author: CARTER, Judge:

text:
    STATE of Louisiana v. Claude Luke CRADDOCK.
    No. 82 KA 1022.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      S. Austin McElroy, Office of Indigent Defender, Peter J. Garcia, Covington, for defendant.
    William R. Alford, Asst. Dist. Atty., Cov-ington, for the State.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This criminal appeal arises from the conviction of Claude Luke Craddock for first-degree murder, La.R.S. 14:3o. Defendant received the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for a period of forty (40) years. The defendant appeals his conviction and sentence, specifying eight assignments of error.

FACTS

On or about August 5, 1976, the defendant, Claude Luke Craddock, and Gene Michael Crapeau met with the victim, John C. Riley, and Dean Weisner at the Union 76 Truck Stop near Slidell, Louisiana in St. Tammany Parish to discuss a marijuana transaction. Riley and Weisner had in their possession about one hundred pounds of marijuana, which they were trying to sell to Craddock and Crapeau.

After discussing the transaction at the truck stop, Riley and Weisner (in an Oldsmobile which belonged to Riley’s father) followed Craddock and Crapeau (who were in a pickup truck) to the Pearl River area. The truck stopped at a trailer, which belonged to Crapeau’s stepfather. The four proceeded to a teepee structure under construction a short distance from the trailer. There the marijuana was examined and apparently found satisfactory by the prospective buyers, Craddock and Crapeau.

Crapeau then brought out some opium, which was smoked by the group in a small hash pipe. The combination of opium smoking and hot weather made the participants thirsty. Crapeau went into the trailer on the pretext of searching for liquid refreshments.

Shortly thereafter, Crapeau emerged from the trailer firing a weapon. The first shot missed, the second shot hit Weisner in the back knocking him to the ground, and the third shot hit Riley resulting in “a burst of blood” spurting from his mouth. Entering through the chest, the bullet passed through both lungs and injured a large vessel leading to the heart, resulting in severe hemorrhage. The pathologist testified that the bullet caused such internal bleeding that death resulted “somewhere between two and twenty minutes” after the initial penetration.

After being shot, Weisner laid very still and pretended to be dead. Weisner testified that Craddock stuffed rags into his mouth and Riley’s mouth. Weisner then seized an opportunity to attempt to escape and quickly rose from the ground and dashed toward the Oldsmobile. Crapeau foiled the escape attempt and again attacked Weisner. In an effort to prevent Crapeau from shooting him a second time, Weisner tried to choke Crapeau. It was at that time someone from behind began brutally beating Weisner about the head and face with a heavy instrument. Again, Weisner played opossum pretending to be dead.

Craddock and Crapeau then picked up Weisner and placed him in the back seat of the Oldsmobile, covering his body with a sheet of plastic. Riley was placed in the trunk of the car. The Oldsmobile was driven to an isolated spot in the Honey Island Swamp, soaked with gasoline, and ignited.

Weisner testified that he heard the door of the pickup truck close and drive off. Weisner subsequently threw the plastic off, opened the door of the car, and staggered a few steps from the burning car. The car then exploded. The next thing Weisner remembers is waking up at Charity Hospital.

As a result of the shooting and beating, Weisner had an eye surgically removed, and plastic surgery was necessary to rebuild his nose. Weisner estimated that approximately 30 to 45 minutes expired from the time that he was shot until the time he crawled out of the automobile. Weisner further testified as follows:

“Q. And what you’re asking me to believe is that these two kids take and shot you all for nothing?
A. They shot us for the marijuana.
Q. Oh. Shot you for the marijuana?
A. That or they are crazy. I don’t know. I have no other — no other reason to believe they would do it for any other reason.
Q. Shot somebody down in cold blood for marijuana?
A. Yes.
Q. Without you being the aggressor?
A. Yes. Without me being the aggressor.”

After the above series of events, both Craddock and Crapeau fled, with Crapeau to date remaining a fugitive. Defendant Craddock was apprehended on September 8, 1980, by the FBI outside of the Brazilian Consulate in New York City. He had attempted to change his appearance and was attempting to obtain a visa for travel to Brazil under the name of Perry Edward Stout.

Dr. Paul Domby Gard, Jr., Pathologist, testified that on August 5th and 6th, 1976, he performed an autopsy on a male who had been badly burned. Although badly burned, the internal cavity of the body was relatively intact and the fatal bullet was removed and recovered. He determined the cause of death as a gunshot wound which passed through the chest producing injury to both lungs and a large vessel to the heart and resulting in severe hemorrhage. He further testified that the body was burned severely with the arms and legs being merely stumps and the head had exploded from the heat.

TRIAL COURT

Claude Luke Craddock was indicted for first degree murder for the killing of John C. Riley. Following the trial by jury, he was sentenced to life imprisonment without benefit of probation or suspension of sentence for a period of forty (40) years. This criminal appeal followed.

ASSIGNMENTS OF ERROR

Defendant-appellant, Claude Luke Crad-dock, relates the following assignments of error:

1. The trial court erred in refusing to grant defendant’s timely motion to severe offenses and thereby allowed the submission of evidence of other crimes to the jury.
2. The trial court erred in refusing to grant defendant’s motion to limit the introduction of inflammatory evidence since the prejudicial effect of such evidence far outweighed its probative value.
3. The trial court erred in its ruling that all of the evidence and photographs submitted by the state were admissible as part of the res gestae.
4. The trial court erred in allowing the admission of evidence and photographs of the offenses into evidence since the state failed to meet the notice requirements as set forth in State v. Prieur, 277 So.2d 126 (La.1978).
5. The court erred in refusing to grant defendant’s motion to suppress and effectively denied him his constitutional right against unreasonable searches and seizure.
6. The court erred in refusing to grant defendant’s motion for new trial based on the prosecutor’s comments in his closing statements which were misleading, couched in untruth, unnecessarily derogatory, and inflammatory beyond all reasonable bounds and probative value.
7. Defendant was subjected to an unfair process of justice at his trial as his attorney was unprepared and unfamiliar with vital evidence and as such did not perform adequate cross-examinations nor present a proper defense.
8.The defendant was effectively deprived of his right to testify on his own behalf as his attorney specifically ’did not allow him to do so, and based upon such ineffective counsel, subjected the defendant to an unfair trial.

ASSIGNMENT OF ERROR NO. 1

Defendant Craddock was indicted both for the murder of John C. Riley and the attempted murder of Dean Weisner. Among the numerous pretrial motions filed by defendant was a motion to sever offenses.

Defendant contends that a joint trial for first degree murder of John C. Riley and attempted first degree murder of Dean Weisner would prejudice the rights of the defendant, in that the evidence introduced by the state to prove the charge of attempted first degree murder, would otherwise be excluded under the rules of evidence applicable to the charge of first degree murder. Additionally, defendant contends that a concurrent trial of the two charges would prejudice defendant’s constitutional right to a fair trial.

On the hearing of the motion to sever, the state informed the court that it did not intend to go to trial at that time on the attempted murder charge. The state elected to proceed under the first degree murder statute only, and based on this representation, the trial judge denied the motion to sever. The case then proceeded to trial only on the first degree murder charge.

Article 495.1 of the Code of Criminal Procedure provides as follows:

“If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.”

Article 495.1 of the Code of Criminal Procedure was amended in 1978 to adopt the interest of justice standard of the federal rules rather than the “appropriate to promote” test applied in State v. Carter, 352 So.2d 607 (La.1977). The intention behind the change was that trial courts be given broader discretion in determining whether the tests of mutual admissibility and ability to compartmentalize had been met. See State v. Lewis, 358 So.2d 1285 (La.1978).

We first note that the problem of possible prejudice resulting from the join-der of offenses is not present here. The evidence of the crimes committed by defendant, as part of a continuous criminal transaction, would each be admissible at trial because it is part of the res gestae. La.R.S. 15:447, 448; State v. Kaufman, 331 So.2d 16 (La.1976), U.S. cert. denied 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591. Consequently, when evidence of the offense would otherwise be admissible as part of the res gestae, the possibility of prejudice would in no way be enlarged by the fact of joinder of offenses. State v. Carter, supra.

Hence, where the offenses joined are part of the same transaction, as here, the critical question which must be determined by the trial judge presented with a motion for severance of offense is whether, in view of the number of offenses charged and complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. La.C.Cr.P. art. 495.1; State v. Carter, 362 So.2d 510 (La.1978); State v. Carter, 412 So.2d 540 (La.1982).

However, in the instant case, the trial judge was never really presented with the issue of severance because the state voluntarily chose not to proceed against the defendant on both counts in the indictment. Instead, the state elected to pursue only the first degree murder charge. In effect, the state alleviated the necessity for the trial court to rule on the issue of severance.

