author: PONDER, Judge.

text:
    STATE of Louisiana v. Emery BLACKBURN.
    No. 83 KA 0698.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    William J. Knight, Asst. Dist. Atty., Franklinton, for State.
    Emery Blackburn, in pro. per.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant was charged by indictment with attempted aggravated rape in violation of La.R.S. 14:27 and 14:42. After trial by jury, defendant was convicted on May 30, 1981 of attempted forcible rape. He was sentenced on February 14, 1983 to fifteen years at hard labor, with seven and one-half years to be served without benefit of probation, parole or suspension.

The only assignment of error on appeal is a review of the record for errors patent.

We have reviewed the pleadings and proceedings and have found a problem concerning a motion for new trial.

The record contains an undated motion for new trial, alleging ten grounds of error, which was signed by defendant’s counsel at trial on the merits.

The trial judge’s statements at the sentencing, referring to a cover letter, indicated that the motion could have been filed on June 9, 1981.

A minute entry indicates that a hearing was held on July 7, 1981 to consider an application for bond reduction and sentencing. Counsel, at that hearing, filed a notice of intent to file writs to the Supreme Court on the denial of bond reduction and made an amended motion for new trial on a new basis not previously alleged. After argument, the minutes indicate the motion for new trial was denied. There is no minute entry or transcript indicating that there was a hearing on or denial or withdrawal of the motion for new trial filed of record.

A motion for new trial must be tried contradictorily with the district attorney. La.C.Cr.P. art. 852. While a motion for new trial should urge all grounds known and available to the defendant at the time of the filing, the court may permit the defendant to supplement his original motion by urging an additional ground or may permit the defendant to file an additional motion prior to the court’s ruling on the original motion. La.C.Cr.P. art. 856.

While the denial of the motion in the minute entry could have covered the motion in the record, such a finding is not indicated by the record, particularly since the hearing was held, in part, for sentencing.

Counsel has alleged no specific prejudice arising out of the apparent failure of the trial judge to rule on the motion. However, it is preferred, considering La.C.Cr.P. art. 853, that the trial judge rule on the merits of an application for new trial prior to sentencing. State v. Randolph, 409 So.2d 554 (La.1981).

We also note that defendant and his new counsel argued at sentencing that a motion to consider new evidence was granted and that sentencing was improper. Such a motion would be a motion for new trial under La.C.Cr.P. art. 851(3) and must be made in writing. La.C.Cr.P. art. 852. We find no such motion of record; that argument is without merit. However, since we are remanding the case, and, at sentencing the trial judge stated that he thought defendant was correct in his argument, we also order a consideration of that motion if filed.

While we affirm defendant’s conviction, we vacate his sentence and remand the case to the trial court for consideration of the new trial motion. If defendant should receive an unfavorable ruling on the motion and resentencing, we reserve to defendant his right to appeal his conviction once more to this Court.

CONVICTION AFFIRMED, SENTENCE VACATED AND CASE REMANDED.

      . A late brief was filed by defendant, acting as his own counsel, in which he alleged as error the same ten grounds asserted in our prior motion for new trial. Due to our decision in this case, we need not reach those issues at this time.

      . Defendant’s counsel alleged that statements made by the State during the trial were based on information taken from papers written by the defendant and taken by the sheriff’s office and previously suppressed by the court.

      . The Clerk of Court’s office in Washington Parish was contacted to make sure the entire record was before the Court. The trial judge, at the sentencing hearing evidently construed the minute entry of the prior hearing denying the motions for new trial, however, the judge admitted that his memory of what occurred was vague.

      . La.C.Cr.P. art. 853:
      A motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.
      When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William KENNEDY a/k/a Jerry Payne.
    No. 83 KA 0705.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Writ Denied March 16, 1984.

      William G. Yates, Asst. Dist. Atty., Hou-ma, for State.
    Warren J. Daigle, Indigent Defender Bd., Houma, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, William Kennedy, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. A jury convicted defendant as charged, and he was subsequently sentenced to serve fifty years at hard labor. He has appealed, alleging eight assignments of error:

1. The trial court erred in overruling a defense objection to the in-court identifications of defendant.
2. The trial court erred in denying defendant’s motion to strike the identification made by two State witnesses on the grounds that the witnesses had no independent recollection of defendant’s identity.
3., 4., 5. The trial court erred in overruling defendant’s objection to irrelevant redirect examination.
6. The trial court erred in overruling defendant’s objection to the State’s questioning.
7. The trial court erred in refusing to grant a mistrial after a prejudicial remark was made by a State witness.
8. The trial court erred in admitting a State exhibit into evidence without a showing of the proper chain of custody.

Defendant was convicted for the armed robbery of a teller at the South Louisiana Bank in Houma, Louisiana. The teller was held up by a man armed with a revolver, who stole approximately $3,500.00 before escaping in a car driven by an accomplice. During the robbery, the teller who was victimized triggered an alarm which activated a camera, photographing defendant in the act of robbing the bank. Defendant was apprehended several months later, after having been wounded during another bank robbery in central Louisiana. Although neither the weapon, nor any of the money was ever recovered, the State presented its case based on the identification of the robber by the bank employees, and the photograph of the robbery in progress.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In assignment of error number one, defendant argues that the trial court erred in permitting the victimized teller and three other bank employees to identify defendant during the trial. He argues that the in-court identification was tainted by previous identification procedures which were unduly suggestive because, although three separate line-up identifications were made, defendant was the only subject who appeared in all of the situations.

In assignment of error number two, defendant argues that the trial court erred in failing to strike the identification by defendant of two of the witnesses after testimony was adduced which revealed that the teller who was victimized made the statement, “That’s the guy who robbed me,” in the presence of two other witnesses on the morning of the trial. Defendant argues that the other witnesses had no independent basis for their identification of defendant, but based the identification of him on the statement of the teller.

Four employees of the South Louisiana Bank were present during the robbery. The robber approached the teller window where Joy Smith was at work and told her, “I’m here to rob you.” After the robber reinforced his actions by pulling out his revolver, Ms. Smith gave him all of the money in her teller drawer, including marked “bait money” which activated an alarm and surveillance camera when it was withdrawn from the drawer. When the camera was activated, it malfunctioned and began making a noise which attracted the attention of the other three bank employees. The robber then waived his gun generally toward the employees and told them all to “keep cool” as he proceeded with the robbery. At the trial, all of the witnesses were closely questioned about their opportunity to view the robber, particularly with regard to their proximity to him, the brightness of the bank’s lighting, and the length of time of observation.

We do not find merit in defendant’s contentions that the in-court identifications were tainted by suggestive out-of-court procedures. Defendant has the burden of proving the suggestiveness of photographs used in an out-of-court line-up. State v. Vaughn, 378 So.2d 905 (La.1979). Defendant herein contends that the identifications were based on two photographic line-ups and one physical line-up which could have been suggestive, which contention does not appear to be substantiated by the record. Furthermore, the present case is stronger than Vaughn in that in the present case defense counsel sought to elicit testimony concerning the results of the out-of-court line-ups, while the prosecution elicited such testimony in Vaughn. Moreover, even if it had been established that the pre-trial identifications of the accused were the product of impermissible suggestion, the in-court identification is admissible if it has an independent basis as it did in the present case. State v. Winn, 412 So.2d 1337 (La.1982).

The factors to be considered in determining the reliability and existence of an independent source of identification include the following considerations:

1) the opportunity of the witness to view the criminal at the moment of the crime;
2) the degree of attention of the witness;
3) the accuracy of the prior description of the criminal;
4) the level of certainty of the identification; and
5) the elapsed time between the crime and the confrontation.

Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Davis, 407 So.2d 702 (La.1981). We turn to a consideration of these factors.

The opportunity of the witness to view the criminal at the moment of the crime.

Three of the witnesses had the opportunity to observe defendant, including his facial characteristics, in a brightly lighted room, over a period of several minutes, from distances ranging from a little more than eighteen inches away (Joy Smith) to ten to twelve feet away (Joyce Brisco). The fourth witness (Mary Matherne) was unsure of her identification of the defendant as the robber (although she positively identified defendant as the man in the photograph taken by the bank’s camera) because she only fleetingly saw his face. Joy Smith, the teller who was robbed, had looked defendant directly in the face at the time of the robbery.

The degree of attention of the witness.

The testimony of the witnesses demonstrates that the attention of each was directed to the robber and the event in progress.

