author: HURLEY, Judge. GLICKSTEIN, Judge,

text:
    R.J. PAVLIK, Appellant, v. ACOUSTI ENGINEERING COMPANY OF FLORIDA, a Florida corporation, Appellee.
    No. 82-2101.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellant.
    Ronald P. Gossett of Hodges, Gossett, McDonald & Gossett, P.A., Hollywood, for appellee.
   HURLEY, Judge.

R.J. Pavlik appeals from an order awarding him attorney’s fees pursuant to Section 713.29, Florida Statutes (1983), as the prevailing party in a mechanics’ lien foreclosure action. The trial court awarded $6,500, the amount Mr. Pavlik was obligated to pay his attorney pursuant to their fee agreement. On appeal, Mr. Pavlik contends that the trial court abused its discretion by limiting the award to $6,500. He claims he is entitled to recover a “reasonable fee” under section 713.29 and unrebut-ted expert testimony at the fee hearing indicated that a reasonable fee for the services performed by his attorney would range between $11,000 and $13,000. Although the trial court was not bound to accept the experts’ testimony, we agree that the court erred in computing the attorney’s fee award solely by reference to the contractual agreement between Mr. Pavlik and his attorney. Therefore, we reverse.

The trial court felt constrained to limit Mr. Pavlik’s attorney’s fee award to his actual expense because of several cases cited by the plaintiff/appellee. Among those cases was Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980), where the Third District held that lenders in a foreclosure action were only entitled to recover attorney’s fees in the amount they actually paid, despite a provision in the contract between the parties under which the debtor agreed to pay “all costs of collection, including a reasonable attorney’s fee.” In Cameron-Brown, the actual attorney's fee was less than $25,000, while expert testimony at trial suggested that a reasonable fee might exceed $100,000. We do not find Cameron-Brown controlling here, however, since the holding in that decision was confined to cases involving enforcement of contractual provisions authorizing recovery of reasonable attorney’s fees. The court expressly exempted from its consideration “the awarding of fees by statutory authority which embodies public policy considerations not pertinent hereto.” 385 So.2d at 731.

Where the legislature has mandated a reasonable attorney’s fee to promote a public policy, a fee arrangement between a party and his counsel should not be binding on the trial court in its determination of what constitutes a reasonable fee. Indeed, the Supreme Court announced this view in Bosem v. Bosem, 279 So.2d 863 (Fla.1973), a case involving an award of attorney’s fees in a dissolution action. There, the court held that the wife’s attorney was statutorily entitled to recovery of a reasonable attorney’s fee from the husband, even though the amount exceeded the sum due under the agreement with her attorney.

In the case at bar, Mr. Pavlik presented expert testimony indicating that a reasonable fee for services rendered by his attorney was about twice the amount due under his agreement with counsel. Since we have concluded that Bosem governs by analogy, we hold that an evaluation of “reasonable” attorney’s fees under section 713.29, Florida Statutes (1983), must not be determined solely by the terms of the fee arrangement between a party and his counsel. Rather, the trial court must take into account the factors set forth in the Florida Code of Professional Responsibility, DR 2-106. A fee agreement may be relevant but it cannot be the sole conclusive factor in the court’s fee determination. To hold otherwise would often provide a windfall to parties responsible for payment of attorney’s fees by statute, since an attorney may agree to provide legal services at no cost to his client for a variety of reasons, or he may contract for a fee which is far less than adequate because he misjudged the complexity of the case and underestimated the time likely to be consumed. Such a result would defeat the purposes underlying statutory authorization of attorney fee awards; we therefore decline to. adopt a view of section 713.29 under which the term' “reasonable” might be dictated by pre-existing fee arrangements between a party and his counsel.

Accordingly, we reverse the order and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs specially with opinion.

DELL, J., dissents without opinion.

GLICKSTEIN, Judge,

concurring specialty-

I concur with Judge Hurley's conclusion for a number of other reasons in addition to some that he has suggested. In doing so, I am more aware than ever — having been given the golden opportunity by Dean Ovid Lewis of Nova Law Center to teach upper class students (and myself), for a semester, a course in Remedies — that all of judging is an expression of value judgments. At the appellate level, those judgments — in many 5-4 or 2-1 situations — after getting a seal of majority approval, enter into the orbit of judicial precedent.

I find it is equally true that we judges do not give enough attention to the theories of the law that appear in the Restatements and in the various law reviews but often accept precedent as gospel because it is convenient to do so. Cardozos, like unicorns, are rare animals; and we who ar.e caught up in the trappings of our office often easily drift with the past without consideration of the “why’s.”

I have urged my students to call to the attention of the trial judges before whom they will appear the expressions of creative legal thinkers who are holding forth in the classroom and other resource centers such as the American Law Institute, to stimulate our colleagues’ on the trial bench consideration of significant ideas that are floating around out there unseen or unheard as cannons going off in the desert.

As for the business at hand, the same panel that considered the present case also decided Thomas v. Thomas, 418 So.2d 316, 317-18 (Fla. 4th DCA 1982), which said:

Appellee made an agreement with her attorney that he would receive compensation at the rate of $100 per hour. The affidavit for attorney’s fees her lawyer submitted reflects the' lawyer spent 28.40 hours in rendering legal assistance; his associate, whose time was billed at $75 per hour, expended 6.10 hours. As part of the agreement, appellee paid her attorney a $500 retainer fee. Relying upon the terms of this contract, we hold the total award of attorney’s fees should not have exceeded $3,297.50. On remand the trial court is directed to reduce it accordingly.

It is safe to say that some of the present panel were shocked to hear at oral argument that the foregoing language was being used by some of the trial bench as a proscription — in every case — against the award of a larger fee than that which the spouse had agreed to pay. While it is impossible to reconstruct everything that may have been considered in the formulation of an opinion written almost two years ago, a couple of things bear stating about the Thomas case. First, it is apparent from the language of the entire opinion that the Thomas panel was very much concerned not only about the wife’s present and future needs but also about the husband’s realistic ability to comply with the present court orders. Second, the attorney’s fee to which the wife had agreed was. $100 an hour, which was a reasonable hourly rate for her lawyer to receive.

Second, I am as concerned with mechanic’s lien claimants’ access to the courts as I am for a financially troubled spouse whose husband, the breadwinner, has taken a walk. A short-changed claimant and a financially desperate spouse are often in the same position because the party holding the purse strings removes the purse. It follows that in both situations, the ideal is for the client and lawyer to draft an agreement that provides for a reasonable hourly rate, with the understanding that the Code of Professional Responsibility may justify collection of more from the adversary. However, the client may be able to execute only an agreement which specifies less than a reasonable sum per hour because of the client’s desperate financial condition in the presence of personal principles that demand the client agree only to a fee within his or her expected financial means.

Third, the present ease represents a claimant and a property owner both being left high and dry by a third party. The owner, in the mind of the lawyer, should be billed for only $6,500 although the lawyer had 175 hours invested in his successful defense of the claim. Moreover, not only-was there a disparity between the number of hours required by the genuine problem in this case and the bill in question, the fee of $6,500 is, in my opinion, unreasonable in light of the result achieved because of a lot of creative attention and strategy in dealing with a difficult situation. As I have discussed with my students, the study of remedies is the study of accountability — or in this case, entitlement — both of which sound in fairness.

      . Section 713.29, Florida Statutes (1983), provides:
      Attorney’s fees. — In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

      . DR 2-106(B) provides:
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.

        (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.


source: Caselaw Access Project

author: WALDEN, Judge.

license: Public Domain

text:
    William Thomas CONNOLLY, Appellant, v. Lizabeth CONNOLLY, Appellee.
    No. 83-1308.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      Brenda M. Abrams and Georgia T. Newman of Abrams & Abrams, P.A., Miami, for appellant.
    No appearance for appellee.
   WALDEN, Judge.

While the errors reflected are serious, and, in part, fundamental, we are of the opinion that they are not such as to merit a detailed discussion of law.