Therefore, since the issue of severance became moot, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in refusing to limit the introduction of inflammatory evidence, viz. certain photographs, particularly a photograph which depicted the remains of the victim in the trunk of the Oldsmobile automobile. Defendant contends that there was adequate testimony and other evidence to establish the identity of the victim, the manner in which the victim died, and the appearance of the victim after he had been burned and that the photographs were introduced merely to inflame the jury. As a result, defendant contends that the prejudicial effects of these photographs far outweighed their probative value.

The well established test concerning the admission of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. Photographs of the body of a deceased victim have generally been held relevant to prove corpus delicti; to corroborate other evidence concerning the manner in which death occurred; to establish the location, severity, and number of wounds; and to establish the identity of the victim. State v. Perry, 420 So.2d 139 (La.1982); State v. Tonubbee, 420 So.2d 126 (La.1982); U.S. appeal pending. Also, photographs which illustrate any fact, shed light upon any fact at issue in the case, or that are relevant to describe the person, place or thing depicted are generally admissible. State v. Boyer, 406 So.2d 143 (La.1981); State v. Lindsey, 404 So.2d 466 (La.1981).

After examining the photographs at issue, we find the photographs, including the photograph of the charred remains of Riley’s body, to be extremely relevant and corroborative of the testimony of the witnesses. Additionally, the black and white photographs were not overly gruesome. Therefore, we find that the probative value of the evidence clearly outweighed any prejudicial effect and that these photographs were admissible.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

The defendant contends in these assignments of error that the trial court erred in allowing the introduction of evidence, photographs and testimony, relating to the incidents of the crime which occurred after Riley was shot. Defendant bases this contention on the allegation that he is only being tried for the murder of Riley and that the photographs and other evidence introduced by the state with reference to the assault on and attempted murder of Weis-ner, the removal of Riley’s body, and the burning of the automobile in the Honey Island Swamp constitute inadmissible “other crimes evidence”. Defendant contends that this objectionable evidence was not part of the res gestae and that it was error for the trial court to allow their admission into evidence, without requiring the state to meet the notice requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973).

As a general rule, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show that the accused is a bad man and thus more likely to have committed the crime. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Monroe, 364 So.2d 570 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978). This rule results from the belief that admission of this type character evidence creates a great risk of unjust convictions because the jury is likely to give the evidence excessive weight and convict the defendant merely because he is a bad man, because the defendant may well be unprepared to face such attacks, and because the jury is likely to be confused by proof of collateral issues. State v. Haarala, supra; State v. Prieur, supra. Comment, Other Crimes Evidence in Louisiana, 33 La. L.Rev. 614 (1973).

The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wig-more, Evidence § 218 (3d ed. 1940). In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48. Res gestae is defined as “events speaking for themselves under the immediate pressure of the occurrence through the instructive, compulsive or spontaneous words or acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible into evidence.” La.R.S. 15:447, 448. In order to constitute res ges-tae, the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form, in conjunction with it, one continuous chain. La.R.S. 15:448; State v. Sharp, 414 So.2d 752 (La.1982). Also, evidence of other crimes which are part of the res gestae is always admissible without balancing its probative value against its prejudicial affect. State v. Stucke, 419 So.2d 939 (La. 1982).

A very close connexity between the charged offense and the other crimes evidence sought to be introduced under the res gestae exception is required. See State v. Schwartz, 354 So.2d 1332, 1334 (La.1978) and cases cited therein. This close connexity in time and location is essential to the exception because no notice of the state’s intention to introduce evidence of offenses which are part of the res gestae is required. See La.C.Cr.P. art. 720; State v. Prieur, supra; Pugh, Louisiana Evidence Law 100-01 (Supp.1978) excerpting 35 La.L.Rev. 525, 526-27 (1975). Stated another way, the state is not required to give notice to the defendant of its intent to use evidence of other crimes when such evidence falls within the res gestae exception. State v. Belgard, 410 So.2d 720 (La.1982); State v. Sharp, supra; State v. Stucke, supra.

The Supreme Court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wig-more, Evidence § 218 (3d ed. 1940).

In State v. Sharp, supra, the Louisiana Supreme Court stated at page 754:

“In Louisiana, the res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of a crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime, provided the requirements for the introduction of such evidence have been met. R.S. 15:447, State v. Kimble, 407 So.2d 693 (La.1981); State v. Molinario, 383 So.2d 345 (La. 1980), cert. den. 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106; appeal after remand 400 So.2d 345 (La.,1981). In order to qualify as part of the res gestae, the circumstances and declarations must be necessary incidents of the criminal act or immediate concomitants of it, or form in conjunction with it one continuous transaction. R.S. 15:448. Therefore, a very close connexity is required between the charged offense and the evidence of other crimes. State v. Haarala, 398 So.2d 1093 (La.,1981). State v. Lawson, 393 So.2d 1260 (La.,1981). This close connexity in time and location is essential to the exception because no notice is required by the state of its intention to introduce evidence which forms part of the res ges-tae. R.S. 15:477; C.Cr.P. 768, State v. Haarala, supra. State v. Brown, 352 So.2d 690 (La.,1977).”

In the present case, it is abundantly clear that the evidence was properly admitted. State v. Harper, 430 So.2d 627 (La.1983). Said evidence. pertained to events which occurred either immediately before or immediately after Riley’s death so as to constitute a continuous transaction. The murder of Riley, the assault on and attempted murder of Weisner, the disposal of the bodies, the burning of the automobile, etc. occurred within a span of 30 to 45 minutes, during which time there was no break in the series of events. Clearly, the “other crimes evidence” either formed part of the res gestae or established events comprising the res gestae; therefore, no Prieur notice was required and the evidence was properly admitted.

For the above reasons, assignments of error 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, defendant contends that the trial court erred in denying his pretrial motion to suppress certain evidence. Defendant alleges that while confined in the St. Tammany Parish jail, his cell was searched and numerous personal papers and attorney-client documents, containing confidential information pertaining to his case, were seized. Although defendant does not allege that any of this evidence was used at trial or that the information contained in the seized documents led to the discovery of evidence used at trial, defendant contends that his constitutional rights were violated.

The trial court conducted an extensive hearing on the motion to suppress, and, based upon unequivocal assurances of the prosecutor that the district attorney’s office had not seen the material in question, did not intend to use anything which had been seized, and further would not look at any of the material, the motion was denied. The trial court then ordered that the papers be returned to the defendant.

LSA-C.Cr.P. art. 703(A) provides:

“A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.” (Emphasis added)

Since there has been no showing that any information obtained from the seized papers was used at trial or that any of the documents were used, directly or indirectly, the propriety of the denial of the motion to suppress is moot. State v. Smith, 339 So.2d 829 (La.1976), U.S. cert. denied, 430 U.S. 986, 97 S.Ct. 1685, 52 L.Ed. 381 (1977).

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial court erred in denying the motion for new trial. Defendant grounds his contention that a new trial should have been granted on numerous alleged errors and improprieties committed by the prosecutor in closing statement and on rebuttal. He contends that the prosecuting attorney’s summation to the jury was so unfair, improper, and prejudicial that defendant’s conviction should be set aside in the interest of justice. Although defendant acknowledges that each of the prosecutor’s alleged improper statements during argument, individually, would not compel a reversal of defendant’s conviction, he contends that, taken collectively, they constitute a wholesale attack on the integrity of defense counsel, a pattern of misrepresentation of evidence, and a blatant emotional appeal to the jury for a conviction.

Defendant’s motion for new trial was based on several grounds ennumerated in LSA-C.Cr.P. art. 851, but his appeal addresses only the allegation that the ends of justice would be served by the granting of a new trial due to the misleading, untruthful, and inflammatory remarks made by the prosecutor during his closing argument.

Although this is a ground upon which the trial judge may grant a new trial, it presents nothing for the appellate court’s review. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Matthews, 354 So.2d 552 (La.1978).

The scope of argument by counsel is governed by LSA-C.Cr.P. art. 774, which provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state of defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

LSA-C.Cr.P. art. 774, however, provides no sanctions against one who exceeds the permissible scope of argument. Comment (c) to the article indicates that if argument goes beyond the scope of article 774, it falls under the ambit of articles 770 and 771. Upon request of the defendant, the court may, in its discretion, grant a mistrial or an admonishment, premised upon argument by opposing party which is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury. LSA-C.Cr.P. arts. 770 and 771; State v. Prestridge, 399 So.2d 564 (La.1981). The trial judge, however, has wide discretion in controlling the scope of argument. State v. Prestridge, supra.

In order for argument outside the scope of LSA-C.Cr.P. art. 774 to be reversible, the court must be thoroughly convinced that the jury was influenced by the complained of remarks and that they contributed to the verdict. State v. Dupre 408 So.2d 1229 (La.1982); State v. Sharp, 418 So.2d 1344 (La.1982).