The accuracy of the prior description of the criminal.

The record does not show any substantial inaccuracies in the descriptions provided by the witnesses.

The level of certainty of the identification.

Joy Smith, who had the best opportunity to observe the robber, positively identified defendant as the man who had committed the robbery. Although two other witnesses to the robbery, Charles Weaver and Joyce Brisco, were less certain, the general tenor of their testimony was that defendant was the man who had committed the robbery. The fourth witness, Mary Math-erne, positively identified the defendant seen in court as the individual in the photograph taken by the surveillance camera, based on her observation of his build and clothing.

The elapsed time between the crime and the confrontation.

The in-court identification of defendant was made approximately two years after the robbery; however, the testimony of each of the witnesses indicated that each substantially recalled the incident, including such incidental matters as the noise made by the malfunctioning camera, and the verbal exchanges with the robber. There is no indication that the witnesses’ memories were dulled by the passage of time.

The totality of the circumstances does not indicate a substantial likelihood of mis-identification, of such a nature as to violate due process. We do not find the in-court identification to be tainted and devoid of an independent source.

Similarly, we find no merit to defendant’s second assignment of error, claiming the identifications made by Joyce Brisco and Mary Matherne should be stricken because they were based on the statement made by Joy Smith, “That’s the guy who robbed me,” and not on the independent recollection of the witnesses. The record amply demonstrates that the identification made by these witnesses was based upon independent observation and memory.

ASSIGNMENTS OF ERROR NUMBERS THREE, FOUR AND FIVE:

In these assignments of error, defendant alleges that the trial court erred in overruling defendant’s objections to questions eliciting allegedly irrelevant information from State witnesses. The trial court has wide discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of that discretion. State v. West, 419 So.2d 868 (La.1982); State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), writ denied 433 So.2d 711 (La.1983). The questions objected to herein related to the credibility of the witness. We find no abuse of discretion.

ASSIGNMENT OF ERROR NUMBER SIX:

In this assignment of error, defendant alleges that the trial court erred in overruling his objection to State questions eliciting hearsay information from a prosecution witness. Specifically, the officer who developed the negatives removed from the bank’s surveillance camera, depicting defendant as the robber, was asked if his handwriting appeared in a corner of the photograph, and he responded that the handwriting was not his. The State continued to elicit information concerning the meaning of the written figures; although defendant objected, the court permitted the officer to testify.

Hearsay is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Hayes, 414 So.2d 717 (La.1982). The witness’s testimony regarding the markings on the photograph were hearsay, however, the markings have no relevance to defendant’s ultimate guilt or innocence. Thus, substantial rights of the defendant were not affected. LSA-C.Cr.P. 921; see also State v. Hayes, supra. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER SEVEN:

In this assignment of error, defendant alleges that the trial court erred in refusing to grant a mistrial after a police officer in response to a question asked by defense counsel on cross-examination mentioned evidence relating to other crimes alleged to have been committed by defendant.

Evidence of extraneous offenses is inadmissible because of the prejudicial effect upon the accused’s presumption of innocence. A prejudicial remark by a police officer, although not a “court official” for purposes of a mandatory mistrial, should be viewed with considerable concern as to the fairness of the trial and may require a mistrial. The necessity of granting a mistrial is left to the sound discretion of the trial court. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Montgomery, 432 So.2d 340 (La.App. 1st Cir.1983). Here, the questions propounded by defense counsel on cross-examination tended to encourage the answers to which defense counsel then objected. The trial court offered to give an admonition to the jury (see LSA-C.Cr.P. art. 771(2)), which offer defense counsel refused on the possibly valid ground that the admonition would emphasize the answer objected to in the eyes of the jury. However, in propounding the question, defense counsel left open the possibility that an answer would be elicited which would be damaging to defendant. We find no abuse of discretion in the refusal of the trial court to grant a mistrial. LSA-C.Cr.P. art. 771. ASSIGNMENT OF ERROR NUMBER EIGHT:

In this assignment of error, defendant alleges that the trial court erred in admitting a photograph into evidence without a showing of a proper chain of custody. A showing of a continuous chain of custody is not essential to the introduction of physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced is the same as the object originally seized by the officer. State v. Albert, supra. Any deficiencies in the chain of custody are attributable to the weight of the evidence, not to its admissibility. State v. Tonubbee, 420 So.2d 126 (La.1983); cert. denied — U.S. -, 103 S.Ct. 1768, 76 L.Ed.2d 342. We find no error in the admission of the photograph.

The conviction and sentence are affirmed.

AFFIRMED.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Jesse PENDERGIST, III.
    No. 83 KA 0712.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Writ Denied March 23, 1984.

      Julie Cullen, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Nathan Fisher, Williams & Fisher, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Jesse Pendergist, III, was charged by indictment with public bribery in violation of LSA-R.S. 14:118. Upon trial by jury, he was found guilty as charged. Defendant’s motion for new trial was denied. Thereafter, the trial court sentenced the defendant to pay a fine of $1,000 plus costs, or in default of payment thereof to be confined in parish jail for a period of ten months. Additionally, the court sentenced the defendant to be committed to the custody of the Louisiana Department of Corrections in accordance with LSA-R.S. 15:824 and confined for a period of thirty months at hard labor. The court gave the defendant credit for time served as a result of his arrest on the present charge only, from arrest to bond date and from conviction or remand to imposition of sentence. From his conviction and sentence, the defendant has appealed. Defendant has entered three assignments of error:

1. The trial court erred when it refused to allow cross-examination by the defense of state witness, Lionel Harris, concerning his taking of a polygraph test — an issue raised by the state on direct examination before the jury.
2. The trial court erred when it curtailed the defense’s cross-examination of Lionel Harris on two occasions about issues reflecting upon his credibility.
3. The trial court erred when it did not grant defendant’s motion for a new trial in view of the evidence presented.

Defendant was indicted on January 7, 1981, and charged with public bribery after he allegedly offered to return Lionel Harris to a position of employment with the City of Zachary, Louisiana, in order to influence the conduct and testimony of Harris before the East Baton Rouge Parish Special Grand Jury and at subsequent trial court proceedings arising out of the grand jury investigation. Harris, who had resigned his job as garbage collector for the city, had previously testified before the grand jury with regard to illegal activities allegedly conducted by Pendergist during his term as the interim mayor of the City of Zachary. By affidavit, Harris later recanted his testimony. He was also given a polygraph examination (lie-detector test), which was initiated by the defense. Then, Harris appeared before the grand jury again and revealed defendant’s offer. Based on this testimony, the grand jury indicted defendant for public bribery. At the trial, Harris testified for the prosecution that the affidavit did not contain the truth, and that he had signed it because he wanted to get his job back.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court erred in refusing to allow his cross-examination of Lionel Harris about the polygraph examination. Since such test is lacking in probative value and scientific reliability, as well as having an unduly prejudicial effect on lay triers of fact, the results of a lie-detector test are inadmissible when offered by either party, whether offered as substantive evidence or as evidence relating to the credibility of a party or witness. State v. Davis, 407 So.2d 702 (La.1981). We hold that the trial court did not err in refusing to permit examination of the witness about the polygraph examination.

Although defendant further argues that the state initiated testimony relating to the examination so that his cross-examination was proper, his failure to timely raise a contemporaneous objection constitutes a waiver of any such irregularity or error. LSA-C.Cr.P. art. 841. Under Article 841, a contemporaneous objection is required to preserve an error for appellate review. Our law requires that defendant make a contemporaneous objection and state the reasons therefor in order to allow the trial court an opportunity to rule on it and prevent or cure error. State v. Bat-cliff, 416 So.2d 528 (La.1982).

