would cooperate with her on pending investigations as an informant. According to defendant, Ms. Oubre warned him that if he chose not to cooperate, she would make sure that he received the maximum possible sentence for simple burglary.

During the two months that followed the meeting, defendant claims to have aided local, city and parish law enforcement officials on a number of cases. Testimony from law enforcement officials who worked on those cases support defendant’s story. The most significant case that defendant was involved with was the armed robbery of the Continental Trailways Station. Defendant took part in the robbery as an informer and tipped off the sheriff’s office before the robbery, during and after. Charges were brought against defendant and the other three men involved, but were •later dismissed after it was discovered that all four men had been working for various law enforcement agencies.

Defendant testified that word got out onto the streets that he was cooperating with the police and consequently several threats were made against his life. He stated that after being severely beaten he sought out Ms. Oubre for help. Ms. Ou-bre, he said, expressed her sorrow over the incident and told him that she would drop the burglary charge that was pending against him. He claimed that Ms. Oubre told him he was free to leave the state. According to defendant, the only other person that witnessed this conversation was former Sheriffs Deputy McDaniel, who is now incapacitated as the result of a stroke.

Around mid-June of 1979, defendant moved to Long Beach, California, where he found employment as a welder. He claimed to have made no effort to conceal his presence from Louisiana authorities and in fact obtained a California driver’s license, and paid state and federal taxes using his correct name and social security number.

On January 27, 1980, he was arrested by California authorities for aggravated assault and sentenced to one year in jail and summary probation. Defendant remained in jail for eight months before being released on a fugitive bond on September 26, 1980. During his sojourn in the Los Ange-les county jail, defendant learned that Cal-casieu Parish authorities were seeking his extradition and had placed a detainer on him. Defendant contacted his former defense counsel, Judge W. Ellis Bond, and told him that he was unaware of any criminal charges pending against him in Calca-sieu Parish. He requested that Judge Bond cheek on the matter. The judge conducted a cursory investigation, (which included a call to the District Attorney’s office), and wrote back that as of August 1980, there were no warrants outstanding or charges pending against defendant in Calcasieu Parish.

According to defendant, during the months immediately following his release from jail, a California court continued his extradition hearing three times (one month each time) because Louisiana had not sent in all of the necessary paper work. Defendant said that the California judge said she would dismiss the proceedings if Louisiana did not follow through with the matter by the end of the third continuance. Defendant claimed that was the last he heard about the entire affair.

Defendant remained in the Los Angeles area and sometime during 1981 was arrested once again by California authorities for violating the conditions of his probation. He was initially sent to a transient prison, Chino, and then sent on to another prison after it was discovered that no detainers had been placed on him. He remained in a California prison until his release on March 27, 1982.

Apparently fed up with California hospitality, defendant moved to Houston, Texas, shortly after his release from prison. He found work with the Hughes Tool Company and claimed that he obtained a Texas driver’s license using his correct name. He was married during his stay in Texas and stated that he used his correct name on the marriage application.

During the summer of 1982, defendant returned to Lake Charles for several visits. He testified that during these visitations, he made no effort to hide from law enforcement authorities. In fact, defendant contended that on a couple of occasions he frequented a local bar and conversed with police officers. He was arrested while performing chef duties at a local church barbeque in the late summer of 1982.

With regard to the relator’s claim that the plea bargain precludes the present prosecution, we note that LSA-R.S. 15:432 lists a number of legal presumptions, among them being:

[Tjhat evidence under the control of a party and not produced by him was not produced because it would not have aided him; that witnesses have told the truth.

Defendant testified that he entered into a plea bargain with former Assistant District Attorney Evelyn Oubre yet the State failed to produce Ms. Oubre. On the other hand, the defendant’s story was supported somewhat by the testimony of several law enforcement officials. Several present and former law enforcement officials testified that defendant aided them as an informant with several arrests and one officer stated that he had discussed defendant’s status with Ms. Oubre and was told that any assistance given by defendant would be taken into consideration regarding charges pending against him.

To rebut defendant’s testimony and any inferences raised by the officers’ testimony, the state called as witnesses Assistant District Attorneys George Perez and Charles Richard. They testified that it was office policy to clear any plea bargains with District Attorney Leonard Knapp or Mr. Richard; that Ms. Oubre never mentioned anything about a plea bargain with defendant, and to their knowledge it had never taken place. However, both men admitted that it was possible that Ms. Oubre had made an agreement with defendant without informing anyone else.

The best rebuttal evidence that the state could have produced was Ms. Oubre herself, who is now working in private practice. She and defendant are the only persons who actually know what agreement, if any, transpired between them. Although the state indicated that Ms. Oubre had been subpoenaed to testify, she never appeared at the hearing, even though the hearing was continued for one week so that her presence could be obtained. The state offered no explanation for Ms. Oubre’s absence. By operation of LSA-R.S. 15:432, it is presumed that Ms. Oubre’s testimony would not have aided the state's case against defendant.

Even if defendant’s testimony were deemed self-serving, its credibility was enhanced by the testimony of law enforcement officials. The defendant established by a preponderance of evidence the existence of a plea bargain the terms of which precluded the state from instituting prosecution against him. United States v. Millet, 559 F.2d 253 (U.S. 5th Cir.1977).

The defendant’s argument that the state failed to timely bring him to trial also has merit. He contends that the state did not carry its burden of demonstrating that the prescriptive period established by LSA-C.Cr.P. art. 578 was suspended or interrupted. C.Cr.P. art. 578 establishes the general rule that no trial shall be commenced in felony cases (other than capital crimes) after two years from the date of institution of the prosecution. Institution of the prosecution is either the filing of the bill of information or the return of a grand jury indictment. State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

C.Cr.P. art. 579 states that the prescriptive period established by art. 578 shall be interrupted if:

(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
The periods of limitation established by Art. 578 shall commence to run anew from the date the cause of interruption no longer exists.

