author: CALOGERO, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Jimmy L. GLASS.
    No. 83-KA-1735.
    Supreme Court of Louisiana.
    May 14, 1984.
    Rehearing Denied Sept. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., for plaintiff-appellee.
    Glenn F. Armstrong, Maurice Loridans, Bossier City, for defendant-appellant.

      . Dr. George McCormick, the pathologist, testified that both victims died as a result of a laceration of the brain due to a single gunshot wound. The bullet entered Mr. Brown’s head on the right side of the back of the head and exited on the left side of the forehead. The bullet entered Mrs. Brown’s body and exited above the right eyebrow. Both were contact wounds, according to the pathologist.

   CALOGERO, Justice.

Defendant, Jimmy Glass, was indicted by a Webster Parish Grand Jury on two counts of first degree murder. Because of pretrial publicity, venue was changed from the Twenty-Sixth Judicial District to the Fifteenth Judicial District in Lafayette. Glass was found guilty as charged and the jury recommended the death penalty. In this appeal defendant argues fifteen assignments of error.

In this opinion we will treat the four assignments of error (assignments 5, 10-11, and 9), which are potentially the most serious, and review the sentence. The remaining assignments involve legal issues governed by clearly established principles of law. They will be treated in an appendix which will not be published, but which will comprise part of the record in this case.

Because we find none of defendant’s assignments of error meritorious, defendant’s conviction and death sentence will be affirmed.

FACTS

The facts as adduced at trial are as follows. Defendant Glass, who was in prison following his conviction and sentence for armed robbery, and one Jimmy Wingo, who was awaiting trial on two counts of burglary, escaped from the Webster Parish Jail in Minden, Louisiana, on Christmas Eve, December 24,1982. Around eight o’clock that evening, the two men were being allowed to make telephone calls to their families. When the deputy had to leave them unattended momentarily, because of a disturbance in the cells, they descended in the elevator and escaped.

What happened at the crime scene comes largely from the trial testimony of the defendant. According to Glass the escape was Wingo’s idea. Once outside, the two men made their way from Minden to Dixie Inn, Louisiana, for the most part walking through fields. Defendant testified that they came out on a road and found some kind of business and a house (with no one evidently at home). As they tried to enter a window at the back of the house, a ear turned into the driveway. According to Glass’ testimony the duo watched Mr. and Mrs. Brown get out of the car and go into the house. Since the keys were not left in the parked car, Wingo decided to check out the storeroom located in the carport area. He found a refrigerator containing beer. They retreated beyond the hedge and drank beer. According to Glass’ testimony Wingo decided that they should wait until the couple went to sleep, smash the patio door, then go in, surprise the couple, and tie them up. During the planning and drinking, Glass also consumed some champagne.

The defendant testified that, pursuant to Wingo’s instructions, he cut the telephone wires with a pair of hedge clippers and threw a piece of petrified wood through the glass of the patio door. Glass and Wingo then opened the door, entered the house and ran down the hall to the bedroom where they found Mrs. Brown standing on the side of the bed screaming and Mr. Brown lying in the bed. Mr. and Mrs. Brown were told to lie face down on the bed. By that time Wingo had acquired a shotgun and rifle. Defendant Glass rooted through the man’s billfold and through various furniture drawers, etc. In the nightstand drawer Glass found .38 caliber shells. He asked Mr. Brown where the pistol was kept and was told that it was in the closet. He went to the closet where he found the gun. While searching for the gun Glass cut his thumb on a saw that was on the closet shelf. Mrs. Brown told defendant Glass the location of her purse which he then emptied in the living room. As defendant looked through other rooms for possible loot, he called out Wingo’s name and asked him what to do next. Wingo told Glass to shut up. After taking liquor from the kitchen cabinet and putting it in the back seat of the Browns’ ear, defendant was allegedly told by Wingo that he, Glass, had to kill the couple, who had been bound and gagged, since Glass had called out Wingo’s name when they were in the house.

Defendant testified that Wingo poked him in the back of the head with the shotgun barrel and told him that he was to kill them, or Wingo would “splatter [his] brains all across this room.” Glass testified that Wingo kept the shotgun at defendant’s neck or back as Glass made his way back to the bedroom. Then Glass allegedly put his knee on the foot of the bed, more on the man’s side, bent over, closed his eyes and pulled the trigger. As the woman raised her head and started to scream, defendant allegedly pointed the gun, closed his eyes, and pulled the trigger. Glass testified that, before leaving the room, he pulled the covers up over the victims’ heads.

Wingo and Glass then took the Browns’ car toward Vivian, Louisiana, so that Win-go could see his girlfriend. In Vivian, the two men were forced to abandon the car which had broken down after hitting high water which had flooded the road. The pair walked to the house of Wingo’s sister and picked up Gwen Hill, Wingo’s girlfriend, and spent a day in the woods. Glass testified that the three then took a truck and drove to Atlanta, Texas, where Wingo and Gwen stayed in a motel room, while defendant took the truck and went on to Little Rock, Arkansas, and eventually to a friend’s house. In the meantime, state troopers began looking for Glass. He then allegedly took a bus to Ventura Beach, California. From there he went to San Diego where he was eventually picked up.

ASSIGNMENT OF ERROR NO. 5

Defendant Glass contends that the trial judge erred when he refused to appoint another psychiatrist to examine defendant after one of two psychiatrists who had been appointed failed to examine defendant with respect to his sanity at the time of the offense.

Prior to trial defendant was allowed to change his “not guilty” plea to a plea of “not guilty and not guilty by reason of insanity.” At the time defendant requested that he be allowed to withdraw his original plea, he also requested a continuance of the trial date. Defendant, an indigent, requested this continuance hoping that he would be able to obtain a psychiatric examination by physicians of his own choice at the expense of the Indigent Defender Board. The trial court refused to grant a continuance but gave defendant the opportunity to request the appointment of a Sanity Commission. Defendant took advantage of the opportunity. The court appointed Dr. Robert L. Turner and Dr. James H. Blackburn to examine defendant in order to assess his mental condition at the time of the offense.

Dr. Blackburn examined defendant and submitted a psychiatric evaluation in which he found that defendant was not suffering from any mental illness or emotional disorder which would have affected him severely at the time of the offense. He recited also that defendant was able to assist in his own defense. Defendant did not object to the sufficiency of Dr. Blackburn’s report.

Defendant did object to the one sentence report of Dr. Turner which read: “I have examined Jimmy Glass and find him to be competent, capable of understanding the charges against him with an understanding of the difference between ‘right’ and ‘wrong’, and capable of assisting counsel in his defense.”

In objecting to Dr. Turner’s report defendant argued that it did not discuss the issue of sanity at the time of the offense. In response to his objection, the trial judge allowed defendant to subpoena Dr. Turner in order to cross-examine him, out of the presence of the jury, with respect to defendant’s sanity at the time of the offense.

At the hearing Dr. Turner elaborated on his brief written report. Dr. Turner testi-ifed that he conducted a psychiatric interview with defendant in which he questioned defendant about such things as his thought content, intellectual functioning, past history, sensorium, mood, and his state of mind at the time of the offense. It was Dr. Turner’s opinion that defendant has an antisocial personality disorder. However, he was of the view that defendant was not suffering from any type of mental disease or defect which would have prevented him from knowing the difference between right and wrong.

A fair reading of the testimony of Dr. Turner, coupled with his brief report, including its reference to defendant’s knowing the difference between right and wrong, the appropriate test for time of offense insanity under La.R.S. 14:14, leads us to conclude that the doctor did examine for and testify to defendant’s sanity at the time of the offense. Under these circumstances, it was not error for the trial judge to refuse to appoint another doctor.

Having determined that the sanity commission appointed by the trial court fulfilled its duties, we find that this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

With these assignments of error defendant contends that the trial court erred when it charged the jury that the defense of coercion is not available to one charged with the murder of an innocent person. Defendant also argues that the trial judge erred when it refused to charge the jury, in accordance with defendant’s requested special jury charges nos. 7 and 9, that the jury “must analyze defendant’s personal intent based upon the ‘mental element proved at trial’ and ‘may not attribute to him any such specific intent which may have existed on the part of another person.’ ” The trial judge’s instruction to the jury, that the defense of coercion is not available to one charged with the murder of an innocent person, was based upon La.R.S. 14:18 which provides in part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threat is present and would immediately carry out the threats if the crime was not committed. (emphasis provided)

Defendant takes the position that he was compelled to kill the victims when Wingo held the gun to his head and ordered him to kill the couple. In brief defendant argues that “while it may not be an affirmative defense which excuses otherwise criminal conduct, coercion has a defensive role in determining the degree of the offense and the culpability of the offender in a murder case.” Defendant contends in brief that “the killing of a human being while under the compulsion of an imminent and imperative threat of death ... negates the requirement of proof of specific intent in a prosecution for first degree murder.”

We find that this assertion by defendant does not comport with the law. While coercion, or threats by Glass’ accomplice (which we will accept as true for purpose of this argument), may in large part have affected Glass’ motivation, i.e., to save his own life, this factor has no bearing on whether defendant had specific intent as required by the first degree murder statute.

Under the facts of this case the jury might properly conclude that by shooting both victims with the barrel of the pistol in contact with their heads defendant had the specific intent to kill them. It is apparent that he “actively desired” to end their lives, regardless of the fact that his principal motivation may have been to save his own life.

