author:
DOMENGEAUX, Judge.

      DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Darnell Jerome HUNTLEY, Defendant-Appellant.
    No. CR83-20.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      John M. Crochet, Rogers, St. Romain & Oubre, Lake Charles, for defendant-appellant.
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

Defendant, Darnell Jerome Huntley, was charged by grand jury indictment with one count of first degree murder, a violation of LSA-R.S. 14:30. He was tried by jury and found guilty as charged on September 30, 1982. The district judge sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole, suspension or commutation of sentence. Defendant appeals the verdict and sentence, and presents fifteen assignments of error.

FACTS

On February 26, 1980, Abbeville City Police Officers discovered the body of Mrs. Helen Wright inside her small grocery store. Mrs. Wright, an elderly woman, had been killed by a blow to the head administered by a piece of galvanized pipe which was later discovered approximately fifty feet away from the store. A bank money bag missing from the store’s register was found discarded in a vacant lot near defendant’s home. The State’s case against the defendant was based largely on circumstantial evidence. Two women sighted defendant about a block away from the Wright store and walking with a short piece of pipe in his hand. The driver of the car, defendant’s aunt by marriage, stated that defendant recognized her car and made an attempt to conceal the pipe. Defendant’s cousin and long-time friend testified that sometime between 11:15 A.M. and 11:30 A.M. they observed defendant running down a path leading away from the Wright store and that they within minutes heard sirens. A report filed by Acadian Ambulance Service states that an ambulance arrived at the scene at 11:33 A.M.

Perhaps most damaging to defendant’s case was the testimony of Ms. Alverta Maze. She stated that at approximately 1:30 P.M. on the day of the murder defendant came over to her mother’s house and made some inculpatory statements. According to Ms. Maze the defendant told her, “I didn’t mean it. Mrs. Wright had a big hole in her head. I don’t know what’s the matter with me.”

In his own defense, defendant testified that he spent most of the morning of February 26th at home watching television. He stated that he left the house only once for approximately ten minutes to buy some cigarettes at a nearby lounge. He denied frequenting the victim’s store on that particular morning.

ARGUMENTATION

Assignment of Error No. 1

The defendant assigns as error the trial court’s denial of his motion to quash based on the grounds that defendant was a juvenile at the time the offense was committed. It is the defendant’s contention that Article 5, § 19 of the 1974 Louisiana Constitution, as amended by Act 801, of 1979, granted exclusive jurisdiction over juveniles to the juvenile courts unless the legislature by a two-thirds vote enacts laws which would provide for the trial of juveniles by adult procedures. Defendant further contends no. such enabling legislation was in effect and thus defendant asserts that the district court lacked jurisdiction over him.

It is defendant’s contention that Act 801 invalidated all existing statutes governing the jurisdiction of district courts over juveniles. He argues that although the aforesaid amendment empowered the legislature to enact statutory exceptions to the general provision, it did not do so until the adoption of Act 482 of 1980 which amended LSA-R.S. 13:1570A(5). He points out that the subject crime was committed after the date of the constitutional amendment but prior to the adoption of Act 482 of 1980 and therefore concludes that the district court lacked jurisdiction over him.

This argument has previously been addressed and rejected by the Louisiana Supreme Court. State v. Bowden, 406 So.2d 1316 (La.1981). In Bowden, supra, the Court held that the adoption of the 1979 amendment to LSA-Const. art. 5, § 19 did not have the effect of abrogating provisions of LSA-R.S. 13:1570 and 13:1571.1 et seq., governing initiation of prosecution of juveniles in district court and transfer proceedings from juvenile court to district court. Nor did the adoption of the amendment require re-enactment of such statutes, in that the amendment invalidated only such laws as were in conflict therewith and neither LSA-R.S. 13:1570 nor 13:1571, et seq., conflicted with the amendment. Id.

LSA-R.S. 13:1570 as it existed before its 1980 amendment read in pertinent part:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
* * * * * *
(5) Who violates any law or ordinance, except a child charged with having committed a capital crime or a crime defined by any law defining attempted aggravated rape after having become fifteen years of age. However, the court shall have exclusive original jurisdiction concerning any child who violates any law or ordinance except a child fifteen years of age or older charged with a capital crime or assault with intent to commit aggravated rape.” (Emphasis added).

Defendant was fifteen years of age at the time he was charged with first degree murder, a capital offense, and therefore the district court had jurisdiction over him. For these reasons this assignment lacks merit.

Assignment of Error No. 2

Defendant argues that he was denied due process and equal protection of the laws on account of his age by operation of the LSA-R.S. 13:1570, laws governing juvenile transfer to district court. That statute, he maintains, precluded him from entering into a plea bargain agreement with the State.

LSA-R.S. 13:1570(A)(5) involves neither a “suspect classification” nor a “fundamental right” and therefore will survive a constitutional attack based on equal protection and due process if it is not arbitrary and bears a rational relationship to a legitimate State interest. State v. Petrovich, 396 So.2d 1318, 1322 (La.1981); State v. Leach, 425 So.2d 1232, 1236 (La.1983); Everett v. Goldman, 359 So.2d 1256 (La.1978). In Leach, supra at 1236, the Court held:

“[T]he classifications embodied [in LSA-R.S. 13:1570(A)(5) ] are not arbitrary and bear a rational relationship to a legitimate State interest, the protection of its citizens by exposing older minors who are accused of committing serious and violent felonies to the usual procedures and sanctions of the state’s criminal law systems.”

This assignment is meritless.

Assignment of Error No. 3

Defendant contends that the trial court erred in denying his motion to question each potential juror outside the presence of the jury venire and selected jurors.

In State v. Vaccaro, 411 So.2d 415 at 426 (La.1982), the Court stated:

“In selecting a petit jury panel, details such as whether the jurors should be called singly or by groups are left to the trial court’s discretion. The calling of prospective jurors in groups rather than singly, and their examination in the presence of each other does not, in the absence of special circumstances, deny a defendant a fair trial. The burden is on the defendant to show special circumstances indicating why individual voir dire or sequestration of jurors during voir dire is warranted.”

Defendant has not carried his burden of demonstrating that special circumstances warranted individual voir dire examination and therefore the trial court’s discretion will not be interfered with. There is no merit in this assignment.

Assignments of Error Nos. 4 and 5

Defendant asserts that the trial court erred in, (1) failing to swear in each juror as he or she was selected; and (2) in allowing unsworn jurors to be sequestered along with sworn jurors. He contends that juror Wayne Toups was accepted by the State and defense but was not sworn in until after a short court recess during which time he was allowed to mingle with other sequestered sworn in jurors. Additionally, he points out that the trial record fails to reflect that jurors Michael Labit and Andrew Rizzuto, Jr., were ever sworn in at all. Thus, he claims, the sequestration rule was abridged as these three jurors were in effect constituting outside communication.

The Louisiana Code of Criminal Procedure requires that a prospective juror be immediately sworn in after being accepted by the State and the defense. LSA-C.Cr.P. art. 788. In capital cases, after each juror is sworn he must be sequestered. LSA-C. Cr.P. art. 791. The purpose of sequestration, of course, being to seclude the jurors from outside communication. Ibid.

The trial judge’s failure to administer the oath to juror Wayne Toups immediately after he was chosen was a technical violation of the governing statutes but because he was sequestered at all times, no prejudice was suffered by defendant. See State v. Hunter, 340 So.2d 226 (La.1976). Defendant’s assertion that during the recess Toups was in effect an outside influence on the other sequestered jurors is without merit. Nor is there any merit in defendant’s assertion that jurors Michael Labit and Andrew Rizzuto, Jr., were never sworn. The record reflects that both men were administered the oath. These assignments have no merit.

Assignment of Error No. 6

Defendant contends that the trial court erred in not granting his motion for mistrial based on the clerk’s inadvertent reading of a minute entry relating to the unrelated case against defendant’s brother, State v. Lawrence Wayne Huntley.