The Louisiana Supreme Court has held that in those instances where more than two years have elapsed since prosecution was instituted against defendant and he has not been tried, the state falls under a heavy burden to demonstrate an interruption or suspension of prescription. State v. Williams, 414 So.2d 767 (La.1981); State v. Devito, 391 So.2d 813 (La.1980).

Williams, supra, involved a case factually similar to the one at hand. The defendant was indicted by a grand jury for armed robbery in February of 1976 but was not arrested until June of 1981. He filed a motion to quash the indictment based on the expiration of the C.Cr.P. art. 578 two year time limit. At the hearing on the motion, testimony revealed that defendant, was a Texas resident, and had been arrested in Oklahoma City in 1977. Louisiana authorities made an attempt to extradite him but failed to timely send the required governor’s extradition warrant. Defendant was released by the Oklahoma authorities and he remained in Oklahoma City where he worked for three years. His arrest for disturbing the peace in Mansfield led to the discovery of the outstanding warrant issued for his arrest in 1976. In ruling that the state failed to establish that the two year prescriptive period had been interrupted, the Supreme Court noted that the DeSoto Parish District Attorney knew that defendant remained in the Oklahoma City area after his release but failed to pursue extradition.

In State v. Devito, supra, the Jefferson District Attorney’s office filed a bill of information against defendant after learning that he was incarcerated in a New Jersey jail. However, the state did not bring defendant to trial until over two years later. In ruling that prescription had run, the court noted that the delays were wholly attributable to the state’s negligence. In its first attempt to extradite defendant, Jefferson Parish authorities sent incomplete documents. They then allowed a considerable amount of time to lapse before they made any effort to pursue the matter. On rehearing the Court held:

“The state has failed to carry its heavy burden of showing that it was unable to act or prevented from acting to obtain defendant’s presence for trial after it received notice that defendant was incarcerated in New Jersey and susceptible to extradition. The delays and problems encountered by the state in extradition, or those caused by its mismanagement, cannot be charged to the defendant.”

In the present case over two years have elapsed since prosecution was instituted against defendant on January 10, 1979, and therefore the state bears a heavy burden of demonstrating that it is excused from trying defendant within the two year prescriptive period. Williams, supra; Dev-ito, supra. At the hearing on the motion to quash the state argued that prescription had been interrupted because the defendant fled the state with the purpose of avoiding apprehension and that obtaining his presence for trial within the two year period established by C.Cr.P. art. 578 was beyond their control. The record, however, suggests otherwise. As previously discussed, defendant testified that his move to California was motivated out of concern for his personal safety. The state failed to rebut that explanation for defendant’s actions.

Assuming arguendo that the defendant fled to avoid prosecution, the prescription clock begins to run once again when the state regains its capacity to secure defendant’s presence for trial. State v. Devito, supra. The record reflects that the state knew as early as August of 1980 that defendant was in the custody of Los Angeles County officials and accordingly placed a detainer on defendant and instituted extradition proceedings. First Assistant District Attorney Charles Richard testified that every effort was made to extradite defendant but the evidence does not support that conclusion. Not one of the state’s witnesses could explain why efforts to extradite defendant were unsuccessful. The state did not refute defendant’s testimony that he appeared before the California courts three times for extradition while out of jail on a fugitive bond, and that the proceeding was finally dismissed due to the state’s neglect.

The state has not demonstrated that any genuine effort was made to locate defendant and therefore one cannot conclude that obtaining his presence was beyond their control. Therefore, the state failed to carry its burden of demonstrating an interruption of the time period established by C.Cr.P. art. 578.

For the reasons assigned hereinabove, the defendant’s Motion to Quash is sustained.

REVERSED AND RENDERED.

      . Testimony of law enforcement officers including the sheriffs deputy who handled defendant’s extradition, supports this contention.

        . It should be noted that Charles Richard, who personally handled the Jones file testified he had no idea how the state finally obtained custody of defendant.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Danny Dale DORE, Defendant-Appellant.
    No. CR83-354.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Paul J. deMahy, St. Martinville, for defendant-appellant.
    Bernard E. Boudreaux, Dist. Atty. and J. Phil Haney, Asst. Dist. Atty., St. Martin-ville, for plaintiff-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Danny Dale Dore, was indicted by a grand jury on two counts of criminal conspiracy to introduce, and two counts of criminal conspiracy to distribute a schedule II drug, namely, phenmetrazine, into the St. Martin Parish Jail. LSA-R.S. 14:26, R.S. 40:9640(3). Following defendant’s jury trial he was found guilty on two counts of criminal conspiracy to distribute. Before sentencing, defendant jumped bail and was subsequently arrested in Florida. Defendant was sentenced to serve three years at hard labor for each count, to run consecutively; one year at hard labor for jumping bail, to run consecutively; and six months for contempt of court in connection with jumping bail, to run concurrently. Defendant contends that the trial court erroneously: (1) admitted evidence of hearsay testimony, (2) allowed the state to reopen its case-in-chief after resting, and (3) denied defendant’s motions for a new trial and for post verdict judgment of acquittal. Defendant relies on three assignments of error for reversal of his convictions and sentences. Finding no merit to defendant’s assignments of error, we affirm.

