text:
    STATE of Louisiana ex rel. Elvin E. BROOKS v. Steve A. ALFORD, III—Warden.
    No. 83-KH-2185.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Elvin E. Brooks, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 267-792 E.

Granted. Relator’s application is remanded to the District Court for an eviden-tiary hearing to determine whether due process requires (a) that there be specific performance of the plea bargain or (b) that defendant be given the option to go to trial on the original charges. Should defendant choose trial, the trial is to be held before a different judge presiding.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Paul RICHARDSON v. Hon. Frank A. MARULLO, Jr., Judge, Criminal District Court, Sec. “D”.
    No. 84-KH-0659.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Paul Richardson, applying for writ of mandamus to the Criminal District Court, for the Parish of Orleans, No. 245-394, Section “D”.

Granted. District court is ordered to furnish relator his 1975 Boykin transcript in No. 245-394 D.


text:
    Mary L. TURNER v. Frank SHEA, Judge of Criminal District Court Section “G”.
    No. 84-KH-1036.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Mary L. Turner, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 622-288.

Granted. The trial court is ordered to act on relator’s petition for appeal within 14 days.


text:
    STATE ex rel. William Larry MERCER v. Hon. Joseph A. LaHAYE, Judge, Div. B, Twenty-Seventh Judicial District Court.
    No. 84-KH-1296.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re William Larry Mercer, applying for writ of certiorari or review, to the 27th Judicial District Court, Parish of St. Landry, No. 36493.

Granted. Relator is permitted to withdraw his application without prejudice.


text:
    STATE ex rel. Kevin Frank BERZAS v. STATE of Louisiana.
    No. 84-KH-1329.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Kevin Frank Berzas, applying for remedial writs to the Twenty-Seventh Judicial District Court, Parish of St. Landry.

Granted. An out-of-time appeal to the Court of Appeal Third Circuit, is ordered.


text:
    John DIGIROLAMO v. The Honorable Shirley G. WIMBERLY, Jr., Judge, Section I, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 84-KH-1376.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re John Digirolamo, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 271-776.

Granted. District Court ordered to furnish relator a copy of his Boykin transcript.


text:
    STATE ex rel. Raymond PERIQUE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1381.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Raymond Perique, applying for remedial writs, to the Criminal District Court, Parish of Orleans, No. 242-843.

Granted. From the transcript of his remarks at sentencing, it is unclear whether the trial judge was aware of his sentencing alternatives at the time but chose not to exercise them in that particular case. Accordingly, relator’s sentence is vacated and this case is remanded to the trial court for resentencing in accord with the law.

WATSON, J., would deny the writ.


text:
    STATE of Louisiana v. Richard B. BRUCE.
    No. 84-KH-1098.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   Writ Granted for purpose of transferring to Court of Appeal, 4th Circuit for Action Dec. 7,1984.

In re Richard B. Bruce, applying for supervisory writs to the Criminal District Court, Parish of Orleans, No. 294-941.

Granted and transferred to Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE ex rel. Willie SMITH, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1380.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Willie Smith, Jr., applying for supervisory writs, 30th Judicial District Court, Parish of Vernon, No. 33836. Granted and transferred to the Court of Appeal for its consideration.


text:
    STATE of Louisiana ex rel. Charles REDDICK v. Charles C. FOTI, Criminal Sheriff, Parish of New Orleans.
    No. 83-KH-2565.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Charles Reddick, applying for writ of mandamus from the Criminal District Court, Parish of Orleans, Nos. 246-358 “D”, 291-008 “I”, 290-048 “I”.

Writ denied in suit No. 246-358 on the docket of Section D and in suit No. 291-008 on the docket of Section I, the same having been acted upon by the trial court and are Moot.

Writ granted in suit No. 290-048 on the docket of Section I and the trial court is ordered to rule on relator’s motion for a Boykin transcript within 15 days from date hereof.


text:
    Rose Christian McKINLEY v. John H. McKINLEY, Jr.
    No. 84-C-1285.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re John H. McKinley, Jr., applying for writ of certiorari, or writ of review, to the Court of Appeal, First Circuit, Nos. 83-CA-0722 and 83-CA-1285; Parish of East Baton Rouge, Family Court, No. 57802.

Not considered; not timely filed.


text:
    STATE of Louisiana ex rel. Tommy COLE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1709.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Tommy Cole, applying for writs of habeas corpus, certiorari, and mandamus, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 7408-79.

Denied.


text:
    STATE of Louisiana ex rel. Lionel CUMMINGS, v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1747.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Lionel Cummings, applying for remedial writ to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 12-80-802.

Denied.


text:
    STATE of Louisiana ex rel., Louis DABON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1859.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Louis Dabon, applying for writ of certiorari, from the Criminal District Court, Parish of Orleans, No. 246-701, Section “F”.

Denied.


text:
    STATE of Louisiana ex rel. Donald FLEMING v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2239.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Donald Fleming, applying for supervisory writ from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 59796.

Denied.


text:
    STATE of Louisiana ex rel. Ronald G. MOUTON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2034.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Ronald G. Mouton, applying for remedial writ to Fifteenth Judicial District Court, Parish of Lafayette, No. 40981.

Denied.


text:
    STATE of Louisiana v. Rodney BUCK.
    No. 84-KH-1494.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Buck, Rodney, applying for remedial writ, Parish of Ouachita, 4th Judicial District Court, Div. “E”, No. 37864.

Granted to transfer to Court of Appeal, Second Circuit, for consideration.


text:
    STATE of Louisiana ex rel. Russell J. GATLIN v. Steve ALFORD III, Warden, Washington Correctional Institute.
    No. 84-KH-0359.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Russell J. Gatlin, applying for writ of mandamus and/or certiorari to the Criminal District Court, Parish of Orleans, Nos. 275-115, 275-875, 276-050 and 275-670, Section “D”.

Denied. The district court has no record of relator’s post conviction application. Relator may refile in district court.


text:
    LOUISIANA, STATE ex rel. Charles JONES v. Warden Ross MAGGIO, Louisiana State Penitentiary.
    No. 83-KH-2176.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Charles Jones, applying for writ of mandamus from Criminal District Court, Parish of Orleans, No. 262-181.

Granted. Trial judge ordered to rule on the motion to vacate probation revocation filed in that court.


text:
    Lawrence T. GETTYS and Benjamin J. Birdsall, Jr. v. LOUISIANA THOROUGHBRED BREEDERS ASSOCIATION.
    No. 84-CC-1109.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Louisiana Thoroughbred Breeders Association, applying for supervisory writs of review from the Civil District Court, Parish of Orleans, No. 83-19583, Section “K”; Fourth Circuit Court of Appeal, No. C-2291.

Denied.

WATSON, J., would grant the writ.


text:
    Beco Lee HAMILTON v. LEONARD B. HEBERT, JR., & CO., INC.
    No. 84-CC-1127.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Beco Lee Hamilton, applying for supervisory writs to the Civil District Court, Parish of Orleans, No. 83-10550, “D”, from the Fourth Circuit Court of Appeal, No. C-2219.

Denied.


text:
    SUN EXPLORATION AND PRODUCTION COMPANY v. TENNECO, INC.
    No. 84-CC-1134.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Tenneco, Inc., applying for writ of certiorari, prohibition and mandamus to the Fifteenth Judicial District Court, Parish of Lafayette, No. 83-6482-E, Third Circuit Court of Appeal, No. 84-487.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    KERR-McGEE CORPORATION v. TENNECO INC.
    No. 84-CC-1135.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Tenneco, Inc., applying for writs of certiorari, prohibition and mandamus to 15th Judicial District Court, Parish of Lafayette, No. 83-3870; Court of Appeal, Third Circuit, No. 84-454.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Michael J. JOHNSON v. Lynda E. JOHNSON.
    No. 84-CC-1140.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Michael J. Johnson, applying for supervisory writ to the Third Circuit Court of Appeal, No. 84-390, Parish of Avoyelles, Twelfth Judicial District Court, No. 84-5206.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE ex rel. Raymond ROCHON v. COURT OF APPEAL, THIRD CIRCUIT.
    No. 84-KH-1333.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Raymond Rochon, applying for writ of certiorari to the Fifteenth Judicial District Court, Parish of Lafayette, No. 32525.