At the opening of trial the minute clerk mistakenly announced the case as “State of Louisiana versus Lawrence Wayne Huntley.” Defense counsel immediately objected and requested that the jury be removed from the courtroom. Out of the jury’s presence, defense counsel objected to the reading of his client’s brother’s name. It was his contention that the jury would remember that Lawrence Wayne Huntley had been convicted of a similar crime and thus be prejudiced toward defendant. The trial judge denied defendant’s request for a mistrial but agreed to have the indictment reread to the jury with the correct name.

LSA-C.Cr.P. art. 775 states in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial....”

Under these circumstances we find that defendant’s assertion that he was prejudiced by the erroneous reading of the indictment is purely speculative and unsupported by the record. Therefore, a mistrial was not warranted. This assignment is devoid of merit.

Assignment of Error No. 7

Defendant asserts that the trial court erred in allowing the prosecutor to display the alleged murder weapon to the jury during his redirect examination of Marion Greene because: (1) no foundation had been laid to justify displaying the pipe in the presence of the jury; and (2) the questioning concerning the identification of the pipe by the witness exceeded the scope of cross examination and therefore this was an improper redirect examination topic.

LSA-C.Cr.P. art. 773 states:

“Neither the State nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.”

LSA-R.S. 15:281 provides:

“The redirect examination must be confined to the subject matter of the cross examination and to the explanation of statements elicited on cross examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.”

We find no merit in either ground for defendant’s objection. The record indicates that defense counsel brought up the subject of the murder weapon on cross examination and therefore its discussion on redirect was proper. Moreover, the piece of pipe identified at trial by Ms. Greene to be similar to the one defendant was carrying on the day in question was later in the trial positively identified to be the murder weapon by crime lab experts. Therefore its admittance into evidence was not prejudicial error. LSA-C.Cr.P. art. 921. This assignment is without merit.

Assignment of Error No. 8

Defendant complains that the trial court erred in allowing the State to cross examine the defendant concerning inculpatory statements the defendant allegedly made without laying a sufficient foundation.

In the case at bar, the State called as a witness Ms. Alverta Maze to testify about inculpatory statements made to her shortly after the murder. Ms. Maze had previously given the police a written statement wherein she claimed that at approximately 1:00 P.M. on the day of the crime defendant called upon her at her mother’s house and in a shaken state told her that “He didn’t mean it . .. she had a big hole in her head ... he didn’t know what was the matter with him.”

The State was initially unsuccessful in eliciting this testimony from Ms. Maze on the witness stand. She literally froze upon being called and refused to speak. Her persistent silence prevented the court from swearing her in and after several warnings from the trial judge, she was held in contempt of court and led out of the courtroom.

Unable to persuade Ms. Maze to testify during its case in chief, the State delved into the matter on cross examination of the defendant. The prosecutor repeated the in-culpatory statements and asked defendant whether he had made such to Ms. Maze. Defendant asserts that the State should not have been permitted to introduce the incul-patory statements without first demonstrating that they were freely and voluntarily made.

In State v. Hathorn, 395 So.2d 783, 785 (La.1981), the Court declared:

“Before a confession or inculpatory statement can be introduced in evidence, it must be affirmatively shown by the state that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. If the interrogation and subsequent confession are in a non-custodial situation, the only showing which the state must make is whether the confession is free and voluntary, as the Miranda warnings apply only to custodial interrogations. State v. Pittman, 368 So.2d 705 (La.1979).”

The record reflects that although the State did not technically comply with LSA-R.S. 15:451, no prejudice was suffered by defendant as a result thereof. After the State closed its case in chief Ms. Maze apparently had a change in heart and testified on rebuttal that the inculpatory statements made to her by the defendant were not the product of any form of threat, duress, promise or other form of coercion. The rationale behind R.S. 15:451 of excluding from evidence untrustworthy confessions and inculpatory statements, therefore was not circumvented by the trial court’s failure to require a foundation before the fact. This assignment lacks merit.

Assignment of Error No. 9

Defendant argues that the trial court erred in allowing the prosecution to display to the jury, during the testimony of Police Chief Minos Hardy, a pre-prepared sketch map of the vicinity of the alleged crime which prejudicially distorted the distances involved. Before displaying the map to the jury the State established that it had not been prepared by an architect, or surveyor and was not drawn to scale. However, the defendant asserts that the fact that the map was prepared ahead of time prejudiced the jury into believing that there was some effort to show scale. We find that the State’s disclaimer was sufficient to put the jury on notice that the map was not to be interpreted as a scale model. Defendant was not unduly prejudiced by its display to the jury. There is no merit in this assignment.

Assignment of Error No. 10

Next, defendant contends that the trial court erred in allowing the proceedings surrounding the attempted swearing in of Al-verta Maze during the prosecution’s case in chief to proceed for longer than necessary, thus allowing the affair to be transformed into a “prejudicial spectacle.”

There is no merit in this assignment. Ms. Maze’s testimony was of critical importance to the State’s case and the record demonstrates that the trial court made a diligent effort to persuade her to testify. During this time a sheriff’s deputy did remark in the jury’s presence that witness was afraid to testify. However, the statement was totally unsolicited and the trial judge instructed the jury to disregard it. The judge also admonished the jury to forget the entire scene created by Ms. Maze’s failure to speak. Under these circumstances it cannot be said that any prejudice suffered by defendant as a result of this proceeding was of such magnitude to deny him his right to a fair trial. Assignment No. 10 has no merit.

Assignment of Error No. 11

Next defendant contends that the trial court erred in refusing to allow defendant’s sister Mary Louise Huntley to testify for the defense. The trial court barred Ms. Huntley from testifying after discovering that she had violated a sequestration order by being present in the courtroom during the testimony of State witnesses Marion Greene and Minos Hardy.

LSA-C.Cr.P. art. 764 provides in pertinent part:

“Upon its own motion the court may, and upon request of the State or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel.”

State v. Jones, 354 So.2d 530 (La.1978), offers an excellent discussion on the latitude afforded the trial judge regarding a violation of sequestration order. In Jones, supra at 531, 532, the Court commented:

“Although we have consistently held that the action to be taken in the face of a violation of a sequestration order rests within the sound discretion of the trial judge, State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Batts, 324 So.2d 415 (La.1975); State v. McKinney, 302 So.2d 917 (La.1974); State v. Browning, 290 So.2d 322 (La.1974), the discretion in this regard is not unlimited. Article I, Section 16 of the Louisiana Constitution of 1974 guarantees an accused the right to compel the attendance of witnesses and to present a defense. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor, and this right is enforceable against the States through the Fourteenth Amendment. Washington v. Texas, 338 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
Although our jurisprudence allowing trial judges to enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence, that interest is not sufficient to override the defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitution. This is not to imply that there may be no risk of a witness coloring his testimony to conform to what has gone before. But our adversary system reposes judgment of the credibility of all witnesses in the jury. Excluding the witness’s testimony, in the absence of a sequestration violation with the consent or knowledge of the defendant or his counsel, is not a constitutionally permissible means of insuring reliable testimony. Cf. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).”

In State v. Boutte, 384 So.2d 773, 777 (La.1980), the Court emphasized that “not every erroneous exclusion of disobeying witnesses is reversible error. If the testimony is not relevant or material to the defendant’s case then the defendant has not been prejudiced by the court’s ruling. (Citation omitted).” In Boutte, supra, the Court ruled that the erroneous exclusion of the witness by the trial court was not reversible error even though the witness’ testimony was material and relevant. The Court reasoned that the excluded testimony would not have affected the trial court’s judgment.

In the case at bar there is no evidence that the excluded witness violated the sequestration order with the consent, connivance or knowledge of defense counsel or defendant. Therefore, the relevant inquiry is whether the exclusion of the witness had any effect on the jury’s verdict. In considering this question we note that Ms. Huntley was to testify that, except for a brief period, defendant spent the entire morning of the crime with her and their mother. This testimony was relevant to the case in that it supported defendant’s alibi defense. However, as defendant readily admits, Ms. Huntley’s testimony would have been cummulative with the testimony given by the defendant and his mother. Therefore, it is unlikely that its exclusion had any effect on the jury's decision in this case. They obviously believed that defendant’s brief departure on the morning in question gave him sufficient time to murder the victim. Under these circumstances the impact of exclusion is so minimal that it does not constitute reversible error, even though the excluded testimony was relevant and material. This assignment lacks merit.