FACTS

On the day of the offense, May 17, 1981, inmates Vickie Willis, Lionel LeBlanc and Dolores Dore (defendant’s wife) were incarcerated at the St. Martin Parish Jail. Clifford Alexander, a trustee at the jail, overheard a conversation between Lionel Le-Blanc and Dolores Dore during which they discussed a plan to obtain preludin, a schedule II controlled dangerous substance known as phenmetrazine. Dolores Dore then made a telephone call to the defendant in an effort to obtain a quantity of this drug. After this phone call, a short time elapsed before defendant arrived in an automobile and parked outside the St. Martin Parish Jail. Lionel LeBlanc then left the jail, went downstairs and picked up the drugs. LeBlanc then returned and shared the drugs with Dolores Dore and Willis. Several hours later, Dolores Dore again called defendant, who returned to the jail with more preludin. Again, LeBlanc picked up the drugs and brought them back to the jail where he shared them with Willis and Dolores Dore.

On July 1, 1981, the St. Martin Parish Grand Jury indicted Danny Dale Dore on two counts of conspiring to introduce contraband, namely phenmetrazine, a controlled dangerous substance LSA-R.S. 40:9640(3) under schedule II, into the St. Martin Parish Jail, and on two counts of conspiring to distribute contraband, namely phenmetrazine, in violation of LSA-R.S. 14:26, Criminal Conspiracy. Defendant entered a plea of not guilty to all charges and was tried before a petit jury on two counts of conspiring to distribute phenmetrazine, an illegal drug. After a two day trial, the jury returned a guilty verdict on both counts of criminal conspiracy to distribute phenmetrazine.

Defendant’s assignments of error present the following issues for our determination:

(1) Whether hearsay statements of co-conspirators may be used at trial to establish defendant’s involvement in an alleged criminal conspiracy;
(2) Whether a trial court may allow the state to re-open its case-in-chief after state and defense have rested; and
(3) Whether the trial court erred in denying defendant’s motion for new trial and motion for post verdict judgment of acquittal.

Issue #1

The trial court admitted certain hearsay statements of alleged coeonspirators offered by the state to establish defendant’s involvement in an alleged criminal conspiracy. This testimony was elicited by the state from Clifford Alexander, trustee, regarding the conversation he overheard between prison inmates, LeBlanc and Dolores Dore, during which the defendant was implicated in the conspiracy. According to Alexander’s testimony, defendant was mentioned in the conversation as being the person to deliver the contraband to the jail.

Hearsay evidence is an unsworn out-of-court statement offered at trial to prove the truth of the matter contained in the statement, and thus rests for its value upon the credibility of the declarant. State v. Millet, 356 So.2d 1380 (La.1978); State v. Tonubbee, 420 So.2d 126 (La.1982).

Clearly, Alexander’s testimony pertains to unsworn out-of-court statements made by Lionel LeBlanc and Dolores Dore. Since these statements were offered to prove the truth of the matter asserted (i.e. that defendant was to deliver the drugs to LeBlanc and Dolores Dore), we hold that the testimony was hearsay. To be properly admissible, it must fall within a recognized exception to the hearsay rule.

Two exceptions to the hearsay rule are presented as a possible basis for a finding that this evidence was properly admissible: LSA-R.S. 15:455 (conconspirators) and LSA-R.S. 15:447-448 (res gestae). -

The coconspirator exception as defined in LSA-R.S. 15:455 states:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.” (Emphasis added)

Before a coconspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation. State v. Dupree, 377 So.2d 328 (La.1979); C. McCormick, Evidence, sec. 267 (2d ed. 1972).

In the instant case, no prima facie proof of conspiracy was established by the state prior to its attempt to introduce evidence of hearsay testimony concerning the statements of a coconspirator which implicated the defendant in the conspiracy. The trial record reflects that Clifford Alexander was the state’s first witness; thus no proof of conspiracy was offered prior to his testimony. Moreover, no evidence of criminal conspiracy was elicited from Alexander pri- or to the state’s attempt to elicit the objectionable hearsay evidence. Therefore, since the state has failed to make this requisite prima facie showing, one of the essential elements of LSA-R.S. 15:455 is lacking, and this hearsay exception does not provide for the admission into evidence of Clifford Alexander’s testimony as to hearsay statements of defendant’s cocon-spirators.

The res gestae exception to the hearsay rule provides for the admission of testimony concerning utterances made before, during and immediately after a crime because statements made under the pressure and excitement of a crime or other extraordinary occurrence carry a special reliability. State v. Millet, supra; LSA-R.S. 15:447-448. The scope of the res gestae doctrine was established in State v. Drew, 360 So.2d 500 (La.1978) where the court reasoned:

“... [R]es gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and delcarations made before and after commission of crime but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances.” (Emphasis added)

In the instant case, Clifford Alexander testified that, in the conversation which he overheard between Lionel LeBlanc and Dolores Dore, the two discussed a telephone call to be made to Dolores’ husband, Danny Dale Dore (the defendant), in order that drugs might be obtained. This conversation was obviously an integral part of the transaction since the two prisoners, being incarcerated in the St. Martin Parish Jail, could not leave to obtain the drugs themselves. It was necessary to find someone on the outside to obtain the drugs and deliver them to the jail. It is apparent from the record that this conversation was part of a continuous transaction in the commission of a criminal conspiracy to distribute illegal drugs. Lionel LeBlanc testified that his conversation with Dolores Dore was indeed about how drugs could be obtained and delivered to the jail. LeBlanc, Dolores Dore, and Vickie Willis then discussed the price and quantity of the drugs to be obtained. Dolores Dore then telephoned defendant and announced to Le-Blanc and Willis that she had someone bringing the pills to the jail. After a short period elapsed, LeBlanc went downstairs and obtained the pills from defendant, and returned upstairs to the jail where he, Dolores Dore and Vickie Willis shared the pills. The entire transaction took place within an approximate four hour time frame.