Denied.


text:
    STATE ex rel. Eddie BUSH v. CLERK OF COURT, SUPREME COURT OF LOUISIANA, PARISH OF ORLEANS.
    No. 84-KH-1336.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Eddie Bush, applying for motion for production document, to the Criminal District Court, Parish of Orleans, No. 272-442.

Denied.


text:
    MESA PETROLEUM COMPANY v. COLUMBIA GAS TRANSMISSION CORPORATION.
    No. 84-CC-1396.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Columbia Gas Transmission Corp, applying for writ of certiorari, supervisory and remedial writs of prohibition and mandamus, Parish of Orleans, Civil District Court, Div. “D”, No. 83-21218; to the Court of Appeal, Fourth Circuit, No. C-2451.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    RAPIDES GENERAL HOSPITAL v. Sandra ROBINSON, Secretary, Department of Health and Human Resources, and Harvey Fitzgerald, Undersec Health and Human Resources.
    No. 84-CC-1557.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Rapides General Hospital, Lafayette General Hospital, applying for writ of certiorari, stay, prohibition and mandamus, Parish of East Baton Rouge, 19th Judicial District Court, Div. “H”, No. 280043; to the Court of Appeal, First Circuit, No. CW 84-1027. •

Denied.


text:
    STATE of Louisiana ex rel., Donald Ray THOMPSON v. Hon. Richard E. LEE, Judge, 9th Judicial District Court, Parish of Rapides, Alexandria, La.
    No. 83-KH-1768.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Donald Ray Thompson, applying for writ of certiorari and/or review from the 9th Judicial District Court, Parish of Rapides, No. 203515.

Granted. The district court is ordered to hold a new evidentiary hearing and to appoint counsel to represent relator therein.


text:
    STATE of Louisiana, ex rel., Wendell A. MARTIN v. STATE of Louisiana.
    No. 83-KH-2016.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Wendell A. Martin, applying for writ of habeas corpus, certiorari, prohibition and mandamus, Parish of Orleans, No. 263-888.

Granted.


text:
    STATE of Louisiana, ex rel. Monroe STEPTER v. STATE of Louisiana.
    No. 84-KH-0934.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Monroe Stepter, applying for writs of certiorari, prohibition and mandamus, 19th Judicial District Court, Parish of East Baton Rouge, Nos. 8-75-1115; 8-75-1116; 8-75-1117.

Granted. The trial court is ordered to furnish relator a copy of the guilty plea transcript.


text:
    John V. REED v. HOUSE OF DECOR and Gulf Insurance Company.
    No. 84-C-1008.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re John V. Reed, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. CA-0350, from Civil District Court, Parish of Orleans, No. 77-5672.

Prior report: 447 So.2d 1102.

Granted.


text:
    STATE of Louisiana ex rel. Sam PERKINS v. Hon. Donovan W. PARKER, Judge, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 84-KH-1034.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Sam Perkins, applying for writs of certiorari and/or review to the 19th Judicial District Court, Parish of East Baton Rouge, No. 12-74-5637.

Granted. The trial court is ordered to furnish relator a transcript of the guilty plea.


text:
    STATE of Louisiana v. Rod COLEMAN.
    No. 84-K-1223.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Rod Coleman, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-KA-1296; 19th Judicial District Court, Parish of East Baton Rouge, No. 2-82-492.

Prior report: 451 So.2d 185.

Granted.


text:
    STATE of Louisiana ex rel. Dennis K. MARX v. STATE of Louisiana.
    No. 84-KH-1363.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Dennis K. Marx, applying for remedial writs to the Fourth Judicial District Court, No. 39439, Parish of Ouachita.

Granted. Trial judge ordered to furnish relator with copy of his Boykin transcript.


text:
    STATE of Louisiana ex rel., Rubin TACKNO and Milton Armstead v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-1371.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Rubin Tackno and Milton Arm-stead, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 249-185.

Granted and transferred to trial court for consideration.


text:
    STATE of Louisiana v. Darren BAILEY and Pete Bailey, Jr.
    No. 84-K-1162.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Darren Bailey and Pete Bailey, Jr., applying for supervisory writs to the Second Circuit Court of Appeal, No. 16030-KA, from the Fourth Judicial District Court, Parish of Ouachita, Nos. 40796 and 40797, Division “A”.

Prior report: 452 So.2d 756.

Denied. Stay order recalled.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 84-OB-1399.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
    Reconsideration Denied Jan. 7, 1985.
   In re Hope, Alex Chalmers Jr., applying for admission.

Denied.


text:
    Frank LOPEZ, et al. v. CITY OF SHREVEPORT, et al.
    No. 84-C-1030.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Frank Lopez, applying for reconsideration of denied writ dated June 8, 1984, 452 So.2d 175; Court of Appeal, Second Circuit, No. 16180-CA; First Judicial District Court, Parish of Caddo, No. 290784.

Not considered, Rule 9 Section 6.


text:
    STATE of Louisiana v. Alfred WILLIAMS.
    No. 84-KO-1467.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Williams, Alfred, applying for writ of certiorari, writ of review, supervisory to the Court of Appeal, First Circuit, No. KA-83-1297; Parish of East Baton Rouge, 19th Judicial District Court, Div. “J”, No. 3-83-716.

Prior report: 452 So.2d 234.

Not considered. Application is untimely. See Rule 10 § 4(b) La. Supreme Court Rules.


text:
    Lucille Jennings FREEMAN, et al. v. Pete WILLIAMS and Mary Jennings Williams.
    No. 84-C-1286.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Pete Williams and Mary Jennings Williams, applying for writs of certiorari and review to the First Circuit Court of Appeal, 83-CA-0716; 22nd Judicial District Court, Parish of Tangipahoa, Division A, No. 64428.

Prior report: 450 So.2d 1030.

Not considered, untimely. La.C.C.P. Art. 2166.


text:
    STATE of Louisiana v. Anthony L. DITCHARO and Gerald D. Dimarco.
    No. 84-K-1269.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Anthony L. Ditcharo and Gerald D. Dimarco, applying for writs of certiorari, review, prohibition and mandamus to the Fifth Circuit Court of Appeal, No. 83-KA-638, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 82-3989, Division “D”.

Prior report: 452 So.2d 1201.

Not considered. Not timely filed. See La. Supreme Court Rule 10 § 4(b).


text:
    STATE of Louisiana v. Isaac JONES.
    No. 84-K-1105.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Isaac Jones, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. KA-1604, from the Criminal District Court, Parish of Orleans, No. 294-610, Section “G”.

Prior report: 450 So.2d 692.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it vacated defendant’s sentence and remanded the case to the trial court for re-sentencing. The sentence originally imposed by the trial court is reinstated. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise, the writ is denied.

CALOGERO, J., would grant the writ.


text:
    DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY v. Billy W. FREEMAN.
    No. 84-C-1141.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Billy W. Freeman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0453; Civil Service Commission, No. 3481.

Prior report: 449 So.2d 551.

Granted. The Court of Appeal judgment is vacated and the case is remanded to the Court of Appeal for reconsideration in light of Walters v. Department of Police, 454 So.2d 106 (La.1984).


text:
    Joyce SIMMS and James Simms v. BATON ROUGE COCA-COLA BOTTLING CO., LTD.
    No. 84-C-1123.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Joyce Simms and James Simms, applying for writs of certiorari and review to the First Circuit Court of Appeal, No. 83-CA-0691, from City Court of Baton Rouge, Parish of East Baton Rouge, No. 8210-6429.

Prior report: 450 So.2d 1022.

Granted. The Court of Appeal judgment is vacated and the case is remanded to the Court of Appeal to reconsider in light of Lacey v. LA Coca Cola Bottling Co., 452 So.2d 162 (La.1984).


text:
    DEPARTMENT OF CORRECTIONS, HUNT CORRECTIONAL CENTER v. Annette K. MORGAN.
    No. 83-C-2622.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Annette K. Morgan, applying for writ of certiorari to the First Circuit Court of Appeal; No. 82-CA-1063; Civil Service Commission, Parish of East Baton Rouge, No. 2786.

Prior report: 440 So.2d 785.

Granted. The judgment of the Court of Appeal is set aside, and the case is remanded to the Court of Appeal for reconsideration in the light of the standard of review enunciated in Walters v. Department of Police 454 So.2d 106 (La.1984).


text:
    STATE of Louisiana In the Interest of Shawanda Lynette COX.
    No. 84-CK-0992.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re State of Louisiana, applying for reconsideration of writ granted with/order, from Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 56258; First Circuit Court of Appeal, No. KW 84-0555.