Assignment of Error No. 12

Defendant contends that the trial court erred in allowing the State to exceed the proper scope of rebuttal. He maintains that Alberta Maze’s testimony concerning inculpatory statements made by him should have been brought out as part of the State’s case-in-chief, or not at all.

In State v. Huizar, 414 So.2d 741 (La.1982), the Court declared:

“Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. R.S. 15:282. State v. Constantine, 364 So.2d 1011 (La.1978). Such evidence may be used to strengthen the state’s original case. State v. Howard, 120 La. 311, 45 So. 260 (La.1908). The determination of whether evidence is rebuttal evidence and hence, admissible, is an issue which is addressed to the sound discretion of the trial court judge. State v. Green, 390 So.2d 1253 (La.1980).’’

Because of the unique circumstances of this case, defendant’s objection is without merit. Calling Ms. Maze on rebuttal was not an attempt by the State to gain an unfair advantage over defendant. On the contrary, both the trial judge and district attorney tried in vain to persuade the witness to testify during the presentation of the State’s case in chief. Moreover, we note that defendant testified on redirect exam that he never saw or spoke to Ms. Maze on the day of the crime — which in essence was a surrebuttal before the fact. Therefore, there was no abuse of the trial court’s discretion. This assignment has no merit.

Assignment of Error No. 13

Defendant complains that the jury’s verdict of guilty as charged was not supported by the law and evidence and therefore the trial court erred in denying his post-verdict motion for acquittal.

The State’s case was based on circumstantial and direct evidence. Therefore, the proper inquiry is whether a rational trier of fact, viewing the evidence in a light most favorable to the State, would conclude that defendant’s guilt had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 421 So.2d 887 (La.1982).

Defendant maintains that the State failed to meet its burden of proof as to the elements of intent and identity. Our purview of the record persuades us otherwise. We hold that after considering the evidence presented in this ease, a rational trier of fact could have concluded beyond a reasonable doubt that defendant intended to kill or inflict great bodily injury upon the person of the victim during the commission of an armed robbery and therefore was guilty of first degree murder. LSA-R.S. 14:30. This assignment is without merit..

Assignment of Error No. 14

By this assignment defendant argues that the trial court erred in refusing to grant an order of appeal to the Louisiana Supreme Court and in ruling that the case was properly appealable to this Court. He avers that at the time of the offense, Article 5, § 2 of the 1974 Louisiana Constitution provided those convicted of a capital offense with the right of a direct appeal to the Louisiana Supreme Court. The 1980 Amendment to Article 5, § 10(A) (Act 843, § 1) granting Courts of Appeal criminal jurisdiction was not effective until July 1, 1982, he maintains, and therefore the trial court’s retrospective application of that amendment violates the United States and Louisiana Constitutional prohibitions against ex post facto laws. See Article I, § 10 United States Constitution; Article I, § 23, 1974 Louisiana Constitution.

An ex post facto law is defined as a law passed after the occurrence of a fact or commission of an act, which retrospectively. changes the legal consequences or relations of such fact or deed. Black’s Law Dictionary, 662 (Rev. 4th Edition 1968). In State v. Sepulvado, 342 So.2d 630 (La.1977), the Court set forth the criteria utilized in determining whether a law is ex post facto:

“The ex post facto prohibition comes into effect when a law makes an act criminal which was innocent when done and punishes such action; or aggravates a crime or makes it greater than when committed; or changes the punishment and inflicts a greater punishment than the law in effect when the crime was committed; or alters the rules of evidence to receive less or different testimony that the law required at the time the offense was committed in order to convict. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). A fifth category holds that any law is considered ex post facto which is enacted after the offense was committed and which alters the situation of the accused to his disadvantage. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882); Payne v. Nash, 327 F.2d 197 (8th Cir.1964); State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962); 16A C.J.S. Constitutional Law §§ 440-46 (1956).”

In Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980), the Supreme Court emphasized that not every law which operates to the accused’s disadvantage is ex post facto. The Court declared:

“In Dobert v. Florida [432 U.S. 282], 97 S.Ct. 2290, 2298 [53 L.Ed.2d 344] (1977), this Court held that the prohibition of ex post facto laws does not extend to every change of law that ‘may work to the disadvantage of a defendant’. It is intended to secure ‘substantial personal rights’ from retroactive deprivation and does not ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Ibid. (Emphasis added).

In our opinion 1980 Act 843, § 1 which transferred jurisdiction over specified criminal matters from the Supreme Court to the courts of appeal, did not divest the defendant of a substantial personal right. We do not believe the ex post facto prohibition was intended to preclude the legislature from exercising its right to alter Supreme Court jurisdiction. This assignment is devoid of merit.

Assignment of Error No. 15

By this assignment it is the defendant’s contention that the sentence imposed of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence was cruel, unusual and excessive.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposelessness and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

We are unable to find any manifest abuse in this case. The sentence was imposed following a jury determination of guilt of one of the most serious crimes contemplated by the laws of the state of Louisiana. Having found no abuse of discretion we will not disturb this sentence on appeal.

While there is no merit to any of defendant’s assignments of error, it is apparent that the sentence imposed, life imprisonment at hard labor without benefit of probation, parole, suspension or commutation of sentence, is improper. The power of the Governor to pardon or commute may not be precluded by the terms of an imposed sentence. La. Const. Art. IV, § 5 (1974); State v. Varice, 292 So.2d 703 (La.1974); State v. Williams, 338 So.2d 672 (La.1976).

For the reasons stated above, the defendant’s conviction is affirmed, but the sentence is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

AFFIRMED, BUT REMANDED FOR RE-SENTENCING.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I feel it necessary to specially concur in this case insofar as the opinion relates both to the review of fact doctrine and review of sentence for excessiveness. As to the review of facts doctrine, I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983); see also State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), handed down this date. I feel that the continued application of the review of facts rationale set out in Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979), results in our appellate courts becoming nothing more than second guessers of the triers of fact. As to the appellate review of sentence doctrine, I reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, that our new constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), and State v. Robicheaux, 438 So.2d 1185 (La.App. 3rd Cir.1983), both handed down by this Court on this date.

      For the reasons stated therein, the author of this opinion has also filed a concurring opinion.

      . Article 5, § 19 as amended by Act 801 of 1979 states:
      “The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.”

      . Admittedly Leach, supra, addressed LSA-R.S. 13:1570(A)(5) as amended in 1980. However, since there are no significant differences between the original and amended versions, it can also be said that LSA-R.S. 13:1570(A)(5) as existed before 1980 was not unconstitutional.

      . We note that defendant did not object at the trial level to the court’s failure to swear in jurors Michael Labit and Andrew Rizzuto, Jr. However, such a defect can be considered “error patent” and therefore is properly reviewable on appeal. LSA-C.Cr.P. art. 920(2).

      . Inculpatory statements are considered direct evidence. State v. Legro, 410 So.2d 1063 (La.1982).

      . Article 1, Section 20 of the La. Const, of 1974 states:
      “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shaÜ be restored upon termination of state and federal supervision following conviction for any offense.”

      . It is evident that the portion of the sentence prohibiting commutation was an inadvertency. Although the record shows that the district judge orally recognized this, nevertheless the record on sentencing was not corrected in accordance therewith. Hence, it is legally necessary that we remand for re-sentencing.


source: Caselaw Access Project

author:
DOMENGEAUX, Judge.
     DOMENGEAUX, Judge,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Medford Carltrail MAXIE, Defendant-Appellant.
    No. CR83-80.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.

      Steven R. Thomas, Mansfield, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   DOMENGEAUX, Judge.

Defendants Medford Carltrail Maxie and Donald Wayne Fox were each charged under a single bill of information with the offense of theft of a value of more than $500.00, a violation of La.R.S. 14:67. Both of the defendants pleaded not guilty to the initial charge, but later switched their pleas to guilty on the lesser charge of theft of a value in excess of $100.00, but less than $500.00, pursuant to a plea bargain entered into between each of them and the State. Following pre-sentence investigations, each of the defendants was sentenced to two years at hard labor with the Department of Corrections, the maximum sentences available under the provisions of La.R.S. 14:67 pertaining to the lesser charge.