The pertinent concern is not whether coercion eliminates the requirement for proof of specific intent, but whether coercion, under these circumstances should, by law, be seen as justifiable, and constitute a defense. The legislature has provided a negative response by its enactment of La. R.S. 14:18(6), supra.

The trial judge’s instruction to the effect that the defense of coercion is not available to one charged with murder is a correct statement of the law. La.R.S. 14:18(6); State v. Capaci, 179 La. 462, 154 So. 419 (1934).

We find that the trial court was also correct in refusing to charge the jury in accordance with defendant’s requested special charges nos. 7 and 9. See n. 2 supra.

A defendant has the right to submit special written charges to the jury. The trial judge must give a requested charge which does not require qualification, limitation or explanation and which is not included in the general charge or another special charge, if it is correct and pertinent to the case. La. C.Cr.P. art. 807; State v. Shilling, 440 So.2d 110 (La.1983); State v. James, 431 So.2d 399 (La.1983); State v. Lovett, 359 So.2d 163 (La.1978).

Defendant’s requested charge which stated that defendant had to have “personally desired the deaths” of the two victims was substantially covered in the trial court’s general charge on first-degree murder. In that charge the court stated that specific intent was required and then defined specific intent as the “state of mind which exists when the circumstances indicate that the defendant actively desired the prescribed criminal consequences to follow his act_” (emphasis in original).

Since the requested charge was substantially included in the court’s general charge it was properly refused. See State v. Holmes, 388 So.2d 722, 725 (La.1980).

Defendant’s requested charge no. 7 pertaining to one who aids or abets in the commission of a crime, was not pertinent under the facts of this case as related by defendant. Defendant did not simply “aid and abet,” rather, he was the actual perpetrator of the murders. Thus, this charge was properly refused.

Assignments of Error nos. 10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 9

With this assignment of error defendant contends that the trial court erred when it refused to permit defendant to exhibit Jimmy Wingo, without compelling him to testify, so that the jury could assess the reasonableness of defendant’s fear that Wingo would kill him if defendant did not kill the victims. Specifically, defendant contends that this ruling resulted in a denial of his right to compulsory process of favorable evidence.

During the course of trial the defense requested that it be allowed to call Jimmy Wingo into the courtroom and have him exhibited before the jury as physical evidence. Defense counsel informed the court that the purpose of using Wingo as physical evidence was to corroborate defendant’s anticipated testimony concerning the fact that defendant was afraid of Wingo. Thus, exhibiting Wingo before the jury presumably would have supported defendant’s argument concerning coercion.

The state did not object to defendant’s request to exhibit Wingo as physical evidence. However, at the time this request was made Wingo, against whom murder charges were then pending, had his defense attorneys present in the courtroom. Win-go’s lawyers asserted their objection to any viewing or presentation of Wingo. Their objection was based on the belief that exhibiting Wingo during defendant’s trial, and the attendant publicity, would ultimately prejudice Wingo’s right to a fair trial. The attorneys also expressed their belief that bringing Wingo into the courtroom might cause venue problems in his own case.

The trial court refused to grant defendant’s request and cited as authority State v. Berry, 324 So.2d 822 (La.1975). Defense counsel then requested a subpoena duces tecum to produce mug shots of Wingo for the purpose of showing the jury what Win-go looked like. The trial court refused this request, again citing State v. Berry, supra, and stating that the defense was trying to make an impression on the jury which would prejudice the jury members.

The trial judge then suggested that Win-go could be weighed and measured and that there might be a stipulation as to this information. In the alternative he suggested that witnesses, or the defendant himself, could testify to Wingo’s size.

On appeal defendant correctly contends that State v. Berry, supra, cited by the trial court as authority, is not determinative of the present issue. Nonetheless, we note that the trial judge later elaborated on his refusal to allow defendant, to display Wingo as physical evidence. The trial judge correctly understood that the purpose of exhibiting Wingo was to support defendant’s coercion argument: namely, that defendant was physically afraid of Wingo and was compelled to kill the victims because of that fear. The court concluded that since coercion is not a defense to murder (see discussion under Assignments of Error nos. 10 and 11), such evidence was not relevant in the guilt phase of the first degree murder trial. The court did suggest that using Wingo as an exhibit to support defendant’s coercion argument might be relevant during the sentencing phase in order to prove a mitigating circumstance. Apparently, the judge was referring to La.C.Cr.P. art. 905.5, which provides, as a mitigating circumstance in capital sentencing, that “[t]he offense was committed while the offender was under the influence or under the domination of another person.”

Interestingly, during the sentencing phase of the trial defense counsel did not seek to have Wingo shown to the jury as evidence of a possible mitigating circumstance, or for any other reasons.

Defendant did testify that he was forced to kill the victims, and during closing arguments defense counsel did mention that one of the mitigating circumstances is the fact that the offense was committed while the offender was under the influence or domination of another person. In addition, the trial judge included that mitigating circumstance in his instructions to the jury. It is of course likely that the jury did not believe defendant’s testimony that Wingo forced him to shoot the victims.

Defendant’s claim of coercion, if believed, would not have justified the two murders. La.R.S. 14:18(6). Nor would his argument have affected the determination of whether defendant had the requisite specific intent. Accordingly, we find that the trial court did not err in its refusal to grant defendant’s requests to exhibit Wingo and show his mug shots to the jury.

This assignment of error is without merit.

SENTENCE REVIEW

On April 8, 1983, the jury found defendant, Jimmy Glass, guilty of the first degree murders of Newton and Erlene Brown. Following the sentencing phase, on April 9, 1983, a unanimous jury recommended that defendant be sentenced to death. La.C. Cr.P. art. 905.1. Pursuant to the jury recommendation, on April 29, 1983, the trial court sentenced defendant to death. La.C. Cr.P. art. 905.8.

La.C.Cr.P. art. 905.9.1 mandates that this Court review every sentence of death for excessiveness. In particular, this Court must consider: (a) whether the sentence was imposed under the influence of passion, prejudice, or other arbitrary factors; (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and (c) whether the sentence is disproportionate to the sentences imposed in similar cases considering both the crime and the defendant.

The Capital Sentence Investigation Report reveals that defendant, a white male, was nineteen years old at the time of the crime. He is divorced from his wife and has one child, a daughter, approximately one and one half years old. He has no other dependents and at the time of the offense he was not contributing to the support of his child. He was the first of four children born of a legitimate union. His father was an alcoholic and epileptic who did not provide for the family. Defendant dropped out of high school two weeks prior to finishing twelfth grade. He was failing at least one course needed for graduation. Defendant admits to the use of alcohol and marijuana since the age of thirteen. He admits to using all drugs at some time, including heroin. Glass has never maintained stable and gainful employment. He states that he survives by scamming and stealing. In 1981, defendant enlisted in the Navy. However, he deserted that same year.

The victims were a fifty-five year old white male and a fifty-three year old white female. They were not related to defendant.

As a juvenile, defendant was arrested for arson and burglary and placed on probation until he was eighteen years of age. His adult record is as follows:

OFFENSE PRIOR RECORD DATE SENTENCE

1. S/Theft & Crim. Damage to Property 10/14/80 NP.

2. Possession of Marijuana 3/3/81 275 F & C or 60 days

3. Armed Robbery 1/5/82 10 years, H.L., without benefit of probation, parole, or suspension of sentence.

4. Escape 12/24/82 No disposition.

5. Aggravated escape, 1/6/83 Aggravated burglary, Armed Robbery, Auto Theft and First Degree Murder [present offense] Released on Fugitive Warrant to Louisiana State Police in Webster’s Parish Sheriffs Office

Additionally, Glass remains a fugitive from the U.S. Navy.

PASSION, PREJUDICE AND ARBITRARY FACTORS

Defendant contends that the district attorney brought before the jury the subject of the possibility of a pardon or a commutation by the governor, which is prohibited and thus requires reversal. During the penalty phase of the proceedings, defense counsel called Ms. Nancy Goodwin, a former director of the Louisiana Coalition of Jails and Prisons, to the stand to testify. Counsel asked her:

Q. Ms. Goodwin, do you know of any lifers, persons who are serving life sentences for murder, who have been pardoned?

Ms. Goodwin answered in the negative. Defense counsel tendered and the district attorney cross-examined Ms. Goodwin:

Q. But ... you do know people who got life prison sentences who have been released from jail, don’t you?
A. Not while I’ve been working in, in this State.... I have not found since 1978, when I started doing my work, a person who was sentenced to life for first degree murder who got a commutation or a pardon and is now free. Maybe it happened, but I didn’t know anybody. I’ve known a number of people who got turned down.
Q. ... has any one of [the people on death row] been executed? And it simply calls for a “yes” or “no” answer, Ms. Goodwin. Has any single one of those people been executed?
A. No, they haven’t.

On redirect examination, defense counsel asked:

Q. The final decision then, Ms. Goodwin, on whether or not a sentence is commutated is left up to someone else, isn’t it?
A. Yes. It rests, first of all, with the Pardon Board — the Pardon Board has to recommend people — and finally, it is with the governor to say “yes” or “no.”