Prior report: 450 So.2d 1318.

Rehearing Denied.

MARCUS and BLANCHE, JJ„ would grant the rehearing.


text:
    STATE of Louisiana, ex rel., Elvin E. BROOKS v. STATE of Louisiana.
    No. 83-KH-2057.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Elvin E. Brooks, applying for writ of mandamus and prohibition, Parish of Orleans, No. 267-792.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Thomas HURST v. Ross MAGGIO, Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 83-KH-2157.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Thomas Hurst, applying for writs of habeas corpus, and certiorari, Criminal District Court, Parish of Orleans, No. 206-471.

Denied.


text:
    Lillian JOHNSON v. BELLEFONTE INSURANCE COMPANY.
    No. 84-C-0892.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Lillian Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-595; 14th Judicial District Court, Parish of Calcasieu, No. 82-4760.

Prior report: 449 So.2d 1134.

Denied. The result is correct.


text:
    STATE of Louisiana ex rel. Reginald THOMAS v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 84-KH-0938.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Reginald Thomas, applying for writ of certiorari and mandamus to the Criminal District Court, Parish of Orleans.

Writ denied in Suit No. 236-604 and 252-256 on the Docket of Division B as moot, relator having been furnished with transcripts in said cases.

Writ in Suit No. 240-750 on the Docket of Division I is denied as no relief may be granted. The District Court advises that the transcript is unavailable.


text:
    Sam GIOVINGO v. Jules COCHIARA and Myrtle Cochiara d/b/a Cochiara Shipyard and Marina and XYZ Insurance Company, and Joe Silver, d/b/a Barataria Tavern Service Station and ABC Insurance Company.
    No. 84-C-0927.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Sam Giovingo, applying for writ of review and/or supervisory writ to the Fifth Circuit Court of Appeal, 83-CA-732, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 247-031, Division “0”.

Prior report: 449 So.2d 699.

Denied. The result is correct.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Lillian JOHNSON v. BELLEFONTE INSURANCE COMPANY.
    No. 84-C-0943.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Bellefonte Insurance Company, applying for writ of review to the Third Circuit Court of Appeal, No. 83-595, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-4760.

Prior report: 449 So.2d 1134.

Denied. The result is correct.


text:
    Lewis BABIN et al. v. TEXACO, INC. et al.
    No. 84-C-1062.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Lewis Babin et al., applying for writ of certiorari to the Third Circuit Court of Appeal, No. 82-396; Sixteenth Judicial District Court, Parish of Iberia, No. 46916.

Prior report: 449 So.2d 718.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. John MORAN.
    No. 84-K-1107.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re John Moran, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. KA-1479, from Criminal District Court, Parish of Orleans, No. 293-918.

Prior report: 451 So.2d 48.

Denied.


text:
    STATE of Louisiana v. John Blair COVER.
    No. 84-K-1117.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re John Blair Cover, applying for writ of certiorari, to the Fifth Circuit Court of Appeal, No. 88-KA-795; Parish of Jefferson, 24th Judicial District Court, No. 82-3042, Division N.

Prior report: 450 So.2d 741.

Denied.

CALOGERO, J., would grant the writ.


text:
    COMMERCIAL BANK & TRUST COMPANY v. Salvador CANALE, M.D.
    No. 84-C-1119.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Salvador Canale, M.D., applying for supervisory writs of certiorari, prohibition and mandamus to the Fifth Circuit Court of Appeal, No. 83-CA-347, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 259-616, Section “F”.

Prior report: 450 So.2d 761.

Denied.


text:
    Sally Sheet GACHEZ v. Robert J. GACHEZ.
    No. 84-C-1121.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Robert J. Gachez, applying for writ of certiorari and review to the Fifth Circuit Court of Appeal, No. 83-CA-782, from the Twenty-Fourth Judicial District Court, Parish of Jefferson No. 255-812.

Prior report: 451 So.2d 608.

Denied: Result correct.


text:
    J.B. HORNE, Jr. v. LIBERTY CHAIR COMPANY, Travelers Insurance Company et al.
    No. 84-C-1122.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re J.B. Horne, Jr., applying for writs of certiorari and/or review to the Fifth Circuit Court of Appeal, No. 83-CA-738; 24th Judicial District Court, Parish of Jefferson, No. 196-749, Section E.

Prior report: 452 So.2d 204.

Denied.


text:
    Willie Bell McKINLEY, et al. v. BEKINS MOVING AND STORAGE, CO., et al.
    No. 84-C-1126.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Willie Bell McKinley, et al., applying for writ of certiorari to the Fifth Circuit Court of Appeal, No. 84-CA-627; Parish of Jefferson, 24th Judicial District Court, No. 265-909, Division G.

Prior report: 449 So.2d 705.

Denied.


text:
    STATE of Louisiana v. Fred SIKES.
    No. 84-K-1129.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Fred Sikes, applying for supervisory writ to the Second Circuit Court of Appeal, No. 16232-KA; Parish of Ouachi-ta, 4th Judicial District Court, No. 41624, Division D.

Prior report: 453 So.2d 336.

Denied.


text:
    ASSOCIATES FINANCIAL SERVICES OF AMERICA, INC. v. Mario S. ROGELL.
    No. 84-C-1136.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Associates Financial Services of America, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, No. 83-CA-642; 24th Judicial District Court, Parish of Jefferson, No. 272-734.

Prior report: 449 So.2d 526.

Denied.


text:
    NEW ORLEANS FEDERAL SAVINGS AND LOAN ASSOCIATION v. Harry LEE, Sheriff and Ex-Officio Tax Collector For the Parish of Jefferson and Mason Barnes, III.
    No. 84-C-1137.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re New Orleans Federal Savings and Loan Association, applying for writ of review to the Fifth Circuit Court of Appeal, No. 83-CA-666; 24th Judicial District Court, Parish of Jefferson, No. 264-139. Prior report: 449 So.2d 1099.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. David A. DARNELL.
    No. 84-K-1139.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re David A. Darnell, applying for writ of certiorari or review and stay, to the Second Circuit Court of Appeal, No. 15955-KA; Parish of Ouachita, Fourth Judicial District Court, No. 40805.

Prior report: 451 So.2d 1218.

Denied.


text:
    TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. D & S OILFIELD RENTAL COMPANY.
    No. 84-C-1142.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Terrebonne Parish Sales and Use Tax Department, applying for writs of cer-tiorari and review to the First Circuit Court of Appeal, No. 83-CA-0559, from the Thirty-second Judicial District Court, Parish of Terrebonne, No. 69656, Division “E”.

Prior report: 449 So.2d 589.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. William R. SMITH.
    No. 84-KK-1144.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re William R. Smith, applying for writs of certiorari, prohibition, mandamus and remedial writ to the 4th Judicial District Court, Parish of Morehouse, No. T83-2909A; Second Circuit Court of Appeal, No. 16551-KW.

Denied.

CALOGERO and DENNIS, JJ., would giant the writ.


text:
    STATE of Louisiana v. Sherman J. CAILLIER.
    No. 84-K-1145.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Sherman J. Caillier, applying for supervisory writ to the Third Circuit Court of Appeal, No. CR-83-791; Parish of Lafayette, 15th Judicial District Court, No. 47465, Division H.

Prior report: 450 So.2d 43.

Denied.


text:
    STATE of Louisiana v. Reginald BAHAM.
    No. 84-K-1146.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re' Reginald Baham, applying for writ of review to the Second Circuit Court of Appeal, No. 16178-KA, Parish of Winn; Eighth Judicial District Court, No. 28188.

Prior report: 453 So.2d 336.

Denied.


text:
    ED BULLIARD CO., INC. v. FORETICH-ZIMMER CONSTRUCTION CO., INC.
    No. 84-C-1147.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Foretich-Zimmer Construction Co., Inc., applying for writs of certiorari and review to the Third Circuit Court of Appeal, No. 83-546, from the Sixteenth Judicial District Court, Parish of Iberia, No. 48375, Division “C”.

Prior report: 451 So.2d 29.

Denied.


text:
    F.E. STERLING, et ux. v. AUDUBON INSURANCE COMPANY.
    No. 84-C-1150.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re F.E. Sterling, et ux., applying for writs of certiorari and review to the Third Circuit Court of Appeal, No. 83-964, from the Ninth Judicial District Court, Parish of Rapides, No. 123206.