The dispute is between husband and wife with the husband being the appellant. The matter is exacerbated by the fact that the wife never filed any pleadings or prayers for relief in the trial court. Moreover, she has not filed a brief or participated in the appellate proceeding.

It appears that the parties owned a marital residence owned as a tenancy by the entirety. They had a minor child.

Things began when the husband filed his initial pleading in the trial court, his Motion for Temporary Restraining Order Without Notice. It was not ancillary, then or thereafter, to a dissolution of marriage action or any other cognizable independent action. Ultimately, an order was entered which enjoined the wife, until further order of the court, from coming on the marital domicile; from harassing the husband; and from removing any personalty jointly owned or owned by the husband. The husband, again without any pleadings or prayers for relief on the part of the wife, was ordered to pay the wife $100 weekly as child support and $100 weekly as temporary alimony. The wife never filed a financial affidavit or testified as to needs. Later this order was approved with the addition that the wife was prohibited from removing the minor child from the boundaries of the 17th Judicial Circuit (Broward County) and the husband was accorded specific visitation privileges. There was no pleading as concerns the child or visitation. Finally, the husband was adjudged in contempt of court because of his failure to pay certain sums for child support and alimony. This appeal ensued.

We hold the following:

1. It was error to award the wife alimony, child support, de facto child custody, and to determine visitation rights when there was no pleading, prayer, or other predicate requesting such relief. Zuckerman v. Professional Writers of Florida, Inc., 398 So.2d 870 (Fla. 4th DCA 1981); Fla.R.Civ.P. 1.140(b); Tomasello, Inc. v. de Los Santos, 394 So.2d 1069 (Fla. 4th DCA 1981); Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981). The error was compounded when the husband was found in contempt of such order.

2. Although not raised, it was a fundamental error of which we choose to take sua sponte notice for the court to grant an indefinite injunction under Florida Rule of Civil Procedure 1.610 which, in effect, awarded the sole possessory or beneficial rights of property owned as a tenancy by the entirety to the husband when it was not ancillary to a dissolution of marriage or some other appropriate independent action. First, a court should not intrude into the marriage relationship and dictate the conduct of the marital partners toward each other and adjudicate their marital disputes unless and until such time as there is a proceeding instituted designed to terminate the marriage. Second, the attributes of an estate by the entireties are well known. See 12 Fla.Jur.2d Cotenancy and Partition §§ 10-24. It is predicated on the concept that husband and wife are one person in law. It is dependent on the marital relation for continuance, both spouses being considered equally interested in the res. So, while the marriage continues, as here, an interference with the estate or alteration is unfounded and the parties should be allowed to continue equally with their rights of ownership under such tenancy. Clawson v. Clawson, 54 So.2d 161 (Fla.1951); Zook v. Zook, 63 So.2d 642 (Fla. 1953); Junk v. Junk, 65 So.2d 728 (Fla. 1953); Field v. Field, 68 So.2d 376 (Fla. 1953); and Naurison v. Naurison, 108 So.2d 510 (Fla. 3d DCA 1959).

We reverse the orders appealed and remand with instructions to dismiss the cause.

REVERSED and REMANDED with instructions.

HURLEY and DELL, JJ., concur.


author: PER CURIAM. DELL, Judge,

text:
    Ira E. HALL, III, Appellant, v. Pamela Karen HALL, Appellee.
    No. 83-1612.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Martha A. Snedaker, Fort Lauderdale, for appellant.
    Frederic D. Kaufman of Kaufman, Houchins & Ferdinand, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983), Conner v. Conner, 439 So.2d 887 (Fla.1983) and Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

GLICKSTEIN and HURLEY, JJ., concur.

DELL, J., dissents with opinion.

DELL, Judge,

dissenting:

In my opinion, the trial court erred when it awarded the wife the sum of $12,000 as lump sum alimony and gave her possession of the marital home until the husband fully paid the award.

In this less than three year marriage, the record neither demonstrates any evidence showing that the parties accumulated assets during their marriage which required the award to facilitate an equitable distribution, nor does it support the award as an alternative to periodic rehabilitative alimony. On the other hand, the record does support the conclusion that the husband could only pay the lump sum award by selling the marital home which would result in the wife receiving almost 50% of the husband’s net worth.

The trial court also erred when it conditioned the termination of the exclusive use of the marital home upon the husband’s payment of the lump sum award without making provision for termination in the event of her remarriage, the husband’s death, or upon the couple’s son reaching majority. See, Messal v. Messal, 424 So.2d 932 (Fla. 1st DCA 1983); Zediker v. Zediker, 398 So.2d 915 (Fla. 1st DCA 1981).

Therefore, with all due respect to the majority, I would reverse and remand this cause to the trial court with directions to vacate the lump sum alimony award of $12,000.


author: PER CURIAM.

text:
    Robert KESICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-2747.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Robert Kesick, pro se.
    No appearance required for appellee.
   PER CURIAM.

Reversed and remanded for an evidentia-ry hearing on appellant’s allegations in his motion for post-conviction relief of prosecu-torial misconduct and ineffective assistance of counsel. Specifically, appellant alleges that his counsel failed to act when informed by the prosecutor that one of the jurors was sleeping during a portion of the trial. Among the attachments to appellant’s motion is a letter from his trial counsel apparently acknowledging the incident concerning the sleeping juror. Cf. Nova v. State, 439 So.2d 255 (Fla. 3d DCA 1983); Parker v. State, 336 So.2d 426 (Fla. 1st DCA 1976). We note that these allegations were contained among a multitude of other allegations made by appellant which we find, as did the trial court, lack merit.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


author: DIXON, Chief Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Mark D. DAVIS. STATE of Louisiana v. Bryan D. WINDHAM.
    Nos. 82-AW-2134, 82-AW-2135.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Michael Bonnette, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas A. Wilson, Jr., Wilson & Veatch, Shreveport, for defendant-appellant.
   DIXON, Chief Justice.

Defendants were charged with taking illegal deer, in violation of R.S. 56:123(E)(1). Windham was found guilty by the district judge. Davis then pleaded guilty, reserving his right to appeal. Both defendants received sentences of ninety days in jail, five hundred dollar fines, and had their rifles confiscated. Eighty of the ninety days were suspended, and the remaining ten days were to be served on three weekends. Applications were filed for writs, but review was granted as through the cases were here on appeal. 421 So.2d 912. The convictions and sentences are affirmed, except the confiscation of defendants’ rifles, which is reversed.

During the early morning hours of December 29, 1981, a small group of deer hunters from Shreveport, of which group both defendants were members, took up stands in the Hall’s Break area of Natchi-toches Parish. Around daybreak, a larger group of local hunters arrived in the area with their dogs. The stands in which the Shreveport group had positioned themselves were the stands customarily used by the local group.

Defendant Windham, who was about twenty years old and already an experienced hunter, was waiting in his stand. The local group’s dogs were running, and Reverend Hussar, a member of the Shreveport group, fired two shots into the air to excite the dogs. Defendant Windham, after hearing the shots and the dogs, spotted two doe and a spike buck running past him. He fired twice, and, due to the jamming of his weapon, fired a third time, into the air. When first spotted, the spike buck was only ten to fifteen yards away from defendant Windham, so he could tell that the deer at which he had shot had four to six inch spikes.

Since his shots had not killed the deer instantly, the deer kept running. After waiting a moment, defendant Windham began following the deer’s trail. He said that he could find no trace of blood along the trail, and so he was not sure if he had hit the deer. He was discussing the events with his hunting companion, Eric Dice, when Coy Birdwell, a member of the local hunting group, came up the hill and asked who had shot. Defendant Windham responded that he had shot at a spike buck, so Mr. Birdwell went back down the hill where his companions were waiting.