Counsel for defendant, in his brief, set forth numerous instances of alleged impropriety on the part of the prosecutor. At trial of the case, however, counsel made few objections during the course of closing argument and rebuttal. The issue as to propriety of closing argument remarks is not preserved for review where defense counsel makes no objection to the statement either during argument or after the argument. State v. Whitmore, 353 So.2d 1286 (La. 1977). Stated another way, objections to remarks of a prosecuting attorney must be timely made in order to preserve the error on appeal. State v. Batiste, 318 So.2d 27 (La.1975). Therefore, we will address only the few instances of alleged impropriety which were timely objected to and preserved on appeal.

The first objection addresses defendant’s contention that it was improper for the prosecutor to state that the defense lawyer has to argue that the state’s primary witness, Dean Weisner, lied, or he would convict his client. The portion of the objectionable argument reads as follows, at pp. 563-564 of the trial transcript:

“Mr. Alford:

All of the other evidence in the ease tends to collaborate Dean Weisner, because naturally, Mr. Howard is going to get up here and he is going to tell you that Dean Weisner lied. I mean, it wouldn’t matter if it was Dean Weisner; it wouldn’t matter if it was this case. The defense lawyer has got to say that Dean Weisner lies. He can’t get up here and tell you that Dean Weisner told the truth because then that convicts his client, you see. So, it doesn’t matter if it’s Dean Weisner or who it is. The defense lawyer has got to tell you he lied. Well, then, the question, the legitimate question in your mind should be, ‘Weil, where is the proof that Dean Weisner lied; is there proof that Dean Weisner lied or is there proof that Dean Weisner told the truth?’”

Defendant contends that, by those statements, the prosecutor was implying that the defendant should have testified and that some stigma should attach to defendant for failing to testify. Defendant contends that the prosecutor was attempting, by the “backdoor” approach, to comment on the defendant’s failure to take the stand, an implication clearly prohibited by LSA-C. Cr.P. art. 770(3).

In recounting the details of the crime perpetrated against John Riley and himself, Dean Weisner testified that “from behind, somebody started beating me in the head with a heavy instrument of some type.” (Tr. trans. p. 371). When asked if he believed Luke Craddock was the person who was hitting him in the head, Weisner stated “there wasn’t anybody else there that could strike a blow like that.” (Tr. trans. p. 405). The prosecutor then asked, “So he was the only other person available?” to which Weisner responded, “to my knowledge, yes.” (Tr. trans. p. 405). From the evidence before the jury, the only persons present at the time the crime was committed were Riley (now deceased), Weisner (the state’s primary witness), Crapeau (a fugitive from justice), and Craddock (the defendant).

References made in closing argument that the state’s case stands uncon-troverted have been frequently upheld by the Louisiana Supreme Court. See State v. Sims, 346 So.2d 664 (La.1977); State v. Heed, 284 So.2d 574 (La.1973). A statement that the state’s theory of the case remains unassailed encompasses the entire case presented by the defense and does not focus on the defendant’s failure to take the stand. However, when the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontrovert-ed focuses the jury’s attention on the defendant’s failure to take the stand. See State v. Latin, 412 So.2d 1357 (La.1982); State v. Perkins, 374 So.2d 1234 (La.1979).

Therefore, it appears from the evidence before the jury, that the prosecutor’s comment as to the proof that Weisner lied could only refer to the defendant’s failure to testify.

Counsel for defendant also objected when the prosecutor stated that defense counsel was hoping that a unanimous decision would not be reached, in that he hoped one of the jurors would forget the overall view or would not apply common sense to all of the actions. Upon hearing of the merits of the objections, however, defense counsel withdrew his objection to these statements. Therefore, this portion of the alleged improprieties is not before us on appeal.

Similarly, the withdrawn objection during the prosecutor’s rebuttal, with reference to defense counsel’s opening statements concerning the defendant taking the stand, is not before us on appeal.

The final objection made by defense counsel was in reference to the following rebuttal argument:

“Mr. Alford:
So, I don’t know how — what mental gymnastics he expects you to go through to be able to say, ‘Well, that wasn’t dangerous. That wasn’t dangerous ammunition. That just proves reasonable doubt. That proves that there wasn’t any planning and all that because they would have gone and bought another box of bullets if they had planned it and all.’ I think it’s a deadly item. And I think that is just an effort to confuse you. We know they work and they work well. So, if you want to let Luke Craddock go because they didn’t choose the type of ammunition that Mr. Howard would have liked them to choose, then fine. But you’re going to have trouble living with yourself afterward.”

Counsel for defendant contends that these statements, coupled with the unobjected to hearsay statements elicited from the police officer, were calculated to inflame and prejudice the jury.

A prosecutor’s predictions as to the consequences of a not guilty verdict, or the societal costs of such a result are clearly improper and should be avoided. LSA-C.Cr.P. art. 774; State v. Barrow, 410 So.2d 1070 (La.1982) U.S. cert. denied. Notwithstanding this improper argument, as previously discussed above, the state’s overwhelming evidence of defendant’s guilt made it unlikely that these comments influenced the jury or contributed to its verdict. LSA-C.Cr.P. art. 774; State v. Sharp, supra.

Additionally, however, reversal of a conviction would not be the proper remedy in this case, despite the fact that the prosecutor improperly referred to defendant’s failure to take the stand, because defense counsel did not make a motion for mistrial. In fact, counsel specifically stated that he was not moving for a mistrial or requesting an admonition. Absence of a timely motion for mistrial constitutes a waiver of the alleged error. State v. Cushenberry, 407 So.2d 700 (La.1981).

We have carefully examined areas in closing argument and rebuttal objected to by the defendant, and we are thoroughly convinced that none of the remarks influenced the jury or contributed to the verdict.

We note improper remarks by both prosecutor and counsel for defendant dealing in personalities, as well as the improper statement by the prosecutor as concerns the statement that “if they let the defendant go free they would be confused and they were going to have trouble living with (themselves) afterward.”

Comments by the prosecutor about counsel for defendant and comments by counsel for defendant about the prosecutor have no place in a criminal proceeding and the statement quoted above was clearly improper. Nevertheless, as we previously stated, convictions are not to be reversed because of improper closing arguments unless we are thoroughly convinced that the remarks influenced the jury or contributed to the verdict. If such remarks had taken place (and the comments with reference to the defendant’s failure to take the stand may have been), the appropriate procedure for defense counsel would have been to immediately move for a mistrial or request an admonishment from the trial judge. Neither remedy was requested herein despite defendant being expressly advised thereof.

The Supreme Court in State v. Kersey, 406 So.2d 555, 560 (La.1981) stated that:

“To hold otherwise would allow the defendant, after a trial error has been made, to sit back silently and not call the court’s attention to the error at the time when it could be remedied, insuring his right to a reversal on appeal if convicted, but proceeding with the trial in hopes of an acquittal. Such procedural tactics are not permitted. It is for this reason that procedural rules have been devised requiring the offended party to call any error to the judge’s attention at a time when it can be remedied. Then, upon an erroneous ruling by the trial judge, the party has preserved his right to seek relief on appeal.”

In any event, we are not convinced, in view of the overwhelming evidence against the accused, that the remarks influenced the jury or contributed to the verdict. The remarks must be considered in the context of the trial court’s subsequent instruction to the jury, and are not therefore reversible error.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

In these assignments of error, the defendant contends that he was subjected to an unfair process of justice at trial since his attorney was unprepared and unfamiliar with vital evidence, did not perform adequate cross-examining, nor present a proper defense, and the defendant was deprived of his right to testify in his own behalf since his attorney refused to let him do so.

It is hornbook law that a claim of ineffective assistance of counsel is more properly raised by an application for writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted. State, ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Prestridge, supra; State v. Fontenot, 368 So.2d 121 (La.1979). See also, State v. Collins, 350 So.2d 590 (La.1977); State v. Daniels, 346 So.2d 672 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

This assignment of error is not properly before the court at this time.

Accordingly, defendant’s conviction and sentence is affirmed.

AFFIRMED.

      . In Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (Supreme Court 1976), the United States Supreme Court held that the penalty portion of La.R.S. 14:30 was unconstitutional as to the mandatory death penalty. Therefore, the appropriate sentence to be imposed under a valid conviction for first degree murder at the time of the instant offense is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. State v. Roberts, 340 So.2d 263 (La. 1976).

      . Ibid.

      . 1978 La.Acts. No. 466, amending La.Code Crim.P. art. 495.1. The language of La.Code Crim.P. art. 495.1 is now almost identical to the first sentence of Fed.R.Crim.P. 14.

      . The state, however, reserved its right to proceed with the attempted first degree murder charge at a later date.