Each of the defendants appealed the sentences imposed by the district court, both perfecting the identical two assignments of error, viz, that the trial court erred in failing to state a factual basis for the sentences imposed, in violation of La.C.Cr.P. Art. 894.-1, and that the trial court erred in imposing sentences which were excessive in light of the information contained in the presen-fence investigation reports. Since the facts, circumstances, and issues involved in this case are virtually identical to those in State v. Fox, 438 So.2d 1202 (La.App. 3rd Cir.1983), both cases will be discussed herein, although separate opinions are being rendered in each case on this day.

The charges lodged against the defendants allegedly stemmed from a reported theft of tires from a tire company. Some of these tires were traced back to the two defendants involved herein. A subsequent investigation conducted by the Sabine Parish Sheriffs Office led to an oral statement by Mr. Maxie, in which he admitted that Mr. Fox, along with a third defendant, and he, had taken and sold several tires.

The district judge pronounced sentence on both of the defendants pursuant to pre-sentence investigations conducted on each of them, taking into account those guidelines enumerated in La.C.Cr.P. Art. 894.1. In sentencing Donald Wayne Fox, the judge determined that the aggravating factors listed in Article 894.1 were controlling, specifically applying Article 894.1(A)(1) and (A)(2). He reached this conclusion based upon facts' disclosed in the pre-sentence report, i.e., that the defendant had a prior juvenile record, his probation upon which had expired not long before the crime at issue was committed; that the defendant had a high school record of stealing and continuously being in trouble; that his previous employment, contrary to statements made to the probation officer, was non-existent in one instance, and insignificant in the other; and, finally, that while sentence was pending in this case, he was arrested for another burglary. Based upon these considerations, the trial judge deemed a two-year term of incarceration to be appropriate for this defendant.

Insofar as Medford Carltrail Maxie was concerned, the district judge also found the aggravating factors of Article 894.1 controlling over the mitigating factors, particularly noting Sections (A)(1) and (A)(3) of that Article. He noted that the pre-sentence investigation report revealed that the defendant had a poor employment history and that he was also arrested on a charge of simple burglary while the pre-sentence investigation was being conducted. Therefore, the district judge once again concluded that the maximum sentence of two years at hard labor was proper under these circumstances.

On appeal, both defendants charge that their youth (both men were allegedly 19 years old) was overlooked as a mitigating factor by the sentencing judge. Additionally, they aver that the judge gave an inordinate amount of consideration to the value of the merchandise stolen by them in arriving at his decision. They maintain that numerous individuals had been stealing tires from this particular tire company, and that it is unfair for them to be saddled with full responsibility for what might have been an ongoing pattern of theft.

The defendant’s contentions are without merit. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La.C.Cr.P. Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The transcripts of the sentencing proceedings of these two defendants indicate that the district judge quite thoroughly complied with Article 894.1 in arriving at the sentences to be imposed. Thus, we have before us now a record which is detailed enough to allow us to make a reasoned review of the alleged excessiveness of these sentences. Landos, supra.

Furthermore, due to the trial judge’s unique position of reviewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within the statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). The sentences imposed upon these defendants by the district judge were within the statutory limits of La.R.S. 14:67, and we are unable to find any manifest abuse of discretion on his part.

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

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I again feel that it is necessary for me to reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, that our new constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down by this Court on this date.

       For the reasons assigned therein, the author of this opinion has also filed a concurring opinion.

      . La.R.S. 14:67 states in pertinent part: ■
      “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.
      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.”

      . La.C.Cr.P. Art. 894.1 states the following concerning the “aggravating factors” which should be taken into account by the trial judge in imposing a sentence:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.”

      . Ibid.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Donald Wayne FOX, Defendant-Appellant.
    No. CR83-80A.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.
    Steven R. Thomas, Mansfield, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

For the reasons set forth in State of Louisiana v. Medford Carltrail Maxie, 438 So.2d 1199 (La.App. 3rd Cir.1983), the conviction and sentence of the defendant are affirmed.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I again feel that it is necessary for me to reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, that our new constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down by this Court on this date.

       For the reasons assigned therein, the author of this opinion has also filed a concurring opinion.


author: FORET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Appellee, v. Thomas W. BROWN, Appellant.
    No. CR82-763.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.

      Richard P. Leyoub, Lake Charles, for appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Karen Lee Price, Asst. Dist. Atty., Lake Charles, for appellee.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   FORET, Judge.

Thomas W. Brown and Charles W. Foy (defendants) were respectively charged by bills of information with attempted first degree murder and attempted second degree murder. Pursuant to plea bargains entered into with the District Attorney’s Office, both defendants plead guilty to reduced charges.

Defendant Brown plead guilty to one count of aggravated burglary (a violation of LSA-R.S. 14:60). After completion of a pre-sentence investigation, the trial court sentenced Brown to serve a term of thirty years.

Defendant Foy plead guilty to charges of attempted aggravated burglary and attempted theft of property valued at over $500.00 (violations of LSA-R.S. 14:27 and LSA-R.S. 14:60, and LSA-R.S. 14:27 and LSA-R.S. 14:67, respectively). After completion of a pre-sentence investigation, the trial court sentenced Foy to serve a term of fifteen years at hard labor on the charge of attempted aggravated burglary, and a term of one year on the charge of attempted theft. The sentences were to run consecutively.

In addition to the above sentences, each defendant was sentenced to serve an additional term of two years (to run consecutively to the others) under the provisions of LSA-R.S. 14:95.2, for using a firearm during the commission of their crimes.

ASSIGNMENTS OF ERROR

1. The trial court committed reversible error in failing to grant defendants’ motions for recusation of the judges of the Fourteenth Judicial District Court.
2. The trial court committed reversible error in failing to sentence defendants in accordance with their plea bargain agreement, that the trial court’s sentences constitute cruel and unusual punishment as prohibited by the Eighth Amendment to the U.S. Constitution, and that said sentences are excessive in violation of LSA-Const., Art. 1, § 20.
3. The trial court committed reversible error in sentencing defendants under the provisions of LSA-R.S. 14:95.2, when the State failed to file a bill of information charging defendants with violations of this statute.
4. The defendants were deprived of their rights to a fair and impartial sentencing hearing and due process of law as guaranteed by the Constitutions of the United States and this State because of the media publicity which preceded the sentencing hearing.

FACTS

The record indicates that on the evening of February 3,1982, defendants set out in a pickup truck with the intention of burglarizing the home of Gene Kile,, located in Westlake. Feigning car trouble, defendants parked their vehicle a short distance from the Kile home and then walked there. Brown, armed with a .44 Magnum revolver, knocked on the back door, while Foy stood out of sight near the driveway. Kile’s teenage son, Kevin, opened the door and allowed Brown to enter, ostensibly for the purpose of using the telephone. Once inside, Brown placed his pistol to Kevin’s head and demanded that he lead them to his parents.

The Kiles own a small dog, and it began to bark and growl as Kevin was being led through the house. Mrs. Kile heard the noise, stepped out of her bedroom, and saw what was happening. She immediately alerted her husband, who armed himself with a shotgun he kept beneath their bed. Gene kile then confronted Brown and a gunfight quickly ensued. Ultimately, Kile was struck four times by bullets fired by Brown and was severely injured. However, he also managed to fire a shotgun blast that struck Brown in the hip. Partially disabled, Brown fled from Kile’s home, but collapsed in a ditch where he was held at gunpoint by Kile’s neighbors until the police arrived.

Meanwhile, Foy heard the shooting and immediately left the area in the truck and fled to his mother’s home where he was arrested shortly thereafter.

ASSIGNMENTS OF ERROR NUMBERS 1 & 4

These assignments of error are related and will be discussed together. Defendants contend that the trial court erred in denying their motions to recuse the judges of the Fourteenth Judicial District Court as having been untimely filed. They argue that the motions were timely filed.

LSA-G.Cr.P. Article 674 provides:

“Art. 674. Procedure for recusation of trial judge
A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recu-sation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.” (Emphasis ours.)