Members of the local group then spotted an injured doe, which was stumbling through the woods. Their dogs also spotted the deer and were “all over it.” Mark Stewart of the local group saw that the deer was in agony, so he fired one shot into the deer’s neck to put it out of its misery. After Mr. Stewart killed the doe, the group returned up the hill, yelling at defendant Windham that he had shot a doe, and not a spike buck. The group, led by Mr. Bird-well, placed defendant Windham under citizen’s arrest. The entire group then went down the hill.

While the group was standing around, defendant Davis came down the hill, “boasting” that he, too, had shot a doe. Coy Birdwell radioed to Vernon Birdwell, who, in turn, notified the Department of Wildlife and Fisheries of the doe shooting incidents. Agent Carson arrived at the scene, responding to a call concerning the taking of illegal deer. When he arrived, he identified himself as an agent with the Louisiana Department of Wildlife and Fisheries. He asked the group, in general, who shot the deer. Both defendants readily admitted that they had done the shooting. Agent Carson asked defendants for their identifications and licenses. At this point, no one was placed under formal arrest by Agent Carson. They proceeded to the body of the first deer and Agent Carson allowed defendant Windham to use his knife to gut the deer in order to avoid spoilage. In the meantime, some of the other hunters went looking for the body of the deer defendant Davis said he killed, but were unable to find it. Defendant Davis said that he knew where it was, and Agent Carson allowed him to go with the hunters to find the deer. After the second doe was gutted, both were placed in the back of Agent Carson’s pickup truck, and defendants were taken by Agent Carson to a location along the highway where they waited for Major Tracy Lucky. After Major Lucky arrived, he and Agent Carson conferred, and they agreed that they had cases against the defendants. It was at that point that the two defendants were informed that they were under arrest. Once in Agent Carson’s truck, on the way to Natchitoches for booking, Agent Carson read defendants their constitutional rights from a card that he carried with him.

Defendant Windham testified, and defendant Davis confirmed, that he made no statements to Agent Carson after he had been read his rights. The state, however, says that statements were made while in transit to Natchitoches.

Prior to trial, defendant Davis filed, among others, motions to suppress evidence and to quash. In the motion to suppress, defendant Davis sought to suppress “all descriptions or accounts of, all references to, all statements concerning and anything whatsoever pertaining to the very existence of the deer.” By this motion, defendant Davis sought to exclude any and all statements made by himself to Agent Carson, as well as evidence of the deer itself, since the body was found only because of defendant Davis’ statements. In the motion to quash, defendant Davis asserted that the statute under which he was charged was unconstitutional. Defendant Windham also filed motions to suppress and to quash. However, in his motion to suppress, defendant Windham only sought to suppress statements made by himself, and not to suppress evidence of the deer’s existence. The motion to quash was identical to defendant Davis’ motion to quash.

After trial, defendant Windham was found guilty, and, after adverse rulings on his motions, defendant Davis pleaded guilty, reserving his rights to appeal the rulings on the motions. At a joint sentencing proceeding, both defendants were sentenced to the maximum penalty (R.S. 56:33) for a first offense, class three violation— five hundred dollar fine and ninety days in jail, eighty days suspended — and had their weapons confiscated. Defendants appeal the rulings on their motions, their sentences and defendant Windham challenges the failure of the trial court to enter a directed verdict or a verdict of acquittal.

Motions to Quash

The statute under which defendants were charged provides that “[vjiolation of the provisions of this Section ... by the hunting or taking of illegal deer or turkeys in open season constitutes a class three violation.” R.S. 56:123(E)(1). Four bases are presented which, defendants allege, render the statute unconstitutional: vagueness, overbreadth, improper delegation of legislative authority to the executive branch, and improper promulgation of administrative regulations.

In order for a law to avoid being unconstitutionally vague, it “must describe the unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.” State v. Dousay, 378 So.2d 414, 416 (La.1979). See also State v. Stilley, 416 So.2d 928, 929 (La.1982); State v. Baron, 416 So.2d 537, 538 (La.1982). By itself, § 123(E)(1) is vague in that it, as well as the remainder of Title 56, fails to define “illegal deer” with the requisite clarity and particularity. However, R.S. 56:123(A) provides that the commission may restrict hunting, and R.S. 56:124(1) provides that “antlerless deer, except spotted fawns may be taken only in accordance with and subject to such rules as may be adopted by the [Wildlife and Fisheries] commission with the advice of the department staff biologists.” While this section unambiguously refers the reader to the extra-statutory rules, the statute, itself, does not put the average person on notice as to what the prohibited activities are.

The rules referred to are those promulgated by the Wildlife and Fisheries Commission, and are contained in the annual publication Louisiana Hunting, Fishing, and Motorboat Regulations, as well as in the Louisiana Register. 7 La.Reg. 357 (July 20, 1981).

Contained in the regulations promulgated by the commission are clear descriptions of what animals may and may not be hunted during clearly specified seasons. Under the heading “1980-81 Deer Hunting Schedule — General,” the regulations provide:

“A. Bag, one legal deer per day, six legal deer per season.
B.A legal buck is a deer with visible antler, hardened bony material having no velvet, broken naturally through the skin. Killing bucks without at least one visible antler as described above and killing doe deer is prohibited except where specifically permitted.
C. Deer hunting restricted to legal bucks only, except where otherwise permitted.
D. Either sex deer is defined as male or female deer. The taking of spotted fawns is prohibited.
...” 7 La.Reg. 357 (July 20, 1981).

(Emphasis added).

“Either sex hunting” is allowed in Natchi-toches Parish on “[t]wo days, Nov. 21 and Nov. 27.” Id. at 360. Considering the foregoing regulatory proclamation, there is no vagueness in the commission’s prohibition against the hunting of doe deer.

While the statute itself does not define illegal deer specifically, the statute clearly directs the reader to consult the regulations of the Wildlife and Fisheries Commission, and those regulations are clear and unambiguous.

Defendants also argue that the statute is unconstitutionally overbroad. The thrust of their arguments is that the statute encompasses the “innocent” taking of doe, such as the accidental killing of a doe as it darts in front of a moving automobile which is traveling down a major United States highway, or the “mercy killing” of a doe in obvious pain (such as was done by Mr. Stewart, one of the state’s witnesses). The standard of review of a statute which is alleged to be overly broad in its scope is whether the choice of sanctions of lawfully regulated activity infringes upon the exercise of protected freedoms. State v. Cannon, 383 So.2d 389, 394 (La.1980), cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 587 (1981). There are no such protected freedoms involved here. Furthermore, there are no constitutional prohibitions against the imposition of criminal sanctions for “accidental” wrongful conduct. See, e.g., R.S. 14:32 (negligent homicide); R.S. 14:42(4) (aggravated rape where the victim is under twelve years of age, and lack of knowledge of the victim’s true age shall not be a defense).

Next, defendants argue that the delegation of the power to determine what conduct is unlawful is a prohibited delegation of legislative authority to a department of the executive branch. Defendants argue that the Wildlife and Fisheries Commission is a creature of statute, R.S. 56:1, and thus not capable, under La. Const, art. 2, § 2, of receiving constitutionally legislative powers, as are prescribed by R.S. 56:123(A) and 56:124(1). The issue, then, is whether there is a constitutional mandate which allows the legislature to delegate part of its rulemaking authority to the commission.

This court has stated that:

“... The definition of criminal conduct is solely a legislative function, and the delegation of legislative power is strictly limited in Louisiana by the state Constitution.
In State v. Snyder, 131 La. 145, 59 So. 44 (1912), this court upheld a criminal conviction for violation of the sanitary code. The court was careful to note, however, that Art. 296 of the Constitution of 1898 expressly provided that ‘[t]he General Assembly shall create for the State, and for each parish and municipality therein, Boards of Health, and shall define their duties, and prescribe the powers thereof,’ so that the delegation of legislative power was constitutionally authorized....” State v. Dousay, supra at 415-16 n. 2.

A situation perfectly analogous to State v. Snyder exists in the cases before this court.