During the direct examination of Harris, the prosecution asked him several questions concerning what had transpired on the date the defendant allegedly offered to give Harris his job back with the City of Zachary in exchange for his retraction of the grand jury testimony he had previously given against Pendergist. The witness testified that on the date in question he was taken from the mayor’s office by the defendant to the office of the defendant’s attorney, and then to another building by an investigator for the defendant’s attorney. On this question, the following exchange between counsel for the state and Harris took place at the trial:

Q. Now when you got to this other building what happened to you?
A. Well, he asked me did I want to take a lie detector test or something like that.
Q. Okay, now what physically happened to you though in the office?
A. And then — he was — him and the man went out there and they left me in the coffee shop and—
Q. When you say him and the man, you mean the investigator and you [the] man you went to go see?
A. Yes, ma’am.
* * * * * *
Q. No, see that’s — don’t testify to what somebody else said to you. Just tell the jury what happened to you when you were there; what did they do?
A. They didn’t do nothing. After they got through — they put something on my arm, put something around my wrists and they had me on some kind of machine or something.
Q. All right. Now, how long did that last?
A. Oh, I must [have] stayed on there about thirty minutes, on that machine.
Q. All right. What were you thinking at the time when you were on that machine?
A. Well, I was thinking about I had to get out there and get my job to pay Ossie Brown because he — it was time for him to be paid [child support].
Q. All right. How long did they keep you hooked up to that machine, do you know?
A. About thirty minutes.
Q. And what happened to you after that?
A. Then they took it off of me and they told me to go and sit back out there in the coffee room and get another cup of coffee.

This testimony does not support appellant’s contention that the state opened the door to the subject of the polygraph examination. The record reflects that the prosecutor did not introduce the subject of the polygraph, but to the extent it was referred to it was interjected by the witness. In any event, we find that the trial judge correctly refused to allow the defense to bring out the results or details of the polygraph examination. In State v. Catanese, 368 So.2d 975 (La.1979), the State Supreme Court expressly held that evidence of a polygraph examination is inadmissible in criminal trials.

We hold that the trial judge did not abuse his discretion or in any way commit error by refusing to allow defense counsel to cross-examine Harris as to evidence of the polygraph examination, because such evidence is inadmissible in criminal trials, and because of the failure of the defense to timely object to the exchange in which the subject was mentioned on direct examination.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

The appellant also contends that the trial court erred in curtailing his cross-examination of a state witness, Lionel Harris, on two occasions, about issues reflecting upon Harris’ credibility, thus preventing him from establishing the general reputation of the witness in accordance with LSA-R.S. 15:491. Although appellant does not specify the particular occasions, it appears from the record that he is referring to the defense’s cross-examination of Harris as to his reason for leaving school in sixth grade. Prior to the commencement of the trial, on motion of the defense, the judge conducted a hearing on Harris’ competency as a witness. The court found Harris to be competent, and, then counsel for appellant withdrew his objection. Subsequently, upon his cross-examination of Harris, counsel for the defense asked Harris why he left school in the sixth grade, and Harris responded that he left because school officials wanted him to attend a school for slow learners, which he did not want to do. At this point, counsel for the state objected to that line of questioning. The court sustained the objection on the basis that the witness’ competency had already been ruled on. Shortly thereafter, counsel for appellant again attempted to elicit from the witness his reason for leaving school. The trial court again sustained the state’s objection. We find that the trial judge was correct in sustaining the state’s objection to this line of questioning. The issue of the witness’ competency had previously been ruled upon. If, as appellant states in his brief, the purpose of this line of questioning was to attack the witness’ general credibility this line of questioning was improper, because LSA-R.S. 15:490 provides that this may be done only by showing that his general reputation for truth or for moral character is bad, or by attacking his credibility in the particular case on trial. See also LSA-R.S. 15:494. The fact that Harris may have been asked to attend a special school for slow learners is not relevant to his credibility in this particular case, or his general reputation, or his moral character.

The second instance in the record which the defense refers to is his cross-examination of Harris as to the number of children he fathered out of wedlock and the ages of the mothers of those children. After extensive questioning of Harris on this subject by the defense, counsel for the state finally objected, on the ground that this line of questioning was irrelevant to the question of the witness’ credibility. The trial judge sustained the state’s objection.

In brief, the appellant contends that he should have been allowed to continue this line of questioning for the purpose of establishing the general reputation of the witness under LSA-R.S. 15:491. Although the credibility of a witness may be attacked by showing that his general reputation for truth or moral character is bad, this may be done only by inquiring into general reputation and not into particular acts, vices or courses of conduct. In State v. James, 305 So.2d 514 (La.1974), it was held that a similar line of questioning was improper as irrelevant, since the bad general reputation of a witness for moral character cannot be shown by particular conduct.

There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

Appellant next contends that the trial court erred in refusing to grant his motion for a new trial because the polygraph evidence which was admitted during the hearing on the motion for a new trial indicated that the appellant was telling the truth when he testified that he did not bribe Lionel Harris, and that Harris was in fact telling the truth when he stated he lied initially to the Grand Jury. This evidence, claims appellant, would have changed the minds of the jurors had they been allowed to consider it during the course of the trial.

At the hearing on the motion for a new trial, Don Zuelke, the person who administered the polygraph examination to Harris, testified that, in his opinion, the results of the examination indicated that Harris was in fact telling the truth when he stated that he lied initially to the Grand Jury. Zuelke also testified that the graphs depicting Harris’ examination had been destroyed, since at the time he administered the examination to Harris, September 18, 1980, his policy was not to keep such information in his files for more than one year.

While it is true that the Supreme Court in State v. Catanese, held that the evidence of a polygraph examination may be admissible in a post-trial proceeding, such as a motion for a new trial, the Court stated that its admissibility is left to the discretion of the trial judge, and is subject to guidelines such as those laid down by the trial judge in Catanese. One of those guidelines was that the charts or graphs be made available to the opposing side in advance of the hearing. As to the examination of Harris, this was not done; appellant’s expert testified that the charts of Harris’ examination were destroyed in accordance with his policy during that period.

The Louisiana Code of Criminal Procedure, in Article 851, provides for the motion for a new trial when an injustice has been done to the defendant. It also provides in pertinent part, as follows:

The court, on motion of the defendant, shall grant a new trial whenever:
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

Defendant based his motion for a new trial on two rulings of the court which he felt showed prejudicial error. The first ruling which defendant alleges showed prejudicial error was the refusal by the trial court to permit the defense to cross-examine Harris about the results of the lie-detector test after evidence that the test had been administered had been allegedly presented in the case-in-chief. The court sustained the state’s objection to the questioning because the results of lie-detector tests are not admissible in a criminal trial in Louisiana. State v. Davis; State v. Catanese. Since the jurisprudence clearly holds that these test results are not admissible at the trial, we do not find error in the refusal by the trial court to permit questioning in this area.

The second ruling complained of by defendant concerns the refusal of the trial court to permit defendant to challenge the credibility of a state witness by questioning him about his placement in a school for slow learners and about the ages of the women by whom defendant had fathered children. The court sustained the state’s objection by the state to questioning in these areas.

We do not find error in the rulings by the trial court. We note initially .that the trial court had previously found Harris to be a competent witness, and these matters relating to his competency were not proper subjects for questioning before the jury. Further we find no relevancy in the testimony with regard to the ages of the mothers of Harris’ children.

In the discipline of his court, the trial judge is vested with sound discretion to stop the “prolonged, unnecessary and irrelevant examination of a witness,” whether the examination is direct or cross, and even though counsel has not objected. LSA-R.S. 15:275. We find no abuse of discretion.

Defendant argues that the court erred in denying his motion for a new trial based on newly discovered evidence which would have changed the verdict of guilty, that being the results of the lie-detector tests administered to defendant and to Harris.

The provisions of the Code of Criminal Procedure relating to the grounds for a new trial on the basis of newly discovered evidence refer specifically to evidence which, if introduced at the trial, would probably have changed the verdict or judgment of guilty. Although the results of a lie-detector test are admissible in post-trial proceedings where the guilt or innocence of the accused is not at issue, State v. White, 389 So.2d 1300 (La.1980), the results are not admissible at trial as substantive evidence or as relating to the credibility of a party or witness. State v. Davis. Therefore, since the evidence could not have been admitted at the trial, we hold that this evidence alone cannot furnish the basis of an order for a new trial.

Moreover, we note that the results of the lie-detector test administered to Harris, which indicated that Harris was telling the truth when he stated he initially lied to the grand jury, have been available since September 1980, and thus do not qualify as newly discovered evidence.

In any event, even if this Court gives some weight to the favorable polygraph results, those results must be weighed against the evidence presented at trial. When the evidence is viewed in the light most favorable to the prosecution, it is sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant committed the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Harris was specific in his testimony relating to the details of the bribery offer. Although Harris recanted his testimony before the grand jury, he was definite in his testimony at his trial. Recantations of trial testimony should be viewed with the utmost suspicion. State v. Clayton, 427 So.2d 827 (La. 1983), on rehearing. We believe that the same rule should apply to the instant case, where the grand jury witness later returned to his original testimony. We find no basis for the assertion that the results of the lie-detector test are evidence so material that they ought to produce a different result from the verdict reached. State v. Chapman, 410 So.2d 689 (La.1982).