Thus, we conclude that the initial conversation which Clifford Alexander overheard was an integral and essential part of the entire transaction; that the conversation transpired at the approximate time and place of the crime; and that it formed a part of a continuous and ongoing conspiracy to distribute drugs into the jail. See State v. Joseph, 341 So.2d 861 at 867 (La.1977).

Therefore, the conversation of defendant’s coconspirators testified to by Clifford Alexander, was properly admitted as res gestae over defendant’s hearsay objection.

Issue #2

Defendant contends that the trial judge erred, in allowing the state to re-open its case-in-chief in order to prove an essential element of the crime after the state and defense had rested.

Defendant chose not to brief this assignment of error; thus, it is considered abandoned. State v. Lemoine, 403 So.2d 1230 (La.1981); State v. Dewey, 408 So.2d 1255 (La.1982). We will therefore not consider its merits.

Issue #3

The trial court denied defendant’s motion for a new trial and motion for post verdict judgment of acquittal. LSA-C.Cr.P. art. 851(1) and art. 821 respectively. Defendant contends by these motions that there was insufficient evidence to support his convictions under the constitutional standards set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The question for our determination is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

The essential elements of criminal conspiracy, LSA-R.S. 14:26, are:

(1) an agreement or corroboration of two or more persons for the specific purpose of committing a crime; and
(2) an act in furtherance of such agreement or corroboration.

The record reveals that Clifford Alexander testified that he overheard Dolores Dore and Lionel LeBlanc discussing a plan to obtain drugs. He further testified that he saw Dolores Dore using the phone and later saw defendant arrive at the St. Martin Parish Jail and have a conversation downstairs with Lionel LeBlanc. The testimony of Lionel LeBlanc corroborates and enlarges upon that of Alexander. LeBlanc testified that he discussed obtaining drugs with Dolores Dore and that Dolores indicated that her husband (the defendant) would bring the drugs. He testified how he obtained the money for the drug sale, and his observation of Dolores Dore ás she made the telephone call, subsequent to which she told him “I got somebody to bring the pills over.” LeBlanc further testified how he went downstairs from the jail, met with the defendant on the street, picked up the drugs and gave the defendant a sum of money in return. Vickie Willis testified that she was involved in the initial conversation with Dolores Dore and LeBlanc in which they discussed a plan to obtain the drugs. She further testified that as per their plan, Dolores Dore telephoned the defendant and asked him to bring the drugs to the jail, that LeBlanc came back with the drugs, and that the three of them then partook of the drugs.

The facts clearly indicate evidence of an agreement between defendant and the inmates to make an illegal drug transfer. The required showing of the statutory element of an act of furtherance as defined in LSA-R.S. 14:26 is evidenced from the facts which indicate the defendant’s presence at the jail on the day of the offense with the illegal drugs in hand.

After viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found all of the essential elements of the crime proven beyond a reasonable doubt. Therefore, the trial court properly denied the motions.

Based on the above and foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . LSA-R.S. 14:26. Criminal conspiracy
      "A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
      If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other."
      B. (omitted)
      C. (omitted)

      . LSA-R.S. 15:434 Admissibility of hearsay evidence
      “Hearsay evidence is inadmissible, except as otherwise provided in this Code.”


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Keith DELAHOUSSAYE, Defendant-Appellant.
    No. CR83-366.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      David L. Carriere, Wm. Tracy Barstow, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty. and Donald Richard, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The Grand Jury of St. Landry Parish indicted the defendant, Keith M. Delahous-saye, for first degree murder of Paul Bras-seaux, Jr., a violation of LSA-R.S. 14:30. The defendant was tried by a twelve member jury and convicted on April 24, 1981. In a separate sentencing hearing the jury recommended life imprisonment without the benefit of parole, probation or suspension of sentence. The defendant reserved seven assignments of error. Because we find merit in assignment of error two and reverse the defendant’s conviction and sentence, the remaining assignments will not be considered.

Assignment of error two asserts that the trial court erred in failing to grant defendant’s motion for a mistrial made during the jury selection. This assignment was reserved when it came to the defendant’s attention (during jury selection) that the jury venire was exposed to a highly prejudicial and inflammatory religious invocation in the courtroom the morning of jury selection.

Four jurors had been selected and sworn before the noon recess. After the noon recess it was made known to the defendant that at approximately 9:00 a.m., before the arrival of his two defense counsel, a local religious minister delivered an invocation quoting scripture to the jury venire. Defendant was not told the exact content of the scripture verse but was told it was something in the nature of “a death for a death”. Because of the sensitivity of a first degree murder trial the defendant moved for a mistrial. Before ruling on the motion, the court recalled the minister to have him repeat what he had said to the jury venire since it was not recorded.

The record reflects that the local minister writes a series of columns in one of the local newspapers advocating the death penalty for first degree murder. On the morning of the defendant’s trial, the minister walked into the courtroom behind the judge, stood near him at the bench, and read the following biblical scripture: Book of Numbers, 35:29-34; Romans, 13:1-7. For the record, he read aloud the scripture verses he had earlier read to the jury ve-nire.