Defendant argues that the district attorney’s examination of Ms. Goodwin was aimed at conveying to the jury that defendant could end up back on the streets if he received a sentence of life imprisonment as a result of a pardon by the governor. The district attorney also allegedly attempted to insinuate that the possibility of pardon depended upon whether the governor would be Treen or Edwards [the former and present governors of the State of Louisiana]. Defense counsel did not object that the questions were improper references to pardons during the questioning by the district attorney in order to preserve the issue for review under La.C.Cr.P. art. 841. However, this Court has recognized an exception in capital cases since the court has an obligation to review the record regardless, to determine whether the remarks injected arbitrariness into the proceedings. State v. Copeland, 419 So.2d 899 at 910 (La.1982).

It is settled that the conditions under which a person sentenced to life imprisonment without benefit of probation, parole or suspension of sentence can be released in the future are not a proper consideration for a capital sentencing jury and should not be discussed in the jury’s presence. State v. Copeland, supra; State v. Lindsey, 404 So.2d 466 (La.1981) cert. denied, — U.S. —, 104 S.Ct. 261, 78 L.Ed.2d 246 reh. denied, — U.S. —, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983). “The interjection of pardon and commutation issues provokes questions that no human mind can answer and in substance transposes the task of the governor to the jury.” State v. Willie, 410 So.2d 1019 at 1034 (La.1982). In Willie, 410 So.2d at 1033, this Court summarized the settled case law on point:

Further, in reviewing a capital case in which an offender’s potential for future release has been injected into the proceedings by the state or the trial court, this Court must presume that a death sentence was imposed under the influence of an arbitrary factor unless the record clearly indicates that the jury was properly informed of its duty and admonished to disregard the improper remarks, and the record indicates that the jury heeded the admonition. State v. Lindsey, 404 So.2d 466 (La.1981); See also, State ex rel. Williams v. Blackburn, 396 So.2d 1249 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. Sonnier, 379 So.2d 1336, 1364 (La.1979) (Dennis, J., concurring in part); State v. Sonnier, supra at 1368 (on rehearing).

Under the post-Lindsey opinions rendered by this Court, only in State v. Sawyer, 422 So.2d 95 (La.1982), U.S. cert. granted and case remanded, — U.S.—, 103 S.Ct. 3567, 77 L.Ed.2d 1407 (1983), affm’d., State v. Sawyer, 442 So.2d 1136 (La.1983), No. 81-KA-1566 (on remand from the U.S. Supreme Court), did this Court not find reversible error when the district attorney mentioned the possibility of pardon. The Sawyer opinion declared at 422 So.2d 104:

We have never held, however, that an automatic reversal of the death penalty must follow the mere mention of the fact that R.S. 14:30’s prohibition against probation or parole for one under sentence of life imprisonment does not exclude executive pardon. Each case must be decided on its own facts and circumstances.

In Sawyer, this Court concluded that the cryptic and brief comment by the district attorney made in response to defense counsel’s plea to sentence defendant to “the living death of life imprisonment” did not warrant reversal. The district attorney’s comment, as it appears at 422 So.2d 104, n. 19, was as follows:

The statute speaks without benefit of probation, suspension, commutation of sentence. The statute does not speak about a pardon. The statute doesn’t speak about a commutation so don’t think that if you vote for first degree murder, I’m sorry, for life imprisonment that that will be the end of this matter as it related to Robert Sawyer because it’s not.

This Court assessed the remarks as a “passing responsive comment” and noted that the prosecutor did not dwell on the speculative prospect of future action by the governor. This Court concluded at 422 So.2d 104:

Thus, in the context of the entire argument, the prosecutor’s responsive remark neither deflected the jury’s attention from the ultimate significance and finality of the penalty recommendation nor misguided the jury’s sentencing discretion by the introduction of inappropriate considerations. [Footnote omitted.]

Unlike many of the cases on point, in the instant case the possibly problematic references to pardons did not occur in the state’s closing argument. The remarks relating to pardon came during cross-examination by the state of the defense witness. In response to questioning, the witness declared that she knew of no such pardons since 1978.

Defense counsel here asked the first question relating to pardons. Thus, it is clear that the defense opened the door on the subject. Moreover, counsel further pursued the topic, on redirect examination. Defense counsel did not ask the court to caution the jurors. The trial court did not admonish the jury members that it was their duty to disregard such considerations.

The information given to the jury members concerning pardon certainly fell far short of the damaging comments made by the state in Lindsey and in Willie. Ms. Goodwin continued to testify that she personally knew of no pardons obtained for offenders convicted of first degree murder since 1978. We do not find that an arbitrary factor was injected through this line of questioning.

In his memorandum, defense counsel also contends that the district attorney sought to evoke the passion of the jury when he argued concerning defendant’s prior armed robbery conviction. The defendant had walked “into a convenience store to a little girl who doesn’t know him and has nothing to do with trying to earn a living, pulls a knife on her and they rob the store.” Defense counsel correctly notes that the PSI report states that the age of the victim in that prior armed robbery of a Midway Handy Stop was forty-one years. Although the state’s representation might have been erroneous, it did not create a situation in which passion had been injected into the proceedings.

STATUTORY AGGRAVATING CIRCUMSTANCES

The jury in the instant ease found four statutory aggravating circumstances:

(1) the offender was engaged in the perpetration of aggravated burglary [La.C.Cr.P. art. 905.4(a)]; (2) the offender knowingly created risk of death to more than one person [La.C.Cr.P. art. 905.4(d)]; (3) the offense was committed in an especially heinous, atrocious and cruel manner [La.C. Cr.P. art. 905.4(g) ]; (4) the offender at the time of the offense was imprisoned after sentence for commission of an unrelated forcible felony [La.C.Cr.P. art. 905.4(f)]. The state contends that all four aggravating circumstances found by the jury clearly existed. The defense argues that the district attorney improperly argued that “just about all of the aggravating circumstances,” existed in the case, while in actuality aggravating circumstances number two and four did not exist.

Defendant unpersuasively argues that La.C.Cr.P. art. 905.4(d) was not applicable under the factual circumstances in the instant case since two counts of murder were involved. This Court has held that La.C. Cr.P. art. 905.4(d) is established when the defendant by a single and consecutive course of conduct contemplates and causes a great risk to more than one person. State v. Sonnier, 402 So.2d 650 at 658 (La.1981) (after remand), cert. denied, — U.S.—, 103 S.Ct. 3571, 77 L.Ed.2d 1412 reh. denied, — U.S.—, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983); State v. Monroe, 397 So.2d 1258 at 1274 (La.1981), cert. denied, — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1411 reh. denied, — U.S. —, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983). In State v. Sonnier, supra, this Court declared that the execution of two victims lying side by side with six rifle shots clearly amounted to a single consecutive course of conduct by which defendant contemplated a great risk to more than one person. In the instant case, the two victims, with their hands and feet tied, were lying side by side face down on their bed when defendant fired one shot into the head of each. This aggravating circumstance was therefore established.

Defense counsel also argues that La.C. Cr.P. art. 905.4(f) was inapplicable since defendant was not imprisoned when the crime occurred, six hours after defendant escaped from jail and six miles away from the prison, and that the crime was not committed in an atrocious or cruel manner. La.C.Cr.P. art. 905.4(g) Even if the defendant were right, it would not affect the outcome since there are two aggravating circumstances found by the jury which are supported by the evidence. State v. Celestine, 443 So.2d 1091 at 1097 (La.1983). Consequently we pretermit discussion of these latter two arguments.

This Court has upheld death sentences when only one of several aggravating circumstances found by the jury was supported by the evidence (as long as defendant was not unduly prejudiced by failure to comply with procedural safeguards or by the influence of arbitrary factors during the penalty phase, and as long as the death penalty was not otherwise excessive). State v. Martin, 376 So.2d 300 (La.1979) cert. denied, 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297; State v. Monroe, 397 So.2d 1258 (La.1981) cert. denied — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1411 reh. denied, — U.S. —, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983).

In the instant case there is ample evidence that defendant was engaged in the perpetration of an aggravated burglary, and that he knowingly created risk of death to more than one person. Clearly two of the four aggravating circumstances are supported by the evidence.

PROPORTIONALITY OF SENTENCE

The final treatment in the sentence review in a capital case is a determination of whether the sentence in the instant case is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Supreme Court Rule 28 § 1(c); State v. Narcisse, 426 So.2d 118 at 138 (La.1983). An inference of arbitrariness arises when the sentence is inconsistent with sentences imposed in similar cases in the same jurisdiction. State v. Knighton, 436 So.2d 1141 at 1160 (La.1983).

The sentence review memorandum by the state incorrectly lists the first degree murder prosecutions in the Twenty-Sixth Judicial District, the original venue of this case. Pursuant to the Supreme Court rule, the memorandum should have listed the first degree murder prosecutions in the Fifteenth Judicial District, the district in which the sentence was imposed. There are eleven first degree murder prosecutions in the Fifteenth Judicial District, ten other than the instant case.

State v. Aucoin, 362 So.2d 503 (La.1978), involved the prosecution of a mother for the murder of her eight year old daughter. The killing was done by strangulation, stabbing, beating, and ultimately, by driving a car over the child. The defense claimed mental disease and drug addiction, showing that defendant had been released from Central Louisiana State Hospital just a year before the homicide. She was found guilty of first degree murder and the jury recommended life imprisonment without benefit of pardon, parole or suspension of sentence. Her conviction and sentence were affirmed by this Court.