      . LSA-R.S. 15:447 provides:
      “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
      LSA-R.S. 15:448 provides as follows:
      “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

      . Defendant Craddock was tried pursuant to the provisions of the first degree murder statute effective August 5, 1975. At that time La.R.S. 14:30 provided; in pertinent part:
      “First degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape, aggravated burglary, or armed robbery; or

      (4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
      Evidence of any offense enumerated in subsection (1) or evidence which established specific intent to kill more than one person need not be part of the res gestae to be admissible on trial for first degree murder. These acts constitute essential elements of the offense. Therefore, evidence of the attempts on Weisner’s life, viz. the shooting of Weisner, the beating of Weis-ner, and the burning of the automobile in which Weisner’s body had been placed, is admissible into evidence as an element of the offense for which Craddock is being tried, in addition to comprising the res gestae.

      . Defendant specifically alleges that the following constitutional rights were violated:
      (1) Fourteenth Amendment due process.

      Defendant contends that he was deprived of a fair and proper trial in that he had prepared writs, motions, and memorandums, which had been seized, and that he could not replace the legal documents because he was denied access to law library facilities, had insufficient time to prepare, and was financially unable to pay his attorney.
      (2) Fourth Amendment protection against unreasonable searches and seizures.

      (3) Sixth Amendment right of assistance of counsel.

      Defendant contends he was denied assistance of counsel because some of the confiscated papers were communications between himself and his attorney.

      . LSA-C.Cr.P. art. 851 provides:
      “The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegation it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

      . LSA-C.Cr.P. art. 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”
      LSA-C.Cr.P. art. 771 provides:
      “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

      . In the present case, the trial judge utilized a procedure, whereby defense counsel was permitted to make objections throughout the prosecutor’s closing statement and rebuttal, but argument on the merits of each objection, outside the presence of the jury, was deferred until after closing statements were completed.

      . A review of the record discloses that Joli Crapeau Moody gave a statement to police officers with reference to her knowledge of the facts of this case. The following is an excerpt from the police report made as a result of the interview with Ms. Moody:
      “On 8-24-77 we interviewed Joli about her knowledge of the facts of the case with her attorney, mother and father present. She advised that the only thing she could tell us was what she saw with her own eyes. She advised that she was in the trailer with her child when she heard a comotion out front of the trailer. She looked out front and saw a car coming across the ditch with Mike hanging on the side and Deano driving and holding Mike by the throat. She then returned into the trailer and got her father’s 22 caliber rifle and came outside where her brother was laying on the ground beside the car. She held the gun on Dean as he was trying to get into the trunk of the car. About that time Luke came running from the woods and Mike got up off of the ground and hit her taking the gun away and sending her into the trailer to stay. Mike later came to the trailer and took her to the washiteria (sic) and dropped her off to wash their clothes. He later returned and picked her up. Then they went to Houston via New Orleans where they picked up Luke. They then traveled to Houston then Brownsville and then to Mexico.”
      Additionally, in a line-up conducted on August 31, 1977, Weisner identified Joli Crapeau Moody as one of the perpetrators of the crime.

      . Counsel for defendant objected to the following portion of the prosecutor’s rebuttal argument:
      “Mr. Alford:
      Now, where is the ambush? Is Mr. Howard trying to trick you? He tells you it’s trial by ambush in Louisiana. That he didn’t know what the evidence was going to show. Listen, my getting up and making an opening statement isn’t just a whim. I’m not standing up here bucking my gums. I am telling him, in open Court, what I intend to prove and how I intend to prove it. By law, I am telling him that. I have to tell him that. Now, where is the ambush? But he stands up and he tells you, ‘Well, I didn’t know.’ Now, if you recall, he made his opening statement after I made mine.”

      . The pertinent portion of the transcript appears at page 575, and reads as follows:
      “The Court:
      Let the record reflect the Court is now back in session. The defendant is in Court, attended by counsel. The State is represented. The Court is here to understand the objections of defense counsel made earlier. Mr. Howard, are you moving for a mistrial, sir?
      Mr. Howard:
      No, I am not at this time, Your Honor, nor do I move that Your Honor admonish the jury. I would — I just wanted to note the objections for the record, Your Honor.
      The Court:
      All right, sir. Then there is nothing — no ruling needed from the Court at this time? Mr. Howard:
      That is correct, Your Honor.”


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Andrew VESSEL, Jr.
    No. 82 KA 1117.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Ossie Brown, Dist. Atty., Baton Rouge by Thomas Damico, Asst. Dist. Atty., for plaintiff-appellee.
    Joel Dickinson, Baton Rouge, for defendant-appellant.
    Before PONDER, SAVOIE and CRAIN, JJ.
   SAVOIE, Judge.

Defendant, Andrew Vessel, Jr., was indicted by the grand jury for the second degree murder of Percy Jerome Scott on or about February 21, 1981, in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, with credit for time served from arrest to the date of sentencing. Defendant appeals his conviction and sentence, alleging two assignments of error.

During the early morning hours of February 21,1981, Percy Jerome Scott was shot three times in the head and neck with a .22 caliber weapon. These wounds resulted in his death. The shooting occurred outside of the 3M Lounge, at a well-lighted corner.

Donald Ray Washington and Shelby Jackson were sitting in a car in the parking lot of the lounge when the murder occurred. Washington testified that he knew both the victim and the defendant. He stated that he saw the victim exit the lounge and proceed to the corner of the building, in the motion of zipping down his pants. Shortly thereafter, he observed the defendant exit the lounge and follow the same path as the victim, also in the motion of apparently zipping down his pants. Although he could see some object in defendant’s hand, he could not positively identify it as a gun. While both the victim and the defendant were still in his sight, Washington heard three shots. Defendant quickly exited the scene. Washington also observed two other persons in the parking lot, walking toward the lounge at the time of the shooting. Washington further testified that Shelby Jackson would not have seen the shooting since he was sitting with his eyes closed and his head either back or down. Washington did not immediately report the incident because he did not want to get involved. After seeing that the body had been discovered, and after Jackson exited his car, Washington left the scene. Several months later, he reported his observation to the police.

Jackson testified that he did not see the shooting, but that he did hear one to three shots. Immediately thereafter, Washington told him that defendant had shot the victim. He also did not wish to become involved and immediately left the scene.

A lounge employee testified that some unidentified person entered the lounge about the time of the incident and said that the victim and defendant were arguing. About thirty seconds thereafter, Aaron Spurlock entered the lounge and reported finding the victim’s body.

After the shooting, the police searched for the defendant at the home of a friend, Leroy Tennart, where the defendant had been living for several months. Tennart informed the police that he had not seen the defendant, but gave them permission to search the defendant’s room. Several .22 caliber bullets were found in that room.

The police also contacted the defendant’s place of employment. Although a paycheck was ready for him, he had not picked it up or telephoned his employer.

Several months after the murder, the defendant, accompanied by Tennart, turned himself into the police. The defendant allegedly stated he was tired of running. One policeman testified that defendant admitted that he was present when Scott was killed, and that he had had words with the victim. He also stated that Tennart had told him that the defendant usually carried a handgun. Tennart and the defendant both denied making these statements.

The defendant, testifying on his own behalf, denied his guilt and stated that he left the lounge that night at about 11:30 P.M. He further testified that he had brought his work clothes in a bag to the lounge, leaving them outside, because he was going to New Orleans to work. He stated that although he missed an earlier bus to New Orleans, he did take a bus to that city at about 1:80 A.M.

Dr. Hypolite Landry, the coroner, testified that the autopsy performed on Scott’s body revealed the cause of death to be gunshot wounds in the head. He also testified that no powder burns were found on the victim. A ballistics expert testified that weapons cease to leave powder burns when fired from between one and one-half to four feet away from the victim.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in refusing to permit him to impeach the testimony of a state witness, Shelby Jackson, by calling the defendant’s father and Tennart as witnesses to testify relative to a prior inconsistent statement made by Jackson. This assigned error is misleading since the defendant did, in fact, call his father and Tennart as witnesses. After reviewing the record, we find that the defendant’s real complaint is that the trial court refused to allow him to impeach the credibility of Jackson when called as defendant’s own witness.

The state called Shelby Jackson as its witness, who testified as set forth above. On cross-examination, defense counsel asked Jackson if he remembered giving him (defense counsel) an earlier statement to the effect that he saw no one, and no body, when he left the lounge and that no one had been shot. Jackson denied making any such statement.

During defendant’s case-in-chief, he called Jackson as his own witness. Jackson was again asked by defense counsel if he had not given a very different account to him in the presence of the defendant’s father and Tennart. Again, Jackson denied changing his account. At this point, defendant pled surprise and gave notice of his intention to impeach the credibility of the witness. The trial court refused to allow the impeachment.

Subsequently, defendant called his father and Tennart as witnesses. However, neither was asked any questions regarding Jackson’s alleged prior inconsistent statement to defense counsel in their presence.