“And these things shall be for a statute and an ordinance to you throughout your generations and all your dwellings. And if anyone kills a person the murderer shall be put to death on the evidence of witnesses but no person shall be put to death on the testimony of one witness. Moreover, you shall accept no ransom for the life of a mur derer. He is guilty of death and he shall be put to death. ”
* * * * ⅜ *
“You shall not defile the land in which you live in the midst of which I dwell, for blood pollutes the land and no expiation can be made for the land except for the blood shed in it, except by the blood of him who shed it. It says I dwell in the midst of the people. ”
* * * * * *
“Let every person be subject to the governing authorities, for there is no authority except from God and those that exist have been instituted by God. Therefore, he who resists the authorities resist what God has appointed. And those who resist will incur Judgment. For rulers are not a terror to good conduct but to bad. Would you have no fear of him who is an authority, then do what is good and you will receive his approval, for he is God’s servant for your good, but if, you do wrong, be afraid for he does not bear the sword in vain. He is the servant of God to execute his wrath on the evid [sic] doer. Therefore, one must be subject, not only to avoid God’s wrath, but for also the sake of conscience. For the same reason, you are to pay taxes to the authority as ministers of God attending to this very thing. ”

He also gave an explanation of the scripture to the jury venire. To the best of his recollection, his explanation was the following:

“I’ll touch that in just two seconds. I’ll make it all brief. And then the second portion of Scripture that I read was with regard to the fact that we as subjects of the State of Louisiana are to abide by its laws and that the civil magistrate is to bear the sword not in vain but to execute justice on the evil doer. And so the remarks that came in the prayer subsequent to that, were basically that the Lord would give us the wisdom and grace to adjudicate this matter properly as would please him and not us. And secondly, that we would also move forth in seeking his mercies that are offered to us in the Scripture because we have on the one hand the justice of God that is expressed very. clearly and on the other hand, the mercy of God expressed very clearly and that mercy is offered to all of us if we would just humble ourselves before him in his offered sacrifice. ”

After the taking of this testimony, the trial court called four prospective jurors at random to determine what effect, if any, the invocation had on them. The trial court and defense counsel then examined four prospective jurors. Of the four, three were present when the minister delivered his comments. All three thought he was speaking with the judge’s permission. All three were strongly impressed that “a man of the cloth” was advocating death and punishment. One juror stated that the minister had definitely influenced him. At the conclusion of their testimonies, the trial court denied the motion for a mistrial. The defendant then moved for a continuance or a recess long enough to take writs on this issue, which was also denied by the trial court.

A defendant’s right to be tried by an impartial jury is guaranteed by the Constitutions of the United States and Louisiana. The Sixth Amendment of the United States Constitution reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. ” (Emphasis added)

Article I, sections 16 and 17 of Louisiana’s Constitution reads:

“Section 16. Every person charged with a crime is presumed innocent un til •proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.” (Emphasis added)
“Section 17. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict ... The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury. (Emphasis added).

The right to he tried by a fair and impartial jury is basic to our criminal justice system. This is the defendant’s guarantee to a fair and impartial trial by a jury of his peers. The failure to accord an accused a fair hearing violates even the minimal standards of due process. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The integrity of jury proceedings must not be jeopardized by unauthorized invasions. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The theory of our system is that the conclusions to be reached in a case will be induced only by competent evidence and argument in open court, and not by any outside influence, whether of private talk or public print. Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907).

The trial court should take such steps to protect the jury from prejudicial influences that frustrate due process and invite constitutional risks and hazards. The jury must give the defendant his day in court with a detached atmosphere prevailing and the trial court should invoke the proper measures to insure this protection.

In State v. Shoemake, 78 So. 240, 143 La. 65, (La.1918), the accused was convicted, without capital punishment, of murder. Court was opened with a prayer by a minister of the gospel in the presence of the jury. The Supreme Court commented: “In opening the court with prayer there may be no harm, although we have never heard of such a thing being done before ....” (The prayer was not recited in the case.) The Supreme Court originally reversed the defendant’s conviction, but on rehearing it affirmed since the defendant could not show prejudice. However, it is recognized that the court can assume an implied bias. In Justice O’Connor’s concurring opinion in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), she observed:

* * * * * *
“Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.
******
“I am concerned, however, that in certain instances a hearing may be inadequate for uncovering a juror’s biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias.
******
“Because there may be circumstances in which a post-conviction hearing will not be adequate to remedy a charge of juror bias, it is important for the Court to retain the doctrine of implied bias to preserve Sixth Amendment rights_”

In the present case, the only jurors who were examined as to the invocation were the four prospective jurors mentioned above and none were selected to serve on the jury. Defense counsel and the trial court both felt that voir dire examination concerning the invocation would emphasize any influences already made by the invocation. Thus, in effect the accused was deprived of voir dire examination to show any prejudicial influences. We note of importance that a total of sixteen jurors had been called for voir dire examination before the noon recess, from which four were selected and sworn. To deprive an accused of his right to voir dire examination is in direct contravention to his constitutional rights. This practice would nurture and sanction biased jurors and strip the criminal justice system of its impartial cloak. The accused, regardless how heinous the crime, is entitled to be tried by a fair and impartial jury. The purpose of the voir dire examination is to seek such a jury. State v. Murray, 375 So.2d 80, (La.1979).

The trial court was unaware of the content of the invocation until it was delivered. While the trial court did not approve of the content, it did not find the invocation prejudicial. We disagree. The scripture verses are highly violative to a fair and impartial trial. The accused is described as a condemned killer who must be put to death. There is no presumption of innocence which is axiomatic to our criminal justice system. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895).

A mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Overton, 337 So.2d 1058 (La.1976). We find that substantial prejudice resulted to the defendant in depriving him of a reasonable expectation to a fair trial. LSA-C.Cr.P. Art. 775 provides:

“A mistrial may be ordered, and in a jury case the jury dismissed, when: (1)The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(f) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771_” (Emphasis added)

We find that the invocation constituted grounds for a mistrial as intended by Art. 775 in that it was prejudicial conduct in the courtroom making it impossible for the defendant to obtain a fair trial.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are set aside and the case is remanded for a new trial.

REVERSED AND REMANDED.


author: GUIDRY, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jacqueline LASTRAPES, Defendant-Appellant.
    No. CR83-397.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Anthony G. Terracina, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., and Donald Richard, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The defendant, Jacqueline Lastrapes, was charged by bill of information with the crime of simple arson, a violation of LSA-R.S. 14:52. The defendant was tried before a twelve person jury, and was found guilty as charged. The defendant was sentenced to serve two years at hard labor.

On appeal, the defendant asserts that the trial court erred in (1) admitting into evidence a tape recorded statement given by the defendant to police officers; (2) finding that the State proved every essential element of the crime beyond a reasonable doubt; and, (3) imposing an excessive sentence.

FACTS

On October 19, 1981, at approximately 4:43 a.m., Officer Curley Landos of the Opelousas City Police Department observed a vehicle parked near the intersection of Bellvue and Liberty Streets in the city of Opelousas, Louisiana. Upon approaching the vehicle, he found the defendant, Jacqueline Lastrapes, lying on the front seat. In response to his inquiry, the defendant stated that she was having car trouble. Officer Landos suggested to her that she try the ignition. Upon doing so, she was able to start the car, and she then left the scene. Approximately one hour later, at 5:45 a.m., the police department was called to the scene of a house fire at 142 Liberty Street, very near the scene of Officer Landos’ earlier encounter with the defendant. The defendant was thereafter picked up for questioning and arrested.

The defendant and her husband were the former owners of the house in question, which had been seized and sold at a sheriffs sale prior to this incident. In a tape recorded statement given to officers hours after the fire, the defendant stated that she had gone to the house to reminisce. While inside the house, she ignited a broom and left it inside the house and then she left. She denied, however, any intent to burn the house.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the trial court erred in admitting the tape recording of the statement made by her to police officers. In particular, the defendant urges that the recorded statement is inadmissible because:

(1) The State failed to give written notice of its intention to introduce the statement prior to the State’s opening statement.
(2) The statement was not free and voluntary because it -was made under duress and in reliance upon promises made by the investigating officer.
(3) The tape recording of defendant’s statement was overlapped by the statement of another police suspect, obliterating other promises and inducements which may have been made by the investigating officer.
LSA-C.Cr.P. Art. 768 provides:
“Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

In State v. Russell, 416 So.2d 1283 (La.1982), U.S. cert. denied, — U.S.-, 103 S.Ct. 309, 74 L.Ed.2d 288 (1982), the Supreme Court stated:

“The purpose of the statutory scheme of LSA-C.Cr.P. Arts. 766-768 was to prevent surprise and allow adequate time for the preparation of the defense, as well as to avoid certain problems that had been attendant to mentioning of confessions or inculpatory statements in the state’s opening statement.3” (footnote omitted)

When the State fails to give the written notice required by LSA-C.Cr.P. Art. 768, the defendant is not prejudiced if he has actual notice of the State’s intention by other means. State v. Williams, 416 So.2d 914 (La.1982); State v. Sneed, 316 So.2d 372 (La.1975).

In the instant case, the State did not give the defendant written notice of its intention to introduce the defendant’s tape recorded statement into evidence. However, the record makes clear that the defendant was in no way surprised by the introduction of the statement. Prior to the introduction of the recording, defense counsel was examined out of the presence of the jury and admitted that he had listened to portions of the tape prior to trial at the invitation of the Assistant District Attorney. He also stated that the Assistant District Attorney told him at that time that he felt the statement contained an admission of guilt by the defendant. Under these circumstances, it is clear that the defendant was not surprised by the introduction of the statement, and she consequently suffered no prejudice.

The defendant also asserts that the statement was not free and voluntary because it was made under duress and inducements from the investigating officers. LSA-R.S. 15:451 provides:

“Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

In State v. Jackson, 414 So.2d 310 (La.1982), the Supreme Court stated:

“The admissibility of a confession is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence.” (citations omitted)

In the instant case, the investigating officer testified that no promises of any kind were made to the defendant to induce her to give the inculpatory statement. The officer, Roy Richard, did state that he told the defendant that he would advise the district attorney that the defendant had cooperated and ask him to look into the possibility of placing the defendant on probation. These statements do not render the statement inadmissible. In State v. Dison, 396 So.2d 1254 (La.1981), a deputy sheriff told the defendant that if he cooperated, the deputy would do what he could to help. In State v. Petterway, 403 So.2d 1157 (La.1981), the defendant was told by a deputy that the defendant would be better off if he cooperated. In State v. Jackson, supra, the defendant was told that any cooperation on his part would be brought to the attention of the district attorney. In all three cases, the Supreme Court held that the statements did not constitute disqualifying inducements. We find no error in the admission of the defendant’s inculpa-tory statement, as the trial court’s finding of voluntariness is clearly supported by the evidence.

The defendant further alleges that portions of the defendant’s statement were erased by the taping of the statement of another police suspect, and that other promises which may have been made by officers were obliterated. This contention has no support in the record. The complete transcript of the recorded statement is contained in the record. The continuity and completeness of the transcript show that no portions thereof were erased. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

The defendant contends that the trial court erred in finding that the State had proved every element of the crime. Specifically, she contends that the State did not prove that the damage to the house was done without the consent of the owner.