The Louisiana Constitution of 1974 expressly provides:

“(A) The control and supervision of the wildlife of the state, including all aquatic life, is vested in the Louisiana Wildlife and Fisheries Commission. The commission shall be in the executive branch ... (B) The functions, duties, and responsibilities of the commission and the compensation of its members, shall be provided by law.” La. Const, art. 9, § 7.

The establishment of the commission here is done by this provision of the Constitution, as was the establishment of the board in State v. Snyder. Because of this constitutional grant of authority to the legislature to delineate the powers of the commission, the legislative delegation of the power to the commission to make exceptions to the prohibition against taking antlerless deer is a proper and constitutional delegation of power.

Finally, defendants argue that the rules of the commission were not promulgated properly, and that the burden is on the state to prove proper promulgation. To the contrary, there is a presumption of propriety, and the burden is on the party challenging the promulgation to prove the defects. In relation to the passage of a statute, this court has stated that, “In the absence of any suggestion of any fatal irregularities or the non-observance of any essential requirement in the passage of [an] act, the court must necessarily assume that it was legally adopted.” Middleton v. Police Jury, Parish of Jefferson, 169 La. 458, 467, 125 So. 447, 451 (1929). We reaffirm this assumption and also apply it to administratively adopted regulations. Since there is no specific allegation of irregularity in the promulgation of either the statute or the commission regulations, the unrebutted presumption of validity makes the contention of defendants meritless.

Motions to Suppress

Pre-Miranda Evidence

The game warden’s office received a call informing them of the shooting of illegal deer, and that some men were being held by other hunters in connection with the shootings. In response to the call, Agent Carson went to the scene. Knowing only that illegal deer had been shot, Agent Carson approached the group of hunters, and, before anyone told him which of the men were being held, he asked the group in general, “who shot the deer?” According to Agent Carson's testimony, both defendants responded that they had done the shootings. Agent Carson testified that at the time of his arrival he did not know which of the hunters had done the shootings. Defendants argue that Agent Carson, once he knew which of the hunters were being held, should have read the suspects their constitutional rights.

Miranda warnings are not required when the law officer is making a general, on-the-scene investigation to determine whether there has been the commission of a crime, and, if so, by whom. State v. Brown, 340 So.2d 1306, 1308 (La.1976).

“... Where no finger of suspicion has been pointed at a defendant and where he is not the focus of an investigation of a particular crime, we are unwilling to curtail the ability of the police to investigate potential criminal activity. Such a ruling would require that the police administer Miranda warnings to all persons whom they question as to potential breaches of the law, even where the officers are in the preliminary investigatory process of determining whether any crime has indeed been committed....” State v. Mitchell, 437 So.2d 264, 266 (La. 1983).

At the time of Agent Carson’s undirected query, he had pointed no “finger of suspicion” at anyone. The mere fact that there had been a reported citizen’s arrest did not put the agent on notice as to which of the hunters were being held. Agent Carson was making a preliminary investigation and was not required to advise anyone of the rights guaranteed under Miranda. All statements made to Agent Carson immediately upon his arrival were properly admissible, and the denials of the motions to suppress, in this regard, were proper.

Defendant Davis additionally seeks to suppress the evidence of the corpse of. the deer, on the basis that, once he informed Agent Carson that he had shot one of the doe, the investigation focused upon him, and he was then entitled to be read his constitutional rights. La. Const, art. 1, § 13.

As already stated, a person does not have the right to have his constitutional rights read to him when statements are made to a police officer when the officer is performing an on-the-scene investigation to determine if, indeed, a crime has been committed. State v. White, 399 So.2d 172, 174 (La.1981); State v. Brown, supra. At the time of defendant Davis’ locating the corpse, Agent Carson still had not determined that there was sufficient evidence to conclude that a crime had been committed. Agent Carson, even after defendant Davis told him that he had killed a doe, did not question Davis any further at the scene. According to Davis’ own testimony:

“Well, one of the guys asked me — not Major (sic) Carson but one of the other guys asked me where the deer was. And I told him he was maybe sixty yards on the other side of my stand. And they asked Major (sic) Carson if he wanted them to go get the deer. And he said, ‘Yeah, go get it and bring it back down here.’ So, two guys left, a young guy about eighteen I’d say — he was wearing a sidestrap pistol — him and an older man left in a stepside pickup. And they came back in about fifteen minutes. And they said, ‘We can’t find the deer.’ And one of the guys asked me did I know where the deer was. And I said, ‘Yes, sir.’ And Mr. Carson told me to go up there with them and get the deer and put it in the truck and bring it back up here. So me and the guys left and I showed them the deer and we put it in the truck.”

Thus, defendant Davis’ locating the deer was done at the request of, and in response to, the private hunters, and not to the law officer.

Defendant Davis argues, however, that he was in the custody of Agent Carson at the time he located the deer corpse, and so should have been given his Miranda warnings. “Custody” is determined from “circumstances indicating an intent to effect an extended restraint on the liberty of an accused,” State v. Tomasetti, 381 So.2d 420, 423 (La.1980), and it must be judicially determined, objectively and in retrospect, if the person has been significantly detained so as to mandate the advising him of his rights. State v. Thompson, 399 So.2d 1161, 1167 (La.1981). According to Agent Carson, defendant Davis was free to leave at the time he located the deer for the other hunters. While it is true that Agent Carson would have stopped defendant Davis had he attempted to leave, that expression of restraint had not been made to Davis. It is clear that defendant Davis was not in the custody of Agent Carson, because Carson did not take any precautions or impose any conditions upon defendant Davis, or the other hunters, when Davis went with the hunters to find the corpse. Additionally, there is no evidence that there was any coercion against Davis, or that his locating the deer was not done voluntarily.

Because defendant Davis’ location of the deer was made at a pre-custodial, on-the-scene stage of an investigation, and also because the location information was given to private citizens and not to a law enforcement agent, there was no need to give Miranda warnings. Thus, all statements made by defendant Davis prior to his being taken into custody were admissible. The trial judge’s refusal to grant defendant Davis’ motion to suppress all evidence of the deer’s existence was proper.

Post-Miranda Statements

After meeting with Major Lucky, Agent Carson took both defendants to Natchitoch-es for booking. Along the way, they were informed that they were under formal arrest, and were advised of their constitutional rights. The state presented the testimony of Agent Carson, wherein he stated that defendants made statements to him concerning their respective crimes. Agent Carson stated that defendant Windham told him that he saw three deer, one of which was a buck, and that he thought that he was shooting at the buck. Defendant Davis told Agent Carson that he saw two “flags” and shot just to be shooting. Defendant Windham denied (and defendant Davis confirmed) that he had said anything to Agent Carson while en route to Natchi-toches. Defendants sought to suppress the alleged statements made by them after their formal arrest and advise of rights. The trial judge denied the motions. Only defendant Windham appeals this denial; defendant Davis has abandoned this assigned error.

The basis upon which defendant Windham challenges the admission of his post-Miranda statements is that those statements were “tainted” by the earlier activities. Since all of the earlier statements were obtained lawfully, there was no “tainting” of the subsequent statements. Agent Carson testified that defendant Windham signified that he understood his Miranda rights. There is no evidence of involuntariness on the part of defendant Windham. Since there is neither “tainting,” nor evidence of coercion, any statements made by defendant Windham after he received his Miranda warning were made with sufficient freedom and intelligence to be considered as waivers of the right to remain silent. Any statements made by Windham during the trip to Natchitoches were admitted properly.

Considering the foregoing, the trial judge was correct in his denial of defendants’ motions to suppress statements and other evidence.

Sentencing

Defendants argue that the trial judge failed to follow the sentencing guidelines, as established in C.Cr.P. 894.1.