When a defendant calls a witness as his own, who previously testified for the state, the defendant is subject to the same limitations of examination and impeachment as in the case of any other witness called by him. State v. Banks, 362 So.2d 540 (La.1978); State v. Monk, 315 So.2d 727 (La.1975). Hence, the defendant could not impeach the credibility of Jackson absent a showing of surprise or hostility. La.R.S. 15:487 and La.R.S. 15:488. Since Jackson’s testimony is the same as both a defense and state witness, defendant has not made the requisite showing of surprise or hostility necessary for impeachment of Jackson as his own' witness. See State v. Banks, supra; State v. Monk, supra.

Moreover, the defendant laid the proper foundation during the cross-examination of Jackson to impeach his credibility by the introduction of the alleged prior inconsistent statement. See La.R.S. 15:493. Yet, defendant made no attempt to impeach Jackson’s credibility in his direct examination of defendant’s father and Tennart.

We find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant also contends that the trial court erred in denying his motion for a new trial on the ground that the evidence against him was totally circumstantial and an insufficient basis for the verdict.

Accepting defendant’s interpretation of the evidence as totally circumstantial, we will review the evidence herein under the standards recently enunciated by the Louisiana Supreme Court in State v. Graham, 422 So.2d 123 (La.1982), in which the Court stated, at page 129:

“The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.”

Using the above standards, we find that the evidence viewed in the light most favorable to the state proves the guilt of the defendant to the exclusion of every reasonable hypothesis of innocence.

The record reflects that the defendant followed the victim out of the lounge and was standing next to him at the time he was killed. This is supported by the testimony of an impartial eyewitness who personally knew both the defendant and the victim. Additionally, this eyewitness testified that immediately after the shooting, the defendant hurriedly departed the scene. Admittedly, the eyewitness could not positively identify a gun in the defendant’s hand, but his immediate reaction to the shooting was to state to his companion that the defendant had shot the victim. The state also introduced evidence that immediately prior to the shooting, a lounge employee was told that the defendant and the victim were arguing.

Defendant’s answer to this testimony was that he had departed the lounge prior to the shooting. He stated that he left Baton Rouge for New Orleans that night and did not return for several months. Yet, his aunt who resides in Baton Rouge, saw him in her yard the next afternoon. She further told defendant that the police were looking for him, and that she wanted him to leave her premises.

Further, defendant denies he carried a handgun. However, several state witnesses testified that they had seen the defendant with a handgun. Additionally, 22 caliber cartridges of the type that killed the victim, were found in the defendant’s room.

Finally, a police officer testified that upon defendant’s arrest, the defendant told him that he was tired of running and wanted to turn himself over to the police. Defendant responded to this at trial by stating that he did not know he was wanted. However, defendant’s aunt’s uncontradicted testimony refutes defendant’s assertion that he did not know he was wanted by the police.

Thus, the evidence, viewed in the light most favorable to the prosecution, proves opportunity, motive, proximity, possession of a handgun of the same caliber used to kill the victim, possession of cartridges identical to those which killed the victim, flight and apparent subsequent remorse.

We find the evidence of defendant’s guilt sufficient to exclude every reasonable hypothesis of innocence. The trial court did not err in denying defendant’s motion for a new trial. This assignment of error is without merit.

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

AFFIRMED.

      . R.S. 15:487. Impeachment of own witness No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.

      . R.S. 15:488. Meaning of surprise “Surprise” in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.

      .R.S. 15:493. Foundation for proof of contradictory statement
      Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Bernice KIBODEAUX.
    No. 82 KA 1128.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Dixie C. Brown, Asst. Dist. Atty., Houma, for State of La.
    James A. Wood, Baton Rouge, for Bernice Kibodeaux.
    Before PONDER, SAVOIE and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Bernice D. Kibodeaux, was charged by bill of information with possession with the intent to distribute a controlled dangerous substance, to wit: fifty (50) pounds of marijuana, in violation of LSA-R.S. 40:966. A(l). Defendant initially pled not guilty. Following the denial of defendant’s motion to suppress evidence and for the return of seized property, defendant took writs to the Supreme Court which were denied. Defendant then changed her plea to guilty, reserving the right to appeal. Defendant was sentenced to two (2) years at hard labor. She now appeals her conviction and sentence.

The appellant lists the following assignments of error:

1. The evidence confiscated in this case was the product of an unconstitutional search and seizure and therefore should be suppressed.

2. LSA-R.S. 40:962 is unconstitutional, particularly LSA-R.S. 40:962 B, and the state has failed to introduce evidence as to the constitutionality of the statute.

3. LSA-R.S. 40:966 is unconstitutional because of vagueness and because it allows the district attorney to have the sentencing prerogative.

BACKGROUND

Uncontradicted testimony received at the hearing on defendant’s motion to suppress establishes the following sequence of events. At approximately 11:20 p.m., September 22,1981, defendant entered the Airport Lounge in Terrebonne Parish. She was approached at the bar by a man known as “Robert” and a woman who identified herself to defendant as “Dee”. Robert initiated the conversation with defendant, inquiring about marijuana, whereupon Bernice put her car keys on the bar, telling Robert and Dee that she had fifty pounds of marijuana in the trunk of the car and for them to “take a ride, sample it, and if you like it, we’ll do business”. Dee picked up the car keys and, together with Robert and another male identified as Wolfson, left the lounge and drove defendant’s car to the Houma airport. They stopped the car, got out, opened the trunk and found a bale wrapped in a large green opaque trash bag and bound with tape. Dee cut a hole in the bale and took out a sample. She determined that it was marijuana, as defendant had said. They closed the trunk of the car and returned in the car to the lounge, where they had a drink with defendant. Defendant then asked Dee if they were ready to do business. Defendant, Dee, Robert and Wolfson left the lounge and approached defendant’s car. When the four had entered the car, with defendant holding the car keys in her hand, defendant’s car was surrounded by vehicles from the Jefferson Parish and Terrebonne Parish Sheriffs’ Departments. A deputy sheriff from Jefferson Parish and Detective Sergeant Douglas Modrynsi of the Terrebonne Parish Sheriff’s Department approached. The deputy sheriff took the keys from defendant’s hand, opened the car trunk, reached in and took a little bit of marijuana from the opened part of the bale, then arrested defendant and advised her of her rights. Dee, Robert and Wolfson were also arrested. Defendant’s car was impounded and the bale seized as evidence.

It was further established by uncontested testimony of Dee and Detective Sergeant Douglas Modrynsi that Dee and Wolfson were narcotics agents with the Terrebonne Sheriff’s Department who had been requested by the Sheriff of Jefferson Parish to assist in a narcotics deal that was set up in Terrebonne Parish. Throughout the operation, Officer Modrynsi and his partner had been watching in a stationary automobile surveillance unit while other agents from Jefferson Parish were observing in moving units. On a prearranged signal, the officers moved in when it appeared defendant was about to leave the scene in her automobile, taking with her the contraband.

ASSIGNMENT OF ERROR NO. 1:

Defendant urges the search of defendant’s vehicle and the resulting seizure of a bale of marijuana were illegal and unconstitutional and therefore, the illegally seized evidence should. have been suppressed. An immediate warrantless search of an automobile is constitutionally permissible under the “automobile emergency exception” to the prohibition against warrant-less searches if there is a probable cause to believe the vehicle contains contraband, the automobile is movable, there is a possibility of the occupants being alerted before a warrant can be procured, and contents of the automobile may never be found again if a warrant must be obtained. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Guzman, 362 So.2d 744 (La.1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 876 (1978). See, e.g. State v. Cunningham, 412 So.2d 1329 (La.1982); also State v. Hernandez, 408 So.2d 911 (La.1981), cert. denied, — U.S. —, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982).

When the narcotics agent, “Dee”, found the marijuana in defendant’s car trunk, this discovery was passed on to the various surveillance units, along with the information that the agents were driving the car containing the marijuana back to the lounge to talk about the price. Probable cause was established at this point sufficient for the obtaining of a search warrant. However, the situation became exigent when defendant exited the lounge with her car keys in her hand and entered her vehicle. The possibility of defendant driving away and disposing of the contraband became a real one. Consequently, we find that probable cause for search of defendant’s automobile existed together with exigent circumstances justifying a warrantless search.

As pointed out by the trial judge in his reasons for judgment on defendant’s motion to suppress, defendant seems to object to both the original “search” of defendant’s car pursuant to defendant’s permission and consent, resulting in the original discovery of the bale of marijuana, and also to the second “search” of defendant’s car resulting in the discovery of the already opened bale of marijuana by the sheriff and deputies at the time of defendant’s arrest.

In State v. Peters, 302 So.2d 888 (La.1974) cert. denied, 423 U.S. 878, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975), the court found that an undercover agent’s purchase of heroin from the defendant did not constitute a search and seizure. Likewise, we find that the preliminary sampling of the marijuana by the undercover narcotics agents in this case, did not constitute a search and seizure. However, it did provide the probable cause, which along with exigent circumstances justified the subsequent search of the vehicle by law enforcement officers. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2:

Defendant urges that Paragraph B of LSA-R.S. 40:962 is unconstitutional and since the state has failed to introduce evidence as to the constitutionality of Article 962, defendant’s conviction should be reversed.