At the time the house was damaged, it belonged to the John Haas Weinstein Trust and the Peter J. Losavio, Jr. Trust. Mrs. Charlotte Weinstein testified that it was within her personal knowledge that the owner of such property did not give the defendant permission to set fire to the house. The defendant contends that only the trustees were competent to give testimony regarding this element, and'that as such, non-consent, an essential element of the crime, was not proven.

In State v. Perry, 408 So.2d 1358 (La.1982), the Supreme Court faced a similar issue in a case dealing with simple criminal damage to property. LSA-R.S. 14:56. The crimes of simple arson and simple criminal damage to property are alike in the sense that they both require that the damage be done without the consent of the owner. With regard to the element of consent, the court stated:

“In this case, proof that damage to a house was inflicted without the consent of the person living in the house is sufficient to establish lack of consent of the owner. Additionally, we note that lack of consent of an owner to malicious vandalism of an owner’s property can often be inferred circumstantially from the evidence presented, and such is the only reasonable inference under the evidence presented in this ease.”

In the instant case, the record shows that Mrs. Weinstein was clearly in a position to know whether the trustees gave permission to the defendant to burn the house. Furthermore, as in Perry, the lack of consent to the arson may be inferred circumstantially from the evidence presented. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant contends that the sentence imposed is excessive. In particular, she contends that there was no proof that the damage to the house exceeded $500.00, and that the trial judge thus erred in imposing sentence pursuant to LSA-R.S. 14:52.

In the instant case, it was stipulated by defense counsel that insurance proceeds of $40,000.00 were paid to reimburse the trust for the physical damage incurred as a result of the fire. Additionally, there was ample testimony by investigators that the damage to the house was severe. It was clearly proven that the damage to the house exceeded $500.00. There was no error in the imposition of sentence pursuant to LSA-R.S. 14:52, and as the sentence of two years imposed by the trial judge is the minimum sentence under the statute, such sentence is clearly not excessive. This assignment lacks merit.

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

AFFIRMED.

DOMENGEAUX, J.,

concurs. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App.1983) and State v. Vallare, 430 So.2d 1336 (La.App.1983).

      . The 1982 amendment to this article (Act 735 of 1982) added "Unless the defendant has been granted pretrial discovery,”. This amendment became effective on September 10, 1982. This matter was tried on December 8, 1982.

      . Should be "purports”. State v. Joseph, 46 So.2d 118 (La.1950).


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. James Nathan HENRY, Appellant.
    No. CR83-409.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Nathan James Henry, in pro. per.
    Paul J. DeMahy, St. Martinville, for appellant.

      J. Phil Haney, Asst. Dist. Atty., St. Mar-tinville, for appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

James N. Henry (defendant) was indicted by the St. Martin Parish Grand Jury for the second degree murder of Gerald Balta-zar, in violation of LSA-R.S. 14:30.1. Defendant entered a plea of not guilty to the charge. Subsequently, he was tried by a jury and found guilty of the lesser, included charge of manslaughter. See LSA-R.S. 14:31. After completion of a pre-sentence investigation, the trial court sentenced defendant to serve a term of fifteen years imprisonment at hard labor.

Defendant appeals from his conviction and sentence, and makes the following assignments of error:

(1) The trial court erred in refusing to give defendant’s first special requested jury charge on self-defense which was based upon LSA-R.S. 14:19.
(2) The trial court erred in refusing to allow both defense counsels to make closing argument.
(3) The trial court erred in imposing an excessive sentence on defendant in violation of LSA-Const., Art. 1, § 20.

FACTS

On February 24, 1982, at approximately 3:00 P.M., defendant entered Cora’s Lounge in Breaux Bridge. Shortly thereafter, he engaged the victim in a game of pool, and the two agreed to a wager of $1.00 on the outcome. However, when the game was over, an argument ensued between the two as to who had actually won. Another person then intervened and gave the victim a dollar, intending to prevent the argument from escalating further.

Insisting that he had won the game, defendant attempted to play another game of pool with someone else. However, the victim removed the cue ball from the table and demanded that he be allowed to play. Acceding to the victim’s demand, defendant left the pool table and went to the bar, where he ordered a beer. He was then approached by the victim, who once again demanded that defendant pay him a dollar. When defendant refused to do so, the victim struck him and a fistfight began with defendant subsequently being knocked to the floor. Other persons in the lounge separated the two, and defendant returned to the bar to finish drinking his beer. He then left and went to his automobile.

As defendant was approaching his automobile, a friend of his blew his horn at him and motioned for defendant to come meet him. Defendant signaled that he would do so, but went to his automobile first. At approximately the same time, the victim came out of Cora’s Lounge and was preparing to go to another lounge located nearby, where a group of people were barbecuing fish. However, for reasons which are unclear, the victim stopped, turned around, and began walking toward defendant. He also began to holler and scream at defendant, who had armed himself with a .45 caliber pistol.

As the victim approached defendant, he pointed the pistol at the victim’s head and pulled the trigger. However, there was no cartridge in the chamber and the weapon failed to discharge. Defendant then worked the slide on the pistol which caused a cartridge to move from the magazine to the chamber. As this was happening, the victim continued to advance on defendant until he was approximately five feet from him. The victim then began taunting defendant to shoot him and defendant fired his pistol, striking the victim in the chest. The victim died a few hours later from the wound.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred in refusing to give his first requested special jury charge on self-defense which was based on LSA-R.S. 14:19 . He correctly notes that this statute is inapplicable where the force or violence used to defend one’s self results in a homicide. However, he argues that this statute and LSA-R.S. 14:20 create a double standard for self-defense in violation of the equal protection guarantees of LSA-Const., Art. 1, § 3, and the Fourteenth Amendment to the United States Constitution.

