author: EDWARDS, Judge.

text:
    Hazel Wall McCURLEY v. James Thomas WALL, Estelle Wall Morris, John Lee “Goober” Wall, Hampton “Hamp” Wall, and Benjamin Ray Wall, through his children and heirs at law: James Robert Wall and Mrs. Bobby Wall Graham. SUCCESSION OF Mary Jane Lee WALL, John Thomas (Nin) Wall, Robert Piney Wall, Lonzo Wall and Breed Wall.
    Nos. 15112, 15113.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Roy K. Burns, Jr., Covington, for Hazel Wall McCurley.
    Charles B.W. Palmer, Amite, for James Thomas Wall, et al.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On January 27, 1984, the Louisiana Supreme Court granted writs and remanded the above matter to this court for consideration of issues unresolved in the previous appeal.

In 1948, J.T. Wall and his wife Mary Jane Wall sold 124 acres of community property to Hazel Wall, one of their sixteen children. J.T. died in 1965; Mary Jane died in 1976. In 1977 five of the nine surviving children filed a notice of lis pendens on the property and opened the succession of their parents. Hazel Wall, now Hazel Wall McCurley, filed a suit to remove the lis pendens. The same five heirs reconvened for collation of the 124 acres on the ground that the 1948 sale was actually a disguised donation.

Finding in favor of the plaintiffs-in-recon-vention, the trial court ordered the property collated. Hazel appealed, assigning three errors to the judgment, and filed an exception of prescription to the collation action in the appellate court. This court remanded the case for a hearing on the exception. The trial court sustained the exception, since ten years had lapsed from the date of the father’s death to the filing of the reconventional demand.

On appeal, we affirmed, but did not address the issues relating to the original three assignments of error. McCurley v. Wall, 440 So.2d 780 (La.App. 1st Cir.1983). Contending this was error, McCurley sought writs from the Supreme Court.

Ruling that only the action for collation of the father’s one-half of the property had prescribed, the Supreme Court granted the writ and remanded the case to us for an opinion on the issues relating to the mother’s half. McCurley v. Wall, 444 So.2d 1216 (La.1984).

McCurley’s three assignments of error to the original trial court judgment granting the defendants’ reconventional demand are summarized as follows:

1. The trial court erred in overruling McCurley’s exception of failure to join an indispensable party since three of the surviving children were not made parties to the defendants’ reconventional demand for collation.
2. The trial court erred in finding that the 1948 sale was a disguised donation.
3. The trial court erred in finding two previous 1943 sales of the same property from Mary Jane, the mother, to Hazel to be disguised donations.

Indispensable parties to an action are those whose interest in the subject matter are so interrelated that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action. LSA-C.C.P. art. 641. It is fairly well-settled in this and other circuits that when forced heirs seek to set aside the sale of lands by their ancestor as a simulation, or a disguised donation, all such heirs are indispensable parties within the meaning of Article 641 and must be joined in the action. Edmonson v. Abell, 423 So.2d 100 (La.App. 1st Cir.1982); Oby v. Flanagan, 356 So.2d 1047 (La.App. 1st Cir.1977); Succession of Terral, 301 So.2d 754 (La.App. 2nd Cir.1974).

Of the nine surviving children, three of them — Paula Wall Piekert, Mary Wall Bas-comb and Zella Belle (Peggy) Wall Duke— though listed in the original judgment granting collation, were never made parties to the defendants’ reconventional demand. As indispensable parties under Article 641, they could not be represented in the action by the five other heirs, and no complete and equitable adjudication of this controversy can be made without their joinder. See, Succession of Terral, 301 So.2d 754 (La.App. 2nd Cir.1974). We must therefore remand this ease to the trial court for joinder of those indispensable parties and retrial of those issues relating to the mother’s half interest in the property. Edmonson v. Abell, supra; Guice v. Modica, 337 So.2d 302 (La.App. 2nd Cir.1976).

Because of the above decision, we need not discuss appellant’s remaining assignments of error.

For the foregoing reasons, the judgment of the trial court is reversed and the case remanded for joinder of all indispensable parties and retrial. Costs are assessed against the appellees.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Murry S. LUCKY, et al.
    No. 83 KA 1244.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      J. Kevin McNary, Asst. Dist. Atty., Cov-ington, for plaintiff-appellee.
    Salvador J. Liberto, Jr., Covington, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Murray Stephen Lucky, was charged with an armed robbery which occurred on November 4, 1980, in violation of La.R.S. 14:64. He pled not guilty, and after a jury trial, was found guilty as charged. He was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. He appeals his conviction and sentence, alleging ten assignments of error as follows:

1. The Court erred in denying the Motion to Suppress the identification.
2. The Court erred in finding probable cause for the arrest of defendant.
3. The Court erred in not declaring a mistrial when witness Cook referred to the defendant as having been a suspect in previous burglaries or robberies.
4. The Court erred in refusing to permit the defense counsel to view the contents of a file from which the state’s witness used material to refresh his memory.
5. The Court erred in admitting into evidence exhibits at the close of State’s case in chief.
6. The Court erred in denying a motion for a directed verdict of acquittal.
7. The Court erred in not compelling the state to produce the composite drawing made at the direction of Mary Cittandino.
8. The Court erred in not granting a mistrial or even admonishing the jury to disregard statements made by the state that defense counsel would tell the people of Mississippi that all the people in Louisiana were stupid if they were to find the defendant not guilty.
9. The Court erred in denying the jury’s request to view the transcript of a preliminary motion that had been admitted into evidence.
10.Because of error patent on the face of the record, the conviction should be reversed.

Assignment of error number 6 was withdrawn by defendant. Assignment of error number 10 was a request for a patent error check. No errors patent on the face of the record were found.

FACTS

On November 4, 1980 two men committed an armed robbery at the G & W Store in Slidell, Louisiana. The owner, James Wingerter, had just entered the store through the back door when he heard someone following him. As he turned around he fell down in the storeroom and saw a man holding a gun. This man told him to roll over and continue to lie on the floor. An employee, Mary Cittandino, was also in the store, preparing to close for the day. She saw the two men come through the back door and point a gun at the owner. One of the men forced her into the storeroom and told her to lie down.

Although in the next room, the owner and employee could hear the robbers breaking the locks on the cabinets containing narcotics. The robbers came back into the storeroom, tied the victims up with adhesive tape, and left. The victims were able to free themselves and call the police. They discovered that the robbers had broken into the narcotics cabinets and taken the drugs inside. A garbage can was also missing and apparently was used by the robbers to carry the drugs out. The robbers fled in the owner’s truck, which was later found by the police.

A few days after the robbery, officers in Gulfport, Mississippi were told by a confidential informant that Steve Lucky and another man, Steve Touart, robbed a pharmacy in Louisiana. The Mississippi State Police also received a call from an anonymous person who said that a plastic garbage bag containing drugs could be found on a wooded path near an elementary school in Biloxi. After recovering the pills the Mississippi authorities contacted the Slidell police, who confirmed that G & W Drugs Store had been robbed.

After receiving this information, the Mississippi police attempted to put together a photographic line up. They did not have a picture of defendant on file, but obtained a 1974 yearbook from Gulfport High School, which contained defendant’s picture. Phillip Ladner, an investigator with the Gulf-port police, and Lionel Hicks and Bernell Lawrence of Slidell police department, met with Wingerter to obtain an identification of the robbers. Wingerter, who only saw one of the robbers, identified Touart from a photographic lineup display but was not shown the yearbook containing defendant’s picture.

The police contacted the employee who identified defendant as one of the robbers. This identification was not from a photographic lineup, but rather, from the photos in the yearbook.

The employee also testified that, after the robbery, she gave police a description of defendant and a “composite drawing” was made. At the Motion to Suppress hearing defense counsel sought to have this drawing produced. Neither the prosecutor nor any of the officers who testified were aware of a photograph or a drawing made from this description.

A fingerprint expert testified that defendant’s fingerprints were found on the pill bottles recovered in Mississippi. Defendant contends that another man who resembled him committed the robbery with Touart. Lucky testified that these two men approached him about buying some of the drugs. He stated that, although he looked at and handled some of the bottles, he did not buy any drugs.

After defendant was arrested he filed Motions for a preliminary examination and to suppress the identification. After a hearing, the trial judge ruled there was probable cause and denied the motion to suppress.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends the trial court erred in denying the motion to suppress the identification. He argues that the identification procedure was so impermissively suggestive that it violates due process.