We find no error in the denial of the motion for a new trial on any of the bases urged herein.

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

AFFIRMED.

      . In State v. James, 305 So.2d at 520, the State Supreme Court, after ruling that the question was improper and the objection that it was irrelevant should have been sustained, held that it was not reversible error to have permitted the question and answer, because the answer, under the circumstances, did not materially affect the jury’s evaluation of the witness’ credibility.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Ronald SANDERS.
    No. 83 KA 0739.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie B. Brown, Dist. Atty. by Richard Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Ronald Sanders, defendant, was found guilty of attempted manslaughter and sentenced to seven years at hard labor. He appeals this sentence as excessive.

On September 28, 1981, defendant became involved in an altercation with the victim after he was observed slashing tires on the victim’s car. In the ensuing fight, the victim was stabbed nine times. The majority of these wounds were sustained in the victim’s back.

Defendant was charged by bill of information with attempted second degree murder in violation of La.R.S. 14:27 and 14:30.1. After a jury trial, the defendant was found guilty of attempted manslaughter and sentenced to seven years at hard labor. On appeal, he contends his sentence is excessive in that the trial judge failed to consider any mitigating factors when imposing the sentence.

La.C.Cr.P. art. 894.1 sets forth sentencing guidelines for the trial court. It provides three general conditions under which the court should impose a prison sentence. Another eleven factors are listed as considerations in determining a suspension of the sentence or probation. Finally, the statute requires the trial court to state for the record the considerations and the factual basis for imposing the given sentence. However, the trial court need not articulate every aggravating and mitigating circumstance. The record must reflect only that he adequately contemplated the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983).

Defendant asserts that the trial court articulated only those factors supporting the senténce given. While he contends that the trial court failed to articulate any mitigating circumstances, he failed to provide in brief, nor does the record show, that any were supplied the court.

In the instant case, the trial court articulated a litany of arrests, convictions, and prison terms served which support the sentence rendered. We find the trial court adequately complied with La.C.Cr.P. art. 894.1. Even assuming, arguendo, that La. C.Cr.P. art. 894.1 was not fully complied with, we find the sentence rendered to be valid in light of the entire record. See State v. Smith, 430 So.2d 31 (La.1983). Further, the trial judge has wide discretion in imposing sentences within the statutory limits. These sentences will not be set aside absent manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limits may be considered excessive. State v. Trahan, 412 So.2d 1294 (La.1982). Sentences grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering are prohibited by Louisiana Constitution of 1974, Article I, Section 20. State v. Willis, supra.

Here, the defendant was sentenced to seven years at hard labor. Under La.R.S. 14:27 and 14:31, the maximum period of imprisonment is ten years-six months.

Under the circumstances of this crime, we find the sentence imposed is neither grossly disproportionate nor a needless imposition of pain and suffering. On the contrary, we find the trial court sufficiently articulated the factual basis for the imposition of the sentence imposed. State ¶. Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).

For the above stated reasons, the sentence is affirmed.

AFFIRMED.

      . While defendant complained of 7 assignments of error, he briefed only assignment of error number 7. Assignments of error numbers 1-6, not having been briefed, are considered abandoned. Rule 2-12.4, Uniform Rules Courts of Appeal.

      . § 27. Attempt
      “A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      “B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      “C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
      "D. Whoever attempts to commit any crime shall be punished as follows:
      "(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
      "(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;

        "(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”

      . § 30.1. Second degree murder
      "Second degree murder is the killing of a human being:
      "(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      "(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of second degree murder shall be punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . Attempted manslaughter is a responsive verdict to Attempted Second Degree Murder. See La.C.Cr.P. art. 814 A.4.

      .§ 31. Manslaughter
      "Manslaughter is:
      "(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or
      "(2) A homicide committed, without any intent to cause death or great bodily harm.
      “(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
      "(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.

        Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.”


author: COLE, Judge.

text:
    STATE of Louisiana v. William A. SISK. STATE of Louisiana v. William A. SISK.
    Nos. 83 KA 0740, 83 KA 0741.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie B. Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Alex W. Wall, Jr., Wall, Thomas, Riche & Wall, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Defendant, William Anthony Sisk, was charged by bill of information with the attempted second degree murder of James Bourland, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. A jury convicted defendant as charged; and, after being adjudicated a second felony offender, he was sentenced to serve twenty years at hard labor. He has appealed, alleging three assignments of error:

(1) The trial court erred in refusing to grant defendant’s motion for a mistrial;

(2) The trial court erred in refusing to grant defendant’s motion for a new trial; and

(3) The trial court erred in refusing to dismiss the habitual offender petition under which defendant was sentenced as a second felony offender.

Defendant was charged with attempted second degree murder following an incident in which he allegedly chased Bourland in an automobile, firing several shots at him with a rifle. Two shots struck the victim's truck, one puncturing the tail gate, and the other entering a tool box in the back of the truck, shattering on impact. The chase continued until the victim stopped where a police car was parked off the road. Defendant was arrested the next day and charged as the person who attempted to kill Bourland or to inflict great bodily harm upon him.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant alleges the trial court erred in failing to grant his motion tor a mistrial. The motion was based on the alleged inadmissibility of “other crimes” evidence consisting of testimony of the victim and certain physical evidence. The motion for mistrial was not made until the conclusion of the state’s closing argument. Defendant concedes the attorney representing him at trial did not make a contemporaneous objection to the “other crimes” evidence but waited until the conclusion of the state’s closing argument. The defendant cites State v. Gaines, 347 So.2d 1153 (La.1977); State v. Lee, 346 So.2d 682 (La.1977); and State v. Ervin, 340 So.2d 1379 (La.1976), for the proposition that a motion for a mistrial is timely when it is made upon conclusion of the opening or closing statement. Gaines and Lee are distinguishable from the case before us in that the “objectionable evidence” was presented during the opening or closing statement and was not objected to until the conclusion of the statement. Ervin is distinguishable in that the question raised was the admission of testimony referring to a prior penitentiary sentence of the defendant to which defense counsel made a contemporaneous objection. In the case before us, the “other crimes” evidence was elicited during the direct examination of the victim and not objected to until the conclusion of the state’s closing argument. “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.Code Crim.P. art. 841. Accordingly, without deciding whether or not the evidence was inadmissible “other crimes” evidence, we find the defendant has waived any error based on this allegation by his failure to move timely for a mistrial or enter a contemporaneous objection. La.Code Crim.P. arts. 770, 771(2), 841; State v. Mouton, 327 So.2d 413 (La.1976).

ASSIGNMENT OF ERROR NUMBER TWO

Defendant combines his argument on this assignment with his argument on Assignment of Error Number One. He argues primarily the trial court erred in failing to grant a new trial based on the denial of the mistrial requested by defendant, which he alleges was prejudicial error. The substance of the argument is again that the “other crimes” evidence was erroneously admitted into the record by the trial court judge, thus prejudicial error. Having found no error on the part of the trial court in denying the mistrial, it follows there was no error in the denial of a motion for a new trial based essentially upon the same ground. La.Code Crim.P. art. 851; State v. Sneed, 328 So.2d 126 (La.1976).

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, defendant contends the trial court erred in refusing to dismiss the habitual offender petition under which he was sentenced as a second felony offender. On July 18, 1978, defendant pled guilty in Edwards County, Illinois, to a charge of arson. This guilty plea was used as the basis of the petition to have defendant declared a multiple offender under La.R.S. 15:529.1.

Defendant argues the Illinois guilty plea can not serve as a valid predicate for the habitual offender petition because the transcript of that plea is “Boykin defective” in that it fails to affirmatively disclose defendant was apprised of his right against self-incrimination. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) the United States Supreme Court held the right against self-incrimination, the right of trial by jury and the right to confront one’s accusers must be expressly waived before a guilty plea can be accepted in a state criminal proceeding.

In State v. Holden, 375 So.2d 1372 (La.1979), the Louisiana Supreme Court held in order to use a non-Louisiana guilty plea as the basis of a multiple offender prosecution, the State must prove the defendant was represented by counsel when the guilty plea was entered and the defendant must prove he did not waive his constitutional rights in making his plea. The court further noted that unless the colloquy of the guilty plea affirmatively shows a substantial defect in this regard, the defendant will be prohibited from making any collateral attack beyond the colloquy on an otherwise valid guilty plea used for an enhanced punishment proceeding.