State v. Thibeaux, 366 So.2d 1314 (La.1978), involved the prosecution of a thirty-nine year old mother of four for the shooting death of her husband. At trial defendant claimed self-defense. The state offered no aggravating circumstances. She was found guilty of first degree murder; the jury recommended life imprisonment. On appeal, this Court reversed, finding error in the trial court’s restriction on the amount of evidence it allowed in, concerning past acts of violence by the victim towards defendant. According to the state’s brief, defendant has not been retried.

State v. Francis, 403 So.2d 680 (La.1981), involved the prosecution of a man who pulled a gun and began shooting after he saw a former girlfriend dancing with another man. A security guard and the dancing partner were killed; the woman was injured seriously. The state sought the death penalty claiming that defendant had knowingly created a risk of death or great bodily harm to more than one person. Defendant was found guilty of two counts of first degree murder. The jury recommended life imprisonment. This Court affirmed.

State v. Narcisse, 426 So.2d 118 (La.1983), involved the prosecution of defendant for the stabbing death of his seventy-four year old great-aunt during an armed robbery. Several of the wounds could have independently caused the victim’s death; she had been beaten, had broken a hip in a fall during the struggle and had suffered several broken ribs. The state urged two aggravating circumstances: that the murder was committed during an armed robbery and that the crime was done in an especially heinous, atrocious or cruel manner. Defendant was found guilty of first degree murder. On appeal this Court found a sufficiency of evidence to support one of the aggravating circumstances and upheld both conviction and the recommended sentence of death. According to the state’s Sentence Review Memorandum, this was the first death penalty handed down by a Lafayette Parish jury in approximately fifty years.

State v. Thibodeaux, 383 So.2d 1264 (La.1980), involved the shooting death of a man who had been playing'pool. The defendant shook off the restraining arms of friends and fired four times at the victim. The jury convicted him of first degree murder and returned with a verdict of life imprisonment. This Court affirmed.

State v. Watson, 449 So.2d 1321, has recently been affirmed by this Court. Willie Watson’s trial ended in his conviction for the first degree murder of a medical student during the commission of a kidnapping, aggravated rape and armed robbery. On appeal, this court affirmed the conviction but vacated the death penalty because the trial court had erroneously instructed the jury that, upon finding of one aggravating circumstance, a recommendation of death must be returned. State v. Watson, 423 So.2d 1130 (La.1983). On remand, the case was assigned to Vermilion Parish for a new penalty phase hearing. That jury also recommended death for defendant.

State v. John F. Fuller, No. 83-KA-0619, is presently on appeal to this Court. Defendant had been convicted for the shooting death of his mother-in-law during an armed robbery. Defendant confessed, turned in the gun and also admitted that he had burglarized the victim’s home on a prior occasion. The state argued two aggravating circumstances: the murder occurred during an armed robbery and the crime was an especially heinous, atrocious or cruel one. The jury recommended the death penalty.

State v. Willie Celestine, 443 So.2d 1091 (La.1983), involves the rape and murder of an elderly woman. Celestine broke into her home, severely beat the woman and raped her as well The state relied upon several aggravating circumstances: (1) the commission of an aggravated rape; (2) the heinous and atrocious manner in which the murder was committed; (3) the fact that defendant had been previously convicted of two independent charges of aggravated rape. Following the recommendation of the jury, the judge sentenced defendant to death. The conviction and sentence have been affirmed by this Court.

State v. Summit, No. 83-KA-0293, is presently on appeal to this Court. Defendant, armed with a knife, killed a fifty-five year old man in a public bathroom along an interstate highway. When the victim resisted, Summit stabbed him three times and then fled. At his arrest, Summit admitted he intended to rob the man, but was thwarted when the victim fought back. The state sought the death penalty, arguing one aggravating circumstance, that the murder had been committed during an attempted armed robbery. Defendant, in mitigation, argued the lack of prior significant record (i.e., no felony convictions). Finding the aggravating circumstance urged by the state, the jury convicted and recommended the death penalty.

State v. Jimmy Wingo, No. 84-KA-0260, is currently on appeal to this Court. Jimmy Wingo, of course, is defendant Glass’ accomplice in the perpetration of the very murder which we here review. Not only did this jury recommend death for Glass in connection with the murder of Mr. and Mrs. Brown, but also a different jury who tried Jimmy Wingo after Glass obtained a severance also recommended death for the accomplice Wingo.

The Aucoin, Thibeaux, Francis and Thibodeaux juries recommended life imprisonment. Those cases in which no death sentence was recommended involved situations where there was some type of mitigating evidence offered. In State v. Aucoin, mental disease was involved. State v. Thibeaux was a domestic dispute. The situation in State v. Francis involved barroom jealousy; State v. Thibodeaux was also a barroom argument. The four remaining cases resulted in the imposition of the death penalty. Fuller, Narcisse, Wingo and Celestine all involved murders perpetrated upon elderly victims in their homes. Distinguishable from the four cases in which the death penalty was not recommended, these cases involved cold-blooded murder with no clear mitigating circumstances involved.

In the instant case, these two murders were also cold-blooded. Mr. and Mrs. Brown, in their fifties, were evidently executed in order that they could not identify the armed men who had broken into their home in the dead of night on Christmas Eve, 1982. Defendant pulled the trigger. Although defense counsel argues that defendant was coerced into killing the couple, that claim was established only by defendant’s testimony. The record does not establish that Glass’ death sentence was disproportionate when it is viewed in light of sentences for similar offenses.

Decree

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

CONVICTION AND SENTENCE AFFIRMED.

On Application for Rehearing

PER CURIAM.

As noted in our original opinion the sentence review memorandum by the state incorrectly listed the first degree murder prosecutions in the Twenty-Sixth Judicial District, the original venue of the case. Pursuant to our rule, the memorandum should have noted the first degree murder prosecutions in the Fifteenth Judicial District, the district in which the case was tried and the sentence imposed.

Defendant in his application for rehearing claimed that this Court’s review of Fifteenth Judicial District Court capital prosecutions, following a state sentence review memorandum which did not address those prosecutions deprived him of a meaningful opportunity to address proportionality as related to the appropriate other capital cases.

Responding to that complaint and pending consideration of relator’s rehearing application we directed the state to file an appropriate supplemental sentence review memorandum and invited a defense response. Those documents have now been filed.

Relator’s application for rehearing is without merit and is herewith denied.

      . Glass’ companion, Jimmy Wingo, was also indicted on two counts of first degree murder. After Glass' motion to sever was granted, Wingo was also tried, found guilty of first degree murder and sentenced to death. His case is presently pending in this Court on appeal, No. 84-KA-0260.

      . According to defendant, Wingo also found gloves in the storeroom which he wore from that time on.

      . Defendant’s fingerprints were found on the saw.

      . There is only defendant’s testimony to the effect that he was forced to kill the two victims.

      . The pathologist testified in rebuttal that it would have been impossible for defendant to be so positioned when he shot the couple. The doctor had originally testified that the killer had most probably been positioned in the bed between the two victims.

      . Defendant Glass’ fingerprints were found on the Browns’ Lincoln Continental when it was recovered.

      . Having changed his plea to not guilty and not guilty by reason of insanity, and having had psychiatric evaluations performed by two doctors, defense counsel was at liberty to call the doctors to the stand, in the presence of the jury, and have them testify about defendant's sanity at the time of the offense. Defendant chose not to have the doctors testify. It seems apparent to us that sanity at the time of the offense was never really at issue in the case and defendant did not seriously urge the defense. Nonetheless, the case went to the jury with the issue of insanity before it. The jury determined that the sanity defense did not prevail and defendant was guilty as charged.

      .The special instructions requested by defendant read as follows:
      DEFENDANT’S REQUESTED SPECIAL JURY CHARGE NO. 7 You are instructed that:
      One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. STATE V. McALLISTER, 366 So.2d 1340 (La.1978).
      DEFENDANT’S REQUESTED SPECIAL JURY CHARGE NO. 9 You are instructed that:
      In order to convict this defendant of first degree murder, you must find beyond a reasonable doubt that he personally desired the deaths of Newton Brown and Erlene Brown, or that great bodily harm occur to Newton Brown and Erlene Brown. If you do not find beyond a reasonable doubt that this defendant had such specific intent you must acquit him of first degree murder, and you may not attribute to him any such specific intent which may have existed on the part of another person.

      . The disputed charge given by the trial judge read as follows:
      SPECIAL CHARGE
      The defendant’s conduct in a murder case is not justified when the offense charged was committed through the compulsion of threats by another of death or great bodily harm and the defendant reasonably believed the person making the threat would carry out the threat. The defense of coercion is not available to one charged with murder of an innocent person. (emphasis in original)

      . La.R.S. 14:30, which defines first degree murder, includes as an essential element “specific intent to kill or to inflict great bodily harm ...”
      Specific intent is defined by La.R.S. 14:10(1):
      Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.