A defendant attempting to suppress an identification must prove (1) that the identification was “suggestive” and (2) that there was a likelihood of misidentification in the identification procedure. State v. Burns, 441 So.2d 1294 (La.App. 1st Cir. 1983); writ denied 444 So.2d 1242 (La.1984). The defendant has the burden of proving the ground of the motion to suppress, i.e. the suggestiveness of the procedure, La.Code Crim.P. art. 703(D), and, in reviewing the procedure, the trial court must look at the totality of the circumstances surrounding the identification. State v. Nathan, 444 So.2d 231 (La.App. 1st Cir.1983), writ denied 445 So.2d 1232 (La.1984). A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. State v. Nathan, supra.

In the present case, the procedure was not suggestive. Mary Cittandino, an employee and victim of the robbery, was given a high school yearbook containing defendant’s picture and asked if she could identify the robbers. The record indicates there was contradictory testimony as to the manner in which she was handed the yearbook. The officers stated the yearbook was closed when given to her and that no suggestion was made as to the pages she should examine. The witness stated that she was asked to look through specific pages in the yearbook. She did state, however, that there was no suggestion as to which person to pick out, and she did not know defendant’s name before she identified him.

We find no suggestiveness in the officers’ request that the victim look only through specific pages. She was not told which picture to pick out. Although we find that the use of pictures in a high school yearbook is an unorthodox method of conducting a photographic lineup display, we do not find the procedure was unduly suggestive.

Even if the identification were suggestive, this alone would not indicate a violation of the defendant’s right to due process. It is the likelihood of misidentifi-cation which violates due process, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, 353 So.2d 1005 (La.1977), writ denied 367 So.2d 864 (La.1979).

Furthermore, if only one person in the lineup has the characteristics of the perpetrator, the witness’ attention will be focused on that person. State v. Davis, 385 So.2d 193 (La.1980). Although strict identity of physical characteristics among the persons depicted in the photo array is not required, State v. Smith, 430 So.2d 31 (La.1983), a lineup will be found unduly suggestive if a sufficient resemblance of characteristics and features of the persons in the lineup, e.g. built, hair, facial hair and complexion, does not exist to reasonably test the identification. State v. Davis, supra.

There were over 300 black and white photographs in the junior class section of the yearbook. Of this number approximately 135 were Caucasian males and of that number at least five had similar hair length, complexion and wore glasses. Although a few of these five appear to have hair color lighter than that of defendant, we think there is a sufficient resemblance of characteristics in at least these five photographs to reasonably test the identification. Moreover, defendant’s looks have not changed significantly since the time the yearbook picture was taken as evidenced from the recent mug shot of him.

Furthermore, a suggestive identification will not result in reversal of a conviction if it is demonstrated that the identification was reliable. The factors to be used in determining reliability include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the description, (4) the witness’ level of certainty, and (5) the time between the crime and the confrontation. Manson v. Brathwaite, supra; State v. Nathan, supra.

Applying the Manson analysis to the present case we find that the out-of-court identification was reliable and that there was no misidentification. The witness’s attention was focused on defendant in the well lit store from the time he entered until he forced her into the storeroom. Furthermore, the identification was made about three days after the robbery. This identification was reliable and did not violate due process.

Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends the trial court erred in finding probable cause at the preliminary examination. He argues that there was no probable cause for the arrest of defendant.

The question of probable cause for defendant’s pretrial imprisonment is now moot since defendant has been tried and convicted. State v. Sweeney, 443 So.2d 522 (La.1983).

In any event, we find ample evidence to support probable cause for the arrest. Drugs stolen in the robbery were found in Biloxi area. A confidential informant, who had previously given reliable information, informed the Mississippi police that defendant committed the robbery. Furthermore, one of the victims positively identified defendant as one of the robbers.

Thus, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the trial court erred in not declaring a mistrial when Officer Cook, a state witness, referred to “other crimes” of the defendant. The testimony of Officer Cook that defendant cites as referring to other crimes evidence is as follows:

Q. After you recovered these objects, Officer what other participation did you have in this investigation?
A. Investigator Ladner provided me with two names of suspects of possible burglaries or robberies that had occurred earlier.
Q. What names were they?
A. Murry Stephen Lucky and Stephen Touart.

La.Code Crim.P. art. 841 states that an irregularity cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.Code Crim.P. art. 770 mandates that a mistrial shall be ordered upon motion of the defendant. At no time during the trial did defendant object to the testimony at issue, nor did he move for a mistrial or ask for an admonition on that basis. Defendant, therefore, has waived any such error. State v. Page, 431 So.2d 101 (La.App. 1st Cir.1983).

Even if defendant had requested a mistrial, we find that the declaration of a mistrial was not warranted. La. Code Crim. P. art. 770 mandates a mistrial when a reference to other crimes is made by the judge, district attorney, or a court official. A police officer, however, is not a court official within the meaning of La. Code Crim. P. art. 770; and, therefore a mistrial is not required even if a policeman in the course of testifying refers to another crime. State v. Nathan, supra.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends the trial court erred in refusing counsel’s request to view contents of a file from which Officer Cook, a state witness, used material to refresh his memory.

La.R.S. 15:279 provides:

A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner’s investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.

A trial judge should require production of a police report for defendant’s inspection when (1) an officer’s testimony at trial is from his report rather than his memory, that is, if the testimony is the product of past recollection recorded rather than present memory refreshed, State v. Tharp, 284 So.2d 536 (La.1973); and (2) when a witness has referred to his report or notes, while he is on the stand, even though presumably only to refresh his memory while testifying. State v. Franks, 363 So.2d 518 (La.1978).

In the instant case, the officer did not use his entire file to refresh his memory while he was testifying. The officer testified that he reviewed his file prior to taking the witness stand. He did use one page of his file, a copy of the yearbook page containing defendant’s picture, which defense counsel viewed. It is apparent from the record that the officer was testifying from his memory and not from notes. He testified to that which he actually knew and remembered and not to what he had recorded earlier.

Thus, the trial judge did not err in refusing defendant’s request to see the entire file.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends that trial court erred in admitting into evidence, state’s exhibit number 3, which consisted of a plastic bag containing labels. Although defendant does not specifically state the legal basis for his argument, we assume he is arguing that a sufficient foundation and chain of custody was not established.

Demonstrative evidence can be admitted into evidence only after it is shown that, more probable than not, the evidence is connected to the case. That foundation can be laid by establishing a chain of custody of the evidence or by visual identification. Once that foundation is established, the weight to be given the evidence is a question for the jury. State v. Robertson, 441 So.2d 1281 (La.App. 1st Cir. 1983), writ denied 446 So.2d 314 (La.1984).

A review of the record shows that both a chain of custody and a visual identification of the labels were made, establishing a more-probable-than-not connection between the labels and the crime. Officers testified that the labels were found jumbled together with pill bottles in a plastic bag found in a wooded area in Biloxi. Testimony also showed that these exhibits contained defendant’s fingerprints.

Thus, the trial court did not err in admitting this evidence.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 7

Defendant contends that the trial court erred in failing to compel the state to produce a composite drawing of defendant made from the description of a witness. A review of the record shows that the witness testified a drawing was made from her description. She did not say, however, nor did the officers indicate that a permanent copy or photograph was made from this drawing.

In addition, the trial judge did ask the state if it had the drawing, and ordered its production for defense counsel if the drawing existed. The prosecutor stated that the officer in charge of the Slidell investigation was unaware of the drawing.

Thus, we find that there was no proof that a drawing was in the possession, custody or control of the state. Nor is there any proof that this drawing existed at all.

Furthermore, contrary to defendant’s argument the trial judge did order the state to produce the drawing. Defendant’s counsel also brought to the jury’s attention the absence of the drawing that the witness said was made. Since the State could not produce a drawing which did not exist, we find no error.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 8

Defendant contends the trial court erred in not granting a mistrial or admonishing the jury to disregard statements made by the prosecutor in his closing argument.

During the state’s rebuttal closing argument the prosecutor stated:

And we cannot allow druggists to be continually robbed and murdered in their drug stores in Louisiana. I don’t know how they think in Mississippi. And Mr. McGuire may go back there and, if you find this man not guilty, tell everyone how stupid everybody is in Louisiana or—

Defense counsel objected and the trial court sustained the objection. Defense counsel did not move for a mistrial nor did he ask for an admonition. Defendant contends that the trial court should have considered the timely objection as a request for a mistrial. We disagree.

If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial. State v. Michel, 422 So.2d 1115 (La.1982).