A situation similar to the case before us was presented to the Louisiana Supreme Court in State v. McGinnis, 413 So.2d 1307 (La.1981), on rehearing. In that ease the defendant introduced a colloquy and a guilty plea form from a 1976 plea in the state of Washington, neither of which referred to defendant’s privilege against self-incrimination. The court concluded the defendant had shown affirmatively a substantial defect in the colloquy and held the guilty plea could not be used as a basis for enhanced punishment. See also, State v. Robicheaux, 412 So.2d 1313 (La.1982); and, State v. Martin, 382 So.2d 933 (La.1980).

The transcript of the Illinois plea introduced by the defendant reveals the following exchange:

“BY THE COURT: Gentlemen did you agree to the terms of that negotiated plea?
MR. SISK: Yes sir.
* * * * * sfc
BY THE COURT: You fully understand the terms of the negotiated plea? DEFENDANT SISK: Yes.
* * * ⅜: * *
BY THE COURT: You understand what you are pleading guilty to?
DEFENDANT SISK: Yes.
BY THE COURT: In spite of the fact you are tendering the Court a plea of guilty you have the right to stand on a not guilty plea. You have the right to a trial, to crossexamine (sic) witnesses. You have to be proven guilty beyond a reasonable doubt. You understand if I accept your plea of guilty you are giving up those rights?
DEFENDANT SISK: Yes.
* * * * * *
BY THE COURT: Is your plea voluntary?
DEFENDANT SISK: Yes.”

At the hearing on the multiple offender petition, the court isolated the following language, as an expression of the right against self-incrimination:

“In spite of the fact you’re tendering the court a plea of guilty, you have the right to stand on a not guilty plea. You have to be proven guilty beyond a reasonable doubt. You understand if I accept your plea you’re giving up those rights.”

In commenting on the language the court explained: “All right, that is precisely the right against self-incrimination, that you have the right to stand on a not guilty plea without assuming any burden. You have a right not to incriminate yourself, and the state must prove you guilty beyond a reasonable doubt. And by pleading guilty, you are giving up that right.” The court commented further: “[T]he defendant did properly waive, knowingly and intentionally, his constitutional rights after being advised by the court of those rights.”

While this court recognizes the defendant voluntarily and knowingly entered the plea of guilty to the arson charge in Illinois, we do not find the language relied upon by the trial court to satisfy the stringent test laid down by our Supreme Court in Holden, McGinnis, Robicheaux, and Martin, supra. In the words of Justice Lemmon, dissenting in Robicheaux, the result is “an unreasonably formalistic approach.” Justice Lemmon reasoned:

“The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), did not establish a sort of Miranda warning for guilty pleas. The Court did not require the defendant, pri- or to his plea of guilty, be informed in literal terms of his right to remain silent at trial. Boykin simply required, as a matter of constitutional due process, that the record (either on direct appeal or as developed in a postconviction hearing) establish that the defendant entered the plea of guilty voluntarily and knowingly....
“When an appellate court reviews a guilty plea for constitutional validity, the determination depends on the totality of circumstances in each individual case and not on any three-right articulation or other magic word formula. In the present case there was no constitutional violation, and we are not required by the Boykin decision or by any other constitutional principle to deny the state the use of the prior conviction to enhance defendant’s sentence for his subsequent committed offense.” 412 So.2d 1321, 1322.

We find ourselves in complete agreement with the quoted views of Justice Lemmon but, unfortunately, they conflict with the thrust of the jurisprudence controlling our disposition of the issue. Because the Illinois court did not use the magic words in explaining affirmatively defendant’s privilege against self-incrimination, i.e., his right to stand trial without being forced to testify against himself, McGinnis dictates his guilty plea therein can not be used as a predicate for a multiple-offender proceeding in Louisiana. We so hold though we deem the result illogical and contrary to the proper administration of criminal justice.

We hereby affirm the attempted second degree murder conviction. The defendant’s adjudication and sentence as a second felony offender are reversed, and the case is remanded for re-sentencing.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . The attempted second degree murder conviction and the second felony offender adjudication were consolidated for appeal.

      . This is not only abundantly clear from the transcript of the proceedings but, in addition, the very nature of the "negotiated plea” or the plea bargain entered into by defendant through counsel validates his intent and understanding.


author: ALFORD, Judge.

text:
    In the Interest of George William NORTON, Jr.
    No. 83 CJ 0745.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Pamela Taylor, Dept, of Health and Human Resources, Baton Rouge, for appellant.
    Frank L. Koles, III, Asst. Dist. Atty., Livingston, for the State.
    Jefferson D. Hughes, Walker, for parents.
    Keith Rowe, Public Defender, Livingston, for child.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Juvenile Court, Parish of Livingston, continuing the care, custody and control of the minor, George Norton, Jr., with the Department of Health and Human Resources, Division of Evaluation and Services (hereinafter referred to as the DHHR). Appellant, DHHR, alleges that the Juvenile Court exceeded its statutory authority in ordering, after assigning custody of the minor to it, that the DHHR not pursue a particular case plan for the future placement of George.

George Norton, Jr., initially came into the care of the DHHR on November 12, 1981, as the result of being abandoned by his mother. A seventy-two (72) hour hearing was held on November 16, 1981, wherein custody was continued with the DHHR. On February 16, 1983, a custody hearing was conducted by the Juvenile Court to determine whether George should be returned to his parents or his custody continued in the DHHR. At this hearing, the Court heard testimony from the DHHR official assigned to the case, George’s father and George’s aunt and uncle, Mr. and Mrs. Alexander. Not only did the DHHR request continued custody, but it also submitted a case plan for the future placement of George in the Alexander’s home.

At the conclusion of the custody hearing, judgment was rendered continuing the custody of the minor with the DHHR. However, on May 2, 1983, the Juvenile Court rendered an amended judgment with written reasons. In this amended judgment, custody was again continued in DHHR, but it was further ordered that the DHHR abandon the case plan for the placement of George in the Alexander’s home. It is from that portion of the judgment ordering the abandonment of the case plan that appellant appeals.

In his written reasons, the judge noted that he felt that the Alexanders were very fine individuals but that they simply did not possess the financial resources necessary to qualify as suitable foster parents. Having found the Alexanders unsuitable as possible foster parents, the Court reasoned that it was unnecessary for the case plan for placement of the minor with the couple to be continued. Additionally, the Court noted that George had been in the home of Mr. and Mrs. Henry Martin, whom he considered his psychological parents, since November 12, 1981, and to uproot the child from this home would have a detrimental effect on him.

Appellant questions the authority of the Juvenile Court to determine actual placement of the child after assigning custody to it. The question of wherein lies the ultimate authority to place a child adjudged to be in need of care or supervision has been considered by the Louisiana State Supreme Court in, State In Interest of Sapia, 397 So.2d 469 (La.1981). In Sapia, at page 473, the Court stated,

C.J.P. arts. 84 and 85 give the juvenile court the power and authority to assign custody of a child adjudged in need of care or supervision to any person or agency, whether public or private, which it deems will serve the best interest of the child. R.S. 13:1580 gives the Department of Health and Human Resources the authority to place a child in the facility which it determines will serve the child’s best interests where the child has been initially referred to the Department for treatment and assigned to their custody by the juvenile court. Therefore, the juvenile court judge initially determines where custody of the child shall be assigned. Once the judge determines the custody of the child should be assigned to the Department of Health and Human Resources, and so assigns custody of the child, the Department then has the authority to determine where the child should be placed. If the court determines that the child is not being properly cared for it may remove custody from the Department and place it elsewhere.

It is apparent from the above that the Juvenile Court did in fact exceed its authority in ordering the Alexander case plan abandoned. Rather than merely reverse that portion of the judgment, however, we are convinced that it is in the best interest of the minor, George Norton, Jr., to reverse the entire judgment and remand the matter for reconsideration.

There can be no doubt from the judge’s written reasons that he feels George should be in the Martin home. Were we to simply reverse that portion of the judgment complained of, thus allowing the DHHR to continue the Alexander case plan, it would in all likelihood result in the Juvenile Court removing custody from the DHHR at a subsequent date. We are of the opinion that it would not be in the best interest of this child to subject him to such a situation.