The trial judge, during the sentencing phase of the procedure, stated:

“Mr. Windham was found guilty by the court on the testimony of Mr. Young-blood, Mr. Stewart and Mr. Birdwell. Mr. Davis has now plead guilty having stipulated most of the testimony and having some adverse rulings to certain motions. People of Natchitoches take their deer hunting very serious. The people of Natchitoches Parish have been very cooperative with the law enforcement personnel with the Louisiana Wildlife and Fisheries. Had the people not stopped you two young gentlemen and placed you under what’s called citizen’s arrest and called the State game wardens probably you would have put the two illegal deer in your vehicles and returned to Shreveport with your trophies and gladly shown them off to everybody. You chose to commit the crime now you must pay the price. The maximum penalty that I can impose on you for the first offense is a fine of not less than five hundred dollars or imprisonment of not more than ninety days or both. It is the sentence of this court that each of you pay a fine of five hundred dollars and be imprisoned in the Natchitoches Parish Jail for ninety days. I’m going to suspend the ninety, all but ten days of the ninety day sentence and will allow you to serve three weekends in the Natchitoches Parish Jail to count as your ten day jail sentences. And I want you to go back to Shreveport and tell your friends that if you come down to Natchitoches Parish and you come before Judge Cunningham for illegal deer that it’s not going to be ten days for them; it’s going to be ninety. And I hope you’ve learned your lesson.”

The Code of Criminal Procedure sets forth the items which must be considered by the trial judge before passing sentence. C.Cr.P. 894.1. The trial judge need not recite the entire checklist of article 894.1, but the record must reflect that the judge adequately considered the guidelines. State v. Soco, 441 So.2d 719 (La.1983); State v. Trahan, 412 So.2d 1294, 1296 (La.1982). The judge must, in effect, justify his sentence with factual reasons. State v. Soco, supra; State v. Jones, 398 So.2d 1049, 1052 (La.1981).

Even in the absence of adequate compliance with the mandate of article 894.1, it is not necessary for this court to remand the matter for resentencing in compliance with the article when the sentence imposed is not apparently severe in relation to the particular offender or the actual offense committed. State v. Jones, 381 So.2d 416 (La.1980). In light of the seriousness of the offense of shooting doe, the sentence is not severe. Mitigating factors were taken into account by the trial judge, as evidenced by the suspension of eighty of the ninety days of imprisonment, and by permitting defendants to serve their sentences on three weekends.

However, the court did err when it ordered the confiscation of defendants’ firearms. R.S. 56:33 expressly provides for the confiscation of things seized by the commission only for the second or third convictions for class three violations. C.Cr.P. 891 provides for the forfeiture of weapons used in connection with any offense. While it is true that the provisions of R.S. 56:33 are not wholly inconsistent with C.Cr.P. 891, there is an ambiguity as to which law controls in this instance, since these were defendants’ first game law violations. Any ambiguity must be resolved in favor of leniency toward defendants, and against the state. R.S. 14:3; State v. Freeman, 411 So.2d 1068, 1072 (La.1982); State v. Cox, 344 So.2d 1024, 1026 (La.1977). The ambiguity created by the possible conflict of the statutes must be resolved in favor of defendants, and against the imposition of the greater punishment.

Accordingly, that part of defendants’ sentences ordering the confiscation of their weapons is reversed and set aside, and it is ordered that the firearms be returned to defendants. Otherwise, the convictions and sentences are affirmed.

DENNIS, J.,

concurs. This is a misdemeanor case. Otherwise I would be concerned about the opinion’s delegation of crime definition authority to an executive agency. Also, I do not agree that the crime definition covers accidental takings.

CALOGERO and LEMMON, JJ., concur.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Bryan Jerome SHANK.
    No. 82-KA-2478.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Eugene Bouquet, Asst. Dist. Atty., for plaintiff-appellee.
    Richard P. Ieyoub, Lake Charles, Skipper M. Drost, Sulphur, for defendant-appellant.
   CALOGERO, Justice.

The defendant in this ease, Bryan Jerome Shank, was indicted by the Calcasieu Parish Grand Jury for the capital offense of first degree murder, a violation of La.R.S. 14:30(1). He pleaded not guilty and not guilty by reason of insanity after counsel had been appointed to represent him. At the sanity hearing, on September 30, 1981, defendant was found competent to stand trial and to assist counsel. He was ultimately convicted as charged and, although exposed to the death penalty, upon the jury’s recommendation, sentenced only to life imprisonment. Defense counsel has perfected this appeal, asserting thirty-six assignments of error in ten arguments. Finding none of the arguments meritorious, we affirm defendant’s conviction and sentence.

The undisputed facts are as follows. Defendant (AWOL from Fort Polk at the time) met the victim Joseph Michael Keyes, a cab driver, in Lake Charles, Louisiana, early in the day of May 4, 1981. After Keyes and Shank discussed the possibility of defendant’s purchasing Keyes’ car, the victim agreed to meet Shank and his friend, Greg Hoxie (also AWOL), later in the evening. Keyes and his wife later picked up defendant and Hoxie at the bus station. Toward the end of the evening, the victim’s wife was dropped off at home. The victim continued driving his own vehicle with Shank and Hoxie as passengers, ostensibly to find a place for Shank and Hoxie to spend the night. The next morning, the body of Michael Keyes was found north of the city of Lake Charles in a roadside ditch along Topsy Road in Calcasieu Parish. The victim had been stabbed numerous times and his throat had been slashed. The victim’s car was later found abandoned in a state park in Oklahoma.

On May 13, 1981, Greg Hoxie, defendant’s companion, turned himself in as AWOL from Fort Polk to a uniformed St. Louis, Missouri, police officer. When the officer ran Hoxie’s name, date of birth and social security number through the computer at the station, it was learned that Hoxie was indeed AWOL and also wanted for a homicide in Louisiana. Upon being questioned, after advisement of his rights, Hox-ie stated that he had been traveling with a buddy whom he had left on the highway before he had met the police officer. The buddy’s name was Bryan Shank. Two homicide detectives and Hoxie drove to the point of the highway where Hoxie had left defendant Shank. Hoxie pointed out Shank sitting underneath an overpass. The detectives arrested Shank.

Pursuant to an arrest warrant that had been issued in connection with the Louisiana murder, defendant was returned to Louisiana. He gave a detailed confession and also testified at trial concerning the details of the crime. In his confession, defendant stated that during the trip to the house of Keyes’ friend, where Shank and Hoxie might spend the night, the trio found themselves on a road north of Lake Charles. The cab driver stopped in order for Hoxie to relieve himself. While Greg Hoxie was out of the cab, Shank, who was sitting in the back seat behind Keyes, pulled out a knife and slashed the victim’s throat. On the witness stand at trial, defendant further stated that he had decided when he went AWOL that he would kill somebody. Shank testified that after he cut Keyes’ throat, the victim stared at him. That angered Shank, who did not like people to stare at him, so he then stabbed the victim several times. Defendant further testified that he should have cut the victim’s head off completely and taken it with him. Defendant dragged Keyes out of the car and over to a ditch, where he left him. Defendant and Hoxie then traveled, in the victim’s car, to Oklahoma, where they abandoned the car, and then hitchhiked to St. Louis, Missouri where they were arrested.

Defense counsel’s principle argument, encompassing nineteen assignments of error, is essentially that his client was denied a fair trial because of prejudice toward him by the jury, brought about by defendant’s own various actions, demonstrations and outbursts, as well as threats by the defendant toward the jury and in their presence.

Counsel was appointed to represent defendant. Defense counsel entered a plea on defendant’s behalf of not guilty and not guilty by reason of insanity. After a sanity hearing, defendant was found to be competent to stand trial and to assist counsel. At that point, defendant informed the trial court that he wanted to defend himself for the asserted reason that he wanted the death penalty. The trial judge granted defendant’s request but ordered counsel to remain to assist and advise defendant during the proceedings. Approximately a week later, the prosecutor informed the trial court that the state intended to seek supervisory writs from the trial court ruling allowing defendant to represent himself.

We granted writs on the state’s application and summarily reversed the trial court. We held that “defendant’s election to represent himself for the purpose of acquiescing in his conviction of a capital offense and in his death sentence cannot be sanctioned as an intelligent choice.” State v. Shank, 410 So.2d 232, at 233 (La.1982).