Furthermore, before a verdict is set aside on the ground of improper argument, we must be convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Michel, supra. Although the prosecutor’s remarks herein were improper, we do not find that the jury was influenced by them, or that they contributed to the verdict. Thus, the trial judge did not err in not granting a mistrial.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 9

Defendant contends that the trial court erred in denying the jury’s request during deliberations to view the transcript of a witness’ testimony at a prior hearing which had been admitted into evidence.

Prior to resting his case, defendant offered into evidence a copy of the transcript of the testimony of a state witness, Mary Cittandino, from the hearing on the motion to suppress. There was no objection from the state, and the trial judge admitted this evidence. We note, however, that the record does not indicate that this testimony was read to the jury or that the jury reviewed the transcript on its own.

About two hours after the jury had begun deliberations, it requested that it be allowed to see the transcript. The trial court denied this request.

La. Code Crim. P. art. 793 states:

A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

Thus, the jury was prohibited from having access to this transcript after it retired. We also note that since defendant, offered this evidence as his exhibit, it was defense counsel’s duty to read the transcript of request that it be read to the jury.

Furthermore, we find that a review of the trial transcript shows that defense counsel used this witness’ prior testimony in his attempt to impeach her. The jury would not have received any more information by reading the transcript than it heard on cross examination during the trial. Therefore, the trial court did not err in denying the jury’s request to review the transcript after deliberations began.

This assignment of error is without merit.

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

AFFIRMED.


text:
    STATE of Louisiana v. Reginald Ray HANDLEY.
    No. 84 KA 0050.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Denied Oct. 5, 1984.

      Ossie Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Reginald Ray Handley, was indicted by a grand jury on June 7,1973, of one count of aggravated rape in violation of La.R.S. 14:42. On October 5, 1973, defendant entered a plea of guilty without capital punishment and was thereafter sentenced to be confined at hard labor for the period of his natural life.

Following numerous post-conviction applications, defendant’s guilty plea was ordered vacated and he was granted a trial on the merits. On November 8, 1983, a jury found defendant guilty as charged. The court sentenced defendant to be confined at hard labor for the period of his natural life. It is from this conviction that defendant brings an appeal alleging fourteen assignments of error:

1. The court erred in denying defense challenge for cause of a potential juror.
2. The court erred by allowing the prosecution to use peremptory challenges.
3. The court erred by denying defense motion which sought to require the State of Louisiana to formally plea bargain with and sentence defendant proportionally with co-defendants and/or to enforce the original plea agreement.
4. The court erred by overruling defense objection to a witness’ answer.
5. The court erred by allowing hearsay testimony by a police officer.
6. The court erred by overruling defense objection to a police officer’s testimony which included legal conclusions and prejudicial characterizations.
7. The court erred in denying defense motion to suppress confession.
8. The court erred by overruling defense objections to testimony regarding a previous trial.
9. The court erred by allowing the prosecution to introduce into evidence two photographs over defense objection.
10. The court erred by overruling defense objection to a witness being allowed to testify.
11. The court erred by overruling defense objection to requiring a witness to testify.
12. The court erred by overruling defense objection to a witness being allowed to testify.
13. The court erred by allowing the prosecutor to make prejudicial comments in closing argument.
14. The court erred by accepting a verdict contrary to the law and/or evidence.

Assignments of error one, eight, nine, ten, eleven and twelve were not briefed and are thereby considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

On the evening of April 3, 1973, a seventy-two year old woman was beaten, robbed of various valuables including her automobile, and twice raped at gunpoint in her Baton Rouge residence.

On April 25, 1973, defendant, then sixteen years old, was implicated as one of the three perpetrators when his uncle, with whom he resided, contacted the Baton Rouge City Police to report that defendant had been bringing various items of property into their home. Concerned about the origin of that property, defendant’s uncle authorized the police to view the items.

Pursuant to that authorization, police searched defendant’s home and found the victim’s watch stolen the night of April 3, 1973, among the property stored under defendant’s mattress.

In addition, the victim’s car keys were found on defendant’s person when he was brought to the police station for questioning on April 26, 1973. Later that same day, defendant confessed to his involvement in the instant crime.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that it is unconstitutional for the state to be allowed the use of peremptory challenges during jury selection as such use by the state infringes on his constitutional right to peremptorily challenge prospective jurors. Defendant does not allege facts supporting particular abuses of the prosecutor’s exercise of the state’s peremptory challenges in the instant case; but rather, attacks as unconstitutional the state’s right to discretionary exercise of peremptory challenges.

Defendant argues that his right to peremptory challenges is not only superior but pre-empts the field because it is constitutionally guaranteed by La. Const, art. I, § 17 (1974) while the state’s authorization, found at La.Code Crim.P. art. 799, is only statutory in origin.

A general standard of judicial interpretation of a state constitution is that, unlike the federal constitution, a state charter’s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. In the exercise of legislative power of the state, the legislature may exact any legislation that the state constitution does not prohibit. Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977).

In State v. Sharp, 174 La. 860, 141 So. 859 (1932), our courts found then La.R.S. 15:354 constitutional despite the failure of our constitution of 1921 to expressly address the state’s right to challenge jurors peremptorily. The state constitution merely, then as now, safeguards the accused’s right to peremptorily challenge as many prospective jurors as may be fixed by legislative enactment.

Article 799 is neither in conflict with nor an infringement on the grant of La. Const, art. I, § 17 (1974).

We conclude that the trial court’s having allowed the state to use a number of peremptory challenges in accordance with the provisions of article 799 was not error.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that his previous plea bargain should have been enforced.

Defendant argues that the State of Louisiana should have been ordered by the federal district court, when granting his writ of habeas corpus, to specifically perform the original plea bargain in accordance with defendant’s understanding of that bargain rather than having been offered the further choice of vacating his guilty plea and bringing him to trial.

Notwithstanding that this Court is not the proper forum for challenging the form and/or substance of a federal district court order, the choice offered the state in the instant case is in keeping with the United States Supreme Court directive in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), a case involving review of an unkept plea bargain. Therein the court provided:

The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea ... or whether, in the view of the state court, the circumstances require granting [to petitioner] ... the opportunity to withdraw his plea of guilty. (92 S.Ct. 499)

Moreover, there is considerable' precedent in the State of Louisiana for permitting a constitutionally infirm guilty plea to be withdrawn after sentencing either by means of appeal or post conviction relief. State v. Galliano, 396 So.2d 1288 (La.1981); State v. Banks, 383 So.2d 1009 (La. 1980); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).

In brief, defendant further argues that subjecting him to the instant trial on the merits constituted double jeopardy because he was sentenced twice for the same crime.

Clearly, defendant’s allegation of double jeopardy has no merit. Defendant’s federal habeas corpus petition and supporting memorandum realleged the grounds he presented in his state post conviction application—specifically praying that his original plea be vacated and that his original sentence be set aside.

Double jeopardy does not attach when a defendant himself moves to set aside his conviction. La. Const, art. I, § 15 (1974); La.Code Crim.P. art. 591; State v. Smith, 406 So.2d 1314, 1315 (La.1981).

Accordingly, we find no merit in the arguments urged by means of this assignment of error.

ASSIGNMENTS OF ERROR NUMBER 4 AND 6

Defendant alleges that a state witness was allowed to give improper testimony. The complaint refers to a colloquy on direct examination between the state and its witness, Sergeant Cantu.

Q. Okay, what—what did you do then upon receiving this information?
A. Well, we quickly secured the scene and contacted the detective division, the District Attorney’s office, our supervisor and the coroner’s office, which is our procedure when we establish that a heinous crime has been committed.
Q. Okay, uh,
Mr. Jackson: I didn’t get that last part.
Q. When we have established that a heinous crime has been committed.
Mr. Jackson: I’m going to object again to the officer stating conclusions or adding adjectives to the matter.

Generally, a witness unless qualified as an expert can not properly testify as to any impression or opinion that he may have. La.R.S. 15:463. He is not, however, prohibited from testifying as to the natural inferences drawn from facts he personally observed. State v. Haarala, 398 So.2d 1093 (La.1981).

The witness had previously stated the facts upon which the inference (that a heinous crime had been committed) was based. Having personally observed the physical condition of the elderly victim and the condition of her home, in our view, the witness as an experienced police officer had sufficient experience and knowledge of violent offenses against the person to express such an opinion.