Prior report: 452 So.2d 709.

Denied.

CALOGERO, J., would grant the writ.


text:
    Jack PIIRAINEN, Jr. v. CITY OF LAKE CHARLES.
    No. 84-C-1151.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Jack Piirainen, Jr., applying for writs of certiorari, prohibition or mandamus, to the Third Circuit Court of Appeal, No. 83-671, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-6724.

Prior report: 450 So.2d 986.

Denied.

CALOGERO, J., would grant the writ.


text:
    TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. LOUISIANA OFFSHORE RENTALS, INC.
    No. 84-C-1153.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Terrebonne Parish Sales and Use Tax Department, applying for writs of cer-tiorari and review to the First Circuit Court of Appeal, No. 83-CA-0558, from the Thirty-second Judicial District Court, Parish of Terrebonne, No. 69657, Division “E”.

Prior report: 449 So.2d 592.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Anthony J. GIARRATANO v. The KREWE OF ARGUS, INC. and Puritan Insurance Company.
    No. 84-C-1155.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re The Krewe of Argus, Inc. and Puritan Insurance Company, applying for writs of certiorari and review to the Fifth Circuit Court of Appeal, No. 83-CA-486, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 221-630, Division “L”.

Prior report: 449 So.2d 530.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Joe Nelson REDMAN.
    No. 84-K-1175.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Joe Nelson Redman, applying for writ of certiorari, prohibition and mandamus, to the First Circuit Court of Appeal, No. KA/83/1213; Parish of Terrebonne, 32nd Judicial District Court, No. 119965, Division C.

Prior report: 449 So.2d 636.

Denied.


text:
    STATE of Louisiana v. Robert Lee GASERY.
    No. 84-K-1176.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Robert Lee Gasery, applying for writs of certiorari, prohibition and mandamus to the First Circuit Court of Appeal, No. 83-KA-1052, from the Thirty-Second Judicial District Court, Parish of Terre-bonne, No. 94983.

Prior report: 449 So.2d 618.

Denied.


text:
    J.B. HORNE, Jr. v. LIBERTY CHAIR CORPORATION, Travelers Insurance Company, et al.
    No. 84-C-1179.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Travelers Insurance Company, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 83-CA-738, Parish of Jefferson, Twenty-Fourth Judicial District Court, No. 196-749.

Prior report: 452 So.2d 204.

Denied.


text:
    STATE of Louisiana v. Ferdinand MATHIEU.
    No. 84-K-1208.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Ferdinand Mathieu, applying for writ of certiorari, to the Court of Appeal, Fourth Circuit, No. KA-1331, Criminal District Court for the Parish of Orleans, No. 284-109, Division I.

Prior report: 449 So.2d 1087.

Denied.


text:
    STATE of Louisiana v. Robert PETTAWAY.
    No. 84-K-1224.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Robert Pettaway, applying for writ of review to the Second Circuit Court of Appeal, No. 16033-KA, from the First Judicial District Court, Parish of Caddo, No. 120580, Division “I”.

Prior report: 450 So.2d 1345.

Denied.


text:
    STATE of Louisiana v. Gerald Dewayne JONES, a/k/a Jerald Dewayne Jones.
    No. 84-K-1226.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Gerald Dewayne Jones, applying for writ of certiorari or review, to the Court of Appeal, Second Circuit, No. 15911-KA; First Judicial District Court, Parish of Caddo, No. 118004.

Prior report: 451 So.2d 35.

Denied.


text:
    STATE of Louisiana v. Johnny SAGONA.
    No. 84-K-1266.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Johnny Sagona, applying for supervisory writs to the First Circuit Court of Appeal, No. 83-KA-1243, from the Eighteenth Judicial District Court, Parish of West Baton Rouge, No. 97220, Division “A”.

Prior report: 451 So.2d 1171.

Denied.


text:
    STATE of Louisiana v. Carl COLEMAN.
    No. 84-K-1271.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Carl Coleman, applying for writ of certiorari, to the First Circuit Court of Appeal, No. KA-83-1349, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 12-82-428.

Prior report: 450 So.2d 1063.

Denied.


text:
    DELTA DEVELOPMENT COMPANY, INC., et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL, et al.
    No. 84-C-1332.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Delta Development Company, Inc., et al., applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-1927; 25th Judicial District Court, Parish of Plaquemines, No. 25-852.

Prior report: 451 So.2d 134.

Denied.

WATSON, J., recused.


text:
    STATE of Louisiana v. Louis WHITE.
    No. 84-KH-1349.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Louis White, applying for writ of review from the First Judicial District Court, Parish of Caddo, No. 121-481-A.

Denied. Moot.


text:
    STATE of Louisiana ex rel. David Earl WILSON v. STATE of Louisiana.
    No. 84-KH-1362.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re David Earl Wilson, applying for supervisory writs to the Twenty-Second Judicial District Court, No. 114926, Parish of St. Tammany.

Denied. Moot.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Lamar JENKINS, Appellant.
    No. 16197-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 26, 1984.

      C. Joseph Roberts, III, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Lamar Jenkins, appeals a jury conviction of attempted aggravated rape in violation of La.R.S. 14:27 and 42 respectively and a resulting sentence of 21 years at hard labor contending that the trial court erred in:

(1) ... failing to allow the defense to question a potential witness, Thomas Roy, concerning the character of the victim-prosecutrix as to general veracity;
(2) ... failing to allow the defense to question a potential witness, Tim Collins, concerning the reputation of the victim-prosecutrix as to chastity where consent was an issue in the case;
(3) ... failing to allow the defense to question the victim-prosecutrix relative to her reputation for chastity where consent was an issue in the case;
(4) ... allowing the prosecution to question defense witnesses, Margaret Wright, Linda Fitch, James Jenkins and Shirley Powell as to whether the same four persons have previously testified in court in favor of Lamar Jenkins;
(5) ... [jury] returning a verdict of guilty to attempted aggravated rape in that the evidence did not support a rational juror in returning such a verdict; [and]
(6) ... imposing a sentence of 21 years imprisonment at hard labor, said sentence being unconstitutionally excessive.

FACTS

During the evening hours of January 6, 1982, defendant, his brother and the victim [his brother’s girlfriend], went to the Pyramid Lounge. After the lounge closed, they returned to the apartment of defendant’s brother and remained in the apartment together long enough to drink a quart of beer. At approximately 1:15 a.m. on January 7, 1982, defendant left. Thereafter, defendant’s brother also left leaving the victim in the apartment alone. A short time later, the defendant knocked on the door of the apartment. The victim dressed and left with the defendant at his urging. When they reached a nearby cemetery, the defendant grabbed the victim, fought with her, threatened to kill her and raped her, first under a tree and then behind a tombstone.

The victim managed to escape, returned to the apartment, cleaned herself up and went to bed. When her boyfriend returned to the apartment later that morning, she told him what had occurred and he called the police.

After interviewing the victim and viewing the scene of the crime, the defendant was arrested at the apartment of his girlfriend where he was found hiding in a closet. He was charged with aggravated rape, tried by a jury, found guilty of attempted aggravated rape and sentenced to 21 years imprisonment at hard labor.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, the defendant argues that it was error for the trial judge to disallow a witness to respond to a direct question calling upon the witness to state the reputation of the victim.

Thomas Roy was called to testify on behalf of the defense. During questioning it was brought out that prior to August, 1982 [when he was incarcerated], he had lived in Monroe. He testified that during this time period he had frequented bars on a daily basis and that he “used to see [the victim] regular.” He stated that he had heard “some” people discuss her reputation stating that “I have talked with a few people.” He stated that the people with whom he had talked were in bars. The state objected on the grounds that no proper foundation had been laid for the witness to answer the question, and the trial judge sustained the objection.

La.R.S. 15:479 defines proof of character:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not what particular persons think of him.

Character testimony has been juris-prudentially defined as the opinion by a member of the community exposed over an extended period of time to hearing the discussion by other members of the community shared by himself and the person whose reputation is at issue. Before being permitted to testify, the reputation witness must be shown to be qualified to testify on the subject as a member of the community in a position to speak with authority on the subject. State v. Deaton, 412 So.2d 586 (La.1982).