Official Revision Comment (a) to LSA-C. Cr.P. Article 674 provides:

“Official Revision Comment
(a) This article follows C.C.P. Art. 154, with only minor adjustments to the criminal proceedings. A ground which is not urged timely, in conformity with this article, is waived. Art. 309 of the 1928 Code of Criminal Procedure did not specify the time for filing a motion to recuse.” (Emphasis ours.)

The record shows that both defendants plead guilty to the charges against them on September 7,1982. However, they failed to file their motions to recuse until October 6, 1982. Thus, the motions were filed Untimely-

Defendants’ next contention is that they had a right to a fair and just sentencing procedure free from all prejudicial and inflammatory news coverage, and free from public demonstrations by individuals not directly involved in the sentencing process. They cite the Sixth and Fourteenth Amendments to the U.S. Constitution, and LSA-Const. Art. 1, § 16, in support of their contention.

When Kile learned that defendants had plead guilty to reduced charges, he became enraged and took out a one-page paid advertisement in the Lake Charles American Press. In this advertisement, he charged the District Attorney’s Office and Sheriff’s Department with incompetency. The advertisement, entitled “An Open Letter to the People of Lake Charles”, was quite inflammatory in nature and called on the Fourteenth Judicial District Court to impose the maximum sentences possible on each defendant. The advertisement spawned a multitude of letters from local citizens urging the presiding judge to impose maximum sentences.

A trial judge is presumed to be impartial and a defendant must do more than assert conclusory allegations to prove otherwise. State v. Edwards, 420 So.2d 663 (La.1982).

Defendants’ contention that the trial court’s sentencing discretion was effectively negated by public opinion is pure speculation and in no way supported by the record. It is our opinion that defendants were not denied their rights to an impartial sentencing hearing or due process of law.

There is no merit to these assignments of error.

ASSIGNMENTS OF ERROR NUMBERS 2 & 3

Defendants have combined their arguments on these assignments of error in the same section of their brief filed in this Court. Therefore, we will discuss them together.

We first note that defendants have failed to brief or argue that portion of assignment of error number 2 concerning the alleged violations of their rights under the Eighth Amendment to the U.S. Constitution. Hence, we consider them to have abandoned this portion of assignment of error number 2. State v. Perry, 420 So.2d 139 (La.1982); State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

Defendants contend that the sentences imposed on them are excessive and violate the rights guaranteed to them under LSA-Const., Art. 1, § 20.

It is settled that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against being subjected to excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Washington, 414 So.2d 313 (La.1982). In general, it has been held that a sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). To determine whether the sentence is grossly disproportionate to the crime, we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the sentence is so disproportionate to the crime committed as to shock our sense of justice. State v. Bonanno, supra; State v. Beavers, 382 So.2d 943 (La.1980).

The record shows that both defendants were given the maximum sentences possible for the charges which they plead guilty to. However, as noted above, Brown was originally charged with attempted first degree murder, and Foy was originally charged with attempted second degree murder. Both of these crimes are considerably more serious (and carry much harsher penalties) than those which defendants were allowed to plead to. In addition, the evidence contained in the record indicates that defendants were, in fact, guilty of these more serious crimes. Under these facts and circumstances, we are unable to say that defendants’ sentences were so disproportionate to the crime committed that they shock our sense of justice. It is our opinion that defendants’ sentences are not unconstitutionally excessive.

Finally, defendants contend that the trial court erred in sentencing them under the provisions of LSA-R.S. 14:95.2 because the State had not filed a bill of information charging them under this statute. Therefore, they allege that they were never placed on notice that an enhancement of penalty under LSA-R.S. 14:95.2 would be imposed on them.

This argument has recently been addressed and dismissed in State v. Roussel, 424 So.2d 226 (La.1982). On page 232, Roussel stated:

“La.R.S. 14:95.2 is an article in the Criminal Code and provides for additional penalties for possession of a firearm or explosive device in the commission of certain enumerated crimes. The statute does not create a separate crime. Rather, it mandates that an additional penalty be imposed when a person uses a firearm or explosive device at the time he commits certain crimes. It is based on the proof of that fact during trial. Defendant was charged with second degree murder and convicted of manslaughter. Both crimes are listed in La.R.S. 14:95.2. The evidence fully supports that a firearm (.22 caliber gun) was used in the commission of the crime for which defendant was convicted (manslaughter). The additional penalty was imposed at the sentencing hearing.
Accordingly, we find no substance to defendant’s contention that one must be separately charged under La.R.S. 14:95.2. Adequate notice and opportunity to defend against it are afforded to the accused.”

In the case sub judice, defendant Brown was originally charged with attempted first degree murder and pleaded guilty to aggravated burglary. Both crimes are listed in LSA-R.S. 14:95.2. The same is true with defendant Foy. He was originally charged with attempted second degree murder and entered a guilty plea to one count of attempted aggravated burglary and attempted felony theft. Both the murder and burglary charges are listed in LSA-R.S. 14:95.-2. Further, there is no question that a firearm (a .44 Magnum revolver) was used in the commission of the crimes for which defendants were convicted.

Accordingly, we find that both defendants were afforded adequate advance notice that they would be eligible for an enhanced penalty pursuant to LSA-R.S. 14:95.2. Therefore, there was no need to separately charge them.

There is no merit to these assignments of error.

DECREE

For the reasons assigned, defendants’ convictions and sentences are affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and files brief reason.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion. I file this special concurring opinion, however, feeling that the Louisiana Constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied; State v. Shelby, Jr., 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down this date.

      This case has been consolidated for appellate purposes with State of Louisiana v. Charles Wayne Foy, 438 So.2d 1207 (La.App. 3 Cir.1983), in which a separate judgment is being rendered this date.

      . On May 12, 1982, the bill of information charging Brown with attempted first degree murder was amended to charge him with attempted second degree murder.

      . Both defendants assign the same errors for review.

      . The record shows that the trial court fully complied with the provisions of LSA-C.Cr.P. Article 894.1 in giving its reasons for the sentences imposed on defendants.


text:
    STATE of Louisiana, Appellee, v. Charles Wayne FOY, Appellant.
    No. CR82-762.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    James Miguez, Miguez & Leckband and D. Michael Mooney, Lake Charles, for appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and Karen Lee Price, Asst. Dist. Atty., Lake Charles, for appellee.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   FORET, Judge.

For the reasons assigned in State of Louisiana v. Brown, 438 So.2d 1202 (La.App. 3 Cir.1983) (rendered this date), defendant’s sentence and conviction are affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and files brief reason.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion. I file this special concurring opinion, however, feeling that the Louisiana Constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied (La.1983); State v. Shelby, Jr., 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down this date.


author: YELVERTON, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Johnny E. POLLARD, Defendant-Appellant.
    No. CR82-820.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.

      Charles Whitehead, Whitehead & McCoy, Andrew Yallien, Natchitoches, for defendant-appellant.
    John G. Williams, Asst. Dist. Atty., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   YELVERTON, Judge.

The defendant, Johnny E. Pollard, was charged under three separate bills of information with being a principal to aggravated battery, in violation of LSA-R.S. 14:34; being a principal to armed robbery, in violation of LSA-R.S. 14:64; and being a principal to simple burglary of an inhabited dwelling, in violation of LSA-R.S. 14:62.2. He was tried on the consolidated charges before a twelve-man jury and found guilty as charged, except that in the case of burglary of an inhabited dwelling, the jury returned a verdict of simple burglary.

On the charge of aggravated battery defendant received a sentence of seven years at hard labor. On the charge of armed robbery he received a sentence of twenty-five years at hard labor without benefit of probation, parole or suspension of sentence. On the conviction of simple burglary, defendant received a sentence of seven years at hard labor. All sentences were ordered to run consecutively.

On appeal defendant has perfected three assignments, contending the trial court erred when it:

1. Ordered the defendant to be tried by a twelve-man jury on all three charges, in violation of LSA-Const.1974, Art. I, Sec. 17 and C.Cr.P. art. 782;
2. Failed to follow the sentencing guidelines of LSA-C.Cr.P. art. 894.1; and
3.Imposed excessive, cruel and unusual sentences.