To the extent that the witness’ answer was an improper conclusion, it was not prejudicial error. Unsolicited and unresponsive testimony is not chargeable to the state to provide a ground for the reversal of a conviction. State v. Jones, 332 So.2d 466 (La.1976).

ASSIGNMENT OF ERROR NUMBER 5

The defendant contends that the trial court erred in admitting the testimony of Sergeant Cantu as it constituted objectionable hearsay.

In response to prosecutor’s series of questions designed to elicit a response as to the complaints, offense — wise, made by the victim to the investigating officer, Sergeant Cantu responded:

She said she had been beaten several times, hit with a pistol over the head, over the eye, that she was taken in the back room by these three subjects and was raped at gunpoint and during the rape she was also hit again.

However, the defense counsel’s hearsay objection was sustained with the court’s agreeing to caution the jury that the witness' answer was not to be considered as substantive evidence. Although we question the appropriateness of the trial court’s ruling, in view of the long recognized exception to the hearsay rule allowing admission of the early complaints of rape victims, defendant’s specification of error is without merit.

ASSIGNMENT OF ERROR NUMBER 7

The defendant alleges, in this specification of error, that the court erred when it denied his motion to suppress a confession given by then juvenile, Reginald Hand-ley, on the day of his arrest.

Defendant urges that the more stringent three-prong test to determine voluntariness of a juvenile confession adopted by the Louisiana Supreme Court in State in the Interest of Dino, 359 So.2d 586 (La.1978), rather than the “totality of circumstances” test, should have been applied to the instant determination. The State does not contend that the Dino standards were applied herein.

In State v. Collum, 365 So.2d 1272 (La.1978), cert. den. 444 U.S. 882, 100 S.Ct. 171, 62 L.Ed.2d 111 (1979), the court held that Dino would affect only those cases in which trial began after June 15, 1978, the effective date of the Dino decision. In so holding, the court reasoned that in its impact on the law and police custodial interrogation, Dino may be likened to the United States Supreme Court decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the court made giving of certain warnings of rights an absolute prerequisite to the admissibility of an in-custody confession.

In finding that the Dino rule does not go to the very integrity of the fact finding process, the court relied on criteria formulated by the United States Supreme Court in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), wherein the retroactivity of the Miranda Rule, was limited to cases in which trial had begun prior to Miranda.

In Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), the United States Supreme Court was called upon to decide whether Miranda standards for determining the admissibility of in-custody statements apply to post-Miranda retrials of cases originally tried prior to that decision. The court decided that Miranda does not apply to any retrial of a defendant whose first trial commenced prior to the effective date of that decision.

In the instant case, we are called upon to make a comparable decision with respect to Dino. In State v. Collum, supra, the court did not consider the applicability of Dino to retrials. The issue simply was not presented.

In State v. Collum, supra, after considering the need to avoid unreasonably disrupting the administration of our criminal laws, the Louisiana Supreme Court selected the commencement of the trial as determinative. The point of reliance is critical because it determines the impact that newly articulated standards will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed.

This same concern for justifiable reliance of law enforcement officials upon pre-Dino standards militates against applying Dino to retrials thereby making an exception for defendant simply because he was afforded a post-Dmo retrial for reasons wholly unrelated to admissibility of his confession. Such an application would place a much heavier burden upon prosecutors to compensate for the inadmissibility of incriminating statements obtained pursuant to practices not previously proscribed.

Thus, because of the increased evidentia-ry burden that would be placed unreasonably upon law enforcement officials by insisting that Dino be applied to retrials, and for all the reasons articulated by the Louisiana Supreme Court in State v. Collum, supra, for not applying Dino retroactively, we hold that Dino does not apply to defendant’s confession, taken on April 26, 1973, and offered into evidence at the instant trial which commenced on November 8, 1983.

Although defendant testified that he did not confess to the crime, his testimony was refuted by the testimony of several police officers. All of the circumstances support a finding of a free and voluntary confession. Defendant was no stranger to police procedures or contact with law enforcement authorities, having been arrested on suspicion of armed robbery some two weeks prior to the instant arrest. He was arrested in his girlfriend’s presence, some two blocks from his home. After defendant was given his Miranda rights and after arriving at the police station, he gave a brief oral confession. The initial interrogation lasted about fifteen minutes. Thereafter, he was placed in a cell to rest for the night.

The following morning defendant appeared in court and conversed with an assistant public defender. Defendant was again advised of his rights, but chose to give a more detailed taped confession to law enforcement officers.

The trial judge’s ruling on the vol-untariness of defendant’s confession is assigned great weight. State v. Ross, 343 So.2d 722 (La.1977).

Accordingly, in view of our holding with respect to the inapplicability of Dino to the instant case and the trial court’s determination that the confession was otherwise free and voluntary, we find that the issue of admissibility was properly resolved by the trial court.

ASSIGNMENT OF ERROR NUMBER 13

The defendant also alleges that the prosecutor made improper comment in his closing argument to the jury. The prosecutor made brief reference to the hearing conducted outside the presence of the jury to determine the admissibility of defendant’s confession.

In his reasons for objection, defense counsel argued that such comment defeats the purpose of conducting the hearing out of the presence of the jury. Of course, the primary purpose of trying a motion to suppress out of the presence of a jury is to obviate grounds for mistrial if the trial judge decides that the confession is inadmissible.

In the instant case, the confession was properly admitted; and the trial judge cautioned the jury that prosecutor’s argument should not be considered as evidence. Further, the jury was otherwise aware of its role in determining the weight, if any, to be given defendant’s confession when reaching a verdict. Before a verdict will be overturned on the basis of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979). We find the argument did not prejudice the defendant.

Assignment of error number thirteen lacks merit.

ASSIGNMENT OF ERROR NUMBER 14

Defendant contends that the trial court erred when it accepted a verdict contrary to the law and/or the evidence. This argument has no merit since a trial judge is not empowered with the discretion to accept or reject a verdict of the jury, unless the verdict does not comply with the form and/or procedural requirements. See La. Const. art. I, § 17 (1974) and La.Code Crim.P. arts. 809-820. State v. Oliney, 430 So.2d 1294 (La.App. 1st Cir.1983).

However, since defendant has argued sufficiency of evidence under this assignment of error, we will address that contention.

In cases where there is direct evidence or direct and circumstantial evidence, before we will reverse a guilty verdict on review, we must be convinced that no rational trier of fact could conclude that defendant’s guilt had been proven beyond a reasonable doubt, when the evidence is viewed in a light most favorable to the state. La.Code Crim.P. art. 821; State v. Buchanan, 439 So.2d 576 (La.App. 1st Cir.1983). Applying this standard to the instant case, we conclude that the evidence is sufficient and supports the conviction.

In the instant case, the defendant’s guilt was proven by both direct and circumstantial evidence. The most damaging evidence was the defendant’s confession to the crime related at trial by Detective Gil, who had taken the confession. The defendant stated that he and two companions were walking on Eugene Street when they spotted the elderly female victim sitting in her living room. The defendant, armed with a pistol, and his two companions entered the victim’s home and forced her to give them money from her piggy bank. Thereafter, the men began to search the house for more money and other items of value. One of the other men took the victim into her bedroom, beat her about the head and raped her. Thereafter, the defendant forced the victim to submit to intercourse with him also. After further ransacking the house, finding the victim’s watch and some coins, the defendant and his two companions left in the victim’s automobile, which was later found abandoned nearby.

Photographs of the victim, introduced at trial showed that the victim had suffered a beating. Photographs of the victim’s bedroom, introduced at trial, showed a bloody pillowcase on the floor and the otherwise ransacked room. Foundation for the photographs was laid by Sergeant Cantu, who testified that he arrived at the victim’s home about 10 minutes after her call to police.

The coroner, Dr. Landry, testified that his examination of the victim revealed results consistent with forced sexual intercourse. The victim had lacerations of the scalp, was in a nervous state and had a large amount of blood in her vagina, along with the presence of spermatazoa.

The victim was deceased at the time of the trial. As noted above, her watch stolen during the incident was found under defendant’s mattress and her car keys were found on defendant’s person at the time of arrest.

Thus the evidence adduced at trial corroborated in every detail the confession of the defendant. A rational trier of fact could not form a hypothesis which could conclude anything other than the defendant’s guilt. Certainly, the state met its burden of establishing defendant’s guilt beyond a, reasonable doubt.

This assignment of error is meritless.

Therefore, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant was indicted by the grand jury as a juvenile of sixteen years of age charged with a capital offense. La.R.S. 13:1570A(5).