Thereafter, on March 19, 1982, prior to hearing motions, the trial judge explained this Court’s ruling to defendant. Through counsel, defendant expressed his disagreement with this Court’s decision. Shank then addressed the court himself and again stated that he wanted to defend himself. Upon that request’s being denied, defendant began making disruptive outbursts and continued doing so throughout the trial.

According to the minutes of the proceedings, defendant began his outrageous behavior on the first day when pre-trial motions were heard. Defendant requested that he be removed from the courtroom. He also asked to be restrained. At the hearing on the motion for a change of venue and for a continuance, defendant refused to go into the courtroom, and the motions were heard in his absence. During voir dire, defendant was allowed to leave the jury room to go to the bathroom. While in the hallway, defendant shouted, in the presence of prospective jurors, that he was guilty. He also threatened various jurors during voir dire examination and at one point held up a sign that read “I am guilty. I cut head off.”

While the indictment was being read, charging defendant with first degree murder, defendant nodded his head as if to assent to the fact that he had been involved. Throughout various stages of the trial, defendant continued his disruptive behavior. Shank apparently stood up at one point and threatened to kill the jury members when he escaped if he was given a life sentence. When a witness was being questioned as to whether the knife found in Shank’s belongings was likely the same knife used to stab the victim, Shank answered out loud that it was. He also commenced pounding on the defense table as if stabbing something. Such demonstrations continued throughout much of the trial, culminating with an attack upon defense counsel. As defense counsel was questioning the psychologist from Port Polk who had treated defendant, Shank jumped across the counsel table, struck counsel, knocked him to the floor and began strangling his attorney before he could be subdued. Shank also insisted upon testifying at trial. When he did so he described the circumstances of the crime in great detail and eventually expressed to the jury his regret over not having entirely cut off and taken with him the head of the victim.

After each demonstration by defendant, counsel made an objection, challenging the juror for cause during the voir dire incidents and then moving for a mistrial during the trial. The trial court overruled defense counsel’s objections and denied his mistrial motions. On several occasions the trial court attempted to reason with defendant after the outbursts or demonstrations. The court repeatedly warned Shank that he would be bound and gagged if he continued to disrupt the trial. Shank nonetheless continued his disruptive behavior, until the attack upon defense counsel, at which point the trial judge did order the defendant bound and gagged.

In each instance, it was defendant’s own behavior in the presence of the jury which served as the grounds for defense counsel’s objections, the denial of which he assigns as error in this appeal.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” It has been held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Indeed, the same right is embodied in our own Constitution in Section 16 of Article I. One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); State v. Ranker, 359 So.2d 129, 130 (La.1978). Thus, the question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time claiming (personally or through counsel) reversible error based on the prejudicial impact on the jury of his own speech and conduct. We think not.

While it is true that one’s Confrontation rights are not absolute, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), it is likewise true that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The trial judge here was faced with strong constitutional mandates not to remove the defendant from the courtroom; nor to bind and gag him in the presence of the jury. Illinois v. Allen, supra. The trial judge stated in his reasons for denying counsel’s mistrial motions that he had desisted from such actions because of a concern for the protection of defendant’s confrontation rights. He also stated that it would, for the most part, be useless, since the defendant was insisting on taking the stand and testifying, at that time having the opportunity to make the admissions of his guilt that he was blurting out during the trial. The trial judge exhibited commendable patience in attempting to preserve defendant’s constitutional rights. Yet the defendant continued to blurt out disruptive remarks in the jury’s presence and at times even directly to certain jury members.

Now defense counsel argues that his client’s conviction and sentence should be set aside because of the prejudicial impact on the jury caused by his client’s own conduct. It is obvious that to afford a defendant such relief, based on his own conduct, is to give him a tool by which he can effectively prevent forever a final determination of his guilt. Such a result cannot be tolerated if our system of justice is to survive. This was pointed out almost one hundred years ago, Falk v. United States, 15 App.D.C. 446 (1899), and has since been consistently reaffirmed. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Illinois v. Allen, supra, Justice Brennan concurring.

In Falk, the Court said:

It does not seem to us to be consonant with the dictates of common sense that an accused person ... should be at liberty, whenever he pleased, ... to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it.... This would be a travesty of justice which could not be tolerated.... [W]e do not think that any rule of law or constitutional principle leads us to any conclusion that would be so disastrous as well to the administration of justice as to the true interests of civil liberty.
* * ⅜! ⅜ * ⅜
The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither criminal nor in civil cases will the law allow a person to take advantage of his own wrong.

And, after citing the above language from Falk with approval, Justice Brennan concurring in Illinois v. Allen, supra, added:

To allow the disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very process that the Constitution prescribes.

Our own state courts have taken a similar approach to the question of whether a defendant’s own disruptive behavior requires a mistrial or new trial because of the prejudice the conduct may have caused in the minds of the jurors. In State v. Wiggins, 337 So.2d 1172, at 1173 (La.1976), Justice Tate, speaking for the Court stated:

The motions for mistrial were properly denied. State v. Washington, 322 So.2d 185 (La.1975). A defendant cannot complain that prejudicial conduct requires a mistrial, when the alleged prejudice was created by his own obstructive conduct met by a reasoned and ordered reaction by the trial court in the interest of maintaining orderly procedure in the courtroom.

Thus we have a jurisprudential history on both the state and federal levels which strikes the balance between ordered liberty or social peace, and personal rights, with recognition of the fact that in order to maintain the former the constitutional power to bring an accused to trial must prevail. The personal safeguards that the Constitution affords criminal defendants presupposes that sovereign prerogative. Accordingly, we cannot agree with defense counsel that defendant is entitled to a new trial because his first was tainted with prejudice caused by his own conduct.

Furthermore, we are not so sure that the record clearly supports a showing of the prejudice referred to by defense counsel. Defendant was on trial for first degree murder. He faced the possibility of the jury’s recommending that he be sentenced to death. He threatened the jury that if only sentenced to life imprisonment he would have the rest of his life to escape, and that if he did so he would kill each one of them. Notwithstanding these threats, which defense counsel argues prejudiced the jury against him, the jury did not return the recommendation that defendant be executed. Instead, the life imprisonment sentence was recommended. Thus the prejudice in the jurors’ minds, that defense counsel argues tainted his client’s trial with reversible error, does not readily appear.

Additionally, from a review of the record before us, the Court is not entirely convinced that defendant’s outbursts were for his espoused reason, i.e., that he wanted the jury to return a guilty verdict and recommend the death sentence. It may well have been that defendant, who from the outset was insistent on representing himself, simply made a tactical decision as to how best to proceed. Defendant pleaded not guilty and not guilty by reason of insanity. It seems that defendant’s outbursts may have been motivated by a belief that he could convince the jury that he was insane, thus securing the latter verdict, or alternatively that he could convince the jury to spare his life. It did not go unnoticed that defendant’s outbursts seemed quite timely and pointed.

Defense counsel argues that defendant should not have been permitted to take the stand and testify where the trial judge knew the nature of the testimony that defendant intended to give. He argues that it was reversible error for the trial judge to allow defendant to do so. The state responds that it was not reversible error since every person charged with a crime has the right, if he chooses, to take the stand and testify in his own defense. Defense counsel argues that, to the judge’s knowledge, defendant’s testimony was not going to be in his own defense.

Again, this is a judgment that the Court is not prepared to make on this record. Defendant’s testimony of bizzare details of the crime, including his admission that his only regret was that he did not cut the victim’s head completely off and take it with him, could well have been presented in an attempt to have the jury reach a verdict that the defendant was not guilty by reason of insanity, or at least spare his life. Thus, defendant’s testimony may well have been “in his own defense” as he saw it. After all, as pointed out above, defendant did succeed in avoiding the death penalty.

If there is to be any workable system of social order, one charged with a crime must in due course be brought before the court, tried for his offense, and punished if found guilty. One charged with a crime cannot be permitted to subvert the ends of justice by his own intentional conduct. Consequently, for the above reasons, we find no merit in defendant’s arguments on appeal.