One of the requirements for laying a proper foundation to allow the admissibility of such testimony is that the discussion was heard over an extended period of time because the legislative aim of this statute is to restrict evidence of repute to reputation among those who know the person well. State v. Clark, 402 So.2d 684 (La.1981). Proof may be made not only of the reputation of the person where he lives but also of his repute, which is general and established in any substantial community of people among whom he is well known, such as the group with whom he works, does business, or goes to school. State v. Clark, supra.

At best, the testimony of this witness was to the effect that he had known the victim, had frequented bars himself, had seen the victim at bars, and had heard “some” or a “few” unidentified people talk about her reputation without specificity as to whom he had heard talking, how many times he had heard them discussing the victim, over what length of time he had heard these conversations, and how well the people who had discussed her were known to either the victim or this witness. Clearly, this was an insufficient foundation to determine that this evidence of repute was based on reputation of the victim among those who knew her well. Compare State v. Trosclair, 350 So.2d 1164 (La.1977), where it was held that evidence of reputation among a small group, bar owners, was not admissible.

Moreover, a trial judge is given wide discretion in controlling the examination of witnesses. La.R.S. 15:275. Unless an abuse of this discretion is shown, a conviction will not be reversed. State v. Trosclair, supra. We find no such abuse here and conclude that the trial judge did not err in holding that an insufficient foundation had been laid to admit this testimony.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

This assignment of error contends that the trial court erred in failing to allow the defense to question Tim Collins concerning the reputation of the victim as to chastity. Our review of his testimony initially reveals that the line of questioning pursued by defense counsel with this witness was related to the victim’s reputation for truthfulness and honesty and that defense counsel specifically instructed this witness to limit his comments to this subject matter. Although this witness spontaneously and unresponsively answered “Hooker” when defense counsel asked him what was the victim’s reputation as to truthfulness and honesty, it is apparent that the line of questioning was not undertaken to establish the victim’s reputation for chastity.

Furthermore, defense counsel did not object to any of the rulings of the trial court made in connection with this witness. Accordingly, there is nothing presented in this regard for our review. State v. Herrod, 412 So.2d 564 (La.1982); La.C.Cr.P. Art. 841.

By brief, the defense first argues that the trial court erred in failing to allow the defense to question Collins concerning the reputation of the victim as to general veracity. This contention is likewise without merit as it is clear from the transcript that the witness was in fact allowed to answer a question regarding the victim’s reputation for general veracity.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

In connection with this assignment, defendant argues that it was erroneous for the trial judge to refuse to allow him to recall the victim for the purpose of questioning her regarding whether or not she had ever committed acts of prostitution.

La.R.S. 15:498 which is also known as the “rape shield statute” provides:

Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.

This statute is intended to prevent rape victims from being attacked and impeached on the irrelevant issue of general unchastity. However, only evidence of prior sexual conduct which impeaches a victim’s general “reputation for chastity” is excluded by the statute. State v. Langendorfer, 389 So.2d 1271 (La.1980).

Defendant argues that the rationale of the recent case of State v. Vaughn, 448 So.2d 1260 (La.1984) would compel us to conclude that the trial judge’s ruling in the instant ease was erroneous. We disagree. The Vaughn court stated:

By excluding evidence of a rape complainant’s reputation for chastity or sexual conduct with any person other than the accused, La.R.S. 15:498 serves important goals: it abates the victim’s ordeal at trial, lessens the possibility of unjust influence by inflammatory evidence and encourages reports of rape. Thus, in balancing the invocation of the shield against the right of confrontation in a particular case, the shield should be given weight according to the degree to which it fulfills the purposes of the rape shield law in that case. Against this in each case must be weighed the extent to which the rape shield would exclude evidence which is genuinely relevant, highly probative and critical to the accused’s defense. If the rape shield law in the particular case fails to serve its purpose, overreaches its legitimate aim or trenches upon the right to a fair trial, it must yield to the confrontation guarantees of our state and federal constitutions.

Applying that rationale to the instant case, we conclude that the exclusion of the testimony of the victim promoted the legitimate state interest fostered by the statute. Furthermore, the evidence sought was totally unrelated to the instant offense and therefore immaterial. The victim’s prior alleged history of prostitution has no bearing on the issue of consent to this particular encounter. The defendant has made no showing nor has he even made an allegation that the sexual encounter which he had with this victim was in connection with any act of prostitution. In fact, the defense was based on the premise that he had formerly had a relationship with this victim during which they had consensually engaged in sexual relations on numerous occasions and that she had consensually engaged in an act of sex with the defendant on the date in question. Consequently, there has been no showing made that the victim’s reputation or activities (if any) as a prostitute were of any particular relevance and necessary to ensure him a fair trial. See also and compare State v. Dawson, 392 So.2d 445 (La.1981); State v. Gatson, 434 So.2d 1315 (La.App.3d Cir.1983). Finally, there is a distinct possibility that such evidence would have unjustly influenced the jury in its verdict by its inflammatory nature.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

The next assignment presented for our review in this case is the propriety of the state’s attempting to impeach the credibility of four witnesses and to show their bias, interest and corruption by asking of each if they had previously testified for the defendant at a previous trial.

Defense witness, Margaret Wright, a sister of the defendant, was asked on cross examination if she, and three other named witnesses had not all testified before in a case. Defense counsel objected, and the trial judge instructed the prosecutor to restate the question. The prosecutor then asked:

Q. In another case have you not all testified before on the same subject?

Defense counsel again objected, and this objection was overruled. Next asked was:

Q. And was that subject an alibi subject? Did you provide an alibi for a defendant?

Defense counsel objected to the materiality of the question and the jury was removed.

During the extended colloquy which followed, the state argued that it had the right to ask the witnesses if they had testified together before to show that they would “get together again” in this case. However, the prosecutor stated that he was not attempting to question the validity of their earlier testimony but was attempting to point out that they had said the same thing. It was argued that the bias or interest toward each other in giving the same testimony in this case, that is, the same testimony for this defendant in this case was the relevance of this line of questioning. Defense counsel argued that these four witnesses had admittedly testified for this defendant in a prior criminal case in which he had been acquitted and that the state was attempting through the guise of bias, interest and corruption to indirectly cast doubt on the witnesses because they had testified for him before and that jury had believed their testimony. The position of the defense was that because the defendant had been acquitted in the former case it was a closed subject. Finally, it was contended by the defense that unless it could be established that the four witnesses had lied in the earlier proceeding, there was no relevance in this line of questioning.

The trial judge sustained the objection to the question regarding the alibi. Thereafter, the trial judge allowed the prosecutor to ask each of the four witnesses if they had ever testified in a prior proceeding for this defendant together finding that such a question was material and relevant to a substantial issue in dispute, that is, the credibility of the testimony of these witnesses, and that such questioning was not unduly prejudicial.

On appeal, defendant argues that the fact that the same witnesses had previously testified for this defendant without more establishes nothing that has any relationship to any material issue or fact in this prosecution and does not establish that these four witnesses had any special interest in the outcome of the case nor does it show any particular bias or corruption. It is further argued that the real purpose of this questioning was to prejudice the defendant before the jury by suggesting that the witnesses were fabricating testimony and had done so before and that in fact this particular method of questioning was a “backdoor” method of placing into evidence prohibited evidence of other crimes to the prejudice of the defendant.

Generally, the state may impeach the testimony and credibility of defense witnesses as to all relevant matters. La.R.S. 15:486 and 494. However, where the inquiry bears upon an accused’s past criminal record, relevancy is not the sole limiting criterion and regard must be had also for the substantial risk of prejudice to the defendant which might result from adverting to his prior misdeeds. The inherent danger in admitting evidence of prior crimes is that the jury will convict a defendant solely because he has been shown to be a bad man. State v. Ervin, 340 So.2d 1379 (La.1976). However, evidence of the defendant’s prior crimes may be admitted when it has a relevancy independent of establishing his criminal disposition. Whenever the other crimes evidence is relevant for some purpose other than to show that the accused is a bad man and thus more likely to have committed the crime with which he is charged, the rule of exclusion is inapplicable, and the evidence is admissible if its probative value outweighs its possible prejudicial effect. State v. Er-vin, supra.

The prosecutor’s cross examination of these witnesses was not for the purpose of impeaching the witnesses’ or the defendant’s general credibility under La.R.S. 15:495 but the focus of the questioning was to establish that these particular witnesses had testified in court for this particular defendant before and were appearing in court again in his behalf to provide him with a defense to this criminal charge thereby tending to show their bias, interest or corruption.