LSA-R.S. 40:962 B reads as follows:

“B. The secretary of the Department of Health and Human Resources shall add a substance as a controlled dangerous substance if it is classified as a controlled dangerous substance by the Drug Enforcement Administration of the United States Government.”

The defendant relies on State v. Rodriguez, 379 So.2d 1084 (La.1980), where the Supreme Court found section B of La.R.S. 40:962 to be invalid as an unconstitutional delegation to a state agency of the legislative authority to create crimes. That case is inapplicable to the case before us. In this case, marijuana was not added to the list controlled dangerous substances pursuant to R.S. 40:962 B. It was added by the legislature to La.R.S. 40:964, Schedule I, Sec. C in 1981 by Act. 800. This Act became effective prior to the date of defendant’s crime. Additionally, marijuana had previously been included under La.R.S. 40:964, Schedule II, Sec. A(5). The constitutional infirmity found in State v. Rodriguez, supra, is not present in this case. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3:

Defendant argues that LSA-R.S. 40:966 is unconstitutionally vague because the legislature has included the penalty portions of possession and possession with intent in the same statute without guidelines to ascertain when one is guilty of possession with intent. We disagree.

In State v. Sliger, 261 La. 999, 261 So.2d 643 (1972), the court discussed this same argument:

“In connection with this claim of unconstitutionality it is argued in defendants’ brief that the statute is ‘vague, uncertain and indefinite because it does not adequately put on notice an ordinary person that he may be actually committing that crime. * * * there is no basis nor guidelines set forth in the Act by which one might determine the exact point at which simple possession of a controlled dangerous substance becomes “possession with intent to distribute.” ’
The argument is without foundation. For, obviously, an offender knows whether he is possessing the drug for his own use, or whether he is possessing with the intent to distribute. The nature of his intent in possessing is a question of fact, an essential element of the crime, which the State must prove to obtain a conviction. Crimes requiring specific intent or knowledge have long been part of the criminal law and have been codified in our Criminal Code.” 261 So.2d at p. 645.

Defendant further argues that, because LSA-R.S. 40:966 allows the district attorney to charge an accused with simple possession of less than one hundred (100) pounds of marijuana carrying a maximum penalty of six months or with possession with intent to distribute of up to one hundred (100) pounds of marijuana carrying a penalty of up to ten years, the statute permits an unconstitutional delegation of the sentencing prerogative to the district attorney.

The district attorney has broad discretion in both the institution and handling of criminal prosecutions. La.C.Cr.P. Art. 61; La. Const. Art. 5, Sec, 26(B); Hall v. City of New Orleans, 385 So.2d 1253 (La.App. 4th Cir.1980) cert. denied 393 So.2d 739 (La.1980). When conduct is made criminal under more than one article in the Revised Statutes, prosecution may proceed under either provision, in the discretion of the district attorney. La.R.S. 14:4(2). There is no constitutional infirmity in the existence of the discretion.

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

AFFIRMED.


text:
    STATE of Louisiana v. John L. GERONE.
    No. 82 KA 1132.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.
    Writ Denied Nov. 4, 1983.
    Margaret A. Coon, Asst. Dist. Atty., Cov-ington, for appellee.
    Julian J. Rodrigue, Covington, for appellant.
    Before COVINGTON, PONDER and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, John L. Gerone, appeals his conviction for the crime of armed robbery in violation of L.S.A.-R.S. 14:64.

On January 21, 1980, the First National Bank, Causeway Boulevard, Mandeville, Louisiana, was robbed of approximately $164,000.00. At about 6:55 A.M., on the morning of January 21, 1980, George A. Armond, Jr., manager of the First National Bank, Causeway Boulevard, arrived to commence the day’s work. After entering the bank with his key, he encountered a white male exiting the manager’s office. This individual was wearing a ski mask and had a .38 caliber weapon in his hand. Mr. Ar-mond, a former police officer, testified that he was unsure whether the weapon was loaded. _ He challenged the robber, to which the robber replied by firing the weapon into the floor. The shot seemed to surprise even the robber.

After some discussion, the victim was told to open the 24-hour machine and the bank vault. Mr. Armond was then asked for a box in which to place the money. The robber then took the aforementioned amount of money from these places. While loading the money into the box, the robber put some of the money back because he thought he was taking too much. The robber also informed Mr. Armond that he had a criminal record and was taking the money for his sick and dying mother.

Mr. Armond further testified that the bank’s television monitor lenses had been taped; that the telephones’ transmitters had been removed; that the robber told Mr. Armond not to trip the alarm system because he knew about it; and that as the robber left, he forced Mr. Armond into the restroom and locked the door.

Defendant was eventually identified as the robber and was indicted by a grand jury indictment for having committed the crime of armed robbery in violation of L.S.A.-R.S. 14:64. Prior to trial, defendant entered a plea of not guilty and not guilty by reason of insanity. He requested and received a sanity hearing, and as a result thereof, was committed to the East Louisiana Hospital, Jackson, Louisiana, for custody, care and treatment for a period not to exceed the maximum sentence for which he was charged. Five months later, defendant was found capable to stand trial by the committing psychiatrists. Defendant waived a trial by jury and was found guilty as charged by the judge. Upon denial of a motion for a new trial, defendant was sentenced to twenty-one years at hard labor without probation, parole, or suspension of sentence.

Defendant now appeals his conviction and sentence, assigning as error:

1. The trial judge’s allowing the state to try the defendant after the state had introduced evidence into the record by its own witnesses that the defendant was insane at the time of the commission of the crime;
2. The trial judge’s allowing the state to impeach Dr. Ilardi’s testimony, after the state itself had proved the defendant was insane at the time of the commission of the crime;
3. The trial judge’s rejecting Dr. Ilardi’s testimony because he would not change his diagnosis in light of the defendant’s actions at the time of the commission of the crime;
4. Finding the defendant sane after he had carried his burden of proof of insanity at the time of the commission of the crime;
5. The court’s allowing two nurses, Nancy Schulte and Beverly Gayle, to testify as to defendant’s behavior many months after the commission of the crime;
6. The trial court’s acceptance of Dr. DeVillier’s testimony when he had not examined defendant, had not taken the case history or talked to defendant’s parents, and based his opinion solely on his observation of the entire trial;
7. The trial judge’s failure to comply with the sentencing guidelines set forth in L.S.A.-C.Cr.P. art. 894.1;
8. The trial judge imposing an excessive sentence; and
9. The trial judge’s refusal to grant a new trial based on all of the assignments of error previously noted, as the verdict is contrary to law and the evidence.

Assignments of error 1 through 6 will be treated as one issue before this court, that issue being whether, under the facts and circumstances of this case, a rational fact-finder, viewing the evidence in the light most favorable to the prosecution, could have concluded that the defendant failed to prove, by a preponderance of the evidence, that he was insane at the time of the offense. Because of our determinations herein, assignments of error 7 through 9 are superfluous.

The record is absolutely clear and determinative of the fact that the defendant, Gerone, did commit the crime of armed robbery with which he was charged. The state proved the commission of this crime by the defendant beyond a reasonable doubt. Additionally, no assignment of error is made by the defendant that such finding was not proper.

Defendant’s first six assignments of error relate to the question of whether he was insane at the time of the commission of this crime. We find a distinct parallel between the case at hand and the landmark case of State v. Roy, 395 So.2d 664 (La.1981), rehearing denied, March 2, 1981. Our opinion herein is modeled on State v. Roy, supra.

The trial court found that the evidence supported a finding that defendant was, beyond a reasonable doubt, sane at the time of the offense. We do not agree. The trial judge’s verdict of sanity is contrary to the preponderance of the evidence.