Decree

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

AFFIRMED.

      . Only one of defendant's arguments is addressed in the main text of the opinion. The other assignments, being governed by clearly established principles of law and only of interest to the defendant, are discussed in an unpublished appendix to this opinion.

      . The facts have been reconstructed from the testimony of Marlene Keyes, the victim’s wife, defendant’s testimony, and the factual synopsis in the state’s brief, taken from defendant’s taped confession. The record consists only of transcript excerpts in this case.

      . More specifically, defendant’s assignments of error in this regard are as follows:' Assignment of error no. 8 relates to defendant’s laughing and raising victory signs to the prospective jurors as the trial judge was reading the indictment charging defendant with first degree murder. Defendant also nodded his head as if to assent to the fact that he had been involved. Assignment of error no. 13 relates to defendant’s threats against defense counsel and their families during voir dire which was subsequently reported in the newspaper and on a TV news cast. Assignments of error nos. 17 and 19 involve defendant’s improper hand gesture toward a juror and the entire venire. Assignment of error no. 20 relates to defendant's laughing audibly in front of jurors. Assignment of error no. 21 involves Shank’s behavior in the hall when he was allowed to leave the jury room to go to the bathroom. Once outside, he screamed out, "I’m guilty” in a loud voice that was heard by those in the jury room as well as prospective jurors standing in the hall. Assignment of error no. 26 relates to defendant’s holding up hand printed signs that read "I am guilty. I cut head off,” and "when I escape, I’ll kill jury” when three prospective jurors were present in the jury box. Assignment of error no. 27 involves defendant's repeated disrupting comments to a prospective juror during voir dire.
      Assignment of error no. 32 relates to threats made by defendant to the jury during the trial. Shank evidently stood up, hollered an obscenity and threatened to kill the jury when he escaped since he had his whole life in which to accomplish the killing. Assignment of error no. 33 involves defendant's motions toward the jury and'verbal threats. During trial when a doctor was testifying as to whether the knife being discussed was the same weapon used in the crime, defendant answered that it was the same knife. Shank began hitting the desk in front of him as if stabbing somebody; he also threatened the jury that he would cut them up in little pieces and that they were all going to be castrated. Assignment of error no. 35 relates to defendant’s physical attack upon defense counsel while counsel was questioning the psychologist from Fort Polk who had previously treated defendant. Shank jumped across the counsel table, struck counsel, knocked him to the floor and began choking his attorney before he could be subdued.
      Assignments of error nos. 12, 15, 18, 22, 23, 25, and 28 relate to the trial court’s denial of defense counsel's challenges for cause of prospective jurors who witnessed or were exposed to one or more of Shank's demonstrations discussed above as bases for defendant’s motions for mistrial.
      Assignment of error no. 34 presents the argument that the trial court committed reversible error by allowing defendant to take the stand at trial and testify, when the court knew that defendant intended to admit his guilt and give other prejudicial testimony concerning the circumstances of the crime.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Roy Lee WILLIAMS.
    No. 82-KA-2249.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Scott Crickton, Carey T. Schimpf, C.M. Estopinal, Asst. Dist. At-tys., for plaintiff-appellee.
    Timothy Fischer, Donald Minor, Asst. Indigent Defender, for defendant-appellant.
   MARCUS, Justice.

Roy Lee Williams was charged by bill of information with aggravated burglary in violation of La.R.S. 14:60. After trial by jury, he was found guilty as charged and sentenced to serve twenty years at hard labor with credit for time served. On appeal, defendant relies on seven assignments of error for reversal of his conviction and sentence.

About 2:00 a.m. on December 24, 1980, Gussie Lipson was awakened in her bedroom by a man standing over her with his hands around her mouth and neck. Her screams aroused her son, Ashley Lipson, who was visiting her from out of town. He ran to the lighted hallway and came face to face with the intruder who swung at him, grazing his cheek, and then fled and escaped from the house. The police were able to lift a fresh fingerprint from the inside of the aluminum screen window which had been bent back to allow entry. Among the items taken was Mrs. Lipson’s purse which contained gold jewelry, a billfold with over five hundred dollars cash and car keys. Ten months later, new information led the police to successfully match the latent fingerprint taken from the Lip-son home with defendant’s prints on file. Defendant was arrested on November 4, 1981. The following day he made an incul-patory statement. Mr. Lipson picked defendant’s photograph out of a lineup later that month and at trial made an in-court identification of defendant as the burglar.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress his incul-patory statement.

Defendant was arrested on November 4, 1981 by Officer Danny Parker pursuant to an arrest warrant obtained by him two days earlier. Officer Parker’s affidavit for the warrant recited that he had received an anonymous telephone call on October 30, 1981 advising him that Roy Lee Williams had burglarized the house at the Lipson’s address, that he then pulled the incident report from December 24, 1980 and requested a comparison of the latent prints taken from the point of entry at the Lipson home with those on file for Williams, that a match with Williams’ right middle finger was obtained, and that the complainant Gussie Lipson had stated that the suspect broke into her home and committed a theft and a battery.

The day following his arrest, after again being advised of his rights, defendant made an inculpatory statement. Defendant filed a motion to suppress this statement which, after a hearing, was denied by the trial judge.

La.Code Crim.P. art. 202 provides that a warrant of arrest shall be issued when

(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed a crime. The magistrate’s independent judgment that probable cause exists for the issuance of an arrest warrant may be based on the facts and circumstances asserted in the affidavit as well as those asserted verbally by the officer at the time the warrant is obtained. The fact that a better showing of probable cause could be made by the affiants does not detract from the showing of probable cause that is made. State v. Rodrigue, 437 So.2d 830 (La.1983). Minor inaccuracies in these assertions may not affect the validity of the warrant. However, if intentional misrepresentations designed to deceive the issuing magistrate are made by the affiants seeking to obtain the warrant, the warrant must be quashed. Alternatively, if unintentional misstatements are included, these misstatements must be excised and the remainder used to determine whether or not probable cause for the issuance of a warrant is set forth. State v. Rey, 351 So.2d 489 (La.1977). Similarly, when the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included and retest the sufficiency of the showing of probable cause. State v. Lehnen, 403 So.2d 683 (La.1981).

Defendant asserts affiant Parker knew the identity of the anonymous tipster. Defendant points out that Officer Parker revealed at trial that about two hours after the phone call on October 30, 1981 a confidential informant Irving Johnson turned over the car keys taken in the burglary to Officer Parker and stated that he had been one of the lookouts when defendant burglarized the Lipson home. However, Officer Parker repeatedly testified that he never learned the identity of the anonymous caller and specifically that he still did not know if Irving Johnson was that caller. The trial judge considered the evidence clear that the anonymous caller’s identity and Irving Johnson were separate and distinct matters. The record supports this conclusion. Hence, we find no misrepresentation was made in the affidavit in this regard. Also, defendant asserts that the affidavit’s final recitation that “complainant stated to affiant that the suspect broke into complainant’s home ...” mistakenly implies that Gussie Lipson identified defendant as the man who burglarized her home, when in fact she has never done so. It is evident from the testimony that Officer Parker simply used the neutral word “suspect” in summarizing the incident report in order to detail the crime. We consider it unlikely the magistrate in context thought Mrs. Lipson had actually identified defendant herself originally because the whole first paragraph sets out the investigative process by which defendant was linked by fingerprint to the crime. Moreover, even if the affidavit does misrepresent that Mrs. Lipson identified defendant, if this misrepresentation is excised, the fingerprint match alone supplies probable cause for defendant’s arrest. Finally, defendant asserts that Officer Parker knew that defendant had worked as a yard man for Mrs. Lipson, which could account for the fingerprint on the metal screen at the point of entry, and that this material omission should be added to the affidavit’s facts to negate probable cause. However, the record clearly shows that Officer Parker did not learn of defendant’s minimal work for the Lipsons done over three years prior to the burglary until weeks after the arrest, and, in any case, both sides’ expert testimony agreed the latent fingerprint could not have been over a month old. Thus, the absence of this fact from the affidavit was neither an omission nor material.