      . On July 24, 1980, Reginald Handley filed a petition for post conviction relief in the Nineteenth Judicial District Court for the Parish of East Baton Rouge claiming that his plea of guilty had been involuntarily and unintelligently entered and that he had been denied effective assistance of counsel. Defendant's application was dismissed on July 6, 1981; writs were denied at State ex rel Handley v. Blackburn, 412 So.2d 607 (La.1982).
      Defendant thereafter filed an application for federal writ of habeas corpus (No. 82-441-B of the United States District Court for the Middle District of Louisiana) alleging the same grounds for relief.
      The federal district court found that defendant’s claim that he had been advised that after ten years and six months he would be eligible for release on parole if he pled guilty was supported by the record. When in fact, the law in effect at the time Handley pled guilty (La.R.S. 15:572) required that the governor commute a life sentence to a specific number of years before a defendant could be eligible for parole.
      Relying on Hayes v. Maggio, 699 F.2d 198 (5th Cir.1983), the federal district court granted Handley’s application for writ of habeas corpus. The State of Louisiana was ordered to grant Handley a parole hearing or to vacate his guilty plea and try him within 120 days. The latter option was chosen by the State.

      . The offense of which defendant was convicted occurred on April 3, 1973. It is well settled that a defendant is to be tried under the statute in effect at the time of the commission of the crime. The death penalty sentencing provision for aggravated rape in effect on April 3, 1973 was declared unconstitutional in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). However, from July 26, 1972 (effective date of Acts 1972, No. 502) to July 2, 1973 (effective date of Acts 1973, no. 125) La. Code Crim.P. art. 817, as amended by Acts 1972, No. 502, provided in pertinent part:
      Art. 817. Qualifying verdicts in capital and non-capital cases:
      “In a capital case the jury may qualify its verdict of guilty as follows:
      (1) With the addition of the words ‘without capital punishment,’ in which case the punishment shall be imprisonment at hard labor for life, or
      (2) With the addition of the words, 'without capital punishment or benefit of parole, probation, commutation or suspension of sentence,’ in which case the punishment shall be imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence."
      Accordingly either imprisonment at hard labor for life or imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence would have been an appropriate sentence on this guilty verdict.

      . The source of La.Code Crim.P. art. 799 is former La.R.S. 15:354; Acts 1966, No. 310 § 1. La. Const, art. I, § 17 (1974) is based in pertinent part on La. Const, art. I, § 10 (1921), the constitutional provision reviewed in State v. Sharp, 174 La. 860, 141 So. 859 (1932).

      . See, memorandum in support of application for post conviction relief at page 4. See, also, memorandum in support of federal application for writ of habeas corpus at page seven. (Vol. II).

      . When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. State v. Elzie, 351 So.2d 1174 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976). This exception is actually a special form of the res gestae or spontaneous declaration exceptions to the hearsay rule.

      . By the Dino decision, the court ruled that a confession of a person under seventeen years of age is not admissible unless the juvenile actually consulted with an attorney or an adult before waiving his right to silence; that the attorney or adult consulted was interested in the welfare of the juvenile; and if an adult other than an attorney is consulted, the adult also must be fully advised of the rights of the juvenile. Prior to the Dino decision, the "totality of circumstances” test was well accepted in Louisiana as a basis for deciding whether a juvenile had knowingly and intelligently waived his right. State v. Hills, 354 So.2d 186 (La.1977); State v. Hall, 350 So.2d 141 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

      .The three criteria formulated for deciding the retroactivity issue:
      1) the purpose of the new rule;
      2) the reliance which may have been placed upon prior decisions on the subject; and
      3) the effect on administration of justice of a retroactive application.

        State v. Collum, 365 So.2d at 1275.

      . The term retrial is used herein to refer to a subsequent trial of a defendant whose original trial for the same conduct commenced, or guilty plea which resulted in conviction was entered, prior to June 15, 1978, the day on which Dino was announced.

      . See, La.Code Crim.P. art. 703; La.Code Crim.P. art. 794, Official Revision Comment (b).

      . La.R.S. 15:438 provides:
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

      . La.R.S. 15:450 mandates that every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford. Nevertheless, in the absence of proof to the contrary, the fact that the purported statement of the accused as testified to by the investigating officer does not consist of verbatim reiteration of the conversation between them, due to the witness’ inability to recall or other valid explanation, the rights of the accused under La.R.S. 15:450 are not violated. The law does not require the production of nonexistent portions of a confession or portions which cannot be recalled. State v. Marmillion, 339 So.2d 788 (La.1976).


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Samuel STEWART, Appellant.
    No. CR83-650.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Granted Sept. 20, 1984.
    Samuel Thomas, Tallulah, for defendant-appellant.
    John F. Johnson, Asst. Dist. Atty., Harri-sonburg, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

Defendant, Samuel Stewart, was charged by bill of information with possession of marijuana, with intent to distribute, in violation of LSA-R.S. 40:966 A(l).

After trial before a jury of twelve, defendant was found guilty as charged. The defendant was sentenced to serve ten years at hard labor and pay a fine of $15,000.00, plus court costs.

Although defendant has filed a brief containing two allegations of error, he failed to file any assignments of error with the trial court. Allegations of error not embodied in a formal assignment of error and appearing for the first time in a defendant’s brief are not properly before a reviewing court. State v. Spears, 350 So.2d 603 (La.1977); LSA-C.Cr.P. Art. 844. Therefore, this case is reviewable only for errors discoverable by a mere inspection of the pleadings and proceedings, and without inspection of the evidence. LSA-C.Cr.P. Art. 920; State v. Jackson, 332 So.2d 211 (La.1976). We have fully reviewed the record for these errors and find none.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    CDT, INC., Plaintiff-Appellee, v. GREENER & SUMNER ARCHITECTS, INC., d/b/a Centre Property Management, Defendants-Appellants.
    No. 83-747.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      George Scariano, Metairie, David L. Col-vin, Gretna, for defendants-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Mark L. Riley and Virgil Elbert Wilson, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This action arises out of a May 5, 1981, contract between the defendant and Cecil Trahan. After suit was filed, the trial court granted plaintiffs motion for summary judgment. From this adverse judgment defendant has perfected this appeal.

The suit was initially filed by CDT, Inc. against Greener & Sumner Architects, Inc. d/b/a Centre Property Management, alleging that defendant was indebted to the plaintiff on a contract which the parties had entered into on May 5, 1981. The contract in question provided for the plaintiff to obtain tenants for a building which the defendant managed. In return for plaintiffs services he was to receive commissions calculated as a percentage of the rent received from the tenants. This contract was attached to the petition clearly showing that the contract was between the defendant and Cecil Trahan, the individual, not CDT, Inc., the corporation.

After the petition was filed and served upon the defendant, interrogatories and requests for admissions were filed and served upon Centre Property Management. In its original answers the defendant admitted to the existence of the agreement. It also admitted that the document attached to plaintiffs petition was in fact the contract entered into by the parties. Defendant further admitted that monies were owed under the contract and that Hover Kadane, the person who had signed the contract on behalf of Centre Property Management, was a general partner of that firm and that he was authorized to bind the firm. Finally, defendant indicated that its only defense was that it was entitled to an offset by virtue of another lawsuit it had filed against Cecil Trahan.

Thus, appellant admitted in pleadings filed in this suit the existence of a contract between the parties, compliance with the contract by the plaintiff, and nonperform-anee of defendant’s obligations under the contract.

Before trial, plaintiff filed a motion for summary judgment based on defendant’s answers to interrogatories. Defendant filed no memorandum in opposition to the motion for summary judgment but on the morning of the hearing on the motion it filed an exception of no right or cause of action based upon the ground that Cecil Trahan was not at that time a party to the lawsuit and that the petition had not alleged a contractual relationship between CDT, Inc. and Cecil Trahan.

At the April 4th hearing, defendant’s counsel argued that CDT, Inc. was not the proper party plaintiff. Taking a contra position plaintiff argued that defendant had judicially confessed the proper plaintiff and that he could now not be heard to complain that CDT, Inc. was not the proper party. On April 6th defendant filed amended answers to interrogatories and amended answers to the request for admission in which it denied the existence of a contract with CDT, Inc.