      . At common law it was generally said that duress does not justify the killing of an innocent person even if the offender acted under imminent threats. State v. Toscano, 74 NJ. 421, 378 A.2d 755 (1977), citing Arp v. State, 97 Ala. 5, 12 So. 301 (1893); Brewer v. State, 72 Ark. 145, 78 S.W. 773 (1904); State v. Nargashian, 26 R.I. 299, 58 A. 953 (1904); People v. Martin, 13 Cal.App. 96, 108 P. 1034 (1910); Taylor v. State, 158 Miss. 505, 130 So. 502 (1930).
      The Model Penal Code draftsmen have noted that most of the states which have enacted statutes concerning the defense of duress do not recognize the defense with respect to the most serious crimes. Model Penal Code, § 2.09, Comment 1, at 2 (Tent. Draft No. 10, 1960). However, the draftsmen of the Model Penal Code thought that homicide might sometimes be the "product of coercion that is truly irresistible" and thus did not make murder an exception in their proposed section on duress. Id. Comment 2, at 8. Model Penal Code § 2.09, concerning duress as a defense provides in part:
      (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
      (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.
      A few states, while not allowing duress as a complete defense to murder, do permit it to mitigate the killing to manslaughter if the accused was coerced by someone other than his co-conspirator, e.g., Minn.Stat.Ann. § 609.20; Wis.Stat.Ann. § 939.46.

      . Note, however, in our discussion under Assignment of Error No. 9, infra, that the trial judge was willing to consider allowing this argument during the sentencing phase of the trial.

      . Berry involved defendants calling a witness to the stand in order to invoke his Fifth Amendment privilege in the presence of the jury. In Berry, the state had the jury removed before the witness took the stand. The witness then took the stand and invoked his privilege. Defense counsel objected to the exclusion of the jury. This Court stated that it was “improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege for the purpose of impressing upon the jury the fact of the claim of privilege." 324 So.2d at 830. That was not the situation in the instant case. Defendant only sought to use Wingo’s body as an exhibit.

      . In brief, defense counsel also points to later statements by the district attorney in closing argument:
      Why the death penalty? Because that’s the best way. It’s no guarantee, no guarantee at all, but it’s the best way to stop him from doing it again. As I say, there is no guarantee but it is the best sentence we can put on him to stop it from happening again. He was already in jail for a forcible felony when this happened...
      The district attorney later stated:
      You have to do this very difficult thing, and I know it’s difficult for you-all because I know it's difficult for me. Just like you-all, I have family, too... but it’s something we have to do because we have families. Because we know friends and neighbors...
      In brief defendant argues that "potential future remedies and possible threat to the families of the prosecutor and jury are prohibited subjects for a capital sentence jury to hear from the prosecution...” We disagree with defendant’s assessment of these comments. When read in context, the statements did not concern either the possibility of pardon or possible threats to the families of the prosecutor and jury.

      . Defendant also alleges that the district attorney sought to prejudice the jury by referring to photographic exhibits not introduced to indicate that the defendant had tattoos. However, defendant’s citation to the penalty phase of the transcript is incorrect and the district attorney in his answer to the defense memorandum states that the incident occurred during the guilt phase. Regardless, such a reference to tattoos would not inject arbitrariness.


source: Caselaw Access Project

author: LEMMON, J.,

license: Public Domain

text:
    Beverly Riddle Nielsen, Wife of Niels Christian NIELSEN v. Niels Christian NIELSEN.
    No. 84-C-1138.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In Re: Beverly Riddle Nielsen, applying for Writ of Review to the Fifth Circuit Court of Appeal, No. 84-CA-705; 24th Judicial District Court, Parish of Jefferson, No. 246-831 Division G.

Denied.

LEMMON, J.,

concurs. While the father may be liable for damages in a separate suit based on abuse of rights, he is entitled to notice of such a claim and to the opportunity to be heard.


author: AUGUSTINE, Judge.

text:
    STATE of Louisiana v. Louis PROSPER.
    No. KA-1279.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.
    Rehearing Denied Sept. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    L. Kevin Coleman, New Orleans, for defendant-appellant.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

The defendant, Louis Prosper, was convicted of attempted simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. He was sentenced to serve six years at hard labor, with credit for time served. Prosper appeals from that conviction assigning eight specifications of error.

On January 24, 1983 Prosper met Emily Vinet at the bus stop. She was on her way to work. Ms. Vinet had befriended Prosper in the past, providing him with food and shelter.

Later that evening Ms. Vinet’s son Keith returned home to find the defendant and an unidentified man exiting through the rear door of the house he shared with his mother. Prosper was carrying the Vinet’s portable television. When he saw Vinet, Prosper ran out of the rear door. The television set was found later on the rear stairs. Prosper was apprehended shortly thereafter at a neighborhood bar and placed under arrest by Officer Montgomery.

ASSIGNMENT OF ERROR NO. 1.

By this assignment the defendant argues that the trial court erred in denying the defendant’s motion to suppress two incul-patory statements. The defendant claims that the State failed to carry its burden to prove that the statements were made freely and voluntarily and were not induced by threats, promises or coercion. LSA-R.S. 15:451.

The testimony regarding the circumstances surrounding the inculpatory statements is as follows: The first inculpatory statement was made while the defendant was in the police car with Officer Montgomery enroute to Central Lock-Up. Officer Montgomery stated that during the drive the defendant spontaneously stated that he didn’t want to “take the rap alone.”

The second inculpatory statement was made at Central Lock-Up. Once at Central Lock-Up Officer Montgomery filled out a Waiver of Rights form and had Prosper sign it. Montgomery noted Prosper’s comments on the bottom of the form, i.e., that the primary culprit was a man named “Levi” and Prosper was “only along for the ride.”

Prosper testified that after Montgomery clocked into Central Lock-Up Montgomery took him to an interrogation room where he kicked Prosper’s legs and punched him in the stomach causing him to fall and hit the wall. Prosper also stated that his handcuffs were so tight his wrists were bleeding. In support of Prosper’s accusations records from an answering service were admitted into evidence. The records revealed that, on the night of his arrest, Prosper, in an attempt to contact his attorney, left a message with his attorney’s answering service that he had been beaten. Prosper also left a message with his attorney’s secretary’s husband that he had been beaten at Central Lock-Up.

Officer Montgomery took the stand at the suppression hearing and testified in detail about the noneventful ride to Central Lock-Up and his talk later with Prosper in the interrogation room as Montgomery filled out the Waiver of Rights form. Montgomery also testified that he did not coerce, threaten or offer inducements to Prosper to elicit the inculpatory statements.

At trial, the director of Central Lock-Up, William Hunter, stated that all arrestees are checked by the doorman before they are accepted. Claims of injury are investigated immediately and there is a corpsman or nurse on 24 hour duty at the facility. Serious injuries are treated at Charity Hospital. The arrest register revealed that Prosper responded in the negative when asked if he was injured.

Bobby Rae McGee, the doorman on the night of the arrest, also testified. Although he did not remember seeing the defendant when he was brought in, McGee stated that he would have remembered had Prosper told him that he was injured.

The gist of Prosper’s argument is that the State failed to specifically rebut his assertions that he was beaten to force him to make the inculpatory statements. “When a defendant alleges specific instances of police misconduct in reference to an inculpatory statement, it is incumbent upon the state to specifically rebut the allegations.” State v. Vessell, 450 So.2d 938, 942-43 (La.1984).

In this instance the State specifically rebutted all allegations of mistreatment. The testimony of Officer Montgomery as to exactly what happened on the night of the arrest in conjunction with the testimony of the doorman, McGee, that he could not recall Prosper’s injuries was sufficient to rebut Prosper’s allegations of abuse. The trial court obviously disbelieved Prosper’s testimony and found credible the testimony of Officer Montgomery. “Such a determination is within the sound discretion of the court and, like all questions of fact is entitled to great weight and will not be disturbed unless clearly contrary to the evidence.” Vessell, supra, at 943 (citations ommitted).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error the defendant claims that the trial court erred in limiting defense counsel’s opening statement.

At trial, the defense analogized the proceedings to a murder mystery in an attempt to caution the jury to keep an open mind as to the defendant’s culpability. The state objected and the court directed counsel not to argue to the jury.

The trial court’s rulings with regard to the scope of opening statement should not be disturbed absent a manifest abuse of discretion. State v. Denney, 352 So.2d 204 (La.1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error the defendant contends that the court erred in granting a three day recess following cross examination of the state’s chief witness.

Counsel for the defendant failed to object to the ruling complained of by this assignment at any time during the trial. The defense is therefore precluded from asserting this specification of error under the contemporaneous objection rule. LSA-C. CR.P. Art. 841. State v. Russell, 416 So.2d 1283 (La.1982). Thus, the Court need not determine the merits of this assignment.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error the defendant claims that the trial court committed error in allowing the State to cross-examine the defendant regarding his prior arrest for armed robbery.

During direct examination at trial, Prosper admitted that he had previously been convicted of simple robbery and had served a prison sentence for that crime. On cross examination, the state elicited testimony that Prosper had been originally charged with armed robbery.

This issue was resolved in favor of the state in State v. Neslo, 433 So.2d 73 (La.1983), where the facts were almost identical to those in this case. In Neslo, as here, the defendant was asked about his prior conviction for simple robbery based on the original charge of armed robbery. The Neslo court stated that there was overwhelming evidence that the defendant committed the crime for which he was convicted; and the cross-examination about the true nature of the prior offense did not show that defendant was denied a fair trial. State v. Neslo, supra, at page 85.

Similarly, in the case at bar it does not appear that Louis Prosper was convicted because of an inference that he carried a gun during a robbery some ten years prior to trial. Rather, it is apparent that the defendant was convicted because of the substantial evidence presented against him.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment the defendant claims it was error for the trial court to allow the State to introduce testimony of a rebuttal witness after both parties had rested their cases.