Therefore, for the foregoing reasons, the judgment of the Juvenile Court assigning custody to the DHHR and ordering the abandonment of the Alexander case plan is hereby reversed. Additionally, the matter is remanded for reconsideration of the custody issue in accordance with the views expressed herein.

REVERSED AND REMANDED.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Horace WASHINGTON.
    No. 83 KA 0760.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 16, 1984.

      Louis Thad Toups and Walter K. Naquin, Jr., Asst. Dist. Attys., Thibodaux, for plaintiff, State of Louisiana.
    Martin J. Caillouet, Thibodaux, for defendant, Horace Washington.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Horace Washington, was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve twenty-five years with the Department of Corrections without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction alleging four assignments of error.

On the morning of December 18, 1981, two armed black men committed a robbery at the Des Allemands Branch of the Race-land Bank and Trust Company located near the border of Lafourche and St. Charles Parishes. The robbers were thought to have escaped on foot along the railroad tracks behind the bank and believed to have headed into St. Charles Parish. Using a K-9 dog, the police followed the robbers’ trail into the swamp and back to the railroad tracks.

About two hours after the robbery, Major Ronald Katz and Deputy Eddie Ro-drigue, Jr. saw Washington and Darryl Turner walking along the railroad tracks, about 5V2 miles from the bank. After asking them to come down from the tracks, one officer asked if they knew about the bank robbery. Turner admitted they had committed the robbery and said he would show them where the money was located. At that point, Detective Katz arrested them and advised them of their Miranda rights. Turner then took the officers to the place where the stolen money and two pistols were hidden. Defendant Washington filed motions to suppress physical evidence and statements. These motions were denied.

On appeal defendant urges four assignments of error:

(1) The trial court erred in denying defendant’s motion to suppress evidence and incuplatory statements as they were fruits of an illegal arrest;
(2) The trial court erred in allowing Deputy Eddie Rodrigue, Jr., of the La-fourche Parish Sheriff’s Office, to testify concerning hearsay;
(3) The trial court erred in allowing Major Ronald Katz, of the Lafource Parish Sheriff’s Office, to testify concerning hearsay; and,
(4) The prosecuting District Attorney made prejudicial remarks during his closing argument, and therefore, defendant’s conviction should be reversed.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court committed reversible error by denying his motions to suppress evidence and inculpato-ry statements which he contends were fruits of an illegal arrest. The defense argues that the defendant and Turner were questioned without being advised of their Miranda rights, that no probable cause existed for the arrest, and that the officers made the arrest outside their territorial jurisdiction.

The Fourth Amendment of the United States Constitution and Article 1, § 5, of the Louisiana Constitution protect citizens from unreasonable searches and seizures. Implicit within this protection is the legal restraint upon police from approaching citizens under circumstances that make it seem that detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual. State v. Duplessis, 391 So.2d 1116 (La.1980). However, police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with a citizen. The fact that the police approach a citizen and address him does not compel that citizen to respond, and nothing prevents that citizen from choosing not to answer or from walking away. State v. Shy, 373 So.2d 145 (La.1979); State v. Beasley, 430 So.2d 1273 (La.App. 1st Cir. 1983).

In the case sub judice, the police officers saw the defendants walking along the railroad tracks. The officers asked defendants to come down from the tracks and questioned them as to what they were doing in the area. At this point, defendant Turner stated that he and Washington had committed the robbery. Thus Turner, under non-coercive circumstances, chose to respond to the officers’ questions and made a voluntary inculpatory statement. This statement was made before Turner was in custody or detained and, thus, before Miranda warnings were required. State v. Menne, 380 So.2d 14 (La.1980), cert. denied 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980).

The defense further contends that the physical evidence (money and pistol) should have been suppressed because it was fruit of an arrest made without probable cause. Probable cause is determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. State v. Johnson, 422 So.2d 1125 (La.1982). We find that probable cause existed for the arrest when Turner confessed.

The defense also contends that the arrest was illegal because it occurred a few miles outside the Lafourche Parish deputies’ territorial jurisdiction. The codal provisions which authorize lawful arrest both with and without a warrant empower officers in close pursuit to leave their territorial jurisdiction for the purpose of effecting an arrest. LSA-C.Cr.P. arts. 204, 213; State v. Bickham, 404 So.2d 929 (La. 1981).

In the instant case the robbery occurred shortly after 10:00 a.m. The sheriffs office was contacted immediately, and officers began trailing the robbers. When the officers encountered Turner and Washington on the railroad tracks, only two hours had elapsed since the robbery. In addition, the officers were only five and a half miles from where the robbery had occurred. We find the exception of close pursuit applicable.

Moreover, defendant was arrested for a felony, and LSA-C.Cr.P. arts. 213(3) and 214 authorize private citizens and peace officers alike to arrest for felonies not committed in their presence. Thus, even if the officers were acting only as private citizens when they effectuated the arrest, it was valid under Louisiana statutory law. State v. Bickham, supra.

Therefore, the money and guns obtained were not fruits of an illegal arrest and were properly admitted as evidence.

ASSIGNMENTS OF ERROR NOS. TWO AND THREE

Defendant contends that the trial judge committed reversible error by allowing Eddie Rodrigue, Jr. and Ronald Katz to testify as to Turner’s statement that he and Washington had committed the bank robbery. The trial court ruled that Turner’s statements were hearsay but admissible under the res gestae exception as they were part of one continuous act following the robbery. We agree.

What forms part of the res ges-tae is always admissible in evidence. LSA-R.S. 15:447. To constitute res gestae, the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:448. In Louisiana, the res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after commission of the crime, if the continuous chain of events is evident under the circumstances. State v. Kimble, 407 So.2d 693 (La. 1981).

The defense contends that, since Turner’s statements were made more than two hours after the robbery and five miles from the location of the robbery, they were not part of the incident of the criminal act nor part of a continuous transaction.

Defendant cites State v. Gautreaux, 377 So.2d 289 (La.1979), which held a statement made ten to thirty minutes after the crime was not part of the res gestae. In that case, however, the defendant left the scene, stopped' at a gas station and joined a nonparticipating friend and others. His statement did not occur under the immediate pressure of the stabbing but during a laughter filled post mortem of the fight by the participants. Furthermore, the Louisiana Supreme Court has held that even a conversation held three weeks after the criminal act was part of one continuous transaction and, therefore, admissible under the res gestae exception. State v. Feeback, 414 So.2d 1229 (La.1982).

In the instant case, two black men robbed the bank, and the robbers escaped through a fence that led to the railroad tracks. A K-9 dog was used to track their trail which headed towards New Orleans. The trail followed the railroad tracks, occasionally going into the wooded swamp area. Two black men, defendant and Turner, were found walking along the railroad tracks headed in the direction of New Orleans. They were wet almost up to their waists.

We find that a continuous chain of events occurred from the time of the bank robbery until defendant and Turner were found walking along the railroad tracks and Turner admitted they committed the robbery. Thus, we hold the statements were part of the res gestae and admissible.

ASSIGNMENT OF ERROR NUMBER FOUR

The defense contends that during closing argument the prosecutor made prejudicial remarks which warrant a reversal of defendant’s conviction.

When a prejudicial remark is made in the presence of the jury, the remedy provided is either mistrial or admonition. LSA-C.Cr.P. arts. 770, 771. However, where the defendant does not object to the comments made to the jury, move for a mistrial, or ask that the jury be admonished to disregard the comments, then the trial judge has been afforded no opportunity for review. LSA-C.Cr.P. art. 841; State v. Brogdon, 426 So.2d 158 (La.1983).

In the present case, the defense did not object to the remarks made. In addition, there was no request for an admonition or motion for mistrial. Defendant, therefore, is deemed to have waived any error on appeal which he may have claimed under the above cited articles.

For the above and foregoing reasons, we find no merit to any of defendant’s contentions. Accordingly, the defendant’s conviction is affirmed.

AFFIRMED.