FACTS

Darrell ■ “Bo” Mayes, and Kim Harper, both juveniles, fell under the influence of the defendant, Johnny Pollard, age 42. The relationship began when the two juveniles started using and then selling drugs supplied by the defendant.

It happened eventually that Mayes and Harper were caught in possession of a quantity of drugs supplied to them by Pollard for distribution. The drugs were confiscated by the police. Pollard thereafter convinced the two juveniles that they owed him his financial loss occasioned by the confiscation.

The two juveniles were afraid of the defendant. Subtle threats of killing people who crossed him and of having connections with “hit men” created a fear that gave the defendant substantial influence over Bo and Kim. The defendant used this intimidation and the claimed indebtedness to induce the juveniles to commit certain crimes at his direction.

The first of these crimes occurred on the night of July 18, 1981. The juveniles burglarized the home of Ms. Sue Rhodes, a bed-ridden, deaf senior citizen, and stole numerous valuable items. The stolen goods were dutifully delivered to the defendant. The bill of information charging burglary arose from this case.

Telling them that the stolen goods did not wipe out the purported debt, Pollard planned the second crime for Bo and Kim. This was committed on July 24, 1981. The charges of armed robbery and aggravated battery arose out of this crime. The defendant sent the two juveniles to the apartment of Mr. and Mrs. Joe Thompson in Natchitoches with instructions to take their cash and jewelry then kill the couple. The defendant himself set up the robbery by impersonating an FBI agent telephoning the Thompsons, and telling them that two undercover agents would soon arrive and need their assistance and cooperation. Mr. Thompson was badly cut by Bo Mayes during the course of the robbery. The young assailants met resistance from the elderly couple and the noise alerted neighbors. The juveniles fled. Kim Harper was soon arrested. Bo Mayes subsequently surrendered and voluntarily made inculpatory statements to the police and described the situation that existed between himself and the defendant. Based on the statements of the j’uveniles, the police procured a search warrant to search a storage building rented to the defendant. The search of this storage building produced some of the stolen items taken in the July 18,1981, burglary of Ms. Sue Rhodes.

ASSIGNMENT OF ERROR NUMBER 1

Defendant-appellant alleges that the trial court committed reversible error by permitting all three charges—aggravated battery, armed robbery, and simple burglary of an inhabited dwelling—to be tried before a twelve-man jury.

We agree that it was error to try the aggravated battery charge before a twelve-person jury.

Article 1, Section 17 of the 1974 Louisiana Constitution provides in pertinent part:

“Section 17. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons ...”

See also La.C.Cr.P., Art. 782.

Applying this constitutional mandate, the Supreme Court has consistently held that the verdict returned by a jury composed of either more or less than the correct number of jurors is null. State v. Nedds, 364 So.2d 588 (La.1978); State v. Marcantel, 388 So.2d 383 (La.1980); State v. Jenkins, 406 So.2d 1352 (La.1981).

In the instant case the crime of aggravated battery (R.S. 14:34) is a relative felony requiring a jury of six persons. The trial and conviction before a twelve-person jury of that crime is null and must be reversed and set aside.

The other two charges were properly tried before a twelve-person jury. The punishment for both armed robbery and burglary of an inhabited dwelling is necessarily confinement at hard labor. R.S. 14:64 and R.S. 14:62.2.

Our conclusion that the conviction of simple burglary was not null requires further explanation. This is because at some point during the trial, the presiding judge and counsel for both sides apparently lost sight of the actual charge and began to treat it as simple burglary. The result: the defendant went to trial on a hard labor felony charge but the jury was instructed as to a relative felony.

Simple burglary under R.S. 14:62 carries a penalty of up to twelve years with or without hard labor. It is a relative felony and requires a six-person jury. Simple burglary of an inhabited dwelling under R.S. 14:62.2 is a more serious offense, the punishment for which is necessarily confinement at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, or more than 12 years. This charge requires a twelve-person jury.

The bill of information clearly charges defendant with burglary of an inhabited dwelling in violation of R.S. 14:62.2. It was read to the jury in that form at the beginning of trial. There is nothing in the record evidencing either a written or an oral amendment to the bill. Nevertheless, the trial court in its closing instructions mistakenly told the jury the defendant was charged with simple burglary and read to the jury the definition of that crime from R.S. 14:62. This mistake apparently went unnoticed by the State. Consistent with its instructions, although inconsistent with the bill of information, the trial court then gave to the jury a separate verdict sheet for that numbered bill of information containing only two of the three possible verdicts for simple burglary. The verdict sheet gave the jury two choices: “Guilty of simple burglary” and “Not guilty.” Neither the State nor the defendant made any objection to these several errors. The jury returned a verdict of guilty of simple burglary. As stated earlier, the appellate briefs on both sides now treat the charge as merely simple burglary.

Under these circumstances we cannot say that defendant was entitled to a six-person jury. Under the formal bill of information, a twelve-person jury was mandated. Since simple burglary is of the same genus as simple burglary of an inhabited dwelling, and since the essential elements of simple burglary are included in the indictment for the offense charged, the verdict returned by the jury was responsive. The oversights of the trial court and the state were manifestly beneficial to the defendant. He cannot now reap an additional benefit by claiming he was tried before a jury of the wrong number. Had the jury been properly instructed as to the offense of burglary of an inhabited dwelling and its five responsive verdicts, and then returned a verdict of guilty of simple burglary, there would obviously be no merit to the contention that defendant’s mode of trial was determinable by the verdict returned and not by the charge contained in the bill of information. We can conceive of no reason why the result should be different when a mistake by the district court leaves the jury with no choice except to return a verdict for a lesser and included offense rather than a verdict for the offense charged.

For these reasons we find that only the charge of aggravated battery was tried before a jury of the wrong number. To that extent this assignment of error has merit, and the conviction of aggravated battery must be reversed and set aside.

We do not find it necessary to reverse and set aside defendant’s other two convictions. As to these two convictions defendant was properly tried before a jury of twelve persons. We note that the defendant never objected to the consolidation of the three charges (or, for that matter, to the mode of trial). The defendant was not prejudiced by the consolidated trials of these two charges with the charge of being a principal to aggravated battery, since the evidence presented would have been admissible if the defendant had only been charged with the two and the facts of the case were not so complex as to confuse the jury. See State v. Ponthier, 391 So.2d 1138 (La.1980).

ASSIGNMENT OF ERROR NO. 2

By this assignment defendant alleges that the trial judge failed to comply with the sentencing guidelines of C.Cr.P. art. 894.1.

In imposing sentence the requirements of art. 894.1 are met when the trial judge states the considerations taken into account and the factual basis therefor. State v. Donahue, 408 So.2d 1262 (La.1982).

In passing sentence the trial judge reviewed the factual basis and the seriousness of the defendant’s crimes. He then noted that the defendant had pled guilty to the crime of extortion in 1963 for which he received a ten year suspended sentence. Due to the seriousness of the defendant’s crimes and after a determination that the defendant was dangerous to society and would likely commit crimes in the future, the trial judge ruled out the possibility of a suspended sentence.

The appellant specifically argues that the trial court failed to mention defendant’s personal history such as his employment record and physical health as mitigating circumstances. The presentence report provided to the trial judge indicated the defendant had formerly worked as a licensed practical nurse and was presently in the auto restoration business. The report also indicated the defendant’s health was poor. The defendant was a diabetic and suffering from angina pectoris.

The trial court need not articulate every mitigating circumstance but the record must reflect an adequate consideration of art. 894.1 guidelines. State v. Grey, 408 So.2d 1239 (La.1982). In the present case we find the trial judge adequately considered the art. 894.1 guidelines.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Through this assignment defendant contends that his sentence is excessive, cruel and unusual in that the trial judge imposed consecutive sentences instead of concurrent sentences.

La.Code Crim.P. art. 883 provides:

“If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.”

Whether or not the offenses here were “parts of a common scheme or plan”, the trial judge is given a wide discretion in the imposition of sentences within statutory limits and the sentence imposed by him shbuld not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Molinario, 400 So.2d 596 (La.1981).