This argument is erroneous. It is entirely within the discretion of the trial court to allow rebuttal testimony after the defendant’s presentation of evidence. LSA-C.CR.P. Art 765(5).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment of error the defendant contends that it was improper for the prosecutor to invite jurors to put themselves in the victim’s place during closing argument. During closing arguments the State said, “Remember, who are you going to believe? Are you going to believe a convicted robber, or are you going to believe two citizens? Put yourself in the victim’s place.” (emphasis added). The defendant contends that the last remark requires this court to reverse his conviction.

It was improper for the prosecutor to make the jurors think of themselves as victims. However, the argument was not sufficiently prejudicial to warrant a reversal in this instance. State v. Messer, 408 So.2d 1354 (La.1982).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error the defendant argues that there was insufficient evidence to support the verdict.

The elements of the offense of simple burglary of an inhabited dwelling, under LSA-14:62.2 are as follows: (1) The unauthorized entry, (2) of an inhabited dwelling, (3) with the intent to commit theft or other felony.

Under the attempt statute it is immaterial whether the defendant would have actually accomplished his purpose. He need only have the specific intent to commit the crime. LSA-R.S. 14:27.

We have reviewed the record for sufficiency of evidence to support the appellant’s conviction. We find that viewing the evidence in the light most favorable to the prosecution, any rational finder of fact could have found that every element of attempted simple burglary had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 8

By this assignment of error the defendant contends that the defendant’s sentence is unconstitutionally excessive. The penalty provision of LSA-R.S. 14:62.2, in pertinent part is as follows: Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence nor for more than twelve years.

This provision must be read in tandem with the penalty provision of the attempt statute, LSA-R.S. 14:27D(3), which states that the imprisonment shall not exceed one half of the longest term of imprisonment prescribed for the offense so attempted.

In order to determine whether this sentence is excessive we must determine whether the trial court complied with the sentencing guidelines set forth in LSA-C. Cr.P. Art. 894.1. State v. Sepulvado, 367 So.2d 752 (La.1979).

The transcript of the sentencing hearing reveals that the trial judge considered the fact that this was the defendant’s second offense, that he acted without provocation, and without grounds excusing or justifying the commission of the offense. Nor did the court find that the record would support the conclusion that the defendant would be able to compensate the victim for any damage or injury sustained in connection with the case. Based on the defendant’s prior record, the court was unable to say that the defendant was one who had no proclivity toward crime. There were no circumstances of which the court was aware that indicated that the imprisonment of the defendant would entail excessive hardship to himself or his dependents. The court, apparently weighing the seriousness of the offense, stated that:

“The simple burglary of an inhabited dwelling is one of the most potentially violent crimes that can be perpetrated against anyone, and more particularly, it’s a said commentary that this man has perpetrated the crime once again on a lady who was attempting to help him, and apparently was a very kind and gentle, compassionate person, who assisted many people, who has tried to bring them closer to God; there was testimony that she even assisted him learning to pray and it brought him to the Catholic Church.”

Thus, the court concluded that the maximum sentence should be imposed as any lesser sentence would deprecate the seriousness of the offense.

Given the trial court’s demonstrated compliance with the sentencing guidelines set forth by LSA-C.Cr.P. Art. 894.1 we have determined that the sentence was not excessive.

For the foregoing reasons the sentence and conviction imposed by the trial court are hereby affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Jerry McKENZIE, Individually and For the Use and Benefit of the Minor, Gregory McKenzie v. NEW ORLEANS PUBLIC SERVICE, INC. and Herman R. Dear.
    No. CA-1688.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Dissenting Opinion July 27, 1984.
    Rehearing Denied Sept. 27, 1984.
    Writ Denied Nov. 26, 1984.
    Robert T. Hughes, New Orleans, for plaintiffs-appellants.
    Charlton B. Ogden, II, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals the dismissal of his minor son’s lawsuit for damages as a result of being hit by defendant’s bus.

Gregory McKenzie and his friend, Alex Bell, then 13 and 14 years old, were going to cross the Industrial Canal bridge in New Orleans at about 8:00 a.m.. After waiting 15 minutes for the drawbridge to close, the boys continued on the pedestrian walkway which is adjacent to the roadway and protected by a steel mesh fence.

About midway down the walkway Gregory noticed a man with a large dog on the far side of the bridge. When the boys were a few feet past the protected walkway the dog ran toward them. Frightened, Gregory ran into the roadway and collided with the front door of the NOPSI bus which had just crossed the bridge.

The bus driver, Herman Dear, testified he did not see Gregory until after the impact. He heard a slight “crunching” sound against the side of the bus and a passenger screamed. Dear alighted from the bus and found the youngster lying under the bus about two feet from the curb.

Dear testified he did not notice the youths, either while waiting for the drawbridge to close or while crossing the bridge. He was watching traffic on the narrow bridge, particularly the car ahead which had just stalled. Dear had an unobstructed view of the pedestrian walkway, but was not concentrating on that area because it was fenced off from the roadway. He explained he was looking ahead and driving 5-7 m.p.h. or less when he reached the end of the bridge. Dear surmised Gregory must have “come from the rear” and run into the front side of the bus because he would have seen the boy if he’d stepped in front of the bus.

Dear testified he saw the bridge attendant on the sidewalk, but not his dog. He said after the accident several bus passengers told him they had seen the attendant feeding the dog from the side windows. The driver opined that, from his viewpoint, the man’s body hid the dog from view.

Joseph Stephany, a NOPSI supervisor who investigated the scene, testified there were marks on the bus door which indicated Gregory hit that area. Photographs showed where Gregory’s arm slid along the dusty glass in the door.

Plaintiff argues that Dear was negligent by failing to anticipate and avoid the accident. He stresses the heavy burden on the driver of a motor vehicle to watch out for the safety of pedestrians, especially children, and relies on Baumgartner v. State Farm Mutual Insurance Co., 356 So.2d 400, 404 (La.1978):

... the first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Rottman v. Beverly, 183 La. at 955, 165 So. at 156. “... [W]hat they can see they must see and in legal contemplation they do see; ... their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

Plaintiff claims Dear would have seen the boys before the accident if he had exercised due diligence. Plaintiff points out that, under Baumgartner, Dear is legally responsible for seeing what he could have seen and that once a driver sees children on or near the side of a road, he should anticipate the child may place himself in a position of peril. Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979); Widcamp v. State Farm Mutual Auto Insurance Co., 381 So.2d 937 (La.App. 3rd Cir. 1980). Thus, plaintiff submits Dear was culpably inattentive by failing to see the boys on the walkway.

As NOPSI points out, however, a driver is liable only when there is an opportunity to appreciate the pedestrian’s peril in time to avoid the accident. Shank v. Government Employees Insurance Co., 390 So.2d 903 (La.App. 3rd Cir.1980); Baumgartner at p. 405.

Baumgartner does not impose strict liability upon every motorist who hits a pedestrian, but rather mandates that “the motorist must be found guilty of negligence in order for him to be held responsible.”

In this case the trial court reasoned: The cause of plaintiff’s running into the roadway of St. Claude Avenue was his fear of harm from the dog.
The bus driver’s testimony was that he never saw Gregory McKenzie until after he got outside of the bus. If McKenzie had moved into the path of the bus from the front he would have seen McKenzie before the contact between the bus and McKenzie’s body.
The Court finds that the bus driver was guilty of no negligence which was the cause of the accident or of plaintiff’s injuries.

This case is similar to Osby v. Harris, 375 So.2d 181 (La.App. 2nd Cir.1979), where an adult pedestrian was struck while attempting to cross a highway from an adjacent median. The pedestrian started crossing when the defendant’s approaching car was almost even with him. In affirming for the defendant the court stated at pp. 181:

The trial court’s finding that Harris could not have avoided the accident recognized that even had Harris observed decedent at the time decedent placed himself in peril by attempting to cross Youree, Harris was so close to decedent when the peril was created, that it would have been impossible for him to avoid the accident.

Similarly, this Court held that a driver traveling at 12-15 m.p.h. was not negligent in striking a 9-year old bicyclist who darted out from between two parked cars into the path of the oncoming car. Martinez v. Landry, 399 So.2d 629 (La.App. 4th Cir. 1981).

Plaintiff cites four factual situations which involved pedestrians who were in a position of peril as the motorist approached. In Baumgartner, supra, the pedestrian was in the roadway and was seen by the motorist well before the accident occurred. In Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980), two children were bicycling in the parking lane in the roadway ahead of a truck. The truck driver angled off the road and into the parking lane, injuring the children near the curb of the roadway. In Widcamp v. State Farm Mutual Automobile Insurance Company, 381 So.2d 937 (1980), the young pedestrian attempted to cross the road and stopped in the roadway ahead of the motor vehicle. The motorist, who was exceeding the speed limit, struck the child after leaving some 72 feet of skid marks. In Young v. Wayde, 383 So.2d 1283 (La.App. 1st Cir.1980), the pedestrian, some distance ahead of the motorist, attempted to cross the roadway. She became afraid when she saw an automobile approaching and attempted to return to the shoulder of the road, from whence she came, when the accident occurred.

In this case the bus driver had no opportunity to avoid the accident. Even if the driver had seen the boys on the walkway, Gregory’s sudden run was into the side of the bus — not the front. This unfortunate accident would have happened if the bus had been stopped.