      . The defense attorney in his closing remarks stated:
      "Very important, where are Ernest Dorsey and Wilbert Howard? They were also arrested and charged with this crime. Why weren’t they presented today to explain what happened? If the State has such a convincing case, why weren’t these people here to testify? Now, did Darryl Turner commit the robbery with Ernest Dorsey or did he commit it with Wilbert Howard? I don’t known and you don’t know and the reason none of us know is because the State failed to produce these people to explain it.”
      On rebuttal, the assistant district attorney stated:
      "Also, a Mr. Dorsey and Howard have been mentioned and much has been made of the fact that we have not called them to testify regarding participation in the robbery. If that is the case and if they can prove or it we — why weren’t they called by the defense to show that Mr. Washington did not commit the robbery?”


text:
    STATE of Louisiana v. Roy R. MORGAN.
    No. 83 KA 0783.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty. by Thomas Damico, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Pournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Roy R. Morgan, was convicted of aggravated rape, a violation of LSA-R.S. 14:42, and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals on the basis of four assignments of error.

FACTS

About 3:30 a.m. on September 23, 1981, while the victim was asleep in bed with her four-year old child, a man broke into her apartment. The victim awoke to find a man, whom she had never seen before, standing by the side of her bed. She jumped up and tried to make it to the door, but he grabbed her and they struggled, his sunglasses coming off in the process. She was struck about the head. Her assailant also threatened to cut her throat with a knife if she did not submit to him. She struggled to get away, but the attacker forced her back on the bed and raped her. Both the (adjoining) bathroom light and the porch light were on and shone into the bedroom, so the victim was able to clearly see her attacker. She at last managed to get free, and ran to the front door of her apartment. The rapist chased her, and during the ensuing struggle broke through the glass on the side of the front door cutting his left arm, which left spots of blood. The victim managed to get the front door open, and the man ran out into the night. She went next door and called the police, who took her to the hospital, where she was examined. Later that same day, about 4:00 p.m., a police detective brought the victim a photographic line-up. The victim identified her assailant from the line-up as the defendant, Roy R. Morgan. Defendant was arrested and brought to trial.

ASSIGNMENTS OP ERROR

1. The trial court erred when it allowed irrelevant testimony by a state witness.

2. The trial court erred when it allowed the prosecutor to be a witness.

3. The trial court erred when it granted the prosecution the opportunity to impeach its own witness.

4. The trial court erred when it allowed pre-trial identification photographs, one of which was of the appellant, to be entered as evidence.

Defendant argues in brief only Assignments of Error Nos. 2, 3, and 4, hence Assignment of Error No. 1 is considered abandoned. Rule 2-12.4, Uniform Rules— Courts of Appeal, State of Louisiana.

ASSIGNMENTS OF ERROR NOS. 2 AND 3: IMPEACHMENT OF WITNESS:

Defendant contends that the trial court erred by overruling defendant’s objection to the admission of irrelevant testimonial evidence by a state witness, arguing that the trial court’s error resulted in substantial prejudice to defendant’s rights in that it was damaging evidence considered by the judge in making his ruling to allow the state to attempt to impeach its own witness.

The irrelevant testimony complained of is as follows:

Q. All right. Has he ever expressed concern to you about that fact that he doesn’t wish other people to know either he’s homosexual or that he’s had relations, homosexual relations with this man?
A. . He expressed a fear of Roy Morgan. Uh, he didn’t come right out and say he didn’t want anybody to know that he was a homosexual, but he did talk to me and, uh, relay to me that word had gotten to him from Roy Morgan that, uh, if he ever got out that, uh, that Maurice Charles ...
MR. JACKSON: Now ...
A. Would suffer.

The state called Maurice Carroll [Charles] to testify as to whether the defendant had ever gone to Carroll’s apartment to engage in homosexual relations. Carroll responded in the negative. The jury was dismissed. The state pleaded surprise, and moved to be allowed to impeach its own witness on the ground that Carroll had previously told the prosecutor and his investigator that the defendant had gone to Carroll’s apartment for the purpose of engaging in homosexual relations with him.

The trial judge stated that he would listen to the state’s offer of proof of a prior inconsistent statement by Carroll before ruling whether the state would be allowed to impeach him in the jury’s presence.

Whereupon, the state called its investigator to testify, out of the jury’s presence, that Carroll had told him that the defendant had been to Carroll’s apartment and had raped him [Carroll].

In overruling the defendant’s objection on grounds of relevancy, the court explained the purpose of this offer of proof, out of the jury’s presence, as follows:

THE COURT: All right, now, I’m trying to decide it out of the presence of the jury, and it goes to whether or not I’m going to let, uh, the State impeach its own witness. I have no fear of creating any error so long as I’m out of the presence of that jury, so I’m going to hear the whole thing, gentlemen. I’m going to let it all hang out so I can have it all there to help me decide it, and y’all can object all you want, and I’m still going to hear it.

After the investigator testified, the prosecutor also testified as to what Carroll had related to him concerning Carroll’s homosexual encounter with the defendant. The jury was not present when the prosecutor testified. The trial judge overruled the defendant’s objection.

LSA-R.S. 15:488 defines “surprise” and provides: •

“Surprise” in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.

LSA-R.S. 15:493 provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such a statement, evidence that he did make it is admissible.

This testimony was heard by the court out of the jury's presence, while the judge was conducting a hearing on the question of the state’s impeachment of its own witness. If evidence is relevant and otherwise admissible, the fact that it is prejudicial does not bar its admission. LSA-R.S. 15:441; State v. Chaney, 423 So.2d 1092 (La.1982).

The record before us reveals that the victim testified that her assailant said at the time of the rape that he had previously been in the apartment where the rape was committed and had committed sexual acts with the previous tenant. However, the previous tenant, Carroll, testified that the accused had “come to visit his other friend next door”, that the accused had never done a homosexual act with him. At this point the jury was retired, and the state was allowed to present evidence to the judge alone, through the testimony of the state investigator and the prosecutor, to justify impeachment proceedings. The judge determined, out of the presence of the jury, that there was sufficient evidence to allow the state to impeach its own witness. When the jury was returned, the state continued questioning Carroll. The witness then admitted that the defendant had been in his apartment on a prior occasion, and that there had been homosexual activity between defendant and the witness. The state then chose not to impeach the witness in front of the jury; therefore, the need to establish a foundation never arose. Moreover, the hearing conducted by the trial judge out of the presence of the jury was not held to impeach the state’s witness, but solely for the purpose of determining if the state had sufficient grounds for the impeachment of its own witness in front of the jury.

The testimony of the prosecutor to lay the foundation for impeachment was clearly relevant. Therefore, it was admissible under LSA-R.S. 15:441.' Moreover, much discretion is afforded the trial court in determining issues of relevancy, and error in determining such issue is not reversible unless defendant demonstrates prejudice. LSA-C.Cr.P. art. 921; State v. Chaney. No such prejudice has been demonstrated.

There is no merit to these assignments of error.

ASSIGNMENT OF ERROR NO. 4 — PHOTOGRAPHIC LINEUP

The defendant contends in this assignment that the lineup procedure used in identifying him was impermissibly suggestive. As the United States Supreme Court said in Mason v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977):

... [Reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in [Neil v.] Biggers, 409 U.S. [188] at 199-200, 93 S.Ct. [375] at 382 [34 L.Ed.2d 401]. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Applying this analysis to the instant case, the victim was with the man who raped her, for fifteen minutes. While he was in her bedroom, the light from the adjoining room was sufficient so that she had a clear view of her attacker. Being the victim, her attention was obviously fixed upon the perpetrator. The victim gave a description of the assailant to the police shortly after the crime. At the photographic lineup which was held, the victim immediately identified the defendant as the rapist. Under such circumstances, the corrupting effect of the identification itself is minimal.

The defendant asserts in his brief that the defendant appeared in the photo lineup wearing a T-shirt and a bandana and that this was suggestive because none of the other five males depicted was wearing a bandana. The record shows that this statement is unfounded. The record reflects that six light-skinned black males were depicted on the inside of a manilla folder. All had mustaches, similar hair styles, and similar facial characteristics. Four of the six persons were wearing tank tops, one .had on a T-shirt, and the other had on a jacket over a T-shirt and a bandana around his neck. The defendant was wearing a tank top. There are sufficient similarities to test the identification.

The victim described her assailant to the police as being a light-skinned black man with a small afro and a “slight” mustache. She also said that he was wearing a T-shirt and a bandana.

As this Court noted in State v. Márchese, 430 So.2d 1303 (La.App. 1st Cir.1983), in reviewing an identification procedure, the trial court must determine whether the procedure was so unnecessarily suggestive and so conducive to irreparable mistaken identification that the defendant was denied due process of law. In making its determination, the court must look at the totality of the circumstances surrounding the identification procedure.