At trial, the defense presented two doctors who testified on the sanity issue. Dr. Joseph Ilardi, a psychiatrist and a member of the sanity commission, examined the defendant on five different occasions for one hour each, between July 1 and July 25, and diagnosed him as a chronic paranoid schizophrenic. Dr. Ilardi testified as follows:

“A. I’ll briefly summarize it if that would be acceptable.
“Q. All right, would you do that?
“A. It seems that, in summary, John has been having difficulties, and I believe he’s been psychotic for at least since 1975. His history is consistent with the diagnosis of schizophrenia, paranoid type. One year prior to the commission of this crime, alleged commission of this crime, he was apparently decompensating rather severely. Do you want a mental status? I’m not exactly sure what you want.
“Q. Well, yes. I want—
“A. Okay, when I examined him — may I refer to my notes?
“Q. Yes.
“A. My mental status at the time indicates that Mr. Gerone was psychotic. He had hallucinated voices telling him to commit the crime, to be relieved of suffering and to be transported to another plane. He felt he was under the direct control and influence of two men on the west coast, a Mr. Hugh Hefner and a Dr. Lilly. He felt that at the time — at the time I felt he was able to appreciate the seriousness of his crime. However, his thinking was clouded. At one time he felt that he might have been right to do it, at another time felt he was wrong to do it. He was delusional. He had a good intelligence, poor judgment and insight. He felt he was, in fact, not ill at all but was well.
“Q. Now, you heard Mrs. Gerone testify here today, did you not?
“A. Yes.
“Q. Did you obtain a similar statement from her in your case history when you talked to her?
“A. Yes.
“Q. And in considering her testimony here today and the case history you obtained from her and in talking to John, himself, did you form an opinion as to his ability under our insanity law as of the date of the commission of this act on January 21, 1980?
“A. Yes.
“Q. And what was that opinion, Doctor?
“A. I felt that John was psychotic at the time of the commission of the crime. He was acting under a delusional pressure. He was severely disturbed.
“Q. And as a result, in your opinion as a psychiatrist, was he, on January 21, at the time of the commission of that act, was he — did he have the mental disease, paranoid schizophrenia?
“A. Yes.
“Q. And as a result of that mental disease, could he appreciate the right or wrongness of his acts?
“A. I think there were times that he did appreciate it was wrong. He struggled with this a lot. But there were other times when he did not realize it was wrong.
“Q. Particularly on January 21 while he was committing the offense, Dr. II-lardi—
“A. Yes.
“Q. —Is what I’m getting at.
“A. At that point an interesting thing happened. He was convinced that if he would receive a sign, then this would prove that it was not wrong to do this. That sign being the presence of a particular window that was open. If it would be open, then that would be a sign that this was right to go in and do this.
“Q. Would that be — would that mean that he could appreciate right and wrong then if he got that sign, or would that indicate the opposite?
“A. I think he felt it was right to do that.”

Dr. Kenneth Ritter, a psychiatrist, also examined the defendant on July 27 and December 6, for one and one-half hours each time, as a member of the sanity commission. Dr. Ritter testified as follows:

“Q. He related to you the facts surrounding the crime?
“A. Yes.
“Q. All right. Now, you are familiar with Article 14 of our Criminal Code on insanity, are you not?
“A. The Me Naughton [sic] Rule, yes, I am.
* * sfc ⅝: * *
“Q. Now, based on your examination of Mr. Gerone and the factors, the case history you obtained and everything, did you reach an opinion on his diagnosis as to his condition?
“A. Yes, sir.
“Q. What was that diagnosis?
“A. Chronic paranoid schizophrenia.
“Q. Further, based on your examination and your case history, were you able to form an opinion as to the state of his mental condition on January 21, 1980?
“A. Yes, sir.
“Q. And what was that opinion?
“A. That this man was unable to appreciate the difference between right and wrong on the date that you cited.
“Q. Can you describe for me what led you to that opinion or conclusion?
“A. Yes, sir. That meant that this man had been and was actively delusional throughout the entire affair and had been delusional, as far as I could establish, for a number of years. And this was just the culmination of that psychosis. And— well, not the culmination, because I saw the man some months after the alleged crime, and without question the man was still severely disturbed, showing all the far advances, secondary signs, symptoms of paranoid schizophrenia, something that just doesn’t occur overnight. It’s a far advanced case of schizophrenia.
“Q. Have any of these statements made by Mr. Gerone after the arrest that you’ve heard testified here to today or any of the acts that you’ve heard testified here to today changed your opinion that you formed as to his insanity?
“A. No, sir. It buttresses my opinion.
“Q. And after listening to all this today, you are still of the opinion that he had such a mental defect that he could not distinguish between right and wrong?
“A. That is correct, sir.”

Drs. Ilardi and Ritter had previously found the defendant unable to assist in his own defense and recommended commitment to a mental institution. Pursuant thereto, the defendant, Gerone, was committed to the East Louisiana Hospital at Jackson, Louisiana for treatment. He was then placed on large doses of mellaril, an anti-psychotic medication.

The defense also presented lay testimony by defendant’s mother, who testified that the defendant led a nomadic existence. In February of 1979, approximately two years prior to the crime, the defendant called his parents from the airport. He stated that he had just come in from Florida and wished to be picked up. When they went to pick him up, he was standing there, crying, and looking very distraught. Mrs. Gerone testified that she did not know what was wrong, but something was wrong with him. At that time, he told them that Federal agents had approached him, showed him Justice Department badges, told him that they wanted him to work for the CIA in an occult, and that they hypnotized him. The defendant made no attempts to look for employment.

Mrs. Gerone remembers that after he had been back about three months, she heard noises in the living room one early morning. She entered the room and found the defendant sitting there, fully dressed with his suitcase packed, and looking out of the window. He stated that he was waiting for the Federal officials to come and get him because they had some work for him to do. She testified that the defendant sat that same way every night for a couple of weeks. Of course, no one ever came. Mrs. Gerone later received the telephone bill, indicating numerous calls were placed to the CIA in Virginia.

The defendant soon stopped sitting in the dark room at night with his suitcase packed. He subsequently told his mother that he had become psychic. He further told her that he was not of this world. Subsequently, he spent long periods of time in his room, could not hold a job, and would not eat.

Further, the defendant became very emotionally upset with the CIA’s apparent ineffectual handling of the situation in Iran. Additionally, the defendant told his mother that he was getting messages from flying saucers; that airplanes dipped their wings when they passed by to acknowledge him; and that one day a helicopter was going to pick him up in the back yard.

Defendant’s parents tried repeatedly to get him to seek professional help, but he refused. Because of the defendant’s failure to do so, the defendant had a big argument with his father.

Just prior to the date of the crime, January 21, 1980, the defendant was extremely depressed, agitated, and never left his room. His mother was afraid he would commit suicide. She knew that the defendant was mentally ill, but did not feel the defendant was dangerous to anyone except himself.

The state sought to rebut the testimony of Drs. Ilardi and Ritter by introducing the testimony of Nancy Schulte, Beverly Gayle, and Dr. Albert B. DeVillier. Mrs. Schulte, a social worker, testified that she observed the defendant while he was under commitment at the East Louisiana Hospital at Jackson, Louisiana. Her testimony consists of her observations of the defendant after he had been on medication for treatment of paranoid schizophrenia. These observations were made at a time when the defendant was on, and had been on, 400 miligrams of mellaril per day. She testified that from her observation of the actions of defendant at this time, he seemed to be sane.

We do not find Mrs. Schulte’s testimony to be helpful in determining the mental condition of the defendant at the time of the commission of the crime. Her observations took place some seven months after the commission of the crime and at a time when defendant was chemically sane.

The next rebuttal witness was Nurse Beverly Gayle. She testified that she is a registered nurse with 15 years of experience as a nurse at the East Louisiana Hospital at Jackson, Louisiana. Nurse Gayle further stated that during her three-year curriculum in obtaining her degree, she took only one course dealing with psychiatric patients. When questioned as to her qualification to make diagnoses, she stated that she was not qualified to make such a diagnosis.

We note that Nurse Gayle did not observe the defendant prior to his receiving medication. She observed the defendant only after he had been on large doses of the anti-psychotic medication, mellaril. Close scrutiny of her testimony reflects that she affirmed only the fact that defendant, at the time of her observation, was chemically sane.

The third rebuttal witness was Dr. Albert B. DeVillier. Dr. DeVillier is a qualified psychiatrist and, as such, an expert able to give opinion testimony. He testified that he found the defendant’s judgment impaired. However, he tended to disagree with the conclusions and opinions of Drs. Ilardi and Ritter that the defendant did not know right from wrong at the time of the crime.

Dr. DeVillier further stated under oath that the best way to formulate an opinion as to the condition of the defendant at the time of the crime would be interviewing the defendant. However, Dr. DeVillier did not interview, examine, or treat the defendant. His testimony was based solely on his observations made during the trial. Under cross-examination, Dr. DeVillier was asked whether, from what he heard in the courtroom, he could state within any degree of certainty, as an expert in psychiatry, whether or not the defendant was a paranoid schizophrenic. His answer to the question was “No, Sir.”

Dr. DeVillier’s testimony does not overcome the positive testimony of the two examining psychiatrists that the defendant could not distinguish right from wrong at the time of the crime.

The state also presented the lay testimony of Mr. George A. Armond, Jr., victim of the crime, who testified as to the cleverness of the defendant in executing this armed robbery. The victim’s testimony related primarily to the defendant’s intelligence in executing this crime, rather than as to the defendant’s sanity or his ability to know right from wrong at the time of the crime.

The state further contends that defendant’s flight from the scene of this robbery; that his wearing of a ski mask and gloves; that taping of the bank’s camera lenses; that the removal of the speaker device from the telephone; that the burial of some of the funds and the hiding of other portions of the funds; that the fact that the crime and the escape had been well planned; and that the defendant’s submission to the police revealed his sanity and knowledge that he had done something wrong. Drs. Ilardi and Ritter testified that such actions are not inconsistent with any state of insanity.