In the light of defendant’s prior record, the seriousness of his present convictions and his propensity for violence, we conclude that the trial judge did not abuse his discretion in imposing consecutive rather than concurrent sentences. See State v. Molinario, supra, and State v. Farria, 412 So.2d 577 (La.1982).

For the reasons assigned, defendant’s conviction and sentence as to the crime of being a principal to aggravated battery is reversed and the case is remanded to the district court for a new trial as to that charge. Defendant’s convictions and sentences as to the crimes of being a principal to armed robbery and simple burglary are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART.

DOMENGEAUX, J., concurs and assigns brief reason.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion. I file this special concurring opinion, however, feeling that the Louisiana Constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied; State v. Shelby, Jr., 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down this date.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Frederick WILLIAMS, Defendant-Appellant.
    No. CR83-26.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9,1983.

      Charles Schrumpf, Sulphur, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   YELVERTON, Judge.

A jury found defendant, Frederick Williams, guilty as charged of the second degree murder of James Williams (no relation). He was sentenced to the mandatory life imprisonment provided by LSA-R.S. 14:30.1. On appeal, defendant relies upon four assignments of error.

FACTS

On the night of February 4,1981, defendant and his girlfriend, Fe’Nita Bryant, befriended the victim, James “Pee Wee” Williams, by allowing him to spend the night with them in their room at Assunto’s Motel in Lake Charles. The next morning, February 5, 1981, the defendant befriended Pee Wee further by loaning him the money to rent his own motel room. Later that morning, defendant discovered that his .38 caliber pistol was missing from his room and he suspected Pee Wee had taken it. Preparatory to his planned confrontation with Pee Wee concerning this suspicion, defendant borrowed a .32 caliber pistol from a neighbor. Thus armed, defendant went in search of Pee Wee and found him where he had registered in the same motel. Gun in hand, the defendant ordered Pee Wee out of his room and, after obtaining an admission from Pee Wee that the gun had been taken and already hocked, defendant shot the victim in the stomach. The victim died in the hospital a short time later.

The shooting was witnessed by Fe'Nita Bryant. Defendant claimed self-defense.

ASSIGNMENT OF ERROR NO. 1

It is contended by this assignment that the trial court erred in overruling defendant’s objection to the following remarks made by the prosecutor in his opening statement:

“There’s also a tape recording that you may or may not hear when Miss Bryant ran back into Patricia Johnson’s room to tell them about the shooting. You may hear that tape recording.”

The State did not attempt to introduce the tape at the trial.

The arguments on which this assignment of error is based are that the prosecutor knew the tape was not admissible in evidence, and that the reference to it in the opening statement was prejudicial.

We find this assignment to be without merit for two reasons.

First, the defendant never objected or sought a mistrial based on the allegedly improper reference in the opening statement. When a defendant fails to seek corrective measures timely, he cannot secure appellate relief. LSA-C.Cr.P. art. 841; State v. Sims, 346 So.2d 664 (La.1977).

Second, even if the evidence has been proffered and ruled inadmissible, the mention of it in the opening statement would not be grounds for a mistrial or reversal in the absence of prosecutorial bad faith or a showing of clear and substantial prejudice. In State v. Green, 343 So.2d 149 (La.1977) our Supreme Court said:

“The general rule is that, absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible is not a ground for a mistrial. The rule takes into account that proof frequently falls short of professional expectations.”

Defendant has not shown, nor does the record indicate, that he suffered any prejudice from the remarks. Nor is there any indication of prosecutorial bad faith. To the contrary, the State was merely meeting its duty to protect the defendant from surprise when it announced the possibility that the tape would be used. The State maintains that it was a strategy decision not to use the tape when it became apparent that it was unnecessary as corroborative evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

An autopsy was done February 5, 1981. Several weeks elapsed before the autopsy report was completed and filed in the Coroner’s office. The State never had a copy of the report in its possession. At the trial the State did not attempt to introduce the report into evidence but relied on the testimony of the Deputy Coroner who had done the autopsy to establish the cause of death and identify the bullet removed from the victim’s body.

Defendant objected to the testimony of the Deputy Coroner on the grounds he had not been furnished a copy of the autopsy report by the District Attorney in response to a discovery order issued under LSA-C. Cr.P. art. 719. The trial court overruled the objection but gave defendant’s counsel an opportunity to study the autopsy report before the testimony of the Deputy Coroner began.

This assignment of error argues, in effect, that the State, once ordered to make discovery, has the duty to come forward with the discoverable evidence and physically supply it to the defendant. We disagree.

LSA-C.Cr.P. art. 719 does not require the State to present an item of evidence to the defendant but instead requires that the State allow defendant access to the covered information. The article reads:

“Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.”

The discovery articles impose no affirmative duty upon the prosecution to assemble all items requested in discovery and present them to the defense. State v. Hennigan, 404 So.2d 222 (La.1981).

Defendant had every right and opportunity to secure a copy of the autopsy report from the moment it was filed in the Coroner’s office. His attorneys admitted that no effort was made to obtain a copy of the report from that source.

Even if we were to find some violation of the discovery order, there would still be no ground for reversal under this assignment for two reasons. The first is, LSA-C.Cr.P. art. 729.5(A) permits a trial judge to choose from a wide range of alternative sanctions. State v. Lee, 364 So.2d 1024 (La.1978); State v. Arnaud, 412 So.2d 1013 (La.1982). Counsel for the defendant thus had several available remedies but asked the court only that the deputy coroner not be allowed to testify. Counsel could have but did not ask for a continuance or a recess. The trial court on its own gave counsel time in court to review the report before the testimony began.

Our second reason for finding no grounds for reversal (assuming a violation of the discovery articles), is that defendant must show that he was prejudiced by the court’s ruling denying the motion to strike the doctor’s testimony. State v. Arnaud, supra; State v. Norwood, 396 So.2d 1307 (La.1981); State v. James, 396 So.2d 1281 (La.1981). Defendant has not demonstrated that he was prejudiced by the pathologist’s testimony rather than submission of the autopsy report into evidence, or by the fact that he did not examine the report before the trial began. As in Arnaud, supra, the defendant here had ample time to obtain evidence before the trial; he had ample opportunity to present any and all exculpatory evidence; and he had the opportunity to fully cross-examine the doctor.

There is a suggestion in defendant’s brief that the prosecution, by its failure to physically supply defendant with a copy of the autopsy report, thereby suppressed material, exculpatory evidence in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Regarding that contention (if we correctly perceive it to be one), we note that the evidence here was not withheld. The evidence was given to defendant at trial in the form of the report and was introduced through the doctor’s testimony thus allowing defendant a chance to cross-examine the doctor and question results of the report. Moreover, it does not appear from the record that the autopsy report was favorable evidence for the defendant. The results of the report appear to contradict defendant’s testimony and his version of what happened. It does not appear to bolster in the slightest his claim of self-defense.

For these reasons, this assignment lacks merits.

ASSIGNMENT OF ERROR NO. 3

Defendant argues by this assignment that the trial court erred in convicting the defendant, because, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt, and no rational trier of fact could have found proof excluding every reasonable hypothesis of innocence.

Defendant is incorrect in arguing that the standard of appellate review of the sufficiency of evidence claim is the exclusion of every reasonable hypothesis of innocence. That standard is applicable only where the evidence against the accused is entirely circumstantial. State v. Moore, 432 So.2d 209 (La.1983). Here there was an eyewitness who saw the defendant shoot the victim. Thus the evidence was not circumstantial and the proper standard of our review is whether, viewing the evidence most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moore, supra.

In order to convict the defendant in the instant case of second degree murder, the prosecution was required to prove beyond a reasonable doubt the following essential elements:

(1) The defendant killed Pee Wee Williams, and
(2) The defendant acted with a specific intent to kill or to inflict great bodily harm.

The record is clear as to proof beyond reasonable doubt of the first element of the crime charged. There is no doubt that Frederick Williams did in fact kill Pee Wee Williams.

Defendant asks this Court to reexamine the testimony offered to prove the element of specific intent, particularly the testimony of the eyewitness, Fe’Nita Bryant. It is true that there were many inconsistencies in Ms. Bryant’s testimony. It is also true that her testimony was somewhat self-serving. But the jury was made well aware of her background and of the inconsistencies in her testimony. Ms. Bryant was put through rigorous examination and cross-examination through which her character was made quite clear to the jury. In the end, the jury evidently believed that Ms. Bryant was telling the truth about what she saw on February 5th.