In sum, the affidavit recited sufficient facts to establish probable cause for the issuance of the arrest warrant. Hence, the trial judge did not err in denying defendant’s motion to suppress.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in overruling his objection to the state’s possible use of defendant’s additional criminal record not included in the state’s original discovery response.

On November 12, 1981, defendant filed a motion for discovery which included a request for a copy of any record of defendant’s arrests and convictions. The state responded on November 18, 1981 with a copy showing two prior charges. On March 16, 1982, after the selection of the jury the previous day but before any witnesses were sworn, the district attorney tendered defendant a copy of his rap sheet which he had just received. It apparently listed additional arrests. Defendant objected to the state’s later use for impeachment of any convictions not listed by the state in its original discovery response. The trial judge overruled the objection, finding no bad faith by the state and noting further that defendant had mentioned the possible use of prior convictions for impeachment of defendant during voir dire examination. Defendant did not take the stand; thus, his criminal record was never presented to the jury.

Upon motion of defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody. La.Code Crim.P. art. 717. The duty to disclose is a continuing one. La.Code Crim.P. art. 729.-3. Where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. However, there is no duty on the part of the state to disclose information which it does not possess. Therefore, exclusion of evidence is a sanction which is not available where the state has promptly informed defendant of the receipt of additional evidence, even though the new matter is uncovered at an inopportune time for the defense. State v. Alpine, 404 So.2d 213 (La.1981); State v. Fisher, 380 So.2d 1340 (La.1980). Moreover, the failure of the state to comply with the discovery procedure will not automatically command reversal. State v. Ray, 423 So.2d 1116 (La. 1982). The defendant must show prejudice before this court will reverse his conviction. State v. James, 396 So.2d 1281 (La.1981).

In the instant case, the district attorney supplied defendant with the “more lengthy” rap sheet promptly upon receipt. Moreover, during voir dire, defendant had mentioned the possible use of prior convictions for impeachment purposes. Under the circumstances, we consider that the state substantially complied with La.Code Crim.P. arts. 717 and 729.3. In addition, defendant suffered no prejudice. Hence, the trial judge did not abuse his discretion in overruling defendant’s objection.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in refusing to grant him a recess so that he could prepare his case in light of exculpatory evidence disclosed to him during trial.

Defendant requested in his discovery motion (filed on November 12,1981) disclosure of all exculpatory evidence in the district attorney’s possession, custody, control or knowledge. The state responded that it had none other than the “anonymous phone call which led to the fingerprint analysis and match.” On March 11, 1982, the prosecutor learned that the car keys taken in the burglary had been recovered and so informed defendant that day, also stating that the state would not use them at trial. However, Ashley Lipson’s statement during the suppression hearing on March 16 that Officer Parker had just returned the keys to him led to a later inquiry of Officer Parker by the prosecutor. He only then' learned that Officer Parker had obtained the keys on October 30, 1981 from Irving Johnson, a confidential informant who had come in to file a simple battery charge against defendant. Johnson had also given a statement then that he was involved among other things with defendant in this burglary and that defendant was the person who had entered the Lipson home.

The prosecutor promptly informed defendant of this information in chambers on the morning of March 18, the fourth day of trial. Defendant moved for a mistrial. After a hearing on this motion, it was learned that Johnson already had been subpoenaed by defendant and was in fact present. When the trial judge denied this motion, defendant then requested a recess from Thursday noon until Monday. The trial judge offered defendant a recess of several hours and asked defendant to articulate the extent of his asserted reevaluation of defense strategy mandated by this revelation. After further discussion in which defendant declined any recess shorter than overnight, the trial judge denied the motion. Following the lunch recess, defendant elicited from Officer Parker on cross-examination before the jury that Irving Johnson had given him the Lipsons’ keys on October 30, 1981 and made a statement implicating himself and defendant in the Lipson burglary after a fight with defendant, but that Johnson had never been charged.

This court has noted that the late disclosure as well as the nondisclosure of exculpatory evidence can so prejudice a defendant that he is deprived of his constitutional right to a fair trial. State v. Landry, 388 So.2d 699 (La.1980). A recess is one of a wide range of sanctions available if the trial judge believes that late discovery deprived defendant of the opportunity to effectively present favorable evidence to the trier of fact. State v. Arnaud, 412 So.2d 1013 (La.1982); State v. Roussel, 381 So.2d 796 (La.1980). The decision to grant or deny a recess is within the sound discretion of the trial judge and will not be overturned on appellate review absent a clear abuse of discretion. State v. Warren, 437 So.2d 836 (La.1983); State v. Robertson, 358 So.2d 931 (La.1978).

In the instant case, it is doubtful that the recovery of the car keys was exculpatory evidence when considered in the context of Johnson’s statement that he participated in the burglary with defendant whom he named as the intruder. Even if some exculpatory value could be attributed to this evidence, defendant brought out the information fully on cross-examination of Officer Parker. In addition, Johnson was present and available to be called as a witness. Under the circumstances, we do not consider that the late disclosure of the evidence in question prejudiced defendant. Clearly, he was not deprived of a fair trial. Hence, the trial judge did not abuse his discretion in denying a recess.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in permitting the state to enlarge upon the substance of defendant’s inculpatory statement as supplied to defendant in response to his pretrial motion for discovery.

Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer. La.Code Crim.P. art. 716(C).

The state responded that defendant made the following statement on November 5, 1981 to Officers Danny Parker and Gary Smith:

He stated he did not break into the residence, but he did remove the screen and Reggie Smith went inside and took some items. He stated he had been in one other residence but couldn’t remember where.

The state and defendant agreed before trial that the reference to another burglary would not be mentioned.

At trial, Officer Parker was asked if the defendant after his arrest had voluntarily answered questions concerning the burglary at the Lipson residence on December 24, 1980. Officer Parker replied that the defendant had stated that “he had been at the address on that date.” Defendant interrupted, objecting that the inclusion of the words “on that date” impermissibly expanded the account beyond the ambit of the discovery response. Outside the presence of the jury, the trial judge overruled the objection, holding that under a common sense interpretation the state’s discovery response revealed that the defendant meant his statement to relate to the particular crime for which he was being questioned.

We agree. The record shows that the testimony of Officers Parker and Smith concerning defendant’s inculpatory statement followed the substance of the statement as provided to defendant in the state's discovery response. Therefore, the trial judge did not err in overruling defendant’s objection.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in imposing an excessive sentence.

The defendant was sentenced to serve twenty years at hard labor. The maximum penalty that defendant faced was imprisonment for thirty years at hard labor. At the sentencing hearing, the trial judge considered evidence of defendant’s personal history and the nature of his crime. Defendant, then age twenty-one, had two pri- or convictions, one being a juvenile shoplifting offense. The other was a plea bargained conviction for attempted misdemeanor theft in October 1979 resulting from an unsuccessful attempt by defendant and a partner to break into an occupied house. At the time of this crime, defendant was on probation following a two-year suspended sentence for that prior conviction. The trial judge also considered that the victim Gussie Lipson was a very frail sixty-one year old woman whom defendant knew normally resided alone in that house. The trial judge concluded it was likely that defendant would commit another crime if given probationary treatment.

La. Const, art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive in the absence of a manifest abuse of the trial judge’s, wide sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979). The penalty imposed must be so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Under the circumstances, we are unable to say that the trial judge abused his discretion in sentencing defendant to twenty years at hard labor. We do not consider the penalty imposed so disproportionate to the crime committed as to shock our sense of justice. Hence, we do not find defendant’s sentence excessive.

Assignment of Error No. 7 is without merit.

DECREE

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

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2 and 4. Hence, we consider them to have been abandoned. State v. Carlisle, 315 So.2d 675 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).