We hold that the photographic lineup was properly admitted. The victim had ample opportunity to view her assailant in good light during the commission of the rape. Her prior description was sufficiently accurate, and she was able to immediately choose the defendant as her assailant from the lineup. The lineup was conducted on the same day as the offense, so that the length of time between the crime and the identification cannot be said to be inordinately long.

The fact that the victim was able, very shortly after the crime, to pick the defendant from the photographic lineup and identify him positively as the perpetrator is highly relevant, and clearly outweighs any possible prejudicial effect. State v. Williams, 402 So.2d 678 (La.1981).

We find that the photographic lineup in which the victim identified defendant’s picture as that of her assailant was not imper-missibly suggestive. As stated above, the record reveals that the victim had ample time to view her assailant in close proximity during the perpetration of the crime. The record also reveals that the victim was presented with the photo lineup on the same day that the offense occurred. These facts clearly demonstrate that the victim’s identification was' reliable. We find that the risk of misidentification was insubstantial and unlikely under these circumstances.

There is no merit to this assignment of error.

DECREE

For the above reasons, the conviction and sentence of Roy R. Morgan of the crime of aggravated rape are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Charles PERRY.
    No. 83 KA 0802.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty. by Lou Daniel, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Charles Perry, Jr., defendant, pled guilty to felony theft and was sentenced to ten years at hard labor. He appeals his sentence as excessive.

On or about September 5, 1981, defendant was observed putting thirty-six pair of gloves into a bag and leaving Montgomery Ward’s Department Store without paying for such items. Defendant was subsequently charged by bill of information with one count of felony theft in violation of L.S.A.-R.S. 14:67. He pled guilty and was sentenced to ten years at hard labor. On appeal, defendant contends his sentence is excessive in that the trial court failed to consider certain enumerated mitigating factors in imposing sentence.

Defendant asserts that he has an on-going drug problem which he acquired while serving in the U.S. Military. He further stated that he had received an honorable discharge from the military. Defendant also contends that his married status and two children are mitigating factors which should have been considered.

La.C.Cr.P. art. 894.1 sets forth sentencing guidelines for the trial court. It provides three general conditions under which the court should impose a prison sentence. Another eleven factors are listed as considerations in determining suspension of sentence or probation. Finally, the statute requires the trial court to state for the record, the considerations and factual basis for imposing the given sentence. However, the trial court need not articulate every aggravating and mitigating circumstance. The record must reflect only that he adequately contemplated the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983).

We find the trial court adequately complied with La.C.Cr.P. art. 894.1. The trial judge specifically referred to all of the mitigating factors advanced by the defendant. Further, the trial court stated that the defendant had been arrested five times for various offenses between the instant charge and his date of sentencing. The record also reflects that defendant has a past history of theft, including one other felony count.

The trial judge has wide discretion in imposition of sentences within the statutory limits. These sentences will not be set aside absent manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limits may be considered excessive. State v. Trahan, 412 So.2d 1294 (La. 1982). Those sentences grossly out of proportion to the severity of the crime or nothing more than purposeless and needless imposition of pain and suffering are prohibited by the Louisiana Constitution of 1974, Article I, Section 20. State v. Willis, supra.

Based upon this record, we find that the sentence imposed is neither grossly disproportionate nor a needless imposition of pain and suffering. On the contrary, we believe there is more than adequate justification for the sentence imposed. The sentence is affirmed.

AFFIRMED.

      . § 67. Theft
      "Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      "Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
      “When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
      “When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
      "When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense.”


text:
    STATE of Louisiana v. Steven JAMES.
    No. 83 KA 0813.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie B. Brown, Dist. Atty. by Brett Grayson, Leila Withers, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The single issue in this case is whether or not defendant was denied a speedy trial.

On September 23, 1981, defendant, Steven James was charged by bill of information with aggravated burglary, a violation of La.R.S. 14:60. The alleged offense occurred on August 20, 1981. A second bill of information, charging the same offense, was filed on September 8, 1982. On September 23, 1982, defendant was arraigned and pled not guilty; a trial date of November 16, 1982, was set. On November 16, 1982, the state requested a continuance due to another trial being in progress. Defendant was not present in court but his counsel objected to the continuance. Trial was rescheduled for January 20, 1983.

On January 13, 1983, defendant filed motions for discovery and for a preliminary examination which on January 26th were set for hearing on March 21, 1983, later changed to March 28, 1983. On January 20, 1983, the State again moved for a continuance because of another trial being in progress and, over defense objection, the trial was rescheduled for March 28, 1983. On March 28, the preliminary examination was held and the court found probable cause to hold the accused. Then, on motion of the defendant, trial on the merits was passed and the case was reassigned for May 9, 1983. Also on March 28, 1983, defendant filed a motion to quash the bill of information on the grounds he had been denied his right to a speedy trial and the trial would constitute double jeopardy. A hearing on the motion to quash was held May 9, 1983. The court denied the motion, defendant withdrew his previous plea, entered a plea of guilty, and reserved his right to contest the ruling on the motion to quash. Defendant then filed this appeal, alleging the court erred in denying his motion to quash.

When determining whether or not defendant has been deprived of a speedy trial we must apply a balancing test by examining four factors: the length of the delay, the reason for the delay, defendant’s assertion of his right to a speedy trial, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Dewey, 408 So.2d 1255 (La.1982). Although the constitutional right to a speedy trial cannot be infringed by legislation granting prolonged and unnecessary delays, the legislation fixing the time limitations for prosecution do serve to establish legislative recognition of the delays which the legislature has found to be reasonable. See State v. Gladden, 260 La. 735, 257 So.2d 388 (1972), rehearing denied 1972; appeal dismissed, cert. den. 410 U.S. 920, 93 S.Ct. 1377, 35 L.Ed.2d 581 (1973).

La.Code Crim.P. art. 578 sets forth' the following delay:

“Except as otherwise provided in this Chapter, no trial shall be commenced:
* * * * * *
“(2) In other felony cases after two ■ years from the date of institution of the prosecution; ...”

The right to a speedy trial attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. State v. Dewey, supra. The offense in this case occurred August 29, 1981. Defendant was arrested shortly thereafter and the first bill of information was filed September 23, 1981. At most, the delay in this case was twenty months and nineteen days. The State, under La. Code Crim.P. art. 578, had more than three months left within which to bring defendant to trial. The matter was disposed of on May 9, 1983, when defendant entered his guilty plea.

The second factor to consider is the reason for the delays. The record does not indicate the reason for delays which were granted under the first bill of information. As to the second bill, minute entries show the first two continuances were necessary because other trials were in progress. There is no indication the State deliberately delayed the trial in an attempt to hamper the defense. See State v. McDaniel, 340 So.2d 242 (La.1976), rehearing denied 1976. The final delay was, according to the minutes of the court, requested by the defense. Defense counsel contends otherwise and argues this delay was necessary because the State had not answered the discovery. We find the reasons for the delays to be legitimate and we conclude they are not tantamount to the denial of a speedy trial.

The third factor is the defendant’s assertion of his right to a speedy trial. The first formal assertion of this right by defendant was made in his motion to quash on March 28, 1983. The matter was disposed of approximately six weeks later when the hearing was held, the motion was denied, and defendant pled guilty. We do not agree with defendant’s argument that his objections to the continuances were assertions of his right to a speedy trial.

The fourth factor is the prejudice suffered by defendant because of the delay. There is no assertion of any prejudice whatsoever, other than possible anxiety and concern. There is no allegation defendant’s defense was hampered because of the. delay, nor that he suffered an economic and psychological burden by repeated futile court appearances. See State v. Reaves, 376 So.2d 136 (La.1979). A significant fact is that during much of this period defendant was incarcerated at Angola, serving time on other charges. Therefore we find he was not prejudiced significantly by the delay.

In summation, we find the length of the delay to be reasonable and well within the legislative limits; the reasons for the delay justifiable; the formal assertion of the right was not made until 19 months after institution of prosecution; and defendant has failed to show any real prejudice as a result of the delay. Since we find the denial of the motion quash by the trial court to have been correct, we affirm the conviction and sentence of the defendant.

AFFIRMED.

      . Defendant raised two other errors on appeal but failed to brief them. Errors not briefed are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

      . The State also contends one of the continuances was due to the failure of authorities to present the defendant in court from Angola after the State had filed timely a petition requesting his transfer.