Ms. Bryant testified that the defendant wrestled with the victim for a while and then when they separated the defendant fired one shot into the deceased’s stomach. She further stated the deceased did not have a weapon.

Defendant argues that the deputy coroner’s testimony does not corroborate Ms. Bryant’s testimony. In particular, he argues that the deputy coroner’s testimony as to angle of entry and path of the bullet contradicts Ms. Bryant’s version of how the shooting occurred. But we see in the record nothing contradictory between these testimonies. The deputy coroner did not testify that the angle of entry/path of the bullet was such that the victim could not have been shot as Ms. Bryant testified.

Defendant claims that the coroner’s testimony corroborates defendant’s version of the shooting. This is inconsistent with the testimony of the deputy coroner. Defendant claims he fought with Pee Wee and kicked him in the throat knocking him against the wall. The coroner testified that there were no signs of such trauma on the victim.

For this Court to disturb the factual determinations of the jury below those determinations must be clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981). It cannot be said in this case that the jury’s determinations were clearly contrary to the evidence. The case comes down to a question of who the jury believed. They believed Fe’Nita and the corroborating testimony of the State’s other witnesses over the testimony of defendant in his own behalf.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

The defendant claimed self-defense, and by this assignment urges that the State failed to prove beyond a reasonable doubt that the homicide was not done in self-defense.

The defendant who raises the issue of self-defense does not assume any burden of proof whatsoever; the State has the entire and affirmative burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self-defense. State v. Savoy, 418 So.2d 547 (La.1982).

Under LSA-R.S. 14:20 a homicide is justifiable:

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

Defendant claims that he killed Pee Wee Williams in self-defense because Pee Wee had a gun in one hand and “a little small pocket knife” in the other, when the alleged scuffle and subsequent shooting ensued.

The State showed that neither the alleged gun nor a knife were ever found. The eyewitness testified the victim had no weapons.

This assignment of error is flawed for another reason. The testimony establishes that defendant first procured a gun before going to confront Pee Wee about the gun he suspected Pee Wee had stolen from him. He went in search of Pee Wee, gun in hand, to retrieve his property. He confronted the victim, gun in hand, and demanded the return of his “stolen” property. It is the law in this State that one who is the aggressor or who brings on a difficulty, cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw or discontinue the conflict. LSA-R.S. 14:21.

The jury was instructed as to the “aggressor doctrine” exception to the claim of self-defense. It may well be from the testimony given that the jury concluded defendant could not avail himself of the defense of self-defense as he initiated the confrontation and certainly did not make any attempt to withdraw.

Applying the standard enunciated in Jackson v. Virginia, supra, we find that sufficient evidence was adduced at trial by the State to establish that the homicide was not perpetrated in self-defense.

For the foregoing reasons, the conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion, but in keeping with my position on the review of facts doctrine I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). I feel that the continued application of the review of facts rationale set out in Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979), results in our appellate courts becoming nothing more than second guessers of the triers of fact.


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    STATE of Louisiana, Appellee, v. Sherry Patrice DEATON, Appellant.
    No. CR83-33.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Billy H. Ezell, Lake Charles, for appellant.
    Leonard K. Knapp, Jr., Dist. Atty., Lake Charles, for appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   FORET, Judge.

The defendant, Sherry P. Deaton, was convicted of theft by jury verdict in the Fourteenth Judicial District Court of Louisiana. On appeal, defendant presents one assignment of error:

The jury erred in their verdict of guilty due to the fact that the defendant could not and did not have the necessary specific intent because of her drugged and intoxicated condition at the time of commission of the crime.

The defendant was indicted by proper bill of information on May 24, 1982. Because she pleaded both not guilty and not guilty by reason of insanity, a sanity commission was convened, composed of Drs. Rathmell and Willis. Based on their opinions, the court, on June 16, 1982, found the defendant mentally competent and able to stand trial. She was convicted of theft and sentenced to four years at hard labor.

Defendant contends that her drugged and intoxicated condition caused by the voluntary taking of alcohol with Quaaludes precluded her from forming any specific intent, a necessary element in the crime of theft. Voluntary intoxication cannot excuse crime, but it can be a defense to an offense which requires specific intent if the intoxication precluded the capacity to form that intent. LSA-R.S. 14:15; State v. Burge, 362 So.2d 1371 (La.1978).

The issue of whether specific intent existed at the time of commission of crime was presented to the jury in a fact finding capacity. The inquiry in a review of sufficiency of the evidence supporting a conviction is whether, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt ... ”. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d 664 (La.1981); State v. Lemoine, 403 So.2d 1230 (La.1981) It is thus necessary for us to review the facts.

REVIEW OF FACTS

On the morning of April 30,1982, employees of Kroger Family Center in Lake Charles, Louisiana, observed the defendant taking store merchandise and depositing it in a trash container that she had placed in her shopping cart. As she picked the items off the shelf and into the container, she repeatedly looked over her shoulder, as if she feared someone were watching. Because of this stealthy behavior, the employees kept a close watch on the defendant for approximately an hour and a-half to two hours.

Defendant then attempted to leave with the goods by by-passing the checkout counter and pushing her goods-laden cart through the store’s exit doors. She was immediately apprehended by two Kroger employees and literally dragged, screaming and kicking, to the manager’s office to await the arrival of the police.

During her detention in the office, the defendant was quite moody. She was violent at times and at other times was calm and spoke of her concern for her child. None of the employees observed that she had been drinking and could not smell alcohol on her breath. The officer who arrived at the scene also testified that she did not appear to be intoxicated or in a drugged condition.

The record shows numerous facts which indicate that the defendant knew exactly what she was doing and had the requisite specific intent. She entered the store at approximately 10:30 A.M. and for approximately two hours carefully removed items from the shelves and hid them in a trash can on her shopping cart. She traveled through several parts of the store to disguise her behavior and repeatedly checked over her shoulder to make sure no one was watching. Her attempt to exit with the goods was made through a checkout aisle which had no person checking out goods. Even assuming arguendo that the defendant was in a drugged or intoxicated condition, there was sufficient evidence presented so that a jury could rationally decide that the required specific intent was present.

The defendant suggests that the moody behavior exhibited by her after her detention is evidence that she was so drugged and intoxicated that she could not have known of her actions. This argument is without merit. A drugged and intoxicated state does not have a monopoly on moody behavior. As the doctors who testified at the trial indicated, this type of behavior could have just as easily been caused by an anti-social personality disorder or her anger at being arrested. Mere personality changes after one is arrested does not necessarily indicate that the person was incapable of forming a specific intent to commit a particular crime.

Defendant also contends that the two doctors’ testimony indicates that she could not have been capable of forming specific intent. We disagree. The opinions of the doctors were based primarily on what was told to them by the defendant and, to a lesser degree, on her medical records. Neither doctor examined her mental state at the time of the offense, nor spoke with any of the employees who were with defendant on the day of the crime. All mental examinations were done several days after the crime, one on June 7,1982, and the other on June 14,1982. Although both doctors testified that the defendant had a serious drug problem, there is nothing in their testimony which would indicate that she was incapable of having specific intent.

CONCLUSION

Considering the testimony of the arresting officer and the Kroger employees, the opinions of the doctors, and the meticulous mode of operation used by the defendant, this Court finds that a rational trier of fact had sufficient evidence to find beyond a reasonable doubt that defendant’s condition did not preclude her from forming the required specific intent.

DECREE

For the reasons assigned, defendant’s conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion, but in keeping with my position on the review of facts doctrine I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). I feel that the continued application of the review of facts rationale set out in Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979), results in our appellate courts becoming nothing more than second guessers of the triers of fact.

      . Although in a jury trial the proper procedure for raising the issue of whether there is suffl-cient evidence to support a conviction is by motion for a new trial, this Court will nevertheless consider the question of whether the evidence is sufficient to support the verdict. State v. Brown, 421 So.2d 854 (La.1982), at 858.