The Court began proceedings on April 8th by denying plaintiff’s motion for summary judgment on the grounds that the pleadings left in doubt the capacity in which the lawsuit was brought. The Court then suggested to plaintiff that if he chose to amend his pleadings the lawsuit could continue. Thereafter plaintiff requested permission to orally amend his petition to allege Mr. Trahan as the proper plaintiff. The Court entertained the motion and asked the defendant if he had any objections. Defendant’s reply was: “Your Hon- or, my only defense is the subject which we already addressed; namely, the offset.” No continuance was requested. The trial court then granted the motion to amend the pleadings and allow plaintiff to reurge the motion for summary judgment. As a result thereof the motion for summary judgment was granted in plaintiff’s favor. From that judgment defendant has perfected this appeal alleging the trial court committed the following errors:

(1) in allowing the plaintiff to orally amend his pleading at trial on the merits; (2) when it did not give defendants’ counsel adequate time to file an answer and to present defenses to the plaintiff’s orally amended pleadings; (3) in granting the Motion for Summary Judgment as there were material issues of fact in dispute and plaintiff was not entitled to a judgment as a matter of law; and (4) the judgment is contrary to the laws of Louisiana and it exceeds the trial court’s authority when it issued the judgment ordering the defendants to specifically perform the contract by paying money.

AMENDMENT OF THE PETITION AND DEFENSES THERETO

The law is clear that the trial court has much discretion under La.C.C.P. Arts. 1151 and 1154 to allow a party to amend his pleadings. Further, the Court of Appeal will not disturb the orderly process of the trial court in this regard unless there exists an abuse of discretion. White v. Cumis Ins. Soc., 415 So.2d 574 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 164 (La.1982); Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3rd Cir.1981).

We find the case of Aetna Casualty & Surety Company v. Braud, 327 So.2d 183 (La.App. 4th Cir.1976) to present an analogous situation and to be a proper statement of the law. In that case the plaintiff erroneously pleaded the facts of the accident which was the subject of the lawsuit. At the trial the Court pointed out the discrepancy in the pleadings and plaintiff asked leave of Court to orally amend the petition. Defendant objected to this on the basis of prejudice and asked fifteen days to meet the oral amendment. The trial court overruled the objection, allowed the amendment, and the case continued.

In affirming the trial court, the Court of Appeal pointed out:

(1) Defendant and his counsel actually knew plaintiff’s true contention; (2) The interrogatories in the record clearly set forth the facts; and (3) The parties’ trial briefs clearly showed that neither party labored under any misapprehension. Thus, the Court of Appeal held that the record failed to establish that defendant had been prevented from filing special defenses, either at trial or at the time of the amendment, nor was it established that the defendant was prejudiced by the oral amendment.

We hold that here, as in the Brand case, the defendant has failed to show that he was prejudiced or prevented from filing any defenses by the oral amendment of the pleadings. Additionally in the Braud case a request was made for a continuance. Here no such request was made. The defendant’s answer, arguments, and answers to interrogatories clearly show that defendant at no time labored under any misapprehension as to who the proper party was. It was thus in no way prejudiced and the trial court did not abuse its broad discretion in allowing the amendment.

SUMMARY JUDGMENT

Under La.C.C.P. Art. 966 summary judgment should be granted “forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.”

It is well settled that the summary judgment remedy is not a substitute for trial and is warranted only when reasonable minds must inevitably conclude from the facts before the Court that the mover is entitled to the judgment as a matter of law. Rennier v. Johnson, 410 So.2d 1149 (La.App. 3rd Cir.1981), writ denied, 412 So.2d 1115 (La.1982); Millet v. Johnson, 381 So.2d 1293 (La.App. 4th Cir.1980), writ denied, 383 So.2d 788 (La.1980).

In the case at bar the existence of the agreement as well as liability has been admitted. The defendant itself has stated that its only defense is set off by virtue of another lawsuit which Centre Property Management has pending against the plaintiff. That suit is not presently before us and although we are not fully advised of the facts and circumstances involved therein, there is evidence in the record that Cecil Trahan denies liability in that case. Thus the issue of set off or compensation is not available here. In order for compensation or set off to occur the two debts' must exist simultaneously and have as their object the payment of “a sum of money or a certain quantity of consumable things of one and the same kind and the debts must be equally liquidated and demandable. La.C.C. Art. 2209 (emphasis added); Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982). Here the debt defendant owes to plaintiff has been admitted; however, the plaintiff denies liability as to the alleged debt claimed by defendant. These two obligations are clearly not “equally liquidated and demandable.”

SPECIFIC PERFORMANCE OF THE CONTRACT

The trial court’s judgment orders defendant to pay to plaintiff $42,711.32, the amount past due, plus legal interest and costs. The judgment further orders the defendant to pay “the commissions due Cecil Trahan as they become due and owing under the terms of said contract.”

The latter part of the judgment is an injunction enjoining the defendant from breaching the contract in the future by failing to make payments. Although it may be argued that J. Weingarten, Inc. v. Northgate Mall, 404 So.2d 896 (La.1981), obscured the jurisprudence, an injunction should issue only when the party seeking same is threatened with irreparable loss or injury without an adequate remedy at law. La.C.C.P. Art. 3601. In the case at issue there has been no showing of irreparable injury nor can we envision the circumstances under which a situation involving these contractual provisions would constitute such; nor has plaintiff shown that he is without adequate remedy at law. Although we do not now address the validity of plaintiff’s entitlement to future commissions under the contract, we opine that such a claim is premature, and that he is not entitled to any award for future commissions in this suit. In the context of this suit, and as a general proposition, injunctions which order the payment of monies in futura are rarely if ever justified. Kenner v. Slidell Savings & Homestead Association, 170 La. 547, 128 So. 475 (1930); McGaw v. O’Beirne, 126 La. 584, 52 So. 775 (La.1910).

Por the above and foregoing reasons the judgment of the district court is reversed insofar as it orders the defendant to “pay the commissions due Cecil Trahan as they become due and owing under the terms of the said contract,” and insofar as it assesses costs. In all other respects the judgment is affirmed.

All costs, both at trial and on appeal are assessed three-fourths against the defendant and one-fourth against the plaintiff.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    STATE of Louisiana, Appellee, v. Freddie ARMSTRONG, Appellant.
    No. CR83-840.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Sept. 28, 1984.

      Helen Ginger Roberts, Gravel & Brady, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

Defendant, Freddie Armstrong, was charged by indictment of the Rapides Parish Grand Jury with second degree murder, a violation of LSA-R.S. 14:30.1. A jury of twelve persons returned a verdict of guilty of manslaughter (LSA-R.S. 14:31). The trial judge sentenced defendant to serve ten years at hard labor in the custody of the Louisiana Department of Corrections. Defendant has appealed and raised several assignments of error:

(1) Whether the trial court erred in refusing to permit defendant to introduce evidence of the violent disposition of state witness, Mark Tison, when defendant based his defense on the claim that Tison, and not defendant, had killed the victim.
(2) Whether the trial court erred in refusing to permit defendant to impeach Mark Tison’s testimony regarding the reasons for Tison’s commitment to a mental institution after the alleged offense.
(3) Whether the trial court erred in allowing four-year-old Freddie Armstrong, Jr. to testify concerning events he observed at the age of three and one-half years.
(4) Whether the court erred in admitting into evidence a hearsay statement purportedly made by Freddie Armstrong, Jr. to a neighbor stating that defendant had struck the victim and that the victim was bleeding.

FACTS

On May 4, 1982, Avery Armstrong was stabbed to death in her home in Rapides Parish. Defendant, who was the victim’s former husband, and Mark Tison, who was the victim’s current boyfriend, were in the house immediately prior to the stabbing.

Mark Tison testified that on the morning of the stabbing he was asleep in the living room of the victim’s house when the defendant came to the door. According to Tison, he heard the defendant arguing with the victim, heard a blow, and saw the victim fall backwards from the door of the house. Tison testified that defendant entered the house with a knife in his hand and that he, Tison, attempted to intervene, but was knocked down by the defendant. Tison then fled from the house.

Defendant testified that he was standing at the door talking to the victim when Tison came up from inside the house. According to defendant, Tison ordered him to leave, but he refused to do so. Tison then went to the kitchen and returned with a knife. Tison attacked defendant with a knife, and the victim, attempting to intervene, was stabbed, presumably unintentionally, by Tison.

The son of the victim and defendant, Freddie Armstrong, Jr., was apparently an eyewitness. He was three and one-half years old at the time of the slaying and four and one-half years old at the time of the trial. On direct examination, Freddie, Jr. testified that he saw defendant take a knife from his pocket and stab his mother. On cross-examination, the child acknowledged witnessing a fight between defendant and Mark Tison, which the victim tried to break up.