La.R.S. 15:492 provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.

Our jurisprudence permits full cross-examination of any witness in order to expose any bias or interest which may influence his perceptions or color his testimony. The broad right to impeach a witness for bias, interest or corruption is dictated not only by La.R.S. 15:492 but also by the statutory right to full cross-examination. La.R.S. 15:280; State v. Kellogg, 350 So.2d 656 (La.1977). Thus, an accepted method of impeaching a defense witness is by showing that the witness is biased or interested in the special case on trial because of partiality or of any acts, relationships, or motives reasonably likely to produce such partiality. State v. Robinson, 337 So.2d 1168 (La.1976). See also McCormick on Evidence, § 40 (2d Ed.1972); Pugh, Louisiana Evidence Law 111-134 (1974). Accordingly, when cross-examination is not within the prohibition of La.R.S. 15:495 because it is independently relevant to show particular bias, interest or corruption in the special case before the court, it is permissible impeachment under La.R.S. 15:492, which recognizes another and a different basis of impeachment from that of La.R.S. 15:495. See State v. Robinson, supra.

In State v. Foster, 153 La. 154, 95 So. 536 (1923), the reviewing court was faced with the issue of the propriety of the prosecutor’s asking the mother of the accused, a defense witness, on cross examination if she had not formerly appeared in several cases in which the defendant had been indicted and tried and if she had not testified to an alibi in each case. Defense counsel objected to this line of questioning on the ground that the questions were not asked to attack the credibility of the witness but rather for the purpose of placing before the jury the fact that the accused had been tried numerous times before the court thereby constituting an attempt to attack the defendant’s character. The testimony was admitted by the trial court for the purpose of showing that the witness had been a professional alibi witness for him in every case in which he had been indicted and tried. The reviewing court held that the testimony was clearly admissible for the purpose for which it was elicited.

The fact that a witness has testified earlier in support of a criminal defense set forth by a defendant may have a tendency to weaken his testimony in a subsequent case. It tends to show the close familiarity existing between the parties and therefore bears upon the interest and credibility of the witness. Consequently, it is an element which the jury may take into consideration in weighing the testimony of such a witness. See and compare State v. Lynch, 176 Wash. 349, 29 P.2d 393 (1934), a case in which it was held proper for the prosecutor to interrogate defendant’s witnesses on cross examination as to whether they had not testified for the defendant in support of an alibi in a former criminal action.

While Foster and Lynch provide authority for upholding an even stronger line of questioning than that complained of in the instant case, including the initial question asked by the prosecutor which was precluded by the trial judge, we need not reach that precise issue here because the instant factual situation is dissimilar. While we as the reviewing court are aware from the record that the prosecutor was referring to a prior criminal proceeding when pursuing this line of questioning, at the time, the jury was not made so aware because the questions actually allowed by the trial judge do not specifically refer to a prior criminal proceeding but only to a trial, which was not identified as being criminal in nature. Therefore, we will not presume that the jury interpreted these questions as being evidence of “other crimes” or even an attempt by the prosecutor to enter the dangerous area of “other crimes” evidence at this point. Furthermore, La. R.S. 15:492 specifically provides that any fact which tends to show bias, interest or corruption should be admitted so that the jury may accord that fact the weight it deems appropriate. The fact that this group of witnesses had testified for this particular defendant in a prior court proceeding at the least tends to show their particular bias, interest or corruption in favor of the defendant. Therefore, it was evidence which the jury was entitled to consider in weighing the testimony of these witnesses and the trial judge properly allowed this line of questioning under La. R.S. 15:492.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment, the defendant argues that the jury erred in returning a verdict of guilty of attempted aggravated rape because the evidence did not support a rational juror’s returning such a verdict. In effect, the defendant, who claims that the act of sexual intercourse which he engaged in with the defendant was consensual, asks that we evaluate the credibility of the witnesses and overturn the trier of fact on its factual determination of guilt. This is not the function of the court on appeal. See State v. Richardson, 425 So.2d 1228 (La.1983); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984); State v. Wilkerson, 448 So.2d 1355 (La.App. 2d Cir.1984). Because it is the role of the fact finder to weigh the respective credibilities of the witnesses, an appellate court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson v. Virginia standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Williams, supra; State v. Wilkerson, supra.

Evidence is sufficient to support a conviction when any rational trier of fact in viewing the evidence in the light most favorable to the prosecution, could have concluded that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Defendant was originally charged with aggravated rape. La.R.S. 14:42 provides:

Aggravated rape is a rape committed where the.anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by life im-prispnment at hard labor without benefit of parole, probation, or suspension of sentence.

La.R.S. 14:27 provides:

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

Accordingly, in order to support the verdict, the evidence viewed in the light most favorable to the prosecution in this case must show that the defendant actively desired to commit the rape which he at least attempted by overcoming the victim’s utmost resistance by force, or by preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution.

The victim testified that at approximately 3:00 a.m. on January 7,1982 in cold, •rainy weather, she was raped by defendant in a graveyard. She stated that she had earlier been to the Pyramid Lounge with her boyfriend and the defendant to drink beer. All of them left the lounge at the time it closed and returned to her boyfriend’s apartment where they drank another quart of beer. After the defendant left the apartment, the mother of a child of the victim’s boyfriend came to the apartment, and he also left with her leaving the victim alone. Thereafter, the victim heard a knock at the door and the defendant told her that her boyfriend was surrounded by the police on Grammont Street by the cemetery. She dressed and left with the defendant to go to the scene of the reported incident. When they arrived at that location, she saw no police and turned around to leave. The defendant informed her that she was going nowhere and began pulling her by the waist throwing her to the ground on the side of a gravel road. After the defendant got the victim on the ground, he told her that if she did not engage in sexual intercourse with him he would kill her. He had his hands on her neck choking her while she was attempting to fight him off. The defendant pulled down the victim’s jeans and tore off her underpants. He raped her initially under a tree. Thereafter, he continued to beat the victim and drug her on her back behind a tombstone where he raped her again. Throughout, the defendant was yelling at the victim telling her that he was going to kill her. He hit her with his fist and bit her on the jaw. In attempting to fight off the defendant, the victim bit him and scratched him on the knee. Thereafter, the victim managed to escape and to return to the apartment where she attempted to clean herself up and went to bed. The defendant returned to the apartment and attempted to talk to the victim.

When the victim’s boyfriend returned home later that morning, she related the preceding events to him and he called the police. After interviewing the victim at approximately 11:00 a.m., the detectives from the Monroe Police Department went to the alleged location of the rape and found torn underwear and a scarf torn in two pieces. The officers also observed bent grass in the area which indicated a scuffle had taken place. The victim was observed to have several bruises and a bite mark. She was taken to E.A. Conway Hospital for examination. The defendant was later found at the home of his girlfriend hiding in a closet where he was arrested.

The testimony of the examining physician was that she had observed a bruise on the victim’s left cheekbone which was swollen, a swollen bruise between the eyes, and a bruise on her right cheek which appeared to be a bite mark. She also observed scratches on the upper lip, right wrist and lower back, as well as red marks and parallel scratches on the victim’s neck. Scrapings were taken from her fingernails and dried grass was removed from the victim’s pubic hair. Motile and non motile sperm were found.

The defendant also testified. He stated that he had known the victim for four or five years and that he had dated her intermittently between 1979 and 1982 during which they had engaged in consensual acts of sex. His testimony is substantially similar to that of the victim until his departure from the apartment. He testified that he left the apartment at 1:15 a.m. and went to the Disco Lounge of the Elite where he stayed approximately 45 minutes. He then returned to the apartment and the victim answered the door. Thereafter, he and the victim engaged in an act of consensual sexual intercourse. The victim asked him if he had any money with which to purchase liquor and together they left the apartment to go to a bootlegger’s on Gram-mont. As they started across the graveyard, he reached in his pocket to obtain money to purchase the liquor and found none. He asked the victim if she had taken the money from his pocket when he left the apartment without his pants after intercourse to clean himself up, and they began arguing and fighting. Blows were exchanged and she fell to the ground. When the victim said that she would give him his money, the fight ceased and she unzipped her jeans reaching into them. When he saw something in her underpants, he reached for them causing them to tear. He retrieved his money and left the victim in the graveyard. By cab, he returned to his girlfriend’s.