Motorists are not insurers of pedestrians’ safety. Where a pedestrian is negligent and the motorist is not, there is no recovery. Parker v. Continental Insurance Co., 341 So.2d 593 (La.App. 2nd Cir. 1977).

The judgment is affirmed.

AFFIRMED.

GARRISON, Judge, dissents with written reasons.

In Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978), the Supreme Court stated:

“The first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. What they can see they must see and in legal contemplation they do see; their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

If the first duty of a driver is to see what he should see in ordinary circumstances, then how much greater is the duty to see the unique, the extraordinary, the unusual, the bizarre?

Consider the case of the barking dog on the drawbridge.

The credibility of the bus driver is so suspect that it is difficult to believe that he did not see Gregory. To believe the bus driver is to accept the principle that the man wore horseblinders as he drove the bus. Traffic had been stopped for some time to allow for the passage of several boats. During the approximately 15 minute wait, according to his testimony, the driver saw the bridge attendant, but failed to see his dog or the two boys. Even if the driver did not see them, it is obvious that he should have.

What is particularly tragic in the instant case is that clear cut negligence does exist on the part of the bridge attendant as well as the bus driver. Gregory was attacked by his dog and in attempting to avoid that attack ran into the side of the bus. What was the bridge attendant doing with an unleashed dog on a bridge?! Unfortunately, however, neither the bridge attendant, nor his employer, nor the bridge owner were made party-defendants to this suit. That unfortunate fact, however, does not relieve the bus driver of his duty to see that which he should have seen.

Gregory McKenzie is blind in one eye with permanent impairment in the other eye as well. In addition, he suffers permanent damage in the left foot such that he has difficulty walking, is required to wear a different shoe size, and limps. Lastly, he is now subject to convulsive seizures, having suffered twelve in the year and a half since the accident, and is and will be required to take anti-convulsive medication for the rest of his life.

I would award damages to the plaintiffs on the grounds that the driver had an even greater duty to see the bizarre and the unusual: the barking dog on the drawbridge.

      . The matter was first tried in the federal district court which rendered a directed verdict in favor of NOPSI; however, the federal court of appeals found there was no subject matter jurisdiction.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Claudell GRIFFIN, Appellant.
    No. 16321-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Writ Denied Oct. 12, 1984.

      Steven R. Thomas, Public Defender, Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Claude R. Sledge, Asst. Dist. Atty., Many, for ap-pellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

The defendant, Claudell L. Griffin, was charged with burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. Pursuant to a plea bargain he pled guilty to a reduced charge of simple burglary in violation of LSA-R.S. 14:62 and was sentenced to four years at hard labor. Defendant appeals his sentence contending the trial judge failed to comply with the sentencing guidelines contained in LSA-C. Cr.P. art. 894.1 and that the sentence was excessive.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir. 1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974, Art. 1, § 20 if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La. 1980); State v. Cunningham, 431 So.2d 854 (La. App.2d Cir.1983).

The sentencing guidelines of LSA-C.Cr.P. art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in C.Cr.P. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Cunningham, supra; State v. Smith, 433 So.2d 688 (La. 1983); State v. Hammonds, supra. The trial court’s failure to adequately comply with C.Cr.P. 894.1 does not, in and of itself, render a sentence invalid or warrant.a remand for resentencing. The sentence will be upheld if the record clearly illumines and supports the sentencing choice. State v. Williams, 397 So.2d 1287 (La.1981); State v. Smith, 430 So.2d 31 (La.1983).

At the sentencing hearing the trial judge reviewed the defendant’s past criminal record which consisted of a prior shoplifting conviction and a prior conviction of attempted felony theft, and the defendant admitted each of these prior convictions. Prior to the sentencing hearing the trial judge filed written reasons for sentence which had been previously reviewed by the defendant and his attorney.

In the written reasons the trial judge pointed out that the defendant had been sentenced and placed on probation on the attempted felony theft conviction on May 31, 1983 and had committed the instant offense one month and seven days later. The trial judge concluded that because the attempted felony theft conviction was a felony the defendant could not receive a probationary sentence in the instant case. The trial judge then stated that because the defendant had violated the earlier probationary sentence in the attempted felony theft case that probation would not be appropriate here even if it was legally possible. The trial judge stated: “He is obviously in need of correctional treatment in a custodial environment. If allowed to remain outside a custodial environment there is good reason to think he would commit another offense.”

The trial judge gave no indication in his written reasons or in the sentencing hearing that he had considered any of the defendant’s mitigating circumstances as required by 894.1. The trial judge’s compliance with 894.1 was inadequate and contained a,n erroneous conclusion of law. The judge considered the conviction of attempted felony theft to be a prior felony conviction precluding probation, whereas this offense is not a felony and a probationary sentence could have here been imposed as the penalty for the defendant’s first felony conviction. LSA-C.Cr.P. art. 893.

Where the sentencing judge erroneously believes that he cannot impose a probationary sentence and indicates that he would impose a probationary sentence if it was legally possible and proceeds to sentence the defendant to a prison term, the sentence must be reversed. In such circumstances the defendant does not receive the benefit of a sentencing option available to the judge. The case must be remanded for resentencing. State v. Schaeffer, 414 So.2d 730 (La.1982); State v. Foret, 380 So.2d 62 (La.1980); State v. Hopkins, 367 So.2d 346 (La.1979). These cases are distinguishable from the case here presented because the judge, while erroneously believing the defendant had a prior felony conviction and for this reason could not receive a probationary sentence, unequivocally stated that he would not place this defendant on probation even if it was provided for under the law. The trial judge stated defendant had just violated an earlier probationary sentence and was in need of a custodial environment in order to prevent him from committing other offenses. This sentence is not reversible solely because of this error of law made by the trial judge because the error did not deprive the defendant of the sentencing option of probation.

The trial judge’s failure to adequately comply with 894.1 guidelines would require a reversal of the sentence except for the fact we conclude the record clearly illumines and supports the sentencing choice. State v. Williams, supra; State v. Smith, supra.

Within the brief period between March 2, 1983 and July 6, 1983 the defendant committed the crimes of shoplifting, attempted felony theft and simple burglary on which he was charged and convicted. In addition to these three crimes the defendant admitted that a very short time before he committed the simple burglary he had committed the theft of his sister’s T.V. set and sold it. He stated that the purpose of his subsequent burglary was to secure a T.V. set to replace the one which he had taken from his sister so she would not discover the theft. From the observations we have made it is apparent the defendant was guilty of four crimes against property within a period of three months and one week. He had established that a probationary sentence would not deter him from being a continued threat to the property of the public.

The appellant received a substantial benefit from his plea bargain for the reason that the sentence required for burglary of an inhabited dwelling must include a prison sentence “at hard labor for not less than one year without the benefit of probation or suspension, nor more than twelve years.” 14:62.2. In the plea bargain defendant’s charge was reduced to simple burglary which provides for a maximum sentence of twelve years but does not require that one year of it be without benefit of probation or suspension of sentence. 14:62. The benefit received in a plea bargain is a factor to be considered in determining if the sentence imposed is excessive. State v. Lanclos, 419 So.2d 475 (La. 1982). We also note defendant’s sentence of four years was only ⅛ of the maximum sentence to which he was exposed following the plea bargain.

We find the record clearly illumines the sentencing choice of the trial judge and the sentence is not excessive. For these reasons the sentence need not be reversed, even though the trial judge failed to comply with 894.1 guidelines.

The sentence is AFFIRMED.

      . The mitigating factors which could have been considered were: 1) this was the defendant’s first felony conviction; 2) he was only 23 years of age; 3) he was married and had three young children; and 4) some of his criminal conduct was designed to secure money with which to buy food for his family.

      . Felony is defined by LSA-R.S. 14:2(4) as any offense for which the offender may be sentenced to death or imprisonment at hard labor. LSA-R.S. 14:27D(2) provides that attempted felony theft is punishable by imprisonment for not more than one year. It does not provide that the imprisonment may be at hard labor. Since a sentence of hard labor cannot be imposed for the offense of attempted felony theft this offense is not a felony.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Jerry L. LEWIS, Appellant.
    No. 16322-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 9, 1984.
    Indigent Defender Office, by Timothy R. Fischer, Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouehe, Dist. Atty., Carey T. Schimpf, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The defendant was originally charged with attempted second degree murder involving the February 2, 1983 shooting of Clarence Edward Brown. As a result of a plea bargain, the defendant plead guilty to aggravated battery on November 29, 1983 with the understanding that a five year ceiling on the sentence would be in effect. He was sentenced on July 13, 1983 to five years at hard labor and now appeals that sentence as excessive. We affirm.

The facts surrounding the shooting incident show that the victim owed the defendant some money. On the day in question, the defendant asked the victim to repay the money, but the two men got into an argument when the victim indicated that he could not do as the defendant requested. The defendant then left the scene and returned a short time later with a revolver. After another confrontation with the victim, the defendant shot two or three times in the victim’s direction, striking him once in the side. Immediately after the shooting, the defendant absconded but turned himself in a week later to the Caddo Parish Sheriff’s Department. In the meantime, the victim was released from the hospital after a two-day stay.