ASSIGNMENT OF ERRORS 1 and 2

Defendant contends that the trial court erred in excluding, either for substantive or impeachment purposes, evidence of state witness Mark Tison’s psychiatric commitment which occurred some eight months after the killing. Defendant maintains that this evidence would have shown that Tison had a propensity for violence and, consequently, would have bolstered the defense theory that it was not defendant, but Mark Tison, who had stabbed the victim. Medical records which defendant sought to introduce contained statements indicating that Tison had been involuntarily committed because he had threatened his father with a knife and verbally threatened other members of his family. These records indicated that Tison had a drug problem, was both homicidal and suicidal and that, at the time of his commitment, he displayed uncooperative, hostile behavior.

The relevancy of evidence is within the discretion of the trial judge and his ruling in this regard will not be disturbed absent a clear abuse of that discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

The propriety of the court’s action in excluding evidence concerning Tison's commitment raises two separate questions: Was the evidence relevant, and, if it was, did the probable prejudice resulting from its admission substantially outweigh its probative value. State v. Ludwig, 423 So.2d 1073 (La.1982).

In State v. Ludwig, supra, the defendant attempted to exonerate himself by implicating the victim’s wife in the crime. To this end, he sought to introduce evidence that the victim’s wife had shot the victim in his foot and leg some six months prior to the night of the murder. The trial court excluded this evidence, indicating that it thought that it was not relevant. The Supreme Court concluded that the trial court was in error in finding that the evidence was not relevant, but, nevertheless, held that the evidence was properly excluded since,

“... its slight probative value was substantially outweighed by the risk that its admission would consume too much time, unnecessarily confuse the jury concerning the issues to be determined, and tend to excite the emotions of the jury to the undue prejudice of the opponent. See State v. Moore, 278 So.2d 781 (La.1973).”

Both State v, Ludwig, supra, and the instant case exclude evidence which would have tended to lend credence to a defense theory that someone other than the defendant had committed the offense. As in Ludwig, although the excluded evidence in the instant case appears to have been relevant, its probative value was substantially outweighed by the probable prejudice. In the instant case, the excluded evidence was medical records from one of Tison’s psychiatric hospitalizations. This particular hospitalization took place more than eight months after the alleged offense. These medical records contained, along with clinical observations and diagnoses, long recitations of hearsay concerning Tison’s alleged threatening behavior toward his family. We find that the trial judge did not abuse his discretion in excluding the medical evidence since the probative value was substantially outweighed by the prejudice which its introduction would have engendered.

We note that even if it had been error to exclude the records, it would have been harmless. See State v. Humphrey, 412 So.2d 507 (La.1981), dissenting opinion by Dennis, J., 431 So.2d 751. Defendant hoped to use excluded evidence to show that Tison had a violent disposition and, therefore, was capable of having stabbed the victim. Although evidence concerning Tison’s commitment subsequent to the killing was excluded, defendant was allowed to introduce evidence concerning three psychiatric hospitalizations of Tison which occurred prior to the killing. This evidence included the testimony of a nurse regarding Tison’s violent behavior when he was hospitalized in July of 1982. The lack of the excluded evidence did not substantially hinder defendant’s attempt to show that Tison had a violent disposition. We conclude that any error would have been harmless.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in allowing Freddie Armstrong, Jr. to testify. Defendant’s contention is that the four-year-old witness did not have the requisite understanding to testify.

The trial court, in accordance with LSA-R.S. 15:469, undertook an examination of Freddie, Jr. in order to determine if the child had sufficient understanding to testify. The trial court questioned the child to test his understanding of the oath and the need to tell the truth. Counsel for the defense was given an opportunity to question Freddie, Jr. in this regard. The court determined that the child was competent to testify. The determination of the trial court as to whether or not a child has sufficient understanding to testify is entitled to great weight because it has the advantage of seeing and hearing the witness. State v. Edwards, 420 So.2d 663 (La.1982); State v. Humphrey, supra; State v. Thompson, 364 So.2d 908 (La.1978); State v. Francis, 337 So.2d 487 (La.1976). Although Freddie, Jr.’s answers were at times hesitant, this does not necessarily indicate incompetence. State v. Humphrey, supra. The determination of the trial judge that a child witness is competent is based, not only upon a child’s answers to questions testing his understanding, but also on the child’s overall demeanor on the witness stand. State v. Humphrey, supra; State v. Thompson, supra.

In State v. Arnaud, 412 So.2d 1013 (La.1982), the Louisiana Supreme Court upheld the lower court’s decision that a four-year-old boy was competent to testify. In both that case and the instant case, there were shortcomings in the child’s testimony. In both cases, the child testified to some facts that were crucial in the adjudication. Admittedly, the testimony in the present case was sketchy and could be classified as well-coached statements brought out by leading questions, but that fact alone does not dictate the exclusion of the child’s testimony and is better dealt with through the traditional courtroom methods of cross-examination, proper instruction of the witness and the attorney, and proper objections by the opposing side. State v. Edwards, supra.

The trial court acted within its discretion in ruling that Freddie, Jr. was competent to testify. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendant argues that the trial court erred in admitting into evidence the hearsay statement made by Freddie Armstrong, Jr. not more than one-half hour after the stabbing of his mother, stating that the defendant had struck the victim and she was bleeding. The trial judge ruled that the statement fell within the res gestae exception. LSA-R.S. 15:447 provides:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

Defendant argues that the amount of time that passed between the incident and the statement was sufficient to restore the youth to normal reflective thought processes, thus abrogating the classification of the statement as part of the res gestae. The amount of time that elapses between the statement and the occurrence of the crime is not the sole consideration in determining whether a statement is part of the res gestae. The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after the commission of the crime, but also 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. LSA-R.S. 15:448; State v. Billiot, 421 So.2d 864 (La.1982).

In this instance, the statement clearly appears to be part of a continuous chain of events beginning with the criminal act. From the time of the killing, the child was confused, left unattended, and finally taken in by a neighbor. It is improbable that the young boy regained his composure such a short time after witnessing the stabbing of his mother. The child’s statement to the neighbor was not a narrative of the events, but a statement made under the immediate pressure of the occurrence. LSA-R.S. 15:447. Accordingly, we find that the trial court acted correctly when it admitted into evidence the testimony of the neighbor concerning the child’s statement. This assignment of error is without merit.

DECREE

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

AFFIRMED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Dion MITCHELL.
    No. CR83-854.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Sept. 28, 1984.

      Monty L. Doggett, Natchitoches, for defendant-appellant.
    Eric R. Harrington, Asst. Dist. Atty., Natchitoches, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

Defendant, Dion Mitchell, was charged by grand jury indictment on March 31, 1982, with aggravated rape, a violation of La.R.S. 14:42, and with attempted simple kidnapping, a violation of La.R.S. 14:45 and 14:27. Defendant filed a motion to suppress a confession and a motion to suppress identification testimony. Both motions were heard and denied on August 27, 1982. The defendant thereafter pled not guilty to both charges. After waiving his right to trial by jury, and after trial by a judge on April 18, 1983, defendant was found guilty as charged on both counts. Following a pre-sentence investigation, defendant was sentenced to the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence on the conviction of aggravated rape. The defendant was also sentenced to two and one-half years, to run concurrent with the above sentence, for the conviction of attempted simple kidnapping. Defendant appeals both convictions and sentences alleging seven assignments of error.

Suzanne Oliver, the alleged victim, testified as follows: On the afternoon of March 31, 1982, she was working alone at Gui-llaras Electric, Inc. in Natchitoches, Louisiana. As she was sweeping the walkway in front of the business, two black men approached her asking for cigarettes. They questioned Ms. Oliver about applying for a job and inquired about the whereabouts of her boss and the other employees. One of them asked to use the telephone. Ms. Oliver consented and the two men entered the building. The two men overpowered Ms. Oliver and forced her into a rear office. One of the men, by physical force and under the threat of an open-bladed knife, proceeded to have intercourse with Ms. Oliver while the other kept a look out. The man was having difficulty in having an erection and the ordeal went on for over an hour. Just as he was penetrating the victim, his partner who had been watching the front door suggested they go elsewhere before someone arrived. Ms. Oliver was instructed to get dressed. The man who had been watching the front door brought Ms. Oliver’s car around to the front of the building. The defendant, holding Ms. Oliver in a necklock, dragged her outside the building to the car. Ms. Gena Crow, a friend of Ms. Oliver’s who happened to be driving by, observed the two men abducting Ms. Oliver, stopped her car in the street and shouted at them. Ms. Oliver broke away from the men and escaped into her friend’s car. The two men ran away into the fields behind the building.