On cross examination, he denied dragging the victim anywhere but admitted that he had hit her and bitten her on the cheek. He also denied grabbing her about the neck. Despite the fact that his pants and jacket had mud on them, he denied ever hitting or kneeling on the ground. He also denied that the police had found him hiding in the closet.

The victim’s underpants were muddy as were the pants and jacket recovered from the defendant. The underpants were torn as was the scarf which the victim identified as the one she was wearing at the time of the rape.

Viewing the evidence under the appropriate standard, the evidence is sufficient to support the jury’s finding. Defendant’s argument that a finding of attempted aggravated rape lends support to an inference that a rape did not in fact occur is merit-less. Attempted aggravated rape is a responsive verdict to the crime charged. An accused may be found guilty of an attempt to commit a crime although it appears on the trial that the crime intended or attempted was actually perpetrated. La.R.S. 14:27. An equally plausible explanation for the verdict actually returned in this case is the fact that it was a compromise verdict or the fact that the jury may not have wanted to expose this defendant to life imprisonment for this particular crime. In essence, the finder of fact made a credibility determination in favor of the victim and against the defendant. There is sufficient testimony, if believed, to support the jury’s finding.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant finally argues that the 21 year sentence is excessive, out of proportion to the crime actually committed, and amounts to an unnecessary imposition of pain and suffering, thereby rendering it constitutionally excessive.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence, a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant [State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983) ] because the sentencing guidelines of Article 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983); State v. Sepulvado, supra. It is unnecessary that the trial judge list every aggravating and mitigating circumstance that he considered if the record reflects that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979).

In the instant case, the trial judge initially noted that he had reviewed the defendant’s pre-sentence investigation report with defense counsel and proceeded to review some of its contents with the defendant. The trial court noted that the defendant was 23 years old, single and the father of one child. It was further noted that other than juvenile offenses of shoplifting, damage to property, three charges of misdemeanor theft, there were no adult convictions. It was further noted by the trial judge that although the defendant continued to deny this offense, that the evidence was sufficient in the trial judge’s mind to justify the verdict. The trial judge further stated that he had considered all of the mitigating factors noted in Article 894.1 and concluded that the crime threatened as well as caused serious harm to the victim, that the defendant did not act under strong provocation, and that there were no substantial grounds which justified this criminal conduct. Additionally, the trial judge found that the victim neither induced nor facilitated in the commission of the crime. The trial judge noted that if the defendant had been found to have had a history of violent crimes that the sentence actually imposed would have been much greater because, the fact that there was no substantial criminal background was a factor which weighed in the defendant’s favor. However, the trial judge concluded that based bn defendant’s background it was likely that this criminal conduct was a result of circumstances that were likely to recur. The trial judge noted the defendant’s poor employment history and lack of direction and the fact that this defendant had also been on juvenile probation which did not deter him from committing criminal acts. The trial judge also concluded that there would be no substantial hardship which would result to his dependent should he be imprisoned. Finally, the court concluded that there was an undue risk that during a period of suspended sentence or probation defendant would commit another crime, that defendant was in need of correctional treatment provided most effectively by committment to an institution and that a lesser sentence would deprecate the seriousness of the crime. It was also noted that attempted aggravated rape is an extremely serious offense. In light of all the foregoing factors, the court sentenced the defendant to 21 years at hard labor.

We conclude that the trial court adequately complied with Article 894.1. While a sentence may be vacated and a case remanded for re-sentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

This sentence is within the lower one half of the range of sentences provided. Furthermore, the jury could have convicted the defendant of aggravated rape. A court cannot ignore the underlying circumstances of the crime and still individualize the sentence. State v. Day, 414 So.2d 349 (La.1982). Accordingly, given the circumstances of the instant crime and the factors enumerated by the trial judge, we find no abuse of discretion in his imposition of this sentence.

This assignment of error is without merit.

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

CONVICTION AND SENTENCE AFFIRMED.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Jack TUESNO and Lionel Williams.
    No. KA 1822.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Evangeline G. Abriel and Calvin Johnson, Supervising Attys., Loyola Law School Clinic, New Orleans, for defendant-appellant.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J., Pro Tem.
   GARRISON, Judge.

The defendants, Jack Tuesno and Lionel Williams, were charged by bill of information with illegal possession of stolen things valued in excess of $500.00 in violation of La.R.S. 14:69(B)(1). The trial judge found the defendants guilty of the lesser included offense of possession of stolen things valued at $100.00 or more, but less than $500.00. Pursuant to La.R.S. 15:529.1, the State filed a multiple bill against each defendant. Both defendants pled guilty to the multiple bill and were each sentenced to serve four years at hard labor. Defendant Tuesno appeals his conviction and sentence. .Defendant Williams does not appeal.

The facts of this case are as follows: On April 10, 1983, Sergeant John Evans of the New Orleans Police Department received a call from a reliable informant who told him that drug dealings and other criminal activity had been taking place near Rampart Street and Martin Luther King Boulevard. Sergeant Evans set up a surveillance of this area at approximately 4:45 p.m. that afternoon. At approximately 8:00 p.m., a blue Cadillac drove up to this area. Sergeant Evans recognized the car as belonging to someone who he had recently arrested on a drug charge and who is presently serving a prison sentence. The occupants of this car, Jack Tuesno, Lionel Williams and Herbert Hall, got out of the car and walked around. During the next two hours, the three men brought between ten and twenty people to the car and showed them something in the back seat and in the trunk of the car. One of the first people to be shown the contents of this car was Joe Pollard, the owner of a nearby grocery store. Shortly thereafter, Tuesno, Williams and Hall lifted a side of beef out of the trunk of the car and delivered it to Pollard’s store. At this time, it became apparent to Sergeant Evans that this meat was probably stolen. After the delivery to Pollard’s store, Williams approached a man named Polly who manages the nearby Pete’s Fish Fry King. Williams showed Polly the contents of the car and Polly then nodded his head in an affirmative manner. At approximately 10:30 p.m., Tuesno, Williams and Hall got back into the car and drove away. Suspecting that the contents of the car were stolen, Sergeant Evans radioed to a nearby police ear and asked the officers in that car to stop the vehicle. The policemen stopped the vehicle and found two sides of beef in the car. A third side of beef was later recovered from Pollard’s store.

Sergeant Evans called police headquarters and learned that three sides of beef had been stolen that day from a truck owned by Blankenship Transportation which was delivering a truckload of beef from Abilene, Texas to New Orleans. Evans then placed the three suspects under arrest and advised them of their rights. After being advised of his rights, defendant Tuesno admitted to Sergeant Evans that they were planning to sell the other two sides of beef to Polly. However, the defendants told Evans that they had received the meat from a friend who works at a meat packing company.

At trial, Bobby Drain, a truck driver for Blankenship Transportation testified that he was delivering sixty sides of beef from Abilene, Texas to Bar “S” Foods in New Orleans. He arrived in New Orleans on Sunday, April 10, 1983 at approximately 10:00 a.m. Because Bar “S” Foods was not open on Sunday, Drain parked his truck in their driveway and left. He returned at approximately 7:30 p.m. to ensure that the doors on his truck were sufficiently locked. The locks were secure at 7:30 p.m. but Drain returned to check again at 10:30 p.m. only to find that the lock on the rear door had been broken and that three sides of beef had been stolen.

Gordon Brock, the meat manager for Bar “S” Foods, testified at trial as to the value of the stolen meat. He stated that he specifically remembered these three sides of beef which were returned to Bar “S” following their recovery by police and estimated that the total value of the three pieces of meat was $520.00. However, on cross-examination, Brock conceded that according to a different method of valuation, the value of the meat was $454.84. Brock stated unequivocally that the meat had a value in excess of $100.00.

A review of the record reveals that there are no errors patent.

ASSIGNMENT OF ERROR # 1

Defendant contends that the trial judge erred in denying his motion to suppress. The main argument is that the arrest of the defendant and the search of his vehicle was unlawful and that, therefore, any evidence obtained from this arrest and search should have been ruled inadmissible at trial.

In this case, no warrant was obtained for the arrest of the defendant or for the search of his vehicle and seizure of its contents. A warrantless arrest must be based on probable cause. State v. Nicholas, 397 So.2d 1308 (La.1981). Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Davis, 407 So.2d 666 (La.1981). The same standard applies for warrantless searches. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). As stated in State v. Collins, 378 So.2d 928 (La.1979):

“When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed.”