We find that the state has presented no controverting evidence of merit that defendant was, in fact, sane and able to know right from wrong at the time of the commission of the crime pursuant to the M’Naghten Rule. As such, viewing the evidence in the light most favorable to the prosecution, we conclude that the defendant established the affirmative defense of insanity by a preponderance of the evidence.

For the above and foregoing reasons, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings in accordance with the provisions of La.C.Cr.P. art. 654.

REVERSED AND REMANDED.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Joel K. WOODS.
    No. 83 KA 0013.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Ossie B. Brown, Dist. Atty., Baton Rouge by Warren J. Hebert, Asst. Dist. Atty., for plaintiff-appellee.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a conviction and sentence in the Nineteenth Judicial District Court, Parish of East Baton Rouge, finding appellant Joel K. Woods guilty of violation of LSA R.S. 14:65.1, purse snatching. Appellant was initially charged by bill of information with simple robbery, LSA R.S. 14:65, which was subsequently changed to the purse snatching charge. Mr. Woods entered a plea of not guilty and waived his right to trial by jury. Upon finding appellant guilty as charged, the trial court sentenced him to confinement in the custody of the Department of Corrections for three (3) years.

At approximately 9:00 p.m. on April 8, 1980, Dixie Worby was walking to her car in the Cortana Mall parking lot. As she was approaching her car, an orange and white Ford Maverick came up behind her and an occupant of the car reached out and grabbed her purse and a shopping bag she was carrying. Ms. Worby notified the police and gave a description of the vehicle used in the incident.

Some five hours after the purse snatching, appellant and his half brother, Manual Brown, were arrested on another unrelated charge. During the course of the investigation of the unrelated charge, Ms. Worby’s bankcard was found in the possession of Mr. Brown. It later became apparent that appellant’s car matched the description given by the victim of the vehicle used in the purse snatching. A search of appellant’s vehicle resulted in the police finding the shoes which Ms. Worby was carrying in the shopping bag stolen from her at the time of the purse snatching. Shortly after his arrest, appellant allegedly gave an oral statement admitting his involvement in the purse snatching.

Appellant lists some four assignments of error but has only briefed and assigned for oral argument two assignments. We therefore consider the remaining assignments abandoned. State v. Van-derhoff, 415 So.2d 190 (La.1982).

Appellant submits that the trial court erred in ruling that the State laid a proper foundation for admitting into evidence a statement alleged to have been made by him. The first assignment urged by appellant on this assignment is that there is no evidence, other than the controverted testimony of the investigating police officers, that appellant actually made an inculpatory statement. It is true that there is no recorded or written statement in the record and appellant did testify that he never made any statement. Essentially therefore, it is appellant’s word against that of the two police officers. Detectives Walsh and Devinney testified that after making sure appellant was aware of his rights through talking with him, appellant waived his right against self-incrimination and made a statement regarding the purse snatching.

The trial court ruled that the State had laid a proper foundation and allowed the statement into evidence, adding that, “whether or not the statement was, in fact, given will be a determination of this court in rendering its final decision herein.” Therefore, whether or not the statement was actually made is simply a fact question to be determined by the finder of fact, which in this case is the trial court. When reviewing the ruling of the trial court on a factual finding, great weight is placed upon the determination of the lower court because it had the opportunity to observe the witnesses and the credibility of their testimony. State v. Loyd, 425 So.2d 710 (La. 1982). We affirm the trial court’s ruling.

Appellant next argues that the statement, in the event that we find one was made, was obtained in violation of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before a confession or inculpatory statement can be admitted into evidence, it must be established that the accused who makes the statement during a custodial interrogation was informed of his Miranda rights and that the statement was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA R.S. 15:451; State v. Vacearo, 411 So.2d 415 (La.1982).

The defense contends that, shortly prior to appellant’s allegedly making the statement in question, he had refused to sign a waiver of rights form and that the interval between his refusal and when the officers questioned him about the purse snatching was so brief as to violate his constitutional rights under Miranda. It appears from the testimony that defendant was read his rights and questioned about another, unrelated incident, at which time he refused to sign the waiver of rights forms. Officer Walsh testified that, approximately an hour later, he questioned the defendant about the purse snatching after orally reviewing his Miranda rights with him. He stated that he was not aware that defendant had previously refused to sign the waiver form.

When an accused invokes his constitutional right to silence or right to counsel, the validity of any subsequent waiver depends upon the scrupulous honoring of that right by the police. Interrogation should cease. Miranda v. Arizona; State v. Manning, 380 So.2d 46 (La.1980). We will note that although the officers were unaware of the refusal to sign the form, they are held responsible for having such knowledge, although they were investigating different incidents. State v. Arceneaux, 425 So.2d 740 (La.1983).

Defendant is certainly not precluded from later changing his mind and waiving his right against self-incrimination, but the State’s burden of proving such a waiver is a heavy one. State v. Manning. When the accused invokes his right to remain silent, the police are not completely barred under Miranda from further police initiative in communication as they would be after a request for counsel. Nevertheless, the police must scrupulously honor the right to cut off questions by the person in custody. The courts must look to the facts of each case and the precepts underlying Miranda to determine if the police engaged in conduct in obtaining a confession which destroyed the accused’s confidence in his right to cut off questioning. State v. Loyd.

From our review of the record, we find that the statement in question was freely and voluntarily made. In reviewing the trial court’s ruling on the admissibility of a confession, its conclusions on credibility are entitled to respect due those made by one who saw the witnesses and heard them testify. State v. David, 425 So.2d 1241 (La.1983). The trial court’s ruling will not be disturbed on appeal unless it is unsupported by evidence. State v. Vaccaro.

In the instant case, appellant makes no allegation that the police threatened or promised him anything in order to induce him to make a statement. Appellant does urge that the fact that he had been drinking, as was known to the officers, when viewed with the totality of the circumstances, may have affected the voluntariness of his statement. Intoxication can render a statement involuntary if it is of such a degree as to retard defendant’s comprehension and to render him unconscious of the consequences of what he is saying. State v. Vaccaro. However, although appellant said he was intoxicated, he admits that he knew what was going on.

We also find it reasonable that defendant may have chosen to invoke his right to silence concerning the burglary but did not choose to do so concerning the purse snatching. Considering the above factors, and the respect due a trial court’s ruling on the admissibility of a statement, we affirm the ruling of the trial court.

In appellant’s next assignment of error he asserts that there is insufficient evidence to support the verdict because the state failed to prove an essential element of the crime, that the defendant had the specific intent to commit the crime. Although there is an absence of either a motion for a new trial or a motion for acquittal, we will consider the evidence to determine whether it meets constitutional standards. State v. Washington, 421 So.2d 887 (La.1982).

A majority of the Louisiana Supreme Court has held that due process requires an appellate court to review the sufficiency of the evidence to determine if any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, accepting the facts in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, cited above; State v. Edwards, 400 So.2d 1370 (La.1981).

Specific intent is defined by LSA R.S. 14:10(1):

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.

Specific intent, however, need not be proven as fact, but may be inferred from the circumstances of the transaction and the action of the defendant. State v. Boyer, 406 So.2d 143 (La.1981).

After reviewing the record, we find there is sufficient evidence to support the trial court’s conviction and sentence. In its oral reasons for judgment, the trial court relied on the testimony of the police officers that defendant did make a statement admitting that he, along with Brown, had pulled a purse snatching. Apparently, the trial court, as the finder of fact, concluded that the inculpatory statement had been made and took this into consideration when reaching its verdict.

The trial court found that the fact the defendant, the driver of the car, had approached the victim from behind, at a slow speed with his lights off and then sped off after the purse had been snatched, indicated specific intent on the part of defendant. Brown’s assertion that they did not discuss the crime before committing it is negated somewhat by his own admission that he told his probation officer the contrary. For the foregoing reasons, we find the trial court’s ruling sound. The assignment lacks merit.

AFFIRMED.

      . The rules for governing the admissibility of confessions are inapplicable to admission involving the existence of criminal intent or in-culpatory fact. See, State v. McGraw, 366 So.2d 1278 (La.1978). There the court found the statement was not properly admitted into evidence.

      . In State v. Arceneaux, 425 So.2d 740 (La.1983), the court held that once a defendant expresses his wish to deal with police only through counsel, all successive officers who deal with him are held to have knowledge of the fact and good faith is irrelevant. There, the Court found the statement should not have been admitted and reversed. Although the instant case deals with the right to remain silent, we find that both these rights are designed to protect the overall right against self-incrimination and this principle of law should apply to both. (It might be noted that in Arceneaux, the officers were only investigating one incident, unlike the instant case.)