The defendant contends that he shot the victim because the victim was “coming at him” with his hand in his pocket, and that he was afraid of the victim. He said that they had previously argued over some money which he owed Clarence Edward Brown. The defendant further stated that the gun he used in the incident was in his possession on the date of the offense because he intended to sell it. However, the witnesses interviewed by the investigating officers indicated that it was Lewis who asked the repayment of money from Brown. They gave no indication that Brown had a weapon or that he made any threatening gesture. In fact, one witness stated that as soon as the defendant began to shoot, Brown started to run but he stopped, and the defendant walked over and shot him in the side. The victim told the officers that he had stopped because he thought that the defendant was shooting blanks.

In arguing that the sentence is excessive, counsel for defendant primarily contends that the trial court failed to consider and sufficiently articulate the mitigating circumstances in favor of the defendant. It should be noted that in accepting the plea, the trial court indicated that it would “definitely consider” suspending a hard labor sentence and giving the defendant “local time in jail” as a condition of probation. However, the trial court indicated that such a circumstance was the best that the defendant could expect and specifically stated that no promises were being made to the defendant with respect to the sentence, other than to consider the pre-sentence investigation.

During the sentencing hearing, the Court initially noted that the defendant had no significant prior criminal history. Therefore, the Court was going to abide by the ceiling agreed to in the plea bargain. However, the probation officer recommended a period of incarceration. The record shows that the Court agreed with the recommendation and determined a period of imprisonment since a lesser sentence would deprecate the seriousness of the offense. The Court went on to consider the factors leading up to the plea bargain itself, the fact that the defendant obviously contemplated that his conduct would cause harm because of the manner in which the weapon was used, the fact that the defendant did not act under strong provocation, and the fact that the victim did not induce or facilitate the commission of the crime. Finally, the Court noted that “the remaining factors in the mitigating portion of LSA-C.Cr.P. Art. 894.1 basically [were] in favor of the defendant; but the factors against him [were] so great, that a period of incarceration [was] called for.”

The trial court’s articulation of mitigating circumstances was minimal. However, it is clear the trial court considered those circumstances and felt that they were outweighed by the seriousness of the offense. Moreover, the law is well-settled that the trial court’s failure to sufficiently articulate reasons for a particular sentence is not cause for a re-sentencing if the circumstances of the case support the sentence. State v. Taylor, 430 So.2d 686 (La.App.2d Cir.1983). Additionally, the defendant was sentenced to only half the maximum term provided by law for the offense of aggravated battery. The defendant also benefited substantially from the plea bargain arrangement in that it is clear that under the circumstances of this case there was a strong likelihood that he would have been found guilty of the offense of attempted second degree murder. In summary, the defendant returned to the scene of an argument and shot the victim without provocation as the victim was attempting to flee. Also it should have been obvious to the defendant that his conduct would cause serious harm. Under these circumstances, the sentence is well supported by the record, and should be affirmed. Taylor, supra.

Additionally, it appears that the statutory minimum sentence for this offense in the manner committed is seven years at hard labor without benefit of probation, parole or suspension of sentence. LSA-C.Cr.P. Art. 893.1 and LSA-R.S. 14:95.2. Of course, the defendant has entered into a valid plea bargain and the State is obviously-satisfied with the sentence imposed as a result. The State thus has not, and obviously should not, object. Such an objection by the State is necessary for us to have authority to correct an illegally lenient sentence. State v. Jackson, 452 So.2d 682 (La.1984). In other words, the defendant has not only benefited from the greatly reduced exposure as a result of the reduction in charge, he has also benefited from receiving a technically illegally lenient sentence. For the reasons assigned, the sentence imposed is affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Ira LOYD, Appellant.
    No. 16325-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Dec. 7, 1984.
    Donald R. Minor, Indigent Defender, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie and John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Ira Loyd appeals his conviction of manslaughter by unanimous jury verdict after being indicted for 2d degree murder. Defendant’s first six assignments relate to rulings made during trial. His seventh assignment contends that his sentence to 30 years at hard labor, as an habitual offender under LRS 15:529.1, was constitutionally excessive. We affirm the conviction and the sentence.

FACTS

Defendant admitted stabbing his estranged wife before witnesses, transporting her body several miles to an isolated lakefront area, and later turning himself in and confessing to the police. Defendant contended that his wife produced a knife during an argument with him and that his fatal stabbing of her was accidental. He said he was under the influence of alcohol and drugs and had disposed of her body because he panicked after the stabbing occurred.

ASSIGNMENTS 1 and 3

Defendant contends that his statement to the police was not freely and voluntarily given and that he did not knowingly and intelligently understand his Miranda rights because he had injected himself with narcotics, smoked marijuana, and consumed a large quantity of alcoholic beverages during the four to five hours before the homicide. He further contends that his recorded statement to the police six hours after the stabbing should not have been heard by the jury because it contained many profanities and vulgarities which caused the jury to be prejudiced towards him. Defendant confessed after the body was found by police.

Police witnesses who testified on the hearing of defendant’s motion to suppress his statement indicated that defendant was coherent, knowledgeable about what was occurring and was able to “talk straight,” even though he smelled of alcohol and was somewhat unsteady on his feet at times. Whether intoxication exists to a degree sufficient to vitiate a confession is a question of fact. The trial court’s determination in this area will not be disturbed where it is supported by the evidence. See State v. Mitchell, 437 So.2d 264 (La.1983); State v. Meredith, 400 So.2d 580 (La.1981); State v. Smith, 409 So.2d 271 (La.1982).

The profane language used by defendant in his confession consisted of four-letter words which are not uncommon or overly shocking in today’s society. Defendant, in fact, used one of these words when testifying before the jury. A recorded confession is considered the best evidence of what a defendant has said. See State v. Alexander, 328 So.2d 144 (La. 1976). A confession must be used in its entirety. The state cannot edit a confession to make it more inculpatory. See LRS 15:450. Any confession, of course, is prejudicial but that prejudice is outweighed by its probative effect. A defendant should not be able to “clean up” his confession or complain of added prejudice because he voluntarily interjects profanity into his confession if the confession is otherwise admissible under the law and the constitution.

We find assignments 1 and 3 without merit.

ASSIGNMENT 2

When an eyewitness to the stabbing was testifying on redirect examination, she was asked about the defendant’s arrival at the scene with two of his friends.

“Did you know at that time that Ira Loyd was with the men?
“No.
“When did you learn Ira Loyd was with them?
“... all three of them [meaning defendant and his two friends] walked up the parking lot and [the victim] said that was [Ira Loyd] and that he had come to kill her — ”

Defendant objected, asked that the jury be removed, and then moved for a mistrial.

The motion for mistrial was argued and overruled. The trial court admonished the jury when it returned that it should not consider the recitéd answer and should “disregard it” in its deliberations.

The trial court did not err in refusing a mistrial under these circumstances. The witness was a lay witness and not an officer of the court. Her answer was unresponsive and unsolicited. The jury was admonished. CCrP Art. 771 allows a mistrial in such circumstances, but at the discretion of the trial court, and when an admonition will not serve to cure what is found to be substantial prejudice. State v. Michel, 422 So.2d 1115 (La.1982); State v. Smith, 418 So.2d 515 (La.1982). We find no substantial prejudice, no abuse of the court’s discretion, and no error in this assignment.

ASSIGNMENT 5

Defendant contends that the trial court committed reversible error when it refused to give two requested charges to the jury. CCrP Arts. 802, 807. The requested charges related to the absence of proof of motive insofar as motive bears on the element of intent under 2d degree murder or under manslaughter. LRS 14:30.1, 31.

The first requested charge was that “the failure ... of the prosecution to prove [motive of] ... the accused to commit the crime is a circumstance favorable to the accused.” The second was that “... lack of motive may properly be considered as a circumstance mitigating against specific intent.”

The jury was charged on the law of 2d degree murder, of manslaughter, specific and general criminal intent, the presumption of innocence, burden of proof, reasonable doubt, and the weighing and absence of testimony in the performance of the jury’s function as the sole judge of the facts. The jury was told to give the defendant the benefit of every reasonable doubt arising out of the evidence or want of evidence. Additionally, the jury was told that manslaughter was a homicide that was committed either in “sudden passion or heat of blood immediately caused by provocation ...” or “without any intent to cause death or great bodily harm.”

Even should we assume arguendo that the requested charges were correct statements of the law, we find no error. The charge given by the court effectively told the jury what defendant requested. The jury did not find defendant guilty of 2d degree murder and apparently considered that defendant acted in sudden passion or heat of blood when he stabbed his wife or that defendant stabbed his wife without intending death or great bodily harm. LRS 14:31. Assignment 5 presents no error.

ASSIGNMENT 7

In a convoluted argument, defendant contends that the “additional” nine years given him because of his prior felony conviction constitutes “double jeopardy” and extends an already “unjustified” maximum manslaughter sentence of 21 years to an “excessive” 30 years. We do not agree.

Under LRS 15:529.1, and as a second felony offender, defendant was exposed to a minimum 7 years and a maximum 42 years at hard labor. The colloquy between defendant and the court at his plea of guilty in 1978 to the reduced charge of attempted aggravated rape was before the trial court and is before this court. The PSI report is contained in this record. The sentencing factors were articulated by the trial court. The sentence of 30 years is less than the maximum and more than the minimum sentence under LRS 15:529.1 and is within the trial court’s prerogative. It is not illegal and is not excessive.

CONCLUSION

Finding no merit in the assignments argued, defendant’s conviction and sentence are AFFIRMED.