Furthermore, the circumstances upon which the arresting officer acts must show that criminal conduct is more probable than non-criminal activity. State v. Herbert, 351 So.2d 434 (La.1977).

In this case, Sergeant Evans received information from a reliable informant that criminal activity including exchanges of stolen property had been taking place recently in the area of Rampart Street and Martin Luther King Boulevard. Sergeant Evans personally observed the defendant and two other men stop in the area on the evening of Sunday, April 10, 1983. He watched the three men show the contents of the car including the trunk to between ten and twenty people during a two hour period that night. The three men carried a side of beef into a grocery store owned by a man who had inspected the contents of their car moments before. They also appeared to be making an agreement to sell something to a man named Polly, the manager of Pete’s Fish Fry King. The men then drove away.

These activities reasonably aroused the suspicion of Sergeant Evans and justified his issuance of a request for other police officers to stop the vehicle. The circumstances of this case indicate that there was probable cause to search the vehicle in that the conduct of the three men indicated that criminal activity was more probable than non-criminal activity. State v. Herbert, supra. The discovery of the meat in the car coupled with a report from police headquarters that three sides of beef had been stolen that evening justified the arrest of the defendant and the other two men. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

Defendant claims that the trial judge erred in denying his motion to quash the bill of information. This motion was based on the fact that the defendant was unable to inspect the meat in question prior to its disposal. This allegedly prevented the defendant from preparing a defense as to the value of the meat which is an essential element of this crime.

During the motion to quash hearing, the trial judge cited the case of State v. Clark, 414 So.2d 737 (La.1982) which states that the unavailability of evidence for further testing does not prejudice defendant’s right to a fair trial so as to warrant a dismissal of the prosecution. Although the Clark case dealt with the destruction of evidence and the instant case deals with the consumption of evidence, the cases are analogous in that the evidence is no longer available for examination.

The State had the burden of proving the value of this stolen property. Photographs were taken of the meat and introduced at trial. Because the meat was a perishable item, it could not be retained indefinitely for inspection by the parties. This would have resulted in further financial hardship for the victim of this crime. The defense had an adequate opportunity to cross-examine witnesses who testified as to the value of the meat. Furthermore, the most pertinent fact in this case is that the defendant was ultimately convicted of a lesser crime than that charged in the bill of information. Rather than being found guilty of possession of stolen property valued in excess of $500.00, he was only found guilty of possession of stolen property valued in excess of $100.00, but less than $500.00. Defendant was successful on cross-examination in showing that the value of the meat may have been less than $500.00 but all testimony indicated that the value of the meat was undoubtedly in excess of $100.00. Therefore, the defendant was not prejudiced by his inability to examine the property in question and this assignment of error is without merit.

ASSIGNMENT OF ERROR # 3

Defendant also contends that the trial judge erred in allowing the State’s witnesses Sergeant Evans and Bobby Drain to testify as to the weight of the property in question. According to La.R.S. 15:463:

Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

In this case, Drain testified that he had carried sides of beef similar to the ones in question and that he estimated their weight to be between 120 and 180 pounds. Sergeant Evans actually lifted one of the sides of beef in question and estimated its weight to be at least 200 pounds. Therefore, the testimony from these two witnesses was based upon their personal knowledge. Additionally, Gordon Brock, the fresh meats manager at Bar “S” Foods testified that the average weight for the sixty sides of beef in the truck was 126 pounds. Even if any of this testimony was improper, it did not prejudice the defendant because he was convicted of a lesser offense than that charged. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 4

In his fourth assignment of error, the defendant contends that the trial court imposed an unconstitutionally excessive sentence. This argument has been divided into three categories:

(1) the defendant was punished for exercising his right to trial
(2) the trial judge relied upon improper and incorrect matters in sentencing the defendant and failed to grant defense counsel an opportunity to rebut and explain these improper and incorrect matters
(3) the trial judge failed to properly consider the items set forth in La.C.Cr.P. Art. 894.1 and failed to individualize the sentence to the defendant

As for this first category, the defendant was offered an eighteen month sentence as a plea bargain arrangement prior to trial. The defendant refused to accept this sentence and opted to proceed to trial. The defendant received a four year sentence following trial based in part on the fact that he was a multiple offender.

In the case of Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980), the court acknowledged that a defendant cannot be punished simply for exercising his constitutional right to stand trial. However, the court held that the mere imposition of a longer sentence than defendant would have received had he pleaded guilty does not automatically constitute such punishment. A state is free to encourage guilty pleas by offering substantial benefits to a defendant, or by threatening an accused with more severe punishment should a negotiated plea be refused. Frank v. Blackburn, supra.

“It is equally clear that a defendant is free to accept or reject the “bargain” offered by the state. Once the bargain— whether it be reduced charges, a recommended sentence, or some other concession — is rejected, however, the defendant cannot complain that the denial of the rejected offer constitutes a punishment or is evidence of judicial vindictiveness.” Frank v. Blackburn, supra.

The Louisiana Supreme Court held that a trial judge’s preconviction offer of a lenient sentence should not be viewed as setting a limit for the justifiable sentence after conviction. State v. Barkley, 412 So.2d 1380 (La.1982). The trial judge in this case was additionally justified in imposing a longer sentence in that he learned shortly before sentencing that the defendant had two pri- or convictions.

As for the second category of this assignment of error, defendant claims that it was error for the trial judge to rely on facts presented at trial which implicated the defendant in the actual theft of the meat. The essence of defendant’s argument is that he was being sentenced for a crime for which he had not been charged. While the defendant in the instant case was not convicted of another charge, facts implicating his involvement in another crime were considered by the trial judge in imposing sentence. The defense objects to the following remarks made by the trial judge at the sentencing hearing:

“I note for the record that the Court has learned an additional relevant factor, more particularly, concerning the burglary of the truck, proximity in location of the truck where this defendant was found to be in possession of the meats. The time frame that had elapsed from the brief period of time of the burglary of the truck and this defendant being found in possession and further that this defendant has a prior conviction for burglary that occurred even before this plea of guilty to the felony of receiving stolen property charge which, in the court’s mind, is relevant in terms of looking at the criminal history of this defendant, more particularly, that now there is three felony convictions in a relatively short period of time.” Sentencing Tr. pp. 7-8.

It is obvious from a reading of the entire sentencing hearing transcript that the main reason for the strict sentence imposed by the trial judge was that the defendant had two prior convictions. The reference to the defendant’s possible implication in the theft of the meat in question was mere rumination on the part of the trial judge. If the verbalization of his suspicions on this subject was error, it was harmless in light of the judge’s strong reliance on defendant’s prior criminal record as justification for a more severe sentence.

Thirdly, the defendant contends that the trial judge failed to comply with La.C.Cr.P. Art. 894.1 in particularizing the sentence to the offense and the offender. In this case, the trial judge clearly did not comply with the 894.1(C) guideline in that he did not “state for the record the considerations taken into account and the factual basis therefor in imposing sentence”. However, the reviewing court generally does not remand for resentencing, despite lack of Article 894.1 compliance, when the record plainly supports the sentence imposed. State v. Day, 391 So.2d 1147 (La.1980). A review of the record indicates that the sentence given was warranted and was not excessive.

This assignment of error is without merit.

ASSIGNMENT OF ERROR # 5

Finally, the defendant contends that the evidence presented at trial was insufficient to support a guilty verdict. The defendant was charged with La.R.S. 14:69 which is defined as follows:

Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

The standard of review is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as follows: Viewing the evidence in the light most favorable to the prosecution, a rational juror could conclude that the defendant is guilty of the crime charged beyond a reasonable doubt. When circumstantial evidence is involved, La.R.S. 15:438 requires:

Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

In this case, evidence was presented which established that three sides of beef were stolen from a truck shortly before the defendant and two other men were seen attempting to sell three sides of beef. The meat in the defendant’s possession matched the description of the meat stolen from the truck owned by Blankenship Transportation. Testimony at trial indicated that the value of the meat was in the $400-$500 range. The fact that the defendant and his cohorts were attempting to sell the meat out of the trunk of a car on a Sunday evening indicates that they knew or should have known that the meat was stolen. The defendant and the other two men were found in possession of the meat when they were stopped by police. These facts satisfy the Jackson standard and support the conviction of the defendant. This assignment is without merit.

For the reasons discussed above, we affirm the defendant’s conviction and sentence.

AFFIRMED. •