Ms. Oliver and Ms. Crow went directly to the police station, told what had happened, described the two men and the direction in which they had run. The defendant, Dion Mitchell, was apprehended shortly thereafter at about 4:00 p.m. and brought to the police station. As he was led handcuffed to the room where Ms. Oliver was still seated, she spontaneously identified him as her assailant.

The State introduced into evidence a written waiver of rights and an inculpatory statement, both allegedly signed by the defendant. The statement reflects that it was completed at 7:00 p.m. on March 31, 1982. At trial on the motion to suppress and at trial on the merits, defendant denied making or signing the statement and denied any involvement in the incident.

Ms. Oliver submitted to a medical examination about five hours after the alleged incident which revealed bruises and abrasions on the neck, upper arm, chest and about the face. There was no physical evidence of a penetration. The only other physical evidence of the assault was the results from the crime lab showing the presence of foreign pubic hair which had the characteristics of negroid hair.

The seven assignments of error alleged by defendant on appeal are as follows:

1. The trial court erred in refusing to suppress the identification of the defendant by the victim, based on an ■ unconstitutional one-on-one viewing of the defendant.
2. The trial court erred in refusing to suppress the confession of defendant without requiring testing of handwriting exemplars.
3. The trial court erred in limiting defense counsel’s interrogation of the prosecutor, concerning the prosecutor’s possible influence on statements made by the victim.
4. The trial court erred as a matter of law in finding that an aggravated rape took place beyond any reasonable doubt.
5. The trial court erred in convicting defendant of aggravated kidnapping without sufficient corroborative evidence.
6. The trial court erred in failing to grant a new trial based on the court’s failure to apply the proper standard of reasonable doubt.
7. Based on the facts in this case, a mandatory life sentence is cruel, excessive and unusual punishment as prohibited by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 20 of the Louisiana Constitution.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant contends that the trial court erred in refusing to suppress the out of court identification of the defendant by the victim because it was based on an unconstitutional one-on-one viewing of the defendant. Defendant also contends that the in-court identification testimony of the victim should have been suppressed because it was based solely on the unconstitutional out-of-court identification.

In his argument on this assignment, defendant relies on Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). These cases and others follow the holding of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that the Fourteenth Amendment’s guarantee of due process is violated by the admission of evidence deriving from unnecessarily suggestive identification procedures conducive to mistaken identification.

In the present case, the trial judge considered the factors set out in Neil v. Biggers, supra, and reiterated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and concluded that the victim’s in-court and out-of-court identifications of the defendant were reliable. Although the record supports this conclusion, we think that this issue is more properly disposed of on the basis that the out-of-court identification was not the result of unnecessarily suggestive identification procedures. The record supports the trial judge’s finding of fact that the police, at the time of the defendant’s arrest, did not suggest to her that he was the alleged rapist. The defendant was taken directly to a room for questioning without stopping by the only available route through the station. When the victim happened to notice him, she made an unsolicited spontaneous identification. There was nothing to suggest to the victim that the defendant had been apprehended in connection with her case. The identification was independent of any police procedure and the rule of Stovall and its progeny does not apply in this case. For these reasons, we find that the in-court and out-of-court identifications were properly admitted.

ASSIGNMENT OF ERROR NO. 2

Defendant has not briefed this assignment. Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

ASSIGNMENT OF ERROR NO. 3

Through this assignment the defendant argues that the trial court erred in limiting the defense counsel’s interrogation of the prosecutor in the hearing on the motions to suppress concerning the prosecutor’s possible influence on statements made by the victim. The defendant asserts that the trial judge abused his discretion by ending the defense counsel’s questioning of the prosecutor, concerning his coaching of a witness, after only minutes of examination.

The record appears to indicate that defense counsel was given adequate opportunity to question the prosecutor concerning this matter. The defense counsel was arguing that the assistant district attorney had coached the victim concerning the necessity of an identification based on observations other than the one-on-one confrontation discussed in assignment number one. As discussed therein, no such necessity existed. The trial judge merely exercised his discretion in directing counsel to proceed with the case and to end his unnecessary examination and accusations against the assistant district attorney.

“In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.” LSA-R.S. 15:275.

It appears to be clearly settled that the trial judge has complete discretion to stop unnecessary examinations. Moreover, “his rulings will not be disturbed unless an abuse of discretion is shown”. State v. Naas, 409 So.2d 535 (La.1981), cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332. See also State v. Chapman, 410 So.2d 689 (La.1981). We find no abuse of discretion in the ruling of the trial judge.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends by these assignments that the State failed to prove the essential elements of the crimes of aggravated rape and aggravated kidnapping beyond a reasonable doubt.

A defendant has not been afforded due process and his conviction cannot stand unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would conclude that the State proved 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); State v. Graham, 422 So.2d 123 (La.1982).

Rape is defined as the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent. La.R.S. 14:41 further provides that “emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.” The only element essential to a conviction, which the defendant asserts was not proven beyond a reasonable doubt by the State, was that there was a penetration.

The defendant argues that the testimony of the victim upon which the State relied to prove penetration was equivocal. He refers to a written statement given by the victim within an hour of the incident, which was made part of the record. The statement describes the sequence of events occurring over a period of timé of over an hour. Although the victim recounts at one point that the defendant “didn’t have an erection and he couldn’t get it in”, and then later “he was starting to penetrate inside me when the guy with the green pants came in and told the guy in the blue vest, let’s go”, the context of the statements make it quite clear that the two statements are not contradictory, but merely describe different points in time. Any ambiguity in the statement “starting to penetrate inside of me” was cured at trial by the victim’s testimony in which she made it very clear that there was indeed a slight penetration. We do not find it surprising, and neither did the attending physician or the crime lab expert, that there was a lack of physical evidence of vaginal penetration. The victim admitted that there was no emission and only a slight penetration. This is all that is required by statute to constitute rape. Other particulars of the victim’s statement were corroborated by physical evidence tending to establish her veracity. Under well settled jurisprudence, the victim’s testimony alone is sufficient to establish the fact of penetration. State v. Rives, 407 So.2d 1195 (La.1981). Viewing the evidence in a light most favorable to the prosecution, the trial judge could have concluded that the State proved penetration as well as every other element of the crime of aggravated rape beyond a reasonable doubt.

We also find that viewing the evidence in a light most favorable to the prosecution, the trial judge could reasonably conclude that the State proved the essential elements of the crime of attempted simple kidnapping.

“Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent; ...” La.R.S. 14:45(A)(1).

The facts demonstrate, both through the victim’s testimony and the testimony of an eyewitness, Ms. Gena Crow, that the defendant was, with specific intent, forcibly removing Ms. Oliver from her place of employment to her car, to leave for an unknown destination, without her consent. The defendant’s partner had driven Ms. Oliver’s car around to the front of the building. The engine was running. The defendant came out of the building with his arm around Ms. Oliver’s neck attempting to force her into her own car. The chance intervention of her friend who happened by thwarted the defendant’s attempt to forcibly take Ms. Oliver to an unknown destination. In our view, the State clearly made out its charge of attempted simple kidnapping.

ASSIGNMENT OF ERROR NO. 6

The apparent thrust of this argument is that the trial judge erred in failing to grant a new trial where the fact that the defendant was found guilty with “such a lack of evidence” demonstrates that the judge could not have applied the proper standard of reasonable doubt. As the previous discussion demonstrates, there was sufficient evidence to support the convictions of the defendant, applying the proper standard of reasonable doubt. We therefore find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 7

Defendant’s remaining assignment of error challenges the mandatory life sentence imposed by the trial court for the conviction of aggravated rape, as violative of the Eighth Amendment of the U.S. Constitution, being cruel and unusual punishment.

This assignment has no merit. With respect to statutes not requiring capital punishment, mandatory sentences are not unconstitutional. State v. Farria, 412 So.2d 577 (La.1982); citing State v. Prestridge, 399 So.2d 564 (La.1981).

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

AFFIRMED.

      . The defendant was charged and convicted of attempted simple kidnapping, a violation of La. R.S. 14:45 and 14:27. He was not convicted of aggravated kidnapping, a violation of La.R.S. 14:44. Thus, defendant’s argument that the State failed to prove the perpetrator intended to force the victim or someone else to give up something of value is without merit since this is not a requisite element of the crime of simple kidnapping.