A review of the record clearly shows that defendant failed to raise any issue concerning the constitutionality of either of these statutes in the trial court, and that the trial court made no decision concerning their constitutionality.

It is well settled that a litigant who fails to plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue in an appellate court. State v. Madere, 352 So.2d 666 (La.1977); Johnson v. Welsh, 334 So.2d 395 (La.1976).

Thus, we will give no further consideration to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in refusing to allow both of his defense counsels to make closing arguments on his behalf. He argues that this denial constitutes a violation of his right to have the assistance of counsel at all stages of the proceedings against him, as guaranteed by LSA-Const., Art. 1, § 13, and the Sixth and Fourteenth Amendments to the United States Constitution.

A review of the record shows that defendant merely objected to the trial court’s refusal to allow both of his defense counsels to make closing arguments, and that he failed to state any grounds for his objection as required by LSA-C.Cr.P. Article 841. A defendant is required to state the basis of his objection to the trial court so that the trial court will have an opportunity to rule on the objection and to avoid or cure any error. State v. Baylis, 388 So.2d 713 (La.1980); State v. Lewis, 353 So.2d 703 (La.1977).

In any event, there is no merit to defendant’s argument as one of his counsels made a closing argument which lasted for approximately one and a-half hours. In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the Court stated:

“The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.” See 422 U.S., at 862, 95 S.Ct., at 2555.

We find no abuse of this discretion by the trial court.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the trial court erred in imposing a sentence on him of fifteen years imprisonment at hard labor. He argues that said sentence is excessive and constitutes a violation of the rights guaranteed to him by LSA-Const., Art. 1, § 20.

The maximum sentence that may be imposed for violating the provisions of LSA-R.S. 14:31 is imprisonment at hard labor for twenty-one years.

The trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982).

In view of the fact that defendant killed another human being whom he knew to. be unarmed, that defendant had avenues of retreat, and that there were many people in the area upon whom defendant could have called to his aid had the victim actually attacked him at the time defendant shot him, we do not consider a sentence of fifteen years imprisonment at hard labor to be “grossly out of proportion to the severity of the crime”. See State v. Williams, 397 So.2d 1287 (La.1981). Hence, the sentence imposed is not excessive, and the trial court did not abuse its discretion in imposing it.

This assignment of error is without merit.

DECREE

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

AFFIRMED.

      . LSA-R.S. 14:19 provides:
      "§ 19. Use of force or violence In defense

        The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide." (Emphasis ours.)

      . LSA-R.S. 14:20 provided, at the time defendant committed the crime with which he was charged, that:
      "§ 20. Justifiable homicide
      A homicide is justifiable:
      (1)When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
      (2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
      (3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.”

      . Defendant does not contend that the trial court failed to follow the guidelines set forth in LSA-C.Cr.P. Article 894.1 in imposing sentence on him. The record shows that the trial court adequately complied with the sentencing guidelines of LSA-C.Cr.P. Article 894.1; therefore, this Court’s review is limited to a determination of whether the trial court abused its sentencing discretion. See State v. McDonald, 414 So.2d 735 (La.1982); State v. Bourgeois, 406 So.2d 550 (La.1981); and, State v. Bosworth, 415 So.2d 912 (La.1981).


author: REDMANN, Chief Judge.

text:
    Brenda Hickman, wife of/and Miller SMITH v. CASTRO BROTHERS CORPORATION.
    No. CA-0744.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Denied March 16, 1984.

      John B. Fox, New Orleans Legal Assistance Corp., New Orleans, for appellee.
    Julio Romanach, Jr., Romanach & Lawrence, New Orleans, for appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   REDMANN, Chief Judge.

A landlord appeals from a judgment in favor of residential tenants for $750 damages.

The landlord first complains that, having served an eviction notice on October 19, it should in no case be liable for any damage from alleged defectiveness of the premises from that time until plaintiffs finally moved out on December 23. The trial judge did not itemize dollar amounts for the elements of the $750 awarded, but we agree that a tenant cannot recover for damages from uninhabitability of leased premises after being properly ordered to leave by the landlord, notwithstanding that the tenant argues he had no money to move. The trial judge’s reasons show that he expressly included in his award the tenant’s suffering from cold when utilities were cut off for unsafe conditions, and that occurred after notice of eviction. We believe the landlord is entitled to some reduction on that account, notwithstanding that the total amount awarded would certainly not have been excessive if awarded only for the period the tenants were properly on the premises. We therefore reduce the award by $150.

The landlord also argues that a tenant cannot recover mental anguish damages, citing Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), a redhibition case. But damages “for anxiety, worry and loss of time” were held recoverable in Tidwell v. Meyer Bros., 160 La. 778, 107 So. 571, 576 (1926), a lease case, as in Evans v. Does, 283 So.2d 804 (La.App. 2 Cir.1973). See also Gele v. Markey, 387 So.2d 1162 (La.1980).

The landlord also argues the basic credibility of the tenant, but that is the province of the trial judge; Carter v. Koehring Co., 283 So.2d 716 (La.1973).

Finally, the landlord argues assumption of risk by the tenants. No doubt these tenants had to know that they were not renting fancy quarters, but they cannot be charged with knowledge of such matters as large rats’ freely roaming the premises and plumbing’s unusability. Furthermore, breach of the obligation of a landlord to provide habitable quarters cannot be excused on the ground that the tenant should have known the uninhabitability. To hold the contrary would to a large extent make the landlord’s obligation unenforceable.

Amended in principal amount to $600.